The following terms and conditions ("Advertising Terms and Conditions") are deemed to be incorporated into each order for advertising ("Advertising Order") accepted by MKWeb Ltd ("MKWeb"):
1. Terms of Payment
1.1 The Advertiser (as defined in the Advertising Order) must have paid any outstanding invoices before the advertising will appear on MKWeb.
1.2 All prices quoted are based on calendar months. Where an advertiser wishes advertising to appear part way through a month then a discount of 25% of the 1st month's fee will be given for each complete week (Sunday to Saturday) that the advertising does not appear. Part months are not included when calculating a price, or discount given, for a run of advertising of more than 1 month.
1.3 The Advertiser must pay at the rates prescribed by applicable law all VAT (and all similar sales tax (if applicable)) on the amounts due under this Advertising Order.
1.4 The Advertiser represents and warrants that it contracts with MKWeb as principal, and has the authority to do so, notwithstanding that the Advertiser may be acting as an advertising agency or media buyer or in some other representative capacity.
2. Positioning and Licence
2.1 The Advertiser hereby grants to MKWeb a world-wide, non-exclusive, fully paid licence to reproduce and display the advertisement (including all contents, trademarks and brand features contained therein) in accordance with the Advertising Order and these Advertising Terms and Conditions.
2.2 Except as otherwise expressly provided in the Advertising Order, positioning of advertisements within the MKWeb properties or on any page is at the sole discretion of MKWeb, and MKWeb will not be prohibited from also carrying advertisements for any product or business competitive to the product or business of the Advertiser.
2.3 MKWeb does not warrant the date or dates of insertion of the advertisement(s) and does not warrant that the advertisement(s) will not be displayed after the end date specified. However, MKWeb will use reasonable efforts to comply with the Advertiser's wishes in these regards.
2.4 The Advertiser grants to MKWeb the express right to reproduce throughout the world screen shots of all or part of any MKWeb property containing all or part of any of the advertising materials supplied by the Advertiser to MKWeb on or in any promotional or advertising material or campaign promoting or advertising MKWeb
2.5 If the Advertiser wishes to request a change to positioning of advertisements, it must provide the relevant creatives and give prior written notice of at least 2 weeks before the end of a calendar month, such change to take place in the following calendar month. Failure to provide such prior notice will mean that the positions set out in the Advertising Order prevail. Any requested change to positioning of advertisements will be decided at MKWeb's sole discretion, subject to availability. In any event, the Advertiser will only request changes to the position of advertisements once in any each calendar month.
3. Usage Statistics
Notwithstanding the provisions of the Advertising Order, the Advertiser acknowledges that MKWeb has not made any guarantees with respect to usage statistics, which include, without limitation, levels of impressions or click-throughs for any advertisement or for any position specified for each advertisement. MKWeb provides the Advertiser with estimated usage statistics only as a courtesy to the Advertiser and MKWeb will not be held liable for any claims relating to any usage statistics however supplied. The Advertiser acknowledges that usage statistics provided by MKWeb are the official, definitive measurements of MKWeb's performance on any delivery obligations provided in the Advertising Order.
Except as expressly set out in the Advertising Order, any renewal of the Advertising Order and acceptance of any additional advertising order will be at MKWeb's sole discretion. The rates applicable to such renewal period (if any) are subject to change by MKWeb from time to time in its absolute discretion.
5. No Assignment or Resale of Ad Space
The parties may not resell, assign or transfer any of its rights hereunder, except to any of their Affiliates provided that such Affiliates are not competitors of the other party. Any attempt to resell, assign or transfer such rights will entitle the other party to terminate this contract immediately, without liability on the part of the terminating party. "Affiliate" means in respect of a party its "holding company", its "subsidiary company" or a subsidiary company of its holding company, as those terms are defined in section 736 of the Companies Act 1985.
6. Limitation of Liability
6.1 If MKWeb fails to publish any advertisement or deliver the number of impressions or click-throughs as provided in the Advertising Order (or in the event of any other failure, technical or otherwise, of such advertisement to appear as provided in the Advertising Order), MKWeb's liability will be limited (at the option of MKWeb) to either: (a) publishing the advertisement (or a replacement advertisement if provided by the Advertiser) on positions agreed in the Advertising Order or as agreed with Advertiser as soon as is reasonably practicable in the period following the period during which the advertisement 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 (b) refund to the Advertiser that proportion of the amounts paid which relate to those advertisements and/or impressions or click-throughs which were not provided, and if the relevant amounts were not paid by the Advertiser, agree that such amounts will not be due or payable. MKWeb will only provide a refund to the Advertiser under clause 6.1(b) if: (i) the creative arrived within the time limits specified in the Advertising Order; (ii) the creative performed in accordance with MKWeb's technical specifications at http://www.mkweb.co.uk/advertising; and (iii) cancellations and changes to media schedules were notified within the timeframe set out in clause 2.5.
6.2 In no event will MKWeb be responsible in contract, tort, negligence or otherwise, for: (a) 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 advertisement in accordance with the Advertising Order.
6.3 Where the Advertiser uses a third party server to serve advertisements to MKWeb: (i) MKWeb will have no liability and the Advertiser will hold only the third party server (and not MKWeb) liable for the failure to publish any advertisement or deliver the number of impressions or click-throughs as provided in the Advertising Order or any other loss of any kind suffered by the Advertiser where those failures or losses are due to or arise out of or in connection with any act or omission of the third party server; and (ii) the statistics provided by MKWeb are the official and definitive measurements. MKWeb reserves the right to terminate at MKWeb's sole discretion the right of the third party server to serve the Advertiser's advertisements to MKWeb's network. In the event of such termination, MKWeb may serve the advertisements instead.
6.4 Without limiting the foregoing, MKWeb will have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, 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 MKWeb affecting production or delivery in any manner.
6.5 MKWeb does not limit or exclude liability for death or personal injury caused by its negligence.
6.6 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. Advertisers Representations; Indemnification.
7.1 The Advertiser warrants and represents to MKWeb that:
7.1.1 It has the right to publish all of the contents of the advertisements, and can grant to MKWeb 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.
7.1.2 The advertisements do not contain anything that is defamatory, obscene, false or misleading.
7.1.3 It has complied with the codes of practice issued by the Committee of Advertising Practice in the UK or the Advertising Standards Authority for Ireland as applicable and all other relevant industry codes of practice.
7.1.4 Unless the Advertiser is an "authorised person" within the meaning of the Financial Services and Markets Act 2000 ("the Act"), you agree that the advertisement submitted pursuant to the Advertising Order either: (a) does not constitute an invitation or inducement to engage in investment activity within the meaning of the Act; or (b) has been approved by an "authorised person" within the meaning of the Act or is otherwise permitted under the Act and the Advertiser has expressly notified MKWeb in writing of this.
7.1.5 It does not collect or use personal information through its Advertisements on any MKWeb property without permission from the user. The Advertiser may not combine, co-mingle, compare or match any information that they legally collect via its Advertisements on any MKWeb property with any personal information, clickstream or cookie information that they may have.
7.2 The Advertiser agrees to indemnify and keep indemnified MKWeb and hold MKWeb harmless against any and all expenses, damages costs (including reasonable legal fees and costs) and losses of any kind incurred by MKWeb in connection with any claims actual or threatened, of 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) arising from the advertisement and /or any material (of the Advertiser or otherwise) to which users can link through the advertisement.
8. Provision of Advertising Materials
The Advertiser will provide all materials for the advertisement (including GIF or JPEG files), in accordance with MKWeb's requirements set out in this Agreement and in the Advertising Order, including (without limitation) the manner of transmission to MKWeb, the lead-time prior to publication of the advertisement and such technical specifications as MKWeb may require from time to time. MKWeb will not be required to publish any advertisement that has not been received in accordance with such requirements and reserves the right to charge the Advertiser the advertising rate specified in the Advertising Order whilst awaiting receipt of the advertising material.
9. Right to Reject Advertisement
All contents of advertisements are subject to MKWeb's approval. MKWeb does not undertake to review the contents of any advertisements and any such review of and/or approval by MKWeb will not be deemed to constitute an acceptance by MKWeb that such advertisement is provided in accordance with these Advertising Terms and Conditions nor will it constitute a waiver of MKWeb's rights hereunder. MKWeb reserves the right at any time in its absolute discretion to:
9.1 Reject or cancel any advertisement, Advertising Order, URL link, space reservation or position commitment; and/ or
9.2 Remove any advertisement from any of the MKWeb properties or any page.
10. Cancellations and Construction
The Advertiser cannot cancel the Advertising Order. No conditions other than those set forth in the Advertising Order or these Advertising Terms and Conditions will be binding on MKWeb unless expressly agreed to in writing by an authorised representative of MKWeb. In the event of any inconsistency between the Advertising Order and these Advertising Terms and Conditions, these Advertising Terms and Conditions will prevail.
11. Confidentiality and Public Announcements
11.1The provisions of the Advertising Order and all communications passing between the Advertiser or any of its agents and MKWeb are confidential and must not be disclosed to any third party except: (a) by the Advertiser to its qualified accountants or legal advisers; (b) by MKWeb to its qualified accountants or legal advisers; or (c) as otherwise agreed by the parties in writing or as otherwise required by law.
11.2 If the parties have executed a non-disclosure agreement prior to the date of this Agreement ("Non-Disclosure Agreement"), then: (a) the Non-Disclosure Agreement is hereby incorporated into this Advertising Terms and Conditions by reference whether or not it is attached to the Advertising Order; and (b) each party must comply with its obligations in the Non-Disclosure Agreement.
These Advertising Terms and Conditions, together with the Advertising Order (i) will be governed by and construed in accordance with, the laws of England, and the parties submit to the non-exclusive jurisdiction of the English courts; and (ii) constitute the complete and entire expression of the agreement between the parties, and supersede all other prior understandings, commitments, agreements and (unless made fraudulently) representations, whether written or oral between the parties. Clauses 6, 7, 11 and 12 will survive any expiry or termination of these Advertising Terms and Conditions. MKWeb's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
Notwithstanding any other provision in these Advertising Terms and Conditions, a person who is not a party to these Advertising Terms and Conditions has no right under the Contracts (Rights of Third Parties ) Act 1999 to rely upon or enforce any term of these Advertising Terms and Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.