Terms & Conditions

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1. DEFINITIONS:

In these terms and conditions (unless the context requires) the following expressions shall have the following meanings:-

a. "The Company" means CAP Media Limited.

b. "The Advertiser" means the person, firm or company contracting for the services of the Company.

c. "Agreement" shall mean the form of engagement between the Company and the Advertiser together with these terms and conditions.

2. ENGAGEMENT:

a. Upon issuing instructions, verbal or written, the Advertiser agrees to be bound by these terms and conditions which can only be modified by an agreement by both parties.

b. In the event of any conflict between the Company and the Advertiser these terms and conditions shall prevail.

c. These terms and conditions shall continue to apply as between the Advertiser and the Company where the Company is instructed by the Advertiser to carry out further services for the Advertiser.

3. REMUNERATION:

a. Production and Research - Subject to prior approval of estimated costs by the Advertiser all production and research costs will be charged to the Advertiser at the net cost to the Company.

b. Out of Pocket Expenses - Subject to prior approval the Advertiser agrees to reimburse to the Company any normal out of pocket expenses incurred by the Company in the production of the commercial. These expenses include, but shall not be limited to, transportation and travel by the Company personnel on behalf of the Advertiser; long distance telephone and faxes, messenger and freight services fees.

c. Fee - The Company’s fee will be as per the quotation or rate card current at the time of engagement.

4. TERMS OF PAYMENT:

a. Invoices in respect of the commercial will be submitted (on completion of production) and are due for payment within 30 days of invoice date.

b. The Company may charge interest at the rate of three per cent (3%) per annum above base rate from the date of the invoice if it is not paid within 30 days.

5. VAT:

All sums payable pursuant to this Agreement shall be exclusive of VAT which shall, where applicable, be payable in addition subject to the Company rendering to the Advertiser the appropriate VAT invoice.

6. COMPANY’S WARRANTIES:

The Company hereby warrants that the services it provides shall be in accordance with the first class standards appertaining to the audio production industry.

7. ADVERTISERS WARRANTIES:

The Advertiser warrants and undertakes that:

a. The facts given about its products or services shall be accurate and in no way misleading.

b. The Advertiser is the legal and beneficial owner of all contributions made by the Advertiser to the commercial and/or has obtained all the necessary licenses, release or consents and the use of any such contributions shall not infringe the copyright or any other rights of any person, firm, company.

c. The Company shall not be required to include in the commercial any matter which is an infringement of copyright or any other right of any third party or is defamatory or is obscene or will expose the Company to criminal or civil proceedings.

d. The Company shall be fully indemnified by the Advertiser from and against all actions, proceedings, claims, demands and costs (including legal costs of the Company on a solicitor and own client basis) awards and damages arising out of the breach by the Advertiser of its warranties hereunder.

8. PROFESSIONAL RULES & CODES OF CONDUCT:

a. In the performance of this Agreement the Company shall observe the British Code of Advertising Practice, the ITC Code of Advertising Standards for Radio and Television, the Radio Authority’s Code, BACC and other codes of advertising standards laid down voluntarily within the advertising industry to ensure that all advertising prepared by the Company is legal, decent and truthful PROVIDED ALWAYS that nothing in this clause shall render the Company liable to the Advertiser in respect of the breach of any such code.

b. the Advertiser shall inform the Company without delay if the Advertiser considers any claim or trade description in any advertisement, publicity or promotional material submitted by the Company to the Advertiser is false, or misleading or in any manner likely to be actionable at law in relation to the product or service which is the subject of the advertising.

9. CONFIDENTIAL INFORMATION:

a. The Company hereby acknowledges its responsibility during the period of the Agreement to treat in complete confidence all marketing and sales information and statistics which may be supplied by the Advertiser to the Company in the course of the Agreement.

b. The Advertiser acknowledges and agrees that any identifiable and original idea, or concept presented by the Company in relation to any promotion or advertising campaign invented or developed by the Company shall be acknowledged as being available only for such promotion or campaign and shall not be used for any other purposes whatsoever without the Company’s express prior agreement given in writing. Even when no promotion or campaign is agreed, the ideas and concepts presented to the Advertiser shall remain strictly confidential and the property of the Company and shall not be used in any way, including communication to any third party, without the Company’s prior consent.

10. NO LIABILITY:

a. The Company shall not be liable to the Advertiser under any circumstances in respect of any claim for any loss of profits or other indirect consequences, whether arising from negligence, breach of contract or howsoever.

b. The Company shall not be liable for any delay in, or omission of, transmission or any error in any advertisement or publicity or promotional material prepared by the Company in the absence of any act, default or negligence on the part of the Company which may have caused the same.

11. COPYRIGHT:

a. Subject to 9(b) the entire copyright, moral right and all other rights, title and interest in and to the product of the services of the Company made under this Agreement shall vest and be the absolute property of the Company throughout the world for the full period of copyright and the extensions or renewals.

b. The Company’s rights pursuant to 11(a) above shall be subject to any rights of any nature (included but not limited to copyright and moral rights) in and to any of the product of the services, which shall vest in and/or may be retained by the Advertiser or any third party rendering or making goods, materials, services or rights in connection with or otherwise engaged in or contributing in any way to the production of such work.

c. It is the Advertiser’s responsibility to ensure that:

i All material supplied by the Advertiser to be incorporated in any commercial does not infringe the copyright or any other rights of any third party; and
ii Where the copyright is not owned by the Advertiser a licence to use the relevant material has been obtained; and
iii All necessary consents and releases in relation to such material have been obtained.

d. The Company includes up to 12 months usage from the date of the first transmission. Thereafter, re-licensing of the commercial/production is required.

12. FORCE MAJEURE:

In the event that this Agreement cannot be performed or its obligation fulfilled for any reason beyond the reasonable control of either party including war, industrial action, floods, act of God then such non-performance or failure to fulfil its obligations shall be deemed not to be a breach of the Agreement. In the event that this Agreement cannot be performed or its obligations fulfilled for any reason beyond either party’s reasonable control for a continuous period of three months then either party may, at its discretion, terminate the Agreement by notice in writing at the end of that period.

13. SUSPENSION/DETERMINATION:

The Company shall be entitled by 14 days written notice to the Advertiser to determine or suspend the Agreement if the Company shall have been prevented from performing the services by injury, mental or physical disability or otherwise and the Advertiser shall have no claim against the Company whatsoever in respect of any such suspension or determination.

14. NOTICES:

Notices under this Agreement may be sent by first class post to the address of the other party and shall be deemed to have been served within 48 hours after posting, subject to proof of posting.

15. SEVERABILITY:

If any provision of this Agreement shall be prohibited by or adjudged by a Court to be unlawful or unenforceable such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances of the validity or enforcement of this Agreement.

16. WAIVER:

No failure of delay on the part of any of the parties to this Agreement relating to the exercise of any right, power, privilege or remedy.

17. NO PARTNERSHIP:

This Agreement shall not be deemed to constitute a partnership, or joint venture or contract or employment between the parties.

18. GOVERNING LAW:

This Agreement shall be governed by and construed in accordance with the Law of England and Wales the Courts of which shall be competent jurisdiction.

Nothing herein shall be taken to imply that any further service shall be required to be performed by the Company hereunder