// Terms and conditions for the provision of digital media campaigns

IT IS AGREED THAT:

 

  1. SCOPE AND DURATION

 

1.1. These Terms and Conditions are valid from the date on which they are accepted by Publisher (the “Initial Term”) and shall continue in effect until terminated by Agency giving to Publisher at least 30 days’ written notice to expire on or after the expiry of the Initial Term.

1.2. In these Terms and Conditions the term “Publisher” shall, mean either (a) the legal entity which indicates its acceptance of these Terms and Conditions pursuant to sub clauses 1.3(a) & (c), or (b) the legal entity identified as publisher in an insertion order (“IO“) pursuant to sub clause 1.3(b). “Affiliates” shall mean in respect of a party that party’s holding company and all subsidiaries of such holding company, as such expressions are defined in section 1159 of the Companies Act 2006.

1.3. Acceptance of these Terms and Conditions shall be made upon the earliest of: (a) where the publisher indicates acceptance, including by clicking “accept”, in response to an e-mail from the Agency giving publisher notice of these Terms and Conditions; or (b) where publisher indicates its approval of an IO pursuant to clause 2.7; or (c) any other clear indication of acceptance of these Terms and Conditions by publisher.

1.4. Any of the entities detailed in Schedule 2 (the agency) may purchase digital media space from Publisher for the delivery of digital media campaigns to Agency’s or its Affiliates’ advertiser clients (“Advertisers”), by submitting an insertion order to Publisher pursuant to clause 2 of these Terms and Conditions.

1.5. The Agency which submits IO(s) to Publisher forms an agreement with Publisher (an “Agreement“) which comprises these Terms and Conditions together with any IOs submitted by that Agency to Publisher pursuant to clause 2, constituting one binding Agreement.

1.6. The Agency shall be liable only in respect of IOs which it has submitted. The liability of an Agency for its obligations and liabilities under an Agreement extends only to any loss or damage arising out of its own breaches of that Agreement, and under no circumstances shall any Agency assume any liability for or on behalf of any other Agency.

 

  1. INSERTION ORDERS (IOs)

 

2.1. The Agency may submit IOs to Publisher under which Publisher will deliver advertisements provided by the Agency (“Ad(s)”) to Publisher’s site(s) (the “Site(s)”) for the benefit of an Advertiser. The IO will be binding only if accepted as provided in clause 2.7 below.

2.2. Nothing in these Terms and Conditions shall oblige any Agency to submit any IOs to Publisher, nor shall any Agency be committed to purchasing any digital media space from Publisher pursuant to an Agreement until an IO is agreed between the parties in respect of such goods or services. Hereafter in these Terms and Conditions, references to “Agency” refer to an Agency which has submitted an IO to Publisher pursuant to this clause 2.

2.3. Each IO shall  specify: (a) the type(s) and amount(s) of inventory to be delivered (e.g., impressions, clicks or other desired actions) (the “Deliverables”); (b) the price(s) for such Deliverables; (c) the size and format (e.g. skyscraper, medium rectangle) of the Ad(s); (d) the maximum amount of money to be spent pursuant to the IO (if applicable); (e) the Site(s) (or range/category of Site(s)) on which the Ad(s) will be placed, and (f) the start and end dates of the campaign line items (“Flight”).

2.4. An IO may also include other items such as: reporting requirements such as impressions, specific tracking or other performance criteria; any special Ad delivery scheduling and/or Ad placement requirements; and specifications concerning ownership of data collected.

2.5. Publisher will notify Agency within 1 business day of receipt of an IO signed by Agency if the specified inventory is not available.

2.6. Modifications to the originally submitted IO will not be binding unless agreed in writing by both parties. Revisions to accepted IOs by Publisher must be made via a web-based tool such as email or an online buying and booking tool, and acknowledged by Agency in order to be binding.

2.7. Acceptance of an IO (including these Terms and Conditions) will be made upon the earliest of: (a) written approval (including paper, fax, or e-mail communication) of the IO by Publisher; or (b) the display of the first Ad impression by Publisher or (c) where the IO is submitted via an electronic booking tool, receipt by Agency of an electronic receipt confirming approval of the IO by Publisher, unless otherwise agreed upon in the IO. Unless otherwise confirmed in writing by Agency, an IO will become void unless such acceptance has taken place by the earlier of: (i) the start date of the campaign stated in the IO (earliest line item start date); or (ii) any cut-off date for approval from Publisher which is stated in the IO.

 

  1. SPECIFICATION AND CREATIVES

 

3.1. Publisher will provide to Agency, within 2 business days of acceptance of an IO, final technical specifications, as agreed upon by the parties (“Specifications”). If Publisher subsequently amends the Specifications, Agency may at its option suspend delivery of the affected Ad and either: (a) send revised Creatives (as defined in clause 3.2 below); or (b) accept a comparable replacement; or (c) if the parties are unable to negotiate an alternate or comparable replacement in good faith within 5 business days, immediately cancel the remainder of the IO for the affected Ad without penalty.

3.2. Agency will use commercially reasonable efforts to provide all creatives, artwork, copy, Tags (as defined in clause 5.2) and/or active URLs (collectively “Creatives”) to the agreed Specifications at least 2 business days prior to the launch of the campaign.

3.3. If Creatives provided by Agency are damaged, not to the agreed Specifications, or otherwise unacceptable, Publisher will notify Agency within 24 hours of its receipt of such Creatives.

3.4. Publisher will not edit or modify the submitted Creatives in any way, including, but without limitation, resizing the Creatives and/or modifying Creatives in breach of clause 5.2.3, without Agency approval. Publisher shall use all such Creatives in strict compliance with these Terms and Conditions and any written instructions provided by Agency.

3.5. Publisher will provide Agency at least 10 business days’ prior notification of any material changes to the Site that would significantly affect the size or placement of the Ad specified in the affected IO. In the event of such a change, Agency may immediately cancel the remainder of the IO without penalty.

 

  1. AD PLACEMENT AND POSITIONING

 

4.1. Publisher will deliver the Ad(s) in accordance with the terms of the IO and the agreed Specification. Without prejudice to the generality of the foregoing, Publisher shall ensure that:

 

4.1.1. Ad delivery complies with any editorial adjacencies guidelines (and any other restrictions) stated on the IO;

4.1.2. The Site(s) (or range/category of Site(s)) on which the Ad(s) will be placed comply with the Site Requirements set out at Schedule 1;

4.1.3. Ads will be placed where agreed and comply with exclusivity agreements, sizing and positioning requirements, and Ads shall only be placed on the Site(s) that are set forth in the IO and not on any substitute Site(s);

4.1.4. If an Ad employs Rich Media functionality (as defined by the IAB), Publisher complies with expansion instructions as detailed in the IO (e.g. a skyscraper unit that expands to the right must be placed on the left side of the page);

4.1.5. No Ad is placed or attempted to be placed adjacent to: (a) editorial which is critical or derogatory of the relevant Advertiser or its products or services; or (b) editorial containing and/or relating to violence, sex, profanity, racism, sexism, religion, gambling, pornography, abortion, or any other highly explosive subject matter; provided, however, that sexual content shall not be in violation of this subsection where provided in an educational and/or informational context;

4.1.6. Publisher shall not display or permit the display on any page where the Ads or other deliverables placed hereunder appear or otherwise in any manner associate the Advertiser or any content provided hereunder with any web site, person or entity (or content related thereto) that is in the business of copying, distributing, or publishing, or facilitating or enabling the copying, distribution or publication of material without authorisation from the applicable copyright holders, including but not limited to peer-to-peer sharing sites and sites containing pirated content. Without limiting the generality of the foregoing, in no event may the Ads or other deliverables hereunder be displayed or otherwise associated with any web sites flagged by the agency black list listed here: https://agenda21digital.com/brand-safety-and-fraud-policy/

4.1.7. When Advertiser banners are purchased specific to keyword placements, Publisher will not place or attempt to place such banners in a manner that would allow the reader to “infer” an Advertiser association (i.e., one click away) with any of the unacceptable content outlined in clause 4.1.5;

4.1.8. Unless otherwise agreed in an IO, impressions (and other Deliverables, to the extent commercially reasonable) must be evenly disbursed across the flight, no front- or back-loading;

4.1.9. No Ads shall be placed so as to appear to be associated with or be positioned on monitored or open chat rooms or bulletin boards or other areas containing user generated content (e.g., anywhere the general public can post personal comments, opinions, etc.). Such Ad positioning is permitted if so specified in the IO.

 

4.2. Agency reserves the right to use third party products (e.g. Adloox) to protect its Advertiser(s) by blocking an Ad from running in breach of clause 4.1.2, 4.1.5 or 4.1.6 and Publisher shall: (a) provide Agency at the point of impression with the referring URL (of the page where the Ad is shown) or make the referring URL available for Agency to extract itself (at Agency’s discretion); and (b) pay all Agency’s associated costs of using such third party products to block any Ad(s) running in breach of clause 4.1.5 or 4.1.6 (without prejudice to clause 4.3.1). Publisher agrees that Agency’s decision (using such third party products) to block an Ad due to inappropriate page content shall be final.

4.3. In the event of a breach by Publisher of clause 4.1 or clause 4.2 above, Agency shall, without limiting any other available remedies, be entitled to the following remedies:

 

4.3.1. Ads that run in breach of clause 4.1 and Ads which are blocked from running by Agency pursuant to clause 4.2 shall be non-billable; and

4.3.2. After Agency notifies Publisher that specific Ads are in breach of clauses 4.1 or 4.2, Publisher will use all reasonable efforts to correct such breach as soon as possible, and in any event Publisher shall ensure that such breach is corrected within a maximum of 3 hours of notification by Agency. Without prejudice to Agency’s other rights and remedies, in the event that such breach has occurred in more than 10,000 impressions in any 24-hour period, 10% of the entire value of the then-active IO between Publisher and Agency shall be non-billable.

 

4.4. The IO will state the start and end date per campaign line item. These dates must be complied with as many campaigns are time sensitive (i.e. time is of the essence in an IO). All exceptions (including bonus impressions or other bonus Deliverables delivered after the campaign end date) must be expressly approved by the Agency media contact. On the start date of the campaign, banners, Tags (as defined in clause 5 below) must be posted at the start of the calendar day GMT. Unless otherwise instructed by Agency or Advertiser in writing, on the end date of the campaign, banners, Tags must be pulled at the end of the calendar day GMT.

 

  1. TAGS AND DATA COLLECTION

 

5.1. Unless otherwise expressly agreed in an IO, Agency will not collect any personal data or personally identifiable information from Publisher’s Sites, and Publisher will at no point send or make available any personal data or personally identifiable information to Agency (including, without limitation, in referring URLs).

5.2. Publisher’s Sites must accept rich media tags and other ad serving tags and similar technologies (including scripts designed to be inserted into the HTML code of video inventory, mobile optimised inventory or mobile application inventory, 1×1 pixels, clear gifs including those for Ad Verification for Publisher served placements and, collectively, “Tags“) and Publisher hereby agrees to accept and fully implement such Tags and Publisher will implement any necessary technical modifications to the Publisher’s Sites to ensure the Tag operates as intended, to ensure that the referring URL can be accessed and to ensure that the Tag is compatible with the Publisher’s Sites. Agency and Advertiser shall have no liability for the effect of Tags on the Sites.

 

5.2.1. Publisher also specifically acknowledges that cookies may be set on users’ machines or device while that user is on the Publisher’s Sites in connection with the Tags. Such cookies and/or mobile device ids including but not limited to Android ID or Apple IDFA ID will be used to track which Ad has been seen, interacted with or clicked on, and which Site or mobile application the Ad was seen, interacted with or clicked on (“Interaction Data”). For the avoidance of doubt, Interaction Data includes a subset of information about the nature of the media bought with regards to any demographic or behavioural targeting filters applied (“Enhanced Interaction Data”).

5.2.2. Tags may also collect the referring URL or mobile application ID onto which the Tag is served. Referring URLs may be used to verify the appropriateness of Site or mobile application content using third party products pursuant to clause 4.2 and to enable Agency to classify the genre and content type of that page or mobile application (“Site Content Data“). Agency will typically use a third party technology partner to provide this classifications service and Publisher agrees to facilitate the collection of the referring URLs or mobile application ID in accordance with clause 5.2.

5.2.3. Site Content Data and Interaction Data collected may be used by Agency and/or its Affiliates for: (1) campaign reporting and attribution analysis and (2) excluding Enhanced Interaction Data, profiling of user interests. For the avoidance of doubt, Agency shall not target a user based on a single visit to a Publisher’s Site or mobile application as the sole criteria for Agency’s delivery of a particular Ad to that user.

 

5.3. All forms of modification, de-compilation, reverse engineering, disassembling, alteration or change to the Tags are expressly forbidden unless explicitly authorised in writing by Agency. For the avoidance of doubt and pursuant to clause 5.4.2 this includes any changes that would interrupt the proper functioning of any privacy notification overlays and associated click through destination URLs. Publisher agrees that it will not manipulate, alter, change, “piggyback” on, gather data from, or otherwise use the Tags in any way unless expressly authorised to do so in writing by Agency. For the avoidance of doubt, and without prejudice to clause 11.2, Publisher may not gather or use data relating to a user’s interaction with a Tag for any purpose other than: (a) use in an aggregated form in the performance of the specific campaign to which the IO relates; and/or (b) use for aggregated campaign reporting. Publisher may not gather or use such data for the creation of user profiles nor for the use in generation of any inferred or “look-a-like” profiles unless expressly authorised by Agency. Unless otherwise instructed by Agency or Advertiser in writing, this shall not otherwise affect Publisher’s ability to analyse and use information relating to the users of its Site(s) in aggregate for the purposes of optimisation). All Tags must be removed on the end date of a campaign in accordance with clause 4.4.

5.4. Agency and/or its Affiliates will store any Interaction Data and Site Content Data (collectively “Data”) that has been collected in databases in the EU or (to the extent permitted by UK data protection law) in the USA.

 

5.4.1. It is Publisher’s responsibility to ensure that its Site(s), including mobile optimised sites and mobile applications, contain an adequate privacy policy and disclosures in order to comply with all applicable laws (including, without limitation, the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208), as such legislation may be replaced, amended and updated from time to time), regulation and regulatory guidelines at all times and the Publisher shall ensure that all users of the Publisher’s Sites and mobile optimised sites are aware of and have control over and consent to the placement of third party cookies and have been provided with clear and comprehensive information in relation to their purpose. Publisher should seek its own legal advice as to how to comply with applicable legal requirements. Failure by Publisher to continue to post a privacy policy or non-adherence to its own privacy policy is grounds for immediate cancellation of the IO by Agency. These terms will be changed to adhere to the GDPR which will come into force in May 2018.

5.4.2. Publisher is not expected to provide the information and control pursuant to clauses 5.4.1 in relation to the cookies dropped as a result of coding present in the Creative as provided by Agency, but this does not affect Publisher’s general duty to comply with applicable legal requirements around the use of third party cookies on its Site(s). Furthermore, in accordance with clause 5.1, Publisher will not interfere with the Creative in any way including but not limited to ways in which Agency’s provision of cookie dropping information and control is affected.

 

5.4.3. Publisher warrants that it has obtained all necessary consents and permissions from its users to allow Data to be collected and used by Agency and/or its Affiliates and/or its partners as specified in this clause and Publisher agrees to indemnify and hold harmless Agency and its Affiliates against any liability resulting from a claim by a third party in relation to the use of such Data.

 

  1. CANCELLATION AND TERMINATION

 

6.1. At any time prior to the serving of the first impression of the IO, Agency may cancel the IO with 48 hours’ prior written notice, without penalty. For clarity and by way of example, if Agency cancels the IO 24 hours prior to the serving of the first impression, Agency will only be responsible for the first 24 hours of the IO.

6.2. Upon the serving of the first impression of the IO, Agency may cancel the IO for any reason, without penalty, by providing Publisher written notice of cancellation which will be effective 48 hours after providing Publisher with such written notice.

6.3. Agency shall also have the right to terminate any IO immediately at any time upon written notice in the event of under-delivery of 20% or greater (as determined by comparing the Deliverables actually provided to Deliverables expected at a given point in the campaign, assuming even distribution of Deliverables throughout the campaign).

6.4. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within 2 business days after written notice thereof from the non-breaching party, except as otherwise stated in these Terms and Conditions with regard to specific breaches.

6.5. Notwithstanding any other provision herein to the contrary, Publisher agrees that based upon the acts or omissions of any particular Advertiser, Publisher shall not (except as it relates specifically to such Advertiser) terminate, suspend or take any other action against Agency or suspend or take any other action that affects other Advertisers under any IO.

 

  1. REPORTING AND RECONCILIATION

 

7.1. Publisher must, within 24 hours of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery. If requested by Agency, Publisher shall provide screenshots of the live campaign within 48 hours of Agency’s request.

 

7.2. Publisher will track delivery of Ads through its ad server and Agency will also track delivery through its own ad server. Agency and Publisher agree to give reasonable reciprocal access to relevant and non-proprietary statistics and supporting data from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other.

 

7.3. By the second business day of each calendar month, Publisher shall provide to Agency its Ad delivery statistics for all campaigns due for billing in respect of the preceding month. Agency and Publisher shall also use their reasonable endeavours to provide interim Ad delivery statistics to the other party upon request.

 

7.4. Each month, the Ad delivery statistics figures received from Publisher shall be reconciled against Agency’s own figures, and if Publisher’s ad server measurements are higher than those produced by Agency’s ad server by more than 10% over the invoice period, Agency and Publisher will work together in good faith to investigate and resolve such discrepancy. Both parties will provide reasonable technical resources and log files to help resolve the discrepancy. If the discrepancy cannot be resolved within 5 business days following the end of the relevant month, Agency reserves the right to pay Publisher based on Agency’s ad server reported data (but in no event shall Agency pay for Deliverables over-delivered beyond the quantity agreed in an IO). In the event of a discrepancy of less than 10% between Agency’s and Publisher’s ad server measurements, Agency’s ad server measurements shall take precedence.

 

  1. UNDER-DELIVERY AND OVER-DELIVERY

 

8.1. Publisher shall monitor delivery of the Ads, and shall notify Agency either electronically or in writing as soon as possible (and in any event, no later than 2 weeks before IO end date unless the length of the campaign is less than 2 weeks) if Publisher believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with these Terms and Conditions.

8.2. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Publisher will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the contract IO for which it was charged. In the event that Agency or Advertiser has made a cash prepayment to Publisher, specifically for the campaign IO for which under-delivery applies, then if Agency and/or Advertiser is reasonably current on all amounts owed to Publisher under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event shall Publisher provide a makegood or extend any Ad beyond the period set forth in the IO without prior written consent of Agency.

 

 

8.3. Agency shall not in any event pay for any over-delivery of Deliverables beyond the quantity agreed in an IO. Furthermore, Publisher shall be held responsible for any ad-serving charges incurred as a result of any “bonus” or over-delivery of Deliverables exceeding 10% of the quantity agreed in an IO, unless Agency has given its prior written consent to such over-delivery. Furthermore, if an IO sets out an agreed “flight path” i.e. permitted variance of impression delivery during each week of an Ad campaign, then Publisher shall adhere to such flight path and Agency shall not in any event pay for any over-delivery outside such flight path in any given week. On occasions where delivered impressions exceed this agreed flight path, Publishers shall also be held responsible for any ad-serving charges associated with such over-delivery and will be charged an over-delivery fee at a rate of £0.24 CPM for standard ad-serving and £0.90 CPM for rich media ad-serving.

 

  1. PAYMENT

 

9.1. Following reconciliation of ad server measurements and the calculation of the amount payable in accordance with clauses 7 and 8 above, Publisher shall raise its invoices, and address as specified in Schedule 2.

9.2. Invoices must include: “D” reference number (located within flighting details on IO), IO number, Client / Advertiser, Month of Activity, Gross cost, agreed discount, the registered company name of the Publisher, website and any number or other identifiable reference stated as required for invoicing on the IO, and any other information reasonably requested in the IO. All invoices pursuant to the IO must be received within 180 days of delivery of all Deliverables. If Agency does not receive a properly documented invoice from Publisher within such 180 day period, Publisher shall lose the right to issue an invoice (and to receive payment) for delivery of the relevant Ads.

9.3. Publisher should invoice Agency for the services provided on a calendar month basis with the net cost based on actual delivery or based on prorated distribution of delivery over the term of the IO, as specified in the applicable IO.

9.4. Agency will make payment 60 days from receipt of invoice, or as otherwise stated in a payment schedule set forth in the IO, provided always that Agency shall not be obliged to remit payment for any invoice until the reconciliation process in clause 7.4 has been completed in respect of the subject matter of such invoice.

 

  1. FORCE MAJEURE

 

10.1. Neither party will be liable for delay or default in the performance of its obligations under an Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes and acts of God (“Force Majeure Event”). In the event that Publisher suffers such a Force Majeure Event, Publisher shall make reasonable efforts within 5 business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Publisher shall allow Agency a pro rata reduction in the space, time and/or charges agreed in the IO. In addition, Agency shall have the benefit of the same discounts that would have been earned had there been no default or delay.

 

10.2. To the extent that a Force Majeure Event has continued for 5 business days, the party not subject to the Force Majeure Event may cancel the remainder of the IO without penalty.

 

  1. CONFIDENTIALITY AND PRIVACY

 

11.1. Any information marked as confidential or which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed “Confidential Information” of the disclosing party. As between Agency and Publisher, all Interaction Data is the Confidential Information of Agency. Without prejudice to clause 5.2.3, any data that Publisher collects about users of Ads is also the Confidential Information of Agency and Publisher may only use such data for the benefit of Agency or its Advertiser or in an aggregated and anonymised format. Subject only to clause 11.2 below, Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations at least as onerous as those set out in this clause 11. Neither party will use any portion of the other party’s Confidential Information for any purpose other than those provided for under an Agreement.

11.2. The provisions of clause 11.1 shall not apply to the whole or any part of any Confidential Information that can be shown by the receiving party to be: (a) disclosed as a requirement of law; (b) known to the receiving party prior to the date of acceptance of these Terms and Conditions otherwise than as a result of being obtained directly or indirectly from the party disclosing such Confidential Information; (c) obtained from a third party who lawfully possessed such Confidential Information and which has not been obtained in a breach of a duty of confidence owed to the disclosing party by any reason; or (d) in the public domain in the form in which it is possessed by the disclosing party other than as a result of a breach of a duty of confidence owed to the disclosing party by any person.

11.3. Publisher and Agency will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of an Agreement without the other’s prior written approval.

11.4. All personal data and personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of an Advertiser (e.g. details collected through an interactive Ad) pursuant to Advertiser’s posted privacy policy is the property of Advertiser, is subject to Advertiser’s posted privacy policy, and is considered Confidential Information. Any other use of such information must be set forth in the IO signed by both parties.

 

  1. INDEMNITY AND LIMITATION OF LIABILITY

 

12.1. Publisher agrees to defend, indemnify and hold harmless each Agency, its Affiliates and its officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable legal fees) incurred as a result of a third party claim relating to or arising out of Publisher’s breach of clauses 5 or 11, or Publisher’s display or delivery of any Ad in breach of these Terms and Conditions or the terms of an IO.

12.2. Except for liability arising under clause 12.1 or any other liability which cannot by law be limited, in no event will either party or its Affiliates be liable for any indirect or consequential losses whatsoever (including, without limitation, for loss of profits or revenue, business interruption and/or loss of data) incurred by the other party arising out of or in connection with an Agreement, even if such party has been advised of the possibility of such loss.

 

  1. MISCELLANEOUS

 

13.1. Publisher represents and warrants that:

 

13.1.1. it has obtained and will maintain all necessary permits, licences, and clearances to sell the inventory represented in the IO subject to these Terms and Conditions;

13.1.2. it has the full right, power and authority to enter into each Agreement;

13.1.3. the execution of each Agreement and performance of its obligations thereunder does not and will not violate any other agreement to which it is a party.

 

13.2. Publisher shall not use affiliate web sites or other third parties to perform hereunder without the prior consent of Agency. In the event that Agency approves Publisher’s use of an affiliate or third party, Publisher shall contract with such entity as principal (not as an agent) and shall be fully liable for its performance and for all payments to such entity. Agency and Advertiser shall under no circumstances have any liability to such third parties.

13.3. It is acknowledged and agreed that Agency may purchase digital media space under the provisions of an Agreement for the delivery of digital campaigns for the benefit of its Advertisers, and that Agency shall not be liable in any manner for any acts, omissions or liabilities of any Advertiser (or its employees or subcontractors). The capacity in which Agency sells media space to its Advertisers is as principal at law.

13.4. Subject to clause 13.3, neither Agency nor Publisher may resell, assign or transfer any of its rights or obligations under an Agreement without the prior written consent of the other party, save that Agency may by written notice to Publisher assign its rights and obligations under an Agreement to: (i) any of its associated companies (as defined in section 450 and 451 of the Corporation Tax Act 2010); or (ii) to any company purchasing the whole or part of Agency’s business. All terms and provisions of an Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.

13.5. Agency and Publisher will comply at all times with all applicable laws, regulations and codes which are relevant to the performance of their respective obligations.

 

13.6. Each Agreement constitutes the entire agreement of its parties with respect to its subject matter and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document. In the event of any inconsistency between an IO and these Terms and Conditions, the terms of the IO shall prevail over these Terms and Conditions only if the IO expressly states that it is the parties’ agreed intention to amend specific terms of these Terms and Conditions.

13.7. No modification of these Terms and Conditions shall be binding unless in writing and signed by both parties. These Terms and Conditions shall prevail over any terms, provisions or conditions of any Publisher purchase order, acknowledgment, click-through agreement or other business form that Publisher may use (“Publisher Terms“), and no Publisher Terms will apply to or vary the terms of an Agreement.

13.8. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.

13.9. Clauses 5.5, 9.3 (to the extent that payment remains outstanding), 11, 12, and 13 shall survive termination or expiry of an Agreement and Clause 7 shall survive for 30 days after the termination or expiry of an Agreement. In addition, upon termination or expiry of an Agreement, each party shall promptly return or destroy the other party’s Confidential Information and remove Creatives and Tags.

13.10. Each Agreement shall be governed by and construed in accordance with the laws of England and Wales. Publisher and Agency (on behalf of itself and not Advertiser) agree that the courts of England and Wales shall have exclusive jurisdiction over any claims, legal proceeding or litigation (including of a non-contractual nature) arising in connection with an Agreement. These Terms and Conditions are primarily intended for use with Publishers based in the UK. To the extent that mandatory laws of other territories may be applicable to an Agreement, it is not intended that these Terms and Conditions will supersede such mandatory laws.

 

 

SCHEDULE 1: SITE REQUIREMENTS

 

  1. Publisher either owns or reasonably believes that it is entitled to use the content displayed on the Site(s).
  2. Publisher does not knowingly include in the Site(s) any “virus” or other destructive programming or device that could impair or injure any data, computer system or software.
  3. Publisher does not knowingly include in the Site(s) any fraudulent traffic and takes reasonable steps to identify and mitigate against ad fraud
  4. The content of the Site(s) does not to Publisher’s knowledge violate any applicable laws or regulations, including without limitation those relating to advertising, gambling, competitions and consumer protection.
  5. The content of the Site(s) does not to Publisher’s knowledge violate the rights of any person or entity, including without limitation any intellectual property or other proprietary right, any right of privacy, or by being defamatory.
  6. Publisher does not knowingly promote or facilitate on the Site(s) any activities that are illegal under applicable law or that infringe the rights of any person or entity, including without limitation the pirating of copyright works, or hacking or other unauthorised access to or modification of devices.
  7. Publisher shall operate a “notice and takedown” policy that complies with applicable law (currently, for Publishers situated in the UK, the Electronic Commerce (EC Directive) Regulations 2002) in respect of unlawful activity or information on the Site of which the Publisher gains knowledge or awareness.
  8. Publisher complies with the latest version of the DTSG Good Practice Principles. The latest version of the DTSG Principles is online at http://www.jicwebs.org/digital-trading-standards-group-good-practice-principles/good-practice-principles
  9. The Site(s) do not utilise: (i) Flash local shared objects (including but not limited to “flash cookies”), (ii) any JavaScript or similar technologies used to ascertain the web browsing history of a Site user (“User“), (iii) any technologies that foster “respawning” of cookies (including but not limited to HTML5 local storage, browser cache and/or so-called “zombie cookies” and/or “super cookies”) or otherwise circumvent User privacy/data collection preferences (e.g., “fingerprinting”), or (iv) any tracking or data collection technologies that do not provide Users with an opportunity to control the use of such technologies.

 

SCHEDULE 2: THE AGENCY

 

 

 

agenda21 Digital Limited

53 Frith Street

London

W1D 4SN

 

Invoices to be sent to –

Media Payables, FAO Taylor McKenzie

 

Email – [email protected]