Insertion Order Terms and Conditions of Business

  1. INTERPRETATION

1.1       The following words and expressions shall have the following meanings unless the context otherwise requires:

“Adserver” means the software engine whose purpose is the serving, tracking, and analysing the delivery of Advertisements on the internet, operated by Us and hosted on Our servers (the term “Adserver” incorporates the provision of both the software and the server environment on which it is hosted) that will serve and/or track Advertisements;

”Advertisement” means any electronic advertisement, series of electronic advertisements, link, Native Content or promotion of the type specified in the Insertion Order and relating to the product, services or topic specified in the Insertion Order, and includes any active URLs and any artwork, graphics or text intended for reproduction as an Advertisement and put forward by the Advertiser;

“Advertiser” means an advertising agency (where an advertising agency is used) or any person, partnership or company and/or its agent placing bookings for the insertion of an Advertisement for their own or a third party’s account;

“Advertising Rate” means the rate agreed by the parties from time to time and detailed in the Insertion Order;

“Advertising Space” means display banners, skyscrapers, adbars or web pages as detailed on the Insertion Order;

“Agency Commission” means commission payable at an agreed percentage of the Advertising Rate;

“Agreement” has the meaning set out in clause 2.1;

“Applicable Laws” means all applicable legislation, common law rules, Advertising Standards Association (“ASA”) adjudications, bulletins, codes (including any self-regulatory codes), guidance notes, guidance, rules, regulations, requirements, rulings restrictions, standards, directions and licence obligations (including any of the above issued by any Competent Authority and the British Codes of Advertising, Sales Promotion and Direct Marketing and other codes of practice written by the Committee of Advertising Practice and enforced by the ASA) in each case amended, varied or replaced from time to time;

“Campaign” means the campaign specified in the Insertion Order;

“Campaign Dates” means the preferred campaign dates specified in the Insertion Order for the display of the Advertisement on the Site;

”Campaign Start Date” means the agreed campaign start date set out in the Insertion Order;

“Competent Authority” includes any national or supra-national court, the European Commission, any government or local authority, any other person exercising powers equivalent to any legislation, any other equivalent, similar or other official person (including OFCOM and the ASA) and any other self-regulatory body or industry body (including the UK Association of Online Publishers and the UK Internet Advertising Bureau);

”Force Majeure Event” means any cause affecting the performance by a party of its obligations arising from acts, events, omissions or non-events beyond its reasonable control, including industrial disputes of any sort whether involving the relevant party’s workforce or any other party’s workforce, default of suppliers, failure of utility services or transport networks, acts of God, riots, war, acts of terrorism, civil commotion, malicious damage, compliance with any governmental order, rule, regulation or direction, accident, breakdown of machinery or plant, fire, flood, storm or earthquake and any disaster;

”Frequency Discount” means a reduction in the price which We agree in return for repeat or bulk orders;

”Group” means CAN Digital Solutions Limited, any subsidiary or any holding company from time to time of CAN Digital Solutions Limited, and any subsidiary from time to time of a holding company of CAN Digital Solutions Limited. Each company in a Group is a member of the Group. For these purposes a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006;

“Insertion Order” means Our written confirmation using Our Insertion Order form (by post, fax or email) that an Advertisement booking has been accepted;

“Native Content” means an article written by or on behalf of an Advertiser that will appear in an Advertising Space on one or more of Our Sites;

”Policies’ means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with the Our or a Third Party’s  public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Advertisements are to appear), other editorial or advertising policies, and due dates for the provision of any artwork, graphics or text intended for reproduction as an Advertisement and put forward by the Advertiser;

“Site” means a website or intranet site specified on an Insertion Order which We either own, operate, or control, or on which We have a contractual right to place

Advertisements;

”Terms” means these terms and conditions;

”Third Party” means an entity or person that is not an Advertiser or party  to an Insertion Order;

“Third Party Cookies” means cookies or other similar technology placed on a user’s browser or hard drive via a website in order to track that person’s particular interests and assist in targeted advertising;

“We (and Us and Our)” means CAN Digital Solutions Limited, Registered in England and Wales, Company no 8706148, VAT no 221074357, Registered Office at 4th Floor. 18 Saint Cross Street, London, EC1N 8UN;

”Working Day” means each day excluding Saturdays, Sundays and English bank and other public holidays.

  1. Basis of Contract

2.1       The Advertiser wishes to purchase Advertising Space and display Advertisements on Sites.  These Terms and the Insertion Order are, taken together, a legally binding contract (the “Agreement”) between the Advertiser and Us relating to the display of those Advertisements.

2.2       When the Advertiser confirms an Insertion Order to Us (orally or in writing, using email, fax or any other means), that confirmation constitutes its acceptance of, and its agreement to be bound by, these Terms and the Insertion Order irrespective of whether or not the Advertiser has signed and/or returned the Insertion Order to Us.

2.3       These Terms and the Insertion Order may only be amended or disapplied if We agree to do so in writing.  The Insertion Order will prevail if there is any conflict between these Terms and the provisions of the Insertion Order.  Any other terms and conditions which the Advertiser may wish to introduce are excluded.

  1. Agency as Principal

Where the Advertiser is an Agency, the Agency will be considered to be contracting as a principal and not as an agent on behalf of its clients.  As such, it will be responsible for the payment of all amounts due to Us and for performing all the of Advertiser’s obligations set out in these Terms.

  1. Acceptance of Advertisements

4.1       Advertisements will be accepted subject to the following conditions:

4.1.1   an Advertisement will only be displayed on a Site if We, in Our absolute discretion, have first approved it;

4.1.2   We must have received an Advertisement no later than 2 working days before the relevant Campaign Start Date and it is the responsibility of the Advertiser to supply the Advertising on time, and in any form that We may specify;

4.1.3   an Advertisement must satisfy any technical requirements which We may specify from time to time (and, in particular, must comply with the specific requirements in Clause 6.2);

4.1.4   an Advertisement must comply with all Applicable Laws and must reflect not only the letter, but also the spirit of those Applicable Laws and the Advertiser is responsible for ensuring that Advertisements which it submits comply with both the letter and the spirit of Applicable Laws;

4.1.5   We reserve the right to involve a Third Party in the approval of Advertisements and we may require that Advertisements are submitted directly to a Third Party for approval before they are submitted to Us, and if that Third Party has any instructions, requirements or guidelines for Advertisements, the Advertiser must comply with these and agrees that it will do so.

4.1.6   Advertising Space being available; and

4.1.7   the Advertisement being compliant with Policies.

4.2       We have, in Our absolute discretion, the right to omit, suspend or change the position of any Advertisement which we may have accepted for any reason whatsoever, including but not limited to the following reasons:

4.2.1   to comply with legal or moral obligations placed on Us or any Advertiser; and

4.2.2   to avoid infringing a Third Party’s rights, the British Code of Advertising Practice and all other codes under the general supervision of the ASA.

4.3       If, for any reason and within Our absolute discretion, We decide, at any time (including after the Campaign Start Date), that an Advertisement is unsuitable (for example, because it does not meet the requirements of Clause 7.2) We may remove that Advertisement. We will notify the Advertiser in writing and the Advertiser must supply an alternative Advertisement or Advertisements within 2 Working Days of receiving the notification unless We agree otherwise in writing. If the alternative Advertisement is not accepted, We may, in Our discretion, repeat a previously-accepted Advertisement or publish other suitable material and We reserve the right to charge the Advertiser in full for the Advertising Space booked.

4.4       Where any Competent Authority requires Us to do so, We may make any additions to, changes to, or deletions from any Advertisement.  We may inform the Advertiser prior to making any addition, change or deletion, where it is reasonably practicable for Us to do so.

4.5       If an Advertisement does not comply with the Terms, We will be permitted to reject or change the Advertisement to comply. Such changes may include (but will not be limited to) reformatting, cropping, resizing and editing.

4.6       If an Advertisement does not comply with any Applicable Laws, or any Competent Authority requires the removal of any Advertisement, We reserve the right to remove the Advertisement at any time and without notice to the Advertiser and to charge the Advertiser in full for all page impressions referred to in the Insertion Order.

4.7       If We fail to accept, or remove or change any Advertisement for reasons set out  in clauses 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 (and 7.2), We will not incur any liability to the Advertiser for any damage or loss arising out of or in connection which such rejection or change.

4.8       It is the responsibility of the Advertiser to check that an Advertisement is correct. We accept no liability for any error in an Advertisement, or in the case of multiple Advertisements the repetition of an error, unless that error has been notified to Us immediately at the point at which the error occurs and until We have had a reasonable opportunity and a reasonable amount of time to correct the error.

4.9       We are under no obligation to change an Advertisement that has been accepted in accordance with this clause 4. Any revisions to Advertising Materials will be made in writing and acknowledged by the other party in writing.

        5. Cookies

5.1       The parties acknowledge that the Privacy and Communications (EC Directive) Amendment Regulations (the “Cookie Regulations”) are relevant to Third Party Cookies.  The Cookie Regulations impose an obligation on those setting cookies to:

(a)   provide clear and comprehensive information about Third Party Cookies;

(b)   obtain the user’s informed, freely-given and unambiguous consent to the planting of the cookie; and

(c)    provide information to users about how they can disable Third Party Cookies.

5.2       The parties acknowledge that all organisations which form part of the online advertising sales value chain must co-operate to ensure compliance with the Cookie Regulations

5.3       We will publish information about the cookies (and/or, where relevant, will ensure that such information is published) which will be included within any Advertisement together with information about how cookies can be disabled.

       6  Confirmation of Campaign Initiation.

6.1       We will, within two (2) Working Days of the Campaign Start Date detailed in the Insertion Order, confirm to the Advertiser, either electronically or in writing, stating whether the components of the Insertion Order have begun delivery.

6.2       If We are serving the Campaign, We will provide regular reports to the Advertiser. Reports will be provided electronically unless the Advertiser specifies otherwise in the Insertion Order. Reports will be in summary form, by Advertisement, materials execution, content area (Advertisement placement), impressions, clicks, spend/cost, screenshots and other variables defined in the Insertion Order.

6.3       We will track delivery through Our Adserver and this will override any ad server used by the Advertiser.

6.4       We will use reasonable endeavours to display an Advertisement on the Campaign Dates, but the Advertiser acknowledges and agrees that We make no commitment that the Advertisement will be displayed on any such dates.  The Advertiser also acknowledges and agrees that We may change the date, time and any aspect of the display of the Advertisement as We may see fit in order to comply with any Applicable Laws or any other change in circumstances.  We will not be responsible for and accept no liability for the content, nature or subject matter of any of any other advertising displayed on the Sites and the effect or consequences that any such advertising may have on the effectiveness of any Advertisement which We may display on the Sites on behalf of the Advertiser.

6.5       If the display of an Advertisement does not take place at all, or if such display only takes place in part, in each case through no fault of the Advertiser, subject to clauses 6.4, 6.6 and 6.7, we will use reasonable endeavours to agree with the Advertiser another display date of reasonably equivalent value.  Except as provided for in this clause 6.5, We will not be liable for any loss arising out of or in connection with any failure to display an Advertisement in whole or in part at any date or time or at all.

6.6      If an Advertisement is displayed, but is displayed incorrectly through no fault of the Advertiser, such failure shall not constitute a breach of this Agreement.  However, without prejudice to this, We and the Advertiser will use reasonable endeavours to agree how to compensate the Advertiser.

6.7       If the impressions set out in the Insertion Order are not delivered within the Campaign Dates,  We will arrange to display the Advertisement as soon as reasonably practicable in the period following the end of the Campaign for such time as is necessary to generate a number of page impressions equal to any shortfall.

  1. Advertisement content and warranties

7.1       The Advertiser warrants to Us that:

7.1.1   it has the full power and authority to enter into and perform the Terms;

7.1.2   it complies with all applicable laws, rules and regulations and any industry codes or rules (by which the Advertiser or We may be bound) that are in force at the time when the Advertisement is to be inserted;

7.1.3   the Advertisement, and any website to which it includes links, does not contain software viruses, worms, Trojan Horses or other harmful computer code which may interfere with or disrupt the integrity or performance of the Sites;

7.1.4   the Advertisement, and any website to which it includes links, does not contain any material that breaches or would breach any contract or infringe or violate any copyright, trademark or any other personal or proprietary right of any person or render Us or any third party liable to any claims or proceedings whatsoever;

7.1.5   in respect of any Advertisement submitted which contains the name or pictorial representation (photographic or otherwise) of any living person and / or any part of any living person and / or copy by which any living person is or can be identified, the Advertiser has obtained any authority of such living person to make use of such name, representation and / or copy;

7.1.6   the Advertisement submitted, and any website to which it includes links, is not obscene or libellous; and

7.1.7   the Advertisement and any information submitted must be legal, decent, honest and truthful and comply with the British Code of Advertising Practice and all other relevant codes under the general supervision of the Advertising Standards Authority.

7.2       the Advertisement shall meet any creative requirements which We may specify from time to time and, in particular, the Advertiser shall ensure that any Advertisement meets the following specific requirements:

7.2.1   any moving content that lasts more than 5 seconds must provide a pause function or ensure it stops within 5 seconds;

7.2.2   colour contrast must meet 4.5:1 contrast ratio; and

7.2.3.  Advertisements must have appropriate and descriptive alt text.

7.3       The Advertiser agrees to indemnify Us and keep Us indemnified against all claims, costs, proceedings, demands, losses, damages or expenses whatsoever arising directly or indirectly as a result of any breach or non-performance of any of the representations, warranties or other terms contained in clause 7 or implied by law.

  1. Payment

8.1       We will invoice the Advertiser for the agreed Advertising Rate. Invoices will be due and payable within 30 days of the date of the invoice or as specified in the Insertion Order.  Payments must be made in pounds Sterling, in full without set off, counterclaim, deduction or any withholding and are subject to VAT at the applicable rate.

8.2       Subject to clause 8.3 below, the Advertising Rate to be paid by the Advertiser is subject to any discounts which We have agreed in writing with the Advertiser.

8.3       We do not guarantee the number of page impressions on the Site or the number of persons who will view the Advertisement.  The Advertiser acknowledges and agrees that Campaign Dates are based on an estimate of the number of page impressions over a specified period and, consequently, that the number of page impressions for an Advertisement will vary depending on the number of page impressions during the Campaign Dates.

8.4       We will use reasonable endeavours to provide Campaign reports to the Advertiser showing actual delivery against Campaign targets at regular intervals, the frequency of which will be agreed by the parties in advance.

8.5       If We discover an error in the Advertising Rate for the Advertising Space booked by the Advertiser, We will notify the Advertiser as soon as possible providing the Advertiser the option of either reconfirming the booking at the correct Advertising Rate or cancelling the booking. If We are unable to contact the Advertiser for the purposes of this clause 8.5, the booking shall be deemed cancelled and where the Advertiser has already made payment for the Advertising Rate this shall be refunded in full.

8.6       In the event that payment is not made by the due date in accordance with clause 8.1 above (in respect of which time shall be of the essence) We reserve the right to charge interest on the amount outstanding at a rate of 4% above the base rate of Barclays Bank plc accruing daily.

  1. Contract cancellation

9.1       If the Advertiser wants to cancel an Insertion Order before the intended Campaign Start Date the Advertiser will remain liable to:

(a)   reimburse Us any third party costs which we have incurred in respect of the Insertion Order; and

(b)   pay Us a cancellation fee of 50% of the total fee in the Insertion Order.

9.2       If the Advertiser wants to cancel an Insertion Order after the Campaign Start Date, the Advertiser will be liable to:

(a)   pay Us for total number of Impressions delivered;

(b)   pay Us 50% of the remaining Impressions, and any other reasonable wasted costs which we incur in relation to the cancellation of the Campaign; and

(c)  pay Us £250 per Site for the removal of any Native Content.

9.3       We reserve the right to repeat previously accepted Advertisements if an Advertisement is not received by the Campaign Start Date and the Advertiser will pay Us in full for the Advertising Space booked.

9.4       Any Frequency Discount which we have granted to the Advertiser for multiple Advertisement insertions will apply only in the event that all the Advertisements contemplated are placed. In the event that the Advertiser cancels or does not include any multiple Advertisements, the Advertiser will lose the right to the Frequency Discount for all Advertisements that have been placed.

9.5       We will use commercially reasonable efforts to provide the Advertiser with at least 10 Working Days prior notification of any material changes to a Site which would materially change the target audience or materially affect the size or placement of the Advertisement specified on the applicable Insertion Order. If such a modification occurs with or without notice, the Advertiser may cancel the remainder of the affected placement without any penalty within the 10-day notice period. If We have failed to provide such notification, the Advertiser may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Advertisements delivered after such modification.

  1. Indemnity and liability

10.1     Nothing in these Terms excludes or limits Our liability for death or personal injury caused by Our negligence or any other liability which may not otherwise be limited or excluded under applicable law.

10.2     Subject to clause 10.1, Our aggregate liability (whether in contract, tort or otherwise) for loss or damage shall in any event be limited to a sum equal to the amount paid or payable by the Advertiser to Us (less VAT) for the display of an Advertisement in the Advertising Space in respect of one incident or series of incidents attributable to the same cause.

10.3     Subject to clause 10.2 above, We will not be liable in contract, tort (including without limitation negligence), or in respect of any pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise for any act or omission in respect of or in connection with the Agreement for any:

10.3.1 delay in performing, or failure to perform, any of Our obligations if the delay or failure was beyond Our reasonable control (such causes may include, but shall not be limited to, denial of service attacks or loss of internet services, or any act or omission by the Advertiser which impedes or prevents Us from performing Our obligations); or

10.3.2 economic losses (including without limitation loss of revenues, data, profits, contracts, business or anticipated savings); and/or

10.3.3 loss of goodwill or reputation.

10.4     The Advertiser will indemnify Us against any claim, cost, loss, damage and/or expense that We may incur as a direct or indirect consequence of Our publishing any Advertisement in accordance with the instructions of the Advertiser.

11        Confidentiality

11.1     Each party will keep all information that it acquires from the other party (or which it discovers as a result of performing an Insertion Order) confidential, including the negotiation of and the existence of any Insertion Order, and the details of any Advertisement, Advertising Materials and these Terms. In particular, Our Advertising Rate is supplied to the Advertiser in confidence and the Advertiser may not disclose it to any third party. This condition does not, however, apply to information which is already publicly known, or which becomes publicly known other than as the result of a breach of these Terms, or which either party is required to disclose as a consequence of any statute, regulation or an order of any Competent Authority.

11.2     Either party may demand that all copies of any such documents or other materials and data or other information are returned within 14 days by giving the other party written notice.

11.3     This obligation of confidentiality will remain in force beyond the completion, cessation or other termination of an Insertion Order.

  1. Intellectual Property Licence

The Advertiser hereby grants to Us, and to any relevant Third Party on whose Site an Advertisement may be placed, a worldwide licence to reproduce, display and copy an Advertisement on the Site/s.

  1. Agency Commission

13.1     Agency Commission shall be payable to those Advertisers with whom We have entered into an arrangement for the referral of advertising business provided that the Advertiser can demonstrate that clause 13.2 has been satisfied.

13.2     In order to claim Agency Commission an Advertisement must comply with clauses 4, 5, 6 and 7 and the Advertising Rate must be paid in full in accordance with clause 8.

14        Assignment

14.1     Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without the prior written consent of the other party. Notwithstanding this We may, at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of Our rights under the Agreement to a member of Our Group for so long as that company remains a member of Our Group.

14.2     A change of control (meaning ownership of at least fifty per cent (50%) of the shares or voting rights in and/or the right to appoint the management) of Us or a member of Our Group will not affect the Agreement in any way

15       Waiver

No failure or delay by either party in exercising any of its rights will be a waiver of those rights nor will it will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of the Agreement will be deemed to be a waiver of any other right or of any subsequent breach of the Agreement.

16        Partnership or agency

Nothing in these Terms shall be construed as constituting (and the Agreement shall not be construed as) a partnership between the parties or as constituting either party as the agent of the other for any purpose whatsoever except to the extent specified by these Terms.

17        Third Party rights

None of these Terms is intended to (and the Agreement does not) confer a benefit on, or to be enforceable by, any person other than Us and the Advertiser named in an Insertion Order .

18        Notices

Notices shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this agreement. Notices may be sent by first-class mail or facsimile transmission provided that facsimile transmissions are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed facsimile transmissions shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above[CT2] .

  1. Entire agreement

The Agreement represents the entire agreement between the parties and supersedes any previous representations or agreements whether recorded in writing or otherwise.  Each party agrees that:

(a)   it shall have no remedies in respect of any statement, representation or warranty (whether made innocently or negligently) that is not set out in this Agreement; and

(b)   it shall have no claim for innocent or negligent misrepresentation or negligent misstatement  representation based on any statement in this Agreement.

Any samples, drawings, descriptive matter or advertising which We may have issued, and any descriptions or illustrations contained in Our sales materials, are issued or published for the sole purpose of giving an approximate idea of the matters described in them. They do not form part of this agreement nor do they have any contractual force.

  1. Force majeure

Neither party to this agreement shall be liable to the other for any delay or non-performance of its obligations under this agreement to the extent that such non-performance is due to a Force Majeure Event.

21        Governing law and jurisdiction

The Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter.