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Clear Investor Advertising Terms and Conditions
Version: 3 June 2008
Download Terms and Conditions (MS Word)
1 DEFINITIONS
1.1 In this Agreement the following words and phrases shall have the following meanings:
| Definition Term | | Definition Description |
| Advertising Impression | | The action (recordable by a website operator) by which End Users access, view or call up each page or screen contained under or within a Promotional Placement in each case when such page or screen is so accessed, viewed or called up through such Promotional Placement |
| Advertiser | | A person or company (or, in the case of an Agency, its Client) who wishes to promote their products and/or services via the Publisher’s websites |
| Advertiser Website | | The website owned and operated by the Advertiser and which is located at the URL shown in the IO or any subsequent URL which may replace it |
| Agency | | An advertising agency which may act for Advertisers from time to time in respect of securing Promotional Placements |
| Agreement | | These Terms and Conditions and the IO |
| Brand Features | | All trade marks, service marks, logos and any other IPR and/or brand features belonging to the Advertiser and which are used in conjunction with the promotion of the Advertiser’s services |
| Campaign | | Provision of the Services for the agreed period of time (as set out in the IO) |
| Campaign End Date | | The date specified in the IO |
| Campaign Start Date | | The date specified in the IO |
| Customer Data | | All information volunteered by End Users in relation to any goods and/or services offered by the Advertiser at their Website and accessed by End Users via a Promotional Placement from which the End Users of the Publisher’s websites may be identified |
| Daily Advertising Impressions Target | | The number of Advertising Impressions to be delivered, divided by the number of days the Promotional Placement is to be published; |
| End User Data | | User information collected from or generated by End Users from which End Users can be identified |
| End Users | | Any person who accesses the Publisher’s websites |
| Fee | | The sums specified in the IO |
| Insertion Order (IO) | | The document containing the principal terms of the Services to be provided by Clear Investor Limited concerning the Promotional Placements; |
| Intellectual Property Rights | | All proprietary rights, including all copyright, database rights, patents, trade marks, service marks, trade names, registered designs and design rights and other rights of a like nature, (howsoever arising and in whatever media), whether registered or not or capable of registration anywhere in the world, and all applications for the protection or registration of those rights including all renewals and extensions |
| Media Units | | The advertising formats in terms of pixels and functionality that is provided to the Advertiser to promote their products and services via the Publisher’s websites. Such advertising spaces may include but are not limited to 468x60 pixel banner, 728x90 pixel leaderboard, 300x250 pixel MPU, 120x600 skyscraper, 160x600 super skyscraper and 120x120 pixel button, 120x60 pixel button or such other advertising formats as the Publisher may introduce from time to time |
| Promotional Placements | | The advertising, promotional, sponsorship or similar placements (delivered in the form of Media Units as defined on the IO) included by the Publisher on the Publisher’s websites from which End Users may click-through to the Advertiser’s Website |
| Publisher | | Clear Investor Limited |
| Publisher’s websites | | Any websites owned and/or operated by Clear Investor Limited |
| Rich Media Formats | | Shall include (but are not limited to) the following formats; expandable banner, expandable skyscraper, overlay, expandable MPU |
| Services | | The featuring of Promotional Placements on the agreed areas of the Publisher’s websites |
| Sponsorship | | A booking made for a Promotional Placement using (but not limited to) Rich Media, Standard Ad Format(s), Advertorials, Microsites, Mastheads together with any other form of placement as may be agreed between the parties and which will be published on agreed specified date(s) only |
| Standard Ad Formats | | Include (but are not limited to) the following formats: 468x60 pixel banner, 728x90 pixel leaderboard, 300x250 pixel MPU, 120x600 skyscraper, 160x600 super skyscraper and 120x120 pixel button, 120x60 pixel button |
| Traffic Data | | Information relating to End Users from which those End Users cannot be identified |
| Undelivered Advertising Impressions | | Advertising Impressions which have not been generated through the Publisher’s websites by the Campaign End Date |
| Working Days | | Means a day (other than a Saturday or Sunday) on which banks are open for business in London |
1.2 References to Clauses in this Agreement are to clauses of this Agreement
1.3 The headings to the Clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction thereof
1.4 Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies corporate, unincorporated associations and partnerships and vice versa. References to the whole shall include the part and vice versa
1.5 In the event of any conflict between the terms set out in these terms and conditions and the provisions set out in the IO, the provisions set out in the IO shall take precedence
2 PROMOTION SERVICES
2.1 In return for payment of the Fee, Publisher agrees to include the Promotional Placements within the areas of the Publisher’s websites as specified on the IO with effect from the Campaign Start Date until either the target number of Advertising Impressions, shown on the IO (if any), have been delivered, or the Campaign End Date is reached. Advertiser acknowledges that in providing these Services, Publisher’s sole obligation is to include the Promotional Placement within the areas of the Publisher’s websites as specified within the IO
2.2 Advertiser acknowledges that no guarantee is given by Publisher as to click-through rates or sales generated from Advertising Impressions delivered via the Publisher’s websites
2.3 In providing the Services; Publisher shall be under no obligation to provide technical or design services to Advertiser. Publisher does however agree to provide (in so far as it is able) general assistance with queries based on its own experiences. In so doing, Advertiser acknowledges that Publisher shall incur no liability for any loss or damage Advertiser may suffer as a result of Advertiser acting on such information
2.4 If a booked Promotional Placement is not published at all, due to the direct fault of Publisher, Publisher will endeavour to supply an alternative publication date. If Advertiser chooses not to accept this alternative date, Advertiser’s original booking shall be deemed to be cancelled and Publisher shall refund to Advertiser the Fee already paid (if any) in respect of such cancelled Promotional Placement in which event Advertiser acknowledges and agree that this shall be Advertiser’s sole remedy and that without limitation Advertiser shall have no claim for damages, expenses or other costs against Publisher in respect of such non-publication
2.5 Advertiser agrees to:
2.5.1 Submit for Publisher’s approval all Promotional Placement related materials (together with any amendments to them). Promotional Placements that are not approved by Publisher will not be included in the Publisher Service and Advertiser acknowledges that Promotional Placements that exceed the file guidelines (as specified) will not be approved and if supplied on a re-direct will be stopped by Publisher
2.5.2 Adhere to the Clear Investor Adnetwork Advert Specifications.
2.5.3 Review and update Advertiser promotions/advertising campaign and website so that nothing contained within the Promotional Placements or Advertiser Website will adversely affect, prejudice, be detrimental to, or otherwise bring Publisher and/or the Publisher’s websites into disrepute (including but not limited to any blasphemous, defamatory or libellous statements)
2.5.4 Submit by email to Publisher at least 3 Full Working Days before the Campaign Start Date all Promotional Placements and/or related materials for inclusion within the Publisher’s websites within the following timescales;
2.5.4.1 Standard Ad Formats at least 3 Full Working Days before the Campaign Start Date
2.5.4.2 Rich Media Formats at least 5 Full Working Days before the Campaign Start Date
2.5.4.3 Sponsorship deals on such timescales to be agreed between the parties but in any event no later than 7 Full Working Days before intended publication on the Publisher’s websites
and comply with such technical requirements as may be advised to Advertiser by Publisher from time to time. Publisher shall incur no liability for the delayed inclusion of the Promotional Placements where Advertiser fail to observe the terms of this clause 2.6.3 and Advertiser should be aware that where Promotional Placements are late (i.e. not delivered in accordance with this Clause) and Advertiser is charged a Fee based on:
A) Length of Campaign only with no Advertising Impressions target, then Advertiser will remain liable for the full Fee
B) The number of Advertising Impressions to be delivered then Advertiser will remain liable for the full Fee and the following formula will be applied in order to produce a new pro-rated number of Advertising Impressions to be delivered as follows;
Daily Advertising Impressions Target x Number of days Promotional Placement is to be published (minus the Number of days Promotional Placement is late) = Number of resulting Advertising Impressions left to be delivered over the remaining Campaign period
C) Sponsorship, then Advertiser will remain liable for the full Fee notwithstanding the fact that the Campaign will not be able to be run
2.5.5 Limit creative changes to one change per month
2.6 Publisher shall have the right at any time to re-design, modify and in any other way adjust the Publisher’s websites and shall endeavour (in so far as it is reasonably able) to replace the Promotional Placements in a position which is comparatively similar to their original position before such redesign, modifications and/or adjustments were undertaken. In the event that a suitable alternative position cannot be found by Publisher in relation to Clause 2.7, Advertiser shall be entitled to terminate this Agreement forthwith and Publisher shall refund any balance of Fees paid in advance either on a pro rata basis to the period of the Campaign or the number of Advertising Impressions served prior to termination
2.7 Delivery to Publisher of the Promotional Placements does not constitute Publisher’s acceptance or approval of them or its agreement to include them in the Publisher’s websites. Publisher reserves the right but does not undertake to review the Promotional Placements. Any review of or approval by Publisher shall not be deemed to constitute an acceptance by Publisher that the Promotional Placements provided accord with all applicable laws and/or regulations or these terms and conditions nor shall it constitute a waiver of any of Publisher’s rights under this Agreement
2.8 If Publisher elects not to publish the Promotional Placement, Publisher shall notify Advertiser that this is the case and Advertiser must supply alternative copy at Advertiser’s own cost as soon as possible and in any event no later than 3 Full Working Days prior to the intended date of publication Campaign Start Date. Advertiser shall remain liable to pay in full for any advertising space booked irrespective of whether or not such alternative copy has been supplied to or accepted by Publisher, within the time frame specified above
2.9 Publisher reserves the right to terminate this Agreement and/or remove the Promotional Placements (as the case may be) where in Publisher’s judgement to continue to include the Promotional Placement would adversely affect, prejudice, be detrimental to or otherwise bring into disrepute (including but not limited to any blasphemous, defamatory or libellous statements) the Publisher’s websites or the Publisher
2.10 Notwithstanding anything to the contrary elsewhere in this Agreement, Publisher reserves the right in its absolute discretion to do any act or thing in respect of the inclusion of any Promotional Placements (or part) including without limitation the editing or cutting of any Promotional Placements which Publisher at its sole discretion considers to contain unsuitable material. In these circumstances, Publisher shall incur no liability or obligation to Advertiser but Advertiser shall remain liable to Publisher for the Fee payable under this Agreement for such Promotional Placements
2.11 Publisher shall not be held responsible for any addition to, changes in, deletions from or withdrawal of any Promotional Placements as may be required by any competent authority having jurisdiction over or responsibility for the regulation of electronic and online advertising on the Publisher’s websites
2.12 Unless specifically agreed to the contrary in the IO
2.12.1 Publisher shall be free to include within the Publisher’s websites advertising for similar or competing products and services in proximity to Advertiser’s Promotional Placements; and
2.12.2 the IO and this Agreement are non-cancellable by either party
3 GRANT OF LICENCES
3.1 Advertiser hereby grants to Publisher a non-exclusive, royalty free, worldwide fully-paid licence to use, reproduce, display and transmit Advertiser’s Brand Features within the Promotional Placements
4 PAYMENT
4.1 Unless specifically agreed to the contrary in the IO the publisher reserves the right to request a deposit in advance in consideration of performance of the Services
4.2 Advertiser will be invoiced for the Fee by Publisher or Publisher’s appointed agent either
4.2.1 when all Advertising Impressions have been delivered pursuant to the IO; or
4.2.2 following the end of each calendar month for the Advertising Impressions delivered during that month; or
4.2.3 following the Campaign End Date where no Advertising Impressions target has been agreed
4.3 Payment shall be made to Publisher (or its appointed agent) in pounds sterling within thirty days of the date of the invoice. All sums due under this Agreement are exclusive of Value Added Tax (“VAT”) and any other applicable sales taxes that may from time to time be introduced
4.4 Publisher reserves the right to refuse to accept the IO in the event that there are any outstanding amounts due to Publisher from Advertiser either under this or any other agreement with Advertiser
4.5 In the event that Publisher fails to meet the any agreed target Advertising Impressions specified on the IO and has Undelivered Advertising Impressions, Publisher shall either
4.5.1 Agree with Advertiser other dates to deliver Promotional Placements to clear any Undelivered Advertising Impressions; or
4.5.2 Reimburse any Fees paid by Advertiser for Advertising Impressions in excess of those actually generated during the Campaign or subsequent efforts to clear the same
4.6 Any amounts which remain outstanding after the due date shall bear interest at the rate of 2.5% per annum above the base lending rate of Barclays Bank PLC from time to time from the due date until the date of actual payment whether before or after judgement
4.7 Should Advertiser fail to make payment by the due date, Advertiser will be responsible for all reasonable expenses (including legal fees) incurred by Publisher (or its appointed agents) in collecting such sums
5 DATA OWNERSHIP
5.1 All End User Data shall be owned by Publisher
5.2 All Traffic Data collected by
5.2.1 The Advertiser shall be owned by Advertiser
5.2.2 The Publisher shall be owned by Publisher
5.2.3 Both the Advertiser and the Publisher shall be jointly owned between Advertiser and Publisher
5.3 All Customer Data shall be owned by Advertiser
6 WARRANTIES AND INDEMNITIES
6.1 Each party to this Agreement warrants and represents to the other party that it has the full corporate right, power and authority to enter into this Agreement (whether on its own behalf or in the case of an Agency on behalf of its Client, the Advertiser) and to perform its obligations hereunder
6.2 Advertiser represents and warrants to Publisher that:
6.2.1 Advertiser has sufficient rights in the Brand Features and the materials relating to the Promotional Placements for Advertiser to be able to grant to Publisher the right to use them for the purpose of including the Promotional Placements within the Publisher’s websites in accordance with the terms of this Agreement
6.2.2 Advertiser and Advertiser’s Website fully comply with, and shall continue to fully comply with all applicable UK law and regulation including but not limited to data protection legislation together with any similar or subsequent legislation as the same may be subsequently re-enacted or amended
6.3 Advertiser will defend or settle at Advertiser’s own expense any action or other proceedings brought against Publisher that the inclusion of the materials relating to the Promotional Placements within the Publisher’s websites or use by Publisher of the Brand Features in accordance with the terms of this Agreement infringes any third party’s Intellectual Property Rights. Publisher shall notify Advertiser promptly of any such claim and shall permit Advertiser to assume and control the defence of such action with counsel chosen by Advertiser, who shall be reasonably acceptable to Publisher, and shall not enter into any settlement or compromise of any such claim without Advertiser’s prior written consent (which shall not unreasonably be witheld or delayed). Advertiser shall pay any and all proper costs, damages and expenses (including but not limited to reasonable legal fees and costs) awarded against or incurred by Publisher in any such action or proceedings.
7 TERM AND TERMINATION
7.1 Subject to Clause 2.10 and 4.4, this Agreement shall commence on the Campaign Start Date and end on either the delivery of the agreed number of Advertising Impressions or on the Campaign End Date (as agreed between the parties) unless terminated earlier by either party in accordance with the provisions of this Clause 7 or the circumstances set out in Clause 13 shall apply (the “Term”)
7.2 Either party shall be entitled to terminate this Agreement forthwith on written notice to the other in the event that
7.2.1 The other commits a material breach of the terms of this Agreement which (being a breach that is capable of remedy) is not remedied within 14 days’ of receipt of a notice issued by the party not in breach to do so; and/or
7.2.2 The other shall cease to carry on its business or has a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due.
8 CONSEQUENCES OF TERMINATION
8.1 In the event of the termination of this Agreement:
8.1.1 Publisher shall remove the Promotional Placements and all licences granted to it in respect of the Brand Features shall forthwith cease; and
8.1.2 Advertiser shall settle all outstanding sums (if any) due to Publisher within 14 days’ of the date of termination of this Agreement
8.2 If this Agreement is terminated by Advertiser as a result of any breach by Publisher of its obligations then Publisher shall refund to Advertiser on a pro-rata basis all outstanding sums (if any) due from Publisher to Advertiser in accordance with the term of this Agreement
8.3 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination
8.4 Clauses 1, 4, 5, 6.3, 8, 9, 10, and 14 shall survive expiry on termination of this Agreement
9 LIABILITY
9.1 The Publisher shall have no liability in the event that any Promotional Placement (whether previously published or not) was not published on the booked date (or at all) by reasons beyond the reasonable control of the Publisher. The Publisher shall use reasonable efforts to reschedule the publication of the Promotional Placement at a later date where reasonably practicable
9.2 In all other circumstances where the Publisher fails to publish any Promotional Placement on the booked date (or at all) the Publisher, at its option, shall either arrange for the Promotional Placement to be published on an alternative date or dates or refund to/credit the Advertiser an amount equal to sums paid in relation to the Promotional Placement(s) that was/were not published
9.3 In no circumstances shall the Publisher’s liability to any Advertiser in relation to any Promotional Placement exceed the sum payable or paid in relation to the Promotional Placement in question
9.4 Every care is taken in the publication of Promotional Placements, but the Publisher shall not be liable for errors or for any consequences arising out of the publication of any Promotional Placement in any of the Publications
9.5 It is the Advertiser’s responsibility to check that the first Promotional Placement of a series is published correctly, claims for refunds or allowances will be considered only in respect of the first Promotional Placement. Whilst every endeavour is made to insert Promotional Placements as ordered the Publisher reserves the right to use their discretion in every situation with regards to date of appearance and position
9.6 The Publisher will not accept any responsibility for any damage or loss of any artwork or other materials supplied for the purpose of a Promotional Placement
9.7 Where an Advertiser instructs/appoints an advertising agent to act on their behalf the Advertiser will remain jointly and severally liable for payment in respect of the Promotional Placement should the appointed agent fail to pay. For the avoidance of doubt, the agent acts for the Advertiser and not the Publisher with the agent being responsible for notifying the Advertiser of this liability
10 CONFIDENTIALITY
10.1 During the Term and thereafter, both parties agree with each other to keep all information that they obtain about the other concerning the business, finances, technology and affairs of the other, and in particular but not limited to the Service and/or Services and regardless of its nature ("Confidential Information"), strictly confidential
10.2 The provisions of this Clause 10 shall cease to apply to information that:
10.2.1 has come into the public domain other than by breach of this Clause or any other duty of confidence; and
10.2.2 is obtained from a third party without breach of this Clause or any other duty of confidence; and
10.2.3 is known by either party as at the date of the Agreement (and can be shown from that party’s written records), in connection with the other party, and which has been disclosed to either party by a third party, other than by Advertiser or Publisher or a contractor of either of us and not in breach of any duty of confidence; and
10.2.4 is trivial or obvious; and
10.2.5 is required to be disclosed by law or court of competent jurisdiction
11 NOTICES
Any notices required to be given under this Agreement shall be in writing and shall be deemed to have been duly served if hand delivered or sent by facsimile (with the original to be forwarded by first class post on the same day as the facsimile was sent) or by first class registered post or recorded delivery post within the United Kingdom and outside the United Kingdom by registered airmail post correctly addressed to the address specified in this Agreement (or such other address as either party may designate from time to time) and marked for the attention of the Company Secretary
12 ASSIGNMENT
12.1 Publisher may assign the benefit and/or burden of this Agreement in whole or in part to any party
12.2 Advertiser shall be entitled to assign the benefit and/or the burden of this Agreement in whole or in part to a third party with the prior written consent of Publisher
13 FORCE MAJEURE
Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control. In particular Publisher shall incur no liability for failure to deliver the target number of Advertising Impressions or other Target where such failure is as a result of circumstances beyond its reasonable control
14 LAW AND JURISDICTION
These terms shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts
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