The Cash With Order Agreement

The following is an extract from the Agreement form to be completed by prospective advertisers. Copies of the Agreement are available, free of charge, from the Administration Executive at Clearcast.

(i) The Obligations of Clearcast
Clearcast will, upon being satisfied to the best of its ability that the facilities of the Advertiser will service the response generated by his advertising and that adequate financial protection and stock are in place, give approval for the Advertiser to advertise on the services provided by the Broadcasters, subject to further approval of the content and presentation of such advertising by Clearcast, in accordance with the requirements of the Code. Such approval may be withdrawn by Clearcast at its discretion and does not commit a Broadcaster to accept to broadcast the Advertiser's commercials, or to continue to do so.

(ii) The Obligations of the Advertiser
(a) The Advertiser agrees to meet the requirements of the BCAP Code, rule 11.2.
(b) The Advertiser agrees to complete and submit a separate form for each product to be advertised or each campaign to be mounted. All information given must be true and complete in all respects to the best of his knowledge and not misleading in any material particular. In the event of material inaccuracy/omission and/or failure to meet the obligations detailed below, Clearcast may withdraw its approval of the Advertiser which may lead to cessation of advertising on the Broadcasters' services.
(c) The Advertiser will forthwith notify Clearcast, in writing, of any material change in any of the information referred to in this Agreement or any matter to which that matter relates, or of any matter or thing which may affect his ability to meet the obligations of this Agreement.
(d) The Advertiser will arrange, at his cost, financial safeguards to protect respondents. Proof that such safeguards have been established by the Advertiser must be attached for consideration by Clearcast and the Broadcasters. The preferred options for such financial safeguards are:
i) a cash deposit lodged with Clearcast to provide satisfactory cover and arranged by the Advertiser. The amount and duration of cover will be determined by discussion between the Advertiser, the relevant Broadcasters and Clearcast having regard to the anticipated volume of sales to be generated by the campaign;
ii) an on demand bank guarantee from the Advertiser's bankers in favour of Clearcast to the account of the respondents concerned. Such a bank guarantee shall be in a form and given by a major UK clearing bank acceptable to Clearcast. The amount for this guarantee will be determined by discussion between the Advertiser, the Broadcasters and Clearcast regarding the anticipated volume of sales to be generated by the campaign.
(e) The Advertiser will arrange. and be responsible for the handling and fulfilment of all CWO orders in accordance with the Code and the Advertiser's obligations detailed below, and report fully to Clearcast on these arrangements before any approval is given and from time to time as required by Clearcast. The efficiency of these arrangements will then be assessed by Clearcast. The Advertiser will attach details of these arrangements, listing the name, address, telephone number and a contact name for any other companies or organisations such as fulfilment houses that will be involved. The Advertiser must state whether these companies are associated in any way with his company.
If these are deemed to be unsatisfactory and the Advertiser has difficulty in making acceptable arrangements, Clearcast may circulate a list of alternative companies upon request. Use of a company from this list shall not imply prior approval by Clearcast of that company.
These arrangements will include procedures for prompt settlement of complaints from respondents. The Advertiser is responsible for ensuring that any other companies involved with fulfilment meet his obligations under this Agreement.
(f) The Advertiser acknowledges the right of Clearcast to inspect, at random intervals, the fulfilment facilities and stock levels at any time during office hours.
(g) The Advertiser, and any companies or organisations involved with his advertising, response handling and fulfilment are required to produce written information each week, and/or on demand, on the levels of response, stock and delivery times and any complaints for Clearcast. This information will be treated confidentially, but may be supplied to the relevant Broadcaster, the ITC should these parties request Clearcast to provide it.
(h) The Advertiser will hold sufficient stock to fulfil or delay, in full, any payment forwarded by respondents (including charges for postage and packing) upon request made within the period of 3 calendar months after the latest stated delivery date by the respondent or Clearcast.
Certain exceptions may be made with prior written consent from Clearcast.
(i) The Advertiser will meet all orders within the delivery time stated in the advertisement. If the Advertiser is unable to fulfil orders within the stated delivery time, he will be required to inform any respondents immediately of an anticipated delivery time, and to offer to pay a full refund upon request. Prior written consent from Clearcast is required if the proposed delivery time will exceed 28 days.
(j) The goods sent to the respondent will not include any promotional or other material that has not received approval in writing from Clearcast.
(k) The Advertiser will ensure that his advertising, response handling and any records held of respondents will comply with the requirements of the Data Protection Act 1984. Any subsequent usage of such records should be referred to Clearcast for prior written consent and the Advertiser will be required to arrange for data to be scanned against the Mailing Preference Service List.
(l) The Advertiser must arrange for a responsible person at his given address to be available during normal business hours to deal with any enquiries from the public. This includes demonstration and display of the product advertised.
(m) The Advertiser should allow a minimum of ten working days before any decision on approval by Clearcast is made. This allows Clearcast to ensure that the required visits and checks are complete. Such checks may include a visit, at Clearcast's entire discretion, to the relevant response handling and fulfilment facilities.
(n) The Advertiser undertakes to indemnify Clearcast and the Broadcasters against any and all claims and liabilities incurred by any third party regarding rights for the product advertised. Such rights may include, but are not limited to, rights to sell the product, rights to advertise the product, use of name and damage to any third party that may be caused by the product.
(o) The Advertiser will take out and maintain effective public liability insurance with a reputable insurer. The policy is to be made available to Clearcast on request.
(p) The Advertiser will arrange for a sample of the product to be supplied on request to the main office of each Broadcaster, where it must remain until all advertising for that product has finished.

(iii) Failure to Perform
If the Advertiser fails for whatever reason to make any refund requested within 14 days of being requested to do so by Clearcast or the respondent, then Clearcast may, at its sole discretion and without prejudice to any other right or remedy available to it, make demand under any deposit or guarantee arranged by the Advertiser hereunder of the aggregate of amounts equivalent to:
(a) such refund requested; and
(b) its costs incurred in verifying such claim or claims.

On receipt of such aggregate amount, Clearcast shall pay therefrom directly to the relevant respondent the amount of such refund and shall be entitled to retain the amount equivalent to its costs in discharge thereof.

(iv) Confidentiality
Neither party will disclose to any third party details of this Agreement without the prior written consent of the other.

Clearcast is allowed to disclose such details to the relevant Broadcasters and the ASA.

(v) Partnership or Employment
This Agreement will not be deemed to create any partnership or employment relationship between the parties.

(vi) Termination of Agreement
(a) This Agreement may be terminated by either party giving one month's written notice to the other party.
(b) In addition to any other notification and remedies at law, the Agreement may be terminated by a party giving written notice to the other party which has breached this Agreement or has defaulted on any of the following:

- non-fulfilment of orders by the Advertiser to the respondents which has not been rectified within 30 days following notice by Clearcast. In the event of the Agreement being terminated through such conditions, Clearcast will be able to call upon the arrangements of the Advertiser required under section (ii)(d) of
this Agreement. Either party has committed a breach of its obligations under this Agreement, unless such party rectifies the position within 30 days. In the event of the Agreement being terminated through such conditions, Clearcast will be able to call upon the arrangements of the Advertiser required under section (ii)(d) of this Agreement;

- where either party goes into voluntary or involuntary liquidation. In the event of the Agreement being terminated through such conditions, Clearcast will be able to call upon the arrangements of the Advertiser required under section (ii) (d) of this Agreement;

- where a receiver is appointed over the whole or part of either party's business. In the event of the Agreement being terminated through such conditions, Clearcast will be able to call upon the arrangements of the Advertiser required under section (ii) (d) of this Agreement.

(c) This Agreement may be terminated or amended without the consent of the Advertiser if Clearcast is required to do so through the regulatory intervention. In the event of this Agreement not being performed by either party for a continuous period of not less than six months, the other party may terminate the Agreement by sending a notice in writing to the defaulting party.

(vii) Notices
Any notice served under this Agreement shall be in writing. Any notice which has been sent by first class pre-paid post shall be deemed to be received three working days thereafter (excluding Saturdays, Sundays and Public Holidays).

(viii) Non Assignability
Neither party shall assign, transfer, charge or make over this Agreement or any of its rights or obligations without the prior written consent of the other party.

(ix) Governing Law
This Agreement shall be subject to the laws of England.