Advertising Terms & Conditions

These Terms and Conditions (the “Terms”) apply to the “Advertiser” and the Trend Entity (hereinafter referred to as “Trend” which reference shall include its affiliates) specified in the applicable Insertion Order Form (the “Order), together referred to as the “Parties” and each individually as a “Party”.

If you do not agree to, or accept, any of these Terms, you should not sign the Order.

THE PARTIES AGREE:

1. Basis of Contract
   • The Order constitutes an offer by the Advertiser and such offer shall only be deemed to be accepted when the Order is signed by duly authorized representatives of both Parties, at which point, and on which date (the “Commencement Date”), a contract, comprised of these Terms, shall come into existence.
   • Any samples, drawings, descriptive matter marketing or advertising documentation issued by Trend, and any descriptions or illustrations contained in Trend’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them and shall not have any contractual force.
   • These Terms exclude any other terms that the Advertiser seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
   • Any quotation given by Trend shall not constitute an offer and is only valid for a period of twenty [20] business days from its date of issue.

2. Term and Termination
   • These Terms shall become effective on the Commencement Date and shall continue for the Term stipulated in the Order.
   • If the Order stipulates that a Term shall be automatically renewed, the Term shall continue for the Term stipulated in the Order and shall continue after that, until one party gives the other party a minimum of thirty (30) days written notice to terminate after the expiry date of that Term.
   • Without affecting any other right or remedy available to it, a Party may terminate the contract with immediate effect by giving written notice if a Party commits a material breach of any of these Terms, which breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of thirty [30] days after being notified in writing to do so.
   • The Advertiser may terminate the contract, for convenience, at any time by giving at least ten (10) days’ notice in writing to Trend and making payment in full for the Services rendered up to the termination date as well as any cancellation fee that may be indicated on the Order.
   • A cancellation fee may be charged or waived at Trend’s sole discretion. Where a cancellation fee is to be charged, the Advertiser shall pay a maximum of 15% of the total charges stipulated in the invoice (the “Charges”) regardless of the date of the termination.
   • Upon termination of the contract the Advertiser shall: (i) stop using the relevant services; (ii) return, or make available for collection, any equipment owned by Trend in accordance with Trend’s reasonable instructions; and (iii) pay any outstanding Charges prorated to reflect Services received from the Commencement Date to the date of termination and any applicable cancellation fee due to Trend.

3. Trend’s Obligations
   • In accordance with these Terms, Trend shall provide the Advertiser with advertising services (“Services”), the details of which are outlined in the Order.
   • Trend shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
   • Trend reserves the right to amend the Order, if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Trend shall notify the Advertiser, in writing, in any such event.

4. Advertiser’s obligations
   • The Advertiser shall:
     • ensure that the terms of the Order are complete and accurate;
     • co-operate with Trend in all matters relating to the Services;
     • provide Trend, its employees, agents, consultants, and subcontractors, with access to the Advertiser’s premises, office accommodation and other facilities as reasonably required by Trend;
     • provide Trend with such information and materials as Trend may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
     • obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start;
     • comply with all applicable governing laws, including health and safety laws; and
     • keep all materials, equipment, documents and other property of Trend (“Trend Materials”) at the Advertiser’s premises in safe custody at its own risk, maintain Trend Materials in good condition until returned to Trend, and not dispose of or use Trend Materials other than in accordance with Trend’s written instructions or authorization.
   • If Trend’s performance of any of its obligations under these Terms is prevented or delayed by any act or omission by the Advertiser or failure by the Advertiser to perform any relevant obligation (“Advertiser Default”):
     • without limiting or affecting any other right or remedy available to it, Trend shall have the right to suspend performance of the Services until the Advertiser remedies the Advertiser Default, and to rely on the Advertiser Default to relieve it from the performance of any of its obligations in each case to the extent the Advertiser Default prevents or delays Trend’s performance of any of its obligations;
     • Trend shall not be liable for any costs or losses sustained or incurred by the Advertiser arising directly or indirectly from Trend’s failure or delay to perform any of its obligations as set out in this clause; and
     • the Advertiser shall reimburse Trend on written demand for any costs or losses sustained or incurred by Trend arising directly or indirectly from the Advertiser Default.

5. Charges and Payment
   • Trend shall issue an invoice to the Advertiser (or, where relevant, make available such invoice for download).
   • The invoice may be issued monthly, once for the entire Term or in such other manner as agreed in writing by the Parties.
   • The Advertiser shall pay the Charges, by cheque, bank deposit or wire transfer, on a non-refundable, prepaid or cash-on-delivery (“COD”) basis, as specified.
   • Notwithstanding clause 5.3, Trend may allow, at its sole discretion, an Advertiser to receive the Services and pay the charges within thirty (30) days of the date on the invoice or such other period as agreed between the Parties.
   • The Advertiser may raise a dispute regarding an invoice or any part of it (”Invoice Dispute”), only by: (i) notifying Trend within 21 days of invoice date; (ii) including details of why it disputes the invoice and how much it believes is payable; and (iii) paying all undisputed amounts when due. The Advertiser may only dispute amounts with reasonable cause and in good faith. Following resolution of an invoice dispute, Trend shall promptly issue a credit or Advertiser shall promptly make payment as appropriate.
   • Where the Advertiser does not pay the Charges by the due date, and has not raised a dispute in accordance with these Terms, Trend is entitled, until paid in full, to: (i) charge interest on the unpaid amount at the rate of 1% per annum above LIBOR base rate; (ii) withhold any sums currently owing to the Advertiser by Trend by way of credit note or rebate and offset such sums against the sums owing; (iii) suspend the Services in accordance with section 8; and pursue the outstanding balance by way of an external debt collection agency or civil claim in the applicable court of law in the Jurisdiction.
   • The pricing is based on information provided by the Advertiser and the assumption that the Advertiser will comply with its obligations. If the information is incorrect or Advertiser causes Trend increased costs by not complying with its obligations, then Trend is entitled to: (i) relief from its obligations for an appropriate period; and (ii) recover its increased costs from the Advertiser.
   • The Charges shall be exclusive of any applicable VAT and all duties, levies or any similar charges which shall be paid by the Advertiser. If VAT is chargeable in respect of any amount payable hereunder, the Advertiser shall, upon receipt of an appropriate tax invoice, pay to Trend the VAT chargeable in respect of that payment. Advertiser agrees to provide its VAT registration number and such other further information as Trend may reasonably request in relation to any supply hereunder. VAT means value added tax or any analogous tax in any relevant jurisdiction including but not limited to use, sales, and local sales taxes of any kind.
   • The Charges shall be paid without withholding or deduction unless prohibited by any applicable law. If withholding tax is payable by the Advertiser, the Advertiser will, at the same time as making the payment, pay to Trend such additional amount as will result in the receipt by Trend of the full amount which would otherwise have been receivable had no withholding or deduction been payable and will supply to Trend evidence satisfactory to Trend that the Advertiser has accounted to the relevant authority for the sum withheld or deducted. In the event that the Advertiser is obliged by applicable law to deduct withholding tax from any Charges, the Advertiser shall assist Trend in making necessary filings in order to ensure the provisions of the relevant tax treaty apply to the payment.

6. Intellectual Property Rights
   • Digicel and Advertiser each retain ownership of their own intellectual property rights.
   • Advertiser grants Trend a royalty free license to use, reproduce, modify, adapt, transmit, publish and distribute the creative and any intellectual property: (a) for the purposes of providing the Services; and (b) for the purposes of marketing, promoting or advertising Trend and its affiliates and their products and services.
   • Advertiser grants Trend a royalty free license to use, reproduce, transmit, publish and distribute Advertiser’s name, and any trade name, business name, trade mark or service mark owned or used by Advertiser for the purposes of marketing, promoting or advertising Trend and its affiliates and their products and services.
   • Advertiser shall obtain, at its own costs, all clearances, consents and provisions (including from any relevant authorities, collecting societies and other relevant third parties) that are required in connection with its exploitation, and Trend’s distribution of any content included in the Services, and shall pay any applicable fees and royalties to any third parties and relevant collection societies in accordance with their rules.

7. Warranties and Limitation of Liability
   • Each Party warrants that it has full power and authority to enter into the contract and to perform its obligations in accordance with these Terms.
   • Unless expressly agreed in writing, all warranties, representations, and conditions which are implied by statute or otherwise are expressly excluded to the extent permitted by applicable law.
   • The Advertiser agrees to defend, indemnify and hold harmless, Trend, from and against all claims, liabilities, suits, losses, damages and expenses, including costs and reasonable attorney’s fees, relating to or resulting from (a) the Advertiser’s breach of or failure to perform under these Terms; (b) any violation of applicable law by the Advertiser; (c) any matter regarding a violation by the Advertiser related to taxes or fees; or (d) any claims that the Advertiser’s work violates any rights of any third party.
   • Neither Party is liable under the contract (whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) for: (i) any loss (whether direct or indirect) of profit, revenue, anticipated savings or goodwill; (ii) any loss of or corruption to data; or (iii) any indirect or consequential losses, regardless of whether they were contemplated by either of the Parties when the contract was entered into or when the relevant order was placed under it. The Advertiser retains responsibility for compliance with the regulatory regime in which it operates, and Trend is not liable for any regulatory fines or penalties imposed on or third-party claims made against the Advertiser in this respect. Trend retains responsibility for compliance with the regulatory regime in which it operates, and the Advertiser is not liable for any regulatory fines or penalties imposed on, or third-party claims made against, Trend in this respect. Neither Party excludes any liability which cannot be excluded by applicable Law.
   • Trend shall not be liable to Advertiser, clients of the Advertiser, or to any third party (whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) for any indirect, incidental, special, or consequential, exemplary or punitive loss or damage (including but not limited to, damages for lost profits, lost revenues, loss of goodwill, loss of data, loss of anticipated savings, loss of customers, interference with business or cost of purchasing replacement services) arising out of the performance or failure to perform in accordance with these Terms or the provision of services, whether or not caused by the acts or omissions or negligence of Advertiser’s employees or agents, regardless of the foreseeability thereof and regardless of whether such party has been informed of the possibility or likelihood of such damages.
   • Except in the event that the Advertiser breaches clause 6.4, Trend represents and warrants that the Services performed by Trend will not infringe or constitute a misappropriation of any right of any third party, including any copyrights, patent rights, trademark rights, trade secret rights or confidentiality rights.
   • TREND MAKES NO WARRANTY, EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, TO THE ADVERTISER AS TO QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY OF THE SERVICES PROVIDED, OR AS TO ANY OTHER MATTER, OR THAT THE SERVICES OR DISPLAY OF ANY ADVERTISMENT WILL RESULT IN ANY INCREASE IN PROFITS OR REVENUE, OR BE FREE FROM ERROR OR OMISSION. SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED TO THE FULLEST EXTENT PERMITED BY APPLICABLE LAW.
   • A Party’s aggregate liability under or in connection with the contract (whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) during each consecutive 12 month period starting on the Commencement Date (Liability Period) shall not exceed the amount of the Charges paid or payable in respect of that Liability Period. Where the Charges have been paid or payable for less than 12 months in any Liability Period, a Party’s liability shall not exceed the average monthly charge paid or payable for that Liability Period multiplied by 12. This liability cap shall not apply to non-payment of Charges.
8. Suspension of services
   • Trend may suspend the Services (keeping the suspension to a minimum): (i) in order to comply with applicable law (including in relation to sanctions and export control); and (ii) during maintenance, modification, repair and testing of its network where necessary to safeguard the functionality, security and integrity of its network.
   • In addition, Trend may suspend the Services:
     • where the Advertiser uses Services in violation of the conditions of use set out in the Agreement;
     • on 14 days’ notice of failure to pay amounts due, which the Advertiser fails to rectify;
     • on 30 days’ notice where there is any other material breach of these Terms which is capable of rectification and which the Advertiser fails to rectify; and
     • where there is any other material breach of these Terms which is not capable of rectification.

9. Changing the Terms
   • Changes in writing: Any amendment to these Terms must be in writing and signed by the Parties.
   • Changes required by applicable law: Trend may vary the contract (including changing or introducing new charges or changing or withdrawing services) where required to comply with applicable Law. Trend shall provide Advertiser notice of such change as is reasonably practicable.

10. Assignment
    • Assignment: Neither Party may assign or otherwise transfer any of its rights and obligations under these Terms without the prior written consent of the other Party which shall not be unreasonably withheld or delayed. However, Trend may assign, or otherwise transfer any of its rights under these Terms to any of its affiliates without the consent of the Advertiser.
    • Sub-contract: Trend may sub-contract any of its obligations under these Terms but shall be responsible to the Advertiser for the acts or omissions of its sub-contractors.

11. General provisions
    • Survival of clauses: Any of these Terms which expressly, or by implication, is intended to come into or continue in force on or after termination of the contract (in whole or part) will continue in force.
    • Notices: All notices shall be sent to the Parties’ respective registered office as set out in the Order by pre-paid recorded delivery or prepaid courier.
    • Inclusive wording: Any phrases introduced by the terms “including”, “include”, “in particular” or any similar expression are deemed to have the words “without limitation” following them and are construed as illustrative and do not limit the sense of the words preceding those terms.
    • Performance at own cost: All the Advertiser’s obligations shall be fulfilled at the cost of the Advertiser unless otherwise expressly stated.
    • Force Majeure: If a Force Majeure event occurs which prevents either Trend or the Advertiser from performing any of its obligations under these Terms, the affected Party is not liable to the other and will be released from its affected obligations for the period of the Force Majeure event.
    • Illegality: Any provision of these Terms found to be illegal or unenforceable does not form part of the contract, but the remaining provisions will continue in full force and effect.
    • Entire Agreement: Except for fraudulent misrepresentation, the contract represents the entire agreement between the Parties relating to its subject matter and supersedes any previous agreements between the Parties relating to the same. The Parties acknowledge that, in entering into the contract, neither Party has relied upon any statement or warranty made, or agreed to, by any person, except those expressly provided for by these Terms.
    • Third party rights: The contract is made only for the benefit of the Parties thereto and is not enforceable by any other person under law or otherwise.
    • Governing law: The contract is governed by, and construed in accordance with the laws of the country of incorporation of the Trend Entity.
    • Jurisdiction: The Parties irrevocably submit to the exclusive jurisdiction of the courts of the country of incorporation of the Trend Entity. This does not prevent either Party from making an application to any court of competent jurisdiction to obtain an interim remedy (including any injunction) at law or in equity in relation to the dispute.