Version: 1.0
Terms last updated: 27 September 2024
Website Advertising Terms and Conditions
- General and Acceptance of these Terms and Conditions
1.1. These Advertising Terms and Conditions (the “Terms”) apply to every advertising agreement entered into between Acroud Media Ltd (the “Publisher”) and the Advertiser or their agent.
1.2. All Advertisements accepted for Publication by the Publisher are accepted subject to these Terms. Any other conditions proposed by the Advertiser shall be void unless accepted by the Publisher in writing.
1.3. By placing an order, the Advertiser accepts and agrees to be bound by these Terms in full.
1.4. These Terms take effect on the date the Publisher issues the Advertisement Confirmation.
1.5. Publisher reserves the right to decline any Insertion Order or decline to publish any Advertisement or decline to undertake any campaign activity and accepts no liability for any loss or damage suffered by, or claim made against, the Advertiser, as result of Publisher’s decision to decline.
2. Definitions and Interpretation
2.1. In these Terms, unless the context otherwise requires, the following expressions have the following meanings:
| “Advertiser” | means the person, company, partnership and/or its agent placing the order for the Advertisement in the Publication, whether they are the advertiser of the product or service referred to in the Advertisement or the advertising agency or media buyer for such advertiser. |
| “Advertisement(s)” | means any kind of promotional or advertising material accepted for Publication by the Publisher; |
| “AdvertisementConfirmation” | means the Publisher’s written confirmation of the Advertiser’s order; |
| “Advertiser Dependencies” | means the obligations of the Advertiser which the Publisher may specify in connection with the proposed Publication of the Advertisement including, but not limited to, the delivery format and/or file configuration in which any copy for the Advertisement is to be supplied to the Publisher; |
| “Advertiser Site” | means websites owned and run by the Advertiser; |
| “Agreement” | means these Advertising Terms and Conditions and the Insertion Order; |
| “Business Day” | means a day (excluding Saturdays) on which banks generally are open for the transaction of normal banking business; |
| “Campaign Term” | Means the Advertisement campaign period stated in the Insertion Order. |
| “Fee” | means the net fees payable by the Advertiser for the Advertisement under the applicable Insertion Order in accordance with Clause 9 (Payment Terms); |
| “Go-live Date” | means the first day of the Campaign Term. |
| “Insertion Order” | means the Publisher’s form used to take Advertisement orders; |
| “Intellectual PropertyRights” | means all intellectual property rights wherever in the world whether registered or unregistered including any application or right of application for such rights including without limitation copyright and related rights moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models,semi-conductor topography rights and rights in designs; |
| “Publication” | means any website operated or controlled by the Publisher or other electronic medium including, but not limited to, e-mail communications and alerts; |
| “Publisher” | Means Acroud Media Ltd with itsregistered office at 14 London Street, Andover, SP10 2PA via varioustrading titles, websites and online publication; |
| “Publisher Site” | means websites owned and run by the Publisher; |
| “Terms” | means these Advertising Terms and Conditions, as amended from time to time. |
| “User” | means any person who accesses the Publisher Site. |
2.2. Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.2.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3 “these Terms” is a reference to these Website Advertising Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.2.4. a Schedule is a schedule to these Terms;
2.2.5.a Clause or paragraph is a reference to a Clause of these Terms (other than the Schedules) or a paragraph of the relevant Schedule;
2.2.6. a “Party” or the “Parties” refer to the parties to these Terms.
2.3.The headings used in these Terms are for convenience only and shall have no effect upon the interpretation of these Terms.
2.4. All references to the singular shall also when appropriate be construed in the plural and vice-versa.
2.5. Any words following the terms including, include, in particular, for example or any similar expression shall be considered as illustrative and shall not limit the sense of the words preceding those terms.
2.6. References to any gender shall include the other gender.
3. Application of these Terms
3.1. All Advertisements accepted for Publication by the Publisher are accepted subject to these Terms which shall apply to the exclusion of all other terms and conditions (including any which the Advertiser purports to apply under any purchase order, confirmation order, specification or other document).
3.2. Any variation to these Terms and any representations about the Advertisement shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Publisher. The Insertion Order shall form part of these Terms.
3.3. Unless circumstances specifically dictate otherwise in connection with the Publication of an Advertisement, no order placed by the Advertiser shall be deemed accepted by the Publisher until the Advertisement Confirmation is issued.
3.4. Notwithstanding any other provision of these Terms, nothing herein shall require the Publisher to do or omit to do anything which would contravene any applicable laws or regulations.
4. Acceptance of the Advertisement
4.1. All Advertising is offered on a first come first served basis. All Advertising will be published in consideration of payment on the net Fee.
4.2. The Publisher reserves the right to refuse to publish an Advertisement, or to omit, suspend or change the position of any Advertisement at its sole discretion and accepts no liability for any loss or damage suffered by, or claim made against, the Advertiser, as result of Publisher’s decision to refuse. The Publisher will consult with the Advertiser in good faith if it decides to exercise such rights.
4.3. The Publisher reserves the right to remove Advertisements immediately and without notice for what it considers justifiable legal reasons, a suspected or actual breach of Advertiser’s warranties at Clause 7 or on receipt of justifiable complaints.
4.4. In either event under Clause 4.3, Advertiser shall not be entitled to a pro rata refund of the Fee based on the number of days unfulfilled in the Campaign Term.
4.5. Subject to Publisher’s right under Clause 4.2., Advertisements are accepted subject to the following conditions:
4.5.1. material provided by the Advertiser being in accordance with the standards and guidelines of the Publisher; and
4.5.2. space being available in the Publication
4.6. Any communication between the Parties with respect to any of the provisions of these Terms shall be in writing and shall be deemed to be duly given and communicated if sent and received by e-mail.
5. Rights and Obligations of the Advertiser
5.1. The Advertiser shall submit copy for the Advertisement at least one (1) Business Day prior to the intended Go-live Date in a format which complies with the Publisher’s ad formats for such content. If the Advertiser submits its copy late then the Publisher reserves the right to publish the Advertisement at a time of its choosing. To alter an order the Advertiser must inform the Publisher by e-mail at least one (1) Business Day before the Go-live Date otherwise the Publisher may not be able to achieve the specified Go-live Date.
5.2. An Advertisement order may be changed as required by the Advertiser, provided adequate time is allowed. Any request by the Advertiser for modification of the advertising material may incur additional charges and may require completion of a new Agreement. The Publisher shall have no obligation to complete any such new Agreement.
5.3. The Advertiser will permit the Publisher to link into the Advertiser Site via the Advertisement during the Campaign Term.
5.4. The Advertiser will inform the Publisher at least three (3) Business Days in advance of any planned changes to the Advertiser Site that might affect the performance of any part of the Publisher obligations under this Agreement.
5.5. If an Advertisement links to another site, the Advertiser is responsible for maintaining the link and for the content of the linked site. The Publisher may remove any Advertisement which contains content or links to a site which, in the Publisher’s opinion, is defamatory or objectionable or will bring the Publisher into disrepute. The Advertiser will indemnify the Publisher from and against any claims or liability arising from links contained in an Advertisement.
5.6. Advertisements may contain only such information and code as is necessary to run the Advertisement effectively on the relevant Publisher Site. Advertisements may not contain tags, cookies, beacons or similar technology which enables the Advertiser or any third party to serve Users with any advertising other than the Advertisement.
5.7. If an Advertisement is supplied which does not comply with these Terms or the Publisher receives complaints regarding an Advertisement, the Publisher may, at its discretion, remove the Advertisement from display without reference or liability to the Advertiser.
5.8. The Advertiser shall report to the Publisher any faults or suspected faults as soon as the suspected faults come to the Advertiser’s attention.
5.9. The Advertiser shall keep confidential all passwords, security identification or encryption details relating to the Publisher.
5.10. All of the Advertiser’s rights to and its registered trademarks, which are incorporated into the Advertisement, shall remain the property of the Advertiser.
5.11. The Advertiser’s sole remedy if the Publisher, or its third party subcontractors who may host and serve Advertisements from time to time, make an error in displaying any Advertisement is the cost of re-running the relevant Advertisement. Neither the Publisher nor its subcontractors shall be liable for failure to display the Advertisement caused by circumstances outside their control.
5.12. The Advertiser shall take all reasonable precautions to avoid supplying or uploading files that contain a virus or corrupted data.
5.13. Where the Publisher provides the facility for the Advertiser to up-date their advertising on-line the Advertiser shall do so at its own risk and the Publisher will not be liable or responsible in any way for mistakes or misrepresentation.
5.14. The provisions set out in this clause apply in addition (save where the context expressly permits) and without prejudice to all other provisions set out in these Terms.
6. Rights and Obligations of the Publisher
6.1. Subject to receipt by the Publisher of the executed Insertion Order and compliance by the Advertiser of these Terms, the Publisher will publish the Advertisement each day during the Campaign Term.
6.2. The Publisher will retain full editorial control over all material appearing on the Publisher Site.
6.3. The Publisher will, if agreed by the Parties in writing, submit all page traffic statistics to the Advertiser within 30 calendar days following the end of each month during the Campaign Term.
6.4. The Publisher shall be entitled at any time to require the Advertiser to amend any material and copy for and relating to any Advertisement, or refuse (without notice) to publish any Advertisement for the purpose of:
6.4.1. complying with any legal or moral obligations placed on the Publisher or the Advertiser; or
6.4.2. avoiding the infringement of: (i) the rights of any third party or (ii) any regulation or code of practice (including the UK Code of Non-broadcast Advertising, and Direct and Promotional Marketing) and all other codes administered by the Advertising Standards Authority; or (iii) any other applicable law.
6.5. The Publisher has at its absolute discretion the right to make any alteration it considers necessary or desirable in an Advertisement, or to require copy to be amended to meet its approval. The Publisher reserves the right to charge the Advertiser for work it carried out to amend materials to conform to its specifications but accepts no liability for such work.
6.6. The Publisher may, without any responsibility to the Advertiser, reject, cancel any Advertisement that it considers unsuitable or contrary to these Terms.
6.7 The Publisher reserves the right at its discretion and without notice to the Advertiser:
6.7.1. to decline to publish, or omit, alter, suspend or change the position of any Advertisement otherwise accepted for Publication. However, the Publisher will endeavour to comply with the reasonable and practicable wishes of the Advertiser although the Publisher does not warrant the date of publication, the wording, or the quality of the Advertisement; and
6.7.2. to destroy all copies or other materials submitted by the Advertiser and which have been in the Publisher’s possession for more than six months from the date of their last use by the Publisher, unless specific written instructions have been received from the Advertiser to the contrary.
6.8. The Publisher may refuse to publish any Advertisement for any Advertiser who has not paid any sums due for any advertising. The Advertiser will remain responsible for all outstanding charges.
6.9. All copyright and all other rights of a similar nature that are created or exist in material originated by the Publisher in connection with the Publication of the Advertisement remain vested in the Publisher and the Advertiser hereby assigns all such copyright to the Publisher.
6.10 The Publisher shall provide the advertising service with reasonable care and skill in a professional and timely manner and in-line with the specification unless otherwise agreed by both the Publisher and Advertiser. Notwithstanding the foregoing, the Advertiser acknowledges and agrees that it is technically impossible to provide an on-line service which is 100% free of faults and/or downtime and that the Publisher does not undertake to do so.
6.11. The Publisher may at any time vary the technical specifications of the advertisement service (or any part of it) for operational reasons.
6.12. From time to time the Publisher may carry out without notice maintenance to its equipment and systems, and shall use all reasonable endeavours to ensure that where possible minimum disruption to the service is caused.
6.13. All goodwill arising in connection with any current or future trade names associated with the Publisher and the logos of the Publisher shall belong to the Publisher.
6.14. The Publisher does not monitor or control and shall not be held responsible for the content of the website, messages, bulletin boards or internet groups related to the Advertiser. The Advertiser agrees that all such matters are its own responsibility.
6.15. The Publisher reserves the right to re-design parts of or the entire website and to re-position advertising and sponsorship accordingly without prior notice.
6.16. Positioning of Advertisements is at the sole discretion of the Publisher except where a request for a specific preferred position is agreed between the Parties in writing. Unless otherwise agreed by the Publisher, materials must be received by the agreed date; otherwise position may be lost, or reduced.
6.17. The Publisher warrants to the Advertiser that:
6.17.1.it has the full power and authority to enter into and perform this Agreement and have not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement; and
6.17.2. it will use reasonable skill and care in carrying out the Advertisement(s).
7. Advertiser’s Warranties and Indemnities
7.1 The Advertiser hereby warrants, represents and undertakes to the Publisher that:
7.1.1. in relation to any and all Advertisements, the Advertiser contracts with the Publisher as principal. Where an advertising agency is used the relationship between the Publisher and the agency is that the Advertisement is and shall be treated as issued by the Advertiser as a principal and there shall be no contract between the Advertiser’s client and the Publisher, nor shall the Advertiser’s client be able to claim upon the contract of the agency with the Publisher;
7.1.2. where the Advertiser is an advertising agency or media buyer, the Advertiser guarantees that it is authorised by the advertiser of a product or service to place the Advertisement with the Publisher and the Advertiser will compensate the Publisher for any claim made by such advertiser against it;
7.1.3. it has the full power and authority to enter into and perform this Agreement and has not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement;
7.1.4. the Advertiser shall not assign or transfer or otherwise part with this Agreement without the Publisher’s written consent. Where two or more persons are named as the Advertiser, their liability shall be joint and several;
7.1.5. any information supplied in connection with the Advertisement is accurate, complete, true and not misleading;
7.1.6. it has obtained the consent of any living person whose name or image (in whole or in part) is contained in any Advertisement;
7.1.7. the Advertisements comply with the relevant Code of Advertising, Sales Promotion and Direct Marketing and all other relevant codes and are not in breach of any relevant legislation or regulation, which applies to specific advertisers, products or services;
7.1.8. the Advertisements are legal, decent, honest and truthful, are not contrary to the provisions of any applicable law, regulation or code of practice, are not libellous, obscene, discriminatory, misleading and do not infringe the rights of any person (including any person’s intellectual property rights);
7.1.9. the Publication of the Advertisement by the Publisher will not breach any contract with a third party or infringe any copyright, trade mark or other proprietary right of any third party or otherwise be unlawful or render the Publisher liable to any proceedings, claims, demands, costs or expenses or any other loss whatsoever;
7.1.10 it has all necessary rights, licences and consents to incorporate or to allow the incorporation by the Publisher of any materials provided by the Advertiser to be published and to link the Publisher to any websites owned by the Advertiser or any third parties to which the Advertiser wishes the Publisher to be linked;
7.1.11. the Advertisement will not be prejudicial to the image or reputation of the Publisher;
7.1.12. all Advertisements submitted for publication by electronic means shall not contain software viruses or any other computer code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, and shall not be corrupted;
7.1.13. should the Advertiser change its name, trading style, identity, address, or should any other details disclosed by the Advertiser to the Publisher change, the Advertiser will give written notice to the Publisher within three (3) Business Days of such change(s);
7.1.14. any and all other Advertiser Dependencies will be met and, unless otherwise agreed in writing by the Publisher; all copy for any Advertisements will be delivered to the Publisher in an approved digital format and/or file configuration;
7.1.15. the Advertiser has retained sufficient quantity and quality of any artwork, film or other materials and copy relating to the Advertisement as the Publisher shall not be liable for the loss of or damage to any of these items submitted to the Publisher.
7.2. The placing of an order for the insertion of an Advertising on the Publisher Site shall constitute an undertaking by the Advertiser to the Publisher that any site linked into via the Advertisement:
7.2.1. complies with all relevant consumer protection legislation and advertising codes; and
7.2.2. does not contain material that is obscene, blasphemous, defamatory, infringing of any rights of any third party or otherwise legally actionable under any civil or criminal laws in force in any legal jurisdiction from which the Advertisement will be accessible or which might bring the Publisher into disrepute.
7.3. The Advertiser will indemnify and hold harmless the Publisher from and against any claim that the Advertisement infringes the copyright, trademark or other intellectual property rights of any person or that it is defamatory or infringes any other right of any person. The Publisher reserves the right to withdraw and/or refuse to publish an Advertisement without liability to the Advertiser if it reasonably believes that the Advertisement may make the Publisher or the Advertiser liable to any complaint, claim or proceedings.
7.4. The Advertiser will fully indemnify the Publisher for all claims, losses or expenses arising as a result of any breach or failure to perform of any of these Terms and/or the use or Publication of the Advertisement by the Publisher in accordance with these Terms, including but not limited to, all costs and expenses (including legal costs) incurred by the Publisher in (a) finding the Advertiser’s address if the Advertiser changes address and fails to notify the Publisher and (b) in recovering any sums due to it under the Agreement.
7.5. The Advertiser is solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Advertisement relates and will indemnify and hold the Publisher harmless accordingly.
7.6. The Advertisers agrees to indemnify the Publisher and keep it indemnified at all times against all claims, proceedings, demands, damages, liabilities, costs, expenses or any other loss whatsoever arising in connection with or further to (i) the Publication of the Advertisement or (ii) any breach of the Advertiser’s obligations under these Terms or implied by law.
7.7. The Advertiser agrees that questions and complaints from individuals accessing Advertisements or any related materials, articles supplied by the Advertiser, goods or services offered by the Advertiser shall be the exclusive responsibility of the Advertiser and the Advertiser shall indemnify the Publisher in respect of any claims or complaints brought against the Publisher.
7.8. All conditions, representations, warranties or other terms which might have effect between Publisher and the Advertiser or be implied or incorporated into these Terms are, to the fullest extent permitted by law, hereby excluded.
8. Liability of the Publisher
8.1. The Publisher accepts no responsibility for any interruption or delays the Advertiser experiences in delivering any Advertisement copy to the Publisher or any loss or damage to any Advertisement copy or any other materials. The Advertiser guarantees that it has retained sufficient quality and quantity of all materials supplied to the Publisher.
8.2. The Publisher shall use its reasonable endeavours to reproduce Advertisements as provided by the Advertiser but cannot guarantee that the Advertisement will be of the same quality.
8.3. The Publisher will not be responsible for any additions to, changes in, deletions from, delays in Publication or withdrawal of any Advertisements required by any authority having responsibility for the regulation of advertising.
8.4. The Publisher cannot guarantee the time, dates and/or position of Advertisements and all such decisions will be at the sole discretion of the Publisher. However, the Publisher will use reasonable efforts to comply with the wishes of the Advertiser.
8.5. If a booked Advertisement is not published at all solely due to a mistake on the Publisher’s part, the Publisher will try to offer an alternative publication date(s). If the alternative date(s) is not accepted, the original booking will be cancelled and the Advertiser shall be entitled to a full refund if the Advertiser has paid in advance for the Advertisement. This shall be the Advertiser’s sole remedy for failure to publish the Advertisement.
8.6. If the Advertisement as reproduced by the Publisher contains a substantial error solely due to a mistake on the Publisher’s part, the Publisher shall, on request, re-publish the Advertisement at no additional cost to the Advertiser. The Publisher shall not be responsible for repetition of errors and it is the Advertiser’s responsibility to inform the Publisher of any errors and provide any necessary assistance to the Publisher to prevent a repeat of the error.
8.7. The Publisher shall not be liable, under any circumstances, for any consequential, special, indirect, exemplary, punitive, or other damages, including but not limited to, damages for loss of profit, loss of data, loss of opportunity, loss of goodwill, loss of anticipated saving, loss of revenue and/or any other loss which happens as a side effect of the main loss suffered by the Advertiser, even if Publisher has been advised of the possibility of such damages, and the Publisher’s maximum total liability for any loss or damage arising out of or in relation to this Agreement or to any Advertisement, whether based in contract, tort (including negligence) or otherwise, shall not exceed the total amount of the Fee actually paid by or on behalf of the Advertiser for the Advertisement.
8.8. The Publisher will not be liable for any loss or damage direct or consequential, occasioned by error in the positioning of or omission to publish any Advertisement or for late publication of an Advertisement or failure to perform any other obligation whether occasioned by negligence or otherwise save in cases occasioned by the direct negligence of the Publisher, in which case compensation may be negotiated up to a maximum of the cost of the Advertisement paid for by the Advertiser.
8.9. In respect of Advertisements on the Publisher Sites, the Publisher does not guarantee continuous, uninterrupted access by Users of the Sites but will use reasonable efforts to provide this. In addition, the Publisher will not be responsible for any failure or delay affecting the transmission of the Sites and any Advertisements contained in them, in any manner where such failure or delay results from any act, omission, interruption, fault or other condition beyond the reasonable control of the Publisher.
8.10. For the avoidance of doubt, nothing in these Terms will limit or exclude the Publisher’s responsibility for death or personal injury resulting from its own negligence, fraud or any other liability that cannot be excluded.
8.11. With regard to the actual or intended insertion of an Advertisement the Publisher shall not be responsible to the Advertiser or liable for:
8.11.1 checking the correctness of the Advertisement in the form it is received from the Advertiser;
8.11.2. any error in the Advertisement in the form it is received from the Advertiser;
8.11.3. the wording, representation, placement or quality of colour or mono reproduction of the Advertisement;
8.11.4. the actual positioning or prominence of the Advertisement;
8.11.5. the repetition of any error in an Advertisement ordered for more than one insertion;
8.11.6. the distribution of the Publication in a specific geographical area;
8.11.7. the failure, corruption or malfunction of any system of electronic publication, whether by means of electronic storage, display or retrieval equipment or otherwise;
8.11.8. any order given by the Advertiser in the nature of a “stop order”; or cancellation or transfer of the publication of the Advertisement unless it is given to the Publisher in writing at least one (1) Business Days before the intended Go-live Date;
8.11.9. any failure of the Advertisement to meet or generate any target response levels or page impressions.
9. Payment Terms
9.1. Payment for any Advertisement or any other goods or services is due immediately upon receipt of Publisher’s invoice and must be paid in advance of the Go-live Date of the Advertisement.
9.2. If the Advertiser:
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- fails to pay the Publisher’s invoice in accordance with these Terms or any separate agreed invoice terms; or
- Is in breach of any obligation under these Terms, the Publisher shall be entitled to terminate its contract with the Advertiser immediately (without prejudice to any other right or remedy available to the Publisher whether under these Term or otherwise) and, without prejudice to the Publisher’s right to terminate its contract with the Advertiser in such circumstances, any outstanding balance, as applicable, owed by the Advertiser shall become due and payable immediately.
- All the rates and charges payable under or with reference to these Terms are subject to and exclusive of Value Added Tax which shall be charged in addition at the rate from time to time in force.
- The Publisher reserves the right at its discretion and without notice to the Advertiser to charge the Advertiser for any extra work carried out because of any act or omission by the Advertiser to supply copy or other materials of sufficient quality or otherwise in accordance with these Terms.
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10. Cancellation
10.1. The Advertiser may cancel an Advertisement, without charge, provided that notice to cancel is received in writing by the Publisher at least one (1) Business Days before the start of the Go-live Date.
10.2. The Publisher shall not be bound by any request from the Advertiser to stop, cancel or suspend an Advertisement unless such request is in writing and confirmed in writing by the Publisher.
10.3. If the Advertiser is insolvent or bankrupt or is otherwise in breach of these Terms the Publisher may treat the order as cancelled.
10.4. If the Advertiser has paid sums for Advertisements in advance and is entitled to a refund, the Publisher shall use its reasonable endeavours to pay such refund to the Advertiser within 10 Business Days of receipt of the written notice of cancellation.
10.5. If the Advertiser, part way through wish to stop or cancel an Advertisement that is being displayed for an agreed period of time, then the Advertiser must given written notice to the Publisher of its request to stop or cancel the Advertisement and all charges connected with the display of the Advertisement shall, unless otherwise expressly agreed by the Publisher in writing, be non-refundable.
11. Termination
11.1 These Terms shall automatically expire, without the need for any notice, on the last date of the Campaign Term.
11.2 Both Parties shall have the right to terminate this Agreement upon the giving of written notice in the event of any of the following events:
11.2.1. if the other commits any material breach of its obligations under these Terms which, in the case of a breach capable of remedy, is not remedied within five (5) Business Days of service of a notice specifying the breach and requiring it to be remedied;
11.2.2. if the other being an individual dies or makes voluntary arrangement with his creditors or his estate becomes subject to an administration order or he becomes bankrupt;
11.2.3. if the other being a company becomes insolvent, has a receiver appointed to manage its assets or it enters into liquidation or commences to be wound up (other than for the purpose of amalgamation or reconstruction); or
11.2.4. if the other Party is not able to perform its obligations under these Terms to the extent that this failure is the result of any cause or circumstance beyond the reasonable control of that Party and that failure could not have been prevented or overcome by that Party acting reasonably and prudently.
11.3. Publisher may terminate this Agreement immediately, without penalty or further liability, if:
11.3.1. ordered to do so, whether formally or informally, by any state or federal law regulatory authority having jurisdiction over Publisher, or if such regulatory authority threatens formal or informal administrative or legal action to prohibit or restrict Publisher from performing its obligations under this Agreement; or
11.3.2. a change in law, regulation or decision or order of any court of competent jurisdiction or regulatory agency or administration body makes it impossible or substantially impracticable for Publisher to continue with its obligations hereunder.
11.4. In either event under Clause 11.3, Advertiser shall be entitled to a pro rata refund of the Fee based on the number of days unfulfilled in the Campaign Term.
11.5. Upon termination of this Agreement for any reason whatsoever:
11.5.1. the Publisher will remove the Advertisement; and
11.5.2. the Advertiser will account to the Publisher for the net Fee due up to and including the last day of the Campaign Term or date of termination, as applicable.
11.5.3. Termination of this Agreement shall be without prejudice to any rights accrued by a Party before termination.
12. Notices
Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and be delivered by email to the Party’s email address provided in the Insertion Order or as notified by the Party from time to time. Copies of all notices sent to Publisher must also be sent by email to [email protected]. Any email sent is deemed received at the time of transmission or, if this time falls outside business hours, when business hours resume. “Business hours” means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the UK.
13. Force Majeure
Publisher will not be liable for any failure or delay to comply with its obligations in these Terms (including any failure or delay to publish the Advertisements), where such failure or delay is caused by something outside of Publisher’s control, including, fire, flood, hurricane, war, hostilities, political unrest, riots, civil commotion, accidents, epidemics, pandemics, power outage or interconnectivity problems, ransomware attack, computer virus, cyber-attack, cyber-crime or any other form of attack on Publisher’s systems, supervening legislation or any other circumstances amounting to force majeure.
14. Confidentiality
The Advertiser and Publisher shall each keep confidential, any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other.
15. Assignment
The Advertiser shall not assign, transfer, sub-license, sub-distribute, mortgage, charge or in any other way dispose of any of its rights, interest or obligations under this Agreement to any person or organisation without the Publisher’s prior written consent.
16. Severability
Where one or more of the provisions of these Terms are declared invalid, illegal or unenforceable by a court or other authority of competent jurisdiction, then those provisions shall be deemed severed from the remainder of these Terms which shall continue in full force and effect with respect to the enforceable provisions.
17. Third Parties
None of the provisions of these Terms are intended to confer a benefit on or be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
18. No Publication
Advertiser shall not issue any press releases, publicity, or make any other announcement or disclosure regarding these Terms or the nature or existence of the relationship with Publisher without the prior written consent of Publisher in each case.
19. Variations
No addition to or modification of any provision of these Terms shall be binding on the Parties unless made by a written instrument and signed by a duly authorised representative of each of the Parties.
20. Relationship of the Parties
Nothing in these Terms shall be construed as creating a partnership or joint venture of any kind between the Parties or as constituting either Party as the agent of the other Party for any purpose whatsoever and neither Party shall have the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party in any way or for any purpose.
21. Waiver
The failure or delay by either Party to enforce any rights or remedy provided under these Terms or by law shall not be a waiver of that right or remedy or of the right at any time subsequently to enforce all the Terms.
22. Entire Agreement
This Agreement sets out the entire agreement and understanding between the Parties in respect of the Advertisements and supersedes any previous agreements, arrangements, undertakings or proposals written or oral between the Parties. These Terms shall apply to the exclusion of all other terms and conditions which the Advertiser purports to apply to the purchase of Advertisements (including, without limitation, terms in any insertion order, e-mail or acknowledgement).
23. Governing Law and Jurisdiction
These Terms (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales. The Parties hereby submit to the exclusive jurisdiction of the English courts in respect of any dispute, controversy, claim or matter arising out of or connected with this Agreement.
