Términos y condiciones

Part A: General Terms

1 Definitions

Adstream Products means the products to be provided by Adstream to Customer under this Agreement;

Adstream Site means www.adstream.com;

Broadcast Products means the Adstream Products which are categorised by Adstream as “Broadcast Products” and to which the provisions of Part C of this Agreement apply;

Confidential Information means information which is or has been disclosed to (whether orally, electronically or in writing), or otherwise obtained by, one party from or through the other party in connection with this Agreement, including information in relation to the Adstream Products, other than any such information which: (a) was in the public domain at the time of its provision; (b) became part of the public domain after its provision other than as a result of a disclosure in breach of this Agreement; or (c) is or came into the possession of the other party otherwise than as a result of a disclosure in breach of an obligation of confidence;

Controller has the meaning given in applicable Data Protection Laws from time to time;

Customer Contract means any contract or order form that is placed by the Customer for Adstream Products following completion of the Customer Registration Process

Customer Registration Form/Process means an application, in the form provided or approved by Adstream, completed by Customer to apply for credit from Adstream in respect of the Adstream Products;

Date Protection Laws means, as binding on either party or the Adstream Products:

(a) the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR;

(b) any laws which implement any such laws; and

(c) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing and shall include any comparable legislation in any country

Data Subject has the meaning given in applicable Data Protection Laws from time to time;

Fees means the fees payable by Customer for the relevant Adstream Products and any related or additional services, as set out in the Customer Contract.

GDPR means the General Data Protection Regulation (EU) 2016/679;

General Terms means the section of this Agreement entitled “Part A: General Terms”;

International Organisation has the meaning in the GDPR;

Media Owner means the broadcaster, print publisher or online publisher who owns the end media destination to which the material is intended to be broadcast, inserted or placed;

Personal Data has the meaning given in applicable Data Protection Laws from time to time;

Personal Data Breach has the meaning given in the GDPR;

Print Products means the Adstream Products which are categorised by Adstream as “Print Products” including the Publishers Data and to which the provisions of Part C of this Agreement apply;

Processing has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly);

Processor has the meaning given in applicable Data Protection Laws from time to time;

Product Terms means either of Parts B or C of this Agreement;

Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of Adstream’s obligations under this Agreement;

Publishers Data means information in respect of publishers located worldwide, including the name of the publisher, the publication produced by the publisher and the section, style, format, spot and size of the item, provided by Adstream via a webservice which is queried and updated dynamically, and known as “Quickcut Specifications API”;

Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by Adstream for carrying out any processing activities on behalf of the Customer in respect of the Protected Data; and

Term means the period(s) specified in the Customer Contract during which Adstream will provide the Adstream Products to Customer.

2 Adstream Products

2.1 Application of Agreement

Part A of this Agreement applies generally irrespective of which Adstream Products are being provided to Customer. The Product Terms will apply as indicated in the Customer Contract.  If there is any inconsistency between any of the terms set out in this Part A and any term set out in the Product Terms, the terms set out in the relevant Product Terms will prevail to the extent of any inconsistency.

2.2 Licence

Adstream grants Customer a non-exclusive and non-transferable licence to access and use the Adstream Products for the Term, as may be further described in the relevant Product Terms.

2.3 Conditions of Use

(a)   Customer’s continued access to and use of the Adstream Products is subject to timely payment of all invoices issued in accordance with clause 3 of these General Terms.

(b) Customer must not cause or permit any unauthorised third party access to or use of the Adstream Products or the Adstream Site and must immediately notify Adstream on becoming aware of any unauthorised use or copying of the Adstream Products.

(c) Customer must not:

(i) make a copy of any of the Adstream Products;

(ii) modify any of the Adstream Products or combine or incorporate any of the Adstream Products in any other program or system (although Customer agrees to assign to Adstream all right, title and interest in such modifications or combinations and Adstream owns all right, title and interest in any such modifications or combinations);

(iii) reverse engineer any of the Adstream Products or separate any of the Adstream Products into component parts; or

(iv) cause or permit any third party to use, copy or install any of the Adstream Products,

save as expressly permitted under the Products Terms.

(d) Customer must not create, alter, compile, store, transmit or publish any material using the Adstream Products that:

(i) contains a computer virus of any kind;

(ii) is an infringement of any intellectual property rights (including copyright) of any third party;

(iii) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(iv) is in breach of any trade practices or other consumer protection legislation; or

(v) is otherwise an infringement of law or any rights of any third party or facilitates any illegal activity,

and Adstream reserves the right, without liability to Customer, to revoke the licence granted in clause 2.2 of these General Terms or disable Customer’s access to any Adstream Product where, in Adstream’s reasonable opinion, Customer has breached the provisions of this clause 2.3.

(e) Customer warrants that it will not be involved (whether directly or indirectly) in any act, omission or thing that will or may decrease the value of the Adstream Products or the intellectual property contained in the Adstream Products.

2.4 Customer’s obligations

(a) Access to Adstream Products requires the use of a secure login.  Customer is solely responsible for maintaining the confidentiality of all passwords issued.  Adstream must be notified immediately of any unauthorised use of any password.  If any password is provided to a third party by the Customer or accessed by a third party via the Customer, Adstream shall have no responsibility or liability for any loss or damage that may result from any use of such password.

(b) The Customer shall be responsible for ensuring that the materials are supplied in the appropriate format and with sufficient supporting information to enable performance by Adstream of the Services

(c)  All materials sent to Adstream must be in accordance to the specifications set out in the “Adstream White Pages on Digital Delivery’, which are subject to changes to improve the service from time to time

2.5 Ownership

Adstream retains ownership of all right, title and interest (including intellectual property rights, such as copyright) in the Adstream Products (including any documentation provided by Adstream in relation to the Adstream Products) and the Adstream Site.

3 Credit and Payment

3.1 Invoices and monthly statements

Adstream will provide to Customer an invoice for each Adstream Product or service provided and a monthly statement that sets out all current and overdue invoices (“Invoices Statement“).

3.2 Payment

Customer will pay Adstream the Fees within 30 days from the date of the Invoices Statement or, where alternate payment terms are specified in the Customer Contract, Customer will pay the Fees in accordance with those terms.

3.3 Overdue amounts

(a) If Customer has not paid the Fees within 30 days from the date of the Invoices Statement or, where alternate payment terms are specified in the Agreement Details, in accordance with such terms, Adstream may charge Customer interest on the overdue amounts at the rate of 3% above the then published LIBOR rate until the date the overdue amount is paid in full.

(b) Customer agrees to reimburse Adstream for any additional expenses incurred by Adstream in collecting any outstanding Fees, including any fees charged by an external debt collecting agency.

(c) If Customer has an overdue account, Adstream may, in its absolute discretion, withdraw or suspend Customers access to the Adstream Product(s).

(d) Subject to clause 3.3(e) of these General Terms, Customer may in good faith dispute any Fees on the basis that there is a manifest error in the determination of the amount specified in the relevant Adstream invoice, or if it considers, on reasonable grounds, that Adstream has not provided the items or services for which the amount is claimed, provided that Customer:

(i) promptly notifies Adstream of the amount disputed;

(ii) promptly provides Adstream with all information reasonably necessary to explain the basis for the dispute; and

(iii) pays all undisputed Fees in accordance with this clause 3.3.

(e) Customer may not dispute any Fees appearing on an invoice provided by Adstream after the expiry of the period of 30 days from the date of the Invoices Statement on which details of the relevant invoice appear.

4 Responsibility for materials

(a) Responsibility for the materials will pass to Adstream:

(i) Upon submission of the materials by the Client to Adstream digitally; or

(ii) Upon the receipt of the materials by Adstream in respect of physical delivery to Adstream’s address

(b) Responsibility for the materials shall pass from Adstream when delivered to the Media Owner, whether via digital or physical means (save in the case of delivery to a broadcaster mandated hub where delivery responsibility is accepted by the hub itself).

5 Warranties

5.1 Adstream Warranties

Adstream warrants to the Customer that:

(a) it has the capacity and authority to enter into this Agreement and perform its obligations hereunder;

(b) it has the necessary access to intellectual property, know-how, expertise and experience to perform its obligations hereunder;

(c) the Adstream Products comply with all legal and regulatory requirements applicable under English Law or comparable legislation in any country;

5.2 Customer Warranties

Customer warrants to Adstream that it has the capacity and authority to enter into this Agreement and perform its obligations hereunder.

6 Acknowledgements, liability and indemnities

6.1 Acknowledgements

The Customer acknowledges that it has the capacity and authority to enter into this Agreement and perform its obligations hereunder.

(a) content held in the Adstream Product may be accessed by the authorised Media Owner to be “taken” rather than delivered. Where Media Owners elect to “take” content, Adstream cannot be held and is not responsible to the Customer or the Media Owner for any failure on the part of such Media Owner to “take” the content and the Customer shall indemnify Adstream against any costs, claims, damages or expenses incurred by or awarded against Adstream as a result of any claim made against Adstream by a third party following or arising out of any such failure.

(b) Save as set out in clause 4 Adstream shall not be liable for any failure by the Customer to upload material onto the platform correctly or which has been uploaded and which fails AutoQC or ManualQC;

(c)  complex software can never be completely free from defects, errors and bugs and that (subject to any specific provision to the contrary) Adstream gives no warranty or representation that the Adstream Products will be free from defects, errors and bugs;

(d) software can never be made entirely free from security vulnerabilities and that (subject to any specific provision to the contrary) Adstream gives no warranty or representation that the Adstream Products will be entirely secure;

(e) the Adstream Products are only compatible with that software and those systems specified by Adstream from time to time and that Adstream does not warrant or represent that the Adstream Products will be compatible with any other software or systems;

(f) the Internet is not a completely secure medium of communication;

(g) the speed and upload capability of the Adstream Products available online is determined by the quality of the Internet connection from where such Adstream Products are accessed;

(h) use of Adstream Products and the availability of the Adstream Site may involve reliance on third party data carriers over which Adstream has no control; and

(i) except as expressly provided in this Agreement and to the extent permitted by law, Adstream does not make any warranties of any kind, whether express or implied in relation to goods or services supplied by Adstream in accordance with this Agreement (including the Adstream Products).

6.2 Limitation of liability

If any statute implies any term into Customer’s use of, or any arrangement arising out of Customer’s use of the Adstream Products and that statute prohibits exclusion of that term, then that term is included.  However, if and to the extent permitted by the statute, Adstream’s liability for any breach of such term is limited to the re-supply of the Adstream Products.

6.3 Exclusion of indirect loss

Adstream are not liable for any indirect or consequential loss or damage, lost profits, lost revenue, lost data or business interruption suffered or incurred by Customer or any other person arising out of or in connection with the provision of the Adstream Products, whether arising from breach of contract or in tort.

6.4 Exclusion of specific liability

Adstream are not liable to Customer or any other person for any loss or damage arising out of or in connection with:

(a) any person gaining unauthorised access to the Adstream Site or any user zone;

(b) any malfunction, bugs or viruses in customer equipment, software or links as a result of using Adstream Products;

(c) use or disclosure of any data obtained by any third party as a result of the unauthorised access to the Adstream Site or having intercepted any data as it passes between Customer, Adstream or any third party;

(d) defects in or the unsuitability of any materials supplied by Customer or a third party or by Adstream’s adherence to specific instructions given by Customer;

(e) any data sent via the Internet, via or to Adstream, or via any dedicated link made available by Adstream to Customer or to any third party;

(f) the unavailability of the Adstream Site;

(g) Customer’s inability to access the Adstream Site or to use the Adstream Site or the Adstream Products; or

(h) any delay in the receipt of any data transmitted by Adstream or using any of the Adstream Products (save where such delay is the result of Adstream’s own negligence).

6.5 Liability cap

Subject to clause 6.6 of these General Terms, Adstream’s liability for any loss or damage (whether arising from breach of contract or in tort) which is not excluded or limited by clauses 6.2, 6.3 or 6.4 of these General Terms is limited in aggregate to the lower of the amount of Fees paid by Customer and US$500,000

6.6 Liability for non-transmission

Subject to clause 6.1(a), if Customer uses the Adstream Products in the transmission of any material and the material is not transmitted, Adstream will (at Customer’s option):

(a) arrange retransmission of the material; or

(b) refund any licence or service fee paid to Adstream in respect of that particular transmission.

If Customer uses the Adstream Products in the transmission of any material and the material is not transmitted and Customer incurs direct costs with a Broadcaster which it is unable to recover following that non-transmission, Adstream shall reimburse Customer in an amount equal to such direct costs.

Customer agrees this is Adstream’s entire liability to Customer in such circumstances.

6.7 Indemnity by Customer

Customer must indemnify Adstream (“indemnified party“) against all claims, liability, loss and damage of any kind whatsoever suffered or incurred by an indemnified party arising out of or in connection with Customer’s act or omission or any breach by Customer of this Agreement.  Customer must provide the indemnified party with prompt notice of any third party claim or threatened third party claim of which Customer has knowledge.  Customer must not enter into any settlement or compromise of any third party claim without the indemnified party’s prior written consent.

7 Confidential Information

7.1 Confidentiality obligations

Each party (“Recipient“) who receives Confidential Information from the other party (“Discloser“) must not:

(a) use Confidential Information for any purpose other than performing its obligations under this Agreement;

(b) disclose to any person any Confidential Information except as permitted by this Agreement; or

(c) make or assist any person to make any use of Confidential Information other than in accordance with this Agreement.

7.2 Permitted disclosures

Either party may disclose Confidential Information:

(a) to a representative of the Recipient who needs to know that information for the purposes of this Agreement, provided that such disclosure is under conditions of confidentiality consistent with this clause 7;

(b) if required to do so by any competent court or governmental or regulatory body; or

(c) in respect of which the Discloser has given its written consent to disclosure or use.

7.3 Notification of disclosure

The Recipient must immediately notify the Discloser of all information which comes to its attention regarding any actual or potential disclosure or use of Confidential Information of the Discloser other than in accordance with this clause 7.

7.4 Return of Confidential Information

On the earlier of:

(a) a demand by the Discloser; or

(b) the expiry or termination of this Agreement,

the Recipient must deliver to the Discloser (or with the Discloser’s prior consent, destroy or erase) any Confidential Information of the Discloser in the possession, power or control of the Recipient or any of its representatives.

8 Data Protection

8.1 Customer’s compliance with data protection laws

The parties agree that the Customer is a Controller and that Adstream is a Processor for the purposes of processing Protected Data pursuant to this Agreement. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it Adstream in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.

8.2 Adstream’s compliance with data protection laws

Adstream shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.

8.3 Indemnity

The Customer shall indemnify and keep indemnified Adstream against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this Agreement.

8.4 Instructions

(a) Adstream shall only process (and shall ensure Adstream personnel only process) the Protected Data in accordance with the lawful written instructions of Customer except where otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).

(b) Without prejudice to clause 8.1 if Adstream believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Adstream Products until the parties have agreed appropriate amended instructions which are not infringing.

8.5 Security

In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, Adstream shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(a) to 32(d) (inclusive) of the GDPR

8.6 Sub-processing and personnel

(a) Adstream shall:

(i) not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the prior specific written authorisation of the Customer;

(ii) prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Schedule that is enforceable by Adstream and ensure each such Sub-Processor complies with all such obligations;

(iii) remain fully liable to the Customer under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and

(iv) ensure that all persons authorised by Adstream or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

8.7 Assistance

(a) Adstream shall (at the Customer’s cost) assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Adstream.

(b) Adstream shall (at the Customer’s cost) taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.

8.8 International transfers

Adstream shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom or to any International Organisation without the prior consent of the Customer under a Customer Contract.

8.9 Audits and processing

Adstream shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Adstream’s compliance with the obligations placed on it under this Agreement and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 8).

8.10 Breach

Adstream shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.

8.11 Deletion/return and survival

On the end of the provision of the Adstream Products relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, Adstream shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Adstream to store such Protected Data. This Clause 8 shall survive termination or expiry of this Agreement indefinitely in the case of clauses 8.3 and 8.11 and until 12 months following the earlier of the termination or expiry of this Agreement in the case of all other paragraphs and provisions of this clause 8.

9 Delay, Suspension and Cancellation

9.1 Delay

The time for performance or delivery of the Adstream Products or any separately quoted products or services, in every case, is dependent on the prompt receipt of all necessary information, final instructions or approvals from Customer.  Alteration by Customer of Customer’s requirements may result in a delay in performance or delivery.

9.2 Suspension

(a) Adstream may at any time withhold the provision of, or Customer’s use of, any of the Adstream Products or any separately quoted products or services or delivery of any goods, pending payment of any sum due from Customer under any agreement between Customer and Adstream or any invoice rendered by Adstream to Customer.

(b) Adstream may at any time without notice to Customer and without liability to Customer or any third party, suspend access to any of the Adstream Products, in the event that:
part

(i) Adstream needs to carry out maintenance, updates and/or corrections to any of the Adstream Products or the Adstream Site;

(ii) Adstream is obliged to do so to comply with an order, instruction or request of any government or other competent administrative authority; or

(iii) Adstream cannot provide any of the Adstream Products due to any cause beyond Adstream’s control.

(c) Adstream has no liability to Customer or any third party arising out of, or in connection with, Adstream’s exercise of its rights under clause 9.2(a) or 9.2(b) of these General Terms.

10 Term and Termination

10.1 Term

This Agreement commences on the date of execution by the last party to execute it and continues in force until such time as the expiry of the Term, unless earlier terminated in accordance with this clause 10.

10.2 Termination for breach

Either party may terminate this Agreement in whole or in part with immediate effect if:

(a) the other party is in breach of any provision of this Agreement; and

(b) either:

(i) the breach cannot be remedied; or

(ii) the other party fails to remedy the breach within 14 days after notice is given to the other party to do so.

10.3 Termination for insolvency

Either party may terminate this Agreement with immediate effect if:

(a) an application is presented against the other party, an order made or a resolution passed, for the other party’s winding up;

(b) an administrator, trustee, liquidator, provisional liquidator, receiver, receiver and manager or other insolvency administrator is appointed over all or any part of the other party’s assets;

(c) the other party becomes insolvent, or a party believes, on reasonable grounds that the other party is, or may become, insolvent;

(d) the other party becomes bankrupt, or a party believes, on reasonable grounds, that the other party is, or may become, unable to pay the other party’s debts as and when they fall due;

(e) the other party ceases to carry on the other party’s business or ceases to pay its debts or suspends payment generally; or

(f) the other party enters into, or propose to enter into, any scheme, composition or arrangement with the other party’s creditors generally or with any class of the other party’s creditors or a meeting is convened for any such purpose.

10.4 Consequences of termination

(a) Termination of this Agreement will result in immediate termination of Customer’s access to the Adstream Products and upon such termination Customer must immediately cease its use of the Adstream Products.

(b) On termination of this Agreement for any reason:

(i) Customer must promptly return to Adstream all of Adstream’s property that is in Customer’s possession or control; and

(ii) Adstream will, provided that Customer has complied with all of Customer’s obligations in this Agreement (including payment obligations) promptly return all materials and files owned by Customer in Adstream’s possession or control, in a format as may be agreed between the parties, and Customer will be responsible for Adstream’s reasonable costs in doing so.

10.5 Survival

Clauses 6 and 7 of these General Terms, together with any term of the Product Terms which is expressed to, or is by its nature intended to, survive the termination or expiry of this Agreement, survive termination or expiry of this Agreement.

11 Miscellaneous

11.1 Assignment

(a) Customer may not assign or otherwise deal with all or any of Customer’s rights or obligations under this Agreement without Adstream’s prior written consent.

(b) Adstream may assign or otherwise deal with all or any of Adstream’s rights and obligations under this Agreement on giving notice to Customer.

11.2 Variation and Waiver

A provision of this Agreement or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.

11.3 Notices

(a) A notice, approval, consent or other communication in connection with this Agreement must be in writing and hand delivered, sent by prepaid mail or email to the addressee set out in the Customer Contract.

(b) A notice or other communication takes effect when received or otherwise:

(i) in the case of a posted letter – from the third day after posting; and

(ii) in the case of an email – from the production of a read receipt from the email address to which the email was sent.

11.4 Severance

If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction.  The remainder of this Agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.  This clause 11.4 has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.

11.5 Entire agreement

This Agreement set out the entire agreement between the parties concerning all matters dealt with by it, and supersedes any prior agreement between the parties in regard to those matters.

11.6 Causes beyond Adstream’s reasonable control

If Adstream is delayed, interrupted in, or prevented from, performing its obligations under this Agreement by any cause beyond its control, Adstream will not be in breach of this Agreement and the time for performance of its obligations will be extended by a period of time equal to the duration of the cause of the delay, interruption or prevention.

11.7 Governing law and Jurisdiction

This Agreement is governed by the law in force in England and Wales.

Part B:  Broadcast Products Terms

12 General

By installing, copying or using the Broadcast Products, Customer agrees to be bound by the terms of this Part C.

13 Use of Broadcast Products

In the case of the transportation of any hard copy of audio visual material or other goods which Adstream supply, any packaging supplied by Adstream will, unless otherwise expressly agreed, be intended to provide adequate protection throughout normal conditions of delivery of usual duration. Notwithstanding clause 6 of the General Terms, Adstream is under no liability in respect of any loss or damage, including indirect or consequential loss, loss of profits, loss of revenue, or loss of business opportunity or otherwise arising as a result of damage to or the loss or destruction of such goods.

14 Data and audio visual material

Customer is solely responsible for the content of all data which Customer (whether directly or for any third party) places on the Adstream Site and/or which Customer transmits to Adstream or any third party via Adstream or in connection with Customer’s use of Broadcast Products.

15 Quality Control

(a) Upon receipt of material from a Customer Adstream shall carry out either:

(i) an automated ingest and Quality Control (AutoQC) tests to accepted industry standards to ensure that such material is in an acceptable format for the relevant Media Owner. Due to the inherent vulnerabilities of complex software, Adstream does not warrant that this process will be error free, and in the event of a fault occasioning a missed delivery deadline Adstream’s liability will be limited to the refund Adstream’s applicable fees; or

(ii) at the option of the Customer, carry out manual ingest and Quality Control (ManualQC) tests to accepted industry standards. In the event that an error or fault is detected by this process, Adstream will promptly liaise and work with Customer to rectify any issues. In the event Customer elects for ManualQC tests (and provided that Customer has complied with all other relevant terms in this Agreement) Adstream will deliver the material within agreed timeframes and other published service levels from time to time failing which (in addition to the liability in 15(a)(i) above) Adstream shall be liable for direct losses suffered by Customer (including missed airtime).

(b) Following satisfactory completion of the QC test set out in clause 15(a) Adstream shall deliver to the service level as per our standard and express deliveries published times, per that particular destination. Note that certain broadcasters will not accept copy after certain times or at the weekend.

Part C:  Print Products Terms

16 General

(a) By installing, copying or using the Print Products, Customer agrees to be bound by the terms of this Part D (the Print Products Terms).

(b) All charges incurred by Customer in connection with the Print Products, or otherwise in connection with the Licence, will be incurred as principal and not agent.

17 Definitions

In these Print Products Terms and in any instrument created pursuant to or in accordance with them, unless the context otherwise indicates or requires:

“Adobe Technology” has the meaning set out in clause 26.1 of this Part D;

“Licence” has the meaning set out in clause 19(a) of this Part D;

“Location” has the meaning set out in clause 19(b) of this Part D;

“Software” means the software products of Adstream, including QuickPrint Pro, QP Web, PageStore, PageStore Online, Adsend, XMG, AdGate, IQChaser, IQPro, Media Portal; and

“Specifications” means the mechanical specifications for the Software set out in clause 24 of this Part D.

18 Licence

(a) Adstream grants Customer a non-transferable, non-exclusive licence to use the Print Products as an end-user in accordance with the Specifications and these Print Products Terms (the “Licence“).

(b) Save in respect of the Publishers Data, the provision and use of which is governed by clause 25 of this Part C, the Licence is limited to a maximum of one (1) computer at the premises at which the Print Products are installed (the “Location”). If the Print Products are subsequently installed on additional computers and/or at any place other than the Location, Customer will require a new licence and Customer agrees to pay all charges under the new licence in addition to the charges payable under this Licence.

19 Ownership

20 Indemnities

(a) Adstream is not responsible for the content of any material created, altered, compiled, transmitted or published using the Print Products and Customer indemnifies Adstream against any and all liabilities, claims, losses or expenses arising by reason of such material being:

(i) an infringement of any intellectual property rights (including copyright) of any third party;

(ii) defamatory;

(iii) in breach of any trade practices or other consumer protection legislation; or

(iv) otherwise an infringement of law or any rights of any third party; or otherwise arising in respect of such material.

(b) Without limiting the generality of the prohibition on modifications under clause 2.3(c)(ii) of the General Terms, Customer indemnifies Adstream against any liabilities, claims, losses or expenses arising by reason of such modifications being:

(i) an infringement of any intellectual property rights (including copyright) of any third party; or

(ii) otherwise an infringement of law or any rights of any third party.

(a) Adstream retains ownership of all right, title and interest (including copyright) in all of the Print Products, other than the Adobe Technology.

(b) Customer must not, save as expressly permitted in these Print Product Terms:

(i) make a copy of any Print Product other than for the purposes of installation on a computer in accordance with clause 19(b) of this Part C;

(ii) install any Print Product on computers beyond the maximum number prescribed by clause 19(b) of this Part C;

(iii) install any product on computers at any place other than the Location; or

(iv) transfer or resell the Licence or any Print Product to any third party, or assign any of your rights, benefits or obligations under the Licence or these Print Products Terms to any third party.

(c) Customer also undertakes and acknowledges that:

(i) Adstream retains ownership of all right, title and interest in all copies of the Print Products and the media in or on which such copies are contained, other than the Adobe Technology;

(ii) it will mark all copies of the Print Products and the media in or on which the copies are contained with a notice of Adstream’s ownership of the Print Product and the media, the confidentiality of the Print Product and such other information as Adstream reasonably requires, other than the Adobe Technology;

(iii) it will maintain records of all copies of the Print Products made by it and the place at which those copies are situated, and supply such records to Adstream upon reasonable notice;

(iv) it will be responsible for ensuring that the Print Products are used in accordance with the Specifications;

(v) it will be responsible for protecting the Print Products at all times from unauthorised access, use or damage;

(vi) it will immediately notify Adstream on becoming aware of any unauthorised use or copying of the whole or any part of any Print Product; and

(vii) it will not be involved (whether directly or indirectly) in any act, omission or thing that will or may decrease the value of the Print Products or the intellectual property in the Print Products.

21 Liability of Adstream

(a) Customer acknowledges the technical difficulty of engineering failsafe graphics transmission software, and Customer agrees that Adstream can give no, and that Adstream does not give any:

(i) guarantee that the Print Products will work as desired on every occasion; or

(ii) warranty regarding: A) suitability of the Print Products for the uses to which Customer puts them; B) suitability or compatibility of any material altered by the Print Products with the processes or the systems of publishers; C) compatibility of the Print Products with any of the systems in conjunction with which Customer uses them; or D) accuracy or completeness of any database or other information included in the Print Products or accessible through using the Print Products.

(b) Customer warrants that it has not relied on any representation made by Adstream in relation to the Print Products other than as expressly set out in these Print Products Terms.

22 Termination

(a) Without prejudice to clause 10 of the General Terms, the Licence may be terminated by either party (for any reason and without cause) on one (1) month’s notice to the other party.

(b) On termination of the Licence, Customer will:

(i) immediately destroy all copies of the Adstream Products held by Customer or return them to Adstream (at Adstream’s option), and remove the Print Products from each and every computer or other machine on which they, or a copy of them, are installed; and

(ii) if requested by Adstream, provide written certification that this has been done.

(c) Clauses 20, 21, 22, 23(b), 24 and 26 of this Part C will survive termination of the Licence and will survive termination of this Agreement.

23 Mechanical Specifications

Without limiting the generality of the foregoing provisions of these Print Products Terms, Customer acknowledges that Adstream relies on the mechanical specifications, layout, format and other information provided to it by publishers and cannot and does not give any warranty as to the accuracy or completeness of that information.  Further, if incorrect or incomplete information results in any type of failure or improper performance of the Print Products or of any particular use of the Print Products, Adstream will not be liable to compensate for any loss caused.

24 Provision of Publishers Data

(a) Adstream will, if agreed with Customer, make available to Customer the Publishers Data, the schema for which will be as determined by Adstream from time to time.  If such Publishers Data is provided by Adstream, in addition to all other Print Products Terms, the provisions of this clause 25 will apply.

(b) Adstream authorises Customer to use the Publishers Data subject to and in accordance with the terms of this clause 25. Save as set out in this clause 25, Customer acquires no right, title or interest in the Publishers Data, ownership of which remains with Adstream or its third party licensors of Publishers Data as applicable.

(c) Adstream grants to Customer the right to:

(i) download, print, use and reproduce the Publishers Data for the sole purpose of creating advertising and associated pre-press material, and permitting Customer’s advertising clients to do so, and for its internal business purposes; and

(ii) make the Publishers Data available or accessible to Customer’s offices: A) through Customer uploading the Publishers Data on to Customer’s Wide Area Network; or B) through the visual display of the Publishers Data on Customer’s website or intranet only through a secure login process (for example, username and password).

(d) Customer must ensure that its clients do not download or print any Publishers Data provided to Customer under this Agreement and made available by Customer to its clients.

(e) All advertising and associated pre-press material produced by Customer and/or its advertising clients using the Publishers Data must be delivered to printers and publishers by Customer or its advertising clients whether directly or indirectly via any of the Print Products and not otherwise by any means including email attachments, File Transfer Protocol or any other transferable medium.

(f) Adstream will:

(i)  provide the Publishers Data to Customer in accordance with this Agreement; and

(ii) use its reasonable endeavors to ensure that the Publishers Data is complete and correct.

(g) On termination of the Licence:

(i) Adstream will cease providing the Publishers Data to Customer; and

(ii) Customer will: A) destroy all copies of the Publishers Data held by Customer or return them to Adstream (at Adstream’s option); and B) procure that any of Customer’s clients to which Publishers Data has been provided in accordance with this clause 25 destroy all copies of Publishers Data held by them, and if requested by Adstream, provide written certification that this has been done.

25 Adobe Technology

25.1 Definitions

For the purposes of this Part C, “Adobe Technology” means “Adobe” branded software and technology, related documentation and any upgrades, modified versions, updates, additions and copies thereof.

25.2 Acknowledgements

(a) Customer acknowledges that Adstream may, at its option, integrate and distribute Adobe Technology in and with the Print Products in accordance with the terms and conditions set out in this Part C.

(b) If any Adobe Technology is integrated in, or distributed with, the Print Products, Customer acknowledges and agrees that it will have a non-exclusive licence to use the Adobe Technology subject to the terms and conditions set out in this Part C.  All rights to use the Adobe Technology are granted on the condition that such rights are forfeited if Customer fails to comply with this Part C.

25.3 Intellectual Property Rights

(a) The Adobe Technology is owned by Adobe Systems Incorporated (“Adobe“), and the structure, organisation and code of the Adobe Technology are the valuable trade secrets of Adobe. The Adobe Technology is protected by United States copyright law and international treaty provisions.  Customer may not copy the Adobe Technology, except as expressly permitted by this Part C. Any copies that Customer is permitted to make pursuant to this Part C must contain the same copyright and other proprietary notices that appear on or in the Adobe Technology.  Customer agrees not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Adobe Technology.  Except as stated above, this clause 26 does not grant Customer any intellectual property rights in the Adobe Technology.

(b) Customer may make one backup copy of the Adobe Technology, provided the backup copy is not installed or used on any computer.

25.4 Font License

If the Adobe Technology includes font software, Customer may embed the font software, or outlines of the font software, into its electronic documents to the extent that the font vendor copyright owner allows for such embedding.  The fonts contained in the Adobe Technology may contain both Adobe and non-Adobe owned fonts.  Customer may fully embed any font owned by Adobe.

25.5 Warranty

To the extent permitted by law, neither Adstream nor Adobe gives any warranty, express or implied, as to merchantability, fitness for any particular purpose or non-infringement of the Adobe Technology, or the performance results Customer obtains by using the Adobe Technology.  Neither Adstream nor Adobe will be liable to Customer for any consequential, incidental or special damages, including any lost profits or lost savings, even if they have been advised of the possibility of such damages, or of any claim by any third party.

25.6 Export Rules

Customer agrees that the Adobe Technology will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Law”).  In addition, if the Adobe Technology is identified as an export controlled item under the Export Laws, Customer represents and warrants that it is not a citizen of, or otherwise located within, an embargoed nation and that it is not otherwise prohibited under the Export Laws from receiving the Adobe Technology.

25.7 General Provisions

If any part of this Part C is found to be void and unenforceable, it will not affect the validity of the balance of this Part C, which will remain valid and enforceable according to its terms.  This Part C will not prejudice the statutory rights of any party dealing as a consumer.

25.8 Trademark

“Adobe” and “Adobe PDF Library” are registered trademarks of Adobe in the United States and/or in other countries.

Part D: Platform Product Terms

26 General

By installing, copying or using the Platform Product, Customer agrees to be bound by the terms of this Part D.

27 Definitions

“Assets” means any and all digital files of the Customer which are uploaded and stored on the Platform Product including copies of production master files;

“Downtime” means if the domain is unavailable for any period of time provided that any unavailability is directly attributable to the Supplier systems and not as a result of other parties beyond the control of Supplier;

“Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month;

“Normal Business Hours” are 8am till 6pm, and “National Public Holidays” are the officially marked public holidays in the country and time zone of the Supplier’s regional hub supporting the service and/or the local Adstream office, where notified to the Customer by Adstream as a supporting local office;

“Platform Product” means the integrated digital asset management and workflow platform for storing, managing and tracking of digital assets as further set out in clause [3];

“Scheduled Maintenance” means planned maintenance and upgrades;

28 Platform Product Specifications

(a) The Platform Product is a cloud based digital asset management and workflow tool for managing advertising campaigns including storing, managing and tracking work in progress and Assets.

(b) The Platform Product includes the retention and storage of Assets which are copies of the production master files but shall exclude the retention and storage of the original production master files of Assets for which Customer shall make its own arrangements. In the event of loss or damage to any Asset, without limiting Adstream’s obligation to undertake back-ups of the Assets in accordance with its backup policies, Adstream shall, at no cost to Customer:

(i) reinstate the lost or damaged Asset from the last back up copy; or

(ii) if it is unable to reinstate the lost or damaged Asset obtain from Customer and upload the original production master file onto the Platform Product.

29 Platform Product Availability

(a) Adstream will target the Monthly Uptime Percentage to be at least 99.5% in any calendar month provided that any Scheduled Maintenance (as set out in paragraph 5 below) carried out outside of Normal Business Hours is disregarded for the purposes of such calculation.

(b) Supplier shall use reasonable endeavours to carry out Scheduled Maintenance outside of Normal Business Hours.

30 Platform Product Support Service Levels

30.1 Support Services

Adstream will provide the following support and maintenance services to Customer:

(a) Level 1 Support: User Support

(i) provide technical FAQs on how to use the various applications and functionalities of the Platform Product

(ii) provide user manuals and other relevant documentation; and

(iii) respond to queries, submitted in the appropriate manner, from Customer’s employees relating to the use of the Platform Product.

(b) Level 2 Support: Application Support

(i) provide technical support, servicing, maintenance and (where necessary) repair of the Platform Product;

(ii) upon request by Customer, provide diagnosis of defects or other faults in the Platform Product and the rectification of such defects or other faults by the issue of fixes in respect of it;

(c) Level 3 Support: Technical Support

(i) implement from time to time any bug fixes which are available in respect of the Platform Product;

(ii) monitor the server hosting arrangement under which the Platform Product is made available to Customer and taking appropriate action or making appropriate recommendations so as to ensure that the functionality of the Platform Product is maintained or restored.

30.2 Customer Service Availability

(i) Level 1 Support is available Normal Business Hours for the local office timezone where the nearest Adstream’s office is located

(ii) Level 2 Customer Support is provided via the Adstream help centre 24 hours x 7 days except National Public Holidays

(iii) Level 3 Technical Support is provided by the Adstream local office and/or central technical support teams 08:00 – 18:00 Mon-Fri GMT

(iv) Ticket submission is via the Adstream help centre, accessible via the AP interface

(v) In the event that the AP interface is unavailable, support tickets can be logged by emailing support@adstream.com.

(vi) The help centre provides 24 x 7 x 365 ticket status visibility & access to global knowledge base, including generic video and print tutorials.