BUDGET TRAVEL ADVERTISING AND CUSTOM DELIVERABLES TERMS AND CONDITIONS.
Budget Travel and Contracting Parties agree as follows:
The following words have the following meanings:
- Advertisement / Advertising means an advertisement or advertising to be displayed by Budget Travel on its Media Properties pursuant to this agreement, whether provided wholly or partly or by a combination of Budget Travel, the Client and/or the Agency.
- Agency means an intermediary or partner of the Client.
- Agency Discount means the amount specified as the “Agency Discount” in an IO;
- Agreement means the IO (including the Media Plan) and any accompanying SOW, the Technical Requirements, and these T&Cs;
- Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday in the place where an act is to be performed or a payment is to be made;
- Campaign Period means the period during which Advertising will be shown by Budget Travel as specified under “Campaign Period Start” and “Campaign Period End” in an IO;
- Client means the entity set out as the client in the IO and any SOW;
- Client Materials means any copy, artwork, photographs or other material, including competition prizes, supplied by the Client or Contracting Party, whether as described in an SOW, or merely supplied to Budget Travel, including any prizes to be provided to competition winner(s), of an appropriate standard for display or incorporation in Products produced pursuant to this Agreement;
- Confidential Information means any information relating to or disclosed by either party (or a Related Corporation of either party) to the other (or a Related Corporation of the other) which is in fact, is reasonably regarded as, or is marked as confidential or proprietary to the disclosing party. Confidential Information does not include information that is in the public domain (unless it entered the public domain through breach of confidentiality), is already known by the other party or Related Corporation of the other party at the date of this Agreement, is obtained lawfully from a third party without any breach of confidentiality or is independently developed by either party without any breach of confidentiality.
- Contra means the in-kind goods or services specified as “Contra” in the IO to be provided by Contracting Party in return for Budget Travel’s performance of its obligations under this Agreement;
- Contracting Party means the party contracting for supply of advertising as specified in the IO as the “Contracting Party”;
- Contracting Party Default means any failure or delay by Contracting Party in relation to clauses 2.1, 2.2, 2.3, 6.2, 7.1 and 10;
- Codes means any laws, codes, guidelines, rules or regulations regarding advertising or sponsorship as may be applicable to the Advertisement, the Custom Deliverables, and the Media Properties;
- Custom Deliverables means all items listed under “Custom Deliverables” in an IO and all items listed as a “Custom Deliverables” in an SOW;
- Custom Period means the period between the Start Custom Period and End Custom Period dates as specified for each Custom Deliverable on an IO or SOW.
- Materials Date means any date for delivery of Client Materials as specified in the Technical Requirements;
- Insolvency Event means in relation to a party, something that reasonably indicates that there is a significant risk that the party is or will become unable to pay its debts as they fall due or the party ceasing, or indicating that it is about to cease, carrying on business;
- IO means the page entitled "Insertion Order" signed by both parties and agreed subject to these T&Cs;
- Budget Travel means the Budget Travel entity or entities specified on an IO and any accompanying SOW;
- Budget Travel Property means the Media Properties, including, but not limited to its website and social media accounts specified in an IO or SOW;
- Loss means all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses, penalties, claims, demands and liabilities directly suffered or incurred by a party;
- Media Plan means the plan for Advertising set out under “Media Buy” in an IO;
- Media Properties means the website(s) specified in an IO or SOW and Social Media Channels.
- Limited Run Advertisements means non-standard Advertisements subject to an IO;
- People means the Related Corporations, directors, officers or employees of a party;
- Permitted Location means the location where Custom Deliverables may be displayed or offered as listed under “Permitted Location” in an SOW or IO;
- Permitted Use means the purpose for which Custom Deliverables may be used as listed under “Permitted Use” in an SOW or IO;
- Production Services means all services provided to the Contracting Party by Budget Travel under this Agreement including any creative produced by Budget Travel for an Advertisement and any services in respect of Custom Deliverables set out in an SOW provided by Budget Travel and agreed by Contracting Party;
- Products means the Custom Deliverables and/or Advertising specified in an IO or SOW;
- Related Corporation means in relation to a party, another company that is: a holding company or subsidiary of the party; a subsidiary of a holding party of the party; or under common control with the party;
- SOW means a detailed statement of work agreed by the parties subject to an IO and these T&Cs, setting out a detailed description of Production Services to be performed, details of Custom Deliverables, including any specifications, production schedule and delivery dates for all Custom Deliverables, the Permitted Uses and Permitted Locations for all Custom Deliverables;
- T&Cs means these Budget Travel Advertising and Custom Deliverables Terms and Conditions;
- Technical Requirements means the technical specifications for Client Materials to be delivered by Contracting Party to Budget Travel or, if relevant, the prize winner(s) as set out in an SOW or IO or otherwise communicated by Budget Travel to the Contracting Party;
- Total Cost means the total amount payable to Budget Travel in respect of Advertising, Production Services and Custom Deliverables under this Agreement as set out in the relevant IO;
2. PROVISION OF CLIENT MATERIALS
- Client Materials must be delivered in accordance with the Technical Requirements. If Contracting Party fails to deliver the Client Materials by the Materials Date, Budget Travel may elect to do one of the following:
- Give Contracting Party a reasonable opportunity to correct the failure and Contracting Party accepts that Budget Travel’s obligation to display or deliver the Products will be reduced pro-rata to the Contracting Party’s delay in delivery; or
- Where the Client Materials includes a prize and the winner does not receive the prize within a reasonable time of the competition closing date, Budget Travel will provide the winner with the prize as described in the competition terms and conditions or equivalent and will invoice the Contracting Party to recover any extra expenses incurred (as set out in clause 2.2 below).
- Give Contracting Party a reasonable opportunity to correct the failure and Contracting Party accepts that Budget Travel’s obligation to display or deliver the Products will be reduced pro-rata to the Contracting Party’s delay in delivery; or
- Budget Travel is not obliged to accept Client Materials delivered late and will charge the Contracting Party for any extra expenses, fees or other costs it incurs as a result of the circumstances as set out in clause 2.1 above.
- The Contracting Party will cooperate with Budget Travel to enable the Products to be produced as economically, efficiently, and promptly as possible. Budget Travel agrees to consult with the Contracting Party in relation to the Products.
- Budget Travel shall retain sole editorial control over the Products (including the Client Materials as incorporated in any Products) to be displayed on its Media Properties.
- Budget Travel will not be liable for any loss or damage to the Client Materials. Client Materials may be destroyed by Budget Travel if not used for a period of six (6) months. Return of Client Materials will be at the request and expense of the Contracting Party.
3. APPROVAL OF ADVERTISING
- Advertising will only be displayed on or published in the Budget Travel Property if (a) it is approved by Budget Travel; b) space is available in the Budget Travel Property; and c) the Advertisement is delivered in accordance with this Agreement.
- Despite any approval given or Production Services performed by Budget Travel, Contracting Party remains liable for all Advertising. If Budget Travel does not approve an Advertisement Budget Travel may, in its sole discretion, either:
- Notify the Contracting Party of the reason for rejecting the Advertisement and the Contracting Party will promptly resubmit a new version of the Advertisement or relevant Client Materials modified in accordance with any directions from Budget Travel; or
- Edit the Advertisement; or
- Refuse to transmit or publish the Advertisement or part thereof.
- If Advertisement links to another site, the Contracting Party must maintain the link and is responsible for the content of such linked site.
- Advertisements simulating Budget Travel editorial content in appearance or style that are not immediately identifiable as Advertisements will not be accepted. Budget Travel may require Advertising to be labelled ‘Advertisement’ in its discretion.
4. DISPLAY OF ADVERTISING
- Budget Travel will endeavor to display or publish the Advertisement during the Campaign Period in accordance with the terms of the IO and the terms of this Agreement.
- Subject to clause 4.3 below, if the Advertisement is not displayed or published as agreed for reasons other than Contracting Party Default or cancellation by Contracting Party, Budget Travel will endeavor to display it at some other reasonably equivalent time and the Contracting Party shall not have any claim against Budget Travel in respect of a change.
- Provided that this Agreement does not require any exchange of Contra then, if Budget Travel does not transmit, display or publish the Advertisement at any such reasonably equivalent time within three (3) months of the end of the Campaign Period, the Contracting Party will be entitled to an appropriate pro-rata rebate of the Total Cost based on the number of publications or impressions or spots actually transmitted.
- Where Budget Travel’s campaign report shows that publication of the Advertisement or the service of impressions, plays, or other performance criteria relating to the Advertisement have taken place, Budget Travel’s campaign report will be conclusive evidence of the same. For clarity, a video "play" will be deemed to have taken place if an Advertisement is launched by a user, regardless of whether the Advertisement is transmitted in full.
5. PRODUCTION SERVICES AND CUSTOM DELIVERABLES
- Other than Contracting Party Default or delays caused by events outside Budget Travel’s control, Budget Travel will provide Production Services on time.
- If the scope of the Production Services changes, Budget Travel may increase or decrease the fees accordingly and Contracting Party agrees to pay revised fees in accordance with this Agreement.
- Contracting Party acknowledges and agrees that all intellectual property in and to anything created by Budget Travel in the course of providing Production Services to the Contracting Party is owned on creation by Budget Travel.
- Budget Travel will set out the specifications, production schedule and delivery dates for each Custom Deliverable in an IO and / or an SOW.
6. INTELLECTUAL PROPERTY
- Contracting Party may use the Custom Deliverables at the Permitted Location for the Permitted Use during the Custom Period. This permission is non-exclusive.
- Subject to payment of the Total Cost, Budget Travel grants Contracting Party a license to use the Budget Travel Trade Marks specified in the SOW during the Custom Period specified in the applicable SOW in as incorporated in the Custom Deliverables for, and associated with, the Permitted Purpose subject to Budget Travel’s prior written approval of:
- The size and placement of the Budget Travel Trade Marks in any marketing or promotional material; and
- Any other proposed uses of the Trade Marks.
- The Contracting Party, Agency and Client agree that they do not have any rights to use the Products other than as specified in this Agreement and will obtain Budget Travel’s prior written approval for any other use of the Advertisement.
7. POSTPONEMENT OR CANCELLATION
- Where the parties agree in writing to postpone the Campaign Period or the Custom Period, all obligations of Contracting Party (including in regard to the Materials Date and payment of fees) remain as agreed.
- If a Contracting Party wishes to postpone the Campaign Period or the Custom Period, Budget Travel will consider such a request but has no obligation to accept it. Any accepted postponement requires immediate pre-payment of the Total Cost less any payments already made and will not affect the timing or other obligations of the Contracting Party in relation to provision of Contra.
- Contracting Party may cancel all or part of the Advertising or Custom Deliverables booked under this Agreement by giving written notice to Budget Travel at least two days prior to the Campaign Period (in respect of Advertising) or the Custom Period (in respect of the Custom Deliverables). Where there is a cancellation by the Contracting Party, any volume or other discounts will be reversed and Contracting Party will be invoiced for the Total Cost in accordance with Budget Travel’s then current rate card.
8. PAYMENT AND ACCOUNTS
- Budget Travel will invoice the Contracting Party for the Total Cost. For clarity, the Total Cost due to Budget Travel is (a) exclusive of any applicable TAX, where such tax is payable it will be the obligation of the Contracting Party to pay it in addition to the Total Cost; and (b) inclusive of any applicable Agency Discount; where any commission is charged by an Agency in respect of the subject matter of this Agreement it will be the obligation of the Client to pay it.
- Budget Travel will invoice the Contracting Party as follows:
- On signing for 100% of the amounts due in respect of any Custom Deliverables (“Custom Down-payment”). Contracting Party must pay the Custom Down-payment to Budget Travel within 14 days of Budget Travel’s invoice; and
- Monthly throughout the Campaign Period, a pro-rated amount of the Total Cost minus the Custom Down-payment (i.e. where a Campaign runs for a period of 6 months, the Total Cost minus the Custom Down-payment will be divided into 6 monthly payments) (“Remaining Amounts”). The Contracting Party must pay the Remaining Amounts within thirty (30) days from the date of the invoice. If the Contracting Party does not pay by the due date Budget Travel may refuse to display or provide the Products and may levy interest at the rate of four per cent (4%) per month and such interest shall be calculated from the date such sums become due until they are paid.
- Where there is a valid query on any individual item in an invoice, only the due date of payment of that individual item will be affected. The Contracting Party must notify Budget Travel of any invoice query within seven (7) working days from the date of the invoice.
- The Contracting Party may not claim any rights of set off in respect of any invoices.
- Delays to the Campaign Period will not affect Contracting Party’s responsibility to provide consideration in cash or in kind in relation to all impressions and plays ordered and inventory reserved in full as set out in this Agreement.
- Where the Contracting Party does not adequately cooperate and the result is that Products cannot be produced or displayed in accordance with the terms of this Agreement, the Contracting Party will remain fully liable for the Total Cost as set out in this Agreement.
- Budget Travel does not represent, warrant or undertake, and expressly disclaims, that Advertising will experience any minimum level or type of internet traffic or use during the Campaign Period.
- Where Contra is specified as part of this Agreement, Contra will be provided by the Contracting Party which Budget Travel agrees to accept as part or all of the Contracting Party’s consideration for this Agreement.
- Where Custom Deliverables are shipped by Budget Travel to Contracting Party, freight terms are “DDU” (duties unpaid). Any storage charges incurred by Budget Travel as a result of Contracting Party’s failure to pay duties in a timely manner will be charged to and payable by the Contracting Party.
- If the Contracting Party fails to meet its obligations in regard to Fees and payment, Budget Travel may terminate this Agreement at its sole discretion.
9. WARRANTIES AND INDEMNITY
- The Contracting Party warrants that it has the authority to represent the Client and that:
- It has the power and authority to enter into this Agreement and to perform its obligations under this Agreement;
- It will comply with all laws and regulations relating to the use of the Products (including applicable anti-bribery, anti-fraud or corruption legislation and any relevant laws or regulations relating to the use of personal information and data protection);
- It will not do anything, including in the way it uses the Products, that may damage the standing or reputation of Budget Travel;
- The Advertising and Client Materials, including Budget Travel’s display of Advertising and Client Materials in accordance with this Agreement, will not infringe any third-party rights nor contain any objectionable material (including material which is defamatory, obscene, threatening or untrue) and will comply with all applicable Codes and will not be illegal or actionable for any reason;
- The Contracting Party has obtained all necessary permissions in relation to the inclusion in the Advertisement or Client Materials of the name, likeness or pictorial representation of any person;
- The Contracting Party will fulfill and deal with any orders or enquiries relating to the goods, services or promotions featured in the Advertisement or Client Materials; and
- No Advertising Copy or Client Materials will: contain fake hyperlinks or interactivity; trigger a pop-up, pop-under, dialogue box, or initiate a downloadable application; contain any software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise adversely alter the user experience or the Website.
- The Contracting Party is fully responsible for the Client Materials and indemnifies Budget Travel against any Loss suffered or incurred by Budget Travel (or its People) in connection with any breach by the Contracting Party of the Contracting Party’s warranties or obligations under this Agreement, or any claims brought by or on behalf of any third party in relation to any Client Materials, including prizes.
- Budget Travel indemnifies Contracting Party against any Loss suffered or incurred by the Contracting Party (or its People) as a result of the Products infringing a third party’s intellectual property rights, except to the extent that the breach is as a result of the Client Materials, the incorporation of the Client Materials in any Product, or in relation to performing rights for soundtrack music incorporated in a Custom Deliverable (which Contracting Party acknowledges and agrees is the sole responsibility of the Contracting Party),
- The Contracting Party will cooperate with Budget Travel in defending any claim or complaint concerning the Client Materials or the Products.
10. LIMITATION OF LIABILITY
- The Contracting Party acknowledges and agrees that Budget Travel has not provided it with any guarantees concerning reach of the Website or target audience. Any statistics related to the Website or target audience, provided to the Contracting Party are provided as an estimate based on current available research only and should not be relied on by the Contracting Party.
- THE SERVICES PROVIDED BY BUDGET TRAVEL UNDER THIS AGREEMENT (INCLUDING THE PRODUCTION SERVICES) ARE PROVIDED "AS IS”. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, BUDGET TRAVEL DISCLAIMS AND EXCLUDES TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES OR REPRESENTATIONS OF ANY NATURE. TO THE EXTENT THAT BUDGET TRAVEL IS UNABLE TO EXCLUDE ITS LIABILITY FOR ANY IMPLIED WARRANTY UNDER THIS CLAUSE, ITS LIABILITY IS LIMITED TO THE CORRECTION OR RESUPPLY OF THE SERVICE OR PAYMENT OF THE COSTS OF CORRECTING OR RESUPPLYING THE SERVICE.
- BUDGET TRAVEL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS, OR LOSS OF PROFITS OR REVENUE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
- SUBJECT TO CLAUSE 10.3 ABOVE, BUDGET TRAVEL’S ENTIRE LIABILITY (IF ANY) TO THE CONTRACTING PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CONTRACTING PARTY TO BUDGET TRAVEL UNDER THIS AGREEMENT.
- NOTHING IN THIS AGREEMENT EXCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR LIABILITY FOR FRAUD OR WILFUL MISCONDUCT.
- Either party may terminate this Agreement with immediate effect by notice to the other party (the "Breaching Party") on or at any time after the occurrence of any of the following events: (a) a material breach by the Breaching Party of an obligation under this Agreement where the Breaching Party fails to remedy the breach within seven (7) days after receipt of notice from the other party giving particulars of the breach and requiring the Breaching Party to remedy the breach; or (b) an Insolvency Event happens to the other party.
- Budget Travel may terminate this Agreement at any time and without liability to the Contracting Party, by notice to the Contracting Party with immediate effect if the Client’s conduct or any material change in the business of the Client (including the composition or character of its services) or in the ownership of the Client is such that in the reasonable opinion of Budget Travel it could adversely affect the reputation of Budget Travel or the Budget Travel Products.
- Where a Contracting Party Default occurs, the Contracting Party must pay the Total Cost. The expiry or termination of this Agreement for any reason shall not cancel any indebtedness or otherwise affect the accrued rights and liabilities of the parties to this Agreement and for the avoidance of doubt, clauses 6, 7, 9 and 10 shall survive termination.
- Each party (recipient) acknowledges that the Confidential Information of the other party (discloser) is secret and valuable and agrees: to keep the Confidential Information of the discloser secret, and not disclose or permit its disclosure to any person, except to the People or subcontractors of the recipient who require access to it for the purposes of this Agreement and who are informed of and are under written obligations to comply with the same obligations of confidentiality regarding that information, consistent with this Agreement; to only use the Confidential Information of the discloser for the purposes of this Agreement; and that it is responsible for any misuse by its People or subcontractors of the discloser’s Confidential Information.
- The obligations of confidence in clause 12.1 do not apply: if a disclosure is required by law, but the recipient intending to make such a disclosure must first notify the discloser and the discloser may take action to object to that disclosure; or if a disclosure is made to a professional legal or financial adviser.
- The obligations of confidentiality imposed by this agreement survive the termination of this Agreement.
13. DISPUTE RESOLUTION
- Where a dispute arises out of or in connection with this Agreement, the parties must attempt to resolve the dispute in the following way:
- The primary business contact of each party must meet as soon as practicable, and, if they can’t resolve the dispute within 14 days of a dispute being notified by one party to the other, then;
- A senior officer (different to the first business contact) nominated by Budget Travel and an officer of equivalent seniority (different to the first business contact) from the Contracting Party must meet to attempt to resolve the dispute within 14 days of it being referred to them. If the dispute is not resolved under clause 13(1)(b), then;
- The parties must refer the dispute to mediation, to be held in any location mutually acceptable to the parties. However, if the parties cannot agree on the location of the mediation or if the parties cannot agree on the appointment of a mediator within 45 days of the dispute being referred to mediation, the mediation will be held in Franklin, Tennessee and/or the mediator will be appointed by the American Arbitration Association from the Roster of Mediators.
- If the dispute is not resolved under clause 13(1), the parties must refer the dispute in accordance with clause 14(4).
- This clause 13 does not prevent a party at any time from seeking preliminary or permanent injunctive relief or issuing proceedings for a breach of clauses 6, 8 or 12.
- The Contracting Party is not entitled to assign or transfer or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of Budget Travel. Budget Travel is entitled to assign its rights under this Agreement (or any part thereof) to its Related Corporations.
- Except for obligations to pay money, neither party to this Agreement shall be liable to the other for any delay or failure of performance under this Agreement which results from any cause or condition that is beyond the party’s reasonable control and that the party is unable to overcome by exercising reasonable diligence.
- Notices and any other communications given under this Agreement must be in writing and delivered or sent to the respective addresses of the parties as specified on the IO (or to such other address as either party may notify to the other from time to time during the Agreement). Notice given by post is deemed to have been given on the 5th Business Day (at the address to which it is posted) after posting. Notice given by facsimile is deemed to have been given, if sent before 5pm on a Business Day at the place of delivery, on the day the sender’s facsimile machine issues a report confirming the transmission.
- The law applicable to this Agreement is the law of Tennessee, USA and the parties submit to the non-exclusive jurisdiction of the courts there without regard to the principles of conflicts of law.
- This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement.
- All rights, remedies, undertakings and obligations contained in this Agreement shall be cumulative and none of them shall be in limitation of any other rights, remedies, undertakings or obligations of any party. No failure or delay to the exercise of any right power privilege or remedy provided under this Agreement shall operate as a waiver of such right power privilege or remedy.
- Changes to this agreement will not be valid unless in writing and signed by both parties.
- If any one or more of the provisions of this Agreement is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired.
- In the event of conflict between the provisions of these T&Cs, an SOW and an IO the provisions of the IO will prevail, followed by the provisions of the SOW and lastly the provisions of these T&Cs.