Advertising Terms & Conditions
(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"), (hereinafter, the "Purchaser ") 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 and the radio station known as 104.7 Heart FM, CIHR-FM which is owned and operated by Byrnes Communications Inc (hereinafter, the "Radio Station") hereby agree to the following terms and conditions.
(a) The Purchaser agrees to pay for the services contracted for herein with the broadcast order via Credit Card, E-Transfer, EFT payment, cheque with order. If the radio station agrees the advertiser can pay on receipt of invoice, 1% will be added to the advertising contract, and that invoice must be paid within 30 days of the date of issue. Any new advertiser is required to 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 Purchaser in respect of such sums. The radio station 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 the 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 the "Radio Station" or in the case where payment is electronic the date of the bank transaction, shall be considered the date when payment was made.
(d) Advertisements will be broadcast within 15 minutes of the time outlined within the Broadcast Agreement.
The Radio station 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. The Radio station will supply certified statements of performance on request. Agency shall notify The Radio station of any discrepancies in invoicing within Twenty (20) days of receipt of invoice. The Radio station 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 The Radio station of such portion shall in no way be construed as an admission by The Radio station of the validity of the Purchaser's dispute.
(f) The Purchaser agrees that The Radio station may conduct credit inquiries on all new advertisers and also if any sums owed to The Radio station 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 The Radio station.
(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 Four (4) 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 Eight (8) weeks written notice. 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 the radio station of the radio station’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 the radio station all amounts owing for services rendered by the radio station which have been contracted for, by the Purchaser, up to and including the date of termination at the radio station’s rates for such lesser number of broadcasts. Notwithstanding such early termination, the purchaser shall also reimburse the radio station for all sums the radio station 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 the radio station 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, the radio station shall be entitled to recover as damages, and the Purchaser shall pay to the radio station 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. The radio station shall also be entitled to recover, and the Purchaser shall pay, the costs and expenses of the radio station, including reasonable legal fees, in the collection of the amounts due hereunder to the radio station.
(d) If, due to the radio station’s material breach, the Purchaser cancels this Agreement, the radio station’s inability to broadcast content covered by paragraphs 4 or 5 below shall not be considered a breach of this Agreement by the radio station.
(e) Where the Purchaser is in default in the payment of sums due under this Agreement, or where in the opinion of the radio station there are other grounds for questioning the soundness of the Purchaser’s credit, the radio station 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 the radio station with the script, recording or instructions concerning the content of commercial advertisements, in writing, at least Four (4) business days prior to the broadcast of said commercial messages. In case of failure to do so, the radio station 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 the radio station of any claim arising from the broadcast of the Substitute Ads. Should any additional work be required from the radio station, due to these circumstances, the Purchaser shall be charged for such work in accordance with the rates established by the radio station.
(b) Each advertisement must be in keeping with Advertising Standards Canada’s guidelines, failing which, the radio station 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 the radio station 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 the radio station shall be in accordance with the foregoing and undertakes to defend, indemnify and save harmless the radio station, 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 the radio station 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 the radio station. The radio station 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 the radio station, 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 the radio station any tax imposed with respect to the services.
5. BROADCAST DISRUPTION/PREEMPTION/SUBSTITUTION
(a) The radio station 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 the radio station, 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 the radio station 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 the radio station. 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, the radio station FM shall have the right, in its absolute discretion, to cancel or pre-empt any broadcast or portion thereof covered by this Agreement in order to broadcast any program which, in the opinion of the radio station 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 airtime. In such cases, the radio station shall notify the Purchaser in advance where reasonably possible, otherwise the radio station shall notify the Purchaser within One (1) business day following the cancellation/pre-emption.
7. MATERIAL PROVISION AND SHIPMENT
(a) Purchaser shall send the radio station any and all broadcast material, including instructions, at least Four (4) business days prior to broadcast time, not including Saturdays, Sundays and holidays. If such material and broadcast instructions do not arrive at the radio station Seventy-Two (72) hours prior to broadcast the Station may invoice the Purchaser for time contracted and Purchaser shall promptly pay the same. At the radio station’s discretion, the radio station may exert reasonable efforts to obtain and broadcast material from the Purchaser.
(b) All material for broadcast supplied by the Purchaser is subject to the radio station prior written approval and the radio station is expressly authorized to reject such material, in its absolute discretion and may require Purchaser to furnish substitute material satisfactory to the radio station. Unless the Purchaser furnishes satisfactory material Seventy-Two (72) hours prior to broadcast time, or notifies the radio station that such material will be available Seventy-Two (72) hours prior to broadcast time, the radio station shall have the right to supply substitute material, or in the case of announcements, to broadcast non-commercial material. In each case, the radio station 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 the radio station and further shipment from the radio station, if directed by the Purchaser, shall be at the Purchaser's sole expense.
(a) The Purchaser agrees to defend, indemnify and save harmless the radio station, 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 trademarks, 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) The radio station 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 the radio station 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 the radio station 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 the radio station, its parent, related and affiliated companies, its officers, directors, shareholders, agents, servants and employees, from any prosecution due to nonconformity 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 the radio station 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 the radio station, 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 the radio station, 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 the radio station, any subsequent use payments are required by any union or performer as aforesaid, the radio station will accept responsibility for expenses incurred in connection with negotiations involved or payments required and the radio station 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 the radio station, 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 the radio station; nor may the radio station be required to broadcast here under for any advertising other than that named on the face of this Agreement. Failure of the radio station 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) The radio station shall exercise normal precautions but assumes no liability for loss of, or damage to, program material or other property furnished by the Purchaser. The radio station 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 the radio station, 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 emailed to a valid radio station email address, faxed or delivered, shall be deemed to have been received on the day on which it was sent, faxed or delivered.
(e) Unless Purchaser provides the radio 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.