advertising_terms_and_conditions[agreement]

Advertising Terms and Conditions/Agreement

WEB ADVERTISING AND PROMOTION AGREEMENT

DATED [ ] 20[ ]

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 [
(2) [MANAGER NAME], [if a company [ ] and having its registered office at [
] (“the Manager”).
], company registration number [

]/if a natural person [ ] of [

INTRODUCTION:
A The Customer is a [briefly describe nature of Customer’s business].

B The Manager is the owner/content provider of a website which provides
advertising space on its own or to other websites.

C The Customer wishes to purchase advertising space on a specified/or random
website to which the Manager has access and on which the Manager is
permitted to sell advertising space to the Customer.

D The Manager 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:
“Advertising” means any advertising material or promotional material supplied
by the Customer for transmission by the Internet from the Manager’s Site
(including without limitation advertising banners being electronic advertising
whose dimensions and delivery format are agreed) that are placed on pages of
the Manager 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 Manager and the date on which the Manager places the Advertising on the
Manager 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 Manager 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;
“Manager” means [name of Manager], the owner and operator of [URL];
“Manager Site” means [URL] or other website operated and maintained by or
on behalf of the Manager;
“Promotion” means any promotion or promotional material supplied by a
Customer for transmission on or by the internet from the Manager’s Site;
“Schedule” 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 Advertising, and any related
services agreed to be provided by the Manager to the Customer pursuant to
the Agreement, further details of which are set out in Schedule 1; and
“Term” means the period from the Commencement Date for the agreed period
(as specified in Schedule 1 or otherwise expressly specified by the Manager) for
which the Advertising is to be placed until terminated in accordance with the
Agreement.

2. The Services and Obligations
2.1 In consideration of the payment of the Fees the Manager 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 Advertising on to the Manager Site shall
be deemed acceptance of the Agreement.
2.2 The Customer undertakes and warrants to the Manager that:
2.2.1 in relation to any Advertising the Customer enters into the Agreement

as a principal notwithstanding that the Customer may be acting
directly or indirectly for the person whose products or services are
being advertised by the Manager;
2.2.2 the reproduction and/or publication of the Advertising by the
Manager 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 Manager liable to any proceedings whatsoever;
2.2.3 any information supplied by the Customer in connection with the
provision of the Services is accurate, complete and true in all respects;
2.2.4 in respect of any Advertising 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;
2.2.5 the Advertising 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 Advertising shall be made
available;
2.2.6 the Advertising 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 advertising as may be appropriate; and
particularly
2.2.7 the Advertising 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
2.2.8 it has authority to enter into and implement the Agreement.
2.3 The Customer shall provide to the Manager the Advertising in the format
expressly specified (if any) by the Manager 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 Advertising with the Manager and the Customer will
indemnify the Manager against any claim made by the client against the
Manager arising from the publication of the Advertising Material.
2.5 The Manager 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 Manager shall bear any and all costs of supplying, updating, owning and
operating the Manager Site. The Manager shall use reasonable commercial
efforts to maintain the availability of the Manager Site twenty four (24) hours
per day, seven (7) days per week.

3. Acceptance
The Manager:

3.1 shall upon receipt of the Fees and the Manager’s acceptance of the Advertising
perform the Services on the Manager 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 Advertising 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 an Advertising so as to comply with the legal or moral obligations
placed upon the Manager 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 Advertising from
the Manager Site in the event that the Manager considers the Advertising
breaches any applicable laws or the rights of any third party or is prejudicial to
the interests of the Manager 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 Manager accepts no responsibility for any mistakes or errors whatsoever
that arise during the course of publication of any Advertising 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 it may require.
4.3 In no event shall the Manager 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, 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 Manager’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 Manager 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 Manager 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 Advertising to the Manager 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
Manager of its Services.

5.2 Additional fees may be charged by the Manager 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 Manager may invoice the Customer for the Fees for the Term upon its
acceptance of the Advertising prior to commencement of the Services.

5.4 The invoice for the Fees shall be payable in full prior to the Advertising being
published or the Promotion being transmitted by the Manager on the
Manager’s Site unless otherwise agreed by the Manager.

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 Manager’s other rights under this Agreement) shall bear
interest at the annual rate of [3%] over the prevailing base rate of [name 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 Manager retains all right, title and

interest in and to the content of the Manager Site, including without limitation
copyrights, trademarks and other intellectual property rights.
6.2 The Customer retains all rights, title and interest in and to the Advertising,
including without limitation copyrights, trademarks, database rights and other
intellectual property rights.
6.3 Any ideas, concepts, know-how or techniques developed by the Manager or
obtained during the execution of the Services will be owned exclusively by the
Manager.

7 Customer Responsibility
7.1 It is the responsibility of the Customer to check the accuracy of the Advertising

and, without prejudice to the provisions of clause 4, the Manager assumes no
responsibility for the repetition of an error in an Advertising.
7.2 For the purpose and duration of the Advertising the Customer grants to the
Manager 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 Manager to comply with its obligations under the Agreement.

8 Term and Termination
8.1 Subject to the provisions of clauses [3 and 7.2] the Advertising shall be

included in the Manager’s Site for the Term or as otherwise expressly agreed
by the Manager.

8.2 The Manager may terminate this Agreement by notice in writing to the
Customer in the event that:
8.2.1 the Customer fails to pay any amount to the Manager due under this
Agreement and does not make that payment within [seven (7)] days
after receiving notice requiring the Customer to do so; or
8.2.2 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
8.2.3 any of the warranties or representations made by the Customer
contained in this Agreement are false or inaccurate in any material
way; or
8.2.4 the Advertising breaches any applicable laws or the rights of any third
party or is prejudicial to the interests of the Manager.

8.3 Either party shall be entitled to terminate this Agreement immediately by
notice in writing to the other if the other party shall:
8.3.1 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;
8.3.2 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;
8.3.3 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;
8.3.4 have a receiver, encumbrancer, administrative receiver or similar
official appointed;
8.3.5 cease or threaten to cease to carry on business; or
8.3.6 have any similar event occur under the law of any other relevant
jurisdiction in respect of it.

9 Indemnity
The Customer undertakes to the Manager that the Customer will, without
prejudice to any other right of action which the Manager may have, at all times
keep the Manager 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 Manager may suffer or incur as a result of any
Advertising, 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.

10 Confidential Information
10.1 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.
10.2 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.
10.3 Both parties agree to return all documents and other materials containing
Confidential Information immediately upon completion of the Services.
10.4 The obligations of confidentiality under this Agreement do not extend to
information that:
(i) was rightfully in the possession of the receiving party before the

negotiations leading to this Agreement;
(ii) is, or after the day this Agreement is signed, becomes public knowledge

(otherwise than as a result of a breach of this Agreement); or
(iii) is required by law to be disclosed.

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

12 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.

13 Force Majeure
13.1 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.
13.2 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.
13.3 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:]