We will purchase the Media Space as described in the Insertion Order on the terms and subject to the conditions set out below. Any defined terms used in these Terms and Conditions shall have the meaning as set out in the Insertion Order.
TERMS & CONDITIONS
1.1 The following terms shall have the following meanings:
(a) “Advertiser” means the party who wishes to advertise on the Publisher’s sites and has engaged Mobkoi either directly or indirectly to purchase the Media Space from the Publisher;
(b) “Advertising” means the copy, text, images, materials, images, sound recording, TV commercial, film, audio work, digital files or other materials which is supplied by Mobkoi, on behalf of the Advertiser, to the Publisher;
(c) “Agreement” means these Terms and Conditions and the Insertion Order;
(d) “Charges” means such sums as are set out in the Insertion Order or as otherwise agreed in writing between the Publisher and Mobkoi;
(e) “Data Privacy Laws” means the following as amended, extended or re-enacted from time to time:
(i) EC Directive 2002/58/EC on Privacy and Electronic Communications;
(ii) EC Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
(iii) all local laws (including UK Data Protection Act 2018) or regulations implementing or supplementing the EU legislation mentioned in (i)-(ii) above;
(iv) all codes of practice and guidance issued by national regulators relating to the laws, regulations and EU legislation mentioned in (i)–(iii) above.
(f) “Effective Date” shall have the meaning given to it in clause 2.3;
(g) “Insertion Order” means Mobkoi’s insertion order for the purchase of Media Space, detailing the Services to be provided by the Publisher, remuneration and other commercial terms agreed between the parties;
(h) “Intellectual Property Rights” means patents, rights to inventions, copyright and elated rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered.
(i) “Media Placement” means the placement of Advertising on Media Space on behalf of the Advertiser;
(j) “Media Space” means advertising space on any mobile and digital media;
(k) “Personal Data” shall have the same meaning as defined in Data Privacy Laws;
(l) “Publisher” means the publisher set out in the Insertion Order;
(m) “Services” means the services to be provided by the Publisher to Mobkoi, to enable Mobkoi to purchase Media Space on behalf of the Advertiser, as more specifically set out in the Insertion Order;
(n) “Term” means the period from the Effective Date until the date of completion of the Services; and
(o) “Third Party Ad Server” means a third party that will serve and/or track Advertisements.
2.1 This Agreement sets out the terms on which the Publisher will provide the Services to Mobkoi during the Term.
2.2 The Insertion Order sets out details of the Services to be provided to Mobkoi, the Charges payable by Mobkoi, and the timing for the provision of the Services.
2.3 The Insertion Order shall be deemed accepted on the earlier of:
(a) the Publisher giving written acceptance of the Insertion Order; or
(b) any act by the Publisher consistent with fulfilling the Insertion Order,
such date shall constitute the “Effective Date”.
2.4 Mobkoi acts as the Advertiser’s principal at law for the purchase of Media Space from the Publisher, and not as the Advertiser’s agent save in any part of the territory in respect of which it is customary or required by applicable law that Mobkoi acts as the Advertiser’s agent for its purchase of media. No relationship of partnership or employment between the parties shall be construed.
2.5 This Agreement represents the entire agreement between the parties in relation to the Services to the exclusion of any other terms that the Publisher seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing in particular. This Agreement supersedes any and all previous agreements between the parties relating to its subject matter. Any variation to this Agreement shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Publisher and Mobkoi.
2.6 In the event of any conflict between the terms set out in the Insertion Order and these Terms and Conditions, these Terms shall prevail.
2.7 The Publisher acknowledges that Mobkoi’s clients, the Advertisers, are luxury brands and agrees that the obligations in this Agreement shall be construed and implemented in a manner that is consistent in maintaining the reputation and goodwill of such brands.
3. TERM AND TERMINATION
3.1 This Agreement shall apply from the Effective Date and continue in full force and effect for the duration of the Term, unless terminated earlier in accordance with the terms of this Agreement. Termination of this Agreement shall also serve to terminate any Insertion Orders, unless otherwise specified by Mobkoi.
3.2 Unless otherwise agreed or unless specified to the contrary in the Insertion Order, Mobkoi may without penalty terminate this Agreement, or any Insertion Order or part thereof, on 24 hours’ notice in writing to the Publisher.
3.3 Without prejudice to any pre-existing liability of either party to the other and without prejudice for the right of Mobkoi to terminate as permitted in clause 3.2, either party may by written notice terminate this Agreement forthwith in any of the following events:
(a) if the other commits a material breach of any of the terms of this Agreement and has failed to make good any such breach within fourteen (14) days of being required to do so by written notice identifying the breach and the steps which must be taken to remedy the same; or
(b) if the other enters into or proposes a voluntary arrangement or composition with creditors, or reconstruction of its debts, or if its directors make a declaration of solvency for the purpose of a members’ voluntary winding up, or if notice is given of a creditors’ meeting in connection with a creditors’ winding up, or if a special resolution is passed that the it be wound up by the court, or if an administrative or other receiver is appointed, or if the court makes an administrative order or orders that it be wound up by the court, or if the other ceases to carry on its business or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
3.4 On termination each party will return to the other any property of the other in its possession or control. Until they have been returned or delivered, the Publisher shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement.
3.5 Any clause expressed or implied to survive the termination or expiry of this Agreement shall do so.
4. MOBKOI’S OBLIGATIONS
4.1 Mobkoi shall, at its own expense, supply Publisher with the Advertising and all necessary documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable the Publisher to provide the Services.
5. PUBLISHER OBLIGATIONS
5.1 The Publisher shall:
(a) act in good faith and in a transparent manner in its dealings with Mobkoi;
(b) be responsible for ensuring the availability, functionality and content of the Media Space and its website and / or app in which the Media Space is situated at all times;
(c) not modify or remove any ad-code provided by Mobkoi or delete or in any way modify the tracking tags that are included in the ad-code;
(d) only implement the ad-code in the Advertising and on such Media Space that has been pre-approved by Mobkoi;
(e) ensure that the Media Placement is not situated on empty websites with limited content;
(f) not do anything, or omit to do anything which in the reasonable opinion of Mobkoi may bring Mobkoi and / or the Advertiser into widespread disrepute;
(g) not engage, or permit, in respect of the Media Placements, any automated generation of views, clicks, leads or sales by means of technical appliances and similar methods.
5.2 No remuneration will be paid to Publishers in respect of fraudulent or invalid impressions or clicks. If after payment has been made to the Publisher it is discovered that any element of the payment related to prohibited or fraudulent activities, Mobkoi shall deduct the remuneration paid in respect of any such prohibited or fraudulent activities from future payments or to reclaim any sums unduly paid. Any such deduction or repayment shall be without prejudice to any rights or remedies which Mobkoi may have against the Publisher in respect of such prohibited or fraudulent activities.
6.1 The Publisher will, within two (2) business days of the start date on the Insertion Order, provide confirmation to Mobkoi, either electronically or in writing, stating whether the components of the Insertion Order have begun delivery.
6.2 The Publisher will make reporting available at least on a weekly basis, either electronically or in writing, unless otherwise specified on the Insertion Order. Reports will be broken out by day and summarised by creative execution, content area, impressions, clicks, spend/cost, other variables as may be defined on the Insertion Order (e.g., keywords) and such other information as may be reasonably required by Mobkoi to demonstrate Publisher’s performance of its obligations under this Agreement.
7.1 The Charges for the Services shall be set out in the Insertion Order, and shall be the full and exclusive remuneration of the Publisher in respect of the performance of the Services. Unless otherwise agreed in writing by Mobkoi, the Charges shall include every cost and expense of the Publisher directly or indirectly incurred in connection with the performance of the Services.
7.2 The Publisher shall invoice Mobkoi on completion of the Services, and each invoice shall include such supporting information as is required by Mobkoi to verify the accuracy of the invoice, including the relevant Insertion Order number. In the event that the Publisher fails to invoice Mobkoi within 3 months of completion of the Services, the Publisher waives its right to invoice for such Services.
7.3 Subject to receipt of payment by Mobkoi from the Advertiser, Mobkoi shall pay undisputed invoices within 60 days of the date of receipt of the properly rendered invoice, into a bank account nominated in writing by the Publisher.
7.4 All amounts payable by Mobkoi under this Agreement are exclusive of any applicable value added tax (VAT).
7.5 Mobkoi may, without limiting its other rights or remedies, set off any amount owed to it by the Publisher against any amount payable by Mobkoi to the Publisher.
7.6 The Publisher acknowledges that all Media Space will be bought and billed to Mobkoi in the same currency.
7.7 In relation to any Insertion Orders, the Publisher agrees to provide Mobkoi with a discount (the “Discount”) of 15% on the rate card value of all media-related invoices.
7.8 Pursuant to clause 7.7, the Discount is to be applied to the actual invoice amount, after the Media Space has already been delivered for the time period referenced on the invoice. Furthermore the Discount must comply with the following:
(a) the Publisher is prohibited from using the Discount as leverage in negotiations with Mobkoi regarding media rates;
(b) Media rates from the Publisher are not to be inflated by the discount percentage; and
(c) The amount of Media Space delivered by the Publisher is not to be reduced by the discount percentage.
8.1 The Publisher warrants and undertakes that in respect of the website or app in which the Media Space appears that it, and the website and / or app shall:
(a) be presented, and the Advertising shall be displayed, in a manner suitable for luxury brands;
(b) comply with all relevant statutes, regulations and other legal requirements and all relevant codes of practice, guidelines applicable to it or the provision or use of the Services;
(c) not display any defamatory, libellous immoral, illegal, defamatory, misleading, harmful or offensive content or any content which is otherwise in violation of any laws or regulations;
(d) not promote, portray or endorse violence, racism, or discrimination against any sector of society;
(e) not display any pornographic, indecent or obscene content;
(f) not infringe the Intellectual Property Rights and/or any other rights of third parties; and
(g) not include anything which may bring Mobkoi and / or the Advertiser into widespread disrepute.
8.2 In the event of any breach of any aspect of clause 8.1 by the Publisher, Mobkoi may, in its absolute discretion and without prejudice to its other rights and remedies, terminate this Agreement without notice and require immediate removal of the Advertising.
9.1 The Publisher will monitor delivery of the Advertisements, and will notify Mobkoi either electronically or in writing as soon as possible (and no later than 14 days before the applicable Insertion Order end date unless the length of the campaign is less than 14 days) if the Publisher believes that an under-delivery is likely. In the case of a probable or actual under-delivery, clause 9.2 shall apply.
9.2 If the actual deliverables for any campaign fall below guaranteed levels, as set forth on the Insertion Order, and/or if there is an omission of any Advertisement, the Publisher shall notify Mobkoi and either: (i) issue a credit to Mobkoi equal to the value of the under-delivered portion of the Insertion Order for which it was charged; or (ii) not bill Mobkoi for such under-delivered portion.
9.3 Alternatively at Mobkoi’s option, the Publisher acting in good faith shall offer a makegood flight, either on the Insertion Order or at the time of the shortfall.
10.1 Nothing in this Agreement shall exclude liability for fraud or death or personal injury caused by negligence or any other type of liability to the extent it may not be excluded by law. Subject to this:
(a) Mobkoi’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will not in any circumstances exceed the Charges paid for under this Agreement; and
(b) Mobkoi will not be liable under this Agreement for any loss of actual or anticipated income or profits, loss of contracts, or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
10.2 Mobkoi shall not be liable for any delay in or omission of publication or transmission of any error in any Advertisement or Media Placement in the absence of default and neglect on Mobkoi’s part.
10.3 Publisher acknowledges and agrees that Mobkoi shall not be in any way responsible for the preparation, content, production or supply of Advertising, except to the extent that Mobkoi has made any changes to the Advertising provided by the Advertiser to Mobkoi.
10.4 Mobkoi shall, wherever commercially practicable, endeavour to secure reasonable warranties from the Advertiser in respect of the Advertising being compliant with applicable law and not infringing the Intellectual Property Rights of any third party.
11.1 Publisher shall keep Mobkoi indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Mobkoi as a result of or in connection with: (a) any claim, or threatened claim, made against Mobkoi by a third party arising out of, or in connection with, the supply of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Agreement by the Publisher, its employees, agents or subcontractors; and (b) any claim, or threatened claim, brought against Mobkoi for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services.
11.2 For the duration of the Agreement and for a period of 6 years thereafter, the Publisher shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Agreement and shall, on Mobkoi’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
11.3 This clause 11 shall survive termination of the Agreement.
12.1 Unless specifically agreed in the Insertion Order, under no circumstances will Mobkoi be obligated or required to purchase any minimum volume of Media Space or any related Services during the Term, or any portion thereof.
13. MEDIA PLACEMENT
13.1 The Publisher acknowledges that the Advertisers do not want their Advertising placed adjacent or in proximity to content that promotes pornography, violence, or the use of firearms, contains obscene language, is unlawful or socially irresponsible or falls within another category as set out in the Insertion Order (“Editorial Guidelines”).
13.2 The Publisher will use best endeavours to comply with the Editorial Guidelines with respect to Advertising that appears in the Media Space. Where the Publisher does not have editorial control over the Media Space, the Publisher and Mobkoi agree that the Publisher’s sole responsibilities with respect to compliance with the Editorial Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with the Editorial Guidelines, to enforce the same and to provide the remedy specified in clause 13.3 to Mobkoi with respect to violations of Editorial Guidelines on such properties.
13.3 Should Mobkoi notify the Publisher, or if the Publisher becomes aware, that the Advertising has appeared in violation of the Editorial Guidelines, without prejudice to Mobkoi’s other rights and remedies, then the Publisher shall immediately remove the Advertisement and, at Mobkoi’s election, either: (i) issue a credit to Mobkoi equal to the value of such Advertisement; or (ii) not bill Mobkoi for such Advertisement.
14.1 It is recognised that during the course of business certain confidential information concerning marketing, sales, new products, media buying rates, media plans, and the like, will be communicated to Mobkoi by the Publisher and vice versa. Both parties shall instruct all its employees and any officers, agents and consultants to whom confidential information of the other party is made available that they have an obligation to ensure confidentiality of such information at all times. It is agreed that this obligation of confidentiality shall continue after termination of this Agreement.
14.2 “Confidential Information” means any document, material, idea, data or other commercially sensitive information received by either party from or with the authority of the other which relates to a party’s research and development, trade secrets or business affairs or which is marked as confidential.
14.3 Confidential Information does not include any document, material, data or other information which a party can show (a) was known to such party, under no obligation of confidence, at the time of disclosure by the other party, or (b) became publicly known through no wrongful act by such party, or (c) was lawfully obtained by such party from a third party who in making such disclosure breached no obligation of confidence to the other, or (d) was independently developed by such party, or (e) was disclosed by the other party to a third party under no obligation of confidence. The obligations in clause 14.1 shall not apply to any information which is required to be disclosed by law.
14.4 For the avoidance of doubt, all Mobkoi materials and data collated from Mobkoi shall constitute Confidential Information and may only be used for the provision of the Services.
15.1 Both parties:
(a) shall comply with the Bribery Act 2010 and any guidance issued by any governmental department relating to such legislation (“Bribery Act”);
(b) shall not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under the Bribery Act if such activity, practice or conduct had been carried out in the UK;
(c) shall maintain in place throughout the Term (and enforce where appropriate) its own policies and procedures to ensure compliance with the Bribery Act;
(d) shall promptly report to the other any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement; and
(e) shall ensure that it imposes written terms on any sub-contractor connected with the matters arising under this Agreement which are at least equivalent to those imposed on the parties in this clause.
16. DATA PROTECTION
16.1 Each party shall comply with its respective obligations under applicable Data Privacy Laws.
17. THIRD PARTY AD SERVING AND TRACKING
17.1 The Publisher will track delivery through its ad server and Mobkoi will track delivery through its Third Party Ad Server. The measurement used for invoicing advertising fees under an Insertion Order will be the Third Party Ad Server (“Controlling Measurement”).
17.2 If the difference between the Controlling Measurement and the other measurement exceeds 5% over the invoice period and the Controlling Measurement is lower, the parties will facilitate reconciliation between the Publisher and the Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Mobkoi reserves the right to either:
(a) consider the discrepancy an under-delivery of the deliverables as described in clause 9.2 whereupon the parties will act in accordance with that clause; or
(b) pay the invoice based on the Controlling Measurement-reported data (including the 5% adjustment to delivery).
17.3 The Publisher will use all reasonable endeavours to publish, and Mobkoi will use reasonable endeavours to cause the Third Party Ad Server to publish, a disclosure in the form reasonably specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
17.4 Where Mobkoi is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Advertisement, Mobkoi may suspend delivery under the Insertion Order for a period of up to 72 hours. On written notification by Mobkoi of a non-functioning Third Party Ad Server, the Publisher will have 24 hours to suspend delivery. Following that period, Mobkoi will not be held liable for payment for any Advertisement that runs within the immediately following 72-hour period until the Publisher is notified that the Third Party Ad Server is able to serve Advertisements. After the 72-hour period passes and if Mobkoi has not provided written notification that the Publisher can resume delivery under the Insertion Order, Mobkoi will pay for the Advertisements that would have run, or are run, after the 72-hour period but for the suspension, and can elect the Publisher to serve Advertisements until the Third Party Ad Server is able to serve Advertisements. If Mobkoi does not so elect for the Publisher to serve the Advertisements until Third Party Ad Server is able to serve Advertisements, the Publisher may use the inventory that would have been otherwise used for the Publisher’s own advertisements or advertisements provided by a third party.
17.5 Upon notification that the Third Party Ad Server is functioning, the Publisher will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result, without prejudice to Mobkoi’s remedies, in the Publisher owing a makegood to Mobkoi.
18. FORCE MAJEURE
18.1 Neither party shall be liable for any delay in performing or failure to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”).
18.2 Force Majeure Events shall include but not be limited to the following events affecting either party:
(a) strikes, lock-outs or other industrial action (other than strikes, lock-outs or other industrial action of the party seeking to rely on the Force Majeure Event);
(b) civil commotion, riot, invasion, war (whether declared or not), terrorism, or threat of or preparation for war or terrorist attack;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and/or
(e) compliance with any law or governmental order, rule, regulation or direction.
18.3 Failure by either party to maintain and implement business continuity and disaster recovery processes and procedures in accordance with good industry practice shall not constitute a Force Majeure Event.
19.1 This Agreement states the full extent of Mobkoi’s obligations and liabilities in respect of the performance of the Services and the parties agree that any condition, warranty, representation or other term concerning the performance of the Service which might otherwise be implied into or incorporated in this Agreement, whether by statue, common law or otherwise, is excluded to the maximum extent permitted by law.
19.2 If at any time any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, such provision shall be deemed to be severed from this Agreement but the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected or impaired as a result.
19.3 In the event that Mobkoi wishes to make a material change to the Insertion Order, any such change shall be subject to the agreement of both parties in writing.
19.4 The Publisher shall not assign, transfer, subcontract or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of Mobkoi (such consent not to be unreasonably withheld or delayed).
19.5 Save for the Advertiser who is a beneficiary of the Services, a person who is not a party to the Contract (a “third party”) shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to enforce any of the terms of this Agreement. Any right or remedy of a third party which exists or is available apart from the Act is not affected.
19.6 This Agreement shall be governed by and construed in accordance with the law of England and Wales.
19.7 Each party irrevocably agrees to submit to the exclusive jurisdiction of the Courts of England and Wales over any claim or matter arising under or in connection with this Agreement.