PLEASE READ THE FOLLOWING VERY CAREFULLY. BY SUBMITTING AN INSERTION ORDER TO UNRULY, YOU, AS “ADVERTISER” OR “AGENCY”, AS APPLICABLE, REPRESENT, WARRANT AND COVENANT THAT YOU ARE ABLE TO AGREE AND ENTER INTO AND PERFORM THE OBLIGATIONS SET FORTH IN THIS AGREEMENT AS AND PERTAINING TO “ADVERTISER” OR “AGENCY” AND YOU ARE AND WILL BE BOUND BY THIS AGREEMENT. IF YOU WORK FOR OR REPRESENT AN ADVERTISER OR OTHER ENTITY THAT IS THE “ADVERTISER” FOR THE PURPOSES OF THIS AGREEMENT, YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO AND PERFORM THIS AGREEMENT ON BEHALF OF SUCH ADVERTISER OR ENTITY.
This Agreement is entered into by and between Unruly Group Limited, a company incorporated in England and Wales with registered number 05411297 and whose registered office is The White Chapel Building, 15 Whitechapel High Street, London E1 8QS, United Kingdom or any of Unruly’s affiliates, including without limitation Unruly Media Inc., Unruly Media AB, Unruly Media AS, Unruly Media GmbH, Unruly Media KK, Unruly Media Pte Ltd, Unruly Media Pty Ltd, Unmedia Video Distribution Sdn Bhd and any other subsidiary of Unruly Holdings Limited now existing or hereafter formed (individually and collectively, “Unruly”) and the company named as advertiser in the Insertion Order (“Advertiser”) and/or the agency listed in the Insertion Order for such Advertiser (“Agency”), if any.
These Advertiser Terms and Conditions shall apply to all Insertion Orders and this Agreement shall continue in effect for as long as there remains an active Insertion Order between Unruly and Advertiser and/or Agency.
By submitting an Insertion Order to Unruly, Advertiser engages Unruly to place and deliver advertising (“Ads”) across Unruly’s network of publishers (the “Unruly Publisher Network”). Advertiser may also engage Unruly to provide creative editing and interactive video services (“Edit Suite”) in which case Section 16 (Edit Suite) shall apply.
2. Delivery of Advertising Materials.
Advertiser will, at its sole cost and expense, create and deliver all video, rich media creative and/or other advertising materials required for any Ad (“Advertising Materials”) according to the technical specifications and within the timeframe provided by Unruly. Advertiser may delegate such obligations to any Agency listed on the Insertion Order, but Advertiser shall remain responsible for the Advertising Materials delivered.
If the delivered Advertising Materials do not conform to Unruly’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, Unruly, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after: (i) the non-conforming Advertising Materials are corrected; or (ii) the late-arriving Advertising Materials are received. In any event, Unruly may begin to charge Advertiser on the Insertion Order start date on a pro-rata basis based on the full Insertion Order for each full day that the Advertising Materials are not received.
3. Use of Information.
For the term of the relevant Insertion Order, Advertiser hereby grants to Unruly and its publishers and other partners in the Unruly Publisher Network a non-exclusive, royalty-free, worldwide license to (a) use, perform and display any Ad (and associated Advertising Materials) delivered hereunder in accordance with the terms of the Insertion Order, and (b) use all associated Advertiser intellectual property in connection therewith. Without limiting the foregoing, Advertiser and Agency acknowledge that Unruly may distribute and place Ads across a blend of online media to deliver mass reach, response and niche contextual placements including but not limited to branded websites and blogs, gaming, widgets and similar applications on social networking platforms such as Facebook, mobile apps, devices and similar environments, rewarded entertainment and e-retail sites, and video and rich media search engines, and the rights granted hereunder shall cover and permit any and all such channels and uses (which shall be deemed to be part of the Unruly Publisher Network). Further, Advertiser and Agency acknowledge that Unruly may use, perform, serve and display Ads by a video or rich media content player which is proprietary to Unruly (“Unruly Media Player”) and, on occasion, via third party players used by certain publishers in the Unruly Publisher Network.
Title to and ownership of all intellectual property rights of any Ad and associated Advertiser intellectual property shall remain at all times with Advertiser or its third party licensors (as applicable). In addition, Advertiser agrees that Unruly may, during the term of this Agreement and thereafter, include Advertiser’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Unruly’s customer list and in its marketing materials and sales presentations.
Reporting on performance and delivery, including, without limitation, views or engagements of Ads is determined by Unruly in its sole discretion and such reporting will be used to determine the fees payable by Advertiser or Agency (as applicable) pursuant to an Insertion Order (“Controlling Measurement”).
With Unruly’s prior written consent (to be provided in Unruly’s sole discretion) and subject to any conditions imposed by Unruly, Advertiser or Agency may, at its or their cost, use a third party to track an Ad’s performance. If the Controlling Measurement is higher than the measurement by such other third party by more than 10% over the invoice period, the parties will work together in good faith to investigate and resolve such discrepancy. If the discrepancy cannot be resolved within 10 business days, Advertiser’s or Agency’s sole right and remedy shall be either to (a) consider the discrepancy an under-delivery to be remedied by a makegood flight, where delivery of such makegood will be measured by such third party ad tracking mechanism, or (b) pay the invoice based on the Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
6. Payment Terms.
Invoices will be sent by Unruly at such times as provided in the Insertion Order, or otherwise from time to time according to Unruly’s normal billing procedures. Invoices will be sent to the billing address of Advertiser or Agency as applicable and as set forth in the Insertion Order. Failure by Unruly for whatever reason to send a timely invoice will not affect Advertiser’s obligation to pay for any Ads placed in accordance with the Insertion Order.
Payment is due within thirty (30) calendar days of the date of invoice, unless Unruly expressly agrees otherwise in the Insertion Order. Payments not made by the due date shall accrue interest at the rate of 1.5% per month or, if less, the highest rate permitted under applicable law. All costs of collection for overdue payments incurred by Unruly, including reasonable legal fees and expenses, shall be borne by Advertiser and Agency jointly and severally.
If Advertiser or Agency disputes any invoice, Advertiser or Agency must notify Unruly in writing within seven (7) calendar days of the date of the invoice, and any failure to do so within such seven (7) day period shall be deemed a waiver by Advertiser and Agency of any claim relating to any such disputed invoice.
If an Agency is listed on the Insertion Order, Unruly will hold Agency and Advertiser jointly and severally liable for payments. Should sums not have been cleared to Agency, Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. Upon Unruly’s request, Agency will make available written confirmation of the relationship between Agency and Advertiser. Such confirmation will include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Insertion Order and this Agreement. In addition, upon the request of Unruly, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Insertion Order. Agency’s credit is established on a client-by-client basis. Unruly shall have the right to reassess the Agency’s credit to the extent Agency fails to clear Advertiser’s proceeds including in relation to the credit of other advertisers’ that may be represented by such Agency. If Advertiser’s or Agency’s credit is or becomes impaired, Unruly may require payment in advance.
Unless otherwise set forth in this Agreement, all fees and other amounts due under this Agreement are exclusive of sales, use, value added, GST, excise and customs duties and any other similar taxes (collectively “Transaction Taxes“). All Transaction Taxes, whether existing at present or imposed/imposable in the future, by any governmental authority arising out of such agreement shall be paid by Advertiser to Unruly within the agreed payment terms noted in this section of thirty (30) calendar days or the applicable law, on receipt of a valid tax invoice.
If Advertiser is required to withhold any taxes on payments to Unruly under this Agreement under the applicable law, such Advertiser shall withhold such amounts, pay the same to the relevant taxing authority within the time prescribed under applicable law, and promptly furnish to Unruly with appropriate documentation of the amounts so withheld and payment of the same to the taxing authorities, as soon as practicable.
Advertiser shall indemnify Unruly for the full amount of any taxes imposed by any jurisdiction which are the responsibility of such Advertiser and any liability (including penalties, in addition to tax, interest and expenses) arising therefrom or with respect thereto, whether or not such taxes were correctly or legally asserted. This indemnification shall be made within thirty (30) days from the date Unruly makes a written demand therefor.
8. Data Protection
All terms used in this Section 8 that appear in the Data Protection Legislation (as defined below) shall have meaning set out in that legislation. For the purposes of this Section 8, the words and expressions set out below shall have the following meanings:
“Data Protection Legislation” means the EU Data Protection Directive 95/46/EC, the Directive on Privacy and Electronic Communications 2002/58/EC, Regulation (EU) 2016/679 (“GDPR“) and any national data protection laws and regulations enacted under those directives or otherwise and any successor laws and regulations as amended from time to time.
“Personal Data” means the personal data processed in connection with the provision or receipt of services pursuant to this Agreement.
“Security Breach” means any actual or suspected, threatened or ‘near miss’ incident of theft, accidental or unlawful destruction, loss, alteration or damage, wrongful use, or unauthorised or accidental disclosure of or access to Personal Data, or other breach of this Section 8.
To the extent either party is a Controller in respect of the Personal Data (“Controller Party”), the Controller Party will at all times comply with the Data Protection Legislation.
To the extent either party is a Processor in respect of the Personal Data on behalf a Controller Party (“Processor Party”), the Processor Party:
- shall process the Personal Data only for the purposes of, and in accordance with, this Agreement and only upon the instructions of the Controller Party. The Processor Party shall notify the Controller Party immediately if, in the Processor Party’s opinion, an instruction for the processing of Personal Data given by the Controller Party infringes applicable Data Protection Legislation;
- shall ensure that Processor Party personnel have committed to keep the Personal Data confidential and comply with the obligations set out in this Agreement;
- shall have in place and maintain all appropriate technical and organisational measures to protect the Personal Data against any Security Breach or other unlawful processing. The Processor Party shall ensure that such measures ensure a level of security appropriate to the risk and severity of harm that might result from a Security Breach or other unlawful processing;
- shall not disclose Personal Data to, or appoint, a third party sub-processor other than with the prior written agreement of the Controller Party. If the Processor party wishes to appoint a sub-processor in relation to this Agreement, the Processor Party shall do so in the following manner (subject at all times to the Controller Party’s written consent not to be unreasonably withheld):
- the Processor Party and sub-processor shall contract on terms which provide the same data protection obligations to the ones set out in this Section 8;
- the Processor Party shall procure that the sub-processor shall only process the Personal Data in order to perform one or more of the Processor Party’s obligations under this Agreement;
- the grant of any approval by the Controller Party in respect of the appointment of any sub-processor shall not relieve the Processor Party from any liability under this Agreement and the Processor Party shall remain liable for any processing by its sub-processors; and
- the Processor Party shall ensure that sub-processors cannot appoint sub-sub-processors themselves;
- shall promptly carry out any written request from the Controller Party requiring the Processor Party to access, amend, transfer, destroy, delete or restrict the Personal Data or any part of the Personal Data. If requested by the Controller Party, the Processor Party shall (without undue delay) provide to the Controller Party, or directly to any third party required by the Controller Party, a copy of the Personal Data;
- shall (and shall procure that its sub-processors shall) promptly (and in any event within twenty-four (24) hours of discovery), notify the Controller Party of a Security Breach;
- shall cooperate with the Controller Party, provide all reasonable assistance and take such remedial steps as the Controller Party deems necessary (acting reasonably) to address the Security Breach and prevent any further incidents;
- shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Legislation, and shall make such information available to the Controller Party and/or to any relevant regulator or supervisory authority on request;
- shall not, and shall ensure that is sub-processors shall not, under any circumstances transfer or otherwise process the Personal Data outside the EEA without the Controller Party’s prior written consent; and
- where the Processor Party is authorised by the Controller Party to process the Personal Data outside the EEA in a country not deemed adequate by the EC, shall (and/or shall procure that any relevant third party shall) enter into or sign up to the contractual clauses stated in EC Decision 2010/87/EU for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection under Directive 95/46/EC (“SCC”), the Privacy Shield or another European Commission approved transfer mechanism, as required by the Controller Party before such export.
On expiry or termination of this Agreement, the Processor Party shall immediately cease to use the Personal Data and, upon the Controller Party’s written instructions, shall ensure: (i) the prompt irretrievable deletion of the Personal Data; or (ii) return of the Personal Data (including any copies) to the Controller Party. In each case, the Processor Party shall certify in writing to the Controller Party that it no longer retains any copy of the Personal Data.
This Section 8 shall continue in effect following termination or expiry of this Agreement for so long as the Processor Party or any sub-processor retains Personal Data.
Except as expressly permitted in connection with the performance of this Agreement, each of Unruly and Advertiser (each, a “Receiving Party”) agrees not to disclose or use any information either designated by the other party (each, a “Disclosing Party”) as “Confidential” or an equivalent designation, or which would reasonably be deemed confidential or proprietary (“Confidential Information”) of the Disclosing Party, without the Disclosing Party’s prior written consent. No Receiving Party shall use any Disclosing Party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement. Each Receiving Party undertakes that it shall not at any time during this Agreement disclose to any person any Confidential Information, except that each Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each Receiving Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the Disclosing Party’s Confidential Information comply with this Section 9. For the avoidance of doubt, Unruly’s Confidential Information includes (without limitation): (a) commercial information relating to the Unruly Publisher Network and the Unruly Media Player, including information about payments, payment history, rates, pricing, metrics, measurements, targets and other specifications of any Ads or other advertising or promotional efforts; (b) all Unruly software, technology, programming, specifications, materials, guidelines, documentation, images and screenshots relating to any Ad; and (c) statistics and other information relating to an Ad’s performance. The term “Confidential Information” does not include information that (i) has become publicly known through no breach by Receiving Party; (ii) is independently developed without access to Confidential Information, as evidenced in writing; or (iii) is rightfully received by the Receiving Party from a third party without any confidentiality obligation.
10. Investigation; Suspension.
At any time prior to the serving of the first impact of the Insertion Order, Advertiser may cancel the Insertion Order with thirty (30) calendar days prior written notice, without penalty. For clarity and by way of example, if Advertiser cancels the Insertion Order fifteen (15) calendar days prior to the serving of the first impact, Advertiser will only be responsible for the first fifteen (15) calendar days of the Insertion Order.
Upon the serving of the first impact of the Insertion Order, Advertiser may cancel the Insertion Order for any reason, without penalty, by providing Unruly written notice of cancellation which will be effective after the later of: (i) thirty (30) calendar days after serving the first impact of the Insertion Order; or (ii) fourteen (14) calendar days after providing Unruly with such written notice.
Either party may terminate this Agreement: (a) upon a breach by the other party of this Agreement upon at least twenty (20) business days’ prior written notice to such breaching party unless such breach is waived by the non-breaching party or substantively cured within such twenty-(20)-business-day period or (b) if the other party enters into liquidation or becomes insolvent or makes an assignment for the benefit of its creditors, or if a receiver is appointed for it or its assets, or if any bona fide petition is filed by or against it seeking its liquidation or an adjudication of its insolvency or its adjudication as bankrupt or the appointment of a receiver for it or its assets, subject in all cases to applicable law.
12. Effects of Termination.
In the event that this Agreement is terminated by Unruly without cause or is terminated by Advertiser or Agency in accordance with the terms hereof with proper notice, Advertiser will pay Unruly any earned balance within thirty (30) calendar days after the end of the calendar month in which this Agreement was so terminated.
In the event Unruly terminates this Agreement due to any breach or other violation by Advertiser or in relation to any of Advertiser’s Ads, any payments owing by Advertiser shall be remain due and payable to Unruly in accordance with this Agreement. Upon termination of Insertion Orders or termination of this Agreement for any reason, Sections 6-18, inclusive, and any other provisions of this Agreement which by its terms or under circumstances are intended or would reasonably be expected to survive, shall survive termination.
13. No Warranty.
UNRULY PROVIDES ITS SITE AND THE SITES OF ITS PUBLISHERS AND OTHER PARTNERS IN THE UNRULY PUBLISHER NETWORK, AND SERVICES (INCLUDING THE UNRULY MEDIA PLAYER) ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY ADVERTISING MATERIALS. UNRULY’S SOLE OBLIGATION IN THE EVENT OF ANY INTERRUPTION OR FAILURE WILL BE TO RESTORE SERVICE AS SOON AS REASONABLY PRACTICABLE. NEITHER UNRULY NOR ANY OF ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITH RESPECT TO THE UNRULY MEDIA PLAYER, OR OTHER SERVICES PROVIDED BY UNRULY. UNRULY HEREBY EXPRESSLY EXCLUDES ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW, INCLUDING NONINFRINGEMENT, MERCHANTABILITY AND/OR FITNESS FOR PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, UNRULY SHALL HAVE NO LIABILITY TO ADVERTISER, AGENCY, OR IN RELATION TO ANY OF ADVERTISER’S ADS, OF ANY KIND WHATSOEVER IN CONNECTION WITH THE USE OF THE UNRULY MEDIA PLAYER OR THE DISPLAY OR SUBJECT MATTER OF ANY ADS. Without limiting the foregoing, Unruly will have no obligation, liability or other responsibility for anything related to Advertiser’s Ads, including the receipt of queries from viewers of Advertiser’s Ads or the transmission of data between the Unruly Publisher Network and Unruly. Unruly makes no guarantee regarding the number of views or engagements that any Ads will deliver on the Unruly Publisher Network, nor the timing of delivery of such views or engagements.
14. Limitations of Liability.
NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY UNDER THIS AGREEMENT FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (B) FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER TYPE OF LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT OR ANY EXHIBIT, SCHEDULE OR OTHER ATTACHMENT HERETO, WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING HEREUNDER. SUBJECT TO THE FOREGOING, UNRULY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT IS LIMITED TO THE NET AMOUNT RECEIVED BY UNRULY UNDER THE RELEVANT INSERTION ORDER TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, UNRULY SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
15. Representations and Warranties; Indemnification.
Each of the undersigned parties represents, warrants and covenants that it has all necessary rights, power, and authority to enter into and perform this Agreement. Advertiser, and any Agency listed on the Insertion Order on its behalf, is responsible for any liability arising out of or relating to any Ad and/or Advertising Materials provided by Advertiser or Agency hereunder and any material to which users can link through such Ad (“Linked Content”). Advertiser and Agency represent, warrant and undertake that no part of the Ad, Advertising Materials or Linked Content will: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libellous; (d) be pornographic or obscene; (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Advertiser and Agency warrant that it will not use tracking or targeting pixels or similar technologies in order to track and/or create profiles for end users accessing sites in the Unruly Publisher Network; or (f) contain technologies that foster respsawning cookies (including, but not limited to, HTML5 local storage, browser cache, zombie cookies and supercookies). Further, Advertiser and Agency agree that it shall not use any data collected from end users accessing sites in the Unruly Publisher Network for retargeting users or to build its own targeting segments.
Under no circumstances shall Advertiser use, serve or display Ads via another player or channel other than the Unruly Media Player or UnrulyX. Should Advertiser use, serve or display Ads via another player or channel other than the Unruly Media Player or UnrulyX, Unruly may charge Advertiser for the costs incurred by Unruly for each impression served.
Advertiser and any Agency listed in the Insertion Order on its behalf, further represent and warrant that the product or service that is being promoted through any campaign hereunder is not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities. Further, Agency (if any is listed in the Insertion Order) represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to this Agreement and the Insertion Order, and that all of Agency’s actions related to this Agreement and each Insertion Order will be within the scope of such agency, and Agency will defend, indemnify, and hold harmless Unruly, Unruly Affiliates and their agents and representatives from claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from Agency’s breach or alleged breach of the foregoing sentence. Unruly reserves the right to reject or remove the placement of any Ad (or any part of any associated Advertising Materials) or URL link embodied within an Ad at any time in the event Unruly determines in its sole reasonable discretion that such Ad or Linked Content does not meet its standards or comply with the Insertion Order or with any applicable law, rules, regulation, industry guidelines or policies, or other judicial or administrative order, or that such Ad (or associated Advertising Materials) or Linked Content is unlawful or inappropriate or may tend to bring, disparagement, ridicule, or scorn upon Unruly or any of the publishers or their sites in the Unruly Publisher Network. Unruly also reserves the right to demand third party verification for any claims made in any Ad and may terminate this Agreement in the event that such verification is not promptly provided or is unsatisfactory, as determined by Unruly in its sole discretion.
Each party shall indemnify, defend and hold the other party, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (including publishers and other partners in the Unruly Publisher Network, syndication partners, licensors, licensees, consultants and contractors, agents and representatives) (collectively, the “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any such Indemnified Persons, arising out of, related to or which may arise from: (a) in the case of Advertiser and/or Agency as the indemnifying party, the content or subject matter of any Ad, Unruly’s authorized use of any Advertising Materials or Ads, any breach by Advertiser and/or Agency of its representations, warranties and other obligations under this Agreement, or any violation of any applicable law or any other obligations to which Advertiser and/or Agency are bound; and (b) in the case of Unruly as indemnifying party, Unruly’s gross negligence or wilful misconduct.
16. Edit Suite
This Section 16 applies if and to the extent that Advertiser engages Unruly to provide Edit Suite services.
Unruly shall use reasonable endeavours to meet any performance dates specified by Advertiser in an Insertion Order, but any such dates shall be estimates only and time for performance by Unruly shall not be of the essence for this Agreement. Unruly makes no warranties or other assurances as to the fitness for purpose of the Edit Suite services, nor that they will meet Advertiser’s requirements or produce any specific business benefits, have any particular effectiveness, nor create any revenue or other benefits.
Advertiser represents, warrants and undertakes that:
- Advertiser shall provide Unruly with all necessary cooperation in relation to this Agreement and all necessary information as may be required by Unruly to perform the Edit Suite services;
- Advertiser shall obtain and shall maintain all necessary licences, consents and permissions for Unruly, its contractors and agents to perform the Edit Suite services;
- Advertiser has sole responsibility and liability for Advertiser’s Ads including, but not limited to, selection, editorial decisions, rights and other clearances, and/or other compliance, and all other aspects of Advertiser’s Ads;
- as between Advertiser and Unruly, Advertiser is deemed to be the producer and publisher of all Ads;
- Advertiser has full responsibility for informing and directing Unruly in relation to applicable laws, any industry or content specific laws, regulations, directives, policies, protocols and best practices that are unique to Advertiser’s products and/or services, intellectual property rights or any other right, title or interest of any third party that need to be considered in relation to the editing of Advertiser’s Ads;
- Advertiser is responsible for approval of and ensuring compliance of Advertiser’s Ads in accordance with applicable laws, industry or content specific laws, regulations, directives, policies, protocols and best practices that are unique to Advertiser’s products and/or services, intellectual property rights or any other right, title or interest of any third party; and
Advertiser acknowledges and agrees that Unruly has no responsibility or liability for Advertiser’s Ads including not limited to any rights, clearances or other compliance of the content therein. Unruly disclaims all responsibility and will not be liable to Advertiser for Advertiser’s Ads or any Edit Suite services performed by Unruly.
Advertiser shall indemnify, defend and hold Unruly, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (including publishers and other partners in the Unruly Publisher Network, syndication partners, licensors, licensees, consultants and contractors, agents and representatives) (collectively, the “Unruly Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any such Unruly Indemnified Persons, arising out of, related to or which may arise from Advertiser’s breach of this Section 16 (Edit Suite) or Advertiser’s Ads.
In performing obligations under this Agreement, each party shall:
- comply with all applicable laws and regulations relating to anti-bribery and anti-corruption (including but not limited to the Bribery Act 2010 and the Foreign Corrupt Practices Act 1977) and maintain adequate policies and procedures in this respect;
- promptly report to the other party any offer, request or demand for any undue financial or other advantage of any kind received in connection with the performance of this Agreement; and
- ensure that any person associated with such party who is providing services or goods in connection with this Agreement does so only on the basis of a written contract including similar anti-corruption terms.
18. Modern Slavery.
In performing its obligations under this Agreement, Advertiser and Agency shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force including but not limited to the Modern Slavery Act 2015 and maintain throughout the term of this Agreement its own policies and procedures to ensure its compliance.
Advertiser and Agency shall not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.
Advertiser and Agency shall include in its contracts with its subcontractors and suppliers applicable and appropriate anti-slavery and human trafficking provisions.
19. Anti-facilitation of tax evasion.
In performing its obligations under this Agreement, Advertiser and Agency shall not engage in any activity, practice or conduct which would constitute a UK tax evasion facilitation offence under section 45(1) of the Criminal Finances Act 2017 or a foreign tax evasion facilitation offence under section 46(1) of the Criminal Finances Act 2017.
Advertiser and Agency shall promptly report to Unruly any request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 in connection with the performance of this Agreement.
Force Majeure. Neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labour conditions, and power failures.
No Agency. Advertiser and Agency will not misrepresent or embellish the relationship between Unruly and Advertiser or Unruly and Agency (including by expressing or implying that Unruly supports, sponsors, endorses, or contributes to any charity or other cause), or express or imply any relationship or affiliation between Unruly and Advertiser or Unruly and Agency or any other person or entity except as expressly permitted by the Agreement. The relationship between Unruly and Advertiser and/or Agency is not one of a legal partnership relationship, but is one of independent contractors.
Governing Law. The Agreement and any non-contractual obligations arising from or in connection with it shall be governed by the laws of England and Wales. Each party irrevocably Any dispute or claim arising out of or in connection with the Agreement or any non-contractual obligation arising from or in connection with it shall be adjudicated in the courts of England and Wales located in London, England.
Non-Assignment. Advertiser and Agency may not resell, assign, or transfer any of Advertiser rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Unruly. Notwithstanding the foregoing, Unruly may assign this Agreement either (x) in whole or in severable part, to any affiliate at any time without notice (including such that the assigning entity has no further rights and obligations and the assignee entity assumes all rights and obligations or such that both the assignee and assignor have full rights and obligations severally under this Agreement) or (y) in connection with any corporate reorganization, stock purchase, merger, or sale of all or substantially all of the business and assets associated with the subject matter of the Agreement.
Entire Agreement. This Agreement constitute the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement or any such exhibit, schedule or attachment must be made in a written agreement executed by both parties. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. The words “includes” or “including” shall mean “includes without limitation” or “including without limitation.” If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect.
Last updated: April 2019