ADVERTISING TERMS OF Elonex DOOH Limited
1. INTERPRETATION
The following definitions and rules of interpretation in this clause apply in these Conditions:
1.1. Definitions:
Advertisement – means the advertisement to be displayed, published or broadcast on or in the Media Space (encompassing either a Client Provided Advertisement or ELONEX Assisted Advertisement).
Agency – means an advertising, marketing or branding agency working on behalf of a Client and holds itself out as such.
Booking Form – means the booking form issued by ELONEX to the Client.
Business Day – means a day other than a Saturday, Sunday or public holidays in England, where banks in London are open for business.
Charges – means the charges set out in the Booking Form for Services.
Client – means the client as set out in the Booking Form. In the event that an Agency places the order on behalf of an end Client that the Agency and the Client are joint and severally liable under these terms and conditions.
Client Provided Advertisement – has the meaning set out in clause 5.1 (Advertisement).
Client Default – has the meaning set out in clause 4.2 (Client Obligations).
Commencement Date – has the meaning given to it in clause 2.1 (Basis of the Contract).
Conditions – means the advertising terms and conditions set out in this document, as amended from time to time in accordance with clause 16.4 (Variation).
Contract – means the contract between the Client and ELONEX for the provision of the Services in accordance with these Conditions.
Duration – means the time period during which ELONEX shall perform the Services as set out in the Booking Form (unless terminated earlier in accordance with these Conditions).
ELONEX – means Elonex DOOH Limited trading as ELONEX incorporated and registered in England with company number 05851593 whose registered office is at 2 Cornwall Street, Birmingham, B3 2DX.
ELONEX Assisted Advertisement – has the meaning given to it in clause 5.2 (Advertisement).
Intellectual Property Rights – means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Media Space – means the media space on or in which the Advertisement is to be displayed, published or broadcast as part of the Services, which may be a digital screen, a billboard, a space on or in a print or digital publication or magazine or newspaper, a space on a television channel, or a space on or in any other form of media, as set out in the Booking Form.
Services – means the displaying, publishing or broadcasting of the Advertisement on or in the Media Space by ELONEX, as set out in the Booking Form, and any ancillary services provided (including if applicable services provided by ELONEX in relation to a ELONEX Assisted Advertisement).
Services Start Date – means the date on which ELONEX will commence the Services, as set out in the Booking Form.
Slot – means each time slot within the Duration, during which the Advertisement shall be displayed, published or broadcast on or in the Media Space, as set out in the Booking Form.
1.2 Clause headings shall not affect the interpretation of the Contract.
1.3 The Booking Form forms part of the Contract and shall have effect as if set out in full in the body of the Contract. Any reference to the Contract includes the Booking Form.
1.4 The Contract shall be binding on, and ensure to the benefit of, the parties to the Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.5 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time, and shall include all subordinate legislation made under that legislation or legislative provision.
1.6 A reference to writing or written includes email.
1.7 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.8 Unless the context requires otherwise, capitalised terms used in the Booking Form shall have the meanings set out in these Conditions.
1.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. BASIS OF THE CONTRACT
2.1. By signing the Booking Form the Client confirms its acceptance of, and agrees to be bound by, the terms set out in the Booking Form and these Conditions, at which point and on which date the Contract shall come into existence (Commencement Date).
2.2. The Client is responsible for checking and ensuring that all details and information set out in the Booking Form are accurate and complete.
2.3. Any samples, drawing, descriptive matter or advertising issued by ELONEX (excluding any ELONEX Advertisement), and any descriptions or illustrations contained in ELONEX’s website or documentation, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3. ELONEX OBLIGATIONS
3.1. ELONEX shall supply the Services to the Client in accordance with these Conditions in all material respects.
3.2. ELONEX shall supply to the Client all relevant specifications in relation to the Media Space.
3.3. ELONEX shall use all reasonable commercial endeavours to meet the Slots within the Duration specified in the Booking Form, but any such times and dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4. ELONEX warrants to the Client that the Services will be provided using reasonable skill and care.
4. CLIENT OBLIGATIONS
4.1. The Client shall: Elonex DOOH Limited Company Registration 05851593 VAT number 152610246.
4.1.1. co-operate with ELONEX in all matters relating to the Services;
4.1.2. provide ELONEX with such information and materials as ELONEX may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects where time is of the essence;
4.1.3. obtain and maintain all necessary licences, permissions and consents which may be required for the Services prior to the Services Start Date; and
4.1.4. comply with any additional obligations as set out in writing by ELONEX.
4.2. If ELONEX’s performance of the Services or any of its obligations under the Contract (Relevant Obligations) is prevented or delayed by any act or omission by the Client or failure by the Client to perform any obligation under the Contract (Client Default), then, without limiting or affecting any other right or remedy available to it:
4.2.1. ELONEX shall have the right to suspend performance of the Services or the Relevant Obligations until the Client remedies the Client Default, and may terminate the Contract if ELONEX is not able to re-commence performance of the Services or the Relevant Obligations after the Client has remedied the Client Default (for example where the Slot and/or Media Space is no longer available) and in such circumstances the Client shall remain liable to pay the Charges and shall not receive a refund of any part of the Charges already paid/invoiced;
4.2.2. ELONEX shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from ELONEX’s failure to perform or delay in performing the Services or the Relevant Obligations or termination of the Contract under clause 4.2.1; and
4.2.3. the Client shall reimburse ELONEX on written demand for any costs or losses sustained or incurred by ELONEX arising directly or indirectly from the Client Default.
5. ADVERTISEMENT
5.1. If the Booking Form indicates that the Advertisement is to be provided by the Client (Client Provided Advertisement):
5.1.1. The Client shall provide to ELONEX all materials and artwork relating to the Advertisement no less than 3 Business Days before the Services Start Date, or in accordance with any other timeframe specified by ELONEX. In the event that the Advertisement is not received by ELONEX 3 Business Days before the Services Start Date or by such other deadline specified by ELONEX, then this shall constitute a Client Default and the provisions of clause 4.2 shall apply;
5.1.2. The Client acknowledges and agrees that the Advertisement may be subject to ELONEX’s approval before it is displayed, published or broadcast on or in the Media Space. If ELONEX reasonably rejects the Advertisement (for any reason), then the Client shall remedy the issues in accordance with any instructions provided by ELONEX within the timeframe specified by ELONEX. If the Client fails to do so, this shall constitute a Client Default and the provisions of clause 4.2 shall apply;
5.1.3. All changes to the Advertisement made by the Client must be made in writing to ELONEX, and must be received at least 2 Business Days before the Services Start Date, or by any other deadline specified by ELONEX. Any changes received by ELONEX after such deadline may not be accepted;
5.1.4. ELONEX accepts no liability for the Advertisement prepared by the Client;
5.1.5. The Client represents and warrants that any Advertisement provided to ELONEX:
5.1.5.1. complies with all relevant laws;
5.1.5.2. complies with all relevant Advertising Standard Authority (ASA) (or other relevant regulatory body) codes (including the UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code)), standards or requirements in force from time to time;
5.1.5.3. complies with all specifications, instructions and requirements provided by ELONEX to the Client;
5.1.5.4. does not contain defamatory or offensive materials; and
5.1.5.5. is compatible for use on or in the Media Space.
5.2. If the Booking Form indicates that the Advertisement is to be provided by ELONEX (ELONEX Assisted Advertisement):
5.2.1. ELONEX warrants to the Client that such Advertisement will be designed and provided using reasonable skill and care.
5.2.2. It is for the Client to assess that the Advertisement then meets the requirements set out in 5.1.5. as if it had been supplied by the Client:
5.3. Photography/Videography of campaigns or any other form of proof of play must be requested in writing at the time of advertising booking and cannot be guaranteed due to availability.
5.3.1. The Client acknowledges that there will be other advertisers on the same screen as the Advertisement and that ELONEX cannot offer any level of exclusivity at the location.
5.3.2. For advertisers at sports or hospitality venues, the provision of tickets or other benefits are discretionary unless otherwise agreed.
6. ADVERTISING STANDARDS
6.1. ELONEX shall not be liable for any breaches of the ASA on the part of any Client Provided Advertisement.
6.2. The Client shall indemnify ELONEX against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ELONEX arising out of or in connection with any breach by the Client of clause 5.1.5 (Advertisement).
6.3. Notwithstanding clause 3.1 (Supply of Services), if ELONEX considers that any Advertisement is illegal or in breach of the standards issued by the ASA (as may be modified from time to time) or may otherwise be defamatory or offend the public, this shall constitute a Client Default and the provisions of clause 4.2 shall apply.
7. CHARGES AND PAYMENT
7.1. The Charges shall be set out in the Booking Form.
7.2. The Charges exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to ELONEX at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.3. Unless otherwise agreed in writing by ELONEX, ELONEX shall invoice the Client prior to the Services Start Date. Furthermore and unless otherwise agreed in writing by ELONEX, the Client shall pay each invoice submitted by ELONEX at least 3 Business Days before the Services Start Date in full and in cleared funds to a bank account nominated in writing by ELONEX. In the event that payment is not received 3 Business Days before the Services Start Date, ELONEX reserves the right to delay performance of the Services until such time as the Charges are received. If the period of non-payment continues for 3 Business Days or more, ELONEX may immediately terminate the Contract.
7.4. Payment:-
7.4.1. If payment is agreed to be made in instalments, such supply of Services under this agreement is a continuous supply of the Services over the Term.
7.4.2. Any agreed deposit is part of the Advertisement Price
7.5. TIME FOR PAYMENT SHALL BE OF THE ESSENCE OF THE CONTRACT.
7.6. If the Client fails to make payment due to ELONEX under the Contract by the applicable due date then, without limiting ELONEX’s remedies under clause 7.4 and clause 13 (Termination), the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%. Elonex DOOH Limited Company Registration 05851593 VAT number 152610246.
7.7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. THIRD PARTY SUPPLIER
8.1. The Client acknowledges that the Media Space may be provided directly by ELONEX or by a third party supplier (Third Party Supplier). Any additional terms and conditions imposed by that Third Party Supplier are deemed to be incorporated into these terms & conditions in so far as these are publicly available.
8.2. The Client agrees that it shall not do or omit to do anything that would be a breach of the Third Party Supplier’s terms and conditions relating to the supply of the Media Space, or which would cause ELONEX to be in breach of such terms and conditions. The Client acknowledges and agrees that it will indemnify ELONEX in full for any direct and indirect costs arising from the breach of this agreement by the Client.
8.3. The Client accepts that the location of the Media Space may not be in areas within the control or ownership of the ELONEX and for reasons beyond the ELONEX’s control on occasion the ELONEX may not be permitted to display the Advertisement. The Client further accepts that the request for the Slot is a request only and merely states a preference which the ELONEX will endeavour to supply. Further the ELONEX may offer discounts to the Client off its normal prevailing rates and if such discounts are applied the Client accepts that Slots may need to be altered to prioritise other advertising customers of the ELONEX as ELONEX may deem necessary from time to time. Further and in any event, ELONEX reserves the right to alter the Media Space or Slots where and when the ELONEX in its sole discretion deems necessary. With regard to each of the aforementioned instances, ELONEX will use its reasonable endeavors to provide the Media Space in the Slots requested but does not warrant that it can so do and in the event that there is a failure for any reason whatsoever to supply either or both the Media Space and/or the Slots then ELONEX shall at its sole discretion supply either a comparable Media Space and/or alternative Slots or a partial or whole refund and any such failure is not a breach of this Agreement and does not give rise to an opportunity for the Client to either terminate this Agreement or seek or demand a refund or compensation.
8.3.1. ELONEX may extend the Duration accordingly and display, publish or broadcast the Advertisement at slots equivalent to the Slots throughout the extended period; or
8.3.2. ELONEX may also display, publish or broadcast the Advertisement on or in a media space equivalent to the Media Space, subject to the Client’s prior consent (which shall not be unreasonably withheld or delayed); or
8.3.3. ELONEX may also terminate the Contract with immediate effect, and in such circumstances the Client shall remain liable to pay the Charges and shall not receive a refund of any part of the Charges already paid, save to the extent that ELONEX has received a refund from the Third Party Supplier of the sums paid by ELONEX for the Media Space, in which case ELONEX shall pass on such refund (up to the value of the Charges) to the Client.
8.4. In certain circumstances the Media Space ordered may be in a location that includes television coverage exposure. The Client acknowledges that the total amount of exposure cannot be guaranteed and neither does ELONEX warrant what amount of exposure will arise.
9. INTELLECTUAL PROPERTY
9.1. In relation to any Client Advertisement:
9.1.1. all Intellectual Property Rights in or arising out of or in connection with the Client Advertisement shall be owned by the Client (other than any Intellectual Property Rights in any materials provided by ELONEX); and
9.1.2. the Client grants ELONEX a fully paid-up, non-exclusive, royalty-free, non-transferable licence to use, copy and modify the Client Advertisement, for the Duration, for the purpose of performing the Services.
9.2. In relation to any ELONEX Advertisement:
9.2.1. all Intellectual Property Rights in or arising out of or in connection with the ELONEX Advertisement shall be owned by ELONEX (other than any Intellectual Property Rights in any materials provided by the Client); and
9.2.2. ELONEX grants the Client a fully paid-up, non-exclusive, royalty-free, non-transferable licence, for the Duration, to copy any ELONEX Advertisement to the extent required for marketing, advertising and promoting the ELONEX Advertisement.
9.2.3. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 9.2.2 above.
10. LIMITATION OF LIABILITY
10.1. The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
10.2.1. death or personal injury caused by negligence; or
10.2.2. fraud or fraudulent misrepresentation.
10.3. Subject to clause 10.2, ELONEX shall not be liable for any interruption to the Media Space during the Slots, and the Client shall not be entitled to any reduction in the Charges during any period of such interruption.
10.4. Subject to clause 10.2, ELONEX’s total liability to the Client shall not exceed the Charges that have been received by ELONEX.
10.5. Subject to clause 10.2, ELONEX’s liability for the following types of loss are wholly excluded:
10.5.1. loss of profits;
10.5.2. loss of sales or business;
10.5.3. loss of agreements or contracts;
10.5.4. loss of anticipated savings;
10.5.5. loss of use or corruption of software, data or information;
10.5.6. loss of or damage to goodwill; and
10.5.7. indirect or consequential loss.
10.6. This clause 10 shall survive termination of the Contract.
11. DATA PROTECTION
ELONEX shall only collect/use/process any personal data of the Client in order to fulfil and administer the Client’s order for, and to provide, the Services (in accordance with any privacy policy of ELONEX in place from time to time).
12. CANCELLATION
12.1. The Order is a binding contract on the parties and the Client has no rights to terminate or cancel the Contract. Any cancellation or variation is by agreement only with ELONEX confirming such variation in writing.
13. TERMINATION
13.1. Without limiting its other rights or remedies, ELONEX may terminate the Contract with immediate effect by giving written notice to the Client if:
13.1.1. the Client commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 5 Business Days of the Client being notified to do so; Elonex DOOH Limited Company Registration 05851593 VAT number 152610246.
13.1.2. the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction in connection with any analogous procedure in the relevant jurisdiction;
13.1.3. the Client suspends, threatens to suspend, ceases, or threatens to cease, carrying on all or a substantial part of its business; or
13.1.4. the Client’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.2. On termination of the Contract by ELONEX under clause 13.1, the Client shall remain liable to pay the Charges and shall not receive a refund of any part of the Charges already paid.
14. CONSEQUENCES OF TERMINATION
14.1. On termination or expiry of the Contract, then, unless otherwise set out in these Conditions, the Client shall immediately pay to ELONEX all of ELONEX’s outstanding invoices and interest thereon and, in respect of Services supplied but for which no invoice has been submitted, ELONEX shall submit an invoice, which shall be payable by the Client immediately on receipt.
14.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15. FORCE MAJEURE
ELONEX shall not be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. For the purposes of this Agreement, Force Majeure Event means any event affecting performance of either party’s obligations under this Agreement arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of a party including, without limitation, the ELONEX being prevented access to or use of the Display Unit, any abnormally inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, failure or shortage of power supplies, satellite, internet or other communication links or technical failure, war, military operations, riot, crowd disorder, strike or other industrial action, terrorist action, civil commotion and any legislation or other ruling of any relevant government, course or other competent authority.
If either party is totally or partially prevented from performing any of its obligations under this Agreement as a result of a Force Majeure Event, it shall promptly notify the other party. The party prevented from performing its obligations under this Agreement by a Force Majeure Event shall be excused from performance of such obligations from the date of the occurrence of the Force Majeure Event for so long as it continues and in the event that the Force Majeure Event should continue for a continuous period of six months then this Agreement shall be null and void and neither the ELONEX nor the Advertiser shall be liable to one another for any loss or damage, consequential or otherwise, save for any antecedent breaches which may have occurred in respect of which each party retains all rights afforded under this Agreement.
16. GENERAL
16.1. Assignment. The Client shall not assign or sub-contract any of its rights or duties under the Contract without ELONEX’s prior written consent. ELONEX may assign or sub-contract the Contract (or part of it) without the Client’s consent.
16.2. Confidentiality. The Contract and its terms shall, at all times, be kept confidential by the parties (subject to any legal requirement on either party) and all information disclosed or obtained from the other in whatever form shall be regarded as confidential and shall not be disclosed to any third party whatsoever.
16.3. Entire Agreement. The Contract constitutes the entire agreement between the parties in respect of the Advertisement, supersedes and extinguishes any previous arrangements relating to the same and prevails over any terms supplied by the Client or implied by law, trade custom, practice or course of dealing. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
16.4. Variation. No variation of the Contract shall be effective unless in writing and signed on behalf of both parties.
16.5. Waiver. The failure by ELONEX to enforce any of the terms or conditions of the Contract shall not be a waiver of them.
16.6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deleted under this clause 16.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.7. Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by email to the email address set out in the Booking Form (or such other email address as a party may notify to the other as being the relevant email address for receiving notices under or in connection with the Contract). Any notice or communication shall be deemed to have been received at the time of transmission, or, if the time falls outside business hours in the place of receipt, when business hours resume. This clause 16.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
16.8. Third Party Rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
16.9. Governing Law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.
16.10. Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
