COMS Business Directory TERMS AND CONDITIONS
General Terms & Conditions
1.0 Definitions
Definitions
‘’Advertiser’, shall hereinafter mean the person, firm or company by whom an order for an advertisement booking is placed and shall also mean and include the advertiser’s successors in title and assigns.
‘Agreement’ means an agreement (written or oral) between the Advertiser and COMS for the booking of a slot in the COMS App Business Directory (including, without limitation, a completed “COMS App Business Directory Booking Form”, and shall include these Conditions which shall be deemed incorporated therein).
‘Campaign’ means the Slot booked which is the subject of the Agreement
‘COMS’ means Central Oxford Muslim Society
‘Fee’ means the fee for the Campaign as specified in the Agreement
2.0 Acceptance of Terms and Condition
2.1 The booking of the Campaign will be deemed an unqualified acceptance of these Conditions by the Advertiser. These Conditions shall govern and be incorporated into the Agreement and shall prevail over any other terms and conditions contained or referred to elsewhere (whether before or after receipt of these Conditions) or implied by trade custom, practice, course of dealing or law.
2.2 No terms or conditions other than those set out herein or any variation thereof agreed in accordance with condition 12 below shall be binding upon COMS or the advertiser unless reduced to writing and signed by or on behalf of both COMS and the Advertiser.
3.0 Acceptance of Advertisement
3.1 Advertising will only be published if it has been approved by COMS and if it complies with all relevant legal and regulatory requirements or codes of practice (whether voluntary or obligatory) relating to the Advertising or its Publishing and such technical requirements and other procedures as COMS may require.
3.2 Advertising which is being produced by COMS shall be sent to the Advertiser for its approval before the scheduled start of the Campaign or as otherwise agreed by the parties. The Advertiser shall approve such Advertising (approval not to be unreasonably withheld or delayed) or the Advertising shall be otherwise agreed no later than 3 clear working days before the scheduled start of the Campaign. Failure to do so may result in a delay or cancellation of the Campaign (in COMS’s sole discretion) but shall not affect the Advertiser’s obligation to pay the Fee (and Costs).
3.3 Advertising which is not being produced by COMS must be received by COMS not less than 3 working days before the scheduled start of the Campaign unless COMS agrees otherwise in writing. Receipt of such Advertising shall not be deemed to have been made until COMS’s technical requirements and other procedures have been complied time). If Advert is not received within the specified time (or is deemed not to have been received), the acceptance of Advertising will be in the absolute discretion of COMS and the Advertiser shall remain liable to pay the Fee (and Costs) for the entirety of the Campaign whether or not the Advertising is published.
3.4 Advertising shall only be published if:-
I. The Advertiser has obtained all necessary licences and consents for the placement of any material protected by any intellectual property or other rights contained in the Advertising; and
II. The Advertising is not defamatory or slanderous of any third party or inaccurate or misleading or in contravention of any relevant legal or regulatory requirement or code of practice (whether voluntary or obligatory) relating thereto and does not infringe any rights of a third party.
3.5 The Advertiser must comply with such technical requirements and other procedures as COMS may require in respect of the same. In particular (without limitation) any product claims contained in the Advertising must be capable of verification and, if requested by COMS, the Advertiser shall provide evidence of the same. For the avoidance of doubt, COMS shall have no liability or responsibility for verifying any such product claims or ensuring that the Advertising complies with this Condition 3.5.
3.6 COMS may (without incurring any liability whatsoever) amend or decline to publish the Advertising if, in COMS’s opinion, the Advertising does not comply with Condition 3.4 or 3.5 or is otherwise unsuitable or inappropriate for publishing (in COMS’s absolute discretion).
3.7 If COMS exercises its discretion pursuant to Condition 3.5, it will notify the Advertiser as soon as practicable who shall consult with COMS with respect to supplying alternative Advertising if appropriate. Should alternative Advertising not be appropriate or not accepted by COMS (or not be provided), the Advertiser shall remain liable to pay the Fee (and Costs) for the entirety of the Campaign whether or not the advertising slot booked is used to publish the Advertising and the Advertiser shall have no claim against COMS for any expense or damage whatsoever incurred as a result thereof. If, pursuant to Condition 3.6, COMS has amended the Advertising, it shall supply a copy of the same to the Advertiser.
3.8 Acceptance of Advertising by COMS does not confer any right for the Advertiser to have a repeat order accepted on similar terms.
3.9 Advertisements published in another category similar to the one booked may in circumstances which in COMS’s opinion are exceptional be treated as having been published within the booked category.
4.0 Campaign
4.1 COMS reserves the right to modify the Slots and dates of the Campaign. If for any reason (other than by reason of the Advertiser’s default or the exercise of COMS’s discretion pursuant to Condition 3 above) Advertising is not published as scheduled or is published containing a material error, COMS will use all reasonable endeavours to offer to publish the Advertising at some other time/or some other date(s) which may be accepted instead by the Advertiser at no additional cost (but without prejudice to the Advertiser’s obligation to pay the Fee). Save for such offer (whether or not the Advertiser accepts the same), the Advertiser shall have no claim against COMS in respect of failure or delay or partial publishing of the Advertising or for any expense or damage whatsoever incurred as a result thereof (and this shall not affect the Advertiser’s obligation to pay the Fee).
4.2 COMS accepts no liability for any loss of profit, business, contracts, revenues or anticipated savings or for special, direct, indirect or consequential loss of any nature howsoever arising even if such damages are foreseeable and whether or not COMS has been advised of the possibility thereof. The maximum liability of COMS to the Advertiser for any and all breaches of the Agreement or any other liability arising under the Agreement (or tort including negligence or breach of statutory duty save in cases of death or personal injury) shall be the amount of the Fee under the Agreement.
4.3 Where a booking includes reference to a particular level of impact, no guarantee is given by COMS that the level of impact will be achieved. However, in certain circumstances and at the discretion of COMS, if for any reason (other than by reason of the exercise of COMS’s discretion pursuant to Condition 3.6 the level of impact is not achieved, COMS may offer to publish further Advertising so as to make up the deficiency. If any such offer is not accepted the Advertiser shall have no claim against COMS for any expense or damage whatsoever incurred as a result thereof.
4.4 Any information provided by COMS to the Advertiser in respect of impacts achieved or advertising published is provided by way of information only and COMS gives no representation or warranty as to the accuracy or completeness thereof (and all warranties and representations are hereby excluded). COMS has no obligation to provide further information or to update any information already provided.
4.5 The Advertiser may request COMS to provide less than the agreed amount of Advertising upon giving COMS not less than 7 days’ prior notice in writing but this shall not affect or otherwise discharge the Advertiser’s obligation to pay the entirety of the Fee for the Campaign.
5.0 Termination and Cancellation
5.1 Either party may terminate this Agreement by giving to the other notice in writing no later than 7 days before the scheduled start date of the Campaign or the scheduled start of the Pre-Promotion Period (in the case of a Promotion). Termination by the Advertiser will result in a cancellation charge of 100% of the Fee plus a reimbursement to COMS of all costs incurred to the date of termination in respect of the Campaign, payable in full by the Advertiser on the date of termination. For the avoidance of doubt, a termination notice received by COMS later than 7 days before the scheduled start of the Campaign or Pre-Promotion Period will result in the entirety of the Fee becoming due and immediately payable.
5.2 COMS may terminate the Agreement by giving notice in writing to the Advertiser no later than 3 days following acceptance of the booking under the Agreement.
5.3 COMS may terminate the Agreement immediately by notice in writing if the Advertiser
I. Commits a material breach of its obligations under the Agreement which, if capable of remedy, is not remedied within 7 days after receipt of written notice requesting the same; or
II. Goes into liquidation either voluntary or compulsory (except as part of a bona fide scheme of reconstruction or amalgamation), is dissolved, compounds with its creditors or has a receiver or administrative receiver appointed over the whole or part of its assets
5.4 Termination does not affect a party’s accrued rights and obligations as at the date of termination.
6.0 Material and Property Liability
COMS will endeavour to use reasonable care in respect of any advertising material under the Agreement but shall have no liability whatsoever for the loss, damage or unauthorised use of the same (whether or not such material is provided by COMS). Advertising material may be destroyed by COMS after a period of three months following the end of the Campaign without further reference to the Advertiser whether or not the material is supplied by COMS, the advertiser or any third party.
7.0 Fees, Costs and Payments
7.1 If the Advertiser is an approved credit customer of COMS, the Fee will be invoiced by electronic email periodically as specified by COMS or, if no period is specified by COMS, the Fee will be invoiced by electronic email monthly in arrears at the end of each calendar month for the duration of the Campaign, calculated by reference to the Advertising scheduled for publishing during that month. If the Advertiser is not an approved credit customer of COMS (or loses its approved credit rating during the term of the Agreement) the Fee for the entirety of the Campaign will be invoiced by electronic email on the date of the Agreement (or upon losing its credit rating) or as otherwise agreed in writing by COMS.
7.2 Payment of invoices will be made by electronic transfer in full within 7 days of the date of the invoice. Payment is to be made in cleared funds in the same currency as the invoice and without any withholding, deduction, set-off or counterclaim whatsoever. In default of such payment, COMS is entitled (without prejudice to its other remedies) to immediately cease publishing the Advertising or halt the Promotion without any obligation to the Advertiser or claim against COMS. Time of payment is of the essence.
7.3 If any amount is not paid in full by the due date for payment, interest is payable on the outstanding amount at a rate of 10% per annum above the base lending rate from time to time of Barclays Bank plc. Interest is calculated on a daily basis and accrues from the due date for payment until receipt by COMS of the full amount (including any accrued interest) whether before or after judgment.
7.4 The existence of a query on any item in an invoice shall not affect the due date of payment of the balance of the invoice. The Advertiser must notify COMS of any query within 5 days of the date of invoice. Invoices may not be queried after this time.
7.5 COMS is entitled to set-off monies held by it for the Advertiser against any monies due by it to the Advertiser (and any Advertiser’s group company) and is entitled to apply any monies held by it on behalf of the Advertiser in settlement of any monies due to it by the Advertiser.
7.6 If any amount is not paid in full by the due date for payment, COMS may (in its absolute discretion) elect not to accept any new bookings for advertising slots from the Advertiser (whether for the same client or in respect of other clients).
COMS will levy a charge on the Advertiser for any dishonoured payments such as returned cheques, failed standing orders etc at a rate of £40 (+VAT when VAT registered) per instance plus any other administrative costs COMS may incur as a result of the dishonoured payment.
8.0 Warranties and Indemnities
8.1 The Advertiser warrants and undertakes to COMS that:-
I. It is responsible for obtaining, maintaining and paying for all necessary licences and consents for the advert of any material protected by any intellectual property or other rights contained in the Advertising or the Promotion
II. The Advertising or the Promotion will not infringe the copyright or other rights of or be defamatory, libellous or slanderous of any third party or be inaccurate, misleading, obscene or offensive or in any way contravene any relevant legal or regulatory requirement or code of practice (whether voluntary or obligatory) from time to time governing or relating to the Advertising or its publishing and will not infringe any rights of a third party.
8.2 The Advertiser undertakes to COMS that the products or services which are the subject of the Promotion and/or which are reasonably associated with the Promotion are safe and fit for their intended purpose and comply with all legal and regulatory requirements or codes of practice (whether voluntary or obligatory) in respect of the same.
8.3 The Advertiser will indemnify and keep COMS indemnified against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities (including legal and other professional fees and damages for loss of reputation and goodwill) arising from any breach of the above warranties or in any manner whatsoever resulting from the use or publishing of the Advertising or the Promotion.
8.4 The Advertiser shall notify COMS forthwith on it becoming aware of any fact or circumstance which would constitute a breach of Conditions 8.1
9.0 Changes of Rates and Conditions
COMS reserves the right to change the advertisement rates, slot categories, classifications or any of these terms and conditions by giving not less than 28 days notice and in the event of such a change the rates payable and the terms and conditions applicable shall be those in force at the time of publishing but the Advertiser shall, by serving written notice on COMS within l0 days of receiving notice of such change, be entitled to cancel the contract to which the changes notified would otherwise be applicable.
10. Value Added Tax
V.A.T. will be charged at the rates prevailing at the tax point if COMS becomes V.A.T. registered.
11. Force Majeure
11.1 COMS shall have no liability to the Advertiser if it is prevented, hindered or delayed in carrying out any of its obligations under the Agreement by any law or regulatory order, rule or regulation or by any other act or thing beyond COMS control (including but not limited to strike, lock-out, malicious damage, breakdown of plant, software or machinery, accident, fire or flood.
11.2 COMS may (without any right of the Advertiser to bring a claim against COMS) extend the time period for performance of the Agreement to take account of such force majeure or terminate the Agreement with immediate effect by written notice. If the force majeure continues for more than one month, COMS may terminate the Agreement with immediate effect by written notice. For the avoidance of doubt, any such termination shall be without prejudice to COMS’s right to be paid any accrued amounts as at the date of termination.
12. General
12.1 Any notice under the Agreement shall be in writing and sent by recorded delivery post, by-hand delivery, first-class post or by fax at the last known address or fax number from which one party has communicated with the other in connection with the Agreement and, if sent by first class post, shall be deemed to have been received 36 hours after posting. In the case of the service of a notice by Advertiser upon COMS, any such notice shall be addressed for the urgent attention of COMS.
12.2 The Advertiser may not assign or transfer any of its rights or obligations hereunder without having obtained COMS’s prior written consent.
12.3 The Advertiser shall not without the prior written consent of COMS publish any information in connection with any advertising which has been published or is scheduled for publishing.
12.4 The invalidity, illegality, or unenforceability of the whole or part of a Condition does not affect or impair the continuation in force of the remainder of these Conditions.
13.0 Jurisdiction
These terms and conditions shall in all respects be construed and operate in conformity with English Law. Any disputes arising from this Contract will be litigated or arbitrated in England.
14.0 Confirmation of Agreement
This is an advertisement contract for and advertising slot in the Business Directory of the COMS App. The individual signing this agreement warrants that he/she has the authority to bind contractually the organisation contracting for advertisement space.