INCISIVE MEDIA SERVICES LIMITED (‘INCISIVE’) STANDARD TERMS AND CONDITIONS FOR DIGITAL ADVERTISING
All advertisements accepted for publication by Incisive in any of its online products are accepted subject to these terms and conditions. Any other conditions proposed by the Client shall be void unless accepted by Incisive in writing. These terms and conditions, in conjunction with the relevant IO comprise the agreement between Incisive and the Client.
3rd Party Ad Server means a third party providing advertising of the Advertiser’s products and services that are identical or similar to those that are subject to the relevant IO;
Ads means advertising communicated to end users by electronic distribution systems; Advertiser means the party whose products and/or services are to be advertised pursuant to the Deliverables;
Advertising Materials means advertising copy, including, without limitation, artwork, text and active URLs.
Affiliate means in respect of any person to whom the term Affiliate refers a company, corporation or partnership or other business entity (‘entity’) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose ‘control’ means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
Agency means an advertising agency representing the Advertiser;
Campaign Period means the period of time during which the campaign subject to the relevant IO is to be operative; Client means the Advertiser or Agency as the case may be;
Deliverables means the type and amount of the service required including, without limitation, page impressions, clicks or other actions specified and agreed by the parties irrespective of the delivery systems and platforms to which they are directed.
IAB means the Internet Advertising Bureau
IO means a campaign insertion order specifying the terms on which Incisive will provide the Deliverables;
Overdelivery means the delivery by Incisive of a greater volume of Deliverables than that specified in the IO where the incremental Deliverables accrue a liability by the Client to Incisive and ‘Overdeliver’ shall be construed accordingly;
Policies means Incisive’s editorial policies from time to time including without limitation privacy policies, user experience policies, policies regarding consistency with Incisive’s public image, community standards regarding obscenity or indecency , other editorial or advertising policies;
Site(s) means those websites owned or controlled by Incisive.
Technical Specifications means the delivery format of the Advertising Materials required to ensure that the visual appearance of the Ads as set out in the IO is accessible and capable of view on the Sites;
Total Cost means all sums under the terms of the IO exclusive of VAT, which shall be paid without set-off.
1. INSERTION ORDERS
1.1 Parties may negotiate IOs under which Incisive will deliver Ads provided by the Client on the Site for the benefit of the Client.
1.2 In each case, Incisive shall provide the Client an IO which shall specify:
(a) the Deliverables;
(b) the price(s);
(c) the maximum expense the Client wishes to incur pursuant to the IO (if applicable);
(d) the start and end dates of the campaign;
(e) the identity of and contact information for any 3rd Party Ad Server, if applicable.
(f) any special Ad delivery scheduling and/or Ad placement requirements; and
(g) editorial adjacency requirements, if any; and
(h) Technical Specifications.
1.3. Both parties must agree in writing to a revision of an IO previously accepted.
2. AD PLACEMENT AND POSITIONING
2.1 Incisive will use reasonable endeavours to display/transmit the Advertising copy during the Campaign Period in accordance with the terms of the IO.
2.2. If Advertising Materials are not transmitted/displayed in accordance with the agreed specifications set out in the IO within the Campaign Period for reasons other than the default of the Client, Incisive will use reasonable endeavours to comply with those specifications within one month of the end of the Campaign Period. The Client will be entitled to an appropriate pro-rata rebate of the Total Cost based on the number of impressions actually transmitted after the additional one month period.
2.3. Incisive will provide to the Client within 5 business days of acceptance of an IO revised Technical Specifications, as agreed upon by the parties. If Incisive changes such Technical Specifications after that two business day period it will allow the Client to suspend (without altering the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either
(a) allow the Client to send revised Advertising Materials to Incisive; or
(b) allow Incisive to resize the Ad at Incisive’s cost, and with final creative approval of Client, within a reasonable time period to fulfil the guaranteed levels of the IO; or
(c) accept a comparable replacement; or
(d) 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.
2.4 In the event that Incisive fails to comply with the editorial adjacency requirements set out in the IO, the Client shall notify Incisive of the same in writing, whereupon Incisive shall use its reasonable endeavours to ensure that the Ad becomes compliant with the relevant requirements within 3 business days of such notification.
2.5 Incisive shall deliver the relevant campaign in accordance with the dates specified in the IO. Incisive shall be responsible for compensating the Client in respect of under delivery in excess of a five (5) percent of the total booking (as reported by 3rd Party Ad Servers) set out in the IO.
2.6. In the event that Advertising Materials are not transmitted/displayed in accordance with the agreed specifications set out in the IO within the Campaign Period as a result of the default of the Client, Incisive reserves the right to make additional charges in respect of the period of delay prior to its receipt of Advertising Materials complying fully with the agreed specifications of the IO.
3. PAYMENT AND PAYMENT LIABILITY
3.1 Incisive shall render invoices to the Client for all sums due to Incisive pursuant to this Agreement at intervals of not more than one calendar month, the first such invoice to be rendered within one calendar month of acceptance of the IO. The Client will be responsible for payment of VAT and/or any other applicable sales tax.
3.2. The Client shall settle all invoices in full within 30 days. If the Client is in default of payment by the due date Incisive, shall without prejudice to its other rights, be entitled to refuse to transmit the Advertising Materials and Incisive’s obligations generally will be reduced pro-rata to the delay in payment including, without limitation, the number of guaranteed impressions or plays obliged to be transmitted/displayed, without affecting the Client’s financial responsibility for all impressions and plays ordered and inventory reserved.
3.3. The existence of a valid query on any individual item in an invoice will only affect the due date of payment of that individual item. The Client must notify Incisive of any such query within seven days from the date of the invoice after which Incisive will not agree to amend the terms of the relevant invoice.
3.4 The Client may not set off any payment due in an invoice against liabilities of Incisive.
3.5. For the avoidance of doubt, any discounts or rebates offered by Incisive shall only be available in respect of the campaign specified in the IO and shall not be available to any Affiliate of the Client.
3.6. For the avoidance of doubt, where the Advertising Agency is the Client, it is contracting as principal in all respects and as such will be personally liable for the payment of the Total Cost and for all other obligations under this Agreement.
3.7. Should an Agency fail to make payment within the deadline stipulated in the relevant invoice, Incisive reserves the right to inform the Agency’s client of such default.
3.8 All late payments shall be subject to compensation and interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
3.9. No credits or set-offs in respect of an invoice (or part thereof) shall be accepted by Incisive unless it is agreed within 12 months of the date thereof.
If the Client wishes to postpone the Campaign Period Incisive shall consider such request in good faith but shall have no obligation to consent to such postponement.
Any acceptance of such postponement shall require immediate pre-payment of the Total Cost less any payments previously made.
5. CANCELLATION AND REVISION
5.1 At any time, the Client may cancel the IO with 30 days prior written notice, without penalty. For clarity and by way of example, if the Client cancels the IO 15 days prior to the serving of the first impression, the Client will only be liable to pay for the Deliverables provided during the first 15 days after the start date for the services set out in the IO.
5.2. In the event that a Client seeks to revise an IO the Client must provide a written request 30 days prior to the intended date of the requested revision. In the event that Incisive accepts such request (which it may accept or reject in its absolute discretion), billable rates will automatically revert to the appropriate published rate (the ‘ratecard’) for the revised impressions or such other rate as Incisive shall advise the Client.
Incisive may terminate an IO at any time if the Client is in material breach of its obligations hereunder that is not remedied within 14 days after the date of Incisive’s written notice, except as otherwise stated in this Agreement with regard to specific breaches.
7. BONUS IMPRESSIONS
7.1 Where the Client engages a 3rd Party Ad Server, Incisive will not Overdeliver without prior written consent from the Client.
7.2 Permanent or exclusive placements shall run for the period of time specified in the IO regardless of Over-delivery, unless the IO places a limit on the volume of impressions attributable to 3rd Party Ad server activity.
7.3 The Advertiser will not be liable to Incisive for any additional Ads in excess of any limits set out in the IO. If a 3rd Party Ad Server is being used and the Advertiser notifies Incisive that the guaranteed or capped levels stated in the IO have been reached, Incisive will use reasonable endeavours to suspend delivery within two business days thereafter.
8. FORCE MAJEURE
8.1 Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labour disputes. In the event that Incisive suffers such a delay or default, Incisive shall use its reasonable endeavours within five business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or other arrangement is reasonably acceptable to the Client, Incisive shall allow the Client a pro rata reduction in the payment due pursuant to the relevant IO.
8.2 To the extent that a force majeure has continued for 10 business days, Incisive or Client has the right to cancel the remainder of the IO without penalty.
9. ADVERTISING MATERIALS
9.1 The Client shall submit Advertising Materials at least 5 business days before the commencement of the Campaign Period in accordance with Incisive’s prevailing advertising criteria or specifications (including content limitations, agreed Technical Specifications, Policies, and material due dates) in accordance with clause 2.3.
9.2 If Advertising Materials are submitted later than 12 noon on the day before the relevant campaign is due to begin Incisive reserves the right to make a pro rata reduction in the volume of impressions comprising the Deliverables and to make charges further to those specified in the relevant IO.
9.3 Incisive reserves the right within its discretion to reject or remove from its Site(s) any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in Incisive’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Incisive reserves the right within its discretion to reject or remove from its Site(s) any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon Incisive or any of its Affiliates.
9.4 If Advertising Materials provided by the Client are damaged, not to Incisive’s specifications, or otherwise unacceptable, Incisive will use reasonable endeavours to notify the Client within 5 business days of its receipt of such Advertising Materials.
9.5 Incisive shall at all times retain all right, title and interest in any intellectual property rights in advertising copy produced on behalf of the Client by Incisive.
9.6 The parties 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 these Terms and Conditions or an IO without the other’s prior written approval.
10.1 The Client hereby warrants, represents and undertakes to Incisive that:
(a) In respect of the Advertising Materials or any part thereof supplied by the Client or any other material provided to Incisive by the Client (including the Client’s brand) it will not infringe the copyright, trade mark or any other intellectual property or other proprietary rights or be defamatory of any third party or obscene, indecent, offensive or liable to incite racial hatred and their publication by Incisive will not give rise to a right for any third party to claim payment and/or damages;
(b) The Client has obtained and paid for all necessary consents, licences, and permissions to advertise on the Site;
(c) The Client has taken or will take all necessary steps to ensure that its advertising on the Site will not be illegal or actionable for any reason in any territory and shall comply with all applicable legislation, rules and regulations including for the avoidance of doubt any applicable advertising and/or relevant financial services standards and codes;
(d) If any Advertising Materials contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or copy by which any living person is or can be readily identified, the Client warrants that the Client has obtained the authority of such living person to make use of such name, representation and/or copy.
(e) The Advertising Materials contains no viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
(f) The Client is solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Advertising Materials relates and will indemnify and hold Incisive harmless accordingly.
10.2 Incisive warrants that it is authorized to enter into agreements subject to these terms and conditions.
10.3 The Client hereby acknowledges that Incisive is unable to provide any warranties or representations that the visual appearance of Advertising Materials created by Incisive for and on behalf of the Client will be entirely consistent with designs previously approved by the Client as a result of factors that are not within Incisive’s reasonable control (including, without limitation the image setter, the type of printer, the monitor used, the particular colours selected).
11.1. The Client will fully indemnify and keep Incisive, its licensors, and its and their directors, officers and employees fully indemnified against all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses (including loss of profits) penalties, claims, demands and liabilities directly or indirectly suffered or incurred by Incisive (or its directors, officers or employees) howsoever arising from any breach of the Client’s warranties, obligations or agreements contained herein.
11.2. The Client will provide Incisive with full co-operation in defending any claim or complaint concerning the Advertising Materials including, but not limited to, providing evidence in support of advertising claims and copies of documentation evidencing the clearance of relevant underlying third party proprietary rights.
11.3. The Client acknowledges and confirms that Incisive has not provided it with any guarantees concerning reach of the site or target audience. Any statistics related to the site provided to the Client are provided as an estimate based on prevailing available research only and may not be relied on by the Client as a representation or otherwise.
12. LIMITATION OF LIABILITY
12.1. Incisive and its licensors shall not be liable to the Client, under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, for any loss of profit, goodwill, business opportunity, anticipated saving or any type of special, indirect or consequential loss or damage.
12.2. Subject to Clause 12.3 below, Incisive’s entire liability (if any) to the Client, under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall be limited to the amount actually paid by the Client to Incisive.
12.3. Neither party’s liability to the other shall be excluded or limited by the provisions of this Agreement, save to the extent permitted by law in respect of:
(a) death or personal injury resulting from the negligence of itself, its servants or agents;
(b) fraud; or
(c) any other liability the exclusion of which is prohibited or limited by law,
13. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
13.1 Any marked confidential information 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. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary.
13.2 Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
13.3. Notwithstanding anything contained herein to the contrary, the term ‘Confidential Information’ shall not include information which:
(i) was previously known to a party;
(ii) was or becomes generally available to the public through no fault of the receiving party (‘Recipient’);
(iii) was rightfully in the Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (‘Discloser’);
(iv) was developed by employees or agents of the Recipient independently of and without reference to any information communicated to Recipient by Discloser; or
(v) was communicated by the Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other regulatory body, as otherwise required by law or the rules of any applicable regulator.
13.4 Incisive and the Client shall comply with their respective privacy policies from time to time.
14.1. Incisive represents and warrants that it has the necessary authority to provide the Deliverables set out in the IO subject to the terms and conditions of this agreement, including any applicable Policies.
14.2. The Client may not resell, assign or transfer any of its rights or obligations hereunder.
14.3 All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees (as applicable), successors and assigns (as applicable).
14.4 These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede 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.
14.5 In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail.
14.6 These Terms and Conditions and the relevant IOs to which they relate shall be governed by and construed in accordance with the laws of England and Wales, the courts of which shall have exclusive jurisdiction in connection with any dispute arising in respect of its terms, formation or construction (including non-contractual disputes).
14.7 No modification of these Terms and Conditions or any IO shall be binding unless in writing by both parties.
14.8 If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect.
14.9 All rights and remedies hereunder are cumulative.
14.10. Any notice required to be delivered hereunder shall be delivered three days after deposit in the Royal Mail, (recorded delivery), one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Incisive and the Client shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Client shall be sent to the address specified on the IO.
14.11. Clauses 3, 9, 10, 11, 12, and 14 shall survive termination or expiry of this Agreement. On expiry or termination, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags.