1. Application and effect of these Advertising Terms
These Advertising Terms, which supersede all other terms and conditions of
business of the Buyer (which shall be of no legal effect), shall apply to
the business arrangements between Horse Deals Limited (company number:
4097886) whose registered office is Hobarn House, Brompton Road,
Northallerton, North Yorkshire DL6 1DY and the Buyer (as defined below) in
respect of the placing of Advertisements (as defined below) by the Buyer in
the Magazine or on the Web Site.
2. Interpretations
In these Advertising Terms, the following words shall have the following
meanings:
"Acceptance" means acceptance by the Buyer of these Advertising Terms by
placing an order with Horse Deals using the Order Confirmation or, if using
the Posting Service, by clicking the "I Accept" button;
"Advertisement" means any kind of promotional material that is printed or to
be printed as part of one or more issues of the Magazine or any such
material that is published by electronic means via the Web Site;
"Advertiser" means the person who promotes products or services whether such
person is the Buyer or not;
"Buyer" means the person placing the order with Horse Deals for the
insertion of the Advertisement in the Magazine or on the Web Site;
"Business Days" means 9am to 5pm on any day Monday to Friday inclusive other
than Christmas Day, Good Friday and bank and other public holidays;
"Copy Deadline" means the latest date by which the Buyer is obliged to give
Horse Deals full instructions and copy for carrying out the Buyer's order to
place an Advertisement in a particular issue of the Magazine, which shall be
the date published in the Magazine and on the Web Site from time to time in
relation to each issue of the Magazine;
"Intellectual Property Rights" means all vested contingent and future rights
of copyright including rights in software programs, code and supporting
documentation, rights in databases, patents, inventions, trade marks
(whether registered or unregistered), domain names, registered and
unregistered design rights, all rights to bring an action for passing off,
all rights in know how, trade secrets, techniques, processes, confidential
information and any other legal rights protecting the confidentiality of any
information or materials, all rights to apply for protection and to claim
priority in respect of any of the above rights, and all other intellectual
property rights in any jurisdiction, in any language and whether now known
or in the future created pursuant to any of the laws in force in each and
every part of the world;
"Magazine" means the magazine "Horse Deals" which is published monthly by
Horse Deals;
"Order Confirmation" means Horse Deals' official order form, which for the
avoidance of doubt has these Advertising Terms attached and appears in the
Magazine and on the Web Site;
"Posting Service" means the online advertising posting service on the Web
Site which enables the Buyer to submit Advertisements to the Web Site
electronically;
"Rate Card" means the rate card from time to time in force which is used by
Horse Deals and which may include (amongst other things) Horse Deals' scale
of advertisement rates and also technical specifications relating to the
standard and quality of reproduction of the Advertisement including its
setting style and wording;
"Web Site" means the Internet web site located at www.horsedeals.co.uk;
3. Agreement
3.1 Following Acceptance by the Buyer and upon receipt of payment in cleared
funds pursuant to Clause 4, Horse Deals agrees to publish Advertisements in
the Magazine and on the Web Site on behalf of the Buyer subject to the terms
of this Agreement.
3.2 If using the Posting Service, the Advertisement will be posted
automatically and published without the assistance of any Horse Deals
personnel. Publication of the Advertisement will usually take place on the
same day if Acceptance occurs on a Business Day.
3.3 Horse Deals does not guarantee that any Advertisement will lead to a
successful advertising campaign for the Advertiser and for the avoidance of
doubt, Horse Deals shall not be a party to, or liable in respect of, any
contract which is entered into between the Advertiser and any third party.
4. Payment
4.1 Unless Horse Deals agrees otherwise in writing, the price of any
Advertisement (including any Advertisement being published as part of a
series) will be the price according to the Rate Card prevailing at the date
of Acceptance.
4.2 Where the Order Confirmation is used to place an Advertisement, payment
must be made to Horse Deals by cheque (made payable to Horse Deals Limited),
credit card, debit card, or money order. Where the Posting Service is used
to place an Advertisement, payment must be made to Horse Deals via the
Barclays ePDQ payment facility on the Web Site by credit card or other
payment card.
4.3 Payment will be deemed to have been made by the Buyer to Horse Deals at
the time Horse Deals is in receipt of cleared funds in Horse Deals' bank
account and the Buyer warrants that it is entitled to use any credit or
other payment card used to remit payment to Horse Deals.
4.4 All rates and charges payable under this contract are subject to and
exclusive of Value Added Tax payable at the rate applicable from time to
time.
4.5 Unless otherwise set out in these Advertising Terms, the Buyer will not
be entitled to any refund, credit, lien or set-off of any kind from the time
the relevant fee is paid to Horse Deals.
5. Amendment and Cancellations
5.1 Horse Deals shall be entitled to amend or require the Buyer (at the
Buyer's expense) to amend any artwork, materials and/or copy for an
Advertisement, or refuse (without notice) to publish, or remove from the Web
Site (without notice) any Advertisement for any reason including, without
limitation:
(a) the content of such Advertisement is not consistent with Horse Deals'
reasonable advertising standards from time to time in effect;
(b) such Advertisement does or is likely to breach any applicable law or
regulation;
(c) the Advertiser has breached or threatened to breach the terms of these
Advertising Terms; or
(d) the content of any Advertising Content is obscene, blasphemous,
defamatory, or infringes the Intellectual Property Rights of any third
party.
5.2 Horse Deals will refund any fees pre-paid by the Buyer that relate to
the relevant Advertisement deleted or refused pursuant to Clause 4.1 from
the date of deletion or refusal.
5.3 Horse Deals may move, change the position of, or reduce or increase the
size of any Advertisement at any time if necessary or desirable for
organisational or presentational reasons.
5.4 Horse Deals will give the Buyer reasonable notice prior to any action
taken by Horse Deals pursuant to Clause 4. However, if such action is
immediate, Horse Deals will give the Buyer notice as soon as reasonably
practicable thereafter.
5.5 Horse Deals cannot be held responsible for alterations or corrections to
proofs if submitted for inclusion in the Magazine after the Copy Deadline or
not confirmed by the Buyer in writing.
5.6 The Buyer may cancel an Advertisement due to appear in the Magazine if
it gives Horse Deals notice in writing at least 40 Business Days prior to
the Copy Deadline and Horse Deals will return any money paid by the Buyer if
notice of cancellation is properly given and in the case of an order for a
series of Advertisements, the Buyer will not be liable for the difference
between the rate agreed for the entire series specified in the Order
Confirmation and the standard rate for the number of Advertisements which
has appeared when the cancellation occurs.
5.7 If a Buyer cancels the balance of an order 40 Business Days or less
prior to the Copy Deadline, he relinquishes any right to the series discount
to which he was previously entitled and must pay for Advertisements at the
appropriate rate set out in the Rate Card for the number of Advertisements
which have appeared prior to the cancellation taking effect.
6. Buyer's Warranties and Responsibilities
6.1 The Buyer undertakes, represents and warrants to Horse Deals that:
(a) it is contracting with Horse Deals as principal notwithstanding that the
Buyer may be acting directly or indirectly for the Advertiser in any
representative capacity;
(b) in the case of the Buyer changing name, trading style, identity or any
other details disclosed in its application for an account with Horse Deals
(if any), the Buyer will give written notice to Horse Deals within 5
Business Days thereof and complete a further account application form with
those new details;
(c) in the case of Advertisements to appear in the Magazine, all colour and
mono copy will be delivered to the Publisher prior to relevant the Copy
Deadline;
(d) the publication of the Advertisement by Horse Deals in accordance with
the Order Confirmation or the Posting Service originally submitted by the
Buyer (or as amended pursuant to Clause 4) will not breach any contract with
a third party or infringe any Intellectual Property Rights of any third
party or render Horse Deals liable to any proceedings, claims, demands,
costs or expenses (including legal costs) or any other loss or liability
whatsoever. In particular, the Buyer warrants that it has consent from the
photographer of any photograph which forms part of an Advertisement to use
such photograph in the Advertisement;
(e) in the case of any Advertisement submitted for publication by the Buyer
which contains the name or pictorial representation, whether photographic or
otherwise, of any living person or any part of the anatomy of any living
person and any material by which any living person may be identified, the
Buyer or Advertiser has obtained the authority of that living person to make
use of his name, identity, representation and/or copy;
(f) the Advertisement is legal, decent, honest and truthful, does not
contravene any law nor is it in any way illegal, defamatory or obscene and
it complies with the requirements of all relevant legislation including any
related subordinate legislation, the rules of statutorily recognised
regulatory force including without limitation the British Code of
Advertising Practice and all other relevant codes under the general
supervision of the Advertising Standards Authority or any other relevant
body; and
(g) the Buyer has retained sufficient quantity and quality of any artwork,
film or other materials and copy relating to the Advertisement to ensure it
may replace the Advertisement if loss of any of these items should occur.
7. Publication of Advertisements
7.1 With regard to the actual or intended insertion of an Advertisement in
any published edition of the Magazine or the Web Site, Horse Deals shall not
be responsible to the Buyer for any losses, claims, costs, damages, expenses
or liabilities whatsoever (including indirect, special and consequential
losses and loss of profit, revenues, contracts, business and loss or
corruption of data) resulting from:
(a) any failure to check the correctness of the Advertisement in the form it
is received from the Buyer;
(b) any error in the Advertisement in the form it is received from the Buyer
or repetition of any error in an Advertisement ordered for more than one
insertion;
(c) the wording or quality of colour or mono reproduction of the
Advertisement or the actual positioning of the Advertisement;
(d) the distribution of (or any failure to distribute) the Magazine in a
specific geographical area;
(e) any order given by the Buyer in the nature of a stop order or
cancellation or transfer of the Advertisement unless it is given to Horse
Deals in writing at least 40 Business Days before the Copy Deadline;
(f) any delay or failure by Horse Deals to issue the Magazine on the due
date, or Horse Deals' decision to suspend the Magazine or the Web Site or
cease publication of the Magazine or operation of the Web Site altogether;
(g) any breach of contract because of Horse Deals' failure to perform any of
its obligations under this contract if such failure is caused by anything
beyond Horse Deals' reasonable control including terrorism, strikes,
lock-outs or other industrial actions or trade disputes, whether involving
Horse Deals' employees or those of any third party;
(h) the loss of copy, artwork, photographs or other material which are held
at the Buyer's risk and which should be insured by it against loss or damage
from any cause;
(i) any other matter of complaint, claim or query unless raised with Horse
Deals in writing within 5 Business Days following the insertion of the
Advertisement or the date on which it is claimed the Advertisement was
intended to appear.
7.2 Horse Deals makes no representation or warranty that the whole or part
of the Web Site will be accessible at all times or error free.
7.3 Horse Deals reserves the right without notice to the Buyer, to suspend
temporarily or alter the operation of the Web Site, for legal or technical
reasons.
7.4 Horse Deals will have sole control over the "look and feel" of the
Magazine and the Web Site, and the display, appearance and placement of the
parties' respective names and/or brands.
7.5 Any matter of complaint arising out of the publication of any
Advertisement must be notified to Horse Deals in writing by the Buyer within
48 (forty eight) hours of receipt of such complaint
8. Horse Deals' Rights and Responsibilities
8.1 Horse Deals reserves the right at its discretion and without notice to
the Buyer:
(a) to charge the Buyer for any extra production and colour processing costs
because of any omission by the Buyer to supply artwork, film, copy or other
materials of sufficient quality or for any work arising due to the
submission of material after the Copy Deadline;
(b) to return or destroy all artwork, film, copy or other materials which
have been in its possession for more than 6 months from the date of their
last use by Horse Deals at the Buyer's cost unless written instructions have
been received from the Buyer to the contrary;
(c) to change its scale of advertisement rates and any matters shown on its
Rate Card at any time;
(d) to alter, cancel or postpone the publication date;
(e) to reject or suspend the Advertisement if at the time the Advertisement
is ordered the Buyer does not disclose the name of the Advertiser or its
client and/or the products and/or services which are the subject of the
Advertisement;
8.2 All Intellectual Property Rights in any and all material originated by
Horse Deals is owned by Horse Deals.
8.3 Horse Deals shall be entitled to withdraw, or adjust at its discretion,
any discount given to the Buyer for the publication or intended publication
of a series of Advertisements if the series is not completed because of any
stop order or cancellation by the Buyer.
9. Termination
9.1 If the Buyer is in breach of any obligation under this contract, then
Horse Deals shall be entitled to terminate this contract immediately
(without prejudice to any remedy available to Horse Deals for any breach)
and in any such event the outstanding sums owed by the Buyer to Horse Deals
shall become due and payable immediately.
9.2 Horse Deals shall be entitled (without prejudice to any other remedy
available) to treat this contract as repudiated if the Buyer:
(a) being an individual dies or makes any voluntary arrangement with his
creditors or his estate becomes subject to an administration order or he
becomes bankrupt;
(b) being a company has a receiver appointed to manage its assets or it
enters into liquidation (other than for the purpose of amalgamation or
reconstruction);
(c) allows an encumbrancer to take possession of any of its property or
assets; or
(d) ceases or threatens to cease to carry on business.
10. Indemnity
The Buyer shall indemnify and keep indemnified Horse Deals against all
proceedings claims, demands, damages, costs (including legal costs),
expenses or any other loss whatsoever arising directly or indirectly whether
or not reasonably or otherwise foreseeable or avoidable from the publication
of the Advertisement or any breach of the Buyer's obligations and/or which
results in Horse Deals being unable to fill an advertisement space under
these Advertising Terms or implied by law.
11. Personal data
If submitting any Advertisement to the Web Site via the Posting Service, the
Buyer must read, understand and accept Horse Deals' Privacy Policy which is
published on the Web Site as it forms part of these Advertising Terms.
12. General
12.1 Subject to any fraudulent statements or misrepresentations (and, in the
case of Buyers submitting Advertisements via the Posting Service, together
with the User Terms published on the Web Site and Privacy Policy), these
Advertising Terms form the entire agreement between Horse Deals and the
Buyer and will supersede any other oral or written communications,
agreements, promises or representations with respect to the subject matter
of these Advertising Terms. No variation or amendment to these Advertising
Terms will be valid unless it is in writing, refers specifically to these
Advertising Terms and is signed by the Buyer and Horse Deals. These
Advertising Terms do not affect any consumer rights that the Buyer may have
under the provisions of any applicable law or regulation.
12.2 These Advertising Terms are not an exclusive arrangement with the Buyer
and the Buyer is free to enter into any contract with any other entity
providing advertising services. The Advertiser acknowledges and agrees that
these Advertising Terms will not constitute, create or give effect to a
joint venture, pooling arrangement, principal/agency relationship,
partnership or formal business organisation of any kind and the Buyer will
not have the right to bind Horse Deals without Horse Deals' express prior
written consent.
12.3 If any part of these Advertising Terms is held by a court of competent
jurisdiction to be unenforceable, the validity of the remainder of these
Advertising Terms will not be affected. No delay, neglect or forbearance on
the part of either party in enforcing against the other party any term or
condition of these Advertising Terms will either be or be deemed to be a
waiver or in any way prejudice any right of that party under these
Advertising Terms.
12.4 If either party is unable to perform any of its obligations under these
Advertising Terms because of a Force Majeure Event, such non-performing
Party will not have liability to the other party for such failure to
perform. "Force Majeure Event" means any: fire, flood, earthquake or act of
God; explosion, war, civil disorder, industrial disputes (but not including
disputes involving the non-performing party's own employees), or revolution;
or other similar cause or event beyond the reasonable control of the
non-performing party.
12.5 These Advertising Terms may not be assigned, novated, sub-licensed or
otherwise transferred by the Buyer in whole or in part without the prior
written consent of Horse Deals. Horse Deals may assign, novate, sub-licence
or otherwise transfer these Advertising Terms in whole or in part to any
third party as part of a change in ownership of Horse Deals or a bona fide
reconstruction, merger or takeover of Horse Deals, without the Buyer's
consent.
12.6 A person who is not a party to these Advertising Terms has no right
under the Contracts (Rights of Third Parties) Act 1999 to enforce any term
of these Advertising Terms.
12.7 These Advertising Terms are governed by the laws of England, and
subject to the non-exclusive jurisdiction of the Courts of England.