Advertiser Terms & Conditions of Business
These Terms and Conditions apply to all advertisements on MarbellaAzul.com and are subject to the Law of England with English courts having exclusive jurisdiction.
These Terms and Conditions (“Conditions”) apply between:
(1) The business, individual or entity requesting the provision of Advertising Services (the “Client”, “you”); and
(2) Derek and Roz James t/a Marbella Azul, (“us”, “our”, the “Publisher”).
These Conditions shall be read alongside any Specific Terms agreed by us, which together form a legally-binding contract between you and us, concerning the provision of Advertising Services (Specific Terms and Advertising Services being as defined below) and any additional or related services provided from time to time by us to you. In accepting the provision of Advertising Services, you are deemed to have fully accepted these Conditions.
In these Conditions, the following words and expressions shall have the following meanings:
“Advertisement” means any advertisement that we make available Online to the public in fulfilment of a Contract and “Advertisements” means more than one of them.
“Advertising Services” means the Online publication of one or more Advertisements, as more particularly defined in condition 3.1.
“Contract” means any legally binding agreement for the provision of Advertising Services accepted by us which shall be deemed to incorporate these Conditions.
“Intellectual Property Rights” means all rights in the nature of intellectual property including, without limitation, all copyright, design rights, trade marks, logos, get-up and similar, in content, media, publications or otherwise.
“Materials” means all text, designs, logos, graphics and other content, in each case intended to form part of an Advertisement.
“Online” means publication in any form on the world-wide-web, including on the Website.
“Price” means the aggregate of all fees charged or to be charged by us to you for the provision of Advertising Services.
“Specific Terms” means any specific terms that we agree in writing (to include those requested by you through the sign-up process on the Website) which, together with these Conditions, shall be the terms of the Contract.
“Website” means the website at the following url: marbellaazul.com, together with any other website(s) operated by us from time to time.
3. Provision of the Services
3.1. “Advertising Services” include and comprise the publication of one or more Advertisements which incorporate the Materials provided by you or on your behalf but which shall not include any obligation to publish the Advertisement in a particular size or at a particular resolution or quality or to either place an Advertisement on a particular page of the Website, or in a particular position within any such page, unless (in each case) such criteria are Specific Terms to which we have agreed.
3.2. These Conditions and any Specific Terms will apply to the exclusion of any other terms, including where the Client seeks or attempts to impose its own terms. A request for Advertising Services shall only be binding on us where we have confirmed acceptance in writing.
3.3. The Publisher may in its sole discretion amend, edit, re-size, adapt or modify any Materials as we deem appropriate, prior to publication of an Advertisement.
3.4. Any date(s) indicated for the completion of the provision of all or part of the Advertising Services shall not be of the essence, being an indication of expectation only and any failure by us to meet any
expected date(s) shall not entitle the Client to treat the Contract as repudiated or otherwise confer any right to rescind it or any related contract or arrangement then in existence.
3.5. The Client’s particular attention is drawn to the following Conditions: condition 5 (client obligations), condition 6 (warranties by the client), condition 11 (consequences of late or non-payment), condition 12 (termination of contract), condition 13 (loss and indemnity) and condition 16 (limit of liability).
3.6. The Client warrants that it has not been induced to enter in to a Contract as a result of any representation, statement or assurance made on or before the date of the Contract by us or by anyone associated with us and no such representation, statement or assurance shall be deemed to be incorporated in to a Contract; the Client accepts that any indication of the Advertising Services contained in marketing or promotional material are only issued for the sole purpose of giving an approximate indication of the Advertising Services described in them and shall not have contractual force.
4. Materials which are unacceptable
4.1. Without incurring any liability to you whatsoever, we may in our discretion, cancel the Contract and/or omit any Advertisement(s) from publication where, in our sole discretion, we consider any Materials to be unacceptable,
misleading, in contravention of any law or regulation, offensive, obscene, blasphemous, libelous, indecent or unacceptable in any other manner.
4.2 In addition, and on the same basis as under condition 4.1, Material may not be published where we reasonably consider that its publication is likely to infringe the Intellectual Property Rights of any third party.
4.3 If you consider that we are not fulfilling our obligations under a Contract or as agreed, you undertake to give us notice of this in writing within 7 (seven) days of any action or omission giving rise to the alleged breach, allowing us to clarify or remedy any valid issue.
4.4. The provision of any Advertising Services over and above those agreed at any particular time shall be subject to additional charges, the Client acknowledging that its requirements may increase over time, resulting in additional work at extra cost.
5. Client Obligations
On an ongoing basis, you undertake to co-operate fully with us in all matters relating to the Advertising Services including providing us promptly with all necessary information and other items that we may reasonably require; the Client accepts and acknowledges that any delay or inability to provide such information and items may result in publication
being delayed and in those circumstances, we shall not be liable for any loss(es) or damage arising as a result of those circumstances.
6. Warranties by the Client
6.1. The Client warrants and represents that all Materials provided in respect of the proposed Advertising Services are its exclusive property or, if licensed, are subject to valid and subsisting license terms and that no part of them infringes the Intellectual Property Rights of any other person, firm or company and agrees to indemnify the Publisher against any loss, damage, claim, proceedings or similar to which the Publisher may be subject, arising from the Client’s breach of this clause.
6.2. The Client warrants that any information or Materials provided to the Publisher have been checked as to their accuracy; as such, the Publisher will not be liable for any loss or damage arising from the Client’s failure to observe the provisions of this clause.
7. Other Advertisers
7.1.The Client accepts and acknowledges that the Publisher receives multiple requests for Advertisements and that these may relate to identical or similar products or services to those offered via the Client’s Advertisement(s); as such, the Client shall not seek to hold the Publisher liable or claim any damage or loss arising from the publication of any identical or similar Advertisement(s).
7.2. The Client appreciates that the provision of the Website is primarily for the benefit of users interested in finding out about the topics which it covers and that inclusion of competitive businesses or services to those of the Client will inevitably arise.
8. Term of Contract
8.1. The term of the Contract will be the period stated in any Specific Terms or, where no such period is mentioned, will be monthly.
8.2. Unless notice is validly given in accordance with condition 13, the Contract will continue for the period referred to in condition 8.1.
9.1. The Price will be a six monthly fee or 1 year fee payable to the Publishers in advance, or as otherwise set out in any Specific Terms.
9.2. Any Price quoted for the provision of Advertising Services shall, prior to acceptance, only remain valid for a period of 30 (thirty) days, or for such period of time specified in the relevant quotation.
9.3. Any estimate or quotation given to the Client for the provision of Advertising Services shall be subject to withdrawal or change until those Advertising Services are commenced.
9.4. All Prices are quoted excluding IVA (value added tax) and the Client accepts that, where such tax is to apply, this shall be paid to the Publisher at the prevailing rate, in addition to the amount that has been quoted.
All sums payable to the Publisher under these Conditions shall be paid in full when due, without any deduction, set off or counterclaim, except for credit notes or where an amount has been agreed by us, in writing, as being due to you; by providing credit, debit or payment card details to us, you irrevocably authorise us to use those details as a continuing authority to debit payment(s) due under the Contract.
11. Consequences of Late or Non-Payment
11.1. Failure by the Client to make payment promptly when due shall be a breach of the Contract by the Client.
11.2. If the Client fails to make full payment when due, the Publisher may charge default interest in
accordance with condition 11.3(a), suspend or withdraw the Advertising Services in accordance with condition 11.3(b), and/or may suspend or terminate the Contract, in accordance with conditions 11.3(c) or 12.2.
11.3. If the Client fails to make full payment when due, the Company shall be entitled, without prejudice to any of its other rights or remedies, whether under these Conditions or otherwise:
a) to charge interest (both before and after judgment) on any sum outstanding at the rate of 8.5 %, accruing daily until payment of the amount outstanding, including all then accrued interest, has been satisfied in full; and/or
b) to immediately suspend or withdraw the publication of any Advertisement(s); and/or
c) to cancel the Contract or suspend all or any future provision of Advertising Services to the Client (under the Contract or any other) until payment has been made in full.
12. Termination of Contract
12.1. The Client may terminate the Contract by giving one month’s notice to the Publisher in writing.
12.2 The Publisher may terminate the Contract on immediate notice where it reasonably considers the Client to be in material breach of its obligations or where, as a result of persistent breaches, it is unable to fulfill its obligations, either within the timescale intended, or at all.
12.3. The Publisher may terminate the Contract without notice, where:
a) the Client suspends, or threatens to suspend, payment of its debts or is, or is deemed to be (under any applicable laws relating to insolvency), unable to pay its debts as they fall due or admits inability to pay its debts or seeks to compromise or make an arrangement with creditors; or
b) a petition or notice is filed, or a resolution passed, for or in connection with the winding up or bankruptcy of the Client, or otherwise to commence
any formal insolvency process under applicable laws.
12.4. If the Contract is terminated (for whatever reason), the Publisher shall be entitled to be paid all fees then outstanding, to include payment in full for the remainder of the month in which termination occurs, notwithstanding that the anticipated Advertising Services may not have been completed during the remainder of that month.
13. Loss and Indemnity
The Client shall indemnify and hold the Publisher harmless from and against all losses, damages, costs, expenses and liabilities incurred or suffered by the Publisher as a result of or arising from any act or omission of the Client (including those of others acting on its behalf) which relates in any way to the provision of the Advertising Services, or which arises from any claim or legal proceedings brought or threatened against the Publisher by any third party for the misuse of any rights, Intellectual
Property Rights, data or other information supplied to the Publisher by or on behalf of the Client, pursuant to the Contract.
14. Advertised Goods/Services
The Client warrants and represents to the Publisher that in providing any goods or services referred to within any Advertisement or which form part of the Materials supplied to the Publisher, it will comply fully with any contract agreed with an end-user and will observe all sale or supply of goods and services legislation applicable to it.
15. Intellectual Property
15.1. All Intellectual Property Rights in or arising from the provision of Advertising Services shall, subject to any license granted under condition 15.2, be or remain the sole property of the Publisher.
15.2. The Publisher grants to the Client a non-exclusive license to use any items delivered or transferred to the Client as part of the fulfillment of Advertising Services under this Contract.
15.3. Any license granted under condition 15.2 shall be for the benefit of the Client only and shall not be capable of being assigned or sub-licensed to any other person or entity, which shall include permission for any other person or entity to use or benefit from those items, except in each case where the Publisher’s written consent has first been obtained but which the Company may at its option withhold.
16. Limit of Liability
16.1. Without prejudice to any statutory or common law rights or limitations not otherwise excluded under these Conditions, the Publisher shall not be liable under any warranty or these Conditions if the total Price for the Advertising Services has not been fully paid.
16.2. All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by applicable law; for the avoidance of doubt this condition 16 shall not operate to exclude or restrict liability for breach of any obligation arising from the Supply of Goods and Services Act 1982 or, if deemed to apply, the Sale of Goods Act 1979, as against the Client where the Client is dealing as a “consumer” as such term is understood by section 12 of the Unfair Contract Terms Act 1977.
16.3. Except in respect of death or personal injury caused by the Publisher’s negligence or in the event of fraud or fraudulent misrepresentation, the Publisher’s maximum liability to the Client under any Contract shall not exceed a sum equal to the Price.
16.5. The Publisher shall not be liable to the Client as a result of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Conditions, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by negligence of the Publisher, its employees or agents or otherwise) which arise out of or in connection with the provision of Advertising Services.
16.6. The Publisher shall not be liable to the Client or be deemed to be in breach of these Conditions by reason of any delay in performing or any failure to perform, any of the Publisher’s obligations in relation to the provision of the Services, if the delay or failure was due to any cause beyond the Publishers reasonable control.
17.1. The provisions of the Contract represent the entire agreement and understanding of the parties in relation to its subject matter.
17.2. No variation may be made to the Contract, save that the Publisher may update or amend these Conditions from time to time, without notice; any waiver of any provision contained in this Contractshall only be effective if made in writing and shall not be deemed to be a waiver of any subsequent breach or default.
17.3. If there is any discrepancy between these Conditions and any other terms purported to apply as between the Publisher and the Client, these Conditions shall prevail; however, the terms of any Specific Terms shall prevail over these Conditions where it is clear they are intended to do so.
17.4. If any provision, or part of a provision, of these Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partially invalid or unenforceable, then to the extent that it is considered invalid or unenforceable, it shall be deemed not to form part of these Conditions, but the remainder of these Conditions shall remain in full force and be construed with such changes as are necessary to make them valid.
17.5. The Publisher may assign, transfer or otherwise deal with a Contract, or any of its terms, as it wishes and without the prior consent of the Client; the Publisher shall procure that the identity of any assignee is confirmed to the Client as soon as reasonably possible; any attempted assignment by the Client shall be void, unless the Publisher permits this in writing.
17.6. No provision of this Contract is intended, or shall be deemed, to constitute a partnership, joint venture or agency relationship between you and us.
17.7. Apart from any assignee, a person who is not a party to a Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms but this shall not affect any right or remedy of a third party which exists or is available apart from that act.
17.8. The construction, validity and performance of the Contract shall be governed by the laws ofEngland and the parties hereby submit to the exclusive jurisdiction of the English courts to settle any disputes under it.
18. Contacting Us
18.1. Our contact details can be found on our website at: marbellaazul.com.
18.2. Any notice to be given to either party under the Contract, shall be in writing and may be served by hand or by pre-paid first class (or equivalent) post addressed to the last known address of the addressee or via e-mail.
18.3. Communications shall be deemed to have been received, where delivered by hand or sent via e-mail, on the date that the communication was left at the relevant address or sent, and if posted, on the second day (excluding weekends and public holidays) after the date that the communication was given to the postal authorities.