AOL MediaSpace UK

AOL Advertising Standard Terms and Conditions (“Standard Terms”)
1. Display of Promotions and Production Requirements.
1.1 (a) The specific nature and positioning of the Promotions shall be determined by AOL in its reasonable editorial discretion. AOL reserves the right to redesign or modify the AOL Network at its discretion at any time. To the extent that such modifications materially and adversely affect the placement of one or more of the Promotions, AOL shall work with Advertiser to display the affected Promotions in a comparable location and manner. (b) Advertiser shall not resell, sub-lease, exchange or otherwise enable a third party to use any advertising space which is the subject of this Agreement. AOL may, at its sole discretion, permit Advertiser to serve the Promotions through a third-party ad serving system at Advertiser's cost, pursuant to clause 1.2 of these Standard Terms, provided that Advertiser first signs AOL’s then-current standard agreement permitting the use of such a system. (c) Advertiser acknowledges that AOL shall have the right to display a "tool bar" or other frame or navigational mechanism (a "Tool Bar") above or around the Promotions or the Advertiser Site (e.g., a “Shop @” Tool Bar which may include links or access to shopping components designated by AOL). The Tool Bar shall be similar to the Tool Bar made generally available by AOL for display on interactive sites of other similarly situated marketing partners of AOL.
1.2 Impressions Commitment. Any Impressions numbers included on this Insertion Order are estimates save for the Total Guaranteed Impressions number set out in the Carriage Plan, which is a guaranteed figure. In the event AOL delivers the Total Guaranteed Impressions prior to the End Date, AOL may, at its option, discontinue display of the Promotions at such earlier time. In the event there is (or will be in AOL’s reasonable judgement) a shortfall in Total Guaranteed Impressions as of the End Date (a "Shortfall"), AOL will provide Advertiser, as its sole remedy, with “make-good” Impressions through comparable promotions at no extra charge to Advertiser and shall extend the Term to expire on the date that such Shortfall has been made up
1.3 Third Party Ad Serving. Subject to AOL’s right to suspend third party ad serving at any time, the Advertiser may, at its own cost, serve certain Promotions in the manner and to the extent permitted by AOL through such approved third party ad servers and subject to such limitations as may be specified from time to time by AOL. AOL shall have the right to access any reports or data collected by a third party ad server that relate to the Promotions. Any reports delivered by a third party shall not affect the rights or obligations of the Parties under this Agreement, and reports provided by AOL to Advertiser shall be the reports of record between the Parties for the purposes of this Agreement.
1.4 AOL Production Requirements. The Advertiser must provide necessary artwork and other content for the Promotions as specified by AOL and which meets all AOL requirements as specified in the AOL Mediaspace Pages (together, "Copy") to AOL in a timely manner and, save where otherwise specified, not less than 3 business days prior to the Start Date for each Promotion (or where any agreed changes to the Promotions are made after the Start Date, 3 business days prior to the date such changes are due to be included as Promotions hereunder) ("Copy Due Date"). The Advertiser must comply with specific production requirements as set out in AOL’s Specifications (available from the AOL Mediaspace Pages). Failure to comply with any delivery requirements by the Copy Due Date shall result in administrative charges being payable by the Advertiser and a reduction in the Total Guaranteed Impressions, details of which are set out in the AOL Mediaspace Pages.
2. Licence. Advertiser grants to AOL the right to link to the Advertiser Site, and the right to display, reproduce, distribute, transmit and otherwise howsoever use the Promotions and any content on the Advertiser Site on or through the AOL Network and in AOL marketing materials.
3. Advertiser Content. (a) AOL shall have the right to reject any Promotion at any time. (b) Advertiser shall ensure that the Promotions (i) link only to the Advertiser Site or to such other site controlled and operated by the Advertiser as may be approved in advance in writing by AOL; (ii) market, promote, offer or sell only the Products; and (iii) comply with AOL’s ”Advertising and Transactions Guidelines” from time to time, available from the AOL Mediaspace Pages. (c) Advertiser represents and warrants that (i) it possesses all consents, licences and other rights necessary to market, promote, offer or sell the Products and any other products or services available through the Advertiser Site and to grant AOL the licences in clause 2 of these Standard Terms, and (ii) neither the Products, the Promotions, the Advertiser Site nor any data processing in relation thereto shall breach any applicable law, regulation, code of conduct or any third-party
right (including without limitation by being obscene, defamatory or infringing any copyright, trade mark or other proprietary right). Advertiser shall ensure that any Promotions relating to the financial products or services sector comply with the Financial Services and Markets Act 2000 (as amended). (d) Advertiser shall ensure that the Promotions and the Advertiser Site shall not (i) disparage AOL or its Affiliates or (ii) state or imply that AOL or its Affiliates endorse the Products.
4. Customer Service and Shopping. (a) Advertiser shall be solely responsible for all customer service issues, including without limitation order processing, billing, fulfilment, returns, charge backs and any other customer support issues associated with the Advertiser Site and/or the Products and any other products or services available through the Advertiser Site. (b) If carriage on the Shopping
Channel is included in the Carriage Plan, AOL’s Shopping Terms available from the AOL Mediaspace Pages shall also apply to this Agreement.
5. Navigation. Advertiser shall ensure that navigation back to the AOL Services from the Advertiser Site, whether through a particular pointer or link, the “back” button on an Internet browser, the closing of an active window or any other return mechanism, shall not be interrupted by Advertiser through the use of any intermediate screen or other device not specifically requested by the user, including without limitation through use of any html pop-up window, or disabling of the “back” button. Advertiser shall ensure that such traffic shall be pointed directly back to the page of the AOL Service designated by AOL.
6. Payment. (a) Advertiser shall pay AOL (without any right to withhold or set-off), within 30 days of the date of invoice unless another due date is stipulated in the Insertion Order (“Payment Due Date”), (i) all amounts set out in the Insertion Order; and (ii) all charges incurred by Advertiser under clause 12.7(a) of these Standard Terms. (b) AOL shall not refund amounts paid by Advertiser except to the extent expressly permitted by clause 11 of these Standard Terms. (c) AOL shall be entitled to charge interest on all sums which remain outstanding after the date on which they fall due at a rate of 2% above the base lending rate of National Westminster Bank plc or its successors, as varied from time to time, such interest to accrue on a daily basis from the Payment Due Date until the date of actual payment. (d) All amounts specified in this Agreement are net of any value added, income, withholding, sales, use, excise, import, export or similar taxes or duties payable in any applicable jurisdiction (“Taxes”) and Advertiser shall pay all Taxes thereon at the rate and in the manner prescribed by law. Advertiser shall collect and pay (and indemnify and hold AOL harmless from) any Taxes arising from or related to the Promotions and/or the Advertiser Site, including any penalties and interest, as well as any costs associated with collection or withholding thereof, including AOL’s legal fees.
7. Limitation of Liability
(a) SAVE IN RELATION TO CLAUSE 8(b) OF THESE STANDARD TERMS BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS, OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCURRED AS A RESULT OF OR IN CONNECTION WITH THIS AGREEMENT (WHETHER ARISING OUT OF BREACH OF CONTRACT, NEGLIGENCE OR HOWSOEVER). NOTHING THIS
AOL UK Strictly Private and Confidential Page 2 130905 AGREEMENT SHALL EXCLUDE OR LIMIT ANY PARTY'S LIABILITY IN RESPECT OF DEATH OR PERSONAL INJURY ARISING FROM THAT PARTY'S NEGLIGENCE OR LIABILITY FOR FRAUDULENT MISREPRESENTATION. (b) IF AOL FAILS TO DISPLAY ANY PROMOTION IN ACCORDANCE WITH THIS AGREEMENT, AOL’S MAXIMUM LIABILITY SHALL BE LIMITED (AT AOL’S OPTION) TO (i) THE DISPLAY OF COMPARABLE PROMOTIONS AT AOL’S REASONABLE DISCRETION OR (ii) A REFUND TO ADVERTISER OF THE PROPORTION OF PAYMENTS MADE BY ADVERTISER WHICH RELATE TO SUCH
PROMOTIONS, OR IF SUCH PAYMENTS HAVE NOT BEEN MADE, AOL SHALL WAIVE ADVERTISER’S OBLIGATION TO MAKE PAYMENTS IN RESPECT OF SUCH PROMOTIONS OR (iii) A COMBINATION OF (i) AND (i).
8. Warranties and Indemnities
(a) AOL SHALL DISPLAY THE PROMOTIONS WITH REASONABLE SKILL AND CARE BUT EXCLUDES ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) Advertiser hereby agrees to indemnify AOL and its Affiliates against all losses, damages, costs, claims and expenses suffered or incurred: (i) arising out of any breach of clause 3(c), or 11 of these Standard Terms; and (ii) relating to any contaminated file, virus, worm or trojan horse originating from the Promotions or the Advertiser Site, (and any matter within the scope of this indemnity is referred to as a “Claim”). AOL shall notify Advertiser of any Claim and take reasonable account of Advertiser’s directions with regard to that Claim. Clause 7(a) of these Standard Terms shall not apply to this clause 8(b).
9. Targeting Users. (a) Unless expressly permitted by AOL in writing, Advertiser shall not display or send any User Communication where such User Communication is sent or displayed to recipients due wholly or partly to the fact that such recipients are Users. (b) No User Communication shall contain any reference to AOL, its Affiliates or any of their trade marks unless such reference is editorial or is expressly permitted by AOL.
10. Confidentiality and Press Releases.
10.1 Confidentiality. The parties shall take reasonable steps during the term of this Agreement, and for a period of two years thereafter, to prevent disclosure of confidential information of the other party (including, without limitation, any usage data supplied to Advertiser by AOL) other than to its employees or agents who must have access to such confidential information to perform such party's obligations hereunder and who have each agreed to comply with this provision. Notwithstanding the foregoing, either party may disclose confidential information without the consent of the other party to the extent such disclosure is required by law. 10.2 Press Releases. The Advertiser shall not issue any press release or other public statement concerning the existence, subject matter, terms or performance of this Agreement without AOL's express prior written approval. The foregoing provision shall survive the Agreement by two years. Breach of such provision shall constitute a material breach of this Agreement due to the potential significant and adverse effects of an unapproved statement, and shall entitle AOL to immediately terminate the Agreement upon written notice to the Advertiser.
11. Representations and Warranties. (a) Notwithstanding that Advertiser may be acting through an advertising agency or media buyer or other representative whatsoever, Advertiser represents and warrants that it contracts with AOL as principal. (b) Each party represents and warrants that: (i) it has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it hereunder; and (ii) the execution of the Agreement by it, and the performance of its obligations and duties hereunder, do not and will not breach any agreement to which it is a party or by which it is otherwise bound.
12. Termination, Suspension and Delays. In addition to any rights under the terms of the Insertion Order, the following shall apply:
12.1 Termination for Certain Breaches. AOL may terminate this Agreement immediately and without notice if Advertiser fails to pay any sum by any Payment Due Date, or breaches clause 3 or 9 of these Standard Terms.
12.2 Material Breach and Insolvency. Either party may terminate this Agreement at any time on written notice to the other party in the event of (a) material breach of this Agreement by the other party which is either irremediable, or in the case of a breach capable of remedy, remains unremedied within 30 days of written notice of the breach; or (b) the other party passing a resolution, or a court of competent jurisdiction making an order, that the other party be wound up, a receiver, administrative receiver, administrator or manager is appointed over any part of the business or assets of the other party; the other party is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or any similar event occurs in any other jurisdiction in respect of the other party.
12.3 Additional Rights of Termination and Suspension. AOL is entitled to (a) terminate this Agreement on 30 days’ notice to Advertiser without cause, whereupon Advertiser shall be responsible for payment of the pro-rata portion of payments due from the commencement of the Insertion Order to the date of termination; (b) immediately suspend any Promotions, where the display of such Promotions is (i) likely, in AOL’s reasonable judgement to adversely affect any operation of the AOL Network, or (ii) expose AOL or its Affiliates to liability or other adverse consequences.
12.4 No Right to Cancel. This Agreement may not be terminated by Advertiser, save as expressly provided for in clause 12.2.
12.5 Effect of Termination. Save where otherwise expressly stated, or where termination is a result of AOL’s uncured material breach in accordance with clause 12.2, Advertiser shall remain liable for all sums due and payable during the full Term of the Agreement (which shall become payable within 14 days of the date of termination) and, Advertiser shall lose the entitlement to any remaining Impressions or other performance due by AOL under the Agreement.
12.6 Effect of Suspension. In the event of any delay, suspension or removal of Promotions by AOL as a result of any act, omission or breach of any term by Advertiser (including without limitation pursuant to clause 5 of the Insertion Order and clause 12.3 (b) of these Standard Terms), Advertiser shall remain liable for all sums payable under the Agreement and the Total Guaranteed Impressions shall be reduced for the applicable period of delay, suspension or removal, calculated on a pro-rated basis.
12.7 Delays. (a) Failure by the Advertiser to deliver the Copy to AOL by the Copy Due Date pursuant to clause 6 of the Insertion Order shall result in administrative charges being applied and/or a reduction in the Total Guaranteed Impressions as set out in the AOL Mediaspace Pages. (b) Nothing in clause 12.7 (a) of these Standard Terms shall waive any right or remedy available to AOL this
Agreement or otherwise.
13. Survival. Clauses 9, 10 and 12.5 of these Standard Terms shall survive the expiry or termination of this Agreement. Any termination of this Agreement shall be without prejudice to any rights and payment obligations accrued in favour of either party prior to or upon the date of such termination.
14. Miscellaneous. (a) Neither party shall be liable for, or be considered in breach of this Agreement on account of, any delay or failure to perform as required by this Agreement (excluding payment obligations) as a result of any causes or conditions which are beyond such party's reasonable control, including but not limited to such as acts of God, acts of government, strikes or war, and which such party is unable to overcome by the exercise of reasonable diligence. (b) Advertiser shall not assign this Agreement or any right, interest or obligation under it without AOL's prior written consent. AOL may assign this Agreement or any of its rights, interests or obligations under it to any Affiliate without restriction or to any successor of AOL by way of merger, consolidation or the acquisition of all or substantially all of the business and assets of AOL relating to this Agreement. (c) AOL and Advertiser are independent contractors and not the agent, representative or partner of the other party. (d) Failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of such party's right to assert or rely upon any such provision or right in that or any other instance. (e) This Agreement comprises the entire agreement between Advertiser and AOL, and supersedes all prior agreements, statements, and representations whether negligent or otherwise (other than fraudulent misrepresentations) by either party in relation to its subject matter. (f) No change, amendment or modification to any provision of this Agreement shall be valid unless made in writing and signed by an authorised representative of each party. (g) Any notice or other
communication required to be given or made under this Agreement shall be in writing and addressed to the sending party’s principal contact at the receiving party at the address for the receiving party in the Insertion Order (or such other contact and address that either AOL UK Strictly Private and Confidential Page 3 130905 may notify to the other in compliance with this clause 14 (g). Notices and communications shall be considered given or made: where sent by hand or courier, upon receipt; where sent by first class pre-paid post, on the second working day following the date of posting; or where given by fax (subject to retention by the sending party of confirmation of successful transmission), four hours after the time of successful transmission. (h) Solely to the extent there is any inconsistency between the Insertion Order and the Standard Terms, the Standard Terms shall prevail. (i) This Agreement shall be interpreted, construed and enforced in all respects in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts. (j) If any provision of this Agreement is or becomes invalid or illegal in any respect, that provision shall be deemed severed from this Agreement but the validity, legality and enforceability of the remaining provisions shall not be affected. (k) The clause headings in this Agreement are included for convenience only and shall not affect its construction. (l) A person (natural or legal) who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but that does not affect any right or remedy of a third party which exists or is available apart from that Act.
15. Definitions.
"Advertiser" means the advertiser named in the applicable Insertion Order.
"Advertiser's Site" means such advertiser sites as listed in the applicable Insertion Order.
"Agency" means any advertising agency, media buyer or any other representative acting named on the applicable Insertion Order acting on behalf of the named Advertiser.
“AOL Mediaspace Pages” means the pages available at http://www.aol.co.uk/mediaspace/ or such other URL as AOL may notify to Advertiser from time to time.
“Affiliate” means a member of AOL’s, AOL Europe Sarl.’s or America Online, Inc.’s group, and any entity that controls, is controlled by or is under common control with any of the foregoing entities.
“AOL Network” means the AOL Services, along with any other product or service owned, operated, marketed, distributed or authorised to be distributed by or through AOL or AOL’s Affiliates worldwide.
“AOL Services” means the standard version of the AOL services identified in the Insertion Order and/or Carriage Plan as a location where Promotions shall be displayed, specifically excluding any other version, product, site or service which is not standard by virtue of its branding, distribution, functionality, customisation, content or services.
“Carriage Plan” means the carriage plan set out in, or appended to, the applicable Insertion Order.
"Copy" has the meaning set out in clause 1.4 of these Standard Terms
"Copy Due Date" has the meaning set out in clause 1.4 of these Standard Terms
"Fees" has the meaning set out in clause 3 of the applicable Insertion Order.
“Impression” means each unique exposure of a user to the applicable Promotion on the AOL Network, as such exposure may be reasonably determined and measured by AOL in accordance with its standard methodologies and protocols (and, in particular, excluding any exposure generated by automatic refresh). Each exposure to a Promotion on a single page or screen where multiple Promotions are displayed shall count as a separate Impressions when such page or screen is accessed.
“Keyword” means the AOL Keyword™ online search terms made available on the applicable AOL Service, combining AOL’s Keyword™ online search modifier with a term related to Advertiser and (b) the Go Word online search terms made available on the CompuServe Service, combining CompuServe’s Go Word online search modifier with a term related to Advertiser.
"Payment Schedule" means the payment schedule set out in the applicable Insertion Order.
"Products" means the products or services to be marketed, promoted, offered or sold by in the Promotions as set out in the applicable Insertion Order.
“Promotions” means all links, advertisements and other promotional content and services to be displayed for Advertiser on the AOL Network in accordance with this Agreement and set out in the Carriage Plan including without limitation any trade marks and logos therein.
“Search Term” means a word or phrase which, when entered in a search term field in an AOL search engine, may trigger the display of a Promotion on the AOL Service on a rotational basis.
“Shop@” or “Shopping Channel” means the pages on the AOL Services offering products and services for sale, which are accessible from a “shopping” button and branded “Shop@”, including without limitation any replacements for or successors to those pages.
“Start Date” and “End Date” mean the first and last dates on which the Promotions are to be displayed as specified in the Insertion Order, respectively. “Term” means the period commencing on the earliest Start Date and expiring on the latest End Date.
"Total Guaranteed Impressions" means the total number of Impressions guaranteed by AOL as specified in the applicable Carriage Plan.
“User” means any user of the AOL Network.
“User Communication” means any content appearing on the Advertiser Site and any e-mail or other communications directed to Users.
“User Information” means all information that identifies or relates to any User or AOL account.