(a) For the purpose of these standard terms and conditions, the person(s), firm or corporation contracting for broadcast time under the agreement, of which these terms and conditions form a part (the “Agreement”), whether as principal (the "Advertiser") or as agent (the "Agency"), is deemed to be duly authorized for all purposes relating to this Agreement.
(b) If an Agency is or has accepted this Agreement on behalf of an Advertiser, the Agency confirms that it is authorized to bind the Advertiser and the Advertiser and the Agency shall be jointly and severally liable for all obligations under this Agreement. The Advertiser/Agency (hereinafter, the "Purchaser") and the radio station accepting this Agreement (104.7 Heart FM / Station) hereby agree to the following terms and conditions.
(a) The Purchaser agrees to pay for the services contracted for herein within Thirty (30) days of the date the invoice is rendered to Purchaser. Notwithstanding the foregoing, if the credit of the Purchaser is not satisfactory to 104.7 Heart FM, 104.7 Heart FM may at anytime require, and the Purchaser shall pay for, the services prior to the airing of the broadcast time contracted for under this Agreement.
(b) All sums due at any time under this Agreement are payable in Canadian dollars within Thirty (30) days of the date that an invoice is rendered to the Agency in respect of such sums. 104.7 Heart FM reserves the right to charge Purchaser interest at the rate of Two percent (2%) per month (Twenty four percent (24%) per annum) on accounts that remain unpaid for Thirty (30) days from the date of invoice.
(c) In all cases, the date of payment shall be deemed material and, unless otherwise stipulated in this Agreement, the postmark date on the envelope properly addressed to 104.7 Heart FM or its representative shall be considered the date when payment was made.
(d) Advertisements will be broadcast within 15 minutes of the time outlined on the face of the Broadcast Agreement.
104.7 Heart FM will render invoices and/or an affidavit showing actual airtime with the commercial code aired on the spot to Purchaser unless otherwise stipulated in this Agreement. 104.7 Heart FM will supply certified statements of performance on request. Agency shall notify 104.7 Heart FM of any discrepancies in invoicing within Twenty (20) days of receipt of invoice. 104.7 Heart FM invoices shall set out all dates and times of broadcasts, length of commercial announcements. For purpose of this Section 2 (d) it is accepted and agreed that the broadcasting of Advertisements within 15 minutes of the time outlined on the face of this Agreement will not be considered a discrepancy.
(e) Where a dispute arises over payment of an invoice, the Purchaser agrees to remit the undisputed portion of the invoice in accordance with the terms of this Agreement, and acceptance by 104.7 Heart FM of such portion shall in no way be construed as an admission by 104.7 Heart FM of the validity of the Purchaser's dispute.
(f) The Purchaser agrees that 104.7 Heart FM may conduct credit inquiries on the Purchaser as long as any sums owed to 104.7 Heart FM have not been paid entirely. The Purchaser authorizes any third party to convey any information of a financial matter about the Purchaser at the request of 104.7 Heart FM.
(a) Where the agreement is for Advertisements in the form of regular commercial inventory, such agreement may be terminated by either party giving the other at least Two (2) broadcast weeks written notice. Where the agreement is for Advertisements in the form of sponsorship/feature, such agreement may be terminated by either party giving the other at least Four (4) weeks written notice. Verbal notice is acceptable if confirmed in writing within Seven (7) days. Except as otherwise agreed, no such termination shall be effective during the first Four (4) weeks of any flight. A ‘broadcast week’ shall be considered ‘Monday through Sunday’.
(b) In the event of termination of this Agreement by Purchaser, other than for breach by 104.7 Heart FM of 104.7 Heart FM’s obligations under this Agreement, prior to the completion of all broadcasts contracted for, as provided in Subparagraph 3 (a) above, the Purchaser shall pay 104.7 Heart FM all amounts owing for services rendered by 104.7 Heart FM which have been contracted for by the Purchaser up to and including the date of termination at 104.7 Heart FM’s published or other agreed upon rates for such lesser number of broadcasts. Notwithstanding such early termination, the purchaser shall also reimburse 104.7 Heart FM for all sums 104.7 Heart FM has expended or is required to expend for all contractual commitments of supply made by it in order to fulfill the terms of this Agreement.
(c) In the event of cancellation of this Agreement by 104.7 Heart FM on default of the Purchaser to make any payment provided for, or as the result of the breach of any of its terms or conditions, 104.7 Heart FM shall be entitled to recover as damages, and the Purchaser shall pay to 104.7 Heart FM the total of all amounts due, or to become due hereunder, to the expiration of this Agreement or any renewal term thereof. The Purchaser agrees that such amounts are liquidated damages. 104.7 Heart FM shall also be entitled to recover, and the Purchaser shall pay, the costs and expenses of 104.7 Heart FM, including reasonable legal fees, in the collection of the amounts due hereunder to 104.7 Heart FM. In addition the Purchaser will reimburse 104.7 Heart FM for all sums which 104.7 Heart FM has expended, or may be required to expend, for all contractual commitments of supply made by it in order to fulfill the terms of this Agreement.
(d) If, due to 104.7 Heart FM’s material breach, Purchaser cancels this Agreement, 104.7 Heart FM’s liability shall be limited to payment as liquidated damages of a net sum equal to the actual non?cancellable live talent costs incurred by Purchaser for production of a live program (not recorded) in the cancelled time and the reasonable allocated production or rental cost of mechanical re-productions scheduled but not used for the cancelled broadcast and not useable for future scheduling due to 104.7 Heart FM’s breach. Such charges shall not exceed the time charges for the period involved. Inability to broadcast covered by paragraphs 4 or 5 below shall not be considered a breach of this Agreement by 104.7 Heart FM.
(e) Where the Purchaser is in default in the payment of sums due under this Agreement, or where in the opinion of 104.7 Heart FM there are other grounds for questioning the soundness of the Purchaser’s credit, 104.7 Heart FM shall have the right, in its absolute discretion, to change the requirements as to the terms of payment for further broadcasting under this Agreement.
4. OBLIGATIONS OF THE PURCHASER
(a) The Purchaser shall provide 104.7 Heart FM with the script, recording or instructions concerning the content of commercial advertisements, in writing, at least Three (3) business days prior to the broadcast of said commercial messages. In case of failure to do so, 104.7 Heart FM may, at its discretion, broadcast other Advertisements for the Purchaser to the best of the knowledge of its agents or employees (the “Substitute Ads”). The Purchaser releases 104.7 Heart FM of any claim arising from the broadcast of the Substitute Ads. Should any additional work be required from 104.7 Heart FM, due to these circumstances, the Purchaser shall be charged for such work in accordance with the rates established by 104.7 Heart FM.
(b) Each advertisement must be in keeping with Advertising Standards Canada’s guidelines, failing which, 104.7 Heart FM will not broadcast the advertisement and the Purchaser shall be liable for full payment thereof.
(c) The Purchaser shall ensure that the scripts, recordings or instructions submitted to 104.7 Heart FM are in accordance with commercial and trade ethics, applicable codes and laws or by?laws in force at the time of broadcast and with the Advertising Standards Canada’s approval. The Purchaser guarantees that all scripts and recordings submitted to 104.7 Heart FM shall be in accordance with the foregoing and undertakes to defend, indemnify and save harmless 104.7 Heart FM, its parent, related and affiliated companies, its officers, directors, shareholders, agents, servants and employees, for any amount of damages, expenses, fines or claims of any nature which 104.7 Heart FM could be legally or otherwise exposed to following the execution of its obligations under this Agreement.
(d) Notwithstanding the preceding and without prejudice to the guarantee hereinabove provided by the Purchaser, the latter acknowledges that said scripts or recording or commercial copy work shall be subject to the final approval of 104.7 Heart FM. 104.7 Heart FM shall have the right to modify, in whole or in part, at its sole discretion, said scripts or recordings or commercial copy work and the Purchaser releases 104.7 Heart FM, its parent, related and affiliated companies, its officers, directors, shareholders, agents, servants and employees, of any claim arising from such changes.
(e) The Purchaser shall pay to 104.7 Heart FM any tax imposed with respect to the services.
5. BROADCAST DISRUPTION/PREEMPTION/SUBSTITUTION
(a) 104.7 Heart FM shall not be liable for any damages, losses, costs or expense of any kind suffered by the Purchaser arising from the omission to broadcast or the substitution, interruption or postponement of any commercial advertisements or services if due to any of the following events:
(i) Act of God, technical problems, a public emergency or necessity, legal restrictions, power failure, strike, adverse weather conditions or any other circumstances resulting not from doings of 104.7 Heart FM, its employees or third parties, or at the direction of federal, provincial or municipal authorities, the direction or regulation of the Canadian Radio & television and Telecommunications Commission ("CRTC"), or for any other reason including labour disputes, mechanical conditions, or as the result of a contractual agreement with a network or a federal, provincial or municipal election or referendum; or
(ii) In any case where, at the discretion of 104.7 Heart FM a modification to commercial copy work or the broadcast schedule of said commercial advertisements is required in the public interest or by public order; or
(iii) A modification to commercial copy work or the broadcast schedule of said commercial advertisements is required in order to comply with any law, by?law or directives issued by any governmental or public authorities;
(b) Upon the mutual agreement of the parties, a later make good broadcast of the omitted broadcast may be performed by 104.7 Heart FM. Such make good broadcast shall be airtime of equivalent value to the interrupted, substituted or postponed commercial message.
6. SUBSTITUTION OF PROGRAMS OF PUBLIC SIGNIFICANCE
Notwithstanding anything to the contrary herein, 104.7 Heart FM shall have the right, in its absolute discretion, to cancel or preempt any broadcast or portion thereof covered by this Agreement in order to broadcast any program which, in the opinion of 104.7 Heart FM, is considered to be of public significance or in the public interest. Such pre?empted time will be reallocated to the Purchaser at a future mutually agreeable time, failing which Purchaser will not be charged for such air?time. In such cases, 104.7 Heart FM shall notify the Purchaser in advance where reasonably possible, otherwise 104.7 Heart FM shall notify the Purchaser within One (1) business day following the cancellation/pre?emption.
7. MATERIAL PROVISION AND SHIPMENT
(a) Purchaser shall send 104.7 Heart FM any and all broadcast material, including instructions, at least Three (3) business days prior to broadcast time, not including Saturdays, Sundays and holidays. If such material and broadcast instructions do not arrive at 104.7 Heart FM Seventy-Two (72) hours prior to broadcast the Station may invoice the Purchaser for time contracted and Purchaser shall promptly pay the same. At 104.7 Heart FM’s discretion, 104.7 Heart FM may exert reasonable efforts to obtain and broadcast material from the Purchaser.
(b) All material for broadcast supplied by the Purchaser is subject to 104.7 Heart FM’s prior written approval and 104.7 Heart FM is expressly authorized to reject such material, in its absolute discretion and may require Purchaser to furnish substitute material satisfactory to 104.7 Heart FM. Unless the Purchaser furnishes satisfactory material Seventy-Two (72) hours prior to broadcast time, or notifies 104.7 Heart FM that such material will be available Seventy-Two (72) hours prior to broadcast time, 104.7 Heart FM shall have the right to supply substitute material, or in the case of announcements, to broadcast non?commercial material. In each case, 104.7 Heart FM may charge, in its absolute discretion, the Purchaser for contracted time.
(c) All material for broadcast supplied by Purchaser shall be in accordance with the appropriate broadcast advertising and product codes.
(d) Unless otherwise noted on face hereof, all program material including talent and commercial announcements shall be furnished by the Purchaser, and all expenses connected with delivery thereof to 104.7 Heart FM and further shipment from 104.7 Heart FM, if directed by the Purchaser, shall be at the Purchaser's sole expense.
(a) The Purchaser agrees to defend, indemnify and save harmless 104.7 Heart FM, its parent, related and affiliated companies, its officers, directors, shareholders, agents, servants and employees, against all or any claims, damages, liabilities, costs and expenses of any nature whatsoever whether accrued, absolute, contingent or otherwise, including without limitation legal fees and costs for defamation or trade practice, illegal competition, infringement of trade?marks, trade names or program titles, violation of rights of privacy, infringements of copyrights and proprietary titles, failure to
secure synchronization rights, and all other claims and demands liabilities and costs resulting from the broadcast of any material furnished by, or for, the Purchaser.
(b) 104.7 Heart FM shall indemnify and save harmless the Purchaser against all such liability described in sub paragraph (a) above on material furnished solely by the Station, and in the case of material furnished by Purchaser or musical compositions performed in non?dramatic form, the restricted right for performance of which is licensed for broadcasting by a music licensing corporation, of which 104.7 Heart FM is a licensee.
(c) The Purchaser shall obtain clearance in accordance with the Food and Drug Act, the Advertising Standards Council, and regulations of the CRTC and all applicable regulatory bodies (“Regulations”) for all commercials required to obtain clearance. The Purchaser shall furnish 104.7 Heart FM with the applicable registration number, at least seventy?two (72) hours prior to broadcast, of all commercials coming within the jurisdiction of the Regulations. The Agency and the Advertiser shall jointly and severally defend, indemnify and save harmless 104.7 Heart FM, its parent, related and affiliated companies, its officers, directors, shareholders, agents, servants and employees, from any prosecution due to non?conformity with the Regulations, or in connection with the furnishing of the registration.
(d) At the time the Purchaser supplies traffic instructions for broadcast time, the Purchaser shall also supply 104.7 Heart FM with dates of talent cycles for each commercial. If subsequent use payments are required by any union or performer involved in the supply of commercial announcements covered by this Agreement, other than as a result of the negligence, error or oversight of 104.7 Heart FM, the Purchaser accepts full responsibility for all expenses incurred in connection with negotiations involved, or payments required, or both, and further agree to defend, indemnify and save 104.7 Heart FM, its parent, related and affiliated companies, its officers, directors, shareholders, agents, servants and employees, harmless against any or all liability resulting from such demands.
(e) If, as a result of the negligence, error or oversight of 104.7 Heart FM, any subsequent use payments are required by any union or performer as aforesaid, 104.7 Heart FM will accept responsibility for expenses incurred in connection with negotiations involved or payments required and 104.7 Heart FM further agrees to indemnify and save the Purchaser harmless against any or all liability resulting from such demands. Failure on the part of the Purchaser to supply dates of talent cycle shall absolve 104.7 Heart FM, its parent, related and affiliated companies, its officers, directors, shareholders, agents, servants and employees, of all liability resulting from incorrect play.
(a) This Agreement is subject to all terms of licenses held by all parties hereto, and to all federal, provincial and municipal laws; regulations of the CRTC and to all other applicable laws or regulations of any branch of government or industry regulatory bodies authorized to exercise jurisdiction relative to licensees of broadcasting transmitting undertakings in force now or in future.
(b) Subject as aforesaid, this Agreement, together with any rights under it, may not be assigned or transferred without the prior written consent of 104.7 Heart FM; nor may 104.7 Heart FM be required to broadcast here under for any advertising other than that named on the face of this Agreement. Failure of 104.7 Heart FM or the Purchaser to enforce any of the provisions herein with respect to the breach thereof shall not be construed as a general relinquishment or waiver as to that provision.
(c) 104.7 Heart FM shall exercise normal precautions but assumes no liability for loss of, or damage to, program material or other property furnished by the Purchaser. 104.7 Heart FM shall not accept or process mail, correspondence, or telephone calls in connection with broadcasts without prior approval. Such approval shall be at the sole risk of the Purchaser and subject to reimbursement by the Purchaser for all expenses incurred.
(d) Unless otherwise stated herein, all notices provided hereunder shall be in writing and shall be given either by courier, mail, facsimile or by delivering same, addressed to 104.7 Heart FM, the Agency or the Advertiser, at the addresses contained on the face of the Agreement. Any such notice if mailed shall be deemed to have been received upon the expiration of forty?eight (48) hours after the same was posted, and if faxed or delivered, shall be deemed to have been received on the day on which it was faxed or delivered.
(e) Unless Purchaser provides Station with an objection, in writing, within Five (5) business days of receipt of agreement confirmation from Station, Purchaser shall be deemed to have accepted these terms and conditions.
(f) In the event of a conflict between these broadcast conditions and any provisions on the face of this Agreement, the provisions on the face of this Agreement shall prevail.
(g) If any covenant or provision herein is determined to be void or unenforceable, in whole or in part, it shall be severable from, and shall not be deemed to affect or impair the validity of, any other covenant or provision.
(h) This Agreement contains the entire agreement between the parties relating to the subject matter herein contained, and no changes or modifications of any of its terms or provisions shall be effective unless made in writing, signed by those parties and incorporated into this Agreement.