1.1 In these terms and conditions:
"Advertisement" means any kind of listing, promotion or advert that is published or displayed by electronic or any other means by FASCOM;
“the Advertiser” means any person who promotes products or services to the general public or a section of the public, whether such person is the Buyer or not;
"the Buyer" means the person placing the order with FASCOM for the publication of the Advertisement (including, but not limited to, the Advertiser's advertising agency or media buyer);
"Online Publication" means any website operated or controlled by FASCOM or other electronic medium including, but not limited to, e-mail communications and alerts;
"FASCOM" means Brookhouse Digital Limited T/a FINDASOFA.COM (company no. 11108618) with its office at 38 Holme Park Avenue, Chesterfield, S41 8XB;
"the Rate Card" means the rate card from time to time in force which is used by FASCOM and as such may include (amongst other things) Advertisement rates and technical specifications relating to the standard and quality of reproduction of any Advertisement including its setting, style, delivery format, file configuration and size and wording;
"Working Days" means 9am to 5pm any day Monday to Friday inclusive other than Christmas Day, Good Friday, bank and other public holidays.
1.2 Where the context so admits, words importing the one gender shall include all other genders and words importing the singular shall include the plural and vice versa. A reference to a statute, statutory provision or other legislation is a reference to it as it is in force from time to time, taking account of any amendment or re-enactment.
2.1 All Advertisements accepted for publication by FASCOM are accepted subject to these terms and conditions which shall apply to the exclusion of all other terms and conditions (including any which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document). Any variation to these terms and conditions and any representations about the Advertisement shall have no effect unless expressly agreed in writing and signed by an authorised representative of FASCOM.
2.2 Notwithstanding any other provision of these terms and conditions, nothing herein shall require FASCOM to do or omit to do anything which would contravene any applicable laws or regulations.
The Buyer hereby warrants, represents and undertakes to FASCOM that:
4.1 Notwithstanding Condition 3 above FASCOM shall be entitled at any time to require the Buyer to amend any artwork, materials and copy for and relating to any Advertisement, or refuse (without notice) to publish any Advertisement for the purpose of:
4.2 All copyright and all other rights of a similar nature that are created or exist in material originated by FASCOM in connection with the publication of the Advertisement remains vested in FASCOM.
4.3 If an Advertisement links to another website the Buyer is responsible for maintaining the link and for the content of the linked-to website. FASCOM may remove any Advertisement which contains content or links to a website which, in FASCOM 's discretion, is (or is likely to be) defamatory or objectionable or otherwise likely to bring FASCOM into disrepute. The Buyer will indemnify FASCOM from and against any claims or liability suffered or incurred by FASCOM arising in any connection from links contained in an Advertisement.
4.4 If FASCOM receives complaints about the content of an Advertisement it may, at its discretion, remove the Advertisement from display without reference or liability to the Buyer or Advertiser.
4.5 The provisions set out in this condition 4 apply in addition (save where the context expressly permits) and without prejudice to all other provisions set out in these terms and conditions.
5.1 The Buyer shall indemnify and keep indemnified FASCOM against all proceedings, claims, demands, damages, costs, expenses or any other loss whatsoever arising directly or reasonably foreseeably as a result of (i) the publication of the Advertisement or (ii) any breach of the Buyer's obligations under these terms and conditions or implied by law.
5.2 With regard to the actual or intended publication of an Advertisement FASCOM shall not be responsible to the Buyer or liable for:
5.3 Subject to Condition 5.2, if an Advertisement contains an error caused by FASCOM and this detracts materially from the Advertisement then provided the Buyer gives written notice to FASCOM of the error in the Advertisement within 5 Working Days of its publication:
FASCOM will at its discretion either:
and to that extent such credit or re-publication (as the case may be) shall be FASCOM’s maximum liability to the Buyer. Such matter dealt with under this Condition 5.3 shall not affect the liability of the Buyer for payment by the due date of FASCOM’s charges for the Advertisement and all other Advertisements.
5.4 Except to the extent specified in Condition 5.3, FASCOM shall not be liable for any loss or damage suffered by the Buyer (or the Advertiser) as a result of any total or partial failure of publication or availability of any Online Publication in which any Advertisement is scheduled to be included, or for any error or omission in the publishing of any Advertisement.
5.5 The total liability of FASCOM to the Buyer for any act or omission of FASCOM, its employees or agents relating to any Advertisement shall not exceed the amount of the full refund of any price paid to FASCOM for the Advertisement or the cost of a reasonably comparable further or corrective Advertisement. Without limiting the foregoing, FASCOM shall not be liable for any (i) loss of profits, goodwill or business or (ii) indirect or consequential loss.
6.1 Invoices for any Advertisement or any other goods or services ordered within any given month are created on the last day of that calendar month, unless otherwise agreed in writing. Payment is then due 30 days after the date of invoice and the Buyer will ensure that payment is received by FASCOM no later than this due date. The Buyer must submit all information requested by FASCOM (including, but not limited to, any relevant purchase order number) and in accordance with FASCOM's instructions and deadlines in order for FASCOM to generate its invoices, and failure to supply such information in accordance with any such request or instructions shall not excuse late or non-payment.
6.2 All the rates and charges payable under or with reference to these terms and conditions are subject to and exclusive of and relevant sales tax which shall be charged in addition at the rate from time to time in force.
6.3 If the Buyer:
FASCOM shall be entitled to terminate its contract with the Buyer immediately (without prejudice to any other right or remedy available to FASCOM whether under these terms and conditions or otherwise) and, without prejudice to FASCOM's right to terminate its contract with the Buyer in such circumstances, the outstanding balance owed by the Buyer shall become due and payable immediately.
6.4 Without prejudice to Condition 6.3, FASCOM shall be entitled to:
7.1 FASCOM shall not be bound by any request from the Buyer to stop, cancel or suspend an Advertisement unless such request is in writing and confirmed in writing by FASCOM.
7.2 Without prejudice to Condition 7.1, the following costs remain due on cancellation, and the Buyer acknowledges that these charges represent a genuine pre-estimate of FASCOM losses:
Takeover, Slider and Display advertising:
If the Buyer has paid sums for Advertisements in advance and is entitled to a refund, FASCOM shall use its reasonable endeavours to pay such refund the Buyer within 30 Working Days of receipt of the written notice of cancellation.
7.3 Should the Buyer, part way through, wish to stop or cancel an Advertisement that is being displayed in an Online Publication for an agreed period of time then all charges connected with the display of the Advertisement shall, unless otherwise expressly agreed by FASCOM in writing, be non-refundable.
7.4 FASCOM shall be entitled (without prejudice to any other remedy available to it) to treat this contract as repudiated if the Buyer or the Advertiser;
8.1 Governing Law. These terms and conditions (and FASCOM’s contract with the Buyer) shall be governed by and construed according to English Law and the parties submit to the exclusive jurisdiction of the English courts.
8.2 Severance. If any provision of these terms and conditions is or becomes invalid, illegal or void, that shall not affect the validity and legality of the other provisions.
8.3 Waiver. No failure or delay by FASCOM to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
8.4 Third Parties. None of the provisions of these terms and conditions are intended to confer a benefit on or be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.