Posted: Thursday August 4 2016
STANDARD TERMS AND CONDITIONS FOR THE SUBMISSION OF ADVERTISEMENTS FOR TIME OUT PORTUGAL
- 1. Interpretation
1.1 For the purposes of these terms and conditions (the “Terms”) capitalised terms shall have the meaning given in the Insertion Order and:
a) "Advertisement" shall mean the materials, including all copy and imagery, supplied by the Advertiser to be printed on a page, whether in print or digital, , separately inserted in the Magazine, or included on a Digital Product.
b) "Advertisement Rates" shall mean the rates set out in the Rate Card.
c) "Advertiser" shall mean the person placing the order for the insertion of the Advertisement with the Publisher including, where relevant, the Agency as set out in the Insertion Order.
d) “Campaign Start Date” shall mean the date specified in the Insertion Order.
e) "Cancellation Date" shall mean the date upon which the Advertiser shall be required to notify the Publisher of any cancellation of an order as set out in the Insertion Order.
f) “Contract and Creative” means any bespoke creative solution campaign ordered by the Advertiser that may be subject to additional terms and conditions between Time Out and the Advertiser.
g) "Copy Date" shall mean the dates for receipt of artwork and copy in effect at the Order Date as stipulated in the Insertion Order.
h) "Copy Deadline" shall mean a time of day on the Copy Date specified by the Publisher in respect of which time shall be of the essence.
i) "Insertion Order" shall mean the order form in effect at the Order Date.
j) "Magazine" shall mean Time Out Lisbon.
k) "Order Date" shall mean the date upon which the Insertion Order is signed by both parties.
l) "Production Specifications" shall mean the specifications in effect at the Order Date stipulated in the Rate Card.
m) “Publication” shall mean the Magazine and/or the Webpage, or any digital insertion into one of Time Out’s Digital Product, as agreed between the parties and set out in the Insertion Order.
n) "Publisher" shall mean Time Out Portugal.
- o) "Rate Card" shall mean the Publisher's Rate Card in effect at the Order Date and may include, among other matters, its scale of advertisement rates, production specifications and standard terms and conditions.
p) “Site” or “Sites” means the Advertiser’s website or websites.
q) “Webpage” shall mean timeout.com/lisbon or any webpage hyperlinked to it.
r) “Time Out Digital Product” means the Webpage, the Time Out mobile application, the Time Out tablet application or any future digital product that Time Out may release from time to time.
1.2 In these Terms, unless otherwise specified or the context otherwise requires:
a) words importing the singular only shall include the plural and vice versa;
b) words importing the whole shall be treated as including a reference to any part;
c) any phrase in the Terms introduced by the term “include”, “including”, “in particular” or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding that term;
d) headings used in these Terms are for reference only and shall not affect its construction or interpretation.
- 2. Acceptance of Advertisement
The placing of an Insertion Order for the insertion of an Advertisement into the Publication shall amount to acceptance of these Terms. All Advertisements must be submitted to the Publisher in a form that complies with the Production Specifications following the submission of the completed Insertion Order and receipt, in cleared funds of the applicable Advertisement Rate. The Publisher shall have the right to change its scale of advertisement rates at any time. If the Publisher changes such rates during the term of any Agreement, the advertising rate in force at the date of the Insertion Order shall continue to apply to such Insertion Order for a period of six months following notification by the Publisher of any such change, after which the amended advertising rates shall apply.
- 3. Licence
The Advertiser hereby grants to the Publisher a worldwide, irrevocable, perpetual licence to (i) display, reproduce, copy, distribute and transmit the Advertisement in the Publication; (ii) link to the Site(s); and (iii) sublicense such rights to third parties as applicable.
- 4. Payment Terms
4.1 Payment of the Advertisement Rates and any other sums due to the Publisher (including any associated production, late copy and box number charges) will be payable not less than seven days in advance of the Campaign Start Date unless otherwise agreed in writing.
4.2 Where the Publisher has expressly agreed in writing to give the Advertiser credit, the time for payment of the Advertising Rate shall be no later than 30 days following the date of the relevant invoice unless otherwise agreed in writing by the Publisher.
4.3 The Advertiser shall, together with payment, supply full details of such remittance specifying the invoice number (if available) and the Campaign Start Date.
4.4 Payment of all sums due to the Publisher shall be made to Time Out Portugal by cheque or shall be transferred to Time Out Portugal’s bank account electronically.
4.5 Payment of all sums due to the Publisher shall be made in accordance with this clause 4 whether or not the Advertiser has received the Publisher's invoice, notwithstanding any dispute or query in relation to any element of any of the invoice. The time for payment of the all sums due shall be of the essence of the Terms.
4.6 In the event that any payment is not made by the due date, the Publisher reserves the right to charge the following additional charges:
a) the sum of €25 as an administration charge in respect of each invoice not paid on or before the due date; and
b) €100 compensation plus interest on the amount unpaid at the rate of 8% above the six-month Euribor base rate from the date payment was due until the date upon which payment is made.
4.7 Any such additional charge is payable within 7 days following delivery of the Publisher's invoice particularising it.
4.8 All Rates and other charges are expressed exclusive of Value Added Tax (“VAT”). The Advertiser shall pay to the Publisher, in addition to the sums due, the amount of VAT (if any) which is properly chargeable by the Advertiser to the Publisher. When applicable, a VAT invoice will be supplied by the Publisher.
- 5. Amendments to Advertisements
5.1 Notwithstanding the warranties contained in clause 10, the Publisher has the absolute right at its discretion to refuse or require to be amended any artwork, materials and copy for or relating to an Advertisement so as:
a) to comply with the applicable law; or
b) to avoid infringing a third party's rights; or
c) to comply with the production and quality specifications stipulated or referred to in the Production Specifications.
- 6. Publisher’s right not to Publish
The Publisher has the right at its discretion to decline to publish, or to omit, suspend, alter, edit, crop, resize and reformat or change the position of any Advertisement otherwise accepted for insertion, however the Publisher will use reasonable efforts to comply with the specified written requirements of the Advertiser. The Publisher does not warrant the date of insertion of the Advertisement into the Publication, the wording, or the quality of the colour or mono reproduction of the Advertisement.
- 7. Submission Terms
7.1 The Advertisement must be received by the Publisher no later than the Copy Deadline on the Copy Date and the Advertiser shall supply the Advertisement in such form as the Publisher shall specify in the Production Specifications. It is the responsibility of the Advertiser to check the correctness of the Advertisement. The Publisher accepts no liability for any error in any Advertisement. This includes and is not restricted to Advertisement/editorial positioning, impositioning, colour matching, typographical and pictorial errors, binding, registration, plate movements, ink quality, paper stock, as well as markings caused by the printing, finishing, binding or delivery process.
7.2 No re-insertion, refund or adjustment to the cost will be made where the error, misprint, or omission does not materially detract from the Advertisement. In the event that the material submitted to the Publisher does not comply with the Production Specifications or as set out in clause 7.1, the Publisher shall be permitted either to reject or to amend the Advertisement as stated in these Terms.
7.3 In the event that the Advertiser submits the Advertisement to the Publisher after the Copy Deadline, the Publisher shall at its discretion be entitled either to:- a) reject such Advertisement, in which case it shall be deemed cancelled for the purpose of these Terms, or b) accept the same for inclusion in the Publication at a later date.
7.4 Notwithstanding and in addition to the Advertiser’s rights in clause 7.3, in the event that the Advertiser fails to submit any materials (including all artwork and copy relating to the Advertisement) that are required to launch an Advertisement on a Time Out Digital Product or in the Magazine by the Copy Deadline, Time Out reserves the right acting in its sole discretion and at all times acting reasonably, acting in its sole discretion, to invoice the Advertiser a proportion of, or the full, Advertisement Rates and any other sums due to the Publisher.
- 8. Cancellation Terms and Termination
8.1 The Publisher shall not be bound by any notification of cancellation unless it is in writing and received by the Publisher prior to the Cancellation Date.
8.2 Any cancellation instruction, whether given prior to or after the Cancellation Date shall not (notwithstanding the fact that it may be accepted by the Publisher) affect the Advertiser's obligation to pay for the Advertisement.
8.3 The Publisher may treat as a cancellation and shall be entitled to terminate this Agreement forthwith on the giving of notice by telephone, fax, email or letter to the Advertiser and further reserves the right in its sole discretion to refuse to publish any Advertisement where:
a) the Advertiser ceases, or threatens to cease, to carry on its business;
b) the Advertiser has failed to pay any sums due to the Publisher on or before the due date,
c) the Advertiser (i) is unable to pay its debts as they fall due or admits inability to pay its debts, (ii) passes a resolution for winding up (other than for the purpose of a solvent amalgamation or reconstruction) or has an order to that effect made by a court of competent jurisdiction, (iii) enters into a composition or scheme of arrangement or voluntary arrangement with its creditors or has a receiver, manager, liquidator, administrator or administrative receiver is appointed over any of its assets, or (iv) ceases or threatens to cease to do business; or notice of intention to appoint an administrator over the assets of other party is given by any person or an application is made to court or an order is made for the appointment of an administrator over the assets of other party; or an analogous event occurs to the other party in any jurisdiction; or
d) the Publisher has reasonable grounds to believe that the Advertiser is in breach of the Agreement and such breach (if capable of remedy) continues for fourteen (14) days after receipt of a notice from the Publisher specifying the breach and requiring the same to be remedied.
e) any breach of these Terms occurs.
8.4 Any series discounts or reduced advertising rates granted by the Publisher for multiple advertisements apply only in the event that, and are conditional upon, all advertisements contemplated (at the time that the fees were agreed) being placed. In the event that the Advertiser cancels or does not conclude any series or multiple advertisements, the Advertiser relinquishes the right to the discount or reduced rate and Advertisements will be charged and paid for at the otherwise applicable rate, or if none is specified, the full rate.
- 9. Copyright
All intellectual property rights in any artwork, copy, photographs and other material which originated from the Publisher or its employees or contractors, agents or associated companies or which has been created or altered by the Publisher in re-working the Advertisement shall vest in the Publisher.
- 10. Warranties
10.1 The Advertiser warrants that:
a) in relation to an Advertisement, the Advertiser contracts with the Publisher as principal notwithstanding that the Advertiser may be acting directly or indirectly as an advertising agent or media buyer or in some other representative capacity;
b) the reproduction and/or publication of the Advertisement by the Publisher as originally submitted or as amended pursuant to clause 7 will not: (i) breach any contract or (ii) infringe or violate any copyright, patent, trademark, trade secret or other intellectual property right of any third party, and Advertiser is solely responsible for securing, maintaining and paying for all such rights and licenses which, for the avoidance of doubt, includes all necessary copyright (including without limitation all royalties payable for the copyright in any underlying works embodied in the Advertisement and other related rights), or (iii) render the Publisher liable to any proceedings whatsoever in any jurisdiction;
c) to the extent that it is intended to be considered as factual, any information supplied in connection with the Advertisement is accurate, complete and true;
d) in respect of any Advertisement submitted for publication which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified, the Advertiser has obtained the authority of such person to make use of their name, representation and/or copy;
e) in relation to any financial promotion advertisement, the contents of the Advertisement have been approved by the competent authorities;
f) the Advertisement shall not contain: (i) content that is an invasion of privacy, defamatory, libelous, unlawful, profane, obscene, pornographic, hate material, or discriminatory; (ii) content that promotes any illegal activity including without limitation the promotion of tobacco, gambling where prohibited, illegal substances, software piracy, or hacking; (iii) content that infringes on the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other intellectual property right of any third party; or (v) content that Agency knows to be false or misleading;
g) the Advertisement shall comply with the requirements of the legislation for the time being in force or applicable.
10.2 Advertiser is responsible for any liability whatsoever arising out of any content of the Advertisement. The Advertiser shall indemnify and hold the Publisher harmless against all claims, costs, proceedings, demands, losses, damages, expenses or liability (including any damages or compensation paid by the Publisher on the advice of its legal advisers to compromise or settle any claim) howsoever arising directly as a result of any breach or non-performance by the Advertiser of any of the representations, warranties or other terms contained in the Terms or implied by law, or as a result of any claim by a third party based on facts which, if substantiated, would constitute such a breach or non-performance.
- 11. Limitation of Liability
11.1 Any complaint, claim or query (other than in respect of any error covered by the provisions of clause 7 above) whether in relation to the Advertisement or an invoice must be raised by the Advertiser within 28 days of the Campaign Start Date. Without prejudice to the Publisher's right to be paid for the Advertisement:
a) in no circumstances shall the total liability of the Publisher for any error or omission exceed the Advertisement Rate; and
b) any complaint, claim or query shall not affect the liability of the Advertiser in relation to any payment due to the Publisher.
11.2 Subject to clause 11.5, and to the extent permitted by law, the Publisher shall not be liable for any indirect losses or damage suffered by the Advertiser.
11.3 The Publisher will not be liable for any loss of copy, artwork, photographs or other materials, which the Advertiser warrants that it has retained in sufficient quality and quantity for whatever purpose it may require.
11.4 Where the Advertiser is an advertising or other agent instructed by a third party, the Advertiser warrants that it is authorised by such third party to sign the Insertion Order with the Publisher and accept these Terms on behalf of the third party and shall indemnify the Publisher against any claims made by such third party against the Publisher arising from its publication of the Advertisement.
11.5 Nothing in these Terms shall limit the liability of the Publisher to the Advertiser for:
a) death or personal injury;
b) fraudulent misrepresentation; or
c) any liability which cannot be excluded by law.
- 12. Destruction of advertising material
The Publisher reserves the right to destroy all materials relating to the Advertisement that have been in its custody for twelve months, and may exercise this right without notice to the Advertiser. The Advertiser must provide explicit written instructions or arrangements if they wish their material to be held in storage or returned.
- 13. Confidentiality and Data Protection
13.1 The Advertiser undertakes to the Publisher:
a) To treat all information provided by the Publisher in connection with the Publication, the Advertisement and/or in relation to the Publisher’s business as strictly confidential; and
b) Not under any circumstances to share any such information with any third party (including, without limitation, the press/news/media); and
c) To refer all press/news/media enquiries concerning the Publication, the Advertisement and/or the Publisher's business to the Publisher.
13.2 The obligation set out in the preceding sub-clause shall not apply to any information which:
a) Prior to its receipt from the Publisher was lawfully in the possession of the Advertiser and at its or their free disposal; or
b) Is subsequently disclosed to the Advertiser without any obligations of confidence by a third party who has not derived it directly or indirectly from the Publisher; or
c) Is or becomes generally available to the public through no act or default of the Advertiser or its or their respective agents, employees, officers and representatives; or
d) Is required by law to be disclosed.
13.3 If either party acquires any personal data relating to any of the personnel of the other party or any other individual (“Personal Data”) as a result of the services provided pursuant to these Terms that party shall:
a) only process the Personal Data in accordance with the instructions of the other party and at all times in accordance with the applicable legislation;
b) not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third party unless specifically authorised in writing; and
c) take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data.
13.4 If either party receives any complaint, notice or communication that relates directly or indirectly to the processing of any Personal Data it shall immediately notify the other party and provide them with full co-operation and assistance in relation to that complaint, notice or communication as required.
13.5 Neither party shall transfer any Personal Data outside the European Economic Area without the prior written consent of the other party.
13.6 In this clause ‘personal data’ and ‘process’ shall have the meanings given to them in the applicable law.
- 14. Applicability of the Terms
These Terms shall apply to each contract for the placement of an Advertisement together with such additional matters (if any) as may be set out in the Rate Card. In the event of a discrepancy between the provisions of these Terms, terms included in the Rate Card and explicit terms in the Insertion Order, the provisions in the Insertion Order shall prevail and the conditions set out in the Rate Card shall prevail.
These Terms supersede and replace all the Publisher's previous terms and conditions and all documentation previously issued by the Advertiser purporting to set out its terms and conditions.
- 15. Miscellaneous
15.1 Editorial policy: The Publisher maintains a totally impartial editorial policy and it is agreed and understood that Advertisers are not entitled or favoured for an editorial mention in exchange for taking an Advertisement in the Publication.
15.2 Replies to Advertisement: While reasonable endeavours will be made to forward to the Advertiser, as it may direct or as soon as possible after receipt by the Publisher, any replies to the Advertisement, the Publisher accepts no responsibility in respect of any loss or damage alleged to have arisen through delay in forwarding or omitting to forward such replies.
15.3 Competition and Special Offer: If it is intended that a competition or a special offer shall be included within an Advertisement, full details should be submitted to the Publisher at the time of signing the Insertion Order. There is no obligation for the Publisher to supply voucher copies or tear sheets and their absence shall not affect the Advertiser's liability for the agreed charge.
15.4 Subcontracting: The Publisher may sub-contract to any other person the performance of any of the obligations undertaken by it and exercise any of the rights granted to it.
15.5 Delay and Non-performance: The Publisher shall not be liable to the Advertiser for any delay or non-performance of its obligations under these Terms to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control. Such delay or non-performance shall not constitute a breach of these Terms and the time for performance shall be extended by a period equivalent to that during which performance is so prevented. Notwithstanding any such delay or non-performance of its obligations under these Terms, the Publisher shall be entitled to charge the Advertiser the Advertisement Rates and any other sums due to the Publisher in full following completion of its obligations under these Terms.
15.6 Except as otherwise stated in these Terms, the rights and remedies of each party under these Terms:
a) are in addition to and not exclusive of any other rights or remedies under these Terms or the general law; and
b) may be waived only in writing and specifically.
15.7 Delay in exercising or non-exercise of any right under these Terms is not a waiver of that or any other right. Partial exercise of any right under these Terms shall not preclude any further or other exercise of that right or any other right under these Terms. Waiver of a breach of any term of these Terms shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
15.8 Severance: If any provision of these Terms is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
a) the legality, validity or enforceability in that jurisdiction of any other provision of these Terms; or
b) the legality, validity or enforceability in any other jurisdiction of that or any other provision of these Terms.
Whilst the parties consider the provisions contained in these Terms reasonable, having taken independent legal advice, if any one or more of the provisions are adjudged alone or together to be illegal, invalid or unenforceable, the parties shall negotiate in good faith to modify any such provision(s) so that to the greatest extent possible they achieve the same effect as would have been achieved by the invalid or unenforceable provision(s).
15.10 Governing law and jurisdiction: These Terms and any dispute or claim arising out of or in connection with it (including any non-contractual claims or dispute) shall be governed by and construed in accordance with the laws of Portugal.
15.11 In relation to any legal action or proceedings (a) arising out of or in connection with these Terms or its implementation or effect or (b) relating to any non-contractual obligations arising out of or in connection with these Terms, each of the parties accepts the jurisdiction of the Portuguese courts.