1. INTRODUCTION
1.1 This is an agreement between WOW Media UK Ltd (company number 06305560) with a registered address at Halifax Court, Fernwood Business Park, Newark, NG24 3JP (“the Company”) and the entity using the Services (“Advertiser”).
1.2 These terms and conditions are subject to the terms of any Insertion Order. In the event of any conflict, the Insertion Order shall prevail over these terms and conditions.
2. DEFINITIONS
2.1 In this agreement, the following definitions apply:
| Advertisements | any form of advertisement or promotion placed by the Advertiser in connection with the Services including banner advertisements and text links |
| Affiliate | an operator of a site which is part of the Affiliate Network |
| Affiliate Network | the network of third party affiliate sites |
| Applicable Laws | all applicable laws, regulations and codes of conduct |
| Confidential Information | all information whether recorded or not (and, if recorded, in whatever form, in whatever media and by whomever recorded) which is a trade secret or other confidential or private information which is not generally known or easily accessible by the public (either as an individual item of information or as part of a body of knowledge) in any way relating to or concerning the business, finances, dealings, transactions or affairs of the Company |
| Contact Information | any Personal Data of end users collected by the Company in connection with this Agreement |
| Data | any text, look and feel, text, graphics, images, audio, video, software (object and source code), data and all other materials in whatever form (whether electronic or otherwise) |
| Event | any click, Impression, sale, Lead or other event for which payment has been promised to an Affiliate |
| Fee(s) | payment for Events that are delivered in accordance with this agreement |
| Impression | a single instance of an Advertisement being displayed |
| Insertion Order | any applicable insertion order signed by the Advertiser relating to these terms and conditions |
| Intellectual Property Rights | patents, trade marks, service marks, design rights, copyright, database rights (all whether registered or not), applications for any of the foregoing, know-how, trade or business names and other similar rights or obligations whether registered or not in any country in the world and whether now existing or in the future created |
| Lead | specified contact information supplied by a user in response to an Advertisement |
| Month | calendar month |
| Personal Data | as defined in the Data Protection Act 1998 |
| Services | the WM Affiliates affiliate network service whereby the Company enables advertisers to advertise on the Affiliate Network, together with related services |
| in Writing | means all forms of visible reproduction in permanent form (including email unless otherwise stated) |
3. Changes to the terms and conditions
3.1 The Company may change these terms and conditions by posting the revised version on its website for at least 21 days before they become effective. The Advertiser undertakes to check the website from time to time. If it does not wish to accept the changes, the Advertiser may terminate the agreement by giving notice in Writing before the effective date. The Advertiser will be bound by the revised agreement it fails to give such notice.
4. Services generally
4.1 In consideration of the mutual covenants contained in this agreement and the payment of fees by Advertiser to Company, the Company agrees to supply the Services subject to the terms of this agreement.
4.2 The Advertiser:
4.2.1 shall provide reasonable co-operation to the Company in supplying the Services and shall comply with the Company’s reasonable requirements;
4.2.2 shall promptly provide the Company with such information and documents as it may reasonably request for the proper performance of the Services and that the information provided is accurate in all material respects;
4.2.3 shall not take any step which may interfere with or obstruct the proper performance of the Services.
4.2.4 shall not require the Company to place any Advertisement that shall be in breach of the relevant online media platform’s terms of use, Committee of Advertising Practice Advertising Codes, contains or promotes any defamatory, discriminatory, offensive, hateful, harmful, harassing, vulgar, racist, abusive content, is invasive of another’s privacy or otherwise objectionable, is deceiving or infringes the Intellectual Property Rights of any third party; and shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
4.3 The Company does not guarantee that the Services will be error-free or uninterrupted. The Company is not liable for such interruptions or errors provided that they are not deliberate acts of the Company and provided that the Company uses reasonable endeavours to procure that any errors or interruptions of which it becomes aware are corrected as soon as reasonably practicable.
4.4 The Company is entitled, without notice and without liability, to suspend the Services for repair, maintenance, improvement or other technical reason.
4.5 If the Advertiser is an advertising agency or other entity representing a third party, the Advertiser is responsible for ensuring that the third party complies with the terms of this agreement and the Advertiser is directly liable for any act or omission by the third party in such respect.
4.6 The Company cannot guarantee that Affiliates will comply with any rules set by the Advertiser and the Company is not liable for any such failure to comply or for other acts or omissions of Affiliates.
4.7 If any Insertion Order states that exclusivity is applicable, the following apply:
4.7.1 During the term of the Insertion Order and for three months thereafter, the Advertiser shall not permit any advertising of any nature to be placed with any other affiliate network, meaning any organisation which acts as an intermediary between advertisers and third party publisher websites.
4.7.2. Subject to the Advertiser’s compliance with this agreement, during the term, and in respect, of that Insertion Order, the Advertiser is entitled to the benefits associated with exclusivity as stated on the Company’s website as at the date of the Advertiser’s signature of the Insertion Order. The Advertiser acknowledges that the same benefits may not necessarily apply to future Insertion Orders and it is the Advertiser’s responsibility to check the benefits applicable to exclusivity in respect of such future Insertion Orders before signing same.
4.7.3. If the Advertiser breaches clause 4.7.1:
(a) the Company shall be entitled to terminate this agreement forthwith by giving notice in Writing to the Advertiser; and
(b) the Advertiser shall be liable to pay damages of £30 per day to the Company, which sum represents a genuine pre-estimate of the Company’s losses arising from such breach and the Company shall be entitled deduct such damages from any Fees held by the Company.
5. Advertisements
5.1 All Advertisements must be served via the Company’s server unless the Company otherwise agrees in Writing.
5.2 The Advertiser shall promptly supply such creative as the Company may require and in accordance with the deadlines specified by the Company.
5.3 The Advertiser is solely responsible for the content of Advertisements.
5.4 The Advertiser warrants that the Advertisements:
5.4.1 are and shall remain accurate and remains up to date;
5.4.2 are not misleading;
5.4.3 comply with all Applicable Laws (including but not limited to the Committee of Advertising Practice Advertising Codes);
5.4.4 do not infringe any third party intellectual property or other rights; and
5.4.5 are not defamatory, discriminatory, offensive, hateful, harmful, harassing, vulgar, racist, abusive, invasive of another’s privacy or otherwise objectionable.
5.5 The Company reserves the right to reject or remove from display any Advertisement in its sole discretion at any time for any or no reason irrespective of any previous approval thereof by the Company. Any approval by the Company does not constitute an endorsement of the Advertisement and the Company is not liable for any such approval.
5.6 Except to the extent specified in any Insertion Order, the location and prominence of the Advertisements within the Affiliate Network is in the Company’s sole discretion.
5.7 The Company does not guarantee that the Advertisements will generate any particular level of enquiries, customers or revenues.
5.8 The Advertiser warrants that in connection with the supply of goods and/or services which are the subject of the Advertisements it will act in accordance with Applicable Laws and with the highest industry standards.
5.9 The Advertiser warrants that it will not use the Services in a manner which imposes or may impose a disproportionately large load on our the Company’s systems or which constitutes spamming, phishing or improper, malicious or fraudulent activity or which is liable to damage the reputation of the Company, all as determined by the Company in its sole discretion.
6. Payment
6.1 The Advertiser shall pay Fees to the Company.
6.2 If the Advertiser objects to the validity of any individual Lead or other Event, it must notify the Company in Writing by no later than the 7th day of the month following the month in which the individual Lead or other Event was supplied by the Company or took place. When making such a report, the Advertiser must provide sufficient information in order to enable the Company to determine the precise Lead or Event referred to, and such information should include, but not necessarily be limited to:
the Transaction ID or Advertiser Sub ID,
the date and time of the Lead or Event;
the reason for the Lead or Event being rejected (together the “Rejection Notification”).
If the Advertiser does not provide the Rejection Notification, then it irrevocably waives any objection to the validity of the individual Lead or Event. If the Advertiser does give such notification, then the Company will consider the objection and respond within a reasonable period. The Company’s decision shall be final. For the avoidance of doubt, an invalid individual Lead or other Event shall not lead to the waiving of all fees relating to that Affiliate or any group of Leads / Events. Each Lead and / or Event shall be considered on an individual basis.
6.3 The Advertiser acknowledges that the Company’s records and statistics shall be conclusive as to any payment issue relating to this agreement.
6.4 The Advertiser shall remain responsible for the payment of fees for an Event, which may have been delivered to the Advertiser website, notwithstanding that any of following has occurred:
a. the Advertiser’s website is unavailable for any reason;
b. the Advertiser removes tracking on its server; or
c. any other action is taken by the Advertiser without prior notice to the Company which would otherwise prevent delivery of Events to the Advertiser in accordance with the average click to conversion ratio applicable to all of the Advertiser’s campaigns via the Affiliate Network until the date of the relevant Advertiser action.
6.5 The Advertiser shall pay the Fees in the currency, manner and form required by the Company and without any withholding, deduction, counterclaim or setoff.
6.6 Any Fees referred to in this agreement are net of VAT which shall be payable in addition where legally due.
6.7 Invoices are payable within 21 days unless a different payment period is specified in an Insertion Order.
6.8 The Company may require payment of a deposit as a security for performance of the Advertiser’s obligations. The following provisions apply if the Company requires such a payment:
6.8.1 The Company may deduct from the deposit the amount of any Fees invoiced to the Advertiser.
6.8.2 The Company shall not pay interest on any deposit.
6.8.3 It is the responsibility of the Advertiser to top up the deposit so that there is sufficient credit to pay Fees. The Advertiser reserves the right to suspend the Services if it considers that there are insufficient monies on deposit to pay Fees.
6.8.4 The deposit shall be non-refundable.
6.9 Time shall be of the essence for all payments under this Agreement.
6.10 If any Fees due to the Company are unpaid, the Company may:
6.10.1 charge an additional administration fee together with debt collection costs; and/or
6.10.2 charge interest (both before and after judgment) on the amount unpaid at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998; and/or
6.10.3 suspend part or all of the Services; and/or
6.10.4 terminate this agreement by giving notice in Writing.
7. Support
7.1 The Company will provide “Account Manager Support” which includes support such as the management of campaigns on the platform, the uploading of creatives and the management of tracking at no additional cost. The Company has no responsibility to provide any other form of support. The Company may in its discretion decide to provide support and, if so, it is entitled to make such support conditional upon payment of its standard fees for such services. The Company will not incur any such fees without first seeking authorisation to do so from the Advertiser.
8. Security
8.1 The Advertiser’s online account for use of the Service is for the Advertiser’s personal use only and is non-transferable. The Advertiser must not authorise or permit any other person to use its account. The Advertiser must take reasonable care to protect and keep confidential its password and other account or identity information. The Advertiser must notify the Company immediately of any apparent breach of security such as loss, theft, misuse or unauthorised disclosure or use of a password. The Advertiser is responsible for third parties who use its account or identity (unless and to the extent that the Company is at fault).
9. Termination
9.1 Unless an alternative notice period is specified in an Insertion Order, the Advertiser may terminate this agreement by giving 14 days’ notice in Writing at any time.
9.2 The Company may terminate this agreement by giving 14 days’ notice in Writing at any time.
9.3 Any right of termination referred to in this agreement is without prejudice to any other remedy that may otherwise be available to the terminating party.
9.4 This agreement may be terminated forthwith by either party in the event that:
9.4.1 the other is in material default of its obligations under this agreement and (where remediable) has failed to substantially remedy the default within seven days after notice in Writing (not email) is given to the defaulting party specifying the default; or
9.4.2 the other suffers, or threatens to suffer, any form of insolvency, bankruptcy receivership, administrative receivership, administration or ceases, or threatens to cease, to carry on business.
9.5 In the event of termination of this agreement:
9.5.1 the Advertiser shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately upon receipt;
9.5.2 accrued rights and liabilities shall be unaffected;
9.5.3 all licenses granted hereunder shall terminate save that the Advertiser acknowledges that there may be a run off period after termination when Advertisements continue to be displayed; and
9.5.4 all provisions which are intended or expressed to survive termination of this agreement will survive together with any other provision necessary for the interpretation or enforcement of this agreement.
10. Mutual Warranties
10.1 Each party represents and warrants to the other party that:
10.1.1 it has authority to enter into and be bound by this agreement;
10.1.2 the execution of this agreement and the performance of its obligations hereunder do not and will not violate any other agreement by which the party is bound; and
10.1.3 it shall in connection with this agreement comply with all Applicable Laws.
10.2 During and for one year after the end of this Agreement, the Advertiser promises that it will not encourage, seek to persuade, influence, employ, seek to employ, offer or conclude any contract for services with anybody who was a director or employed by the Company at any time during the term of this Agreement. The Advertiser also agrees that it will not carry out any such actions on behalf of somebody else or facilitate such actions on behalf of somebody else during the same period.
11. Liability
11.1 Any provisions in this agreement excluding or limiting liability will apply regardless of the form of action, whether under statute, in contract or tort including negligence or otherwise. Nothing in this agreement in any way excludes or restricts either party’s liability for negligence causing death or personal injury or for fraudulent misrepresentation or for any liability which may not legally be excluded or limited.
11.2 The Company shall not be liable for breach of this agreement unless the Advertiser has given the Company prompt notice of the breach in Writing and a reasonable opportunity thereafter to rectify the breach at the Company’s expense.
11.3 The liability of the Company under or in connection with this agreement for any one event or series of related events is limited to the total fees payable by the Advertiser under this agreement in the 12 months before the event(s) complained of.
11.4 In no event (including the Company’s own negligence) will the Company be liable for any:
11.4.1 economic losses (including, without limit, loss of revenues, profits, contracts, business or anticipated savings);
11.4.2 loss of goodwill or reputation;
11.4.3 special, indirect or consequential losses; or
11.4.4 damage to or loss of data
(even if the Company has been advised of the possibility of such losses).
11.5 Both parties exclude all terms that are not expressly stated herein, including but not limited to any implied warranties as to quality, fitness for purpose or ability to achieve a particular result.
12. Indemnity
12.1 The Advertiser will indemnify and hold harmless the Company and its successors, assigns, parent, subsidiaries and affiliates, and its directors, officers, employees, and agents against all losses, damages, liabilities, and expenses (including reasonable legal fees) arising from (1) any Advertisement or (2) any breach by the Advertiser of this agreement. The Company shall have the sole right to control the defence and settlement of any such claim save that the Company shall consult with the Advertiser prior to any settlement. The Advertiser agrees to provide reasonable assistance to the Company at the Advertiser’s expense in the defence of same.
13. Non-circumvention
13.1 The Advertiser acknowledges that the Company has proprietary relationships with websites and other traffic sources who are registered on the Company’s Affiliate Network and on or through which Advertisements have been displayed prior to and / or during the period of this agreement (the “Protected Parties”) and that the Company wishes to protect those relationships. The Advertiser shall not therefore seek to circumvent the Company’s relationship with the Protected Parties. Except with the Company’s prior consent in Writing, the Advertiser shall not (other than in accordance with this agreement) during the period of this agreement or for 6 months thereafter, directly or indirectly place any form of advertising with the Protected Parties.
14. Confidentiality
14.1 The Advertiser shall during the period of this agreement and indefinitely thereafter keep secure and confidential and not disclose to any other person or use other than for the purposes of this agreement any Confidential Information and shall not through any failure to exercise all due care and diligence cause or permit any unauthorised disclosure of any Confidential Information.
14.2 This clause shall not apply to:
14.2.1 information which becomes public knowledge or has been published other than through a breach of this agreement;
14.2.2 information lawfully in the possession of the recipient before the disclosure took place;
14.2.3 information obtained from a third party who is free to disclose it; and
14.2.4 information which a party is requested to disclose and if it did not could be required by law or regulation or competent authority to do so.
15. Data Protection
15.1 If the Company processes any Personal Data on behalf of the Advertiser:
15.1.1 it shall do so only in accordance with this agreement or the Advertiser’s written instructions, and
15.1.2 it will at all times have appropriate technical and organizational measures in place to protect all such Personal Data against unauthorised or unlawful processing, accidental loss, destruction or damage and that, having regard to the state of technological development and the cost of implementing any measures, the measures shall ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and to the nature of the data to be protected.
16. Intellectual Property Rights
16.1 The Company shall retain ownership of all Intellectual Property Rights in the Data used to supply the Services. The Company grants the Advertiser a licence to use the Services for the purpose of and subject to this agreement.
16.2 The Advertiser shall retain ownership of all Intellectual Property Rights in the Advertisements. The Advertiser grants the Company a licence to use the Advertisements for the purpose of this agreement.
17. Force Majeure
17.1 Neither party is liable for failure to perform or delay in performing any obligation (excluding payment) under this agreement if the failure or delay is caused by any circumstances beyond that party’s reasonable control including third party telecommunication failures.
18. Notices
18.1 Any notice or other information required or authorised by this agreement to be given by any party may be given by hand or sent (by recorded / special / international signed-for delivery) to another party at its registered office or at the address shown on this agreement or such other address as that party may notify to the other party for this purpose from time to time or, unless stated otherwise, by email.
18.2 Any notice or other information given by post which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing the same was so posted and proof that the envelope containing any such notice or information was properly addressed pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that such notice or information has been duly given.
18.3 Any email shall be deemed to have been received on the date of transmission provided that the email has not been returned.
19. Agency
19.1 If an agency (“Agency”) signs this Agreement on behalf of the Advertiser, it does so as the Advertiser’s agent, and the Advertiser and Agency will be jointly and severally liable for all of the Advertiser’s obligations hereunder. The Agency represents that it has full authority to act on the Advertiser’s behalf, including but not limited to agreeing to and binding Advertiser to the indemnification provisions set out in Clause 12, provided, however, that nothing herein will release the Advertiser from any obligation or liability hereunder, and the Company may look to both the Advertiser and Agency for performance of all obligations under this Agreement.
20. General
20.1 In this agreement the word “including”, unless the context otherwise requires, shall mean “including without limitation”. The headings in this agreement are for convenience only and shall not affect its interpretation.
20.2 This agreement and any document incorporated herein by reference constitute the entire agreement between the parties with respect to its subject matter and supersedes any previous communications or agreements between the parties. Both parties acknowledge that there have been no misrepresentations and that neither party has relied on any pre-contractual statements. Liability for misrepresentation (excluding fraudulent misrepresentation) relating to the terms of this agreement is excluded.
20.3 Except insofar as provided otherwise in this agreement, nothing in this agreement will constitute or be deemed to constitute a partnership or joint venture between the parties and neither party has express or implied authority to bind the other in any manner whatsoever and neither party will purport to do so.
20.4 The Advertiser shall not assign or subcontract any part of its obligations under this agreement without the prior consent in Writing of the Company.
20.5 The failure of a party to exercise or enforce any right under this agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
20.6 If any provision of this agreement is held to be unlawful, void or unenforceable in whole or in part, this agreement shall continue in force in relation to the unaffected provisions and the remainder of the provision in question, and the parties will renegotiate the offending provision in good faith to achieve the same objects.
20.7 Save insofar as expressly provided otherwise in this agreement, no third party may enforce any clause in this agreement under the Contracts (Rights of Third parties) Act 1999.
20.8 This agreement shall be governed by and construed in all respects in accordance with the laws of England and Wales and each party hereby submits to the exclusive jurisdiction of the courts of England and Wales.
