TERMS & CONDITIONS
Website advertising terms and conditions
Please read these Terms and Conditions carefully. All contracts that the Operator may enter into from time to time [for the provision of the Operator's services] shall be governed by these Terms and Conditions, and the Operator will ask the Advertiser for the Advertiser's express written acceptance of these Terms and Conditions before providing [any such services] to the Advertiser.
1. Definitions
1.1 In these Terms and Conditions[, except to the extent expressly provided otherwise]:
"Advertisement" means [any and all advertisements provided by the Advertiser to the Operator for publication through the Advertisement Publication Services];
"Advertisement Publication Services" means [the ongoing hosting and publication of the Advertisements by the Operator on behalf of the Advertiser on the Advertising Platform in accordance with these Terms and Conditions];
"Advertiser" means the person or entity identified as such in Section 1 of the Order Form;
"Advertiser Indemnity Event" has the meaning given to it in Clause 9.1;
"Advertising Platform" means [the platform managed by the Operator and used by the Operator to provide the Advertisement Publication Services];
"Business Day" means any weekday other than a bank or public holiday in [England];
"Business Hours" means the hours of [09:00 to 17:00 GMT/BST] on a Business Day;
"Charges" means the following amounts:
(a) [the amounts specified in Section 3 of the Order Form]; and
(b) [such amounts as may be agreed by the parties in writing from time to time];
[additional list items]
"Contract" means a particular contract made under these Terms and Conditions between the Operator and the Advertiser;
"Effective Date" means [the date upon which the parties execute a hard-copy Order Form; or, following the Advertiser completing and submitting the online Order Form published by the Operator on the Operator's website, the date upon which the Operator sends to the Advertiser an order confirmation];
"Force Majeure Event" means [an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars)];
"Intellectual Property Rights" means [all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)];
"Operator" means [[individual name] of [address]] OR [[company name], a company incorporated in [England and Wales] (registration number [registration number]) having its registered office at [address]] OR [[partnership name], a partnership established under the laws of [England and Wales] having its principal place of business at [address]];
"Order Form" means a written order form agreed by or on behalf of each of the parties;
"Term" means [the term of the Contract, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2]; and
"Terms and Conditions" means these terms and conditions, including any amendments to these terms and conditions from time to time.
2. Term
2.1 The Contract shall come into force upon the Effective Date.
2.2 The Contract shall continue in force indefinitely, subject to termination in accordance with Clause 12.
2.3 Unless the parties expressly agree otherwise in writing, each Order Form shall create a distinct contract under these Terms and Conditions.
3. Advertisement Publication Services
3.1 The Operator shall provide the Advertisement Publication Services to the Advertiser during the Term with reasonable skill and care and in accordance with these Terms and Conditions.
3.2 The Operator shall use [reasonable] OR [best] endeavours to maintain the availability of the Advertising Platform and the Advertisements [at the gateway between the public internet and the network of the hosting services provider for the Advertising Platform], but does not guarantee 100% availability.
3.3 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the Contract:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Advertiser's computer systems or networks;
(d) any breach by the Advertiser of the Contract; or
(e) scheduled maintenance.
[additional list items]
3.4 The Operator may suspend the provision of the Advertisement Publication Services if any amount due to be paid by the Advertiser to the Operator under the Contract is overdue, and the Operator has given to the Advertiser at least [30 days'] written notice, following the amount becoming overdue, of its intention to suspend the Advertisement Publication Services on this basis.
4. Advertisements
4.1 The Advertiser shall supply to the Operator the Advertisements that are specified in the Order Form or that the parties otherwise agree in writing shall be supplied by the Advertiser.
4.2 The Advertiser shall supply the Advertisements in accordance with any timetable agreed in the Order Form or otherwise agreed by the parties in writing; providing that if no timetable for supply is so agreed the Advertiser shall supply the Advertisements within a reasonable time period taking into account the Operator's obligations under these Terms and Conditions.
4.3 The Operator shall not be liable to the Advertiser in respect of any failure of the Operator to comply with its obligations under the Contract to the extent that such failure arises out of any breach by the Advertiser of this Clause 4, subject always to Clause 10.1.
4.4 The Advertiser hereby grants to the Operator a non-exclusive licence to [copy, reproduce, store, distribute, publish, export, adapt, edit and translate] the Advertisements to the extent reasonably required for the performance of the Operator's obligations and the exercise of the Operator's rights under the Contract[, together with the right to sub-license these rights [to its hosting, connectivity and telecommunications service providers] to the extent reasonably required for the performance of the Operator's obligations and the exercise of the Operator's rights under the Contract].
4.5 The Advertiser warrants to the Operator that the Advertisements will not infringe the Intellectual Property Rights[ or other legal rights] of any person[, and will not breach [the provisions of any law, statute, regulation or applicable code of conduct],] in [any jurisdiction and under any applicable law].
5. No assignment of Intellectual Property Rights
5.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Operator to the Advertiser, or from the Advertiser to the Operator.
6. Charges
6.1 The Advertiser shall pay the Charges to the Operator in accordance with these Terms and Conditions.
6.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated [inclusive of any applicable value added taxes] OR [exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Advertiser to the Operator].
6.3 The Operator may elect to vary [any element of the Charges] by giving to the Advertiser not less than [30 days'] written notice of the variation[ expiring [on any anniversary of the date of execution of the Contract]][, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds[[ 2]% per annum over] the percentage increase, during the same period, in [the Retail Prices Index (all items) published by the UK Office for National Statistics]].
7. Payments
7.1 The Operator shall issue invoices for the Charges to the Advertiser [in advance of the period to which they relate] OR [from time to time during the Term] OR [on or after the invoicing dates set out in Section 3 of the Order Form].
7.2 The Advertiser must pay the Charges to the Operator within the period of [30 days] following [the issue of an invoice in accordance with this Clause 7] OR [the receipt of an invoice issued in accordance with this Clause 7][, providing that the Charges must in all cases be paid before the commencement of the period to which they relate].
7.3 The Advertiser must pay the Charges by [debit card, credit card, direct debit, bank transfer or cheque] (using such payment details as are notified by the Operator to the Advertiser from time to time).
7.4 If the Advertiser does not pay any amount properly due to the Operator under these Terms and Conditions, the Operator may:
(a) charge the Advertiser interest on the overdue amount at the rate of [8% per annum above the Bank of England base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Advertiser pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
8. Warranties
8.1 The Operator warrants to the Advertiser that:
(a) [the Operator has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions];
(b) [the Operator will comply with all applicable legal and regulatory requirements applying to the exercise of the Operator's rights and the fulfilment of the Operator's obligations under these Terms and Conditions]; and
(c) [the Operator has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions].
[additional list items]
8.2 The Advertiser warrants to the Operator that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
8.3 All of the parties' warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.
9. Indemnity
9.1 The Advertiser shall indemnify and shall keep indemnified the Operator against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Operator and arising directly or indirectly as a result of any breach by the Advertiser of [these Terms and Conditions] OR [[specify provisions]] (a "Advertiser Indemnity Event").
9.2 The Operator must:
(a) upon becoming aware of an actual or potential Advertiser Indemnity Event, notify the Advertiser;
(b) provide to the Advertiser all such assistance as may be reasonably requested by the Advertiser in relation to the Advertiser Indemnity Event;
(c) allow the Advertiser the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Advertiser Indemnity Event; and
(d) not admit liability to any third party in connection with the Advertiser Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Advertiser Indemnity Event without the prior written consent of the Advertiser,
[without prejudice to the Advertiser's obligations under Clause 9.1] OR [and the Advertiser's obligation to indemnify the Operator under Clause 9.1 shall not apply unless the Operator complies with the requirements of this Clause 9.2].
9.3 The indemnity protection set out in this Clause 9 [shall] OR [shall not] be subject to the limitations and exclusions of liability set out in the Contract[, except [exceptions]].
10. Limitations and exclusions of liability
10.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 10.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
10.3 The Operator will not be liable to the Advertiser in respect of any losses arising out of a Force Majeure Event.
10.4 The Operator will not be liable to the Advertiser in respect of any loss of profits or anticipated savings.
10.5 The Operator will not be liable to the Advertiser in respect of any loss of revenue or income.
10.6 The Operator will not be liable to the Advertiser in respect of any loss of use or production.
10.7 The Operator will not be liable to the Advertiser in respect of any loss of business, contracts or opportunities.
10.8 The Operator will not be liable to the Advertiser in respect of any loss or corruption of any data, database or software.
10.9 The Operator will not be liable to the Advertiser in respect of any special, indirect or consequential loss or damage.
10.10 The liability of the Operator to the Advertiser under the Contract in respect of any event or series of related events shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the Advertiser to the Operator under the Contract in the [12 month] period preceding the commencement of the event or events].
10.11 The aggregate liability of the Operator to the Advertiser under the Contract shall not exceed the greater of:
(a) [amount]; and
(b) [the total amount paid and payable by the Advertiser to the Operator under the Contract].
11. Force Majeure Event
11.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
11.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
11.3 A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
12. Termination
12.1 Either party may terminate the Contract by giving to the other party [at least 30 days'] written notice of termination.
12.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
12.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract)]; or
(d) [if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.]
13. Effects of termination
13.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 3.1, 4.2, 4.3, 7.2, 7.4, 9, 10, 13, 15 and 16].
13.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Contract shall not affect the accrued rights of either party.
14. Notices
14.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Clause 14.2 and Section 4 of the Order Form):
(a) [[delivered personally or sent by courier], in which case the notice shall be deemed to be received [upon delivery]]; or
(b) [sent by [recorded signed-for post], in which case the notice shall be deemed to be received [2 Business Days following posting]],
[additional list items]
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
14.2 The Operator's contact details for notices under this Clause 14 are as follows: [contact details].
14.3 The addressee and contact details set out in Clause 14.2 and Section 4 of the Order Form may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 14.
15. General
15.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
15.2 If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
15.3 The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
15.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.
15.5 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.
15.6 Subject to Clause 10.1, these Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of these Terms and Conditions, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
15.7 The Contract shall be governed by and construed in accordance with [English law].
15.8 The courts of [England] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.
16. Interpretation
16.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
16.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
16.3 References in these Terms and Conditions to "calendar months" are to [the 12 named periods (January, February and so on) into which a year is divided].
16.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
