VIASAT BROADCASTING UK LTD GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF AIR TIME FOR ADVERTISING
These general terms and conditions for the purchase of air time advertising shall form part of the Agreement and shall be applicable to all agreements regarding the sale and purchase of Advertising Space between Viasat Broadcasting UK Ltd (hereinafter referred to as “VIASAT”) and the Advertiser or Media Agency.
2. PURCHASE OF ADVERTISING SPACE
The purchase of Advertising Space can be made as Run By Station or as Specific Spot Purchases.
3. DELIVERY OF MATERIAL
3.1 For each advertisement, the Client shall, no later than five (5) Business Days before the scheduled broadcast date deliver material submitted digitally via Ad-stream or Adtoox to VIASAT’s headquarters in London, according to VIASAT’s Technical Requirements and Specifications.
3.2 Delivery of the Broadcast Master is deemed to have occurred only when VIASAT’S Technical Requirements and Specifications are fulfilled.
3.3 The Client accepts that VIASAT’s broadcasting of the advertisement is conditional on the advertisement conforming to the Technical Requirements and Specifications. Where, in conjunction with a review of the delivered Broadcast Master, VIASAT finds deficiencies in respect of such, VIASAT must notify the Client whereupon the Client must submit a new Broadcast Master for approval by VIASAT. The Client acknowledges that VIASAT shall have the right to postpone the scheduled broadcast date(s) up to a period equal to the time it takes for the Client to submit a new Broadcast Master that conforms to the Technical Requirements and Specifications, or by a period otherwise agreed in writing between the parties.
3.4 Where a Broadcast Master is received by VIASAT later than five Business Days before the scheduled broadcast date or the Broadcast Master does not conform to the Technical Requirements and Specifications, VIASAT is not obligated to broadcast the relevant advertisement and in such case shall notify the Client that the advertisement cannot be broadcast. In respect of a Broadcast Master received by VIASAT later than five Business Days before the scheduled broadcast date, VIASAT is nevertheless entitled to charge the Client the full amount payable for the booked Advertising Space. If VIASAT approves a new Broadcast Master that has been received by VIASAT later than five Business Days before the scheduled broadcasting, VIASAT may charge a supplementary fee of NOK 5.000 (excluding VAT or equivalent local value added tax per copy to the Client).
3.5 VIASAT shall not be liable for broadcasting any material submitted by the Client.
3.6 Advertising material may be destroyed by VIASAT 90 days after the first broadcasting date unless otherwise agreed.
4. BROADCASTING TERMS AND CONDITIONS
4.1 The Client is responsible for the full compliance of the advertisement with all legislative requirements and restrictions, including any applicable rules for misleading advertising and any rules of OFCOM, DMC, the ASA and the BCAP.
4.2 The Client acknowledges and accepts that VIASAT is required to comply with any rule, regulation or demand issued, from time to time, by OFCOM, DMC, the ASA, the BCAP, and/or with any other applicable law or regulation. The Client acknowledges and accepts that it may be necessary for VIASAT to request the Client to modify an advertisement to conform the advertisement to any such rule, regulation, demand or other applicable law or regulation, but subject to section 9 and this section 4, the Client will not be required to comply with such request.
The Client also acknowledges and accepts that it may be necessary for VIASAT to modify an advertisement in order to confirm the advertisement to any such rule, regulation, demand or other applicable law or regulation. If the Client decides not to comply with such request or to accept VIASAT’s modifications (as the case may be), and VIASAT as a result is prevented from broadcasting the relevant advertisement, the Client is not required to pay for the booked Advertising Space, provided the Client has notified VIASAT in writing of its decision no later than five (5) Business Days before the scheduled date of broadcast.
4.3 The Client shall have in its possession evidence which reasonably substantiates any and all claims/statements made in an advertisement about the characteristics of an advertised product or service or advertiser, including those claims/statements made in sung jingles or indicated from pictures (e.g. a photo of an overweight woman followed by a photo of the same woman but significantly thinner, with a note that only two weeks have passed). Where a claim/statement is based on research or testing, that work should be conducted in accordance with recognized best practice for products or services of the sort advertised and the results must be fair and reliable. Upon VIASAT’s request, the Client shall provide such evidence to VIASAT within ten Business Days.
4.4 Where (i) a modified Broadcast Master is delivered later than three Business Days before the first scheduled date of broadcast and the relevant advertisement is still found to be contrary to the relevant OFCOM, DMC, the ASA, and the BCAP or other applicable rule or regulation, or (ii) the written evidence is not provided by the Client as required under section 4.3 within the agreed term and to the reasonable satisfaction of VIASAT, VIASAT shall have no obligation to broadcast, and has the right to immediately stop broadcasting, the advertisement (as the case may be) without any obligation to notify the Client that the same cannot be broadcast in advance. In such case, VIASAT is nevertheless entitled to charge the Client the full amount payable for the booked Advertising Space.
4.5 Without prejudice to any other rights or remedies VIASAT may have under the Agreement (including these general terms and conditions), where the Client has not provided VIASAT with an advertisement conforming to the legislative requirements and restrictions set out in section 4.1 earlier than three Business Days before the first scheduled date of broadcast, VIASAT shall have no obligation to broadcast, and has the right to immediately stop broadcasting, the advertisement (as the case may be) without any obligation to notify the Client that the same cannot be broadcast in advance or pay any damages to the Client. In such case, VIASAT is nevertheless entitled to charge the Client the full amount payable for the booked Advertising Space.
4.6 The Client shall deliver an advertisement booking in the form of a Booking Schedule, or other written document in an agreed form, to VIASAT’s local office in Oslo no later than five weeks before the broadcast date. Where the advertisement booking does not comply with the requirements set out in this section 4.6, VIASAT shall not have any obligations in relation to the Client with regard to the advertisement booking.
4.7 VIASAT has the right to reject any advertisement that it considers defamatory, offensive, or derogatory of VIASAT and/or its related companies and/or any of its commercial partners.
5. RESCHEDULING OF BROADCASTING TIME
5.1 VIASAT reserves the right in its absolute discretion to make adjustments to the scheduled broadcasting time and/or Position for the contracted advertisement.
5.2 VIASAT does not warrant that advertisements made as Specific Spot Purchases shall be broadcast at the exact time ordered by the Client. Where one or more advertisements are not broadcast or cannot be broadcast at the chosen time and/or Position, VIASAT shall offer the Client a comparable alternative broadcasting time and/or Position. Where a new broadcasting time and/or Position cannot be agreed between the parties, the Client has the right to cancel the relevant advertisements.
5.3 VIASAT shall use reasonable endeavors to broadcast advertisements made as Specific Spot Purchases as close as reasonably possible to the exact time in a commercial Break ordered by the Client.
5.4 An advertisement made as a Specific Spot Purchase that is scheduled to be broadcast at a specific time is deemed to have been broadcast at the booked time when such advertisement is broadcast:
a) within five minutes before or after the scheduled broadcast time for that advertisement; or
b) during the Break and/or Block that is closest to the booked Break and/or Block.
6. CANCELLATION OF AND CHANGES TO ADVERTISING SPACE AND TERMINATION
6.1 Either party may cancel a booked Advertising Space (or a part thereof) by serving the other party with notice in writing provided such notice is received by that other party not later than four (4) weeks before the scheduled broadcasting date. If, however, a booked Advertising Space is cancelled less than four (4) weeks before the scheduled date for broadcasting, VIASAT shall not be obligated to accept such cancellation.
6.2 Where the Client cancels a booked Advertising Space and the cancellation is accepted by VIASAT, the Client shall pay the following compensation at the time of cancellation (assessed on the basis of when the written notice to cancel the booked Advertising Space has been received by VIASAT):
- No later than four (4) weeks prior to the scheduled broadcast date: the Client shall not be obligated to pay any compensation to VIASAT;
- Between two (2) weeks and four (4) weeks prior to the scheduled broadcast date: sixty per cent (60%) of the value of the booking; and
- Less than 2 weeks prior to the scheduled broadcast date or at any time thereafter: ninety per cent (90%) of the value of the booking.
6.3 In the event VIASAT’s broadcasting activities are reduced and/or impeded by legislation and/or other measures beyond the control of VIASAT, VIASAT is entitled to immediately cancel the booked Advertising Space and/or terminate the Agreement and any and/or all other agreements with the Client without any obligation to pay any damages to the Client.
6.4 To the extent the Client has paid for Advertising Space cancelled by VIASAT pursuant to section 6.3, VIASAT shall refund to the Client Advertising Space paid for.
6.5 The Client can freely make changes to a booked Advertising Space up to two (2) weeks prior to the scheduled broadcast date. Changes made after this deadline will incur a fee of twenty per cent (20%) of the value of the booking.
7. MEDIA AGENCIES
If the Client is Media Agency acting on behalf of an Advertiser:
7.1 such Media Agency shall, in its capacity as representative for an Advertiser, objectively and in accordance with the industry’s ethical rules assist the Advertiser with advertising brokering services;
7.2 such Media Agency hereby warrants that it has full authority to enter into agreements on behalf of the Advertiser;
7.3 such Media Agency shall only be compensated by the Advertiser in the manner agreed separately between the Media Agency and the Advertiser (all compensation, discounts (except handling discounts), results of negotiations, etc. obtained from VIASAT relating to the Advertising Space shall inure entirely for the benefit of, and shall be credited to, the Advertiser);
7.4 such Media Agency shall comply with any and all applicable rules, regulations and laws currently in force and/or issued from time to time, including the OFCOM, DMC, the ASA and the BCAP regulations.
8. PAYMENT TERMS
8.1 The agreed compensation for booked Advertising Space shall be invoiced according to the following (unless otherwise agreed between the parties):
(i) where the Advertising Space has been booked by the Media Agency, VIASAT shall issue invoices on a weekly basis during the duration of the Campaign;
(ii) where the Advertising Space has been booked by the Advertiser, VIASAT shall issue an invoice for the booked Advertising Space prior to the commencement of the Campaign.
8.2 Unless otherwise set out in the Agreement, the agreed compensation for booked Advertising Space shall be paid on the earlier of within twenty (20) days after the date of invoice and ten (10) Business Days before the scheduled day for broadcasting. In the event of non-payment or overdue payment by the Client, VIASAT shall be entitled to refuse to broadcast the Advertiser’s advertisements, although the Client shall still be liable to make full payment for the booked Advertising Space in accordance with the payment terms in this section 8.2.
8.3 If an Agreement is an annual Agreement (i.e. an agreement with a term of 12 months or more), payment shall be made not later than twenty (20) days after the date of invoice. Where a Client does not settle a debit balance by the due date, VIASAT reserves the right:
• to refuse further bookings from that Client;
• to regard any claim and/or payments due and payable at a later date as having become immediately due and payable; and
• to charge the Client interest at two percent (2%) above the Barclays Bank PLC base rate compounded monthly on all outstanding payments.
8.4 Where a particular item and/or payment on an invoice is disputed by the Client, the Client shall notify VIASAT in writing with regard to the disputed item and/or payment within seven (7) days of the date of receipt by the Client of the invoice. The Client shall, however, still be liable to pay the undisputed items and/or payments set out in the invoice in accordance with the payment terms in sections 8.2 or 8.3 above, as appropriate. The parties shall in good faith try to resolve any issues regarding all disputed items and/or payments as soon as possible following receipt by VIASAT of written notice from the Client as set out in this section 8.4. If notice is not served within the seven (7) day time-limit stated above, the Client shall be liable to pay for all items and/or payments on the invoice(s) in question.
8.5 The Client may not set off any outstanding payments against claims which the Client regards itself as having against VIASAT without VIASAT’s written consent.
8.6 Where applicable, the invoiced amount shall be rounded up to the nearest NOK.
9. INTELLECTUAL PROPERTY AND INDEMNITY
9.1 The Client warrants that:
a) it possesses all the rights and licenses and has obtained all clearances necessary to enable VIASAT to broadcast the advertisement without VIASAT incurring any costs resulting from such broadcast;
b) it has paid for all necessary clearances and licenses, including, but not limited to, any music and copyright clearances;
b) the advertisements fully comply with all legislative requirements and restrictions, including any applicable rules for misleading advertising and any rules of OFCOM, DMC, the ASA and the BCAP;
c) it possesses all proof which reasonably substantiates any and all statements made in the advertisements about the advertised products;
d) VIASAT’s broadcasting of advertisements will not constitute infringement of any legislative or regulatory restriction or third party rights (e.g. copyright and/or any other intellectual property rights).
9.2 The Client shall at all times comply with the applicable rules, regulations and laws currently in force and/or issued from time to time by the respective regulating authorities.
9.3 The Client shall indemnify VIASAT for any and all costs, fines, damages and/or losses suffered and/or incurred by VIASAT as a result of the Client’s failure to comply with this section 9 and/or any other breaches by the Client of the terms of the Agreement.
9.4 VIASAT shall not be obliged to broadcast any advertisement which in the reasonable opinion of VIASAT breaches any applicable laws or regulations or infringes third party rights (including in cases where claims have been submitted to VIASAT about any such breaches or infringements by applicable regulatory authorities or rights holders).
10. AMENDMENT OF FEES AND TERMS AND CONDITIONS
VIASAT shall have the right to make reasonable amendments to these terms and conditions, including the fees herein, and shall, in so far as is reasonably practicable, notify the Client at least two (2) weeks in advance with regard to such amendments, although VIASAT retains the right to make such amendments with shorter notice.
11. MODIFICATION OF SEGMENTS AND CLASSIFICATIONS
VIASAT shall use reasonable endeavors to provide at least two (2) weeks’ notice with regard to any modifications of Segments and classifications affecting the Client’s advertisements. VIASAT retains the right, however, to make such modifications on shorter notice. Unless otherwise agreed in writing between the parties, in conjunction with such modifications, the fee applicable at the time of actual broadcasting shall apply.
12. SPECIAL RATES
Special rates and terms and conditions may be issued by VIASAT from time to time with regard to specific Advertising Space.
13. APPLICABLE LAW
This Agreement shall be governed by Norwegian law and any disputes shall be subject to the non-exclusive jurisdiction of the courts of Norway.
In the event of a conflict between the Agreement (excluding these general terms and conditions), and these general terms and conditions, the concerned provision(s) of the Agreement (excluding these general terms and conditions) shall prevail.
The following words and expressions shall have the following meanings:
15.1 “Advertising Space” means that portion of the available program time which is reserved for advertising on the Channels.
15.2 “Advertiser” means a physical or legal entity, whose products and/or services are advertised and/or are scheduled to be advertised on the Channels.
15.3 “Agreement” means an agreement to which these general terms and conditions are attached or in which a reference to these general terms and conditions is made, and includes any schedules and/or annexures attached thereto.
15.4 “ASA” means the UK’s Advertising Standards Authority.
15.5 “BCAP” means the UK’s Broadcast Committee of Advertising Practice.
15.6 “Blocks” means advertising breaks between programs during or in which advertisements are broadcast or scheduled to be broadcast.
15.7 “Booking Schedule” means an advertisement booking in the form of the template provided by VIASAT to the Client.
15.8 “Breaks” means advertisement breaks during programs during or in which advertisements are broadcast or scheduled to be broadcast.
15.9 “Broadcast Master” is defined in Section 3 of these general terms and conditions and contains all manner of advertising material which is intended for broadcasting by VIASAT, including any references to sponsors or other texts.
15.10 “Business Day” means days from Monday to Friday of each week, excluding public holidays in Norway and England.
15.11 “Campaign(s)” means an order for Advertising Space to advertise a single product or service for a period of at least seven (7) consecutive days with a definite start and finish time. If a break of more than twenty-one calendar days is inserted in a Campaign it is regarded as a new Campaign.
15.12 “Channel(s)” means the television channel(s) set-out in the Agreement.
15.13 “Client” means the Advertiser and/or the Media Agency acting on behalf of the Advertiser, whichever is the contracting party in the Agreement.
15.14 “Media Agency” means a physical or legal entity that conducts commercial activities including, but not limited to, the purchasing of airtime and/or the booking of Advertising Space for and on behalf of Advertisers.
15.15 “OFCOM” means the Office of Communications which is the independent regulator and competition authority for the UK communications industries, with responsibilities across television, radio, telecommunications and wireless communications services.
15.16 “DMC” means the Dutch Media Committee.
15.17 “Position” means the position in a Break and/or Block where the advertisement is scheduled to be placed, such as, for example, first and/or last.
15.18 “Rating” means the percentage of viewers in a specific demographic group who view a Channel and/or an advertising spot.
15.19 “Run By Station” means that the Client’s booked Campaign is planned and placed by VIASAT.
15.20 “Segment” means the time zones in which VIASAT broadcasts advertisements.
15.21 “Specific Spot Purchases” means that the Client selects the program with which the advertisement shall appear.
15.22 “Technical Requirements and Specifications” means the technical requirements and specifications regarding advertisements issued, from time to time, by VIASAT to the Client.