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Published by Enhelion, 2019-12-08 11:17:22

promotions[agreement]

promotions[agreement]

Promotions Agreement

DATED:[ WEB PROMOTION AGREEMENT
]200[ ]

PARTIES:

(1) [CUSTOMER NAME], [if a company [ ] a company incorporated in [
] and having its registered office at [
], company registration number [ ] (“the Customer”); and

]/if a natural person [ ] of] [ ] a company incorporated in [
] and having its registered office at [
(2) [PROMOTER NAME], [if a company [ ]] (“the Promoter”).

], company registration number [

]/if a natural person [ ] of [

INTRODUCTION:

A The Customer is a [briefly describe nature of Customer’s business].
B The Promoter is the owner/content provider of a website which provides

promotion and marketing space on its own or to other websites.
C The Customer wishes to purchase promotion and marketing space on a

specified/random website to which the Promoter has access and on which the
Promoter is permitted to sell promotion and marketing space to the Customer.
D The Promoter agrees to provide this service to the Customer subject to the
terms and conditions set out in this Agreement.

OPERATIVE PROVISIONS:
1. Definitions

In this Agreement the following words and phrases shall have the following
meanings unless the context otherwise requires:
“Promotion” means any promotion and marketing material or promotional
material supplied by the Customer for transmission by the internet from the
Promoter’s Site (including without limitation promotion and marketing banners
being electronic promotion and marketing whose dimensions and delivery
format are agreed) that are placed on pages of the Promoter Site, customised
links and sponsorship logo display;
“Agreement” means the agreement for the purchase and supply of the
Services;
“Commencement Date” means the earlier of the date specified in writing by
the Promoter and the date on which the Promoter places the Promotion and
marketing on the Promoter Site;

“Customer” means the person(s), firm or company to whom the Services are
provided;
“Fees” means the fees and charges payable by the Customer as set out
Schedule 1 or specified by the Promoter from time to time;
“Internet” means the global computer network comprising interconnected
networks using standard set of rules that regulate the manner in which data is
transmitted between computers;
“Promoter” means [name of Promoter], the owner and Promoter of [URL];
“Promoter Site” means [URL] or other website operated and maintained by or
on behalf of the Promoter;
“Promotion” means any promotion or promotional material supplied by the
Customer for transmission on or by the internet from the Promoter’s Site;
“Schedule” means the Schedule or Schedules (if any) to the Agreement in
whatever form setting out the Fees, Required Format, Commencement Date,
Services, Term and Notice Period (as the case may be);
“Services” means the services in respect of the Promotion and marketing, and
any related services agreed to be provided by the Promoter to the Customer
pursuant to the Agreement, further details of which are set out in Schedule 2;
and
“Term” means the period from the Commencement Date for the agreed period
(as specified in Schedule 1 or otherwise expressly by the Promoter) for which
the Promotion and marketing is to be placed until terminated in accordance
with the Agreement.

1 Limitations

1.1 This Agreement is non-exclusive.

1.2 Notwithstanding the terms of this Agreement, the Promoter and its Affiliates

may contract or work with, and/or support, others, including without

limitation, other [ ] providers or providers of [ ] services whose

businesses (or parts of business) compete with the business of the Customer.

2 The Services and Obligations
2.1 In consideration of the payment of the Fees the Promoter agrees to perform

the Services in accordance with Schedule 2. The Agreement shall apply to the
provision of the Services to the exclusion of all other agreements and the
Customer agrees that uploading of the Promotion and marketing on to the
Promoter Site shall be deemed acceptance of the Agreement.
2.2 The Customer undertakes and warrants to the Promoter that:
2.2.1 the Customer has and will continue to have all necessary rights,

licences, permissions and consents in and to all underlying technology
(including both hardware and software) utilised in connection with
the performance of its obligations under this Agreement and that
such underlying technology and all aspects of the Company’s Business
do not and will not infringe any patent, copyright, trade mark, trade
secret or other intellectual property or proprietary right of any
person;

2.2.2 the Customer is not party to, or bound by, any agreement granting
2.2.3 any rights to any person which are inconsistent with the rights
2.2.4 granted by the Company to the Promoter in this Agreement;
the Customer has the right, power and authority to execute, deliver
2.2.5 and perform this Agreement (including any ancillary documents
2.2.6 relating to this Agreement);
no consents, approvals or authorisations of any person are required in
2.2.7 connection with the execution, delivery and performance of this
2.2.8 Agreement other than those consents, approvals and/or
authorisations already obtained by the Customer, copies of which will
2.2.9 be provided to the Promoter at the date of this Agreement;
in relation to any Promotion and marketing the Customer enters into
2.2.10 the Agreement as a principal notwithstanding that the Customer may
2.2.11 be acting directly or indirectly for the person whose products or
services are being advertised by the Promoter;
the reproduction and/or publication of the Promotion and marketing
by the Promoter as originally submitted or as amended pursuant to
clause 3 will not breach any agreement or infringe or violate any
copyright, trade mark, or any other personal or property of any
person or render the Promoter liable to any proceedings whatsoever;
any information supplied by the Customer in connection with the
provision of the Services is accurate, complete and true in all respects;
in respect of any Promotion and marketing which contains the name
or pictorial representation (photographic or otherwise) of any living
person and/or any part of any living person and/or any copy by which
any living person is or can be identified, the Customer has obtained
the authority of such living person to make use of such name,
representation and/or copy;
the Promotion and marketing complies with the requirements of all
relevant legislation (including subordinate legislation, the rules of
statutory regulatory authorities and any law or regulations of the
European Economic Community) for the time being in force or which
may be applicable in such jurisdiction as the Promotion and marketing
shall be made available;
the Promotion and marketing is legal, decent, honest and truthful and
complies with the rules of English national law and international
codes and all other such relevant codes relating to promotion and
marketing as may be appropriate; and particularly
the Promotion and marketing shall not contain any data, image or
other material which:
(i) is offensive, obscene or indecent, or is capable of being resolved

into obscene or indecent images or material;
(ii) is defamatory, sexist, threatening or racially, ethnically or

otherwise objectionable;
(iii) is designed or likely to cause annoyance, inconvenience,

unwanted attention or needless anxiety to any other person;

(iv) is designed to or is likely to cause disruption to any computer
system or to any network;

(v) is illegal or is likely to induce an illegal act; and
2.2.12 it has authority to enter into and implement the Agreement.
2.3 The Customer shall provide to the Promoter the Promotion and marketing in
the format expressly specified (if any) by the Promoter in the Schedule or
otherwise (“the Required Format”).
2.4 Where the Customer is an advertising agency it warrants that it is authorised
by its client to place the Promotion and marketing with the Promoter and the
Customer will indemnify the Promoter against any claim made by the client
against the Promoter arising from the publication of the Promotion and
marketing Material.
2.5 The Promoter shall be entitled at any time without notifying the Customer to
make changes to the Services which are necessary to comply with any
applicable security or other statutory requirements and shall determine the
manner in which the Services are provided.
2.6 The Promoter shall bear any and all costs of supplying, updating, owning and
operating the Promoter Site. The Promoter shall use reasonable commercial
efforts to maintain the availability of the Promoter Site [twenty four (24) hours
per day, seven (7) days per week.]

3 Acceptance
The Promoter:
3.1 shall upon receipt of the Fees and the Promoter’s acceptance of the Promotion

and marketing perform the Services on the Promoter Site for the Term subject
to the provisions of the Agreement;
3.2 has the right and sole discretion to decline to publish or to omit, suspend or
change the position of any Promotion and marketing accepted by it;
3.3 may, without derogation from the warranties and obligations set out in clause
[2] above, refuse or require to be amended any artwork, materials or copy for
or relating to a Promotion and marketing so as to comply with the legal or
moral obligations placed upon the Promoter or the Customer or to avoid
infringing a third party’s rights or any statutory or regulatory requirements;
and
3.4 reserves the right at any time during the Term to remove the Promotion and
marketing from the Promoter Site in the event that the Promoter considers the
Promotion and marketing breaches any applicable laws or the rights of any
third party or is prejudicial to the interests of the Promoter and/or its business.

4 Liability
4.1 Neither party excludes or limits its liability to the other for death or personal

injury resulting from the proven negligence of either party, its employees or
agents.
4.2 The Promoter accepts no responsibility for any mistakes or errors whatsoever
that arise during the course of publication of any Promotion and marketing and
will not be liable for any loss of copy, artwork, photographs, data or other
materials which the Customer supplies to it and the Customer shall be

responsible for retaining in its possession sufficient quality and quantity of
such materials for whatsoever purposes the Promoter may require.
4.3 In no event shall the Promoter be liable to the Customer whether arising under
this Agreement or in tort (including negligence or breach of statutory duty),
misrepresentation or however arising, for any Consequential Loss.
“Consequential Loss” shall for these purposes mean (i) pure economic loss, (ii)
losses incurred by any client of the Customer or other third party, (iii) loss of
profits (whether categorised as direct or indirect), (iv) losses arising from
business interruption, (v) loss of business revenue, goodwill or anticipated
savings, (vi) losses whether or not occurring in the normal course of business,
wasted management or staff time, (vii) loss or corruption of data.
4.4 Subject to clauses [4.1, 4.2 and 4.3], the Promoter’s total liability (whether in
contract, tort or otherwise) under or in connection with this Agreement or
based on any claim for indemnity or contribution shall not exceed 100% of the
total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by
the Customer to the Promoter during the preceding [twelve (12) month] period
or, if the duration of the Agreement has been less than [twelve (12) months],
such shorter period, as applicable.

5 Payment Provisions

5.1 The Promoter will charge the Customer the Fees based on the payment

structure agreed in Schedule [ ]. This can be either for:

5.1.1 a set fee charged for delivery of Promotion and marketing to the

Promoter website; or

5.1.2 by charging a sales commission based on sales generated from net

revenues of the Customer which result from the provision by the

Promoter of its Services.

5.2 Additional fees may be charged by the Promoter for delivery of additional

value added services such as tracker and trafficking fees. These are set out in

Schedule [ ] of this Agreement.

5.3 The Promoter may invoice the Customer for the Fees for the Term upon its

acceptance of the Promotion and marketing prior to commencement of the

Services.

5.4 The invoice for the Fees shall be payable in full prior to the Promotion and

marketing being published or the Promotion being transmitted by the

Promoter on the Promoter’s Site unless otherwise agreed by the Promoter.

5.5 All sums due in respect of the Fees are exclusive of value added tax or other

applicable sales tax, for which the Customer shall be additionally liable. All

sums due from the Customer which are not paid on the due date (without

prejudice to the Promoter’s other rights under this Agreement) shall bear

interest at the annual rate of [3%] over the prevailing base rate of [ ]

Bank. Such interest shall accrue from the due date until payment is made in

full.

6 Intellectual Property

6.1 Except as provided in this Agreement, the Promoter retains all right, title and
interest in and to the content of the Promoter Site, including without limitation
copyrights, trade marks and other intellectual property rights.

6.2 The Customer retains all rights, title and interest in and to the Promotion and
marketing, including without limitation copyrights, trade marks, database
rights and other intellectual property rights.

6.3 Any ideas, concepts, know-how or techniques developed by the Promoter or
obtained during the execution of the Services will be owned exclusively by the
Promoter.

7 Non-Solicitation
During the Term of this Agreement and for [one] year after the expiry or
termination of this Agreement, neither the Customer [nor any [Group
Member] nor any of its or their directors or senior employees] will induce or
seek to induce away from the Promoter or any of the Promoter’s Affiliates to
the Customer or any Group Member any director or senior employee or former
director or senior employee engaged by the Promoter or any of its Affiliates
with whom the Company [or any Group Member or its or their directors or
senior employees] had direct dealings within a period of [12] months prior to
the end of the Agreement.

8 Customer Responsibility
8.1 It is the responsibility of the Customer to check the accuracy of the Promotion

and marketing and, without prejudice to the provisions of clause [4], the
Promoter assumes no responsibility for the repetition of an error in a
Promotion and marketing.
8.2 For the purpose and duration of the Promotion and marketing the Customer
grants to the Promoter a royalty-free, non-exclusive licence to use, publish and
reproduce the Customer’s name, logo, trade marks and brands to the extent
necessary to enable the Promoter to comply with its obligations under the
Agreement.

9 Term and Termination
9.1 Subject to the provisions of clauses [3 and 7.2] the Promotion and marketing

shall be included in the Promoter’s Site for the Term or as otherwise expressly
agreed by the Promoter.
9.2 The Promoter may terminate this Agreement by notice in writing to the
Customer in the event that:
9.2.1 the Customer fails to pay any amount to the Promoter due under this

Agreement and does not make that payment within [seven (7)] days
after receiving notice requiring the Customer to do so;
9.2.2 the Customer fails to perform any of the obligations on its part to be
observed or performed pursuant to this Agreement and such failure is
not remedied by the Customer within [fourteen (14)] days after
receipt by it of a notice in writing requiring the default to be
remedied; or

9.2.3 any of the warranties or representations made by the Customer
contained in this Agreement are false or inaccurate in any material
way; or

9.2.4 the Promotion and marketing breaches any applicable laws or the
rights of any third party or is prejudicial to the interests of the
Promoter.

9.3 Either party shall be entitled to terminate this Agreement immediately by
notice in writing to the other if the other party shall:
9.3.1 commit any material breach of any of its obligations under this
Agreement which (in the case of a breach capable of being remedied)
shall not have been remedied within [fourteen (14)] days after receipt
of a written request so to do;
9.3.2 pass a resolution for winding up (otherwise than for the purpose of a
bona fide scheme of solvent amalgamation or reconstruction) or a
court of competent jurisdiction shall make an order to that effect;
9.3.3 make any voluntary arrangement with its creditors or become subject
to an administration order or an administrator is appointed in respect
of that party or documents are filed with the court for the
appointment of an administrator or notice is given of an intention to
appoint an administrator by that party or its directors or by a
qualifying floating charge holder as defined in paragraph 14, Schedule
B1 to the Insolvency Act 1986;
9.3.4 have a receiver, encumbrancer, administrative receiver or similar
official appointed;
9.3.5 cease or threaten to cease to carry on business; or
9.3.6 have any similar event occur under the law of any other relevant
jurisdiction in respect of it.

10 Effects of Expiration or Termination

10.1 Subject to clause [ ] below, upon expiration or termination of this Agreement,

all rights under this Agreement shall immediately cease and each party shall:

10.1.1 return to the other party all Confidential Information received from

such party, including any and all copies thereof, which is in the

possession of the receiving party;

10.1.2 destroy all materials created after [ 200[ ]] that incorporates or

are based on the other party’s Confidential Information and were

prepared by that party or any of its Affiliates or agents; and

10.1.3 certify to the other party in writing that it has complied with the

provisions of this paragraph.

10.2 No liability or obligations whatsoever under this Agreement shall attach,

continue or be attributed to the Promoter on termination or expiration of this

Agreement pursuant to clauses [ ] above.

10.3 [The provisions relating to Definitions, Liability, Survival, Confidential

Information and Indemnity shall survive the expiration or termination of this

Agreement.]

11 Indemnity

The Customer undertakes to the Promoter that the Customer will, without
prejudice to any other right of action which the Promoter may have, at all
times keep the Promoter fully and effectively indemnified against any liability
(which liability shall include, without limitation, all losses, costs, claims,
demands, actions, damages, legal and other professional fees and expenses on
a full indemnity basis) which the Promoter may suffer or incur as a result of any
Promotion and marketing, the infringement of any intellectual property rights
of any third party, or by reason of any breach or non-fulfilment of any of the
Customer’s obligations in respect of the Agreement.

12 Notices

12.1 All notices, demands and other communications provided for or permitted

under this Agreement shall be made in writing and shall be sent by registered

or first class post, facsimile service (with telephonic confirmation of receipt),

courier service, e-mail (with telephonic confirmation of receipt) or personal

delivery:

12.2 If to the Customer, to:

Address: [ ]

Facsimile: [ ]

Attention: [ ]

e-mail: [ ]

with a copy to: [ ]
Address: [ ]
Facsimile: [ ]
Attention: [
e-mail: ]

If to the Promoter, to:

Address: [ ]

Facsimile: [ ]

Attention: [ ]

e-mail: [ ]

and

Address: [ ]

Facsimile: [ ]

Attention: [ ]

e-mail: [ ]

All such notices and communications shall be deemed to have been duly given

when delivered by hand, if personally delivered; when delivered by courier, if

delivered by commercial courier service; five business days after being

deposited in the mail (postage prepaid), if mailed; when receipt is mechanically

acknowledged and telephonically confirmed, if by facsimile, and when receipt

is telephonically confirmed, if by e-mail.

13 Confidential Information

13.1 Each party may use the Confidential Information of a disclosing party only for
the purposes of this Agreement and must keep confidential all Confidential
Information of each disclosing party except to the extent (if any) the recipient
of any Confidential Information is required by law to disclose the Confidential
Information.

13.2 Either party may disclose Confidential Information of the other party to those
of its employees and agents (including professional advisers) who have a need
to know the Confidential Information for the purposes of this Agreement but
only if the employee or agent executes a confidentiality undertaking in a form
approved by the other party.

13.3 Both parties agree to return all documents and other materials containing
Confidential Information immediately upon completion of the Services.

13.4 The obligations of confidentiality under this Agreement do not extend to
information that:
13.4.1 was rightfully in the possession of the receiving party before the
negotiations leading to this Agreement;
13.4.2 is, or after the day this Agreement is signed, becomes public
knowledge (otherwise than as a result of a breach of this Agreement);
or
13.4.3 is required by law to be disclosed.

14 Publicity
So long as this Agreement is in effect, except as required by law, regulations or
stock exchange requirements, the parties hereto shall not, and shall cause their
respective Affiliates not to, issue or cause the publication of any press release
or other announcement or publication with respect to the transactions
contemplated by this Agreement without the consent of the other party, which
consent shall not be unreasonably withheld or delayed, and without consulting
with the other party as to the content of such press release or other
announcement or publication.

15 Data Protection
Each party undertakes to comply with its obligations under the Data Protection
Act 1998.

16 Counterparts
This Agreement may be executed in any number of documents or counterparts
each in the like form, all of which taken together shall constitute one and the
same document and any party may execute this Agreement by signing one or
more of such documents or counterparts.

17 Third parties
Nothing contained in this Agreement or in any instrument or document
executed by any party in connection with the Services is intended to be
enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.

18 Force Majeure

18.1 Except with respect to obligations to pay the Fees or other charges, “Force
Majeure” means anything outside the reasonable control of a party, including
but not limited to, acts of God, fire, storm, flood, earthquake, explosion,
accident, acts of the public enemy, war, rebellion, insurrection, sabotage,
epidemic, quarantine restriction, labour dispute, labour shortage, power
shortage, ceasing to be entitled to access the internet for whatever reason,
server crashes, deletion, corruption, loss or removal of data, transportation
embargo, failure or delay in transportation, any act or omission (including laws,
regulations, disapprovals or failures to approve) of any government or
government agency.

18.2 If a party is wholly or partially precluded from complying with its obligations
under this Agreement by Force Majeure, then that party’s obligation to
perform in accordance with this Agreement will be suspended for the duration
of the Force Majeure.

18.3 As soon as practicable after an event of Force Majeure arises, the party
affected by Force Majeure must notify the other party of the extent to which
the notifying party is unable to perform its obligations under this Agreement.

[Insert boilerplate provisions.]

SCHEDULE 1

Fees:
Required Format:
Commencement Date:
Term:
Notice Period:

SCHEDULE 2

The Services

SIGNED by ……………………………….

[a duly authorised officer for and on

behalf of [ ]]

[in the presence of:]

SIGNED by ……………………………….

[a duly authorised officer for and on

behalf of [ ]]

[in the presence of:]


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