NEG Media Consulting
ADVERTISING INSERTION ORDER TERMS AND CONDITIONS.
These terms and conditions and the applicable Insertion Order (“IO”) (collectively, the Agreement) between NEG Media Consulting LTD (“Agency”); with offices at 121 Olive Road,NW2 6UT, London, UK and its “Client” sets forth the rights and obligations of each party with respect to the advertising campaign described in the IO. Client understands that the sole obligation of Agency is to execute the referenced advertising campaign as described in this IO. A contract is not formed between Agency and Client until Client has accepted an IO and the Client’s acceptance of an IO is expressly subject to these terms and conditions. The effective date of the IO, and by reference these terms and conditions, is the date set forth in the IO.
1. Price and PAYMENT:
All sums are exclusive of VAT. Client agrees to pay Agency for all consulting conducted or advertising published by Agency, its assigns, publishers and/or affiliates, whether on a hourly, sponsorship, CPM, CPC, CPL or CPA basis, in accordance with the terms of this Agreement. All such actions, acquisitions, applications and/or other form of payable events herewith shall be referred to as “Actions”. Unless otherwise stated, Agency will invoice Client at the end of each month for such Actions generated by Agency for the corresponding month. Unless otherwise agreed to by Agency, Client shall send payment in full for each monthly invoice to Agency within fifteen (15) days of receipt of Agency’s invoice. All payments not made within thirty (30) business days of the due date shall be referred to our collection agents and are subject to a surcharge of 15% plus VAT to cover the collection costs incurred. This surcharge together with all other charges and legal fees incurred will be the responsibility of the customer and will be legally enforceable. Client agrees that it shall be solely liable for payment to Agency. Further, Client represents and warrants that it will furnish payment on all undisputed invoices. For any disputed invoice, Client will promptly inform Agency of the good faith reason for the dispute and will pay any undisputed portion in accordance with this IO. The parties will cooperate in good faith to promptly resolve any disputed invoiced amounts. Agency’s failure to invoice Client shall not constitute the waiver of any amounts due to Agency by Client and/or Agency’s breach of IO/s
Reporting will be based on the number of Actions as shown by Agencys’ own tracking methods, usually done by placing a “tracking pixel” on Client’s website. If Client elects to track the number of Actions via Client’s own tracking method it shall provide Agency with appropriate reporting which shall be correlated to Agency’s reporting. Agency shall ensure that such “tracking pixel” does not collect personal information (as that term is defined in the Privacy Act (Cth) 1988) and that it shall not distribute or trigger any malicious software that may harm either Client’s or Users’ equipment. Client agrees to provide Agency with final number of valid/invalid Actions for each month by no later than the 7th of the following month.
A. FOR ALL LEAD GENERATION CAMPAIGNS:
A “valid” Action is defined as any Action generated that fires Agency’s tracking pixel on the confirmation page and does not contain fraudulent information.
B. FOR ALL CPA CAMPAIGNS REQUIRING A CREDIT CARD TRANSACTION:
A “valid” Action is defined as any Action generated that fires Agencies tracking pixel on the confirmation page. However, the parties agree that an initially valid Action may be deemed invalid if it is later determined that unauthorized credit card information has been employed to trigger the firing of the tracking pixel. In these cases the order will not be fulfilled and the Action will not be considered valid.
Any Actions determined to be “invalid” that do contain obviously fraudulent or unauthorized information may be returned to Agency within seven (7) business days from month end. The following information must be included for all “invalid” returned Actions: - transactional identification number, publisher identification number (SubID), date/time stamp, incoming IP address, reason for rejection and proof of fraud.
In the event that Client and Agency encounter under or over-reporting, both parties agree to work diligently to resolve such discrepancies, and also agree to work together to address any technical issues so as to eliminate discrepancies in the future. If the discrepancy cannot be resolved and Agency has made a good faith effort to facilitate the reconciliation effort, the Agency reserves the right to either:
Consider the discrepancy an under-delivery of the Deliverables upon which Agency and Client shall make an effort to agree upon the conditions of a make good flight;
Pay Agency based on Agency 3rd party Ad Server reported data.
3. AD PLACEMENT AND POSITIONING:
Agency must comply with the IO, including all Ad placement restrictions, requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Ad to the Site specified in the IO when such Site is called up by an Internet user. Any exceptions must be approved by Client in writing.
Ad delivery shall comply with editorial adjacencies guidelines stated on the IO and/or that are provided in writing via email or digital file format. As Client’s sole remedy for a violation of the foregoing sentence: (i) Ads that run in violation of such editorial adjacencies guidelines, if Agency is notified of such violation within 3 business days of the violation, shall be non-billable; and (ii) after Client notifies Agency that specific Ads (placements or creative units) are in violation of such editorial adjacencies guidelines, Agency will make commercially reasonable efforts to correct within 24 hours such violation. In the event that Agency cannot correct the violation within 24 hours, Client, upon conclusion of 72 hours from the notice of such violation, may immediately cancel such IO, without penalty.
Agency represents and warrants that Agency has all necessary permits, licenses, and clearances to place the Client’s ads and links on its’ sites and on its’ affiliates sites and to sell the inventory represented in the IO subject to the terms and conditions of this Agreement, including any applicable Policies.
Client represents and warrants that Client has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials. The Client’s rights under this Agreement, and in particular this Section 4, are in addition to any conditions, warranties, guarantees, rights or remedies that the Client may have under the Competition and Consumer Act (Cth) 2010 or any other statute.
Agency will not assign this Agreement without Client’s prior written consent which will not be unreasonably withheld. Client will not assign this Agreement without Agency’s prior written consent which will not be unreasonably withheld.
6. CREATIVE CONTROL:
Client will be solely responsible for creating, managing, editing, reviewing, cancelling and otherwise controlling the advertising banners, display creative, text advertisements and other materials issued to Agency. Agency agrees that it will only use the materials provided by Client and no changes or alterations are permitted unless Client has provided prior written approval. Agency is obligated to ensure that its’ affiliates and third party distributors only use the creative materials approved and provided by the Client.
7. DISCLAIMER OF WARRANTIES:
You warranty that all Copy and any other information provided by you is complete, accurate,
legal, non-defamatory, decent, honest and truthful and complies with the British
Code of Advertising Practice and all other relevant codes and legislation;
This Agreement has been accepted by and is binding on you, having been entered into by a
duly authorised representative or agent on your behalf;
you shall provide us with all assistance we may require from time to time in connection with
the provision of the Services; and
Your Testimonials are genuine feedback comments received from your customers.
8. LIMITATIONS ON LIABILITY:
Excluding the parties indemnification obligations under Section 9 or damages that result from a breach of Section 10 or any unlawful or willful misconduct by the parties, in no event will either party be liable to the other party for lost profits or lost revenue, or for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages. Neither party’s liability under this Agreement shall be greater than twelve (12) months’ fees paid or payable by Client to Agency hereunder, except in relation to the parties’ indemnification obligations set forth in Section 9, or claims arising from either party’s breach of confidentiality obligations hereunder.
Agency agrees to defend, indemnify and hold harmless Client and its Affiliates (as defined below) and their respective directors, officers, employees and agents from and against any and all damages, losses, claims, injuries, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees and expenses) (collectively “Losses”) incurred as a result of a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of Agency’s breach of Section 10, Agency’s display or delivery of any Ad in breach of these Terms and Conditions or the terms of an IO, or that materials provided by Agency for an Ad violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent (1) that such claim, judgment or proceeding resulted from such materials fulfilling Client’s unique specifications, provided that Agency did not know that such specifications would give rise to the Loss or (2) that such materials are provided to Client for review and Agency did not know that such material violated any law, regulations or other judicial or administrative action, the rights of a Third Party or are defamatory or obscene.
An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A "Third Party" means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.
Client agrees to defend, indemnify and hold harmless Agency its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Agency’s breach of Section XII, violation of Policies (to the extent the applicable terms of such Policies have been provided to Agency at least ten days prior to the violation giving rise to the claim), or the content or subject matter of any Ad or Advertising Materials, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, to the extent such content or subject matter belongs to the Client.
Agency represents and warrants that it has the authority as agent to Client to bind Client to these Terms and Conditions and each IO. Client agrees to defend, indemnify and hold harmless Agency its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Agency’s alleged breach of the foregoing sentence.
If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section 9, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.
10. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS:
Each party (the Receiving Party) shall preserve as confidential all information related to the business activities of the other party (the Disclosing Party), its affiliates, clients, and entities with whom that party does business, that may be obtained by the Receiving Party from any source, whether that information is marked as confidential or is confidential by its nature, including the Ad description, and the pricing of the Ad, set forth in the IO, all trade secrets, ideas, know-how, concepts, processes, techniques, research, data, plans, materials, product development and all other information of a confidential nature [in whatever form] (such information, together with the existence and terms of this Agreement, constituting the “Confidential Information”). The Receiving Party shall hold Confidential Information in trust and confidence for the Disclosing Party and shall not disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other person, unless specifically authorized by the Disclosing Party in writing. The Receiving Party shall limit access and disclosure of such Confidential Information to its personnel on a "need to know" basis only and where such personnel are aware and have agreed to comply with the confidentiality obligations set out in this Agreement. Confidential Information does not include any particular information that the Receiving Party can demonstrate (i) is currently in the public domain, (ii) was previously known to the Receiving Party free from any obligation to keep it confidential, (iii) was or is publicly disclosed by or on behalf of the Disclosing Party either prior to or subsequent to the receipt of such information by the Receiving Party or (iv) is independently developed by the Receiving Party without any access to or use of Confidential Information of the Disclosing Party. Receiving Party may disclose Confidential Information of Disclosing Party if legally required to do so under applicable law or stock exchange listing rule provided that Receiving Party, where reasonably practicable and to the extent legally permissible, provides Disclosing Party with prior written notice of the required disclosure so that Disclosing Party may seek a protective order or other appropriate remedy, and provided further that Receiving Party discloses no more Confidential Information of the Disclosing Party than is reasonably necessary in order to respond to the required disclosure and assists the Disclosing Party in relation to any actions or proceedings taken by the Disclosing Party to oppose the disclosure of the Confidential Information. At any time at the request and option of the Disclosing Party and automatically in the event of termination or expiration of the Agreement (or any part thereof), Receiving Party agrees to promptly: (i) return to Disclosing Party the Confidential Information; or (ii) destroy or permanently erase the Confidential Information (in whatever form it is recorded), at the Disclosing Party’s option.
Agency, and Client will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
F. E-MAIL SUPPRESSION LISTS:
The parties hereby represent and warrant that they shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective businesses including, without limitation, the British law, the Privacy Act 1988 (Cth) and the SPAM Act 2003 (Cth). In the event that Client desires distribution of its campaigns via email, Client agrees to provide a regularly updated suppression list to Agency containing current unsubscribe requests. Agency agrees to include a physical address for Client in the body of every e-mail. Client must provide to Agency its physical mailing address. If Client fails to provide such mailing address, Agency will use the physical mailing address appearing in the IO.
Client may terminate this Agreement upon providing thirty (30) business days notice in writing to Agency. Agency may terminate this Agreement upon providing seven (7) business days notice in writing. In either case, Client shall remain liable for all costs incurred prior to termination. However, if either party is in material breach of this Agreement and such breach is not cured within 5 business days of being notified in writing of the breach, then that party may immediately terminate this Agreement and have no liability for any payment related to services performed after the breach notice has been provided.
12. FORCE MAJEURE:
a. Neither party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by circumstances outside its control (Force Majeure Event). A Force Majeure Event includes without limitation, fire, flood, water, the elements, acts of God, acts of war (declared or undeclared), explosions, civil disturbances, acts of terrorism, insurrection, riots, rebellion or sabotage, acts of federal, state, local or foreign governmental authorities or courts, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, failures or fluctuations in electrical power or telecommunications service or equipment, labour disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful. The party so delayed or prevented from performing shall provide prompt notice of such event to the other party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance. b. To the extent that a Force Majeure Event has continued for 5 business days, Client or Agency has the right to cancel the remainder of the IO without penalty.
This Agreement shall be governed by, interpreted and construed in accordance with the British law and the parties submit to the jurisdiction of the courts of England. The parties are independent contractors and expressly acknowledge that no agency, partnership, joint venture or employer-employee relationship is intended or created hereby. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter and may be changed only by a subsequent agreement in writing signed by both parties. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. In the event of any inconsistency between the terms of an IO and these terms and conditions, the terms of the IO shall prevail to the extent of any inconsistency. All IOs shall be governed by the British law. If a provision of this Agreement would, except for this Section 13, be unenforceable, (a) the provision must be read down to the extent necessary to avoid that result; and (b) if the provision cannot be read down to that extent, it must be severed without altering the enforceability of the remaining provisions of this Agreement. All rights and remedies hereunder are cumulative. Any notice required to be delivered hereunder shall be delivered three days after deposit in EU mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Agency and 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.