All Orders submitted to the Company shall be subject to these Terms and Conditions.
1.1 In the Order, and these Terms and Conditions, the following terms shall have the following meanings :
“the Company” means TVB.COM Limited;
“Advertiser” means the person, firm or company and/or its Ad Agency described in the Order, whose liabilities in the event that there are more than one party, shall be joint and several.
“Advertisement” means an electronic display of the Materials in the form of a banner advertisement or title sponsorship or any other form or in any manner whatsoever available on the Site;
“Fees” means any fee or charge which is payable by the Advertiser to the Company in relation to the Order accepted by the Company;
“Materials” means any content of advertising or promotional materials to be provided by the Advertiser under the Order (including without limitation any trade marks, logos or trade names);
“Order” means the Advertiser’s order for the display of Advertisement which order and any terms therein shall be subject to and governed by the provisions of these Terms and Conditions;
“Posting Date” means the first date that the Advertisement is to be posted as specified in the Order which shall commence not earlier than 7 days before the date the Order is received by the Company;
“Site” means the electronic site on the Company’s web site www.tvb.com on which the Advertisement will be displayed;
“Standard Rates” means the tables of Fees and other charges for Advertisements and other services published by the Company from time to time; and
“Term” means in relation to the Advertisement, the period of time selected by the Advertiser in the Order which is accepted by the Company for which the Advertisement is to appear from the Posting Date until the Order is terminated in accordance with its terms.
2. ACCEPTANCE AND RESERVATION
2.1 No Order shall be deemed to have been accepted by the Company until it is acknowledged expressly in writing by the Company. An accepted Order shall be governed by the Terms and Conditions contained herein and in the event that there are other terms and conditions contained in the Order, these Terms and Conditions shall prevail.
2.2 An accepted Order cannot be cancelled by the Advertiser.
2.3 The Company reserves the right at all times to :
2.3.1 reject the Materials (or any part thereof) and may not accept the Materials (or any part thereof) unless it is amended to the reasonable satisfaction of the Company or reject any accepted Order without the obligation to give any reason. The Advertiser shall remain fully liable for their obligations under the Order in full, whether or not the Materials (or any part thereof) are accepted;
2.3.2 amend or remove the Advertisement from the Site if circumstances arise which in the Company’s sole opinion makes such action advisable, appropriate or necessary;
2.3.3 suspend performance of any of its obligations in the event that the Advertiser fails to pay any Fee to the Company or is in breach of any of its obligations, warranties or representations under these Terms and Conditions or other terms in the Order; and
2.3.4 amend any of these Terms and Conditions and the Standard Rates by posting the details of such changes on the Site and/or providing written notice to the Advertiser, provided that any change will not become effective until 14 days after the date of such notice.
2.4 The Company does not warrant or guarantee that the Advertisement will be located in any particular position on the Site in any particular form or that the Advertisement is accessible at all times.
2.5 The Company’s record of the posting of the Advertisement on the Site shall be binding and conclusive.
2.6 The Advertiser shall not have any claim in any nature whatsoever against the Company for the aforesaid rejection, amendments, suspensions or non-performance and shall be liable for payment of any Fees due by the Advertiser under the Order.
3. ADVERTISER’S OBLIGATIONS
3.1 The Advertiser shall:
3.1.1 promptly pay to the Company all Fees as and when they fall due. In default of payment, the Advertiser shall be liable to pay interest on the outstanding Fees at the rate of 2% per month from the date the Fees were due until full payment;
3.1.2 fully co-operate with the Company if any modification to the Advertisement becomes reasonably necessary in the Company’s sole opinion;
3.1.3 not make any statement (whether express or implied) that the Company endorses, approves or guarantees the performance, description or quality of any goods, information or services which are provided by the Advertiser in its business or Advertisements;
3.1.4 comply with the laws, regulations and applicable advertising codes of practice of Hong Kong SAR;
3.1.5 be responsible to monitor the posting of the Advertisement and inform the Company promptly should it discover any error.
3.2 The Advertiser acknowledges that :
3.2.1 the Company has the right but not the obligation to amend or exercise any editorial control of the Materials provided by the Advertiser;
3.2.2 it may only cancel, postpone or extend an Order in accordance with these Terms and Conditions; and
3.2.3 the acceptance of the Materials by the Company shall not affect the Advertiser’s obligations, responsibilities and warranties under these Terms and Conditions and shall not diminish any of the Company’s right against the Advertiser.
4. WARRANTIES AND INDEMNITY
4.1 The Advertiser warrants that :
4.1.1 all representations and statements in the Materials are true and correct and that no advice, formula or instruction in the Materials will if followed or implemented by any person cause injury loss or damage to that or any other person;
4.1.2 none of the Materials will contain any statement which is obscene, indecent, defamatory or offensive;
4.1.3 the Materials shall comply with all laws regulations and applicable advertising codes of practice of Hong Kong SAR and shall not infringe on any third party’s copyright, trade marks, patents or any other proprietary or contractual rights; and
4.1.4 all consents and permissions required from third parties including without limitation performance rights societies for the Materials have been obtained.
4.2 The Advertiser (including the Ad Agency, where an Ad Agency is appointed under the Order) shall (each) indemnify and keep the Company indemnified against all costs, claims, damages and expenses (including without limitation, any legal costs on a full indemnity basis) directly or indirectly related to the Advertisement, the Advertiser’s (including the Ad Agency’s, where an Ad Agency is appointed under the Order) non-compliance with any Terms and Conditions herein or any breach or inaccuracy in any of the Advertiser’s (including the Ad Agency’s, where an Ad Agency is appointed under the Order) representations and warranties contained herein.
5.1 Once accepted by the Company for displaying on the Site, the Materials shall not be changed or modified by the Advertiser without the approval of the Company.
5.2 The Advertiser hereby :
5.2.1 licenses and authorises the Company, and to permit others authorised by the Company, to digitise, reproduce, make copies and adaptations of the Materials and to include and transmit the same on the Site for distribution over the Internet; and
5.2.2 warrants and undertakes that it is (and shall remain throughout the Term) entitled to grant the licences and authorisations provided for in Clause 5.2.1 above free of all liens, claims and encumbrances.
6. DISCOUNT ON FEES
6.1 The Advertiser may be entitled to a special discount on the Fees at such rate as may be determined by the Company with regard to the quantity of Advertisements committed by the Advertiser under the Order.
6.2 If special discount has been given to the Advertiser but the Advertiser fails to fulfil the quantity of advertisements committed under the Order upon termination or expiration of the Term for whatever reason, the Company shall be entitled to charge the Standard Rates on all Advertisements committed under the Order. The Advertiser shall pay the difference between the Standard Rates and the discounted rate for all Advertisements displayed on the Site and the Standard Rates for all remaining Advertisements committed under the Order within seven (7) days after the termination or expiration of the Term.
7. LIMITATIONS OF LIABILITY
7.1 To the extent permitted by law, the Company does not make any express or implied representation or warranty in relation to the operation or standard of quality of the Site. The Company makes no warranty that the Site will be uninterrupted or error free.
7.2 The Company further excludes any liability for :
7.2.1 any delay or postponement in performance of its obligations under the Order caused whether directly, indirectly, wholly or partially, by matters beyond its reasonable control.
7.2.2 any direct or indirect or any consequential loss or damage or for any loss of profit or business suffered by the Company.
7.3 Notwithstanding Clause 7.2, if the Company is found to be liable for any damage or loss, the Company’s liability in respect of each event or series of connected events in connection with the Order, shall not exceed the Fees paid by the Advertiser to the Company under the same Order.
8. TERM, TERMINATION AND CONSEQUENCES OF TERMINATION
8.1 The Order shall commence on the date that the Company acknowledges its acceptance of the Order and shall continue for the Term.
8.2 The Company may terminate the Order forthwith by giving written notice to the Advertiser if the Advertiser :
8.2.1 the Advertiser fails to make payment of the Fees when they fall due;
8.2.2 the Advertiser commits any breach of any of the provisions of these Terms and Conditions and fails to remedy the same within 7 days after receipt from the Company of a written notice giving particulars of the breach and requiring it to be remedied; or
8.2.3 ceases, threatens to cease or seems likely in the sole opinion of the Company to cease carrying on business. 8.2.4 the Order cannot continue due to any reasons beyond the reasonable control of the Company.
8.3 Upon the termination of the Order or expiration of the Term, the Company shall be entitled to remove the Advertisement from the Site.
9.1 All representations, warranties and indemnities contained in clauses 3, 4 and 5 shall survive the termination of the Order or expiration of the Term.
9.2 Each notice, demand or other communication given or made under the Order shall be in writing and delivered or sent to the relevant party at its address, facsimile number or e-mail address set out in the Order (or such other address, facsimile number or e-mail address as the addressee has by 7 days’ prior written notice specified to the other party). Any notice, demand or other communication so addressed to the relevant party shall be deemed to have been delivered (a) if given or made by letter, when actually delivered to the relevant address or 3 days after posting; (b) if given or made by facsimile, upon receipt of a printed transmission report confirming receipt and (c) if given or made by e-mail, upon receipt of a message confirming receipt.
9.3 Any notification or amendments of the Order and/or these Terms and Conditions will not be effective unless in writing and signed by the Company and any one party of the Advertiser (in the event there are more than one party).
9.4 These Terms and Conditions together with the Order set forth the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements, understandings and negotiations between the parties.
9.5 The Order and these Terms and Conditions are governed by and shall be construed in accordance with the laws of Hong Kong SAR and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong SAR courts.