Fix Radio Limited Standard Commercial Advertising Terms and Conditions
Page Last Updated: March 10th 2022
1.1 This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 13, expiring on the Termination Date.
2. Performance of the Services
2.1 In consideration for the payment of the Fees by the Client, Fix Radio shall perform the Services for, and provide the Deliverables to, the Client.
2.2 Without limiting any other obligations of Fix Radio under this Agreement, Fix Radio shall, and shall procure that each of its Personnel shall, perform the Services with reasonable skill and care.
3. Client obligations
3.1 The Client shall co-operate with Fix Radio and shall provide to Fix Radio, at Fix Radio's request, such information concerning the Client, the Client's requirements in respect of the Services and the advertising campaign to which the Services relate as is reasonably necessary to enable Fix Radio to perform the Services.
3.2 Unless a specific time frame for the Client's response is specified, the Client shall respond reasonably promptly to any request by Fix Radio for information or approval.
4.1 In consideration for the provision of the Services in accordance with this Agreement, the Client shall pay the Fees to Fix Radio in accordance with the payment schedule set out in Schedule 2 (Fees).
4.2 The Fees do not cover any services other than the Services. If any such services are requested, the level of remuneration for them will be separately agreed by the parties.
4.3 The Client shall reimburse Fix Radio for reasonable Expenses actually incurred by Fix Radio in providing the Services. Notwithstanding approval of any Expenses, any individual Expense in excess of £100, must be approved by the Client in writing in advance.
4.4 Fix Radio may invoice the Client for the Fees at such times and/or in such instalments (as applicable) as are set out in the Contract Details.
4.5 Fix Radio shall be entitled to increase the Fees payable by the Client on an annual basis during the Term by providing the Client with not less than thirty (30) days’ notice in writing. Any such increase in Fees shall take effect no earlier than the first anniversary of the Commencement Date, and shall not exceed the percentage increase in the retail price index published by the UK Office of National Statistics for the month prior to the month in which the increase in Fees falls, over the same month in the preceding calendar year.
4.6 If Fix Radio expands its network further then Fix Radio have the right to re-negotiate the terms of this contract.
5.1 Except as otherwise agreed between the parties, the Client shall pay all undisputed invoices submitted by Fix Radio within 7 days of receipt of that invoice by the Client.
5.2 The first invoice for services to the Client shall be settled before the Client services are due to commence, Fix Radio reserves the right to delay the Media Schedule until payment is received.
5.3 All sums payable under this Agreement:
(a) are exclusive of any VAT or any other sales tax or duties, which, where applicable, shall be payable by the Client to Fix Radio in addition; and
(b) shall be paid in British pounds sterling to the credit of Fix Radio's bank account, details of which shall be notified to the Client as and when necessary.
5.4 The Client shall pay interest on any sum due under this Agreement, calculated as follows:
(a) Rate. 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
(b) Period. From when the overdue sum became due, until it is paid.
6. Approvals and authority
6.1 Fix Radio shall submit the Deliverables to the Client for written approval.
6.2 The Client will provide written approval or an update to Fix Radio within three (3) Business Days of receipt of individual Deliverables produced by or on behalf of Fix Radio.
6.3 During the Term, Fix Radio shall use reasonable endeavours to advise the Client of any material changes in plans, schedules or work-in-progress previously approved by the Client in accordance with this Agreement.
6.4 The Client shall ensure that Fix Radio's possession and use of the Client's Property in the exercise of Fix Radio's obligations under this Agreement shall not infringe the Intellectual Property Rights or proprietary rights of any third party.
7. Ownership of Intellectual Property Rights
7.1 The Client's Property shall, at all times be and remain, as between the Client and Fix Radio, the exclusive property of the Client. Fix Radio shall mark or otherwise identify all of the Client's Property as property of the Client and shall hold the same in safe custody at Fix Radio's own risk. Fix Radio shall not dispose of, or use, any of the Client's Property other than in accordance with the provisions of this Agreement and/or the Client's written instructions.
7.2 It is the intention of the parties that Fix Radio shall own all Deliverables produced for the Client pursuant to this Agreement.
7.3 Subject to the Client’s payment of the Fees, Fix Radio grants the Client a perpetual, non-exclusive, non-transferable, royalty-free licence to use the Deliverables solely for the Client’s internal business purposes.
7.4 The Client grants Fix Radio a non-exclusive, non-transferable, royalty-free licence to use the Client's Property solely to the extent necessary to enable Fix Radio to provide the Services during the Term.
8.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this Agreement, including but not limited to any information that would be regarded as confidential by a reasonable business person.
8.2 Representatives means, in relation to a party, its employees, officers, representatives and advisers.
8.3 The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
(d) the parties agree in writing is not confidential or may be disclosed
8.4 Each party shall keep the other party's Confidential Information confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
8.5 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
9. Data protection
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Fix Radio is the Processor.
9.3 The details of the processing by Fix Radio is as follows:
(a) The scope, nature, and purpose of processing by Fix Radio is the performance by Fix Radio of its obligations under this Agreement.
(b) The duration of the processing is the Term.
(c) The types of Personal Data are: name, email address, phone number.
(d) The categories of Data Subject are: clients and customers.
9.4 Fix Radio shall, in relation to any Personal Data processed in connection with the performance by Fix Radio of its obligations under this Agreement:
(a) process that Personal Data only on the documented written instructions of the Client, including as set out in this Agreement, unless Fix Radio is required by Applicable Laws to otherwise process that Personal Data. Where Fix Radio is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Fix Radio shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Fix Radio from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) the Client or Fix Radio has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Fix Radio complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Fix Radio complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(e) assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Client without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of this Agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and allow for audits by the Client or the Client's designated auditor and immediately inform the Client if, in the opinion of Fix Radio, an instruction infringes the Data Protection Legislation.
9.5 Fix Radio shall not appoint any third party processor of Personal Data under this Agreement without the Client’s written consent. Where the Client provides such consent, Fix Radio will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 9.
9.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
10. Representations and warranties
10.1 Each party represents and warrants to the other that it has the authority and requisite corporate power to enter into this Agreement without obtaining the consent of any third party.
11. Limitation of liability
11.1 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
11.2 Subject to clause 11.1 (liabilities which cannot legally be limited) Fix Radio's total liability to the Client shall not exceed £15,000. Fix Radio's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement.
11.3 Subject to clause 11.1 (liabilities which cannot legally be limited), the following types of loss listed are wholly excluded by the parties:
(i) Loss of profits.
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
12. Cancellation of Media Schedule
12.1 The Client may cancel the Media Schedule without cause, by giving written notice of immediate cancellation to Fix Radio (specifying the Media Schedule to be cancelled) at any time and for any reason.
12.2 On cancellation of the Media Schedule under clause 12.1:
(a) Fix Radio shall immediately cease performing all Services in relation to the Media Schedule;
(b) the Client shall remain fully liable for the Fees in relation to the cancelled Media Schedule and Fix Radio shall be entitled to invoice the Client for such Fees, which shall be payable by the Client in accordance with the provisions of clause 5;
(c) Fix Radio shall deliver to the Client (or any third party specified by the Client), promptly, in accordance with the Client's instructions, all Deliverables relating to the cancelled Campaign and existing at the date of that cancellation, whether or not then complete.
13.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, 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
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14. Consequences of termination
14.1 On expiry or termination of this Agreement Fix Radio shall be entitled to invoice the Client for all outstanding properly incurred Fees and Expenses, which shall be payable by the Client in accordance with the provisions of clause 5.
14.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
14.3 On termination of this Agreement, the following clauses shall continue in force: clause 28 to clause 28.9 (inclusive), clause 7, clause 8, clause 11, clause 14 and clause 16 to clause 26.
15. Force majeure
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances Fix Radio has up to 12 months to complete the campaign and provide the services agreed. There will be no refund for the activity during this period. If the campaign cannot be delivered during this 12 month period then Fix Radio will issue a refund pro rata based on the remainder of the campaign outstanding.
16.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number.
16.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting [or at the time recorded by the delivery service].
(c) if sent by fax, at 9.00 am on the next Business Day after transmission.
17.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Entire agreement
19.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21. No partnership or agency
21.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22. Assignment and other dealings
22.1 The Client shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of Fix Radio, such consent not to be unreasonably withheld.
23.1 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
24. Third-party rights
24.1 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
24.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
25. Governing law
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 law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
The following definitions and rules of interpretation apply in this Agreement.
Affiliates: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Agreement: the contract between the Client and Fix Radio for the provision of Services and Deliverables in accordance with the Contract Details, the additional Schedules and these Conditions.
Assigned Materials: all of the Deliverables.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Campaign: the advertising campaign produced by Fix Radio pursuant to the Media Schedule.
Client's Property: any and all materials, documents, records, research, photography, logos, designs, software or other property (including all Intellectual Property rights therein) belonging to the Client, which are provided to Fix Radio by or on behalf of the Client and/or otherwise come into the possession, custody or control of Fix Radio in connection with the provision of the Services.
Commencement Date: has the meaning given to it in the Contract Details.
Conditions: these terms and conditions set out in Clause 1 to Clause 28 (inclusive).
Confidential Information: has the meaning given in clause 8.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverable(s): all copy, layouts, artwork, storyboards, scripts, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf of Fix Radio for the Client in the course of providing the Services, on any media (whether any media exist at the Commencement Date or are subsequently developed). The Deliverables shall include all items that are identified in the Media Schedule.
Expenses: expenses incurred by Fix Radio in the provision of the Services.
Fees: the fees for the Services, as set out in Schedule 2 (Fees).
Intellectual Property Rights: patents, rights to inventions, copyright and trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Personnel: officers, employees, consultants, agents, representatives and advisers.
Services: the advertising services to be provided by Fix Radio to the Client as set out in the Media Schedule.
Subcontractor: any third party engaged by Fix Radio to provide any part of the Services or any of the Deliverables.
Term: the term of this Agreement as determined in accordance with clause 1.
Timetable: the timetable for the provision of the Services and the Deliverables as set out in the Media Schedule.
Trade Marks: the registered trade marks and trade mark applications, and all unregistered trade marks and logos, specified in the Media Schedule and/or notified by the Client to Fix Radio from time to time in writing.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
28.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
28.2 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
28.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
28.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time
28.5 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
28.6 A reference to writing or written includes fax and email.
28.7 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
28.8 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
28.9 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those term.