Advertising Engagement Terms & Conditions
Terms and conditions for the supply of advertising services by Adapptive Limited
Last Modified: 23rd November 2018
All Orders placed between Adapptive Limited (Adapptive) and the Contracting Party are subject to these terms and conditions which shall override any other terms or conditions which the Contracting Party attempts to incorporate either through negotiation or as a result of an Order (unless such terms are expressly agreed by an authorised signatory of Adapptive Limited in writing).
In these Conditions, the following definitions apply:
“Adapptive Limited”: a company incorporated under the Companies Acts with registered number SC561986 and having its registered office at 8th Floor Sugar Bond, Bonnington Road, Edinburgh, Midlothian, Scotland, EH6 5NP;
“Adapptive Materials”: has the meaning set out in clause 4.2(f).
“Adapptive Solution”: a software based advertising technology service owned and operated by Adapptive Limited;
“Business Day”: a day other than a Saturday, Sunday or public holiday in Scotland;
“Campaign Booking”: a Contracting Party booking for the supply of Services, otherwise referred to in this document as an “Insertion Order” (IO) or Order;
“Commencement Date”: has the meaning set out in clause 2.2;
“Conditions”: these terms and conditions as amended from time to time in accordance with clause 11.7;
“Contract”: the contract between Adapptive and the Contracting Party for the supply of Services in accordance with these Conditions;
“Contracting Party”: the person or firm who purchases the Services from Adapptive;
“Data Subject”: an individual who is the subject of Personal Data;
“Deliverables”: the deliverables set out in the Order;
“Force Majeure Event”: has the meaning given to it in clause 11.1;
“Intellectual Property Rights”: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Insertion Order (IO)”: the Contracting Party’s insertion order for the supply of Services, as set out in the Contracting Party’s purchase order form, or the Contracting Party’s written acceptance of Adapptive’s quotation, as the case may be;
“Personal Data”: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which services are provided under this agreement;
“Processing and process”: shall have the meaning set out in section 1(1) of the Data Protection Act 1998;
“Services”: the services, including the Deliverables and the use by Adapptive of the Adapptive Solution (as required), supplied by Adapptive to the Contracting Party as set out in the Service Specification below; and
“Service Specification”: the description or specification for the Services provided in writing by Adapptive to the Contracting Party (in the Insertion Order or otherwise).
In these Conditions, the following rules apply:-
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The IO constitutes an offer by the Contracting Party to purchase advertising Services in accordance with these Conditions.
2.2 The IO shall only be deemed to be accepted when Adapptive issues written acceptance of the IO at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Contracting Party acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Adapptive which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Adapptive and any illustrations or descriptions of the Services contained in Adapptive’s catalogues, brochures, websites or other mediums are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Contracting Party seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by Adapptive shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of Services
3.1 Adapptive shall provide the Services to the Contracting Party in accordance with the Service Specification in all material respects.
3.2 Adapptive shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Adapptive may notify the Contracting Party in any such event.
3.3 Adapptive warrants to the Contracting Party that the Services will be provided using reasonable care and skill.
3.4 Adapptive reserves the right to reject or cancel any Advertisement (or any element thereof), IO, campaign, URL or other link, space reservation or position commitment, at any time, for any reason whatsoever, including belief by Adapptive that the relevant Advertisement, Material or activity may subject Adapptive to criminal or civil liability or is materially adverse to Adapptive’s business interests. The fact that Adapptive has not rejected an Advertisement shall in no way reduce, limit or otherwise affect Contracting Parties responsibility and obligations under this Agreement. In the event Adapptive exercises its right to reject hereunder, Adapptive may notify the Contracting Party in writing. Except as otherwise expressly provided in the IO, the Agreement is non-cancellable by the Contracting Party. Reference is made to the Advertsing Content Policy as available from Adapptive.
3.5 Adapptive shall, at its sole discretion position Advertisements within targeted inventory. Adapptive may, at its sole discretion, modify or remove any portion of the targeted inventory (and use commercially reasonable efforts to substitute with similar inventory). Although Adapptive will use reasonable efforts to comply with start and end dates, Adapptive does not guarantee the date or dates of insertion of the Advertisement(s) and does not guarantee that the Advertisement(s) will not be displayed after the end date specified.
3.6 Unless reporting by the Contracting Party or a third party is expressly agreed to in the IO, the following shall apply:
(a) the Contracting Party acknowledges that delivery statistics provided by Adapptive are the definitive and binding measurements of Adapptive’s performance on any delivery obligations provided in the IO;
(b) no other measurements or usage statistics (including those of the Contracting Party) shall be accepted by Adapptive or have bearing on the Agreement;
(c) Adapptive shall own all campaign data obtained as a result of the display of the Advertisement(s), including click through rates, conversion rates, and any user data (“Campaign Data”); and
(d) the Contracting Party may use Campaign Data only as reasonably necessary to fulfil its obligations under this Agreement, and shall comply with Section 8.
4. Contracting Party’s obligations
4.1 Provision of Materials:
The Company will provide the advertising media, links, graphics, icons, and such other items (collectively, “Materials”) as may be necessary for Adapptive to publish the agreed promotion, link and/or advertisement (“Advertisement”). The Materials shall be provided in accordance with Adapptive’s policies and specifications in effect from time to time, including (without limitation) the manner of transmission to Adapptive, the lead-time prior to publication, and the requirements set forth herein. Adapptive shall not be required to publish any Materials that are not received in accordance with such policies and specifications and reserves the right to charge Company, at the rate specified in the Order, for inventory held by Adapptive pending receipt of acceptable Materials from Company which are past due. Company hereby grants to Adapptive a non-exclusive, royalty-free, worldwide, fully paid license to store, use, reproduce and display the Materials (and the contents, trademarks and brand features contained therein) in accordance herewith.
4.2 The Contracting Party shall:
ensure that the terms of the IO are complete and accurate;
(b) co-operate with Adapptive in all matters relating to the Services;
(c) provide Adapptive with such information and materials as Adapptive may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(e) keep and maintain all materials, equipment, documents and other property of Adapptive (“Adapptive Materials”) at the Contracting Party’s premises in safe custody at its own risk, maintain Adapptive Materials in good condition until returned to Adapptive, and not dispose of or use Adapptive Materials other than in accordance with Adapptive’s written instructions or authorisation.
(f) ensure that all advertising creative and associated web pages supplied for advertising adhere to the UK Code of Non broadcast Advertising and Direct & Promotional Marketing (CAP Code) Standards (https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html)
4.2 If Adapptive’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Contracting Party or failure by the Contracting Party to perform any relevant obligation (“Contracting Party Default”):
(a) Adapptive shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Contracting Party remedies the Contracting Party Default, and to rely on the Contracting Party Default to relieve it from the performance of any of its obligations to the extent the Contracting Party Default prevents or delays Adapptive’s performance of any of its obligations;
(b) Adapptive shall not be liable for any costs or losses sustained or incurred by the Contracting Party arising directly or indirectly from Adapptive’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Contracting Party shall reimburse Adapptive on written demand for any costs or losses sustained or incurred by Adapptive arising directly or indirectly from the Contracting Party Default.
5. Charges and payment
5.1 The charges for Services shall be as specifically set out in the IO and / or equivalent order.
5.2 The Contracting Party shall pay each invoice submitted by Adapptive:
(a) within 10 Business Days of the date of the invoice (unless otherwise specified in the IO), noting that such invoice may be issued by Adapptive in advance of the Services being provided and that performance may well be dependent on prompt payment); and
(b) in full and in cleared funds to a bank account nominated in writing by Adapptive, and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Contracting Party under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by Adapptive to the Contracting Party, the Contracting Party shall, on receipt of a valid VAT invoice from Adapptive, pay to Adapptive such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.5 If the Contracting Party fails to make any payment due to Adapptive under the Contract by the due date for payment, then the Contracting Party shall pay interest on the overdue amount at the rate of 4% per annum above Royal Bank of Scotland’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Contracting Party shall pay the interest together with the overdue amount.
5.6 The Contracting Party shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Adapptive may, without limiting its other rights or remedies, set off any amount owing to it by the Contracting Party against any amount payable by Adapptive to the Contracting Party.
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Adapptive.
6.2 The Contracting Party acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Contracting Party’s use of any such Intellectual Property Rights is conditional on Adapptive obtaining a written licence from the relevant licensor on such terms as will entitle Adapptive to license such rights to the Contracting Party.
6.3 All Adapptive Materials are the exclusive property of Adapptive.
7. Confidentiality and Data Protection
7.1 A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.
7.2 In the execution of the Servces Adapptive operates as a Data Controller with respect to the data created in the campaign preparation and execution and any personally identifiable data generated in the process.
7.3 Where the Contracting Party supplies data to Adapptive for use in the execution of the Services Adapptive acts in the capacity of Data Processor of the data supplied by the Contracting Party.
7.4 Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
7.5 Each party warrants that it will take reasonable steps to ensure the reliability of any employees who have access to Personal Data and having regard to the state of technological development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected.
(b) take reasonable steps to ensure compliance with those measures.
7.6 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations under clause 7.3 above.
7.7 The Contracting Party acknowledges that Adapptive is reliant on the Contracting Party for direction as to the extent to which Adapptive is entitled to use and process Personal Data supplied by the Contracting Party. Consequently, Adapptive will not be liable for any claim brought by a Data Subject arising from any action or omission by Adapptive, to the extent that such action or omission resulted directly from the Contracting Party’s instructions.
7.8 Where the Contracting Party supplies data to Adapptive the Contracting Party agrees to indemnify and keep indemnified and defend at its own expense all costs, claims, damages or expenses incurred by Adapptive due to any failure by the Contracting Party to comply with any of its obligations as a Data Controller or Data Processor.
8. Advertising Standards
All Advertisements must comply with advertising laws, regulations and industry standards in the territory in which the Advertisements are displayed as well as the codes of practice issued by the Committee of Advertising Practice in the United Kingdom and the Advertising Standards Authority for Ireland. Advertisements shall not contain any item that is misleading, inaccurate, or that makes fraudulent or unfair competitive claims or that makes insufficiently supported claims or claims that distort the true meaning or practical application of statements made. Additionally, the Advertisements may not contain or promote material that contains malware of any kind, including without limitation viruses, worms, Trojans, spyware, or adware, nor material that is offensive or which violates any provision of applicable law and regulations (including but not limited to, libel, copyright, trademark, right of privacy, etc.). Advertisements must comply with standards of decency and good taste. Adapptive will decide, in its sole discretion, whether the content, material or services provided in or through the Contracting Party complies with these standards. Adapptive may change these guidelines at any time upon prior written notice to the Contracting Party. The Contracting Party agrees to cooperate in promptly editing, changing or stopping, any Advertisement that Adapptive in good faith believes to be in violation of these advertising standards.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude Adapptive’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
9.2 Subject to clause 9.1:
(a) Adapptive shall under no circumstances whatever be liable to the Contracting Party, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Adapptive’s total liability to the Contracting Party in respect of all other losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of fees paid to Adapptive in direct relation to the specific IO(s).
9.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.4 This clause 9 shall survive termination of the Contract.
10.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 20 Business Days written notice.
10.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 5 Business Days after receipt of notice in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(b) to clause 9.2(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the other party’s financial position deteriorates to such an extent that in Adapptive’s opinion the Contracting Party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.3 Without limiting its other rights or remedies, Adapptive may terminate the Contract with immediate effect by giving written notice to the Contracting Party if the Contracting Party fails to pay any amount due under this Contract on the due date for payment.
10.4 Without limiting its other rights or remedies, Adapptive may suspend the supply of Services under the Contract or any other contract between the Contracting Party and Adapptive if the Contracting Party fails to pay any amount due under this Contract on the due date for payment, the Contracting Party becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(m), or Adapptive reasonably believes that the Contracting Party is about to become subject to any of them.
10.5 On termination of the Contract for any reason:
(a) the Contracting Party shall immediately pay to Adapptive all of Adapptive’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Adapptive shall submit an invoice, which shall be payable by the Contracting Party immediately on receipt;
(b) the Contracting Party shall return all of Adapptive Materials and any Deliverables which have not been fully paid for. If the Contracting Party fails to do so, then Adapptive may enter the Contracting Party’s premises and take possession of them. Until they have been returned, the Contracting Party shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
11. Force majeure
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Adapptive including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Adapptive or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.2 Adapptive shall not be liable to the Contracting Party as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
11.3 If the Force Majeure Event prevents Adapptive from providing any of the Services for more than 20 Business Days, Adapptive shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Contracting Party.
12.1 Assignation and other dealings
(a) Adapptive may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Contracting Party shall not, without the prior written consent of Adapptive, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third parties
A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Adapptive.
12.8 Governing law and jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).