TERMS AND CONDITIONS: INSERT SERVICES

The Insert Company (London) Limited [“TIC”]

 

1 DEFINITIONS 1.1 The following terms have the corresponding meaning for the purposes of this Agreement:

  1. (a) “Advertiser” means the advertiser listed on the applicable Confirmation of Booking, whose Inserts are being inserted in the Publications referred to in the relevant Confirmation of Booking;
  1. (b) “Advertising Regulation” means (i) any present or future applicable code of practice, adjudication, decision, guideline, direction or rule of the Committee of Advertising Practice, Broadcast Committee of Advertising Practice, Advertising Standards Authority and/or the Advertising Standards Authority (Broadcast) including any applicable modifications, extension or replacement thereof in force from time to time; and
  2. (ii) all other UK laws, statutes, regulations, decisions, requirements, codes of practice, and guidance which are applicable to advertising including those of Trading Standards, Ofcom, Information Commissioner’s Office, Phone-paid Services Authority, Medicines and Healthcare products, Regulatory Agency, the Gambling Commission and other such bodies or their replacements from time to time.
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  1. (c) “Affiliate” means, in relation to any entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity;
  1. (d) “Agency” means the Advertiser’s advertising agency or media agency, if any, listed on the applicable Confirmation of Booking;
  1. (e) “Agreement” means these Terms together with the relevant Confirmation of Booking accepted by TIC in accordance with these Terms;
  1. (f) “Buyer” means the person placing an insertion order for Inserts in accordance with the Confirmation of Booking to which the Buyer agrees with TIC (whether it be the Advertiser, the Agency, the Advertiser’s media buyer or other third party acting on behalf of the Advertiser);
  1. (g) “Buyer Materials” means any materials, including artwork, copy, designs, photographs, painting, logo, software, or any other materials protected by IP Rights and supplied by or on behalf of the Buyer under the Agreement;
  1. (h) “Campaign End Date” means the last date for publication of the Insert(s) (as detailed in the relevant Confirmation of Booking);
  1. (i) “Campaign Start Date” means the earliest date for publication of the Insert(s) (as detailed in the relevant Confirmation of Booking);
  1. (j) “Controller” has the meaning set out in the GDPR;
  1. (k) “Data Protection Legislation” means all data protection and privacy legislation, regulations, and other rules having equivalent force (as amended, consolidated or re-enacted from time to time) which relates to the Processing, privacy and use of Personal Data under this Agreement, including: (a) the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) and/or any corresponding or equivalent national laws or regulations (including the Data Protection Act 2018 in the United Kingdom); (b) the Privacy and Electronic Communications Regulations 2003, SI 2003/2426, and EC Directive 2002/58/EC (ePrivacy Directive); (c) any judicial or administrative interpretation of any of the above and (d) any approved guidance and codes of practice issued by the relevant Supervisory Authority;
  1. (l) “Data Subject” has the meaning set out in the Data Protection Legislation;
  1. (m) “Fee” means the sum set out as being payable by the Buyer in the Confirmation of Booking in addition to any production costs, late copy fees, administration charges and box number charges levied on the Buyer by TIC from time to time in accordance with this Agreement, the relevant Rate Card(s) and the Guidelines. Where applicable, a 0.1% surcharge on behalf of the Advertising Standards Board of Finance or the Broadcast Advertising Standards Board of Finance will be levied;
  1. (n) “Guidelines” means TIC’s advertising criteria and specifications supplied & made available to the Buyer by TIC – including in particular and where relevant specific publisher guidelines [including https://www.mailmetromedia.CB.uk/advertise-with- us/rates-specs/], any packaging and labelling requirements, content limitations and technical specifications, privacy policies, user experience policies, policies regarding consistency with TIC and its client’s public image, standards regarding obscenity or indecency and other editorial and/or advertising policies as amended from time to time;
  1. (o) “IP Rights” means any patents, trademarks and design rights (whether or not registered), copyright, performers property rights, database rights and any and all other intellectual proprietary rights, wherever in the world enforceable, including all reversions, renewals, extensions and all applications for registration;
  1. (p) “Inserts” means Inserts and/or materials to be inserted within TIC Media
  1. (q) “CB” or “Confirmation of Booking” means the confirmation of booking form provided by TIC in acknowledgment of an insertion order submitted by the Buyer to

TIC (or by TIC to the Buyer) which creates, at the date of any such Confirmation of Booking the contract between the parties to which the Buyer agrees to be bound.

  1. (r) “Joint Controllers” has the meaning set out in the Data Protection Legislation;
  1. (s) “Personal Data” has the meaning given to it in the Data Protection Legislation;
  1. (t) “Processing” has the meaning set out in the Data Protection Legislation (and “Process” and “Processed” when used in relation to the Processing of Personal Data, shall be construed accordingly);
  1. (u) “Publish“, Published” or “Publication” means inserted, placed or served (as applicable) by TIC in or in any Media;
  1. (v) “Rate Card” means TIC’s rate card for the Services as amended from time to time;
  1. (w) “Schedules” means any schedules attached to the Terms.
  1. (x) “Services” means the services to be supplied by TIC under this Agreement as set out in the relevant CB;
  1. (y) “Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, board or other body responsible for administering Data Protection Legislation; 1.2 Where any provision contained in the Terms or a CB conflicts with any provision of the Terms the following order of precedence shall apply (unless otherwise expressly stated in a CB):
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(aa) “Terms” means these terms and conditions for insert services;

(bb) “TIC” means The Insert Company (London) Limited of 47 Great Marlborough Street, London, W1F 7JP (Company Number 02352979);

(ee) “TIC Ads” means any insert, that may comprise Buyer Materials and TIC Materials, and is created or commissioned by or on behalf of TIC under this Agreement for the Buyer and that is Published or is intended to be Published under the terms of the Agreement;

(ff) “TIC Media” means TIC client publishers or any other publications into which TIC will place the Inserts

(gg) “Transparency Requirements” means the requirements around ensuring that Processing is fair and transparent, as set out in the Data Protection Legislation (including, in particular the measures set out in Article 5(1)(a) and Article 14 of the GDPR, as applicable);

(hh) “written” or “in writing“, unless otherwise specified, means paper, fax, or e-mail communication

  1. (a) Confirmation of Booking;
  1. (b) Terms; 2.1 These terms of Agreement, together with the relevant CB, shall constitute the entire agreement made between TIC and the Buyer in relation to the Services to the exclusion of any other terms and conditions (including without limitation any terms and conditions stipulated by the Buyer).
  2. 2.2 Any variations to the Agreement shall have no effect unless expressly agreed in writing and signed by a Director of TIC
  3. 2.3 No legally binding agreement shall subsist between the Buyer and TIC until TIC has indicated and provided its acceptance of the Buyer’s insertion order by sending a Confirmation of Booking to the Buyer as written confirmation of an original enquiry or quote regarding a proposed insertion order for inserts made by the Buyer. The Buyer must supply a sample of the insert proposed to be inserted to TIC for approval prior to any Confirmation of Booking. A contract shall only be deemed to exist between the Buyer and TIC as at the date of the Confirmation of Booking at which time the Buyer agrees to accept the CB and Terms of this Agreement.
  4. 2.4 The Buyer warrants, represents and undertakes that:
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2 AGREEMENT

  1. (a) the Buyer contracts with TIC as a principal at law;
  1. (b) the Buyer is authorised to enter into this Agreement and any CB and it has the necessary authority to accept and grant the rights set out in this Agreement and any CB; and
  1. (c) where the Buyer is acting on behalf of the Advertiser it is authorised to enter into this Agreement and any CB 3.1 TIC shall use commercially reasonable efforts to supply the Services to the Buyer.
  2. 4.1 When submitting Inserts to be inserted in any TIC Media, the Buyer shall ensure it supplies a sample of any Insert prior to Confirmation of Booking for approval; and
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3 PROVISION OF SERVICES

4 INSERT DELIVERY AND REVIEW

  1. (a) following Confirmation of Booking shall ensure that the Inserts are submitted to delivery points according to delivery details and delivery deadlines stipulated and required by TIC;
  1. (b) ensure the Inserts comply with the Guidelines, all regulations and any specifications specified by TIC;
  1. (c) that TIC receives the Inserts or they are supplied to the stipulated and required delivery points within the period of time specified by TIC; and
  1. (d) that the Inserts will be supplied according to the packing and labelling instructions supplied by TIC. 4.2 If Inserts are not provided according to TIC’s requirements and stipulations and as outlined within this Agreement according to the Confirmation of Booking to deadlines required then TIC shall be entitled to charge and be paid in full for the Inserts in accordance with the Confirmation of Booking and in addition make any further charge in relation to any costs incurred by TIC. TIC may offer at its discretion the Buyer the option to collect any Insert which does not comply with packing stipulations and re deliver to TIC or any delivery point subject to a repacking charge to be labelled and packed correctly to agreed deadlines.
  2. 4.3 The Buyer acknowledges that Publication of any Insert does not constitute TIC’s agreement that the Insert has been provided in accordance with the Agreement, the relevant regulations and/or the Guidelines.
  3. 4.4 TIC shall not be liable for any errors in any Insert where they were not submitted in accordance with the provisions of the Agreement, regulations or the Guidelines.
  4. 4.4 TIC shall not be liable for any loss of or damage to any Inserts submitted by the Buyer.
  5. 4.5 The Buyer acknowledges that it is responsible to check the correctness and legality of each Insert.
  6. 4.6 The Buyer warrants, represents and undertakes that:
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  1. (a) the insertion of any Insert of will comply with all regulations and the Guidelines;
  1. (b) Inserts will comply with all applicable laws, regulations, rules, codes of practice and guidelines, will not contain any material which is defamatory, offensive or obscene and/or will not infringe any personal or proprietary rights of, or breach any contract with, any person;
  1. (c) any information supplied in connection with the Agreement, any Insert is accurate, true and complete; and
  1. (d) any Insert, information or any other content submitted to TIC under this Agreement will be free from viruses and other malicious code and will not introduce a virus into TIC’s systems. 4.7 Following completion of insertion of any Insert TIC shall provide a Certificate of Insertion (if requested by the Buyer) which shall be conclusive proof of insertion establishing final volumes inserted and which may (where applicable) identify any surplus copies (“Overs”) remaining. Any Overs will be discussed between TIC and the Buyer which may be collected by the Buyer, booked for later insertion at a later date or destroyed or recycled by TIC. Any additional costs or fees in relation to any agreed action regarding Overs shall be recharged by TIC to the Buyer which the Buyer agrees to pay.
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  1. 4.8 TIC shall not be responsible for any Overs experienced due to print run fluctuations or mechanical failure at any print site.
  2. 5.1 TIC is entitled to refuse, cancel, amend, require to be amended or remove from TIC Media any Insert which it considers:
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5 APPROVALS, REJECTION, CHANGES AND CANCELLATION

  1. (a) to be in breach of any warranties given by the Buyer under the Agreement; and/or
  1. (b) is likely to be or is in breach of any legal regulation, code of practice or moral obligation placed on TIC, 5.2 The Buyer may only cancel an Insert on no less than eight (8) weeks prior written notice to TIC prior to the insertion date stipulated within the CB.
  2. 5.3 TIC may treat a CB as cancelled if an Advertiser or Buyer is insolvent or bankrupt or where the Buyer is in material breach of this Agreement.
  3. 5.4 TIC is not required to accept any changes by the Buyer to any Insert, or other requirements as detailed in an CB (“Campaign Change”). In such event where TIC accepts a Campaign Change, TIC shall, at its discretion be entitled to apply a revised Fee.
  4. 6.1 The Buyer shall pay TIC the Fee by the payment date stated on the CB.
  5. 6.2 Where the Buyer is an advertising agency recognised by the Newspaper Publishers Association or News Media Association a commission is allowed as
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TIC has no liability to the Buyer for any action it takes in the exercise of its rights in this clause and shall be entitled to payment in full for any Insert which it regards as not being compliant with this clause.

Cancellation will only be effective on confirmation by TIC in writing of the Buyer’s written notice.

Any cancellation made less than 8 weeks prior to the insertion date remains payable in full by the Buyer (the “Cancellation Charge”). The Buyer agrees to pay the Cancellation Charge at the time it makes the cancellation

 

6 PAYMENT

  1. 6.3 The Fee is payable in full without any right of set off, abatement or withholding in respect of monies which are due, or alleged to be due, to the Buyer.
  2. 6.4 The terms of remuneration set out in the Agreement do not cover the performance of services which are outside of a CB. If any such services are required, the terms relating to their provision together with the applicable fees will be agreed in writing by the parties.
  3. 6.5 If the Buyer fails to pay any amount due to TIC in accordance with clause 6.1, then without prejudice to TIC’s other rights and remedies under or in connection with this Agreement or otherwise in law, TIC shall have the right to:
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provided within the CB provided that the Fee is paid by the Buyer in full in accordance with the CB and this Agreement by the due date.

  1. (a) charge the Buyer a £100 administration fee;
  1. (b) withdraw and/or suspend further Publication of Inserts until payment is received including any interest owed;
  1. (c) suspend or withdraw the Buyer’s credit account; and
  1. (d) terminate the Agreement or applicable CB upon seven (7) day’s written notice to the Buyer;
  1. (e) charge interest at the statutory rate from the date payment is due
  1. (d) not allow any agency or other commission to be paid to the Buyer 6.6 No complaint, claim or query by the Buyer (whether in relation to an Ad, invoice or otherwise) shall affect the liability of the Buyer to pay the Fee in full in accordance with the provisions of this clause.
  2. 7.1 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
  3. 7.2 Subject to clause 7.1, TIC’s maximum aggregate liability under or in connection with Agreement (including but not limited to any indemnity contained in this Agreement) whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the Fee as set out in the relevant CB.
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6.8 Any queries in relation to insertion of Inserts must be raised within five working days of the relevant insertion and any query relating to invoices must be raised within five working days of the date of the relevant invoice. In any event any such query shall not preclude the requirement the Buyer shall pay invoices in full by the due date.

 

7 LIABILITY

  1. 7.3 In no event will TIC be liable under or in connection with this Agreement or CB for any consequential losses including loss of actual or anticipated income or profits; loss of goodwill or reputation; loss of anticipated savings; loss of information or data; loss caused by business interruptions; or any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
  2. 7.4 All conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Agreement or any collateral contract, whether by statute, common law or otherwise, are, to the fullest extent permitted by law, hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
  3. 7.5 TIC’s ability to perform its obligations under this Agreement is dependent on the Buyer fulfilling its obligations. To the extent that the Buyer does not fulfil its obligations under this Agreement, then (without prejudice to TIC’s rights and remedies) TIC will be relieved of its obligations to the Buyer to the extent that TIC is prevented from performing the Services in accordance with this Agreement and TIC shall not be liable for any costs, charges or losses sustained by the Buyer arising directly from any failure of the Buyer to fulfil its obligations under this Agreement.
  4. 8.1 The Buyer shall indemnify TIC against any and all losses, damages, liabilities, claims, demands, actions, penalties, fines, awards, costs and expenses (including legal and other professional expenses) suffered or incurred by TIC or its Affiliates of whatsoever nature arising out of:
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8 INDEMNITY

  1. (a) any breach of this Agreement; and
  1. (b) the Buyer’s breach or negligent performance or non-performance of this Agreement. 9.1 Each party undertakes that it shall not at any time during the Agreement, and for a period of two years after termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or its Affiliates, except as permitted by clause 9.2.
  2. 9.2 Each party may disclose the other party’s confidential information:
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9 CONFIDENTIALITY

  1. (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and
  1. (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  1. 9.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
  2. 10.1 The Buyer acknowledges and agrees that TIC and the Buyer:
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10 DATA PROTECTION

  1. (a) shall be individually and separately responsible for complying with the obligations that apply to them as independent Controllers under the Data Protection Legislation;
  1. (b) will not Process Personal Data which it discloses or receives under the Agreement as Joint Controllers. 10.2 The Buyer warrants, represents and undertakes that:
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  1. (a) it has a valid notification or registration under the Data Protection Legislation;
  1. (b) it has a privacy policy in place that is sufficient in scope to satisfy its obligations arising from the Transparency Requirements in order to Process any Personal Data in connection with this Agreement;
  1. (c) it shall comply with its obligations and duties under the Data Protection Legislation and do nothing which causes, or may cause, TIC to be in breach of its obligations under the Data Protection Legislation. 10.3 The Buyer will as soon as possible advise TIC of any suspected or actual breaches by the Buyer in respect of this clause
  2. 11.1 TIC may terminate a CB or the Agreement at any time without liability if the Buyer is in material breach of its obligations under the Agreement, which breach is not cured within 7 days after receipt of written notice from TIC.
  3. 11.2 TIC may terminate a CB or this Agreement immediately upon written notice to the Buyer where
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11 TERMINATION

  1. (a) the Buyer violates any provision of these terms or CB or any legal regulations and the Guidelines and receives notice of each such violation, even if Buyer cures such breach; or
  1. (b) the Buyer suspends, or threatens to suspend payment of its debts or is unable to pay its debts as they fall due, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986. 12.1 Neither party shall be in breach of this Agreement or otherwise liable to the other party by reason only of any delay in performance or the non-performance of any of its obligations hereunder (other than an obligation to pay money) to the extent that the delay or non-performance is due to any circumstances beyond the
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12 FORCE MAJEURE

  1. 13.1 The Buyer may not assign, transfer, charge, sub-contract or otherwise dispose of any IO or any of its rights or obligations arising under this Agreement without the prior written consent of TIC.
  2. 15.1 The failure of TIC to enforce or to exercise at any time or for any period of time any term of or any right pursuant to the Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect TIC’s right later to enforce or to exercise it.
  3. 15.2 The Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that in agreeing to the Agreement, it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in the Agreement provided that nothing in this clause shall operate to limit or exclude either party’s liability for fraud.
  4. 15.3 The construction, validity and performance of the Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them.
  5. 15.4 The relationship of the parties is that of independent contractors dealing at arm’s length. Nothing in this Agreement shall constitute the parties as partners, joint venturers or co-owners, or constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as having authority to do the same.
  6. 15.5 Buyer shall not issue any press releases, publicity, or make any other announcement or disclosure regarding this Agreement, its terms or the nature or
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reasonable control of that party (including without limitation any disruption to printing processes, act of god, war, armed conflict, riot or civil commotion, terrorist act, official or unofficial industrial action or employee dispute, failure by a supplier which is not caused by a force majeure provision, compliance with any law or government order, rule, regulation or direction, failure or interruption of internet communications or telecommunications, criminal or malicious damage to third parties or systems, fire, explosion, flood or storm, or epidemic illness) (a “Force Majeure Event“); and the party affected by the Force Majeure Event shall use commercially reasonable efforts to mitigate the effect of the Force Majeure Event.

 

13 ASSIGNMENT

 

14 THIRD PARTY RIGHTS

 

16.1 A person who is not a party to an IO has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

 

15 GENERAL

existence of the relationship between the parties without the prior written consent of TIC in each case.

 

SCHEDULE

1 CONFIRMATION of BOOKINGS AND INVENTORY DELIVERY 2.1 Mail order Inserts are accepted only after the Newspaper Publishers Association Application Form has been completed, approved and the appropriate payment made to the central fund.

2.2 Unless otherwise agreed in relation to Overs, where TIC is unable to insert all of the inserts specified on a CB for insertion within a given time period, it will use commercially reasonable endeavours to distribute the remaining inserts within a reasonable period of time.

3.1 TIC is not obliged to supply voucher copies or any confirmatory evidence of insertion unless requested by the Buyer and their absence shall not affect the Buyer’s liability to pay the Fee in full.

5.1 The Buyer acknowledges that box numbers are not to be used to receive, or solicit the receipt of, original documents, goods or payments of any kind, nor for the distribution of circulars.

5.2 Box number replies will be posted or available for collection only by the Buyer or the Buyer’s nominee named before insertion of an Insert and a charge will be included as part of the Fee for use of a box number.

5.3 TIC accepts no liability in respect of any loss or damage alleged to have arisen through delay in forwarding or omitting to forward any replies received in relation to the box number.

The CB may also include, without limitation, details of any specific requirements and any special placement requirements. For the avoidance of doubt, where no such specific requirements are expressly stated within an CB, none shall be implied into that CB (regardless of any past practices between the parties).

2 MAIL ORDER ADVERTISEMENTS AND INSERTS

3 VERIFICATION

5 BOX NUMBERS