Definitions
1.
Introduction,
Incorporation and Interpretation
“Advertising product” means the product (as described
in the Advertising product Listing) actually specified on the Customer Order
Form to be supplied by EMO;
“Advertising product Listing” means the description of EMO’s Advertising products and services
as at the date of this Contract to which these terms apply;
“Customer” means the person identified as such on the
Customer Order Form;
“Customer Content” means the Customer’s content
created or supplied by the Customer for publication on the Advertising product;
“Customer Links” means any hyperlinks placed by the
Customer in the Customer
Content or otherwise on the Advertising product;
“Customer Order Form” means the customer order form
which forms part of this
Contract;
“Fees” means the set up fees and any service
provision fees for the Advertising product as set out on the Customer Order
Form;
“EMO” means East Midlands Online Limited;
1.1. EMO in conjunction with a Third Part Provider maintains and
hosts each Advertising product.
1.2. These terms are incorporated into each agreement entered
into between the Customer and EMO relating to the supply of Advertising
products (each a “Contract”) whether or not the Customer Order Form or any
other document which the Customer signs makes reference to these terms.
1.3. References in this Contract to a clause is a reference to a
clause of this Contract.
2.
Advertising
products and Services provided
2.1. EMO shall permit the Customer to post the Customer Content
on the Advertising product purchased for the relevant term and subject to the
payment of Fees.
2.2. EMO shall develop the Advertising product in accordance with
the Customer Content. The Customer shall provide the Customer Content to EMO
either at the time of the order or within 2 weeks from the date on the Customer
Order Form (unless otherwise agreed in writing) and in such format as EMO
reasonably requires. If EMO receives the Customer Content after the 2 weeks
allowed then EMO reserves the right to make an additional charge for the time
spent in publishing the Customer Content in accordance with the current rates
of our service plan. If after 2 weeks of placing the order EMO has not received
any content then EMO will complete the Advertising product using basic business
details. By submitting advertising for inclusion on any EMO site, the Customer
agrees to be bound by the terms of the Contract. No conditions other than those
set forth herein shall be binding on EMO unless:
(i)
specifically agreed
to in writing by EMO and
(ii)
any additional
terms and conditions of the Customer are expressly written into the Customer
Order Form signed by the Customer and EMO.
Save in respect of sub-clause
2.2.(i) and (ii) above, in case of any inconsistency between the Customer Order
Form and these Advertising Terms and Conditions, these Advertising Terms and
Conditions will prevail
2.3. EMO aim to complete your Advertising product within four
weeks of receiving your content (where applicable)
2.4. EMO cannot guarantee timescales of delivery on any
performance based Advertising product i.e impressions, clicks or leads (refer
to Advertising product Listing)
2.5. EMO agrees to make submissions of the Advertising product to
one or more search engines i.e. Third Party Providers as discussed with the
Customer and if it does so the Customer agrees that EMO has no control over
these search engines and as such cannot guarantee that the submission will be
accepted or at what position the item will appear.
2.6. Except as otherwise expressly provided in the Customer Order
Form, positioning of Advertising products is at the sole discretion of the
Third Party Provider, and the Third Party Provider will not be prohibited from
also carrying Advertising products for any product or business competitive to
that of the Customer.
2.7. Unless stated on the order form EMO does not guarantee any
delivery units i.e impressions, clicks or leads of an Advertising Product
(refer to Advertising product Listing)
2.8. EMO and the Third Party Provider shall be responsible for
the hosting, operation and maintenance of the Advertising product and although
it shall use its reasonable endeavours to keep the Advertising product
available on the internet, EMO gives no guarantee as to continuing service
availability.
2.9. Unless otherwise agreed in writing any property or material
supplied by or on behalf of the Customer in order for EMO to create the
Advertising product will not be returned to the Customer.
2.10. On termination of this Contract (except for termination by
EMO under clause 4.3) and provided that the Customer has paid all Fees due to
EMO whether under this Contract or otherwise EMO shall, if so requested,
transfer to the Customer in electronic format the Customer Content contained on
the Advertising product.
2.11. The Customer accepts that EMO cannot ensure that the
Advertising product in all respects is visible in all browsers and versions of
these browsers. EMO shall use its reasonable endeavours to ensure that the
Advertising product is visible in the most commonly used version of Internet
Explorer.
2.12. EMO reserves the right at anytime without notice to remove
any Customer Content or Customer Links from the Advertising product if it
reasonably believes the Customer Content (or any web site linked to through a
Customer Link) would put the Customer in breach of this Contract or otherwise
would be detrimental to the interests of EMO or the goodwill of EMO. Any such
action by EMO shall be without prejudice to EMO’s other rights and remedies.
2.13. The customer accepts that any Advertising product purchased
is subject to editorial review by EMO and any Third Party Provider. EMO also
reserves the right, without liability, to reject, replace, omit or exclude any
order for an Advertising product or to reject, replace or terminate any links
for any reason at any time, with or without notice to the Customer, whether or
not such Advertising product or link was previously acknowledged, accepted, or
published. Notwithstanding this, EMO will use reasonable endeavours to fulfil
Customer's requests
2.14. Information concerning the Customer contained on the
Advertising product will be derived from information provided by the Customer
and it is therefore the Customer's responsibility to ensure that the
information is accurate by checking the Advertising product. EMO shall incur no
liability for any errors in that information except those which could not
reasonably be checked by the Customer and introduced by EMO.
3.
Payment of the
Fees
3.1. Where the Fees set out on the Customer Order Form include
those expressed to be initial set up fees, the Customer shall pay that element
of the Fees on entering into this Contract. Where the Fees set out on the
Customer Order Form include those expressed to be monthly set up or service
provision fees, the Customer shall pay those elements of the Fees monthly in
advance by direct debit unless otherwise specifically agreed by EMO.
3.2. EMO advertising products set out on the Customer Order Form
as a monthly billing contract is a minimum 12-month commitment with automatic
annual renewal. The customer has the right to cancel after one year only.
3.3. All payments made shall include value added tax at the
prevailing rate.
3.4. EMO reserves the right to increase its service provision
fees at any time after the first anniversary of the date on the Customer Order
Form subject to 21 days written notice to the Customer of such increase.
3.5. The Customer shall pay all amounts due to EMO in full
without any deduction or withholding, and shall not assert any credit or
set-off or counterclaim against EMO in order to justify the withholding of the
whole or part of any such amount. If any Fees become overdue for payment EMO
may claim interest (both before and after judgement) at a daily rate of 4%
above Barclays Bank base rate until all outstanding Fees are received.
3.6. The Customer shall not be entitled to withhold payment in
whole or in part for any bookings of Advertising products accepted by EMO by
reason of the fact that EMO is prevented from publishing (or continuing to
publish) such Advertising product in total or in part by any court of competent
jurisdiction or does not publish or ceases to publish such Advertising product
in consequences of any actual or threatened legal proceedings or by order or
request of any regulatory body or generally recognised industry or internet
watchdog organisation or for any other valid reason. The Customer shall
immediately on demand reimburse EMO with any costs incurred by EMO in
connection with such legal proceedings.
3.7. The Customer represents and warrants that it contracts with
EMO as principal, and has the authority to do so, notwithstanding that the
Customer may be acting as an advertising agency or media buyer or in some other
representative capacity
4. Term, Renewals and Termination
4.1. This order constitutes a non-cancellable, binding contract
with East Midlands Online Ltd. No cooling off period applies to this order.
4.2. The term of the Contract will be as set out in the Customer
Order Form.
4.3. Except as expressly set out in the Customer Order Form, any
renewal of the Advertising product will be at EMO’s’ sole discretion. The rates
applicable to such renewal period (if any) are subject to change by EMO from
time to time in its absolute discretion.
4.4. Either EMO or the Customer may terminate this Contract with
immediate effect by giving notice to the other party if that other party is in
breach of any of its obligations under this Contract and, other than when the
breach is a failure to pay Fees and where it is capable of remedy, the breach
has continued unremedied for a period of seven days after the other party has
given notice to the defaulting party specifying the breach and the steps
required to remedy it; or
4.5. The termination of this Contract (for any reason) shall;
(iii)
be without
prejudice to any other rights or remedies which EMO may be entitled to under
this Contract or at law;
(iv)
not affect any
accrued rights or liabilities which EMO may then have; and
(v)
not affect the
coming into or continuance in force of any provision of this Contract which is
expressly or by implication intended to come into or continue in force after
such termination.
4.6. Customers may not cancel an Customer Order Form unless
expressly provided for
in the Customer Order Form in
accordance with sub-clauses 2.2 (i) and (ii) of these
Terms and Conditions
5. Customer Content
5.1. The Customer shall provide the Customer Content to EMO
either at the time of the order or within 2 weeks by means of an email to content@eastmidlandsonline.com or such other email address as EMO may elect or by post. EMO shall
use the Customer Content to create the Advertising product.
5.2. The Customer represents, warrants and undertakes that the
Customer Content is:
(a) legal, proper, decent, honest and accurate and it complies
with all relevant codes including, without limitation, the British Code of
Advertising Practice and all other codes under the general supervision of the
Advertising Standards Authority;
(b) not an advertisement under the Financial Services Act 1986.
5.3. The Customer represents, warrants and undertakes that the
Customer Content, and any web site linked to by the Customer Links (“Linked
Content”):
(a) will not contain obscene or indecent or other unlawful
material;
(b) will not contain materials which infringe the copyright,
database rights, trademark rights, patent rights, moral rights or any other
intellectual property rights of any third party;
(c) will comply will all applicable law;
(d) will not contain any defamatory or untrue material or
material which abuses, harasses, threatens or is otherwise offensive to any
other person;
(e) will not contain any virus;
(f) will not contain any other material which is likely to harm
the reputation of EMO or the EMO Portal.
5.4. If in EMO’s reasonable opinion any Customer Content or
Linked Content puts (or is likely to put) the Customer in breach of clauses 5.2
or 5.3, then EMO may (without prejudice to its other rights and remedies)
remove that Customer Content or the relevant Customer Link.
5.5. Any Customer Content which contains content of an unlawful
or otherwise
unacceptable nature (including but not
limited to pornography or depicting violence) will be reported to the
appropriate authorities.
6. Limitation of Liability
6.1. Except as expressly provided in this Contract, EMO gives no
warranty in relation to the provision of services under this Contract and all
warranties, express or implied, are excluded.
6.2. Subject to clause 6.4, EMO’s entire liability to the
Customer incurred arising out of or, in connection with this Contract including
without limit for breach of contract, misrepresentation (except that
fraudulently made) and tort (including negligence) is limited to the amount of
the Fees paid by the Customer under this Contract in the preceding 12 months.
6.3. Subject to clause 6.4, EMO excludes all liability for
(a) any loss of profits,
business, contracts, revenues, goodwill, production and anticipated savings; or
(b) any indirect, consequential, special or economic loss of any
kind; arising from any failure to publish in a timely manner or at all any
Advertising product in accordance with the Customer Order Form.
6.4. EMO does not limit or exclude liability for death or
personal injury caused by negligence.
6.5. Notwithstanding the generality of the foregoing, EMO
expressly excludes liability for any indirect, special or consequential loss or
damage which may arise out of or in relation to the Contract between EMO and
the Customer or for loss of profit, business, revenue, goodwill or anticipated
savings, even if EMO has been advised as to the possibility of such damages.
6.6. In addition, without limiting the foregoing, EMO cannot be held
responsible for any failure or delay resulting from any governmental action,
natural disaster, insurrection, power failure, riot, explosion, embargo,
strikes whether legal or illegal, labour or material shortage, transportation
interruption of any kind, work slowdown or any other condition beyond the
control of EMO affecting production or delivery in any manner.
6.7. Save as specified in this clause, EMO shall not be
responsible for any error in the placement, or failure to place, any
Advertising product on EMO or on a third party provider. If EMO fails to
publish any Advertising product or deliver the number of impressions or
click-throughs as provided in the Customer Order Form or in the event of any
other failure, technical or otherwise, of such Advertising product to appear as
provided in the Customer Order Form, EMO's liability will be limited (at the
option of EMO) to either:
(i)
publishing the
Advertising product (or a replacement advertisement if provided by the
Customer) on positions agreed in the Customer Order Form or as agreed with
Customer as soon as is reasonably practicable in the period following the
period during which the Advertising product was scheduled to run and for such
time as is necessary to generate a number of substitute impressions or click-throughs
of equivalent monetary value to the shortfall; or
(ii)
refund to the
Customer that proportion of the amounts paid which relate to those Advertising
product and/or impressions or clickthroughs which were not provided, and if the
relevant amounts were not paid by the Customer, agree that such amounts will
not be due or payable. EMO will only provide a refund to the Customer under
sub-clause 6.7 (ii) if:
(a) the creative materials provided by Customer arrived within
the time limits specified in the Customer Order Form;
(b) the creative materials performed in accordance with EMO'
technical specifications; and changes to media schedules were notified within
the timeframe set out in the Customer Order Form.
6.8. EMO will use reasonable skill and care in performing its
duties hereunder but subject thereto:-
(i)
EMO hereby excludes
any warranty, express or implied, as to the quality, accuracy, performance or
fitness for a particular purpose of EMO or of any of its contents;
(ii)
EMO will not be
liable for any losses or damages arising (whether in tort (including
negligence), contract or otherwise) directly or indirectly as a result of use
of EMO or in connection with Advertising products on EMO including without
limitation any technical malfunction, computer error, defect in software, loss
of data or other damage or disruption to advertisements;
(iii)
EMO makes no
warranty that the contents of EMO are free from infection by viruses, worms or
trojans or anything else that has contaminating or destructive properties; and
(iv)
certain links on
EMO may lead to resources located on servers maintained by third parties over
whom EMO has no control and EMO accepts no liability arising from access to or
use of any material contained on those servers.
6.9. Each of the provisions of this clause 6 are to be construed
separately and independently of the other, and if any provision of this clause
6 (or any other clause herein) is found by any court or other judicial body of
competent jurisdiction to be invalid or unenforceable, the invalidity or
unenforceability of such provision will not affect the other provisions of this
clause 6 (or any other clause herein) which will remain in full force and
effect.
7. Licenses, Customer Representations And Indemnification
7.1. The Customer warrants and represents that the Customer is
the owner or is licensed to use the entire contents and subject matter
contained in its advertising and information, including, without limitation,
(i) the names and/or pictures of persons; (ii) any copyright in the material,
trademarks, service marks, logos, and/or depictions of trademarked or service
marked goods or services or any other intellectual property rights; and (iii)
any testimonials or endorsements contained in any Advertising product submitted
to EMO. The Customer warrants and represents to EMO that the publication of the
distributed materials will not infringe any rights of any third party and will
not violate any applicable law or regulation
7.2. In addition, the Customer warrants and represents to EMO
that
(i)
It has the right to
publish all of the contents of the Advertising product, and can grant to EMO
such right, and that such publication will not:
a. infringe any rights of any third party including, without
limitation, intellectual property rights and rights of privacy; and
b. violate any applicable law or regulation.
(ii)
The Advertising
product does not contain anything that is defamatory, obscene, false or
misleading
(iii)
It has complied
with the codes of practice issued by the Committee of Advertising Practice in
the
(iv)
The Advertising
product submitted pursuant to the Customer Order Form either:
a. does not constitute a financial promotion within the meaning
of the Financial Services Act 2000 ("the Act") or other applicable
law; or
b. has been approved by an "authorised person" within
the meaning of the Act or is otherwise permitted under the Act and the Customer
has expressly notified EMO in writing of this
(v)
It does not collect
or use personal information through its Advertising product without permission
from the user and shall at all times comply with the Data Protection Act 1998.
The Customer may not combine, co-mingle, compare or match any information that
they legally collect via its Advertising product with any personal information,
clickstream or cookie information that they may have.
7.3. Hereby the Customer expressly grants to EMO:
(i)
a non-exclusive,
world-wide right to use, reproduce, publicly display, and distribute the
Advertising product in accordance with the Customer Order Form and these Terms
and Conditions and warrants that the Customer has the right to grant such
license;
(ii)
the express right
to reproduce throughout the world screen shots of the Advertising product
supplied to the Customer by EMO on or in any promotional or advertising
material or campaign promoting or advertising EMO (but not any promotional or
advertising campaign paid for by EMO).
7.4. In consideration of EMO’s acceptance of such Advertising
products, the Customer agrees to indemnify and hold EMO and EMO’s employees
harmless against any and all claims actual or any kind (including, without
limitation, any claim of trademark or copyright infringement, libel,
defamation, breach of confidentiality, breach of any statutory or regulatory
duty, false or misleading advertising or breach of any industry advertising
codes or sales practices), damages, liabilities, costs and expenses), including
reasonable legal fees and expenses, arising out of or in connection to:
(i)
any material to
which users are able to be linked to through the Advertising product,
(ii)
EMO’s performance
under the Contract, and
(iii)
the copying,
printing, distributing, or publishing of the Advertising product by EMO.
8. Copyright and Intellectual Property
8.1. The entire copyright and any other intellectual property
rights in the Customer Content throughout the world shall be and shall remain
the exclusive property of the Customer.
9. Use of Data
9.1. The Customer hereby agrees and acknowledges that EMO (or
representatives or agents of EMO) will collect personal data supplied by the
Customer, including contact details such as names, addresses, telephone numbers
and e-mail addresses, and that EMO may use and retain any personal data
supplied by and relating to the Customer for the purposes set out in this
Contract. The Customer agrees that EMO may use any Customer address or e-mail
address for the purpose of contacting the Customer about EMO's products and
services.
10. Confidentiality
10.1. The provisions of the Customer Order Form and all communications
passing between the Customer or any of its agents and EMO are confidential and
must not be disclosed to any third party except:
(a) by the Customer to its qualified accountants or legal
advisers;
(b) by EMO to its qualified accountants or legal advisers; or
(c) as otherwise agreed by the parties in writing or as
otherwise required by law, by any government authority, court order, regulatory
body or stock exchange requirement. In addition, in connection with their
discussions, the Customer may have received and may in future receive from EMO
certain valuable technical and non-technical information and materials relating
to EMO and its business, which is confidential and proprietary to EMO. The
Customer agrees to preserve the confidentiality of information belonging EMO.
10.2. The Customer and its agents are hereby put on notice that
EMO and its affiliates are particularly sensitive to public statements about
the EMO web services, their contractual relationships and product plans, and
improper or ill-timed statements are likely to have a detrimental effect on the
business of EMO and its affiliates and may contravene applicable law.
Consequently, the Customer and its agents must not, and must ensure that any
person acting on its behalf does not, make any public announcement in respect
of the Customer Order Form or the relationship between the parties without
prior written consent of EMO including without limitation any pre-announcement
in respect of the display of advertising on any EMO property. For the avoidance
of doubt, the foregoing prohibition includes public announcements by any third
party acting on behalf of the Customer and any communication that the Customer
knows will or is likely to be made public. Any breach of this clause 10.2 by
the Customer will be deemed to be a breach of confidentiality under this clause
10.
11. General
11.1. EMO shall not be liable for any loss, damage or delay
howsoever arising caused by events which are not reasonably foreseeable or
caused by circumstances outside its reasonable control including without
limitation the failure of third parties to provide necessary or desirable
services, failure of infrastructure or power suppliers, denial of service or
similar attacks or other reasons causing service outages which result in the
prevention or delay of its performance under this Contract. EMO shall be
excused from such performance to extent of such prevention or delay.
11.2. All notices to be given under this Contract shall be in
writing and shall be sent by first class post to the address on the Customer
Order Form. Any notice given under this Contract, which is sent by post in
accordance with this clause 10, shall be deemed to have been received two days
after posting.
11.3. This Contract constitutes the entire agreement between the
Customer and EMO in relation to the Advertising product. No addition to or
modification of this Contract shall be effective unless it is in writing and
signed by a duly authorized representative of both the Customer and EMO.
11.4. Nothing in this Contract shall create, or be deemed to
create, a partnership or joint venture between the Customer and EMO or the
relationship of principal and agent between the Customer and EMO.
11.5. No delay or failure on the part of either party to exercise
or to enforce any right given to it by this Contract or at law, or any custom
or practice of the Customer and/or EMO at variance with the terms of this
Contract shall constitute a waiver of either the Customer’s or EMO’s respective
rights under this Contract or operate so as to prevent the exercise or enforcement
of any such right at any time.
11.6. If any provision of this Contract is held to be invalid or
unenforceable, in whole or in part, that provision or part shall to that extent
be deemed not to form part of this Contract. However, the validity and
enforceability of the remainder of this Contract shall not be affected.
11.7. The Customer may not assign the whole or any part of its
rights or obligations under this Contract without the prior written consent of
EMO. EMO may assign or subcontract the whole or any part of its rights or
obligations under this Contract without restrictions.
11.8. No person has any rights under this Contract save as may be
set out in it and the parties agree that the Contracts (Right of Third Parties)
Act 1999 is excluded.
11.9. This Contract shall be governed by and construed in
accordance with English law and the Customer and EMO submit to the
non-exclusive jurisdiction of the English courts.
11.10. The placing of a Customer Order Form for the insertion of an
Advertising product shall amount to an acceptance of these Terms and Conditions
and subject to sub-clause 2.2 (i) and (ii) of these Terms and Conditions any
conditions stipulated on a Customer Order Form or elsewhere by an agency or an
Customer shall be void in so far as they are in conflict with them.
11.11. The parties and their respective personnel, are and shall be
independent contractors and neither party by virtue of this Contract shall have
any right, power or authority to act or create any obligation, express or
implied, on behalf of the other party.
No waiver of any provision hereof or of
any right or remedy hereunder shall be effective unless in writing and signed
by the party against whom such waiver is sought to be enforced. No delay in
exercising, no course of dealing with respect to, or no partial exercise of any
right or remedy hereunder shall constitute a waiver of any other right or
remedy, or future exercise thereof.