CLICKWORK7 MASTER ADVERTISER AGREEMENT
This Agreement is made between Clickwork7, a brand owned by Submission Technology Limited, a company incorporated under UK law, with its principal place of business located at The Beater House, Turkey Mill, Ashford Road, Maidstone, Kent, ME14 5PP, England and registered office address at Heritage House, 34b North Cray Road, Bexley, Kent, DA5 3LZ, England (Company No. 04456811) (“Company”, “We” or “Us”) and you, as an advertiser or agency acting on behalf of an Advertiser using the Submission Technology service (“Advertiser” or “You”).
2. Advertiser Creative; Advertiser Website
3. Company Service and Site
4. Term and Termination
5. Confidential Information
6. Representations and Warranties; Indemnification
8. Proprietary Rights
9. Privacy and Security of Data
10. Limitation of Liability; Disclaimer of Warranty
11. Governing Law
1.1. “Ad” means any advertisement, including all creative provided to Company by Advertiser.
1.2. “Advertiser” means the entity referenced within the applicable Insertion Order, which may be either the entity that is submitting the advertising or campaigns, or an agency that represents the party that is submitting the advertisements or campaigns.
1.3. “Agency” means an entity or sub-contractor acting on behalf of Advertiser.
1.4. “Campaign” means a series of Ads, emails or offers (delivered either via Ad or via email) of Advertiser or its Agency.
1.5. “Company’s Site” means the website through which the Service is accessed.
1.6. “Effective Date” refers to the date of signature of the Insertion Order and the date of which this Agreement is valid from.
1.7. “Insertion Order” or “IO” means the corresponding Insertion Order, which sets forth all details regarding the Ad or Campaign, and the data transferred for the purposes of this Agreement.
1.8. “Publisher” means the affiliates, websites and/or publishers in Company’s network, which shall access Company’s Site for the purpose of selecting Ads and/or Campaigns.
1.9. “Service” means the process whereby Company posts on Company’s Site, Ads and/or Campaigns of Advertiser, where Publishers select such Ads and/or Campaigns for display on Publisher’s website(s) or other media controlled by Publishers.
2.Advertiser Creative; Advertiser Website.
2.1. Creative. Advertiser will provide Company with the creative materials for the Ads and/or Campaigns, including product/service descriptions, graphic images, logos, and copy (the “Copy”), at least five (5) days prior to Company’s posting of such Ads and/or Campaigns on Company’s Site.
2.2. License. Advertiser grants Company and Publishers a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Advertiser’s name, logos, trademarks, trade names, service marks, URLs and slogans to display, market, promote and publicise Ads on the Service, and on Publisher’s websites, and for the purpose of including Advertiser in Company’s marketing and promotional materials. Advertiser further grants to Company and Publishers a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights, owned or controlled by Advertiser (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Service in accordance with this Agreement. Such License shall terminate immediately upon termination, for any reason, of all Orders then in effect.
2.3. Advertiser Website. Advertiser shall make reasonably commercial efforts to keep the Advertiser website and server receiving data for the purpose of this Agreement generally available 24 hours a day, 7 days a week, to ensure that a third party user’s purchase, registration, lead and any other action related to the Ad and/or Campaign (“User Action”) may be processed on a timely basis. Advertiser must notify Company five (5) working days in advance for any scheduled downtime so that Company has adequate time to notify Publishers who are actively engaged in running the applicable Ads and/or Campaigns.
3.Company Service and Site. Company agrees to provide the Service whereby Publishers are provided access to Ads and/or Campaigns. Company makes reasonably commercial efforts to make the Service generally available 24 hours a day, 7 days a week, except for: (a) planned downtime; or (b) downtime caused by circumstances beyond Company’s reasonable control. Company reserves the right to make changes to Company’ Site at any time. Company reserves the right to update the terms of this Agreement and agrees to notify Advertiser or Advertiser’s Agency with 14 days prior notice to the effective date. Changes will be available to view on Company’s Site. Advertiser’s continued use of Company’s Site after any such modification, notification and consent shall constitute its agreement to such modification.
4.Term and Termination.
4.1. Term. This Agreement shall begin on the Effective Date and remain in effect for the period determined by the Insertion Order. The attached IO will be replaced by any subsequent IO between the two parties, subject to the Agreement as agreed between those two parties. In the event that any subsequent IO replaces the IO attached to this schedule, the Agreement continues to apply.
4.2. This Agreement may be terminated at any time by either party, effective immediately upon written notice, if the other party: (i) ceases to carry on its business or has a receiver, administrative receiver, liquidator or similar official appointed to it or over any part of its undertaking or assets or passes a resolution for its winding up(otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity assumes all of the liabilities of it or is unable to pay its debts as they fall due (iii) breaches any of the material terms of this Agreement which breach is not remedied within thirty (30) days from receipt of written notice of such breach. Either Party may terminate this Agreement, or any Campaign or Ads, effective upon written notice to the other party, for any reason or no reason. Advertiser agrees that if instructed to do so by Company and/or if this Agreement terminates, Advertiser will immediately discontinue the use of the Service.
4.3. In the event of termination of this Agreement: Sections 4, 5, 6, 7, 8, 10 through 12 together with any payment obligations incurred prior to the effective date of termination shall survive.
5.Confidential Information. Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by the Order and these Terms and Conditions, and to refrain from disclosing the other party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under any Order or these Terms and Conditions or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated Company Service, products, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the Service.
6.Representations and Warranties; Indemnification.
6.1. To the extent that Advertiser is an agency (as defined in Section 1 above), such agency represents that it has the authority to bind, and has bound, the advertisers its represents to all terms in this Agreement and any applicable IO, including the representation and warranties.
6.2. Without limiting Section 6.1 above, Advertiser warrants and represents at all times that (a) Advertiser has all necessary rights and authority to enter into this Agreement and to grant Company the licenses granted herein, (b) the execution of this Agreement by Advertiser, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Advertiser is a party or by which itis otherwise bound, (c) the Advertisements, the use and display thereof, and the content linked to from such Advertisements will not: (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party,(ii)be misrepresentative, libellous, defamatory, obscene, or otherwise inappropriate,(iii)violate any applicable law or regulation, or (iv) advertise any unlawful product or service or the unlawful sale of any product or service. In the event this Agreement includes E-mail distribution, Advertiser further represents and warrants that it will comply with all aspects of the Regulation.
6.3. To the extent that Advertiser has requested that Company create and develop certain Ads, Advertiser acknowledges that it has been given the opportunity to reject such Ads, and has approved the Ads and accepted all liability connected to such Ads. In the event that an agency is working on behalf of Advertiser, it is the responsibility of Agency to notify Advertiser of their right to reject or amend the Ad. To the extent that Advertiser takes responsibility for the creation of the Ad, it is the responsibility of Agency to inform Company of the Ad requirements.
6.4. With respect to a Campaign involving E-mails, Advertiser further represents and warrants, that Advertiser has the power and authority to bind itself and any Agency to these representations and warranties; that Advertiser will comply with all aspects of all laws and regulations including but not limited to the General Data Protection Regulation; and Advertiser will not submit a Campaign for transmission of any E-mail: (a) with a “from line” that is materially false or misleading and does not accurately identify the person sending the E-mail; (b) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the E-mail; (c) a clear and conspicuous notice of the opportunity to decline to receive further communications; or (d) with any content that (i) infringes or violates any intellectual, proprietary or privacy rights as set forth in Section 6.2 above; or (ii) is misrepresentative, defamatory or violates any applicable law or regulation as set forth in Section 6.2. Advertiser also represents and warrants that it will not transmit a Campaign including an E-mail to any individual that has requested not to receive any E-mails more than five (5) days after receipt of such request, provided that the E-mail falls within the scope of the request.
6.5. Advertiser agrees to indemnify, defend and hold harmless Company, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys’ fees) resulting from claims or actions arising out of or in connection with the Ads or Advertiser’s breach of this Agreement.
6.6. Company agrees to indemnify, defend and hold harmless Advertiser, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys’ fees) resulting from claims or actions arising out of or in connection with Company’s breach of this Agreement.
7.1. Payment Obligations. Advertiser is obligated to pay Company in accordance with the pricing specified in each I/O. If not specified otherwise, payment shall be prepaid before the start of the campaign and during the term of the campaign. Company may invoice Advertiser, but payment by Advertiser is not contingent upon receiving Company’s invoice. In the event Advertiser fails to pay within five (5) days after payment is due, all outstanding charges shall bear interest at the rate of 1% per annum above the base rate of Lloyds TSB Bank plc. Advertiser agrees that if Advertiser does not pay within five (5) days after payment is due either Company or Publisher may seek to satisfy Advertiser’s payment obligations and to collect such payment. Advertiser further agrees to pay all costs of collection (including court cost and reasonable attorney’s fees) incurred by Company and/or Publisher in connection with its enforcement of any Order. Unless Advertiser objects to Company’s invoice within forty-eight (48) hours, the amount invoiced shall be final and binding. Advertiser may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Advertiser intends to dispute an invoice, Advertiser shall provide a written report to Company, within two (2)business days identifying, in detail, the discrepancies, between the invoiced amount and Advertiser’s evidence. Company may consider such report but shall have final authority in determining the correct amount.
INVOICES WILL BE ISSUED WITH PAYMENT DUE UPON RECEIPT – the advertiser acknowledges that Publishers do not receive payment until Company receives cleared funds and settlement of Company’s invoice(s). Slow payment has a detrimental impact on future campaign performance.
8.Proprietary Rights. Advertiser agrees that it does not have, nor will it claim any right, title or interest in the Service, Company’s Site or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided on Company’s Site (including the Ads). Advertiser will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective Company’s Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service. In addition, Advertiser acknowledges that all information, data and reports received from Company as part of the Services are proprietary to and owned by Company. If instructed to do so by Company, Advertiser will immediately destroy and discontinue the use of any such reports or data, and any other material owned by Company or the third party Advertisers.
9.Privacy and Security of Data.
9.2. Generated leads are the responsibility of Advertiser as a Data Controller. All Parties agree to not process the personal data contained within the leads for any purpose other than to perform the Service under this Agreement. Both Parties agree to erase the personal data when no longer required to perform the Service under this Agreement.
9.3. It is the responsibility of Advertiser, or Agency, to ensure that the IO accurately reflects the leads and personal data sought, including the reason for processing such data. Advertiser, or Agency, agrees to inform Company immediately if it believes that any processing from Company infringes applicable data protection legislation and regulations, including but not limited to, the campaign creative.
9.4. As the performance of the Agreement and the delivery of the Services implies the processing of personal data, it is agreed that both Parties will act as Data Controllers unless otherwise specified in individual contracts between Advertiser and Company. In the event that an Agency is working on behalf of Advertiser, Agency agrees to act as a Data Controller unless otherwise specified in individual contracts between Agency and Company. All Parties to this Agreement agree to: (a) create and maintain a record of its processing activities in relation to this Agreement; (b) not process the personal data for any purpose other than to deliver the Services and to perform its obligations under the Agreement, if either party cannot provide such compliance it will notify the other party without undue delay who will cease processing the personal data related to this Agreement immediately; (c) not disclose the personal data to any person other than to its personnel as necessary to perform its obligations under the Agreement and ensure that such personnel is subject to statutory or contractual confidentiality obligations; (d) take appropriate technical and organisational measures against any unauthorised or unlawful processing, and to evaluate at regular intervals the adequacy of such security measures, amending these measures where necessary; (e) ensure that access, inspection, processing and provision of the personal data shall take place only in accordance with the need-to-know principle, i.e. information shall be provided only to those persons who require the personal data for their work in relation to the performance of the Services; (f) without undue delay, notify the other party about (i) any legally binding request for disclosure of the personal data by a data subject, a judicial or regulatory authority unless otherwise prohibited, such as the obligation under criminal law to preserve the confidentiality of a judicial enquiry (ii) any accidental or unauthorised access, and more in general, any unlawful processing of the personal data related to this Agreement.
9.6. Personal data processed in the context of this Agreement may not be transferred to a country outside the European Economic Area without the prior written consent of Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
10. Limitation of Liability; Disclaimer of Warranty. Except as expressly set forth in this Agreement, neither Party makes any representation and/or warranties of any kind and expressly disclaims all warranties, express or implied, as to the subject matter of this Agreement, including implied warranties of merchantability and fitness for a particular purpose. Neither Party shall be liable for any Ad, Campaign or E-Mail, including but not limited to the content thereof, any unavailability or inoperability of the Internet, unavailability or consequences of any Ad or Campaign, Company’s Site, or Services, or any technical malfunction, computer error, corruption or loss of information related to or arising out of the Services, Company’s Site or any Ad or Campaign. The information and content on Company’s Site and via the service is provided on an “as is” basis with no warranty. In no event shall either Party be liable for any lost profits, lost revenues or for any indirect, incidental, consequential, special or exemplary damages arising out of or related to this agreement, even if such damages are foreseeable and whether or not the other party has been advised of the possibility of such damages. In no event will Company’s liability hereunder exceed the payments made by Advertiser to Company in the 6 months preceding the event giving rise to the claim.
11. Governing Law.
11.1 These general terms and conditions and any agreement between Company and Advertiser and each constituent agreement forming part thereof shall be governed by and construed in accordance with the laws of England and Wales whose courts shall have exclusive jurisdiction over any and all disputes arising out of or in connection therewith.
11.2 If any provision of an agreement between Company and Advertiser shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of it shall remain in full force and effect.