GENERAL TERMS AND CONDITIONS OF SALE METROBUS/MEDIAGARE/MEDIARAIL 2017

Transcription

1 GENERAL TERMS AND CONDITIONS OF SALE METROBUS/MEDIAGARE/MEDIARAIL 2017 Definitions "Advertiser" means the advertiser, an individual or legal entity, who carries out an advertising campaign on a Support commercialised by the Advertising Sales Agency, and places an advertising order for this purpose in the conditions laid down in Article 2. It may be represented by a representative in accordance with the provisions of Law n of January 29, "Advertising space owner" means the owner of the space whose advertising exploitation is entrusted to the Advertising Sales Agency by means of a contract called "the Agreement". "Advertising Sales Agency" means the seller of the advertising space. "Loop" means a sequence of advertisements on a digital billboard, the maximum number and duration of which are defined by the Advertising Sales Agency. "Network" means a set of individual advertising facets which meet the criteria of geographical coverage, audience, quality, location and presentation. Each Network may evolve according to the number of individual advertising facets available and display restrictions, whether laid down by the law or imposed by the Advertising space owner on certain Support. "Support" means the support on which the advert will be displayed or broadcast. Article 1 Purpose These general conditions of sale define the terms of sale of Networks by the Advertising Sales Agency to the Advertiser. Any subscription of an advertising order, and more generally any advertising campaign order placed with the Advertising Sales Agency by or fax, implies full acceptance of the tariffs and these general conditions of sale. The contract between the Advertiser and the Advertising Sales Agency, forming inseparable and indivisible whole, is composed of the advertising order in which these general conditions of sale appear, any special conditions and the rates, and technical data sheets on the Support chosen by the Advertiser. Any provision of the advertising order and/or of the special terms and conditions which contradict these general terms and conditions of sale shall prevail over these general terms and conditions of sale. In the event of contradiction between these general terms and conditions of sale and the Advertiser's general terms and conditions of purchase, these terms and conditions shall prevail, notwithstanding any contrary clause, which the Advertiser expressly acknowledges and accepts. Article 2 - Taking orders The Advertising Sales Agency establishes the advertising order in view of the information contained in the Advertiser's order, subject to availability of Networks, and sends it by or post for signature. Unless with the express prior consent of the Advertising Sales Agency, one advertising order is established per brand or film title to promote. METROBUS / MEDIAGARE / MEDIARAIL Page 1 sur 9

2 The contract takes effect when the advertising order is returned signed by the Advertiser, by or post, without modification or alteration, no later than eight (8) days of receipt. If the advertising order is not sent back within this period, the Advertising Sales Agency reserves the possibility to resell the Networks. It also takes effect if the Advertiser has not sent back the advertising order signed by him or his agent but the Advertising Sales Agency has executed the order. In this case, the Advertiser may under no circumstances avail itself of the non-return of the signed advertising order to challenge the performance of the contract, the payment and/or enforceability of these general conditions of sale towards him. When the advertising order is signed by an agent, it is accompanied by a certificate from the principal specifying, in particular, that the rates and these general conditions of sale have been brought to the Advertiser's knowledge and that he declares to accept them without reservation. The Advertiser is in any event bound, in accordance with the rules governing the mandate and in particular with Article 1998 of the Civil Code, to execute the engagements made in his name by his representative. These provisions are stipulated in favour of the Advertising Sales Agency and the Advertiser may not rely on the absence of notification of a certificate of mandate by his representative to claim that the contract subscribed by his representative in his name is unenforceable towards him. The contract is concluded for the period shown in the advertising order. Article 3 - Competitive products Advertisements and/or trademarks of competitive or similar products and/or services may appear on the neighbouring or side-by-side facets or Supports or on the same Support. However, the Advertising Sales Agency will endeavour to separate them. Also, the Advertising Sales Agency may be required to disseminate the advertisements of several competitor advertisers in a single Loop. Article 4 - Advertiser's obligations - Guarantees 4.1 The Advertiser undertakes to submit to the Advertising Sales Agency for validation the model of the advertisement which complies with the technical characteristics indicated in the technical data sheets of the Advertising Sales Agency, no later than five (5) weeks before the date scheduled for the start of the campaign. This period is reduced to two (2) weeks for campaigns on digital billboards, with the exception of requests for validation of at least twenty (20) models of files that must be sent to the Advertising Sales Agency no later than four (4) weeks before the start of the campaign. The Advertiser ensures the legality of the advertisements and compliance with public order and moral standards and guarantees the Advertising Sales Agency against any recourse or claim relating to compliance with the legislations and regulations in force. Within this framework, the Advertising Sales Agency reserves the right to refuse or request the modification of the model until acceptance, without the exercise of this right giving rise to the termination of the contract or any compensation whatsoever. METROBUS / MEDIAGARE / MEDIARAIL Page 2 sur 9

3 Within the framework of a request for modification, the Advertiser undertakes to make the modification and to return a new model which complies with the Advertising Sales Agency's requests without delay. The Advertising Sales Agency also reserves the faculty, further to notice from the ARPP (the French advertising regulation authority), to refuse to execute a display and/or a dissemination without its refusal resulting in the termination of the contract or any compensation whatsoever. 4.2 The Advertiser guarantees that he holds all intellectual and industrial property rights and personality rights allowing the dissemination of the advertisements, without limitation of duration, number of representations and reproductions and guarantees the Advertising Sales Agency against any claim in this respect and any sentence which may be pronounced against it, in relation (i) to the implementation and execution of the campaign, and/or (ii) to the reproduction/representation by the Advertising Sales Agency of all or part of the campaign which is the subject matter of the contract, except in case of the prior, express written refusal of the Advertiser, for the needs of its operation and in all its promotional documents disseminated in France or abroad, in any form and on any support whatsoever. 4.3 Any shooting (taking pictures or videos) by the Advertiser, of any campaign displayed/ broadcasted/organised on the Advertising Sales Agency's Networks, is prohibited without the prior written authorisation of the Advertising space owner concerned. 4.4 In the event of a judicial decision affecting the campaign or an advertisement, the Advertising Sales Agency reserves the right to interrupt, without delay, its display or its dissemination, without the Advertiser having any claim to any compensation whatsoever in this respect; any fees for recovery of the Supports or modification of the Loop will be borne by the Advertiser, which he expressly acknowledges and accepts. 4.5 The Advertiser expressly authorises the Advertising Sales Agency to transmit to any organisation, for statistical purposes, information on the display services performed (name of Advertiser, object of the advertising message, Network, starting date, duration of the campaign, gross price before tax of the Network before application of discounts). Article 5 - Provision of material The Advertiser undertakes to provide the Advertising Sales Agency with all the material necessary to execute the campaign, which complies with the requirements indicated in the technical data sheet transmitted by the Advertising Sales Agency s concerning the format, the print quality, the weight of the paper, the number, and the technical characteristics of materials, along with instructions concerning the laying/broadcast of the advertisement, no later than three (3) weeks before the scheduled starting date for the advertising campaign on digital billboards. The cost of manufacturing and shipping the material is borne by the Advertiser. Absences, delays and errors in the delivery of the material as well as the provision of material which does not comply with the characteristics appearing in the technical data sheet or which is insufficient, are not enforceable towards the Advertising Sales Agency and may not give rise to any modification of the contract with respect to both the price and the period of the campaign. When the delay in delivery gives rise to additional costs for the Advertising Sales Agency, the total amount of these costs, whatever their nature, is charged to the Advertiser. METROBUS / MEDIAGARE / MEDIARAIL Page 3 sur 9

4 Under no circumstances is the Advertising Sales Agency bound to return the material provided by the Advertiser, even in the event of the cancellation of the campaign. The Advertiser undertakes to insure the material and to waive any recourse against the Advertising Sales Agency in the event of the theft, loss or total or partial destruction thereof. It also waives, along with its insurers, any recourse against the Advertising Sales Agency and its Advertising space owners, so that their liability may never be incurred in the event of an accident suffered by any person whatsoever due to the material. In the event where the transparency of posters requires a background paper, the provision and affixing of this background paper will be at the charge of the Advertiser and will be invoiced in the conditions provided in Article 7 below. Article 6 - Affixing - Maintenance 6.1 The affixing, maintenance and removal of the advertisement are carried out by the Advertising Sales Agency or its subcontractors and under its responsibility. The period for affixing varies between 1 and 5 days depending on the duration of the contract and the nature of the Supports. This period is increased to 1 to 10 days for gluing operations on Supports other than overhead voussoirs. If this period is exceeded, the Advertising Sales Agency shall offer the Advertiser either an extension of the display of an equivalent period, subject to availability of the Network concerned, or compensation equal to twice the number of days not affixed, to a later date on the same Network or on an equivalent Network. 6.2 Unless otherwise specifically mentioned in the advertising order, affixing refers, according to the Supports chosen, to the affixing of a single poster per facet of the Support, the affixing of a sticker or a tarpaulin. Any addition, banner or offset band at the request of the Advertiser, in addition to the initial affixing or during the execution of the campaign, is invoiced to the Advertiser by the Advertising Sales Agency, according to the rates provided in Article 7 below. Any specific layout is subject to an estimate established according to the Support, the period for implementation and the difficulty of the work. 6.3 The Advertising Sales Agency maintains the advertisement in good condition throughout the duration of the campaign within the limit of the material available except in the case of a fortuitous or force majeure event which presents characteristics describe in Article 1218 of the Civil Code. For advertisements on digital billboards, the Advertising Sales Agency maintains the advertisement in good condition throughout the duration of the campaign except in the case of a fortuitous event (in particular a power cut, data network outage) or force majeure event which presents characteristics describe in Article 1218 of the Civil Code. METROBUS / MEDIAGARE / MEDIARAIL Page 4 sur 9

5 For non-media operations, the repair period in the event of degradation varies according to the nature of the operation and the severity of the degradations. As compensation, the Advertising Sales Agency may, at its sole discretion, offer the Advertiser, either an extension of the campaign for a period equal to the period of unavailability, or the modification of the conditions of execution of the campaign by the allocation of other Supports, or a credit note, without the Advertiser having any claim for any other compensation whatsoever in this respect. In any event, if the liability of the Advertising Sales Agency is incurred, the resulting compensation may not exceed the amount of the sums paid by the Advertiser for the campaign in question, and, as the case may be, only for the Supports affected by the degradations, it being noted that the Advertiser may not claim any compensation for lack of maintenance on less than 2.5% of facets In addition, for non-media operations, the Advertising Sales Agency reserves the possibility to defer the date scheduled for the execution of the campaign in case of adverse weather conditions (in particular frost, snow, wind and heavy rains) or for a reason attributable to its Advertising space owners, with the Advertiser waiving any recourse and/or compensation related thereto and relating to any resulting consequences. Article 7 - Rates - Invoicing - Payments 7.1 The rates applicable are those in force on the day the advertising order is established. The basic rates of the Networks are listed in the tariff documents. The unit rates are available upon simple request. The prices shown in the tariff documents are indicated excluding taxes. The rates for non-digital display include, except in specific cases, the space, the first affixing and the removal of the posters, the maintenance of the posters and the possible provision of associated background paper as provided in Article 5 above. The Advertiser is informed that the number of facets displayed on a Network is estimated and may vary by more or less 5% as compared to the number of facets which appear in the advertising order and waives any claim in this respect. This difference may not in any event constitute grounds for the termination of the contract and the Advertising Sales Agency may not in any event be sought after in this regard. The taxes in force at the time of the execution of the campaign as well as any duties which may be due in relation to the dissemination of the advertisement or the advertisement itself, are borne by the Advertiser and are added to the price, excluding taxes. Regardless of what they are, they may not create grounds to terminate the contract. For the advertisements on the digital billboards, the rates are calculated on the basis of an advertisement of a fixed duration. If the advertisement has a longer duration, the Advertising Sales Agency may, at its sole discretion, either refuse its dissemination, or request its reduction at the cost of the Advertiser, or accept the dissemination, invoicing the additional seconds. For each campaign, the Advertising Sales Agency guarantees the number of logs provided in the contract. Log refers to the number of passages of the advertisement per digital billboard. METROBUS / MEDIAGARE / MEDIARAIL Page 5 sur 9

6 7.2 The services provided are subject to an invoice issued in the name of the Advertiser and addressed to the latter. Depending on the case, a duplicate is addressed to the Advertiser's representative, it being recalled that, when he is also mandated to make the payment, the Advertiser nevertheless remains liable for the payment to the Advertising Sales Agency. The payment to the Advertiser s representative does not release the Advertiser vis-à-vis the Advertising Sales Agency. However, the Advertiser s representative is jointly and severally liable for the payment of invoices. 7.3 Invoices are payable 45 days end of month from the date of the invoice. When, for reasons concerning the Advertiser's internal management, and at his request, an invoice must be re-issued for modification, the initial date on which the invoice is due for payment shall be maintained. The Advertising Sales Agency reserves the possibility, if the circumstances so require, to accompany the payment by all necessary guarantees, including to request, prior to any execution of a campaign, the prior payment, in full or partially, of the price, or to request payment in cash upon receipt of the invoice. 7.4 Any amount not paid when due, including sums due in application of the penalty clause provided below, gives rise to the invoicing of late penalties due as of the day following the payment date shown on the invoice, calculated on the basis of three times the legal interest rate in force on the day these amounts are due, as well as a flat-rate indemnity for recovery fees of 40 Euros. When the amount of these recovery fees is higher than the amount of the flat-rate indemnity, the Advertising Sales Agency reserves the right to request a justified additional indemnity. Without prejudice to its entitlement to payment of the full amount agreed increased by the penalties and flat-rate indemnity for recovery fees referred to above, any delay in payment allows the Advertising Sales Agency: a) if the contract is in progress, to - suspend the execution of future services until full payment of the amounts due, three (3) days after receipt by the Advertiser of formal notice by registered letter with acknowledgement of receipt which remains without effect, - automatically terminate the contract and withdraw the advertisement, eight (8) days after receipt by the Advertiser of formal notice by registered letter with acknowledgement of receipt which remains without effect, claiming as compensation, in addition to the amounts due, either the balance of the contract subscribed or an increase of 25% of the outstanding amount. b) if the contract has expired, to - increase the claim by 25%, eight (8) days after receipt by the Advertiser of formal notice by registered letter with acknowledgement of receipt which remains without effect. METROBUS / MEDIAGARE / MEDIARAIL Page 6 sur 9

7 All amounts due pursuant to these provisions will give rise to the invoicing of late penalties payable as of the day following the date shown on the invoice and calculated on the basis of three times the legal interest rate in force on the day these amounts are due, as well as the invoicing of a flat-rate indemnity for recovery fees of an amount of 40 Euros. The Advertising Sales Agency reserves the right to modify its rates and these general conditions at any time and without notice, as well as its commercial offer. Article 8 - Liability - Right of refusal The Advertising Sales Agency may, at any time, refuse to display/disseminate or interrupt any display/dissemination of an advertisement which is contrary to the laws and regulations in force or which may be detrimental to the image or interests of Advertising space owners or incompatible with the public service purpose assigned to the public domain or with the fundamental principles of public service, without having to justify this and without the Advertiser having any claim for any compensation whatsoever in this regard. In this case, the Advertiser may request the termination of the contract for the non-executed part of the advertising. The Advertising Sales Agency may refuse to set up a gluing operations on Supports other than voussoirs, in the event of refusal of the Advertising space owner concerned and without having to justify this. Any advertising message which presents a political or confessional nature or whose text or illustration is contrary to good morals or detrimental to public order is prohibited. Any advertising message of a trade unionist nature is prohibited in the field of train stations. Under no circumstances may the liability of the Advertising space owners be incurred by the Advertiser in relation to the contract. In the event of termination, for any reason whatsoever, of one or several concessions entrusted to the Advertising Sales Agency, he reserves the right to terminate the contract, without compensation, for the part of the campaign which cannot be executed, which the Advertiser expressly acknowledges and accepts. The liability of the Advertising Sales Agency cannot be sought under any circumstances on the grounds that the advertising campaign has not generated the commercial benefits expected by the Advertiser, even in the cases provided for in Article 10 below. Article 9 - Justification - Control The Advertising Sales Agency informs the Advertiser, by any means which comply with professional practices, of the conditions of execution of the campaign, within the month following its dissemination. The Advertising Sales Agency charges to the Advertiser on quotation all costs due to specific requests for photographic report for campaigns displayed/ broadcasted in province. For campaigns which are displayed/broadcasted in the inner-city area of Paris, the Advertising Sales Agency charges these costs to the Advertiser for any requests for photographic coverage of more than thirty (30) photographs. METROBUS / MEDIAGARE / MEDIARAIL Page 7 sur 9

8 The Advertiser undertakes not to disseminate the photographs and videos transmitted by the Advertising Sales Agency within this framework, which may only be used by the Advertiser for strictly internal purposes. Any control exercised by the Advertiser must, to be enforceable towards the Advertising Sales Agency, be carried out in the presence of an employee of the latter, appointed for this purpose, on at least 20% of the number of facets appearing in the advertising order. All the facets controlled must be identified in the control report which must be sent by registered letter with acknowledgement of receipt by the Advertiser to the Advertising Sales Agency within two (2) business days following the control. No challenge concerning the affixing, the programming or the dissemination of the advertisement, following a control performed in the conditions set forth above, may be made more than fifteen (15) days after the end of the contract in progress. Article 10 - Modifications - Cancellations In the event of the partial or total interruption of the campaign or in the event of the unavailability of all or part of the Support on the contractual starting date for the display or the broadcast of the campaign or during the execution of the campaign due to the Advertising space owners due to the Advertising space owners, or due to a technical problem, the Advertising Sales Agency undertakes to notify the Advertiser without delay and to offer it, at the Advertising Sales Agency's sole discretion, either the postponement of the campaign, or the modification of the conditions of execution of the campaign by the allocation of other Supports as compensation, without the Advertiser having any claim for any other compensation whatsoever. In any event, in the event where the Advertising Sales Agency's liability is incurred, the resulting compensation, for any reason whatsoever, may not exceed the amount of the sums paid by the Advertiser for the campaign or, as the case may be, only for the Supports affected by this interruption or unavailability. In the event of cancellation due to a fault of the Advertising Sales Agency, its liability will be capped at the amount of the sums which should have been invoiced to the Advertiser for the cancelled period, increased, as the case may be, by the value of the material provided by the Advertiser for the execution of the campaign, if it has been damaged or lost. In the event of the partial or total interruption of the campaign resulting from a force majeure event which presents characteristics describe in Article 1218 of the Civil Code (in particular demonstrations, riots, social and political unrest, an administrative or judicial decision affecting the digital billboards, a change in the laws, the total or partial destruction of the Support), the Advertiser may not claim any compensation in this regard. For advertisements on digital billboards, the Advertiser may, subject to a prior and written request addressed to the Advertising Sales Agency, request the modification of the animation or the format of the advertisement. The Advertiser then undertakes to deliver a new model for the approval of the Advertising Sales Agency in the conditions set forth in Article 4.1 above. In this case, the Advertising Sales Agency invoices additional costs to the Advertiser, the amount of which is available upon request. The Advertising Sales Agency reserves the possibility to use the spaces occupied by permanent non-digital campaigns throughout a maximum period of three (3) weeks per year, usable in one or several times, subject to information with three (3) weeks' notice, without the Advertiser having any claim for any other compensation whatsoever in this respect. METROBUS / MEDIAGARE / MEDIARAIL Page 8 sur 9

9 The contract relating to gluing operations on Supports other than voussoirs may be terminated by right, without any judicial formality and without compensation on either side in the event where the planned operation is prohibited by legislative, regulatory or administrative provisions. In the event of cancellation by the Advertiser, by registered letter with acknowledgement of receipt, the contract is terminated by right and the following compensation is charged: - if the termination takes place more than six (6) months before the contractual date for the start of the campaign, the compensation to be paid corresponds to half the price, excluding tax, of the campaign concerned; - if the termination takes place between three (3) and six (6) months before the contractual date for the start of the campaign, the compensation to be paid corresponds to two thirds of the price, excluding tax, of the campaign concerned; - if the termination takes place less than three (3) months before the contractual date for the start of the campaign, the compensation to be paid corresponds to the entire amount, excluding tax, of the campaign concerned. Article 11 - Protection of personal data The Advertising Sales Agency carries out the automated processing of personal data for the purpose of managing customers and prospects. In application of the Law on Information and Freedom of January 6, 1978 as modified, the Advertiser has a right to interrogate, access, rectify and oppose the data concerning it. This right will be exercised by the Advertiser by letter (MEDIA TRANSPORTS Service Commercial - 1 Rond-point Victor Hugo Issy-les-Moulineaux) or by (webmaster@mediatransports.com), attaching a copy of its identity document. Article 12 - Transfer of the contract The contract is concluded with the Advertiser on a strictly personal basis and he may only use it for his company, his trademark, his product or services as indicated in the advertising order. The Advertiser may not in any event transfer the benefit of the contract. Article 13 - Claims In order to be admissible, any claims concerning the billing must be made no later than twenty (20) days after the date the invoice is issued, unless when the invoicing is carried out in advance. In this last case, this period expires twenty (20) days after the end of execution of the campaign in question. Otherwise, the Advertiser is irrevocably deemed to have waived any claim, as well as any recourse against the Advertising Sales Agency. Article 14 - Attribution of Jurisdiction - Applicable law Any dispute arising in relation to the interpretation, conclusion or performance of the contract shall be brought exclusively before the Commercial Court of Paris to which the contracting parties declare to attribute jurisdiction, notwithstanding the introduction of third parties or when there are several defendants. The contract is governed by French law. METROBUS / MEDIAGARE / MEDIARAIL Page 9 sur 9