Effective Date: 21 December 2021
1. HOW THE SERVICES WILL BE PROVIDED
1.1 For your payment of the Fees, we (A Million Ads) will provide the Services to you for the Term. We may need some help from you so that we can properly supply the Services to you. You (the Client) will give us this help as long as it is reasonable for us to ask for it. Any information you give us will be accurate and up to date.
1.2 We can together agree an expansion or change of the Services by amending the Commercial Terms. Once the amendment is signed by us both, it becomes a part of this Agreement.
1.3 The “Platform” means our proprietary online software application enabling personalised digital advertising. We might change the Platform or Services but will make sure that these changes will not significantly disturb the way you can use them.
2. PLATFORM USERS
2.1 You will be given a Platform username and password by us. You can add, edit or remove Platform users by using the User Administration tool in the Platform. Any users you add here will be alerted by email and invited to join the Platform. Each such user is added to your Platform users.
2.2 You will make sure that your Platform users will keep passwords confidential. We will not be responsible for the consequences (including for any losses or damage) if a Platform user discloses a password.
2.3 You will make sure that your Platform users will not use the Services or the Platform in a way that is against the law or any regulation.
2.4 You will do your best to prevent any unauthorised access to, or use of, the Platform and the Services and will notify us as soon as possible in writing if you suspect or confirm unauthorised access or use of the Platform.
3. PERMISSION TO USE OUR PLATFORM
We hereby grant you a revocable, non-exclusive, non-transferable and non-sublicensable licence to use the Platform and the Services, in accordance with the terms of this Agreement for the Term. This licence is granted to you only and not to any subsidiary, sister or parent company of yours.You will not use the Platform or the Services to build a product or service which competes with the Platform, the Service or us.
4. PERMISSION TO USE YOUR CONTENT
4.1 You hereby grant us a royalty-free, revocable, non-exclusive, non-transferable and sublicensable licence for the Term to use any materials and data provided to us by you (“Your Content”) so that we can provide the Platform and the Services.
4.2 You promise (warrant, represent and undertake) that Your Content will be free from viruses, malicious code, unlawful, defamatory, racist, inflammatory or obscene material and other objectionable material.
5. FEES AND PAYMENTS
5.1 You will pay us the fees in the Commercial Terms (“Fees”).
5.2 All amounts in this Agreement exclude VAT, sales, use or goods and services tax (“Taxes”) and are payable in the currency set out in the Commercial Terms. You will be responsible for Taxes, except for taxes on our income, assets or employees.
5.3 Where the Commercial Terms set out Minimum Targets and you do not meet them within the Term, you will reimburse us for all costs incurred by us.
5.4 We will invoice the Fees and costs at the end of each calendar month covering all services provided in that month. You will pay all invoices within 30 days of the invoice date unless otherwise set out in the Commercial Terms. If you fail to make any payments on time:
5.4.1 Where our contracting entity is A Million Ads Limited, interest will arise on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, starting on the payment due date and continuing until fully paid, whether before or after judgment;
5.4.2 Where our contracting entity is A Million Ads Inc, interest will arise on such due amounts at a rate equal to the lesser of 1.5% per month or the maximum allowed by law;
5.4.3 we can immediately pause the provision of any Services, including restricting your Platform Users’ access to the Platform, until the outstanding payments are made.
6. IP RIGHTS
6.1 In this clause, “IP” means all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
6.2 We and/or our licensors own all IP in the Platform and the Services including, without limitation, any materials you download, print, save or incorporate into other materials (“Our IP”). We do not grant you any IP in respect of Our IP unless expressly set out in this Agreement.
6.3 You and/your licensors own all IP in Your Content. You do not grant us any IP in respect of Your Content unless expressly set out in this Agreement.
6.4 You promise (warrant, represent and undertake) that our use of Your Content in accordance with this Agreement will not infringe the IP of any third party.
7. TERM AND TERMINATION
7.1 If this Agreement does not Autorenew (as set out in the Commercial Terms), this Agreement will start on the Start Date and expire at the end of the First Term.
7.2 If this Agreement does Autorenew:
7.2.1 this Agreement will start on the Start Date and continue for the First Term;
7.2.2 upon expiration of the First Term this Agreement will automatically renew for more periods each equal to the First Term (a “Renewal Term”);
7.3 This Agreement can always be terminated by either of us:
7.3.1 given at least 30 days written notice to the other party;
7.3.2 if the other is in material breach of this Agreement and, if the breach can be fixed, fails to fix the breach within 30 days of a written request to do so; or
7.3.3 if the other stops trading (or threatens to stop trading); has an order for winding up; has an administrator or liquidator appointed (or such appointment is entitled or is requested in good faith); has a bankruptcy petition or order; becomes insolvent; is incapable of paying its debts as they fall due; makes any arrangement with its creditors for the payment of its debts.
7.4 When this Agreement ends for any reason:
7.4.1 all licences and permissions granted under this Agreement will immediately end; and
7.4.2 you will immediately pay all outstanding Fees due to us.
7.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
8. INSURANCE COVER; INDEMNITY
8.1 Where our contracting entity is A Million Ads Limited, during the Term we will both keep the following insurance policies in place:
8.1.1 employer’s liability insurance: limit £10,000,000;
8.1.2 public liability insurance: limit £5,000,000; and
8.1.3 professional indemnity insurance limit £2,000,000.
8.2 Where our contracting entity is A Million Ads Inc, during the Term we will both keep the following insurance policies in place:
8.2.1 Commercial General Liability on an “occurrence form” with minimum limits of U.S. $1,000,000 per occurrence and in aggregate;
8.2.2 Workers compensation insurance as required by law; and
8.2.3 Professional Liability insurance limit of $2,000,000 in aggregate.
8.3 You will indemnify and hold us and personnel, affiliates and representatives harmless from and against any liabilities, losses, expenses, damages and costs (including without limitation reasonable legal fees) related to any third party claims, actions, demands or investigations arising out of or related to Your Content.
9. LIMITATION OF LIABILITY
9.1 This clause sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
9.1.1 arising under or in connection with this Agreement;
9.1.2 in respect of any of your input to or use of the Platform or the Services (or any part of them); and
9.1.3 in respect of any representation, misrepresentation, statement or tortious act or omission (including negligence or more culpable conduct, except as set out below) arising under or in connection with this Agreement.
9.2 Except as expressly and specifically provided for in this Agreement you assume sole responsibility for your use of the Platform and Services, and for the results of, or conclusions drawn from, such use.
9.3 The Platform and Services are provided “as is” to the fullest extent permissible pursuant to applicable law. We exclude all representations, warranties or conditions express or implied, including implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Platform, and the Services, their use and the results of such use.
9.4 Nothing in this Agreement excludes our liability:
9.4.1 for death or personal injury caused by our negligence;
9.4.2 for fraud or fraudulent misrepresentation; or
9.4.3 any statutory liability not capable of limitation.
9.5 Subject to clause 9.4, we will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise, under any theory of liability, for any loss of profits, loss of business, 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 losses, damages, charges or expenses however arising under or related to this Agreement, even if we were or should have been advised of such possibility.
9.6 Subject to clause 9.4 and 9.5, our total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement, will be limited to the lower of (i) total monies actually received by us from you under this Agreement during the 12 months preceding the date on which the claim arose and (ii) £25,000.
10. CONFIDENTIALITY OBLIGATIONS
10.1 In this clause, “Confidential Information” means any information that is labelled as confidential or should reasonably be understood by the receiving party to be of a confidential nature. This includes information related to the details of this Agreement, the Platform and Services. Confidential Information excludes any information which:
10.1.1 is or becomes public other than through a breach of this Agreement or other obligation of confidentiality;
10.1.2 the receiving party’s already had lawfully before the disclosure from one party to another;
10.1.3 is lawfully shared with the receiving party by a third party;
10.1.4 is independently developed by the receiving party and that independent development can be proved by evidence; or
10.1.5 is required to be disclosed by law, by a court or by a public body, in which case the receiving party will notify the disclosing party before the disclosure (unless notification is prohibited by law) and will reasonably cooperate with the disclosing party’s legal efforts, at the disclosing party’s request and expense, to limit or prevent the disclosure.
10.2 We will both hold each other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party unless that third party is subject to a duty of confidentiality. Neither of us will use each other’s Confidential Information for any purpose other than for this Agreement.
10.3 We will both take active steps to make sure that the other’s Confidential Information to which we have access is not disclosed or shared by our staff in breach of this Agreement.
10.4 This clause and its confidentiality obligations will continue for two years after this Agreement has ended.
11. GENERAL CLAUSES
11.1 If there is any conflict between the terms of this Agreement, the following order applies (from first to last): Signed amended Commercial Terms; Commercial Terms; Legal Terms.
11.2 We are allowed to mention you (including use of your logos, trade marks and other branding) as our client on our websites, in our marketing materials and in our negotiations with others, unless you tell us otherwise in writing. Where we have consented to this, you may mention us as your supplier on your websites, in your marketing materials and in your negotiations with others.
11.3 We will not be in breach of this Agreement nor liable for any failure or delay to perform our obligations under this Agreement, if that failure or delay is a result of a Force Majeure Event (whether or not reasonably foreseeable at the time of entering into this Agreement) making it impractical for us to perform our obligations. Force Majeure Event means an event beyond our reasonable control including but not limited to strikes; lock-outs, or other industrial disputes (whether involving our workforce or any other party’s); internet outages; communications outages; failure of a utility service or transport network; act of God; war; riot; civil commotion; malicious damage; compliance with any law or governmental order or World Health Organisation rule, decision, regulation, guidance, recommendation, or direction; accident; breakdown of plant or machinery; fire; flood; storm; disease; epidemic; pandemic; or default of suppliers or subcontractors.
11.4 A waiver of any right under this Agreement is only effective if it is in writing.
11.5 If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) will remain in force.
11.6 This Agreement constitutes the whole agreement between us both and supersedes any previous agreement between us both.
11.7 This Agreement can be amended only in writing (email is sufficient) and agreed when signed by both of us (electronic signatures are acceptable).
11.8 You will not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without our prior written consent.
11.9 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
11.10 Any notice given under this Agreement will only be valid if it is in writing and delivered by email or sent by pre-paid first-class post or recorded delivery post to the other party at the address set out in the Commercial Terms.
11.11 Where our contracting entity is A Million Ads Limited, this Agreement will be governed by, and construed in accordance with, the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English Courts. Where our contracting entity is Million Ads Inc, this Agreement will be governed by, and construed in accordance with, the laws of state of New York and the parties irrevocably submit to the exclusive jurisdiction of the courts located in New York County, New York.