Press (Display & Classified) Ts & Cs

Effective from: Monday 11^th July 2011.

General Terms and conditions of Booking.

These Terms and Conditions of Business together with the Deal Memorandum defined below are legally binding and contain the Agreement between the Buyer and News International Trading Limited trading as NI Commercial - "NIC" - relating to the purchase of Advertising.
These Terms and Conditions of Business apply to the purchase of all Advertising on or after 11^th July 2011.
A booking by a Buyer to insert an Advertisement together with the Buyer's confirmation (whether verbally, in writing, electronically or otherwise) in respect of such insertion will constitute the Buyer's acceptance of, and Agreement to be bound by, these Terms and Conditions of Business and the Deal Memorandum irrespective of whether or not the Deal Memorandum is signed by the Buyer. These Terms and Conditions of Business and the Deal Memorandum may only be amended to the extent agreed in writing by NIC. In the event of any conflict between these Terms and Conditions of Business and the Deal Memorandum, the Deal Memorandum will prevail.

1    Definitions

1.1 In these Terms and Conditions of Business and the Deal Memorandum words and expressions shall have their ordinary meaning unless otherwise defined within these Terms and Conditions of Business.
AB Deadline or Advance Booking Deadline means in relation to a calendar month the dates notified by NIC to the Buyer as the AB Deadlines or Advance Booking Deadline(s) for that month;
Advertisement Copy means any item of advertising copy intended for insertion in respect of which Advertising has been sold and which has been accepted for insertion in accordance with these Terms and Conditions of Business;
Advertiser means a person, firm or company placing advertising through an Agency with NIC under these Terms and Conditions of Business;
Agency means an agency or agency buying group, being a person, buying advertising with NIC on behalf of one or more clients;
Agency as Principal means where the Buyer is an Agency, the Agency will be deemed to contract as Principal in all respects and not as agency on behalf of its clients and as such it will be responsible for the payment of all amounts due to NIC and the performance of all other obligations under this Agreement;
Agency Commission has the meaning given in clause 4;
Agreement means the Deal Memorandum, Variation Letter and these Terms and Conditions of Business;
ASA means the Advertising Standards Authority;
Associated Undertaking means in relation to an undertaking, that undertaking and any other undertaking which is its parent undertaking or subsidiary undertaking or a subsidiary undertaking of any such parent undertaking;
Audience means demographs recognised and reported by NRS and TGI;
Auditing and Reporting means NIC rights to auditing and reporting as set out in clause 17;
Auditors has the meaning given in clause 17;
BACS means Bankers Automated Clearing Service;
Barter means any advertising that is be paid for otherwise than in cash or Contra;
Booking means a request by a Buyer to place advertising with NIC;
The British Code of Advertising, Sales Promotion and Direct Marketing (The Code): it is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications;
Buyer means the Principal identified in the Deal Memorandum, being either an Agency or Direct Advertiser provided that where such a person is not a separate legal entity it shall be deemed to include the legal entity or entities which own(s) such person;
Buyer Commitments means the minimum commitments made by the Buyer in relation to share of Competitive Set and/or Volume as set out in the Deal Memorandum or Variation Letter;
Campaign means all or part of the Advertising within a Booking which relates to a single burst of activity for a single product/brand or service for a single promotional purpose;
Cancellation means a cancellation of Advertising booked under any Agreement following a request by the Buyer;
CAP: the Committee of Advertising Practise is the self-regulatory body that creates, revises and enforces the Code;
Categoric Exclusion means any category of Gross Expenditure contractually agreed to be excluded from the calculation of delivery of Buyer Commitments. To qualify for exclusion any such category must be expressly defined within the Deal Memorandum or Variation Letter;
CHAPS means Clearing House Automated Payments System;
Client and Clients shall mean the advertising client and clients, as appropriate, of an Agency;
Competent Authority means any national court, the European courts, any governmental authority, any other person exercising powers pursuant to any Legislation or any other official person and any relevant industry body;
Competitive Set: the schedule appended to a deal which express the individual competitive publications which, when combined Gross Expenditure by the Agency with those publications is taken together, shall form the denominator universe for the purpose of share calculation. Gross Expenditure (such as inserts or promotion or advertorial) with each publication which shall form part of the denominator universe will be defined in the Deal Memorandum;         
Confidential Information includes any information marked as such and any other information which might reasonably be assumed to be confidential in any form emanating from either party at any time and shall include any compilation of otherwise public information in a form not publicly known and the existence and contents of any Agreement in respect of Advertising to which NIC is a party and any information, materials or data in any form produced by, for or on behalf of either party during the term of or pursuant to such an Agreement but shall not include:
(a) Information which at the time of disclosure is publicly known or information which after disclosure becomes publicly known other than as a result of any breach of such Agreement;
(b) Information which can be shown to be known to the other party, other than under a subsisting obligation of confidentiality, or restricted use, prior to the disclosure;
(c) Information made available to the other party by a third party having a right to do so and who has not imposed on that party any subsisting obligation of confidentiality or restricted use in respect thereof;
Contra means advertising value as sold by other media owners (including but not limited to radio advertising airtime, TV advertising airtime and online advertising space);
Copy means advertising material provided to NIC for the purpose of insertion whether finished or in preparation;
Credit Buyer means a Buyer which at the relevant time has been granted credit under the Joint Recognition Scheme of NS by NIC and/or a Buyer which at the relevant time has been granted credit subject to any limit or other conditions but only to the extent such limit has not at the relevant time been exceeded or such conditions are at the relevant time satisfied;
Deal Memorandum means any Agreement entered into by a Buyer with NIC for the purchase of Advertising for a specific Term.  Such Agreement may be in writing signed by both parties or being implemented by mutual agreement;
Demograph means an audience type defined by age or social classification as defined by NRS and TGI;
Direct Advertiser means a person placing the order with NIC for the purchase of the Advertising other than through an Agency;
Exclusions means any excluded Advertiser Clients of an Agency or excluded brands of an Agency or Direct Advertiser excluded from the calculation of delivery of Buyer Commitments and individually listed and set out in the Deal Memorandum and Variation Letter;
Gross Expenditure means gross expenditure, whether in cash or otherwise, before any Agency Commission or discount but net of VAT;
Legislation includes all laws, Acts of Parliament, all provisions of the Treaties constituting the European Community, the European Union and the European Economic Area, all Data Protection Rules and all orders, regulations, directives, conventions and subordinate legislation made pursuant to such an Act or Treaty or otherwise having the force of law;
NIC: News International Trading Limited trading as NI Commercial  
registered in England and Wales under number 1893198 whose  
registered office supply company 3 Thomas More Square, London, E98 1XY;
NPA: The Newspaper Publishers Association (NPA) is the trade association for British national newspapers and its role is to represent, protect and promote the national newspaper industry. It is Member of CAP;
NRS: the National Readership Survey is a non-profit-making but commercial organization which provides an estimate of the number of readers of a publication and the type of people those readers are in terms of sex, age, regionality and many other demographic and lifestyle characteristics, using a methodology agreed by publishers, advertisers and their agencies;
NS: The Newspaper Society (NS), the voice of Britain's regional and local press. It works to protect and improve the regulatory and commercial environment for the regional newspaper industry and it is Member of CAP;
Payment Date has the meaning given in clause 14;
Principal means the person identified as such in the Deal Memorandum, Variation Letter or in the absence of a Deal Memorandum the Buyer;
Pro-Forma Buyer means a Buyer which at the relevant time has not been granted credit by NIC;
Rate Card: means Rate Card in effect for the time being which may include NIC scale of advertisement rates, technical specifications and setting styles;
Term means the period of the Agreement as set out in the Deal Memorandum or Variation Letter;
TGI: the Target Group Index is a global network of single-source market research surveys providing invaluable, comparable consumer insights for over 50 countries across 6 continents;
Third Party means any separate individual or company that is contracted by the Buyer, to provide auxiliary services and empowered to act on behalf of its recognised portfolio of clients. For the avoidance of doubt this includes Barter companies;
Under Delivery means the Gross Expenditure money value calculated by the Auditors as being the amount by which the  share/volume actually delivered to NIC is less than the share/volume Buyer Commitments as expressly set out in the Deal Memorandum or Variation Letter;
Under Delivery Compensation has the meaning given in clause 16;
UK means the United Kingdom of Great Britain and Northern Ireland, the Isle of Man and the Bailiwicks of Jersey and Guernsey;
Value Recovery Options has the meaning given in clause 16;
Variation Letter means the formal documentation produced and communicated to the Buyer as a result of an amendment to an existing Deal Memorandum/Agreement entered into by a Buyer and NIC for the purchase of Advertising for a specific Term;
Volume means the volume of Gross Expenditure set out in the Deal Memorandum or Variation Letter and which the Buyer guarantees to NIC will be the minimum Gross Expenditure under this Agreement;

1.2    Terms and Conditions of Business and Deal Memorandum
A request by a Buyer to NIC to book Advertising shall signify the Buyer's acceptance of these Terms and Conditions of Business;  
In these Terms and Conditions of Business and the Deal Memorandum, unless the context otherwise requires:
a reference to the 'Principals' is a reference to NIC and   the Buyer;
a reference to a clause is a reference to a clause of these Terms and Conditions of Business unless in the context the reference is clearly to a clause of the Deal Memorandum;
a reference to a person includes an individual, firm, partnership, business division, joint venture, agency, trust, association, body corporate, corporation, company, committee, organisation and any other entity whether or not having a separate legal personality;
where an order which authorises a person ('the first person') to exercise any functions of another person ('the second person') any reference in this Agreement  to the second person will include a reference to the first person; and

References to abbreviations for audience demographics will have the same meaning as currently attributed to such abbreviations by NRS and TGI;
The headings in this Agreement are for convenience only and will not affect its interpretation;

2    Agency as Principal
2.1 Where the Buyer is an Agency, the Agency will be deemed to contract as Principal in all respects and not as agent on behalf of its clients and as such all rights and responsibilities under the Agreement shall rest solely between NIC and the Agency and the Agency will be responsible for the payment of all amounts due to NIC and the performance of all other obligations under the Agreement;
2.2 The Agency and NIC may agree that the Agency may receive an additional amount on and above any Agency Commission or receive a discount upon the agency achieving a threshold level of overall Gross Expenditure or Buyer Commitment with NIC;
2.3
2.3.1 the Agency shall be responsible for the acts and/or omissions of its Affiliate in connection with the Agreement;
2.3.2 the Agency will be liable to NIC for the acts or omissions of the Affiliate as if they were acts or omissions of the Agency to the extent they breach the Agency's obligations under this Agreement or are otherwise stated in this Agreement to apply to such Affiliates;
2.3.3 all claims arising out of or in connection with this Agreement from an Affiliate against the Buyer in respect of a breach of contract, tort (including negligence), breach of statutory duty or otherwise however arising from this Agreement shall be brought, to the extent permissible in the law, by the Agency itself on behalf of the Affiliate;
2.3.4 where an Affiliate against the Buyer in breach of paragraph 2.3.3 of this clause 2.3 the Agency will indemnify NIC against all costs and expenses incurred by NIC in defending such claim;

3    Credit
3.1 NIC may in its absolute discretion at any time grant credit (with or without conditions and/or limits) to the Buyer and withdraw credit previously granted to the Buyer and/or vary any conditions and/or limits applying to any credit.  For the purposes of considering whether or not to grant credit NIC reserves the right to require the Buyer to provide such information as NIC may reasonably require to NIC or any other credit information service and the Buyer shall provide such information promptly upon request. The Buyer will comply with the obligations contained in any Agreement between it and NIC or any such third party relating to the granting of credit by NIC (including specific terms of any bank guarantee that may be required to secure a credit facility) and the Buyer acknowledges that no information or report made by NIC or any third party will in any way oblige the NIC to grant credit (on particular terms or otherwise) to the Buyer;
3.2 The Buyer agrees that NIC may disclose to any credit information service any information provided by the Buyer to NIC (and that any third parties may disclose to NIC information provided by the Buyer to such third parties) or relating to NIC dealings with the Buyer. The Buyer represents and warrants that all information provided by the Buyer to NIC and any other credit information service shall be true, accurate and not misleading and the Buyer undertakes to notify the recipients of such information promptly of any material change in such information;

4.    Commission
4.1 NIC may in its sole and absolute discretion provide Agency Commission to a Buyer in respect of the purchase of Advertising by that Buyer under a Deal Memorandum and/or subject to these Terms and Conditions of Business. Agency Commission is not applied to late payment surcharges, cancellation fees and any charges;
4.2 Agency Commission of up to 15% will be paid by NIC to the Agency in accordance with the Agreement between the Agency and NIC;
4.3 NIC will, at its sole discretion, consider applications for Commission from overseas Agencies. Commission granted shall be up to 15%;

5.    Confirmation of Advertising Bookings
5.1 A booking is subject to acceptance by NIC and can be accepted by NIC either in writing, by the provision of Advertising to the Buyer or by the use of an electronic approval/booking system;
5.2 Once acceptance of a Booking has been acknowledged Principals will agree a proposed first insertion date and a schedule of proposed Advertising in accordance with Clause 7;
5.3 Customer Booking Reference must be provided to NIC at the time of the Booking Confirmation;

6.    Acceptance of Advertisements
6.1 NIC has the right at its discretion to publish, or to omit, suspend or change the position of, any advertisement otherwise accepted for insertion. NIC does not guarantee any position within the publication. However, NIC will use reasonable efforts to comply with the Buyer's wishes although NIC gives no representation, warranty or undertaking as the date(s) of insertion, the wording, or the quantity or the colour or mono reproduction of the advertisement;
6.2 NIC reserves the right in its absolute discretion and without incurring any liability, to decline to insert any Advertisement Copy without giving any reason in writing for so declining but the Agency or the Direct Advertiser shall not be liable to pay for any such Advertisement Copy which NIC so declines to transmit in accordance with this clause 6.2;
6.3 Subject to the provisions of Clauses 9 and 12, all bookings are accepted on the understanding that they will be paid for at the rates agreed between the Principals on the date of insertion, except as otherwise agreed between the Principals.

7.    Dates of Insertion
It is the Buyer's responsibility to check the correctness of the advertisement (and of each insertion of the advertisement if more than one). NIC assumes no responsibility for the repetition of an error in an advertisement ordered in more than one appearance or insertion unless notified within 48 hours of the publication of the error. Any other matter of complaint, claim or query (whether in relation to the advertisement or the invoice) in relation with the quality, content or publication of an advertisement must be raised with NIC in writing within 7 days following the insertion of the advertisement or the date on which it is claimed the advertisement should have appeared. In any such circumstances (without prejudice to NIC entitlement to be paid for the advertisement as published a sum representing a reasonable proportion of the change agreed at the time the advertisement was booked) NIC liability is strictly limited either (at NIC option) to giving the Buyer a credit against NIC charge for the advertisement or (in an appropriate instance) publishing the advertisement for a second time without change. Such complaint, claim or query shall not affect the Buyer liability for payment by the due time of NIC charges for that and all other advertisements). Where a query relates to a failure to publish an advertisement in a premium position, NIC will be only liable to refund a proportion of the fees that reflect the premium position.    

8.    Warranties and Indemnities
8.1 The Agency or the Direct Advertiser, as the case may be, warrants and undertakes that:
8.1.1 It will be responsible for obtaining, maintaining and paying for all necessary permits, licenses, authorisations and any other consents (whether statutory or otherwise) required to perform its obligations under this Agreement, including, but not limited to, the insertion of any advertising or copyright material contained in the Advertisement Copy;
8.1.2 No Advertisement Copy will breach the copyright or other rights, including intellectual property rights, or be defamatory, of any third party. All Advertisement Copy will have been approved (unless deemed unnecessary by NIC and prior written Agreement has been given by NIC that it is not required) and will comply with the guidelines of any Regulator;
8.1.3 Investment advertising, the Advertiser is, or its contents have been approved by, an authorized person within the meaning of the Financial Service Act 1986 or the advertisement is otherwise permitted under that Act;
8.1.4 It will comply with all applicable Legislation in connection with the performance of its obligations under or in connection with this Agreement; and
8.1.5 In respect of any advertisement submitted for publication which contains the name or pictorial representation (photographic or otherwise) of any living person and/or part of any living person and/or any copy by which any living person is or can be identified, the Buyer has obtained the authority of such living person to make use of such name, representation and/or copy;
8.1.6 All advertising copy submitted to NIC is legal, decent, honest and truthful and complies with the British Code of Advertising Practice and all other relevant codes under the general supervision of the Advertising Standards Authority;
8.2 Notwithstanding anything to the contrary contained herein, the Agency or the Direct Advertiser will indemnify and hold harmless and keep NIC indemnified against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities arising from any breach or threatened or purported breach of the above warranties or any of its obligations contained herein in consequence of the use, inserting in the form submitted or prescribed of any Advertisement Copy or matter supplied by or inserted for the Advertiser. NIC shall:
8.2.1 Give notice to the Agency or the Direct Advertiser of any relevant liability, damage, loss, costs and expenses within a reasonable period of NIC becoming aware of them;
8.2.2 Allow the Agency or the Direct Advertiser to have conduct of the defence of the relevant claim;
8.2.3 Assist the Agency or the Direct Advertiser, at the Agency or the Direct Advertiser's reasonable request, in mounting a defence to the relevant claim;
8.3 In the event of any challenge by any Regulator in connection with NIC compliance with Legislation, the Agency or the Direct Advertiser shall co-operate fully with NIC and provide such assistance as may reasonably be required by NIC in connection with such challenge;

9.    Publicity and Information Concerning Advertisement
No Agency or Direct Advertiser shall, without the prior written consent of NIC, publish any information in connection with any Advertisement Copy which has been inserted or is scheduled for insertion with NIC and which contains any reference to NIC. NIC shall be entitled to refer to the Agency or the Direct Advertisers association with NIC and the advertising placed hereunder to promote NIC and its advertising and sponsorship business generally;


10.    Change of Rates and Conditions
Whilst as much notice as possible will be given of all changes NIC reserves the right to change the advertisement rate and any of these Terms and Conditions of Business at SIX WEEKS notice and in the event of such a change, the rates payable and the Terms and Conditions of Business applicable shall be those at the time of insertion. The Buyer concerned shall (by serving written notice on NIC within 10 (ten) Working Days of receipt of notice of such change) be entitled to cancel any booking for an advertisement to which the changed rates (if increased) or Terms and Conditions of Business would otherwise be applicable;

11    Cancellation and Deferment
11.1 The insertion of any Advertisement may be cancelled by the Buyer prior to the applicable Advance Booking Deadline by giving written notice to NIC and no charges will be due to NIC in relation to such booking. The Buyer must receive written confirmation of cancellation from NIC for the application of cancellation to be deemed authorised. If a booking is cancelled by the Buyer other than in accordance with this clause, the Buyer will remain liable to NIC for charges in full whether or not the insertion takes place.  The booking of any Advertisement may be cancelled by NIC at any time prior to the applicable Advance Booking Deadline without any liability whatsoever on the part of NIC;
11.2 Without prejudice to the rights of NIC under Clause 12.1 NIC may in its absolute discretion be prepared to consider applications made in exceptional circumstances by the Buyer for the cancellation and/or variation of bookings after the applicable Advance Booking Deadline subject always to the following conditions:
NIC being supplied with full details of exceptional circumstances giving rise to the application by notice in writing at least 5 (five) working days before the scheduled commencement of insertion; or
To the Buyer paying to NIC:

• a cancellation fee of 10% of the relevant agreed and approved Gross Expenditure where the application is received by NIC after the Advance Booking Deadline but on or before 15 working days prior to the first scheduled insertion date;
• a cancellation fee of 20% of the relevant agreed and approved Gross Expenditure where the application is received by NIC on or before 10 working days prior to the first scheduled insertion date;
• a cancellation fee of 40% of the relevant agreed and approved Gross Expenditure where the application is received by NIC on or before 5 working days prior to the first scheduled insertion date;
• a cancellation fee of 60% of the relevant agreed and approved Gross Expenditure where the application is received by NIC on or before 2 working days prior to the first scheduled insertion date;
• a cancellation fee of 80% of the relevant agreed and approved Gross Expenditure where the application is received by NIC 2 working days prior to the first scheduled insertion date;
• a cancellation fee of 100% of the relevant agreed and approved Gross Expenditure where the application is received by NIC at any later time;

11.3 The arrangements set out in Clause 11.2 will be entered into by NIC only in exceptional circumstances and at its absolute discretion. NIC will not be obliged to give reasons for accepting or declining to accept an application for cancellation. The Buyer acknowledges and agrees that the charges referred to in Clause 11.2 are a genuine pre-estimate of NIC loss;
11.4 Applications for the deferment of a Campaign made by an Agency or a Direct Advertiser, as the case may be, may in exceptional circumstances and at the absolute discretion of NIC be accepted subject to a fee of 15% of the relevant agreed and approved Gross Expenditure where the application is received by NIC on or before 5 days prior to the first scheduled insertion date;
11.5 Applications for the deferment of a Campaign made by an Agency or a Direct Advertiser, as the case may be, may in exceptional circumstances and at the absolute discretion of NIC be accepted subject to a fee of 30% of the relevant agreed and approved Gross Expenditure where the application is received by NIC on or before 2 days prior to the first scheduled insertion date;
11.6 Any deferment of a Campaign for which the Agency or the Direct Advertiser, as the case may be, has prepaid, must be recommitted at the time of deferment to a time not more than 12 (twelve) calendar months after the first intended insertion date of the Campaign being deferred. Any deferred Campaign not recommitted within 12 (twelve) calendar months of the first intended insertion date shall be subject to NIC cancellation charges of 100% of the total fees payable by the Agency or the Direct Advertiser in respect of the entire Campaign;
11.7 Any postponement of a Campaign for which the Agency or the Direct Advertiser, as the case may be, has not pre-paid or a Campaign which is subject to any significant amendment (including without limitation alteration of the insertion schedule or change to the space of the Advertisement Copy) shall be at NIC sole discretion. Any acceptance of such postponement or amendment shall require immediate pre-payment for the recommitting of such campaign to a later date;
11.8 These charges apply the fees payable for all the Advertising booked in relation to the Campaign cancelled pursuant to this clause 11. For the purpose of this clause 11, insertions shall have the cancellation charge applied to those insertions that have been designated at the time of notification in writing of the cancellation. The cancellation charge for each insertion shall be dependent upon the charging classification of that insertion, as determined by NIC and shall be calculated as a pro-rata portion of the total charges for a Campaign. Unless a booking is cancelled in accordance with these Terms and Conditions of Business, the Agency or the Direct Advertiser who fails to deliver Advertisement Copy in accordance with clause 6 will remain liable to pay all applicable charges in full whether or not any is inserted. NIC reserves the right to retain all payments made in advance for any cancelled Campaign and re-book the Advertising during a mutually agreed period;
11.9 If NIC terminates any booking or order in accordance with clause 13.1 below at any time after 12 (twelve) weeks before commencement of the first intended insertion date, then the Gross Expenditure for all the Advertising booked in relation to the Campaign(s) shall become payable immediately on such termination in accordance with 11.2;

12.    Suspension or Termination
12.1 NIC may, by notice in writing to the Agency or the Direct Advertiser, suspend or terminate any order or booking at any time upon the happening of any of the following:
12.1.1 If the Agency or the Direct Advertiser fails to agree express terms as to price and/or scheduling in respect of advertisements prior to the first scheduled insertion of such advertisements; or
12.1.2 Without prejudice to NIC rights as set out in Clauses 6 and 7, if the Agency or the Direct Advertiser commits any material breach of any provision of these Terms and Conditions of Business (and in the case of a remediable breach, fails to remedy such breach;
12.1.3 Any changes in Legislation or NIC status as a regulated entity prevent it from continuing or, in NIC reasonable opinion, make it more onerous for NIC to insert the Advertisement Copy or otherwise fulfil its obligations under these Terms and Conditions of Business; or
12.1.4 The activities or conduct of the Agency or the Direct Advertiser or activities relating to its business are such that NIC reasonably considers them to be detrimental to the repute and/or goodwill of NIC or any of its Affiliates or such activities or conduct are in any other way detrimental to NIC brand; or
12.1.5 If the Agency or the Direct Advertiser as the case may be ceases to carry on business, becomes insolvent, has a receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in respect of any scheme for amalgamation or reconstruction) or undergoes any similar or equivalent process in any jurisdiction; or
12.1.6 If there is a material change in the ownership of or a change of control of the Agency or the Direct Advertiser, as the case may be, or if the Agency or the Direct Advertiser disposes of all or a substantial part of its assets or undertaking; or
12.1.7 In accordance with the provisions of clause 20;
12.2 Upon termination, the rights and obligations of the Principals under these Terms and Conditions of Business shall terminate and be of no future effect, except that:
12.2.1 Any rights or obligations to which either of the Principals to this Agreement may be entitled (including NIC's right to be paid any monies due and owing by the Agency or the Direct Advertiser) or be subject before such termination shall remain in full force and effect; and
12.2.2 Clauses 1, 2, 8, 11, 18 and 26 shall remain in full force and effect;

13.    Liability
13.1 In no event will NIC be liable for:
13.1.1 Any indirect or consequential loss, claim or damage; nor
13.1.2 Any direct or indirect loss of profits, loss of reputation or other economic loss, data, business or opportunity; in each case whether such claim is based on breach of contract, tort (including negligence) or otherwise, and whether or not the Agency or the Direct Advertiser, as the case may be, has been advised of the possibility of such damage;
13.2 Each of the Principals acknowledges and agrees that the only remedy available to it for breach of these Terms and Conditions of Business shall be for breach of contract. Without prejudice to Clause 13.1 above and for the avoidance of doubt NIC shall incur no liability for any costs, losses, damages or expenses incurred by the Agency or the Direct Advertiser arising as a result of or in connection with:
13.2.1 Loss of or damage to the Advertisement Copy in transit and whether or not such goods or equipment are supplied by NIC;
13.3 Notwithstanding the provisions of Clauses 13.1 and 13.2 above:
13.3.1 Maximum liability that NIC shall in the event that NIC is held liable for damages or losses suffered by the Agency or the Direct Advertiser have towards the Agency or the Direct Advertiser shall be the lesser of three times the amount payable by the Agency to the Direct Advertiser to NIC for the affected Campaign or £500,000;
13.4 Nothing in this Clause 13 purports to limit or exclude liability for fraud, or exclude or limit liability for death or personal injury caused by NIC negligence, or to limit or exclude liability to any extent otherwise not permitted by law;
13.5 Both Principals acknowledge and agree that the terms of this Clause 13 are reasonable and act fairly upon them, recognising that the levels of liability have been set based on the charges and fees to be paid by the Agency or the Direct Advertiser to NIC and as such are commercially reasonable. Each Principal agrees that it is always open to them to amend these levels of liability but that such an amendment would be reflected in a change to the charging structure;

14    Finance
14.1 Charges payable by a Credit Buyer will be paid not later than the 30th day of the month following the month of insertion. If the NIC Credit Buyer fails to comply with the provisions of this clause, without prejudice to its other rights NIC may at any time thereafter without any liability to the Buyer withdraw any credit granted to the Buyer and refuse to transmit any advertisement to be inserted on behalf of the Buyer;
14.2 Charges payable by a Pro-Forma Buyer will be paid not later than 10 Working Days before the first scheduled insertion date of the relevant advertisement.  If the Pro-Forma Buyer fails to comply with the provisions of this clause, without prejudice to its other rights NIC may at any time thereafter without any liability to the Buyer refuse to insert that and any other advertisement for such Buyer;
14.3 Any charges not paid by a NIC Credit Buyer prior to the 30th day of the month following the month of insertion (the 'Payment Date') will be subject to an immediate surcharge of (4%) of such amount payable immediately.  A further surcharge of (4%) payable immediately will apply in respect of the principal amount which is still outstanding on the 10th day of each subsequent month;
14.4 The Buyer agrees to pay to NIC in respect of each advertisement for which payment is not made by the due time: 1) the sum of 25GBP as an administrative charge; and 2) Interest in the amount paid late at the rate of 4% above the base rate of National Westminster Bank PLC accruing from day to day (including the day on which payment was due) both before and after judgement. Any such additional charge is payable within seven days following delivery of our invoice particularising it;
14.5 For the purposes of clause 15 payment will be deemed to have been made prior to the Payment Date if NIC has received a cheque (which is subsequently cleared for payment) for the full amount or written confirmation that the Buyer has sent the full amount by BACS or CHAPS, in each case prior to 12.30p.m. on the Payment Date (provided that where the 25th day of the relevant month falls on a Sunday or a bank or public holiday the next Working Day will be regarded as the Payment Date for the receipt of the cheque or written confirmation) or such other date as NIC may notify in writing to the Buyer;
14.6 NIC invoices are issued in Sterling. Bookings made in a foreign currency will be converted to Sterling at a fixed exchange rate as advised by NIC at the date of booking.  Payment from Buyers should be made in the invoiced currency;
14.7 Invoices will normally be rendered weekly by NIC, the invoices for a week being despatched in normal circumstances not later than 2 (two) working days from the end of that week.  Failure by NIC to render or dispatch invoices at the times referred to above will not affect the obligation of the Buyer to make payment as required in accordance with these Terms and Conditions of Business;
14.8 A NIC Credit Buyer will notify NIC in writing of any query in relation to any invoice no later than 7 days from the week of invoicing. No invoice may be queried after this date. Notwithstanding any such query the NIC Credit Buyer will remain liable to pay the full amount of any invoice and all invoiced amounts will remain subject to the provisions of clause 14 pending the final resolution of the query.  If the query is resolved in favour of the Credit Buyer NIC will cancel any surcharge levied on the relevant amount;
14.9 All payments of accounts for advertising time shall be made in full and it shall not be open to the Agency or the Direct Advertiser to claim any rights of set off or to make any counterclaim in any proceedings brought by NIC in respect of thereof. NIC is entitled to set off any monies do to it by the Agency or the Direct Advertiser as the case may be, against any monies due by NIC to the Agency or Direct Advertiser, as the case may be (or any of such Agency's or Direct Advertiser's Affiliates);
14.10 A Booking Reference not quoted on an invoice is not a valid reason for non-payment;
14.11 All payments to NIC must be made in pounds Sterling;
14.12 All payments to NIC must be paid in full without set off, counterclaim, deduction or any withholding and are subject to VAT at the applicable rate;
14.13 If NIC agrees to pay or credit the Buyer rebate, refund or benefit, the Buyer may not query or dispute any invoice to which that benefit applies after the benefit has been paid or credited to you.

15    Calculation of Buyer Commitments
15.1 The Buyer undertakes to NIC to procure that Gross Expenditure under the Agreement with NIC during the Term (or such other period specified in the Deal Memorandum) is not less than the percentage share of Competitive Set out in the Deal Memorandum, Buyer Commitment, or is not less than the Volume specified in the Deal Memorandum.  In the case of any estimated minimum volume (as opposed to Volume) stated in the Deal Memorandum, the Buyer acknowledges that NIC expects to receive not less than this amount of Gross Expenditure under this Agreement;
15.2 In the event that the Buyer fails to comply with its obligations in clause 15.1. NIC reserves its right to demand that the Buyer pays to NIC (together with any applicable VAT) the amount of any Under Delivery by way of Under Delivery Compensation as documented in clause 16 for the services rendered by NIC to the Buyer during the Term (as specified in the Deal Memorandum or Variation Letter);
15.3 For the purposes of determining whether or not the Buyer has complied with its obligation in clause 15.1:
15.3.1 the amount of Gross Expenditure with NIC (including prepayments and deferments) under the Agreement in respect of the Term (or such other period specified in the Deal Memorandum or Variation Letter) will only include Gross Expenditure in respect of advertising actually inserted during the Term (or such other period specified in the Deal Memorandum or Variation Letter);
15.3.2 The amount of Gross Expenditure with NIC under the Agreement in respect of the Term (or such other period specified in the Deal Memorandum or Variation Letter) will not include any Gross Expenditure reasonably declined by NIC;
15.3.3 The amount of Gross Expenditure with Third Parties will include Gross Expenditure by or on behalf of the Principal and all of its Associated Undertakings with Third Parties from time to time save to the extent agreed otherwise in the Deal Memorandum or Variation Letter;
15.3.4 The amount of Gross Expenditure with Third Parties will include Gross Expenditure in respect of all of the Principal's and its Associated Undertakings' clients during the Term and all of such Clients' brands, products and services during the Term;
15.3.5 For the avoidance of doubt no Gross Expenditure with Third Parties which would otherwise fall within the definition of Competitive Set shall be excluded without the prior written Agreement of NIC;   
15.3.6 The amount of Gross Expenditure with Third Parties will include all on cash and part cash transactions including Barter and Contra transactions and all Gross Expenditure with Third Parties will be valued in cash at the full arm's length market value of the relevant advertising; and

16    Treatment of value Under Delivery Compensation
16.1 If any audited Share/Volume commitment in the Agreement is not met NIC, at its sole discretion, shall be entitled to recover the full amount of Under Delivery from the Buyer (Under Delivery Compensation).
16.2 At its sole option NIC may agree with the Buyer to take Under Delivered Compensation in one or a combination of the following ways:

• Withdrawal of rebate or discount given;
• Future enhanced share;
• Carry forward of the Gross Expenditure value of the Under Delivery as an Incremental Gross Expenditure commitment in the following year(s);

16.3 NIC will agree a timescale and formally identify to The Buyer a deadline by which time Under Delivery Compensation must be agreed. If options under 16.2 are not negotiated and agreed in writing within 90 days of the filing of the Auditors report, Under Delivery Compensation under 16.1 will become due;
16.4 Under 16.1 the Buyer is obligated to pay to NIC forthwith the cost of the audit, together with the amount of the Gross Expenditure Under Delivery and interest thereon accruing daily at an annual rate which is 4% above the base lending rate of National Westminster Bank;

17    Auditing and Reporting
17.1 NIC reserves the right to subject any share or volume commitment under a Deal Memorandum or Variation Letter to an independent audit (upon reasonable notice) of all records of the Buyer/Principal at any time during the course of the Agreement and after the Agreement has expired to ensure that Terms and Conditions of Business and Deal Commitments have been compiled with;
17.2 The Auditors are to be permitted access to any information, including access to all associated undertakings and relevant third parties (including specialist Barter/Outdoor Companies) and make such enquiries within both media and finance departments of the Buyer/Principal as they consider relevant to the performance of their duties. For the avoidance of doubt this means that the auditor will have unrestricted access to all the relevant media buying system and back up documentation as and when required. The Buyer will procure that all relevant third parties keep accurate records on its behalf and ensure Auditor access to such records in order to establish compliance with the Agreement. The Buyer/Principal will provide auditors with supporting working papers reconciling the certified share delivery with media bookings derived from any media booking system;
17.3 NIC shall be entitled to full disclosure of audit results and receive comprehensive details of all audited expenditures falling within the terms of the Agreement.
17.4 In the event that the terms of the Agreement have not been complied with NIC will be compensated in accordance with the terms set out in the Deal Memorandum, Variation Letter and clause 16 of these Terms and Conditions of Business;


18    Confidentiality
18.1 Each Principal shall keep confidential all information relating to  either Principal and/or any third party which is obtained by it as a result of it entering into or performing its obligations under this Agreement (including the terms of this Agreement) (the "Confidential Information"). Each Principal will only disclose Confidential Information to those of its employees, officers, approved sub-contractors and agents who:    
18.1.1 Need to know it for the purpose of exercising or performing its rights and obligations under these Terms and Conditions of Business;
18.1.2 Are informed of the confidential nature of the information divulged; and
18.1.3 Agree to act in compliance with these Terms and Conditions of Business. Neither Principal will disclose that information to any third party (other than its employees, officers, approved sub-contractors, professional advisors and agents in accordance with this clause), except for information that:
i) Is already in the public domain at the time of  disclosure;
ii) Becomes publicly known through no fault of its own; or
iii) Is acquired by that party from a third party without any breach of any obligation of confidence;
18.2 Notwithstanding any other provision set out herein, it shall not be a breach of this Agreement for either Principal to disclose any information given to it pursuant to a court order or a binding request from a Regulator with jurisdiction or from any other third party with statutory power to require the disclosure of such information, provided that so far as it can the affected Principal gives all reasonable notice of such disclosure to the other Principal;

19    Data Protection
The Agency or the Direct Advertiser hereby:    
19.1 Warrants, undertakes and represents that it will comply with  data protection law which shall include, but not be limited to, ensuring compliance with principle 7 of the Data Protection Act 1998 (taking appropriate measures against unauthorised or unlawful processing of personal data) and will procure that any third party to whom the Agency or the Direct Advertiser discloses Personal Data collected pursuant to these Terms and Conditions of Business (or to which it directs NIC to disclose such Personal Data) shall so comply; and

20    Force Majeure
20.1 Notwithstanding the provisions of clause 20.2, if NIC  transmission activities are restricted, curtailed or prevented by any law, act, matter or thing beyond its reasonable control ("Force Majeure Event"), NIC may, notwithstanding any other provision of these Terms and Conditions of Business terminate any contract between NIC and the Agency or the Direct Advertiser, as the case may be, without prejudice to NIC right to be paid by the Agency or the Direct Advertiser any monies due and owing by the Agency or the Direct Advertiser to NIC at the time of such termination;
20.2 Without affecting the scope or effect of clause 20.1, if either Principal (the 'Affected Principal') is prevented or delayed in whole or in part from complying with its obligations under these Terms and Conditions of Business by reason of a Force Majeure Event, it will notify the other party, giving details thereof. The Affected Principal will be relieved of its obligations under these Terms and Conditions of Business to the extent that its performance is hindered or delayed by such Force Majeure Event, although the Affected Principal shall be required to use all reasonable endeavours to minimise the effect of the Force Majeure Event on the performance of its obligations. If the Force Majeure Event continues for a period of more than six (6) months, the other Principal shall be entitled to terminate the affected booking by notice in writing to the Affected Principal. This termination will be subject to NIC charges calculated in accordance with Clause 11.1 and 11.2;


21     Assignment
21.1 The Agency or the Direct Advertiser may not assign, dispose of, hold on trust or part with the benefit or burden of any part of the Agreement formed by these Terms and Conditions of Business without prior written consent of NIC. For the avoidance of doubt, if NIC grants such consent the Agency or the Direct Advertiser shall nonetheless remain responsible for the performance of its obligations under these Terms and Conditions of Business;
21.2 NIC shall be free to assign, sub-contract and otherwise deal freely with this Agreement including all or part of its rights and/or obligations under the Agreement to any third party without the other party's' consent by providing written notice to the other party (and such consent is hereby deemed to be given by the Agency or the Direct Advertiser as the case may be);

22    Severability and Waiver
22.1 If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the Principals, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach;

23    Rights Cumulative
23.1 The rights, powers, privileges and remedies provided in this  Agreement are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under other provisions of this Agreement, by law or otherwise. No failure to exercise nor any delay in exercising by any party to this Agreement of any right, power, privilege or remedy under this Agreement shall impair or operate as a waiver thereof in whole or in part. No single or partial exercise of any right, power privilege or remedy under this Agreement shall prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy;

24    Rights of Third Parties
24.1 Except as otherwise provided in this Agreement, a person who is not a party to these Terms and Conditions of Business may not enforce any of their provisions under the Contracts (Rights of Third Parties) Act 1999, except that any Affiliate of NIC shall be entitled to enforce any provision of these Terms and Conditions of Business as if the Affiliate was NIC under this Agreement;

25    Entire Agreement,
25.1 The Deal Memorandum and these Terms and Conditions of Business contain the entire Agreement between the parties with respect to the subject matter of this Agreement and shall supersede all prior proposals, representations, agreements and negotiations relating thereto, whether written, oral or implied, between the Parties or their respective advisers and no modification or amendment of this Agreement shall be validly made unless in writing and signed by or on behalf of NIC and the Buyer;

26    Governing Law
26.1 These Terms and Conditions of Business shall be construed in accordance with the law of the United Kingdom and any dispute arising hereunder shall be submitted to the exclusive jurisdiction of the courts of United Kingdom.