Mediadrive Ltd. Advertiser Terms and Conditions

MediaDrive Ltd. of Turnbull House 226 Mulgrave Road, Cheam, Sutton, Surrey, England, SM2 6JT (company number 6753171) (“MediaDrive Ltd. ”) and the Advertiser enter into these terms and conditions in relation to the provision of Advertising Services by MediaDrive Ltd . to the Advertiser ("Terms and Conditions"). MediaDrive Ltd. and the Advertiser agree as follows:

1

Definitions

“Advert” means any text hyper-link, html code, button, banner or other graphic or text file(s) provided to MediaDrive Ltd. by the Advertiser for the purpose of promotion on Publisher’s Websites.

“the Advertiser” means any advertiser or advertising agency for whom MediaDrive Ltd. . shall procure Advertising Inventory on Publisher’s Websites.

“Advertising Inventory” means the advertising space procured for Adverts on Publisher’s Websites.

“Advertising Regulation and Standards” means any present or future applicable code of practice, adjudication, decision, guideline, direction or rule of any Advertising Regulator and includes any applicable modification, extension or replacement thereof in force from time to time.

“Advertising Regulator” means the Office of Communications, the Broadcast Committee of Advertising Practice, the Committee of Advertising Practice, the Advertising Standards Authority (“ASA”), the ASA (Broadcast) or any other UK regulator or statutory or regulatory body relevant to the marketing and advertising services to be provided under this Agreement.

“Advertising Services” means the provision of Adverts and stats to Publisher to be displayed on Publisher's Websites.

“Click” means an attempt by MediaDrive Ltd. to redirect a Viewer from a Publisher’s Website to a URL specified by the Advertiser.

Cookie means any file, data, device or object stored upon a User's terminal equipment in order to monitor, track, identify or authenticate the User or his activity (for any purpose).

“Downtime” means any period during which the provision of stats is not available to Publisher or periods where MediaDrive Ltd. is unable to serve Adverts to Publisher’s Websites.

“End Date” means the ending date of the campaign as indicated on the Insertion Order.

“Impression” means the single display of an Advert served by MediaDrive Ltd. . to a Viewer on Publisher’s Websites.

“Insertion Order” means the MediaDrive Ltd. . standard form that MediaDrive Ltd.ally describes the Advert, the placement on the MediaDrive Ltd. . Network and the fees to be paid by the Advertiser to MediaDrive Ltd. ..

“Internet” means the global connection of computer networks providing for the transmission of electronic mail, online information, information retrieval and file transfer protocol.

Publisher means a publisher who has entered into a publisher agreement with MediaDrive Ltd. . for the purposes of joining the MediaDrive Ltd. . Network and displaying Adverts on behalf of the Advertisers.

“Publisher’s Websites” means the website(s) of Publisher or any website which belongs to a third party which has appointed Publisher to represent it for the purposes of selling Advertising Inventory.

Privacy Law means the US CAN-SPAM Act of 2003, the Data Protection Directive 95/46, the E-Privacy Directive 2002/58 and any other applicable law concerning the privacy or tracking of, communications with and use of information concerning Users or Viewers.

“Stats” means a provision of delivery information from MediaDrive Ltd. .allowing a Publisher to monitor advertising campaigns delivered on Publisher’s Websites.

“Start Date” means the commencement of the campaign as indicated on the Insertion Order.

“MediaDrive Ltd. . Network” means the selection of Publisher’s Websites upon which MediaDrive Ltd. . may place Adverts from time to time.

“User” means any person accessing Publisher's Websites including but not limited to any Viewer.

“URL” means the group of characters which identify a type of Internet resource and its location on the Internet.

“Viewer” means any person using the Internet who prompts an Impression or views an Advert by clicking on the Advert.

“Websites” means an HTML document containing a set of information available via the Internet.

Unless the context otherwise requires, words denoting the singular shall include the plural and vice versa; words denoting any one gender shall include all genders; words denoting persons shall include bodies corporate, unincorporated associations and partnerships; and any reference to a statutory provision shall be construed as a reference to any statutory modification, re-enactment or implementing legislation for the time being in force.

 

2

Agreement

These Terms and Conditions and the accompanying Insertion Order(s) constitute the entire agreement ("Agreement") between MediaDrive Ltd . and the Advertiser and shall define each party’s rights and obligations with respect to MediaDrive Ltd. .’s provision of the Advertising Services on the Advertiser’s behalf. Each Insertion Order shall be subject to the terms and conditions set out in this Agreement.

 

3

Delivery

The Advertiser will deliver all Adverts to MediaDrive Ltd. no less than five (5) days prior to the first scheduled appearance of the Adverts on the MediaDrive Ltd. Network. If the Advertiser does not submit the Advert or the Adverts within five (5) business days of the Start Date, MediaDrive Ltd. . reserves the right to im.tely terminate the Insertion Order upon notice to the Advertiser and all Advert placements will be released and MediaDrive Ltd. will have no further obligation under this Agreement. MediaDrive Ltd. . will use commercially reasonable efforts to display standard Adverts on the MediaDrive Ltd. . Network within five (5) business days after MediaDrive Ltd. . receives the Adverts from the Advertiser. Adverts that contain rich . technology components will be placed within ten (10) business days after MediaDrive Ltd. . receives such rich . Adverts from the Advertiser. MediaDrive Ltd. . reserves the right to reject in good faith any Adverts that do not conform to MediaDrive Ltd. .’s standards for advertising on the MediaDrive Ltd. . Network (as amended from time to time). Notwithstanding the foregoing, MediaDrive Ltd. . is not required to display the Adverts on the MediaDrive Ltd. . Network unless MediaDrive Ltd. . approves and continues to approve the Advertiser’s credit status in its sole discretion and both parties have executed the Agreement.

The parties agree that MediaDrive Ltd . shall use its best endeavors to procure that the campaign as set forth in the Insertion Order will run the number of days indicated in the Insertion Order. However, the Start Date and/or End Date may be modified by MediaDrive Ltd. . upon notice to the Advertiser due to scheduling delays, including but not limited to, delays in execution of the Agreement, credit approval or delivery of Advert.

Subject to this clause 3.3, in the event that MediaDrive Ltd. delivers a shortfall greater than 5% of the number of Adverts to be displayed as set forth in the Insertion Order based on the Publisher's figures, the Advertiser’s sole remedy, at MediaDrive Ltd. .’s discretion, will be: (i) to extend the term of the Insertion Order until the total number of Adverts are delivered; (ii) position and place the Adverts on the MediaDrive Ltd. . Network during some future time period; or (iii) deliver the Adverts as otherwise mutually agreed upon by the parties. For the avoidance of doubt, if the shortfall is less than or equal to 5% of the number of Adverts to be displayed as set forth in the Insertion Order, the Advertiser shall have no remedy against MediaDrive Ltd. ..

 

4

Positioning, Placement; Reservation of Right

The position, placement and description of the Adverts on the MediaDrive Ltd. . Network will be as set forth in the Insertion Order. MediaDrive Ltd. will use commercially reasonable efforts to place the Adverts on the MediaDrive Ltd. Network as specified in the Insertion Order. In the event that MediaDrive Ltd. . redesigns and/or materially changes the MediaDrive Ltd. Network during the term of this Agreement, MediaDrive Ltd. will provide the Advertiser with placements that are similar in prominence and value as determined by MediaDrive Ltd. . in its sole discretion. MediaDrive Ltd., in its sole discretion, reserves the right to reject, revise or remove, or to require the Advertiser to correct, revise or substitute any or all of the Adverts, if MediaDrive Ltd. reasonably believes that such Adverts might violate any of the Advertiser’s representations under this Agreement, or might fail to conform to the operating policy of MediaDrive Ltd. (as amended from time to time). The Advertiser agrees and understands that failure to comply with MediaDrive Ltd. MediaDrive Ltd.ations for Adverts, as amended from time to time, may result in removal of the Adverts from the MediaDrive Ltd. Network at MediaDrive Ltd. sole discretion.

 

5

Monitoring

MediaDrive Ltd. shall maintain stats for the purpose of counting the number of Impressions and Clicks on any Advert and shall store this information in a secure dedicated area on MediaDrive Ltd. for access only by the Advertiser and MediaDrive Ltd. ..

The Advertiser shall have sole responsibility for monitoring the information referred to in clause 5.1 during the term of the Insertion Order. Access to stats will be by means of email provision by request from MediaDrive Ltd.

The Advertiser shall report to MediaDrive Ltd. within 2 (two) working days of the information being supplied by MediaDrive Ltd., any discrepancy relating to the information or the statistics provided. MediaDrive Ltd.is not liable for any discrepancy not reported within this time frame and the Advertiser waives all right, title and intent to dispute payment to MediaDrive Ltd. .based upon any discrepancy not reported within this time frame. If the Advertiser desires to seek credit for any such discrepancy, MediaDrive Ltd. agrees to review the disputed information and will make a reasonable effort to investigate and negotiate a reconciliation for confirmed discrepancy. In no case will MediaDrive Ltd. credit more than ten (10) percent of total number of Impressions or Clicks in relation to an Advert.

MediaDrive Ltd. . operates a proprietary electronic validation system that is intended to monitor the validity of a Viewer’s request for an Advert or a Viewer’s request to be redirected to the URL specified by the Advertiser, such request being indicated by an Impression or a Click. This system is not foolproof and MediaDrive Ltd. . shall not be liable for any fraud by any Viewer or third party including the owner or operator of Publisher's Websites or their employees.

MediaDrive Ltd. reserves the right to use the information maintained its stats source, and otherwise connected to the monitoring of the campaign, provided that it complies with applicable law and does not disclose to a third party any information which identifies or specifically relates to the Advertiser or any of the Advertiser's Adverts.

6

Payment

All amounts due from the Advertiser hereunder must be paid within thirty (30) days of the invoice date. MediaDrive Ltd. reserves the right to suspend the placement of any Advert on the MediaDrive Ltd. . Network or terminate this Agreement in the event that a payment due hereunder remains unpaid three (3) business days after the Advertiser has been notified of such non-payment in writing.

In the event that a payment due hereunder remains unpaid three (3) business days after the Advertiser has been notified of such non-payment in writing, MediaDrive Ltd. . shall be entitled to charge the Advertiser interest (both before and after any judgment) on the unpaid amount at the rate of 4 per cent. per annum above the base rate of Natwest Bank plc (or another bank nominated by MediaDrive Ltd. . from time to time), from the invoice date until payment in full is made and interest shall accrue on a daily basis. If it should become necessary to pass the the Advertiser's account to a third party debt collection agency, the Advertiser shall be responsible for all collection costs including all reasonable legal fees incurred by MediaDrive Ltd. . or the debt collection agency.

 

7

Downtime

Computer and telecommunications systems are not fault free and may require periods of Downtime. Accordingly, MediaDrive Ltd. does not guarantee uninterrupted availability of the Internet,Stats, any other MediaDrive Ltd. Website or any Publisher’s Websites but it shall make reasonable commercial effort to minimise any Downtime which is within its direct control. The Advertiser shall have no claim for breach of contract or otherwise in respect of any Downtime. Where reasonably possible, MediaDrive Ltd. shall advise the Advertiser in advance of any Downtime within its direct control.

Where such Downtime runs for an uninterrupted period of 24 hours or more, the term of this Agreement will be extended to make good the period for which the Downtime occurred.

 

8

Warranties

The Advertiser represents and warrants that: (i) it holds all necessary rights to permit the use of all Advert provided to MediaDrive Ltd. . under this Agreement; (ii) the use, reproduction, distribution, transmission or display of any Advert and any materials to which Users can link, or any products or services made available to Users through the Advert will not in the reasonable view of MediaDrive Ltd. .: (a) violate any applicable law, rule, code, standard or regulation (including but not limited to any Privacy Law and the Consumer Protection from Unfair Trading Regulations 2008), breach the Advertising Regulation and Standards or infringe any copyright, patent, trademark or service mark, trade secret rights, copy any get up or trading style or breach any other personal, moral, contractual, property or privacy right of any third party (collectively “Unlawful Conduct”); (b) contain or promote viruses, spyware, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct (collectively “Offensive Conduct”); or (c) encourage or tolerate third party conduct that would constitute Unlawful Conduct or Offensive Conduct; (iii) the landing page for each Advert (i.e., the Advertiser’s website page where a consumer is directed) contains a prominent link to the Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding the Advertiser’s collection, use, disclosure and security of their personal information; (iv) all consumer data collected pursuant to the advertising campaign shall only be used for legal purposes; (v) no campaign offers products or services that are illegal for minors to buy, possess or participate in; and (vi) prior to loading any computer program onto an individual’s computer, including without limitation programmes commonly referred to as adware or spyware but excluding Cookies (provided that Cookies are disclosed in the Advertiser’s privacy policy), the Advertiser shall provide notice to and shall obtain the express consent of the User.

 

9

Mutual Warranties

Each party warrants that it has the full right, power, legal capacity and authority to enter into, deliver and fully perform under this Agreement. Any agency executing this Agreement on behalf of or in the name of its client represents and warrants that it has the authority to bind its client to the terms and conditions stated herein and remains jointly and severally liable for all obligations under this Agreement.

 

10

Licence

The Advertiser represents and warrants that it has the right and licence to grant MediaDrive Ltd. . a non-exclusive, worldwide, royalty-free right and licence (subject to the Insertion Order) under the applicable party’s intellectual property rights to transmit, publicly display, publicly perform, store, copy and distribute the Adverts described in the Insertion Order on the MediaDrive Ltd. . Network, including but not limited to any relevant trademarks, trade names and logos that are contained in the Adverts.

 

11

Confidentiality

Neither party shall disclose or reveal to any third party any confidential information of the other party, including but not limited to all information received in connection with the business, products and services of MediaDrive Ltd. . and this Agreement. Each party shall procure that its employees, agents, consultants and contractors shall also comply with this obligation. This provision shall continue without limit in point of time. This provision shall not apply to information which: ­

a) is public knowledge or already known to the other party at the time of disclosure or which subsequently lawfully enters the public domain;

b) subsequently comes lawfully into the possession of the other party from an unconnected third party;

c) is required to be disclosed by an order of a court of competent jurisdiction or governmental or administrative authority or as a result of any applicable law or regulation in force from time to time; or

d) is disclosed or used in connection with the performance of this Agreement or which is contained in the Advert.

 

12

Limitation of Liability

Nothing in this Agreement shall exclude or limit MediaDrive Ltd. .´s liability for death or personal injury caused by its negligence or liability for fraud or any other liability which cannot be excluded or limited under applicable law.

MediaDrive Ltd. . shall not be liable to the Advertiser or any third party for any  damage to software, misuse of, damage to, loss or destruction of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

Subject to clause 12.1, MediaDrive Ltd. .'s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the lesser of the cost for running the MediaDrive Ltd. advertising campaign in question or five thousand pounds sterling (£5,000.00). No action, suit or proceeding shall be brought against MediaDrive Ltd. . more than one year after the claim to which such action, suit or proceeding relates arises.

 

13

Indemnity

The Advertiser agrees to indemnify, defend and hold harmless MediaDrive Ltd. ., each Publisher and each of their respective shareholders, officers, directors, employees and agents, from and against any and all losses, liabilities, injuries, damages, attorneys’ fees and other costs and expenses incurred in connection with any breach of the Advertiser’s representations or other obligations under this Agreement.

 

14

Notice

Any notice in connection with this Agreement shall be in writing in English and delivered by hand, fax, registered post or courier using an internationally recognised courier company. A notice shall be effective upon receipt and shall be deemed to have been received (i) at the time of delivery, if delivered by hand, special delivery or courier or (ii) at the time of transmission if delivered by fax provided that, in either case, where delivery occurs outside working hours, notice shall be deemed to have been received at the start of working hours on the next following business day.

The addresses and fax numbers of the parties for the purpose of clause 14.1 are:

Address: 19 Catherine Place, Victoria, London, SW1E 6DX

 

15

Term; Termination

This Agreement will continue in effect for the term defined in the Insertion Order, unless earlier terminated by either party providing two (2) days’ written notice of its intent to terminate to the other party. However, the Advertiser agrees that it will continue to purchase all available inventory from MediaDrive Ltd. throughout the two-day notice period. MediaDrive Ltd may immediately terminate this Agreement and remove the Adverts from the MediaDrive Ltd. Network if MediaDrive Ltd reasonably believes that such Adverts violate any of the Advertiser’s representations or warrants under this Agreement. All fees and other charges for Adverts placed through the date of termination will be due upon termination. This Agreement is not binding on either party unless MediaDrive Ltd. approves the Advertiser’s credit in its sole discretion and both parties have executed the Agreement.

 

16

Assignment

No rights or obligations under this Agreement may be assigned by the Advertiser without the prior written consent of MediaDrive Ltd. .. Any assignment, transfer or attempted assignment or transfer in breach of this clause shall be void and of no force and effect. MediaDrive Ltd. . and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties under this Agreement, to any party.

 

17

Third Party Rights

Unless otherwise expressly provided for in this Agreement, this Agreement is made solely for the benefit of the parties hereto and the successors and assigns of MediaDrive Ltd. . and is not intended to benefit, or be enforceable by, anyone else.

 

18

Entire Agreement

This Agreement (including the Insertion Order(s)) constitutes the whole agreement between MediaDrive Ltd. . and the Advertiser and supersedes all previous understandings and agreements (whether written, oral or implied) between MediaDrive Ltd. . and the Advertiser with respect to the subject matter hereof. Each party acknowledges that, in entering into the contract with respect to the subject matter hereof, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.

 

19

Variation and Waiver

Variation.

No amendment of this Agreement shall be valid unless it is in writing and duly executed by or on behalf of both parties to this Agreement.

Waiver.

The rights and remedies of the parties to this Agreement shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence  by any other party or by anything whatsoever except a MediaDrive Ltd. waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the parties to this Agreement. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.

 

20

Severability

If any part of this Agreement is found by a court of competent jurisdiction or other competent tribunal to be invalid, unlawful or unenforceable, then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.

 

21

Dispute Resolution

If any dispute arises in connection with this Agreement, it is agreed that the directors or other senior representatives of the parties with authority to settle the dispute will, within fourteen (14) days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

If the dispute is not resolved at that meeting, the parties shall be free to take such actions as they deem proper in all the circumstances in accordance with this Agreement.

 

22

No Agency

No agency, partnership, joint venture, distributorship, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.

 

23

Force Majeure

Neither party shall be under any liability to the other party in any way whatsoever for destruction, damage or delay arising from circumstances beyond its reasonable control, including war, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fire, theft, explosion, earthquake, act of God, flood, drought or bad weather, the unavailability of deliveries, supplies, products, disks or other . or the requisitioning or other act or order by any government department, council or other constituted body (together “Force Majeure”). Notwithstanding the foregoing, each party shall use all reasonable endeavours to continue to perform, or resume performance of, such obligations hereunder for the duration of such Force Majeure.

If either party is affected by Force Majeure, it shall promptly notify the other in writing of the nature and extent of the circumstances in question, and the length of time for which it is estimated such circumstances shall subsist.

In the event that either party is affected by Force Majeure for a period of more than thirty (30) days the other party may terminate this Agreement summarily upon notice to the first party.

 

24

Governing Law and Jurisdiction

This Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.

 

25

Creative Guidelines

The Advertiser will deliver Adverts to MediaDrive Ltd. within the specification provided with the MediaDrive Ltd 'Ad-specs@ document.

Additional (polite) file size may not exceed 2.2MB. Rendering blank Adverts is not permitted. For situations where the user’s browser does not support Flash, or the geotargeting is misread, you must also supply a back up creative so that a blank does not appear.