In these terms and conditions, the following definitions apply:
- Advertising: the advertising, promotional and other services which may include digital and traditional printed advertising, e-mail and e-newsletter distributions ordered by the Client the full details of which are set out in Insertion Order.
- Agreement: these terms and conditions along with the corresponding Insertion Order
- Client Advertisement: any advertisement which may be provided by the Client to Key Media in accordance with the Insertion Order and the terms of this Agreement with the intention of that advertisement being published by Key Media in connection with the Advertising.
- Client IP: all Intellectual Property Rights owned by (or licensed to) the Client forming part of the Advertising and/or the Event Materials, as applicable.
- Commencement Date: the date on which Key Media either countersigns the Insertion Order or issues written acceptance of the Insertion Order.
- Confidential Information: all confidential information (however recorded or preserved) disclosed by a party in connection with this Agreement which is either labelled as confidential or would be regarded as confidential by a reasonable business person.
- Event: the event or events set out in the Insertion Order.
- Event Materials: all text, images, graphics, photography, audio and/or visual content provided by the Client to Key Media in accordance with the Insertion Order and the terms of this Agreement to be used in connection with the Event.
- Force Majeure Event: any acts, events, omissions or accidents beyond the reasonable control of the affected party, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Key Media or any other party), failure of a utility service or transport or telecommunications network, accident, breakdown of plant or machinery, fire, flood, storm, any restriction or measures imposed in connection with a pandemic, epidemic, public health emergency, act of God, war, riot, civil commotion, malicious damage, compliance with any law or acts of any governmental or local or other duly constituted authority order, rule, regulation or direction, or default of suppliers or sub- contractors.
- Governing Jurisdiction: the location of the Key Media entity as detailed in the Insertion Order
- Intellectual Property Rights: patents, patent applications, know-how, trade marks, trade mark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights whether registered or unregistered, created, developed, subsisting or used in connection with this Agreement and whether in existence at the Commencement Date or created in the future in any part of the world.
- Insertion Order: the attached insertion order which sets out details of the Client’s order and other key terms of this Agreement.
- Key Media: the legal entity as detailed on the Insertion Order
- Key Media Publication: all text, images, graphics, photography, audio and/or visual content, whether printed or online or an any other medium, published by or on behalf of Key Media.
- Payment Date: the date by which payment of the Price must be made as expressly set out in the Insertion Order or if no such provision is made in the Insertion Order or for any other invoices relating to this Agreement such date as is determined in accordance with clause 7.
- Price: the price payable by the Client for the Services as is set out on the Insertion Order.
- Services: the Advertising and/or Sponsorship services, the full details of which are set out in Insertion Order.
- Sponsorship: the advertising, promotional and other services in connection with an Event ordered by the Client, the full details of which are set out in Insertion Order.
- Website: the Key Media website to which the Advertising is linked as detailed in the Insertion Order.
2. Basis of contract
2.1. The Client’s delivery of an Insertion Order to Key Media constitutes an offer to purchase Services pursuant to and in accordance with this Agreement. The Client shall have the right to cancel or amend any Insertion Order delivered to Key Media only if Key Media has not yet accepted the Insertion Order. Any Insertion Order given by Key Media is only valid for 14 days after the date issued unless otherwise agreed in writing by Key Media and Key Media has the right, in its sole discretion, to accept or reject any Insertion Order.
2.2. Where an Insertion Order is delivered to Key Media by an agent of the Client and Key Media accepts the Insertion Order, the Client and agent shall be jointly and severally liable for all of the obligations of the Client under this Agreement.
2.3.This Agreement constitutes the entire agreement between the parties and replaces and supersedes all other prior oral and written agreements. Unless otherwise agreed in writing, any Client conditions of contract which are included with any acknowledgement of the Insertion Order, invoice or any other documentation along with any other terms that the Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing are expressly excluded from this Agreement and shall not be deemed to become part of same by virtue of Key Media’s delivery of the Services or otherwise.
2.4.THE CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY STATEMENT, PROMISE, REPRESENTATION, ASSURANCE OR WARRANTY MADE OR GIVEN BY OR ON BEHALF OF KEY MEDIA WHICH IS NOT SET OUT IN THIS AGREEMENT AND ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED BY LAW AND/OR CONTRACT ARE HEREBY EXCLUDED, IT IS FURTHER ACKNOWLEDGED THAT KEY MEDIA’S LIABILITY FOR THE SERVICES SHALL CEASE UPON COMPLETION OF THE SERVICES.
2.5. The Client represents, warrants and covenants to Key Media that:
- it has the full right and authority to enter this Agreement;
- at the time of use any statement, claim, or representation made in the Advertising and/or Event Materials will be supported by competent and reliable prior substantiation in accordance with all applicable laws and shall comply with all other applicable laws regarding privacy (including personal information), contests, deceptive trade practices, fair competition and consumer protection;
- nothing in any Advertising and/or Event Materials will be defamatory, libellous, slanderous or otherwise unlawful;
- it has and will retain all rights, licenses, clearances and approvals necessary to lawfully use, and authorize Key Media to use, the contents and subject matter contained in the Advertising and/or Event Materials;
- any Advertising and/or Event materials will comply with any guidelines issued by Key Media;
- if the Event is a physical event, it will observe and ensure that all its employees, agents, sub-contractors and any other representatives observe all health and safety and other guidelines issued in relation to the Event venue;
- it will not make promotional or merchandising reference to any Website, Key Media Publication or Event, including without limitation the reproduction of any of the contents thereof, in any way without the prior written permission of Key Media in each instance.
3.1. Where the Insertion Order indicates that the Client is purchasing Advertising, this clause 3 shall apply.
3.2. The Client Advertisement shall be of such size and specification as may be set out in the Insertion Order.
3.3. The Client agrees to comply with any schedule and/or deadlines detailed in the Insertion Order, including without limitation workback schedules, content provision and/or approvals. In the event the Client’s failure to meet any such schedule results in Key Media being unable to provide any or all of the Services, the full Price shall be payable.
3.4. The Client may request that Services be rescheduled upon provision of a minimum of 60 days notice in writing prior to the date the Advertising was due to be published, provided always that it falls within the same calendar year. Key Media will use reasonable endeavours to accommodate such requests but is under no obligation to do so and reserves the right to offer an alternative schedule. If an alternative schedule is agreed a rescheduling fee equal to 20% of the Price shall be applicable.
3.5 Subject to clause 3.4, in the event an alternative mutually acceptable schedule cannot be agreed, the Client shall pay an amount equal to 50% of the Price.
3.6. Key Media shall, at its sole discretion, have the right to make any changes to the Advertising which (i) are necessary to comply with any applicable law; or (ii) do not materially affect the nature or quality of the Client Advertisement. Key Media shall notify the Client in the event of any such changes.
3.7. Key Media shall publish the Client Advertisement on the Website and/or in the Key Media Publications (as agreed between the parties and set out in the Insertion Order) on the date(s), for the period of time and on the terms that are set out in the Insertion Order.
3.8. Without prejudice to the Client’s obligation to pay the Price, Key Media may immediately cancel or withdraw the Client Advertisement in the event that it is in breach of clause 2.5 or any applicable law and no refund shall be paid of any payments or prepayments which may have been made by the Client.
3.9. Key Media may, in its absolute discretion, cancel or withdraw the Client Advertisement provided that where such cancellation occurs before the Client Advertisement has been published or where the Client Advertisement is withdrawn during the course of its agreed publication period (and provided that such cancellation or withdrawal is not as a result of a breach of this Agreement or any applicable law by the Client), Key Media shall refund to the Client a pro rata proportion of the Price paid by the Client.
3.10. Key Media shall have the right to vary the location, content, layout and format of the Website and any Key Media Publications at any time and any such variation shall in no way relieve the Client of its obligation to pay the Price.
3.11. By entering into this Agreement, Key Media shall not, except as may be expressly stated on the Insertion Order, be restricted in any way from placing other advertisements on the Website or in any Key Media Publications.
3.12. Any Advertising published by Key Media may, at Key Media’s discretion, be published and archived by Key Media, or anyone authorized by Key Media, as many times as Key Media and those authorized by Key Media wish. Key Media shall not be responsible for errors or omissions in any Advertising or Advertising materials provided by Advertiser or for changes made to such Advertising after the applicable closing date. Key Media is not responsible for returning any Advertising or Event Materials and is not liable for the loss of Advertising and/or Event Materials.
4.1. Where the Insertion Order indicates that the Client is purchasing Sponsorship this clause 4 shall apply.
4.2. Key Media shall organise the Event at the Event venue on the date and time set out in the Insertion Order.
4.3. The Client shall:
- comply with all applicable laws, regulations and, for a physical event, any venue rules or requirements relevant to the exercise of its rights and the performance of its obligations under this Agreement; and
- deliver to Key Media, in such manner and at such location as Key Media may reasonably require, all Event Materials within a reasonable time and in any event no later than any date and time that is set out in the Insertion Order.
4.4. The Client shall pay the Price as follows: (i)where the Price is 5,000.00 in Insertion Order currency or less, the Client shall pay in full within 7 days of Key Media accepting the Insertion Order; and (ii)where the Price is more than 5,000.00 in Insertion Order currency, the Client shall pay 50% within 7 days of Key Media accepting the Insertion Order and the balance shall be due no later than 60 days prior to the commencement of the Event.
4.5. Key Media reserves the right to postpone or cancel the Event for any reason (including, without limitation, by reason of a Force Majeure Event). Key Media shall notify the Client of any such cancellation or postponement as soon as reasonably practicable. In circumstances where (i) the Event is cancelled, except by reason of a Force Majeure Event; (ii) Key Media does not intend to reschedule the Event or host any replacement event within 12 months of the original start date of the Event; and (iii) the reason for such cancellation does not relate to an act or omission of the Client or the Client’s breach of this Agreement, Key Media shall refund to the Client such amount of the Price paid by the Client to Key Media in respect of the Sponsorship. Where the Event is postponed, rescheduled or cancelled due to a Force Majeure Event, any prepayment made by the Client shall be held by Key Media as a credit balance and shall be applied to the rearranged Event or to such other replacement event as may be organised by Key Media. Where Key Media changes a physical Event to a virtual (online) Event, 75% of the Price shall be payable.
4.6. Without prejudice to the Client’s obligation to pay the Price, Key Media may immediately cancel the Sponsorship and refuse the Client access to the Event in the event that the Client is in breach of this Agreement or any applicable law and no refund shall be paid of any prepayments.
4.7. The Client may cancel the Sponsorship provided that the Client pays the following fees in respect of such cancellation, being:
- 50% of the Price where Key Media receives notice of the cancellation more than 12 weeks prior to the start date of the Event;
- 75% of the Price where Key Media receives notice of the cancellation between eight and 12 weeks prior to the start date of the Event; and
- 100% of the Price where Key Media receives notice of the cancellation less than eight weeks prior to the start date of the Event.
4.8. By entering into this Agreement, Key Media shall not, except as may be expressly stated on the Insertion Order, be restricted in any way from placing other Sponsorship arrangements for the applicable Event(s).
5. Client’s obligations
5.1. The Client shall co-operate with Key Media in all matters relating to the Services.
5.2. The Client shall be responsible for obtaining all rights, licenses, permissions, releases, approvals, clearances, and credit or attribution information, and for payment of all royalties, license, or reuse or other fees required for Key Media to create any Advertising or Event Materials and shall grant Key Media the right to reproduce, print, and distribute the same as contemplated under the Insertion Order.
5.3. If Key Media’s performance of any of its obligations under this agreement is prevented or delayed by a Client default:
- Key Media shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Key Media’s failure or delay to perform any of its obligations under this Agreement; and
- the Client shall reimburse Key Media on written demand for any costs or losses sustained or incurred by Key Media arising from or connected to the Client Default.
6. Indemnity & Liability
6.1. Nothing in this agreement shall limit or exclude either party’s liability fordeath or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; orany other liability which cannot be excluded or limited by applicable law.
6.2. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, EACH PARTY SHALL EACH BE RESPONSIBLE FOR AND SHALL SAVE, DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER FROM AND AGAINST ANY AND ALL LIABILITY HOWSOEVER ARISING AND WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE AT LAW AND WHETHER OR NOT FORESEEABLE AT THE COMMENCEMENT DATE IN RESPECT OF ITS OWN CONSEQUENTIAL OR INDIRECT LOSSES, LOSS OF BUSINESS, PROFITS, GOODWILL AND/OR SIMILAR LOSSES ARISING FROM, RELATING TO OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT.
6.3. THE CLIENT SHALL INDEMNIFY AND HOLD HARMLESS KEY MEDIA FROM AND AGAINST ALL CLAIMS, DEMANDS, LOSSES, DAMAGES OR COST (INCLUDING LEGAL FEES) EXPENSES AND LIABILITIES IN RESPECT OF OR ARISING OUT OF ANY CLAIM THAT THE CLIENT ADVERTISEMENT AND/OR THE EVENT MATERIALS INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS AND/OR THE DISTRIBUTION, HANDLING, ADVERTISING, USE OF, OR ANYTHING RELATING TO, THE EVENT MATERIALS OR CLIENT ADVERTISEMENT HAS CAUSED A THIRD PARTY TO SUFFER LOSS OR DAMAGE.
6.4. KEY MEDIA’S TOTAL CUMULATIVE LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR OTHERWISE AT LAW, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE, CONTEMPLATED PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE.
6.5. The Client shall effect and maintain, at its sole cost and expense, comprehensive general liability insurance to fulfil its obligations under this Agreement, including against claims for libel, slander, defamation, breach of intellectual property, breach of confidentiality, privacy and personality rights, in an amount not less than 2,000,000 in the Insertion Order currency per occurrence, with a reputable insurer for the term of this Agreement and will provide Key Media with evidence of such insurance upon written request.
7. Prices and payment
7.1. The Client shall pay Key Media the Price in accordance with this clause.
7.2. The Price is exclusive of any and all applicable taxes.
7.3. Key Media shall send invoices to Client’s billing address, which may be an e-mail address, as set forth in the Insertion Order. Client shall pay all invoiced amounts due to Key Media on receipt of Key Media’s invoice. Client shall make all payments in the currency detailed in the Insertion Order. Pre-payment may be required at Key Media’s discretion and any such requirement will be detailed in the Insertion Order For the avoidance of doubt, failure to pay the Price in accordance with this Agreement will constitute a material breach on behalf of the Client and Key Media may, at its absolute and sole discretion, terminate this Agreement plus any other agreements in place with the Client at the date the breach occurs. In such event the terms of clause 11 shall apply.
7.4. The Client shall pay interest on all late payments, calculated daily and compounded monthly, at the rate of 1% per month on all amounts outstanding for more than 30 days from the date of the invoice.
7.5. The Client shall pay all amounts due under this agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). If the Client is or was required by law to make any deduction or withholding for any taxes from any payment due hereunder then the gross amount payable will be increased so that Key Media receives an amount that is no less than would have been received had no such deduction or withholding been required to be made. The Client shall indemnify and hold harmless Key Media in respect of any interest and penalties arising as a result of the Client’s failure to deduct, withhold, or remit taxes in accordance with relevant local legislation.
8. Intellectual property rights
8.1. The Client hereby grants a non-exclusive, worldwide, sub-licensable, royalty-free licence to Key Media to use the Client IP during the term of this Agreement for the purpose of allowing Key Media to provide the Services and to fulfil its obligations under this Agreement.
8.2. Unless expressly agreed in writing, Key Media does not assign, license or transfer to the Client any Intellectual Property Rights or any goodwill relating to any Intellectual Property Rights owned by Key Media, which shall remain the sole and exclusive property of Key Media.
8.3. All Intellectual Property Rights in the Website and the Key Media Publications, save for the Client IP, shall remain at all times the property of Key Media (or its licensors, as applicable). All Intellectual Property Rights in the Event, save for the Client IP, shall vest in and belong to Key Media (or its licensors, as applicable).
9.1. All confidential information supplied by one party to the other in connection with this Agreement shall, save to the extent required by any applicable law or regulation, be held in strictest confidence by the receiving party and shall not be used, reproduced, copied or disclosed to any third party by the receiving party except for use for the purposes of this Agreement. This obligation shall remain in full force and effect for a duration of 2 years from completion of the Services.
9.2. These restrictions shall not apply to information which (i) at the time of disclosure is, or which after disclosure becomes, part of the public domain other than by a breach of this Agreement; or (ii) the receiving party can show was in its possession and not under any obligation of confidentiality, prior to disclosure; or (iii) is or lawfully becomes available from a source having the right to disclose the same; or (iv) the receiving party can show has been developed by or for the receiving party at any time independently of the information disclosed to it by the disclosing party; or (v) is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, any applicable listing authority or securities exchange), or by a court or other authority of competent jurisdiction.
10.1. Without limiting its other rights or remedies set out in this Agreement, Key Media may terminate this Agreement with immediate effect by giving written notice to the Client if:
- the Client commits a material breach of any term of this Agreement and (if such a breach is remediable) the Client fails to remedy that breach within 7 days of being notified in writing to do so;
- the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors or 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;
- the Client’s financial position deteriorates to such an extent that in Key Media’s opinion the Client’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy
The Client accepts that any termination of this Agreement pursuant to this clause shall not entitle the Client to any refund (in whole or in part) of the Price already paid.
10.2. Without limiting its other rights or remedies, Key Media may terminate this Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this agreement on the due date for payment or fails to pay all outstanding amounts within 30 days after being notified in writing to do so.
11. Consequences of termination
11.1. On termination of this Agreement for any reason:
- the Client shall immediately pay to Key Media all of its outstanding unpaid invoices and interest and, in respect of the Services provided but for which no invoice has been submitted, Key Media shall submit an invoice, which shall be payable by the Client immediately on receipt. This shall include any Advertising or Sponsorship that, at Key Media’s sole discretion but acting reasonably, cannot be cancelled due to Key Media’s production schedule;
- Key Media shall, at its sole discretion, remove the Client Advertisement and/or any Event Materials from the Website, any Key Media Publications and/or the Event (in each case, as applicable);
- the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry; and
- any other provision which expressly or by implication survives termination shall continue in full force and effect.
12. Force majeure
12.1. If either party is prevented or delayed from complying with all or part of its obligations, except the Client’s obligation to reimburse Key Media, as a direct result of a Force Majeure Event, delay in performing such obligations shall not be considered a breach and that party shall be relieved from such obligation for so long as it is prevented or delayed by the Force Majeure Event (but not for any longer period). A party seeking to rely on the provisions of this clause shall notify the other party without delay of the occurrence of the Force Majeure and its termination. Key Media may terminate this Agreement if it can be demonstrated that any delay that is a direct result of a Force Majeure Event shall cause an adverse effect on any Website, Key Media Publication or Event.
12.2. If this Agreement is terminated pursuant to this clause, the Client will only be responsible for the Price outstanding at the time of such termination plus any non-cancellable third party costs, which shall become immediately due and payable.
13.1. No amendment to or waiver of this Agreement shall be binding on either party unless it is reduced to writing and signed by an authorised representative of the parties.
13.2. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
13.3. Neither party may assign or sub-let this Agreement in whole or in part or any right deriving from this Agreement without the prior written consent of the other.
13.4. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties. Neither party shall act nor describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other's behalf.
13.5. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the email address as is set out on the Insertion Order.
13.6. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
14.Governing law & Jurisdiction
14.1. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the Governing Jurisdiction.
14.2. The parties submit to the exclusive jurisdiction of the courts of the Governing Jurisdiction in connection with matters concerning this Agreement.