In these Terms & Conditions, the following words and expressions shall have the meaning set out below:
Ad or Advertisement means any type of advertising material, such as text messaging, audio files, video files, rich media, content, text and graphic files;
Additional Fee means an additional sum of money payable by the Supplier to Immediate for the number of Ad Impressions in excess of the Ad Impressions booked and up to the Ad Impressions booked, and calculated in accordance with the basis of the Fee;
Ad Impression means any instance when a page is downloaded to a User where that page includes an Ad;
Ad Inventory means digital advertising inventory available to purchase on the Site, including web, application-based and video inventory on display or mobile;
Agreement means these Terms & Conditions, the Order and the booking form agreed between the parties;
Campaign End Date means the final day of the Campaign Period;
Campaign Period means the period agreed between the parties as the time during which the advertising detailed in the Order or booking form shall be effected;
Campaign Start Date means the first day of the Campaign Period;
Cookie means a small piece of information stored on Users’ device or in the browser’s local storage, which includes cookies, tags, web beacons, pixels, GIFs, web bugs, software development kits (SDKs), standard device identifiers, or other similar technologies;
Controller, Data Subject, Personal Data Breach, Process, Processor, and Supervisory Authority shall have the meanings given in the Data Protection Legislation;
Data Protection Legislation means the Data Protection Act 1998 as amended, replaced or superseded from time to time in the UK, including by the EU General Data Protection Regulation (2016/679) (GDPR) and any national implementing or supplementary laws, regulations and/or secondary legislation made from time to time, together with any guidance and/or codes of practice issued by the relevant Supervisory Authority;
Fee means the sum payable to Immediate in consideration for the advertising activity as agreed between Immediate and the Supplier and specified in the Order or booking form;
Immediate means the relevant Immediate Media Company listed in the Order;
Order means a request to purchase Ad Inventory and/or to display Ads on the Site;
Site means the website specified in the Order, or otherwise any website, mobile site, application or other digital property owned and/or operated by Immediate;
Page Traffic Statistics means the number of Ad Impressions, and the click-through rate in respect of the Ads;
Personal Data means the personal data (as defined in the Data Protection Legislation) processed by the Supplier pursuant to or in connection with this Agreement, further details of which are set out in Annexure 1;
Purpose means the purpose for Processing Personal Data as set out in Annexure 1;
Sub-Contractor means any natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Supplier;
Supplier means any person, partnership or company and/or its agent, placing an Order, and includes an advertiser, advertising agency, ad serving platform, and any other digital trading partner; and
User means any person who visits or accesses the Site.
2. Basis of Agreement
2.1 This Agreement is made between Immediate and the Supplier as outlined in the Order.
2.1 Where the Supplier is an advertising agency, the relationship between Immediate and such agency is that the Order is issued and shall be treated as issued by the Supplier as a principal and there shall be no contract between the Supplier’s advertiser and Immediate, nor shall the Supplier’s advertiser be able to claim upon the contract of the agency with Immediate.
3. Rights and Obligations of Immediate
3.1 Immediate shall accept an Ad in its absolute discretion subject to the following conditions:
3.1.1 the Ad, and any other material provided by the Supplier being in accordance with the standards and guidelines of Immediate, including these Terms & Conditions;
3.1.2 the file containing the Ad complying with Immediate’s technical specifications (available upon request); and
3.1.3 subject to the status of the Supplier itself.
3.2 Where the Supplier is an advertiser or advertising agency, subject to receipt by Immediate of a signed copy of the booking form, Immediate will publish the Ad on the Site each day during the Campaign Period or until the Ad Impressions booked have accrued in respect of the Ad, or otherwise in accordance with the Order.
3.3 Where the Supplier is an ad serving platform, Immediate shall place, or instruct its ad server to place, on the Site any ad tag supplied by the Supplier in accordance with clause 4.2.1.
3.4 If not otherwise available to the Supplier, Immediate will provide all Page Traffic Statistics to the Supplier within thirty days of the end of each month during the Campaign Period.
3.5 Copy created by Immediate for commercial content amplification '(via social media and/or other platforms)' shall be subject to Immediate’s sole discretion and control.
4. Rights and Obligations of the Supplier
4.1 To the extent the Supplier is an advertiser, or advertising agency, the Supplier shall:
4.1.1 supply to Immediate either a file containing the Ad or all the information, trade marks, logos and other materials necessary to enable Immediate to create the Ad in an agreed format and medium on or before the copy delivery date, as set out in the Order or booking form;
4.1.2 grant to Immediate the right to link to the advertiser’s site via the Ad during the Campaign Period; and
4.1.3 inform Immediate at least ten working days in advance of any planned changes to the advertiser’s site that might affect the performance of any part of Immediate’s obligations under this Agreement.
4.2 To the extent the Supplier is an ad serving platform, the Supplier shall:
4.2.1 provide Immediate with any ad tags to allow Immediate’s ad server to deliver Ads from the Supplier;
4.2.2 provide Immediate with access to and use of its ad serving platform to enable Immediate to sell Ad Inventory to buyers, track delivery and performance of Ads, and to calculate Ad revenue;
4.2.3 facilitate the sale of Ad Inventory in accordance with these Terms & Conditions; and
4.2.4 calculate the value of the Ad Inventory sold and the number of Ad Impressions, and report these figures to Immediate.
5. Acceptance of Ads
5.1 Ads will be published on the Site in consideration of payment of the Fee, and any Additional Fee if applicable.
5.2 Immediate may at its absolute discretion omit, suspend or change the position of any Ad accepted.
6.1 The Supplier shall pay Immediate the Fee, and any Additional Fee if applicable, in accordance with the payment terms in the Order or the booking form.
6.2 Where the Supplier is an ad serving platform, the Supplier shall be responsible for calculating the Fee owing to Immediate based on the number of Ad Impressions.
6.3 Immediate shall invoice the Supplier for the Fee.
6.4 This clause 6.4 applies if the Supplier has booked a fixed number of Ad Impressions in the Order:
6.4.1 Immediate shall invoice the Supplier for any Additional Fee, if applicable, in respect of the previous calendar month, which shall be payable on the 15th day of the month which follows the month of the invoice.
6.4.2 If the number of Ad Impressions in any month appears likely to exceed the Ad Impressions booked, Immediate will notify the Supplier and the parties shall agree in good faith either to reduce the average number of pages of the Site which will include an Ad for the remainder of the month so that the number of Ad Impressions does not exceed the Ad Impressions booked or instead to permit the Ad Impressions booked to be exceeded with a pro rata increase in the Fee payable by the Supplier in respect of that month.
6.4.3 If the number of Ad Impressions in any month is less than the Ad Impressions booked, the deficit will be carried over to the next month and aggregated to the target number of Ad Impressions for that month.
6.4.4 If at the end of the Campaign Period there is an aggregate deficit in the number of Ad Impressions compared with the Ad Impressions booked over the entire Campaign Period, and such deficit is not due to any action taken or request made by the Supplier, Immediate and the Supplier will agree a mutually acceptable settlement and, if no other agreement is reached, Immediate will reimburse a portion of the Fee to the Supplier in respect of the deficit pro-rated according to the basis of Fee. In the event that any such deficit is due to any action taken or request made by the Supplier, any reduction of the Fee will be at Immediate’s discretion.
6.5 If there is disagreement between the parties regarding the number of Ad Impressions served and the discrepancy is +/- 10%, Immediate’s figures will be used, unless otherwise stated in the Order. Any other discrepancy will be dealt with on a case by case basis.
6.6 If the Fee due from the Supplier to Immediate is not paid in accordance with the payment terms, then without prejudice to any other rights and remedies of Immediate, the Supplier shall pay to Immediate interest on the amount outstanding from the date due until payment is made at the rate of four per cent (4%) per annum above the base rate as stated by Barclays Bank Plc in the United Kingdom compounded at monthly intervals.
6.7 The Supplier shall pay VAT on the Fee as appropriate.
7. Use of Trade Marks
Immediate will be entitled to use the Supplier’s name and trade marks on its Sites and in connection with the Ads.
8. Advertising on BBC-branded Sites
This clause 8 applies to any Ad served, or intended to be served, on a BBC-branded Site.
8.1 Any Ad shall be accepted by Immediate and delivered on the Site, subject to the following conditions:
8.1.1 The Ad and any material provided by the Supplier must be in full compliance with all editorial and commercial standards and guidelines of the BBC and/or BBC Worldwide as appropriate, including but not limited to the specific restrictions in respect of the BBC’s intellectual property and references in advertising to BBC performing talent; and
8.1.2 The Ad may not contain any reference to the BBC nor imply any support, endorsement or connection between any or all of the Supplier, the product or service being advertised, and the BBC.
8.2 If the Order applies wholly or in part to a BBC-branded title, Immediate shall be entitled at its discretion to assign or license the whole or any part of its rights under this Agreement to the BBC or to any BBC subsidiary, and in such event all of the representations, warranties and undertakings on the part of the Supplier contained in this Agreement shall inure for the benefit of the BBC and with effect from the date of such assignment or licence, Immediate shall have no further liability to the Supplier.
9.1 Immediate warrants to the Supplier that:
9.1.1 it has the full power and authority to enter into and perform this Agreement and have not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement; and
9.1.2 it will use reasonable skill and care in designing (if applicable) and delivering the Ad on the Site.
9.2 The Supplier warrants and undertakes to Immediate that:
9.2.1 it has the full power and authority to enter into and perform this Agreement and has not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement;
9.2.2 nothing contained in any materials provided by the Supplier or the Ad shall infringe any right of copyright, right of trade mark, right of privacy, right of publicity or personality or any other right of any other nature of any person, or be obscene or libellous or blasphemous or defamatory, and that the information does not incorporate any third party source material;
9.2.3 there are and shall be no claims, demands, liens, encumbrances or rights of any kind in any of the information resulting from any act or omission of the Supplier, which can or will impair or interfere with the rights of Immediate, and that nothing contained in the information, nor any use of it, will violate any right of any third party;
9.2.4 it owns all necessary rights in, or has all necessary licences in respect of its trade marks, and ad serving platform (if applicable);
9.2.5 it shall take reasonable precautions to ensure no malicious code is introduced to the Sites via its ad serving platform (if applicable); and
9.2.6 it shall comply with all applicable laws, including the Data Protection Legislation.
9.3 The placing of an Order shall constitute an undertaking by the Supplier to Immediate that the Ad, and any site linked via the Ad:
9.3.1 complies with all relevant consumer protection legislation and advertising codes;
9.3.2 does not contain material that is obscene, blasphemous, defamatory, infringing of any rights of any third party or otherwise legally actionable under any civil or criminal laws in force in any legal jurisdiction from which the Ad will be accessible or which might bring Immediate into disrepute; and
9.3.3 complies with the relevant parts of the then current BBC Online Advertising Guidelines For Commercial Services which are available on request.
10.1 The Supplier hereby agrees to indemnify Immediate, its directors, employees, officers and affiliates, against all claims, proceedings, demands, damages, liabilities, regulatory sanctions or fines, and costs (including reasonable legal costs) arising out of in connection with any use of an Ad by a User, and any breach by the Supplier of this Agreement.
10.2 Immediate will not be liable for any loss or damage, direct or consequential, occasioned by error in the positioning of or omission to publish any Ad or for late publication of an Ad or failure to perform any other obligation whether occasioned by negligence or otherwise save in cases occasioned by the direct negligence of Immediate, in which case compensation may not exceed the cost of the Fee in relation to the relevant Ad.
11. Intellectual Property Rights
11.1 Immediate is the owner or licensee of all intellectual property rights in the Site and the design of the Ad (if designed by Immediate), with the exception of any third party trade marks appearing on the Ad.
11.2 To the extent the Supplier is an advertiser, the advertiser is the owner of all intellectual property rights in its site, logos and trade marks that may feature within the Ad.
11.3 If any third party claims that the design of the Ad infringes the intellectual property rights of that third party, Immediate will consult with the Supplier and may modify the Ad or delete or replace any part of the material, or information contained in the Ad, provided that any modification, deletion or replacement does not materially affect a User’s ability to access the advertiser’s site via the Ad.
Each party agrees to keep confidential (both during and after the Campaign Period, or the duration of the Order as the case may be) the terms of the Campaign and the Order, the Page Traffic Statistics, Personal Data, and all other confidential information concerning the business or affairs of the other. This obligation will not apply in the case of any disclosure required by law, trivial information or information which is already publicly available or in the possession of a party at the time of disclosure by the other (other than as a result of a breach of any confidentiality obligation).
13. Data Protection
This section 13 applies to the extent the Supplier Processes Personal Data. Annexure 1 sets out certain information regarding the Supplier’s Processing of Personal Data as required by Article 28(3) of the GDPR.
13.1 Processing Personal Data
13.1.1 With respect to the parties’ rights and obligations under the Agreement, the parties agree that Immediate is the Data Controller and the Supplier is the Data Processor of Personal Data.
13.1.2 The Supplier represents and warrants that it shall:
a) Process the Personal Data for the Purpose only, and for no other purpose;
b) Process the Personal Data in accordance with the Data Processing Legislation;
c) Process the Personal Data on behalf of Immediate (or, if so directed by Immediate, any of Immediate’s group companies) in strict compliance with Immediate’s written instructions from time to time;
d) ensure that all Supplier Personnel who are required to access and Process the Personal Data:
i) have undergone reasonably adequate training in data protection and the care and handling of Personal Data;
ii) are informed of the confidential nature of the Personal Data; and
iii) are required to keep it confidential (whether by contractual undertakings or professional or statutory obligations);
e) implement or ensure that it has in place appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful Processing, and against accidental loss, destruction, damage, alteration or disclosure;
f) comply with any reasonable instructions given by Immediate from time to time in relation to the Personal Data;
g) notify Immediate immediately in the event that it becomes aware of any Personal Data Breach by the Supplier or any processor appointed pursuant to clause 13.2 or 13.3 below; and
h) maintain complete and accurate records and information to demonstrate its compliance with this Agreement, and make these available to Immediate on request.
13.1.3 The Supplier will assist Immediate in:
a) ensuring compliance with Immediate’s obligations under Articles 32-36 of the GDPR (or equivalent provisions in the Data Protection Legislation); and
b) processing requests, enquiries or complaints from Data Subjects or the relevant Supervisory Authority, within the timescales required by Immediate.
13.2.1 The Supplier shall obtain prior written consent from Immediate before transferring Personal Data to a Sub-Contractor.
13.2.2 Where consent is given pursuant to clause 13.2.1 the Supplier shall ensure it has a written agreement in place with the Sub-Contractor which offers at least the same level of protection for Personal Data as those set out in this Agreement, and meets the requirements of Article 28(3) of the GDPR (or the equivalent provision in the Data Protection Legislation).
13.2.3 As between Immediate and the Supplier, the Supplier will remain fully liable for all acts and omissions of any Sub-Contractor appointed by the Supplier pursuant to this clause.
13.3 International Transfers
13.3.1 The Supplier shall not Process or transfer the Personal Data outside of the European Economic Area (EEA) without the prior written consent of Immediate.
13.3.2 Where consent is given pursuant to clause 13.3.1 the following conditions must also be satisfied:
a) Personal Data may be transferred to a country outside the EEA if:
i) The European Commission has decided that that country has an adequate level of protection; or
ii) The Supplier and recipient of Personal Data have entered into the standard data protection clauses adopted by the European Commission; or
iii) In the case of the United States, the recipient of Personal Data is certified compliant with the EU-US Privacy Shield framework,
b) Data Subjects must have enforceable rights and effective legal remedies against the Supplier and recipient of Personal Data outside the EEA; and
c) the Supplier shall comply with reasonable instructions notified to it in advance by Immediate with respect to processing Personal Data.
14. Cookies on Publisher Sites
14.1 The parties acknowledge that Cookies may be used on Sites to Process, or assist in Processing, Personal Data and to deliver Ads.
14.2 The Supplier acknowledges that the Sites are the legal property of Immediate.
14.3 The Supplier shall not place, or permit to be placed through its Ads, tags, scripts or otherwise, any third party Cookies on Immediate’s Sites without the prior written consent of Immediate.
15. Termination and Cancellation
15.1 This Agreement shall expire at the end of the Campaign Period, or as otherwise stated in the Order, unless cancelled or terminated earlier in accordance with this Agreement.
Immediate or the Supplier (if an advertiser or advertising agency only), shall have the right to cancel this Agreement on 28 days’ notice in writing to the other party, subject to the Supplier reimbursing Immediate for any costs incurred up to the date of cancellation in producing the Ad, on a reasonable time spent basis.
15.3.1 Both parties shall have the right to terminate this Agreement immediately on written notice to the other party in any of the following events:
a) if the other commits any material breach of its obligations under this Agreement which, in the case of a breach capable of remedy, is not remedied within 10 days of notice specifying the breach and requiring it to be remedied;
b) if the other holds any meeting, or proposes to enter into a meeting, or has proposed any arrangement or composition, with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrancer take possession of or appointed over, or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
c) pursuant to Clause 18.
15.3.2 Immediate shall have the right to terminate this Agreement immediately on written notice to the Supplier if:
a) the Supplier is in breach of clause 13 or 14 of this Agreement; or
b) if the relevant Supervisory Authority exercises its powers under Article 58 of the GDPR (or equivalent provision in the Data Protection Legislation) which limits or restricts (whether temporary or definitive) processing of Personal Data.
15.3.3 Immediately on termination or expiry of this Agreement:
a) Immediate will remove the Ad from the Site and any Supplier ad tag;
b) the Supplier will account to Immediate for the Fee due up to and including the last day of the Campaign Period or date of expiry or termination, as applicable; and
c) the Supplier will cease Processing Personal Data and immediately delete or return to the Publisher any Personal Data Processed up to the date of expiry or termination. The Supplier shall also destroy all copies of Personal Data, save to the extent it is legally required to retain a copy.
15.3.4 Termination of this Agreement shall be without prejudice to any rights of a party accrued before termination.
16.1 Both parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to this Agreement or a breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations by appropriate representatives of the parties the dispute shall be referred to the signatories of this Agreement or their successors who shall attempt to resolve the dispute.
16.2 If any attempt at resolution fails to result in a settlement, the matter at the election of either party may be submitted for resolution to a court of competent jurisdiction, which shall be the courts of England and Wales.
Any notice given under this Agreement will be in writing and delivered to the other party or sent by pre-paid post to the company’s registered office address.
18. Force Majeure
A party will not be liable for any failure/delay in performing its obligations under this Agreement to the extent that this failure is the result of any cause or circumstance beyond the reasonable control of that party and that failure could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 20 working days, the other party may terminate this Agreement immediately by written notice.
19.1 This Agreement is personal to and for the sole benefit of the Supplier and the Supplier shall not assign, transfer, sub-license, sub-distribute, mortgage, charge or in any other way dispose of any of its rights, interests or obligations under this Agreement to any person or organisation.
19.2 Immediate shall be entitled to assign or license the whole or any part of its rights under this Agreement to any of company in the Immediate Media Company group and in such event all of the representations, warranties and undertakings on the part of the Supplier contained in this Agreement shall inure for the benefit of such assignee and if the assignee undertakes direct with the Supplier to comply with the obligations of Immediate to the Supplier (but not otherwise), then with effect from the date of such undertaking, Immediate shall have no further liability to the Supplier.
20.1 Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
20.2 Each party confirms that this Agreement sets out the entire agreement and understanding between the parties and that it supersedes all previous agreements, arrangements and understandings between them.
20.3 No failure or delay by any party in exercising its rights under this Agreement will operate as a waiver of that right nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.
20.4 The rights and remedies of the parties under this Agreement are cumulative and in addition to any rights and remedies provided by law.
20.5 Any variation to this Agreement must made be in writing and mutually agreed by Immediate and the Supplier.