1. INTRODUCTION
1.1 These standard terms and conditions are the basis upon which Videojug Limited (“the Publisher”) agrees to place advertisements, including, but not limited to links, promotional content and banner advertising (“Advertising”/“Advertisements”) on its network of web sites known as ‘Videojug’, (“the Service”) whose primary URL is at www.Videojug.com (“the Sites”).
2. DEFINITIONS
2.1 In these Terms (unless otherwise stated):
2.1.1 “Advertiser” means the person or legal entity placing an Order, whether directly or through an intermediary;
2.1.2 “Business Day” means any day on which clearing banks are open for business in London;
2.1.3 “Campaign” means the advertising campaign conducted by the Advertiser as more particularly described in the Order;
2.1.4 “Charges” means the charges shown in the Order or as otherwise agreed in writing between the parties;
2.1.5 “Document” includes, in addition to a document in writing, advert units, plan, design, picture or other image, or any other record of any information in any form;
2.1.6 “Group Company” means, in relation to either party, any other company which at the relevant time is the holding company or subsidiary of that party, or the subsidiary of any such holding Company; and for these purposes ‘holding company’ and ‘subsidiary’ have the meanings given to those expressions by sections 736 and 736A of the Companies Act 1985; and
2.1.7 “Input Material” means any Documents, creatives or other materials, and any data or other information provided by the Advertiser relating to the Service;
2.1.8 “Output Material” means any Documents, or other materials, and any data or other information provided by the Publisher relating to the Advertising;
2.1.9 “Order” means the order from describing the Campaign and setting out the terms of the booking placed by the Advertiser;
2.1.10 “Service” shall have the meaning given in clause 1;
2.1.11 “these Terms” means these standard terms, any schedules or Order as amended or supplemented at the relevant time;
2.1.12 “writing” or any cognate expression includes a communication effected by facsimile transmission or similar means (but not e-mail);
2.1.13 the headings in these Terms are for convenience only and do not affect its interpretation;
2.1.14 a reference to a statute or statutory provision includes that statute or provision as amended, extended, re-enacted or consolidated from time to time and all statutory instruments or orders made pursuant to it;
2.1.15 words denoting the singular include the plural and vice versa, words denoting one gender include the other, and words denoting persons include firms, corporations or other legal entities and vice versa;
2.1.16 a clause, sub-clause or schedule is a reference to the specified clause, sub-clause or schedule of these Terms;
2.2 In the event of any conflict between these Terms and the Order these Terms shall prevail.
3. ORDERS
3.1 On receipt of the Advertiser’s enquiry, the Publisher will send the Order electronically via e-mail as a Word attachment to the Advertiser for approval. The Advertiser agrees to accept invoices (including sending and receiving all communications) solely by email.
3.2 The Advertiser shall sign a copy of the Order confirmation form and fax or scan it back to the Publisher, which shall constitute the Advertiser’s acceptance of these Terms.
3.3 The Order will include the purchase order (‘PO number’) if supplied by the Advertiser.
4. ACCEPTANCE OF ADVERTISEMENTS
4.1 It is the responsibility of the Advertiser to provide or make Advertisements available in the format required for display and publication by the Publisher, and to copy deadlines specified in the Order.
4.2 The Advertiser shall at its own expense supply the Publisher with all necessary Documents or other materials, and all necessary data or other information relating to any Advertisement, within sufficient time to enable the Publisher to publish the Advertisement in accordance with these Terms. The Advertiser shall ensure the accuracy of all Input Material and the terms of the Order (including any accompanying specification).
4.3 The Advertiser shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Publisher shall have no liability for any such loss or damage, howsoever caused. All Output Material shall be at the sole risk of the Advertiser from the time of delivery to, or to the order of the Advertiser.
4.4 Content and design of Advertisements are subject to the Publisher’s approval. The Publisher reserves the right to amend, correct or refuse, without liability to the Advertiser, any Advertisement or Input Material whose content does not comply with its advertising guidelines in force from time to time.
4.5 Notwithstanding clause 4.4, it is the Advertiser’s responsibility to ensure that Advertisements are legal, decent, honest and truthful, grammatically correct and in compliance with all relevant legislation, regulations and codes of practice, in whatever jurisdiction the Advertisements are accessible by users of the Sites including without limitation, the British Code of Advertising Practice and all other codes under the general supervision of the Advertising Standards Authority.
4.6 Acceptance by the Publisher of an Advertisement for publication does not absolve the Advertiser from complying with the provisions of clauses 4.1 to 4.5.
4.7 The Advertiser acknowledges that the Publisher may not on every occasion have an opportunity to review Advertisements in advance of their publication. The Publisher reserves the right to withdraw from publication without prior notice to the Advertiser any Advertisement which it considers does not comply with the requirements set out in clauses 4.1 to 4.5 or whose display it otherwise reasonably believes might be harmful to the Publisher’s reputation.
5. SUPPLY OF THE SERVICE
5.1 The Service shall be provided in accordance with the Order and otherwise in accordance with the Publisher’s media plan or proposal.
5.2 Further details about the Service, and advice or recommendations about its provision or utilisation, which are not given in the Order, media plan or proposal, is available from the Publisher on written request.
5.3 The Publisher may at any time without notifying the Advertiser make any changes to the Service which are necessary to comply with any applicable statutory requirements, or which do not materially affect the nature or quality of the Service.
5.4 [Any requests by the Advertiser for modifications to any Service must be made in writing and be received by the Publisher at least five Business Days prior to the scheduled delivery of the Service (or part thereof). Modifications received by the Publisher within five Business Days or less of the delivery of the Service or during its performance will be accommodated at the Publisher’s sole discretion. The Publisher shall not be liable in the event that it is unable to implement such changes. In addition to the total cost of the Service as agreed in the Order, additional costs may be incurred by the Advertiser for any changes and/or any other work that the Publisher may need to carry out on behalf of the Advertiser [and/or for any additional costs incurred for services carried out by third parties instructed by the Publisher on behalf of the Advertiser] due to any modifications requested by the Advertiser.]
6. PAYMENT TERMS
6.1 Subject to any special terms agreed, the Publisher shall pay the Charges and any additional sums which are agreed between the Advertiser and the Publisher for the provision of the Service [or which, in the Publisher’s sole discretion, are required as a result of the Advertiser’s instructions (or lack of instructions), the inaccuracy of any Input Material or any other cause attributable to the Advertiser.]
6.2 Each invoice shall include the following information:
6.2.1 Date of invoice
6.2.2 name of Advertiser
6.2.3 Name of media Publisher and advertiser
6.2.4 DDS booking number
6.2.5 Advertiser and Campaign name
6.2.6 The PO number (if supplied by the Advertiser)
6.2.7 Total number of guaranteed impressions or clicks bought
6.2.8 Precise start date and end date of Campaign period
6.2.9 Total impression or clicks delivered
6.2.10 Details of positions and placement
6.2.11 Details of special buys e.g. keywords, email newsletters etc.
6.2.12 Gross cost
6.2.13 Publisher commission
6.2.14 Net cost
6.2.15 Invoice total
6.3 The Advertiser shall make payment based on the Publisher’s doubleclick figures, or in the case of rich media supplied by a third party provider such as TangoZebra or Eyeblaster, payment will be based on figures supplied by these third parties.
6.4 All prices quoted on the Order shall be exclusive of VAT which shall also be payable by the Advertiser.
6.5 The invoice date shall be the last date on which the Advertising is scheduled to appear as set out in the Order.
6.6 [The Publisher reserves the right, by giving notice to the Advertiser at any time before carrying out the Service, to increase the price of the Service to reflect any increase in the cost to the Publisher which is due to any factor beyond the control of the Publisher (including without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of service), any change in Service delivery dates, quantities, specifications for the Service requested by the Advertiser, or any delay caused by any instructions of the Advertiser or failure of the Advertiser to give the Publisher adequate information or instructions.]
6.7 If the Advertiser fails to pay in full on the due date any sum payable to the other party under these Terms:
6.7.1 the amount outstanding shall bear interest, both before and after any judgment, at eight percent over the base rate of the Bank of England from time to time pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 until payment is made in full;
6.7.2 the Publisher shall be entitled to appropriate any payment made by the Advertiser to such of the Service (or the services supplied under any other contract between the Advertiser and the Publisher) as the Publisher may think fit (notwithstanding any purported cancellation by the Advertiser); and
6.7.3 terminate these Terms in accordance with clause 12.
6.8 The Publisher shall be entitled to invoice the Advertiser following the end of each month in which the Service is provided, or at other times agreed with the Advertiser on the Order. Time for payment of the Charges shall be of the essence.
7. LIMITATION OF LIABILITY
7.1 The Publisher accepts no liability for any loss or damage occurring as a result of its failure to display any Advertisement submitted by the Advertiser or for any interruption or delay in it being accessible on the Site. The Publisher does not warrant continuous, uninterrupted access to the Site by users but shall use all reasonable commercial efforts to provide this.
7.2 Except in the case of death or personal injury caused by negligence, or fraudulent misrepresentation, the Publisher shall not be liable to the Advertiser in connection with these Terms by reason of any representation, implied warranty, condition or other term, any duty at common law, or the express terms of these Terms, for any loss of profit or contracts, goodwill or anticipated savings or wasted expenditure, or any indirect, special or consequential loss or damages (including costs), whether caused by its negligence or that of its servants or agents or otherwise, of the Advertiser, and the entire liability of the Publisher in respect of any claim in connection with these Terms shall not exceed the aggregate value of all invoices rendered to the Advertiser pursuant to these Terms.
8. WARRANTIES AND INDEMNITIES
8.1 The Advertiser warrants that any and all Advertisements shall be in compliance with all legal requirements in whichever jurisdiction users may view them in accessing the Sites. Without limitation, Advertisements shall not contain any defamatory, fraudulent, misleading or false statement, shall not infringe the copyright or any other rights including (but not limited to) rights of image, name and likeness and similar ancillary rights in any jurisdiction in the world, or unfairly prejudice the legitimate interests of any third party, and shall comply with all applicable laws relating to their content including the Gambling Act 2005 (as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment thereof).
8.2 The Advertiser shall indemnify the Publisher against any and all claims, damages, losses, costs (including reasonable legal costs) and liabilities incurred by it as a result of any breach by the Advertiser of the warranties given in clause 8.1.
8.3 The Advertiser further warrants that it contracts with the Publisher as a principal not as an agent for any third party.
8.4 Subject to clause 8.1, the Publisher warrants that any Output Material and its use by the Advertiser for the purposes of utilising the Service will not infringe the copyright or other rights of any third party, and the Publisher shall indemnify the Advertiser against any loss, damages, costs, expenses or other claims arising from any such infringement.
8.5 The Publisher warrants to the Advertiser that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Order and at the intervals and within the times referred to in the Order. Where the Publisher supplies in connection with the provision of the Service any Output Material supplied by a third party, the Publisher does not give any warranty, guarantee or other term as to its quality, fitness for purpose or otherwise, but shall, where possible, assign to the Advertiser the benefit of any warranty, guarantee or indemnity given by the person supplying the Output Material to the Publisher.
8.6 The Publisher shall have no liability to the Advertiser for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Advertiser which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Advertiser.
8.7 The Publisher shall not be liable to the Advertiser for any change in the law which may give rise to an obligation on the Advertiser to include a statement or disclaimer as part of its Input Material. The Publisher shall exercise its reasonable endeavours to implement such additional wording as part of the Output Material as soon as it is received from the Advertiser but accepts no liability in the event that the Advertiser is in breach of its legal obligations, for any fines or damages payable by the Advertiser to any third party or legal authority where insufficient notice has been given by the Advertiser to the Publisher to implement such changes and the Advertiser shall indemnify the Publisher in the event that the Publisher is ordered to pay any such fines or damages.
8.8 For the purposes of clause 8.7, the minimum notice required to the Publisher in order to effect the changes referred to shall be five Working Days.
8.9 The Advertiser shall fully indemnify and hold harmless the Publisher from and against any losses, damages, fines, costs (including all legal fees) and expenses incurred by or awarded against the Publisher by any court of law or other tribunal (whether civil or criminal) in any jurisdiction in this country or abroad as a result of or in connection with the provision by the Advertiser of any advertising material or other Input Material which fails to comply with the provisions of clause 8.1.
9. CONFIDENTIALITY
9.1 All information disclosed by either party to the other in pursuance of or in connection with these Terms shall be treated as confidential and each party undertakes not to disclose, publish or divulge any part thereof to any person other than its own employees, agents or representatives who are required to have such information for the performance of any of the obligations hereunder, except to the extent that it is now or subsequently through no fault of the party in question becomes public knowledge, or the party in question is required by law to disclose the information.
9.2 [For the avoidance of doubt, the Publisher’s relationship with its suppliers is confidential and the Publisher shall not be obliged to disclose details thereof to the Advertiser. Should the Advertiser wish to communicate with one or more of the Publisher’s suppliers, the Advertiser must first obtain the written permission of the Publisher.]
9.3 [The Advertiser agrees that the Publisher may cite the Advertiser as a client of the Publisher in press releases and marketing material.]
10. GEO-TARGETING
10.1 The Publisher will exercise its best endeavours to target all Advertising at individuals in the UK unless otherwise stated at the time of booking.
10.2 If targeting of individuals resident outside of the UK is required then the Publisher will guarantee that the Advertisements will be targeted to individuals in the country or continent requested and stated on the insertion Order.
10.3 The Publisher shall not be obliged to deliver the requested number of impressions evenly across the Campaign period (eg fixed amounts per week), since inventory distribution is subject to availability throughout the entire Campaign. The Publisher’s commitment is to deliver the full inventory booked by the campaign end date.
11. LATE COPY
11.1 Late copy will be subject to a pro rata reduction in impressions.
11.2 In accordance with the late copy policy of the Internet Advertising Bureau (IAB) and Association of Online Publishers (AOP), a penalty of reduced impressions shall apply to all copy received after 12pm on the day before the live date of the Campaign. Impressions will be reduced on a pro-rata basis for every day that copy is supplied after this deadline.
Example
A campaign is due to serve 100,000 banners in a ten day period. Banners are provided 2 days late (which equates to 20,000 impressions). The Campaign impression goal is reduced by 20,000 impressions. The amended campaign will deliver 80,000 impressions.
12. TERMINATION AND CANCELLATION
12.1 The Advertiser may cancel the Order by giving thirty days’ notice in writing to the Publisher.
12.2 Subject to clause 12.1 and 12.3, the Advertiser shall not be entitled to cancel these Terms. No Order which has been accepted by the Publisher may be cancelled by the Advertiser except with the agreement in writing of the Publisher and on terms that the Advertiser shall indemnify the Publisher in full against all loss (including loss of profit), costs (including the cost of all labour and services purchased on behalf of the Advertiser), damages, charges and expenses (including legal fees and disbursements) incurred by the Publisher as a result of cancellation.
12.3 Either party may terminate these Terms by notice in writing to the other if:
12.3.1 the other is in material breach of any of the terms of these Terms which, in the case of a breach capable of being remedied, is not remedied within fourteen days of a written request to do so;
12.3.2 the other, being the Advertiser, fails to pay any sum due within twenty-eight days of the due date for payment.
12.3.3 an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of the other party; or
12.3.4 the other party becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986); or
12.3.5 the other party goes into liquidation (except for the purpose of amalgamation or re-construction and so that the resulting company effectively agrees to be bound by or assume the obligations imposed on the other party under these Terms); or
12.3.6 a moratorium comes into force (within the meaning of the Insolvency Act 1986) in respect of the other party;
12.3.7 anything with similar effect to any event specified in clauses 12.3.3, 12.3.4 or 12.3.5 under the law of any foreign jurisdiction occurs in relation to the other party; or
12.3.8 the other party ceases, or threatens to cease, to carry on business.
12.4 For the purposes of clause 12.3.1, a breach shall be considered capable of remedy if the other party can comply with the provision in question in all respects other than as to the time of performance (provided that the time of performance is not of the essence).
12.5 The Publisher may terminate these Terms by notice in writing to the Advertiser if after appropriate consultation with the Advertiser, it reasonably believes that its continued publication and display of any Advertisement will have an adverse effect on the quality of service provided to users, or shall otherwise adversely impact upon the user’s experience of the Sites.
12.6 The rights given by this clause 12 to terminate these Terms for any breach shall not affect any other right or remedy of either party in respect of the breach concerned or any other breach.
12.7 In the event of termination pursuant to this clause, then without prejudice to any other right or remedy available to the Publisher, the Publisher shall be entitled to stop any Service under way or suspend any further Service, and if the Service has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. The Publisher shall be entitled to retain any and all monies paid by the Advertiser to the Publisher in the event of termination of these Terms, save where the termination is due to the Publisher's breach of its obligations under these Terms. Subject to the foregoing, any refunds by the Publisher shall be in its absolute discretion.
12.8 Upon the termination of these Terms for any reason, the provisions of clauses 6 and 9 shall continue in force in accordance with their terms, but otherwise, except for any accrued right of either party, neither party shall be under any further obligation to the other.
13. NOTICES
13.1 A notice relating to these Terms will be validly given only if it is in writing and delivered personally or by courier, or sent by first class post (or air mail if overseas), recorded delivery or fax, to the intended recipient at the address or fax number set out in the Order or such other address or fax number as the party in question may specify by notice. A notice shall not be valid if sent by email.
13.2 In the absence of evidence of earlier receipt, a notice is deemed given:
13.2.1 if delivered personally or by courier, when left at the relevant address;
13.2.2 if sent by post other than airmail, two Business Days after posting it;
13.2.3 if sent by air mail, five Business Days after posting it; and
13.2.4 if sent by fax, on completion of transmission, provided that the sender can produce a successful transmission report from the transmitting fax machine.
14. GENERAL
14.1 These Terms, together with the Order, contain the entire agreement between the Publisher and the Advertiser and shall supersede any previous understandings or agreements between the parties.
14.2 Either party may assign the benefit of these Terms to:
14.2.1 a person who acquires substantially all of the assets used in its business relating to these Terms; or
14.2.2 any other person with the prior written consent of the other party, which it shall not unreasonably withhold.
14.3 Either party may perform its obligations and exercise its rights under these Terms through any of its Group Companies, and the acts and omissions of any such Group Company shall be deemed to be the acts and omissions of that party.
14.4 Subject to clauses 14.2 and 14.3, these Terms are personal to the parties, and neither party may assign, mortgage, charge, sub-license, or otherwise transfer or deal in, or create any trust over, any of its rights, or sub-contract or otherwise delegate any of its obligations, under these Terms.
14.5 Neither party shall be deemed to be in breach of these Terms, or have any liability to the other, to the extent that it is prevented from carrying out its obligations under these Terms by reason of any circumstances beyond its reasonable control. In the event that such circumstances continue beyond a period of sixty days, the non-affected party shall be entitled to terminate these Terms forthwith upon written notice to the other party.
14.6 Notwithstanding any other provisions in these Terms, a person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Terms.
14.7 Nothing in these Terms shall make either party the partner or agent of the other party.
14.8 Each party acknowledges that in entering into these Terms, it does not rely on any representation or warranty except as expressly set out in these Terms, but nothing in these Terms is intended to limit or exclude any liability for fraudulent misrepresentation.
14.9 No variation of these Terms shall be valid unless agreed in writing by the parties.
14.10 If a party:
14.10.1 fails to exercise, or delays in exercising, a right under these Terms, it shall not be deemed to have waived that right; or
14.10.2 waives its right in relation to a breach of these Terms, it shall not be deemed to have waived its rights in relation to any subsequent breach of the same or any other provision of these Terms.
14.11 The rights of each party under these Terms are cumulative and additional to any other right or remedy.
14.12 Each party shall do all things reasonably necessary to give effect to the provisions of these Terms.
14.13 If any part of these Terms are held illegal or unenforceable by a court of competent jurisdiction, that part shall be deemed not to form part of these Terms in the relevant territory and the enforceability of that part in all other territories and of the remainder of these Terms in all territories shall not be affected.
14.14 Except as otherwise provided in these Terms, each party shall pay its own costs in connection with these Terms.
14.15 These Terms shall be governed by and construed in accordance with the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English courts, however the Publisher reserves the right to take legal action in any competent court of jurisdiction.
© Videojug Limited (2007)