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1. Definitions
Collateral means the physical advertisements produced from the Creative
Contract means the contract between t4Media and the Customer, which contract shall include the Booking Confirmation describing the Services to be performed and which Booking Confirmation shall incorporate by reference these Terms and Conditions
Creative means the creative artwork and design that the Customer delivers to t4Media from which t4Media shall create the Collateral
Customer means the person ordering Services from t4Media as set out in the Contract
Gimpacts means the anticipated number of impacts (foot falls)
Services means the services which t4Media is to supply in accordance with these terms of business
t4Media means t4Media Limited or such other company as is set out on the Booking Confirmation
t4Media Concept means the concepts of AdNozzles®, AdDoors, PumpPanels and/or AdGates developed by t4Media for the exploitation of advertising sites and forming the subject matter of this Contract’
2. Formation
(1) These terms shall apply to all transactions between t4Media and the Customer and shall supersede any prior agreement between the parties and, in particular, prevail over any purchase terms submitted by the Customer. All requests for Services by the Customer shall be deemed to be an offer by the Customer to purchase the Services pursuant to these terms..
(2) If any of these terms in whole or in part shall be held to be invalid or inapplicable to the Contract the remainder of these terms shall continue in full force and effect as if the remaining terms formed the whole of the Contract.
(3) Where t4Media makes a tender, gives a quotation or otherwise offers to supply any Services, the same shall not constitute a contractual offer. The Contract shall only be concluded by t4Media’s issue of its official Booking Confirmation as signed by the Customer.
(4) No agent or employee of t4Media has authority to make any representations concerning the Services or to vary these terms or the terms of any tender, quotation, estimate, offer or contract unless such representation or variation is confirmed in writing by a director of t4Media. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations which are not so confirmed.
(5) The Customer shall be responsible to t4Media for ensuring the accuracy of the terms of any order for Services (including any applicable specification) submitted by the Customer, and for giving t4Media any necessary information relating to the Services required within a sufficient time to enable t4Media to perform the Contract in accordance with its terms.
(6) An accepted order may be cancelled or varied by the Customer only with t4Media’s written consent and the giving of such consent shall not in any way prejudice t4Media’s right to recover from the Customer full compensation for any loss or expense (including without limitation loss of profit) arising from such cancellation or variation.
3. Price
(1) Prices offered by t4Media are on the basis that the Customer permits the Services to be performed (or, as the case may be, to begin to be performed) at or by the time provided in the Booking Confirmation or (in the absence of any specified time) within 30 days of the conclusion of the Contract. In the event of delay by the Customer beyond such time t4Media shall be permitted (without prejudice to any other remedy available to it, including, without limitation, that set out in clause 4(2)) to adjust its price in accordance with any intervening change in its published prices or otherwise to cover any additional cost incurred as a result of the delay.
(2) All prices offered by t4Media are, unless otherwise stated, exclusive of Value Added Tax.
4. Payment
(1) Unless otherwise agreed by t4Media in writing, terms of payment shall be the earlier of (i) 30 days from the date of invoice and (ii) 10 working days prior to your campaign being posted.
(2) If any sums become overdue, t4Media may without prejudice to any other right or remedy available to it:-
(a) suspend all further supplies of Services until payment in full thereof has been made and/or;
(b) cancel the Contract as regards any Services which remain to be supplied thereunder (for the avoidance of doubt, the full fee for the Services shall remain payable notwithstanding such cancellation); and/or
(c) charge interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
(3) In the event that t4Media have agreed that the Customer shall be billed in arrears, if in the opinion of t4Media the credit worthiness of the Customer shall have deteriorated before performance of the Services t4Media may require full or partial payment of the price before performance of the Services or the provision of security for payment by the Customer in a form acceptable to t4Media.
5. Delivery and time of performance
(1) If the Contract between t4Media and the Customer specifies a time for performance of t4Media obligations thereunder such time shall not be of the essence of the Contract. Customers may not change a time for performance agreed with t4Media without the prior written consent of t4Media.
(2) Where the Services are to be supplied in instalments, each supply shall constitute a separate contract and failure by t4Media to supply any one or more of the instalments in accordance with these terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
(3) If t4Media fails to supply the Services (or any instalment thereof) for any reason other than any cause beyond t4Media’s reasonable control or the Customer’s fault, and t4Media is accordingly liable to the Customer, t4Media’s liabilities shall be limited to the excess (if any) over the price of the Services of the cost to the Customer (in the cheapest available market) of similar services to replace those not supplied.
(4) t4Media will place advertising material at the desired location up to 7 days after the date agreed between T4 Media and the Customer for the placement of such advertising material and may remove such advertising material without penalty up to 7 days before the expiry of the agreed period of display of such advertising material.
6. Production of Advertisements
(1) Customer must deliver the Creative to t4Media in accordance with the timelines notified to Customer. If Customer fails to do so, t4Media may not be able to supply any specified Site.
(2) On receipt of the Creative, t4Media shall:
(a) check the Creative to ensure that it conforms with its Advertising Code of Conduct (to the extent that it is reasonably able to determine such compliance; and with any requirements of the Site owner or manager (as the case may be). If there is any lack of compliance, t4Media shall promptly notify the Customer and for the purposes of sub-clause (1) above, the Creative shall not be deemed delivered;
(b) subject to sub-clause (a) above, produce print-ready PDF proofs of the Creative and send the same for approval by the Customer.
(3) The Customer must approve the proofs in writing within 1 working day of their receipt, in the absence of which t4Media may assume consent. Any concerns raised must be reasonable in all respects.
(4) On receipt of consent or deemed consent from the Customer, t4Media shall produce (or procure the production of) the Collateral at its cost. Items of Collateral in actual use as an AdBarrier or AdGate will typically be refreshed every twelve weeks.
(5) The Customer shall be responsible for all business rates or other local governmental or regional or local authority taxes levies or duties that apply in relation to the display of any advertising material, and to the extent that t4Media has paid the same, the Customer undertakes to promptly reimburse t4Media.
7. Disclaimers
(1) Save as expressly provided in these terms, and except where the Services are supplied to a person dealing as a consumer (within the meaning of Unfair Contract Terms Act 1977) all warranties, conditions and other terms implied by statute, common or European Community law are excluded to the fullest possible extent permitted by law. If t4Media has provided in any presentation, tender, estimate, quotation or offer any drawing or specification of the Services to be supplied, including, but not limited to, estimates relating to parking volumes or referred to as guaranteed impacts or ‘Gimpacts’ the same are to be taken as approximate only and intended to give a general idea only of the Services in question unless they are expressly warranted in writing as accurate.
(2) Without limiting the generality of sub-clause (1), no warranty is given by t4Media as to the suitability or the physical condition of any proposed location for the display of advertising material nor is any warranty given that t4Media has the authority to grant the customer the right to display advertising material at any proposed location without infringing any legislation (including, without limitation, planning permission) or obligation under any lease.
8. Exclusions and Limitation of liability
(1) t4Media does not exclude or limit its liability to the Customer for:
(a) fraudulent misrepresentation;
(b) death or personal injury caused by the negligence;
of, in either case, that Party or the employees, agents or sub-contractors of that Party; nor
(c) any liability that cannot, by application of law, be excluded or limited.
(2) Subject to sub-clause (1) above, t4Media shall not be liable under contract, tort or any other head of law, to the Customer for any indirect loss, consequential loss, loss of profits (whether direct or indirect), loss of earnings, loss of anticipated savings or loss of data.
(3) for all other loss, t4Media’s liability to the Customer for all matters relating to this Contract and under whatsoever head of law or equity (including, without limitation, negligence) shall not exceed the price of the Services paid and payable by the Customer.
(4) In certain instances, due to operational or other reasons beyond the reasonable control of t4Media, the relevant Site may not be available for the Customer’s use or may cease to be available whilst in use. In such case t4Media shall, if possible, offer suitable alternative sites for use by the Customer or, in the event that there is no such suitable alternative that is agreeable to the Customer, t4Media shall refund or credit (at the Customer’s option) that part of the fees that corresponds to the unavailable site and the duration of unavailability. The foregoing shall be the Customer’s sole recourse in such circumstances.
9. Indemnities
The Customer shall indemnify and keep indemnified t4Media against all loss, damage, expense, costs and liabilities arising from: any claim or threatened claim by a third party that
(a) relates to the advertising (and/or Collateral) of the Customer (including, without limitation, the display thereof), save to the extent that such claim arises out of the breach of this Contract by t4Media or the negligence thereof;
(b) without limiting the generality of sub-clause (a), any failure of the advertising (and/or Collateral) to comply with:
(i) all statutory and other legal and regulatory requirements and provisions in place from time to time including, without limitation the British Codes of Advertising and Sales Promotion and t4Media’s Advertising Code of Conduct
(ii) to be free of obscene or defamatory material;
(iii) to be free of any material that infringes that intellectual property and/or other proprietary rights of a third party. For the avoidance of doubt, a failure to reject any advertisement by t4Media in accordance with Clause 6(2)(a) shall not be deemed a waiver or acquiescence of t4Media’s rights under this sub-clause in respect of such advertisement.
10. Intellectual Property Rights
(1) The Customer acknowledges and confirms that it shall not obtain or assert rights or any intellectual property rights in the t4Media Concept or the name thereof (or any names used in connection therewith) and that nothing in this Contract shall be taken as an assignment of such rights. The Customer covenants that it will not make any representations or do any act which may be taken to indicate that it has any right title or interest in or to the ownership of the rights in the t4Media Concept or the name thereof.
(2) Where a third party has any copyright or other intellectual property right in any advertising material the Customer will be solely responsible for discharging any copyright or other contractual obligation to such third party and the Customer shall indemnify and keep indemnified t4Media against all losses, claims, demands, proceedings, liabilities, damages, costs, charges and expenses (including legal costs and expenses on a full indemnity basis) whatsoever that arise as a consequence of a breach by the Customer of the terms of this clause.
11. Confidentiality
The Customer agrees not to divulge or communicate to any person or use or exploit for any purpose whatever any of the trade secrets or confidential knowledge or information or any financial or trading information relating to t4Media or t4Media’s customers, suppliers, employees, officers or agents which the Customer may receive or obtain at any time in anticipation of entering into or as a result of entering into the Contract, including (without limitation) information relating to customer usage of car park sites. The restrictions in this clause shall continue to apply after expiry or termination of the Contract without limit in duration but shall cease to apply to any information or knowledge, which may properly come into the public domain.
12. Termination
(1) This Contract shall terminate once the Services have been performed by t4Media, subject to earlier termination in accordance with the remainder of this Clause.
(2) Either Party may terminate the Contract by immediate notice in writing to the other Party if
(a) the other Party commits a material breach of its obligations under this Contract and either
(i) that breach is incapable of remedy; or
(ii) such breach has not been remedied within 30 days of t4Media notifying the other Party of the breach and requiring it to be remedied.
(b) the other Party becomes bankrupt (if an individual) or insolvent, or has an administrator, receiver, manager or liquidator appointed over all or any of its assets and/or enters into a composition with its creditors; or in each case, suffers or undergoes an analogous event in any other jurisdiction) and in each case excluding any event occasioned by a bona fide solvent corporate restructuring.
(c) In the case of t4Media terminating in respect of each such instance no fee or part thereof shall be repaid.
(3) Termination of this Contract, howsoever caused, shall not prejudice the accrued rights and remedies of either Party.
(4) Upon termination of the Agreement, all sums due or outstanding hereunder shall immediately become repayable
13. Force Majeure
t4Media shall not be liable to the Customer for any breach of this Contract arising from any matter beyond the reasonable control of t4Media. In the event that such event prevents performance for more than 6 months, the Customer may terminate this Contract on notice on writing without liability on either Party.
14. Miscellaneous
(1) This Contract represents the entire relationship between the Parties and supersedes all previous written or other correspondence and agreements as to the subject matter of this Contract.
(2) In entering into this Contract, the Parties acknowledge and agree that they have not relied on any warranty or representation of the other Party save as to those that are expressed herein, and all such warranties and representations are expressly disclaimed by each Party including, without limitation, any warranty relating to fitness for any particular purposes and merchantable quality.
(3) The Parties are entering into this Contract as principals and nothing in this Contract shall serve to create any agency or partnership between the Parties.
(4) No amendment to this Contract shall be valid unless made in writing and signed by authorised representatives of both Parties.
(5) No failure or delay by a Party in exercising its rights or remedies shall operate as a waiver unless made by written notice. No single or partial exercise of any right or remedy of a Party shall preclude any other or further exercise of that or any other right or remedy.
(6) No rights under the Contracts (Rights of Third Parties) Act 1999 shall accrue to any third party in relation to this Contract.
(7) The Contract is not assignable by the Customer without the written consent of T4 Media.
15. Notices
(1) If either Party needs to send notices to the other Party they shall do so by first-class (or international equivalent) pre-paid post to the address given for that Party on the relevant Booking Form or such other address as a Party may notify the other Party in accordance with this Clause.
(2) Any notice shall be deemed to be delivered 48 hours after posting it unless posted internationally, in which case delivery shall be deemed to take place 72 hours after postage.
16. Governing Law and Jurisdiction
This Contract is governed by and shall be construed in accordance with the laws of England (without regard to its provisions on conflict of law) and the Parties submit unconditionally to the exclusive jurisdiction of the courts of England for all purposes related to this Contract and for all non-contractual matters relating to this Contract. Notwithstanding the foregoing enforcement of any judgment handed down by an English Court may take place in any jurisdiction in which the losing Party has assets.