Terms & Conditions
Definitions | Adstream Products | Credit and Payment | Responsibility for materials | Warranties | Acknowledgements | Confidential Information | Data Protection | Delay, Suspension and Cancellation | Term and Termination | Miscellaneous | Broadcast Products Terms | Print Products Terms | Platform Product Terms | One Social Delivery |Navigation:
Part A: General Terms
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 B 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.
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
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“).
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.
3.4: Advance Payments: Cancellations and Refunds
Customers shall have 30 days from the date of creating an Order to supply the advertisement in the correct format as required by Clauses 2.4 (b) and (c) above, and if not received within that period, the Order will be deemed cancelled (‘the cancellation date’). A Customer who has prepaid for an Order using a Credit Card or other form of advanced payment shall have a further period of 30 days from the cancellation date to request a refund of paid moneys following which all obligations shall terminate.
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).
5.1 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
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.
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.
(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.
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.
(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).
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
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.
(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:
(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
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
(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.
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.
(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.
(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.
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.
Broadcast Products Terms
By installing, copying or using the Broadcast Products, Customer agrees to be bound by the terms of this Part B.
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.
Print Products Terms
(a) By installing, copying or using the Print Products, Customer agrees to be bound by the terms of this Part C (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.
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 C;
“Licence” has the meaning set out in clause 19(a) of this Part C;
“Location” has the meaning set out in clause 19(b) of this Part C;
“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 C.
(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.
(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.
(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;
(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.
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.
(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 19, 20, 22(b), 23 and 25 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
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.
(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.
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.
“Adobe” and “Adobe PDF Library” are registered trademarks of Adobe in the United States and/or in other countries.
Platform Products Terms
By installing, copying or using the Platform Product, Customer agrees to be bound by the terms of this Part D.
“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 ;
“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 firstname.lastname@example.org.
(vi) The help centre provides 24 x 7 x 365 ticket status visibility & access to global knowledge base, including generic video and print tutorials.
One Social Delivery
- In this Agreement the following expressions have the meaning set opposite:
|Adstream Materials||means any input materials provided by Adstream in providing the Services and One Social Platform including, but not limited to, any Adstream Confidential Information, Intellectual Property, data and other documentation.|
|Agreed Purpose||to arrange for and process log in details for the One Social Platform so that Users can enter the One Social Platform and make use of the Services.|
|Asset||any and all posts and digital files of the Customer which are uploaded and stored on the One Social Platform.|
|Billing Cycle||the period of time between one Billing Date and the next.|
|Billing Date||the date on which the Charges are payable by the Customer as shown on the Customer Account Page.|
|Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures as set out in the Data Protection Legislation in force at the time.|
|Customer||the client who’s details are submitted on the Adstream Site.|
|Customer Data||the data and Assets inputted by the Customer, Users, or Adstream on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the One Social Platform.|
|Customer Account Page||the page on the Adstream Site setting out Customer specific information including the Charges, Billing Cycle, Billing Date and Package information.|
|Charges||the amount payable to Adstream in consideration for use of the One Social Platform and Services as set out on the Customer Account Page to be increased from time to time in accordance with clause 4 and clause 5.|
|such information as either party may from time to time provide to the other party (in whatever form including orally, written, in electronic, tape, disk, physical or visual form) relating to the Agreement and all know-how, trade secrets, tactical, scientific, statistical, financial, commercial or technical information of any kind disclosed by either party to the other whether in existence prior to the parties entering into the Agreement or which subsequently comes into existence, including any copies, reproductions, duplicates or notes in any form whatsoever.|
|Data Discloser||a Party that that discloses Shared Personal Data to the other Party.|
|Data Protection Legislation||applicable data protection legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).|
|End User Agreement||the contract between Adstream and the Customer’s employees, agents and independent contractors authorised to use the One Social Platform setting out (among other things) the terms on which the One Social Platform must be used.|
|Force Majeure Event||means any event that is outside of Adstream’s control, including but not limited to:
– any act of government, war;
– any non-performance of a subcontractor or third party;
– failure of or disruption to Amazon Web Services;
– the failure of a sub-contractor or sub-processor;
– industrial dispute, strikes (of its own or other employees);
– breakdown of machinery or equipment,
– accident, fire; or
– by any other cause beyond the parties’ control.
|Intellectual Property Rights||all copyright and related rights, patents, rights to inventions, utility models, trademarks, 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.|
|Licence||has the meaning given to it in clause 9.2.|
|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 Adstream’s regional hub supporting the service and/or the local Adstream office, where notified to the Customer by Adstream as a supporting local office.|
|Package||the package or packages chosen by the Customer as set out in the Customer Account Page.|
|Permitted Recipient||the parties to this Agreement, the employees of each Party, any third parties engaged to perform obligations in connection with this Agreement.|
|One Social Platform||the integrated digital asset management and workflow platform for storing, managing and tracking of digital assets known as “One Social”.|
|Services||the services provided by Adstream as set out in these Conditions in relation to the Platform including the Customer’s use of the One Social Platform .|
|Shared Personal Data||the personal data to be shared between the parties under clause 14.1 of this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
a) Email addresses;
b) Names; and
c) Username and further log in details.
|Social Media Site||Facebook, Twitter, Instagram, YouTube|
|Subscription Package||the Customer will be charged on a monthly or yearly basis depending on the number of Users of the One Social Platform and posts those Users are tending to make. Subscription fees for each of the three models can be found here [LINK] as updated by Adstream from time to time|
|Term||has the meaning given to it in clause 9.|
|Transaction Package||the Customer will be charged per upload of an Asset to a Social Media Site in accordance with the standard Adstream transaction fees which can be found here [LINK] as updated by Adstream from time to time.|
|Users||those employees, agents and independent contractors of the Customer who are authorised by the Customer and Adstream to use the Services and the One Social Platform, as further described in clause 3.|
|Working Day||a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.|
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
- A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
- A reference to writing or written includes email.
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- References to paragraphs are to paragraphs of a Schedule and references to clauses are references to clauses in these Conditions.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Overriding Provisions
- In the event of and only to the extent of any conflict or ambiguity between the clauses of these Conditions and any document referred to in the clauses of these Conditions, the conflict shall be resolved in accordance with the following order of precedence:
- the clauses of these Conditions;
- any other document referred to in the clauses of these Conditions.
- Access to the Services
- The Customer may start using the Services as soon as Adstream gives the Customer access to them. The Customer can continue to use the Services and One Social Platform for the Term unless the Customer fails to make payments of any Adstream Charges.
- The Customer must not cause or permit any unauthorised third party access to or use of the One Social Platform or the Adstream Site and must immediately notify Adstream on becoming aware of any unauthorised use or copying of Adstream Intellectual Property Rights.
- The Customer shall ensure that each of its Users adhere to the terms of the End User Agreement and shall defend, indemnify and hold harmless Adstream against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
- the Customer’s breach of clause 3.2;
- a User’s use of the Services and/or One Social Platform; and
- a User’s breach of the End User Agreement.
- Customer must not:
- make a copy of any of the Adstream Materials;
- modify any of the Adstream Materials or combine or incorporate any of the Adstream Intellectual Property Rights 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);
- reverse engineer any of the Adstream Materials or separate any of the Adstream Materials into component parts; or
- cause or permit any third party to use, copy or install any of the Adstream Materials, save as expressly permitted under the Products Terms.
- Other than expressly stated otherwise in these Conditions, the Customer acknowledges that it is the Customer’s sole responsibility to determine that the Services meet the Customer’s business requirements and, to the fullest extent permissible by law and without limitation, Adtsream gives no warranties that the Service will be fit for purpose, of satisfactory quality, uninterrupted or error free save where expressly set out in the Agreement.
- The Customer may choose the Transactional Package or Subscription Package, or both, when ordering the Services through the Adstream Site.
- Free Trials. Free trial eligibility is determined by Adstream at its sole discretion and it may limit eligibility or duration to prevent free trial abuse. Adtream reserves the right to revoke the free trial and put the Customer’s account on hold in the event that it determines that the Customer is not eligible. Adstream will charge the Charges for the next Billing Cycle to the Customer’s payment method at the end of the free trial period unless the Customer cancels its Package prior to the end of the free trial period.
- Billing Cycle. The Charges will be charged to the Customer’s chosen payment method on the specific Billing Date indicated on the Customer Account Page. The length of the Billing Cycle will depend on the type of subscription chosen when the Customer signs up for the Services. Packages will automatically renew at the end of every Billing Cycle.
- Package Transition. The Customer may transition between Packages provided that the Customer gives Adstream no less than one months’ written notice of the date for transition. Any changes to the Customer’s Package will be implemented from the next Billing Date following the expiration of the one months’ written notice.
- Cancellation. The Customer may cancel a package at any time by giving Adstream no less than five Working Days’ notice prior to the end of a Billing Cycle, and the Customer will continue to have access to the Services through to the end of the Customer’s billing period. Payments are non-refundable and Adstream does not provide refunds or credits for any partial – Billing Cycle or for any unused Asset quotas for that Billing Cycle.
- Changes to the Price and Subscription Plans. Adstream may change its Package prices from time to time; however, any price changes or changes to subscription plans will apply no earlier than 30 days following notice to the Customer.
- If the Customer has chosen the Transaction Package the Customer will be charged per post of an Asset on each Social Media Site.
- If the Customer has chosen the Subscription Package then the Customer may choose between the following subscription models:
- The Solo Tier: one User & up to 75 posts per month; or
- The Team Tier: Up to three Users and up to 200 posts per month; or
- The Pro Tier: Up to 10 Users and up to 500 posts per month.
- The Subscription Package chosen by the Customer will be shown on the Customer Account Page. If the Customer has chosen to be billed yearly for a Subscription Package then Adstream will apply an 8% discount to the yearly Charges payable by the Customer.
- The Customer will not be entitled to roll over any unused Asset quotas from one Billing Cycle to the next.
- Adstream reserves the right to charge the Customer for any additional Asset posts in excess of the Subscription Package. The quota will be updated from time to time on the Adstream Site through the Subscription Model Package link.
- Users within a business unit who do not post to owned media destinations, or do not have the One Social Platform enabled will not count towards the user limit for Subscription Packages.
- It is the Customers’ responsibility to include details of intellectual property rights expiry deadlines for published Asset posts on the Platform. The Platform will notify the Customer of approaching deadlines. Adstream will be responsible for such missed deadlines to the extent that the Platform fails to notify the Customer of such deadlines where the Customer has updated such necessary information on the Platform. For the avoidance of doubt, Adstream will not be responsible for missed deadlines where the Customer has failed to provide the necessary information to the Platform.
- Asset posts to paid media destinations will not count towards the post limit for owned media subscriptions.
- Payment of Charges, VAT & Withholding Taxes
- In consideration of Adstream’s performance of its obligations under these Conditions, the Customer shall pay the Charges as set out in the Customer Account Page or agreed between the parties in writing.
- The Customer shall pay all Charges properly due on each Billing Date.
- In the event that the Customer is obliged by any properly constituted authority to deduct any form of withholding tax, surcharge or duty, the Customer agrees and undertakes to gross up any Charges due to Adstream so that the amount paid to Adstream is the amount set out on the applicable invoice.
- Adstream shall add VAT to the Charges at the prevailing rate as applicable which shall be payable by the Customer.
- Failure to pay fees when due shall be a material breach of these Conditions which entitles Adstream to suspend or terminate (pursuant to clause 11.4 of these Conditions). This, in turn, will affect the Customer’s access to the Services. Fees remain chargeable at Adstream’s standard rates during the suspension. If Adstream terminates these Conditions for the Customer’s material breach, Adstream will require the Customer to pay, without delay, all fees and costs accruing before the termination date, all unpaid subscriptions and any other amounts due to Adstream by the Customer under these Conditions.
- If the Customer fails to pay any amount due under these Conditions, Adstream may charge the Customer interest on the overdue amount, payable by the Customer on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly.
- The Customer warrants, represents and undertakes it shall:
- comply with all laws, regulations, regulatory policies, guidelines or industry codes (and shall be responsible for obtaining all licences, clearances and consents) which apply to its use of the Service, and acknowledge that Adstream is merely a provider of access to the platform and accept no responsibility for the Customer’s use thereof or compliance with applicable law or regulation or to any User (other than to the extent Adstream is required by applicable law);
- not use the One Social Platform for any unlawful purposes and/or introduce any offensive, defamatory, illegal, infringing and/or obscene material via the Service;
- not do, or omit to do, anything which disparages, defames or puts into disrepute Adstream, its trade marks/trading names, goodwill and/or the One Social Platform; and
- be and are fully entitled to enter into and grant all rights granted under this Agreement and that entering into this Agreement shall not in any way conflict with any of the Customer’s existing obligations, either at the date hereof and/or throughout the
- Subject to the remaining provisions in this clause 6, Adstream warrants that:
- during the Term Adstream will provide the Services with reasonable due care and skill in accordance with these Conditions;
- Adstream has the authority and right to license all rights to and in the Services as set out in these Conditions.
- The warranties in clause 6.2 do not cover or apply to failures or shortcomings in the provision of the Services caused by, arising out of or due to:
- the Customer or any User’s connection to the internet;
- patents of which we are not aware; or
- accident, abuse or use of the Services in a manner inconsistent with these Conditions or resulting from events beyond Adstream’s reasonable
- Subject to the warranties set out in clause 6.2, the One Social Platform and Services are offered by Adstream and are therefore provided “as is”, without any other warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and non-infringement. In no event shall Adstream be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with the software or the use or other dealings in the One Social Platform or Services except as expressly set out in these Conditions.
- Subject to clause 6.3, if the Services do not meet the warranties in clause 6.2, Adstream will, at its sole option, either:
- modify, improve or update the Services to make them conform; or
- obtain such clearances, licences and consents at Adstream’s cost as may be necessary to enable the Customer to use the Services; or
- return Charges paid for such Services for the period that they failed to conform; and
- this shall be the Customer’s exclusive remedy for any breach of such warranties under this Agreement.
- The Customer warrants, represents and undertakes it shall:
- In the event of and only to the extent of any conflict or ambiguity between the clauses of these Conditions and any document referred to in the clauses of these Conditions, the conflict shall be resolved in accordance with the following order of precedence:
- Adstream shall have no liability under this Agreement for any breach of this Agreement, if any claim relates to:
- a modification of the Services, or use of the Services in combination with any third party software or data, by the Customer or its agents; or
- the Customer’s use (or use by Users) of the Services in a manner contrary to the instructions given to the Customer by Adstream or any claim relating to Customer Data; or
- the Customer’s use (or use by Users) of the Services after notice of an alleged or actual infringement has been given to the Customer by Adstream or by any appropriate authority; or
- where a claim for infringement arises directly in respect of a feature which was specified by the Customer or on the Customer’s
- Adstream will use reasonable endeavours to maintain the Services free of viruses but Adstream do not warrant or represent that no viruses or other contaminating or destructive materials or elements will be transmitted to the Customer or that the Customer’s computer system will not be damaged or that defects will be corrected. Accordingly, Adstream recommends that the Customer has its own local anti-virus, anti-spam and anti-spyware programs, that they are of good quality and that they are kept up to date. The Customer is therefore advised to implement and operate its own commercially reasonable and up-do-date virus prevention precautions and measures when accessing the Services. The Customer agrees to communicate the aforementioned recommendations to the Customer Users.
- Adstream does not warrant that the Services will be uninterrupted, error-free or entirely
- Each Party shall, except to the extent set out in this clause or where disclosure is expressly permitted elsewhere in these Conditions:
- treat the other Party’s Confidential Information as confidential and safeguard it accordingly;
- not disclose any Confidential Information belonging to the other Party to any other person or use the other’s Confidential Information for any purpose other than for the purpose of this Agreement without the prior written consent of the other Party, except to such persons and to such extent as may be necessary for the performance of these Conditions and such persons comply with the obligations in this clause 7;
- hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than for the purposes of the Agreement;
- shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, sub-contractors or agents in violation of these Conditions or used for any purpose other than the performance of its obligations hereunder, and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party without the participation and/or knowledge of a party hereto.
- Subject to the Customer’s prior written permission (which shall not be unreasonably withheld), Adstream may (a) issue press releases regarding the selection of Adstream as a provider of the Service and, for this purpose, Adstream may include the Customer’s logo and/or name in any such releases and/or on Adstream’s website; (b) include details of the Customer’s Service offering as a case study and/or client reference when marketing to other clients and prospects and for participating in trade industry events or awards.
- Adstream may only disclose the Customer’s Confidential Information to Adstream employees who are directly involved in the provision of the Services and who need to know the information, and shall ensure that such employees are aware of and shall comply with these obligations as to confidentiality.
- The Parties shall not, and shall procure that the Party’s employees do not, use any of the other Party’s Confidential Information received otherwise than for the purposes of these Conditions.
- The provisions of clauses 7.1 shall not apply to the extent that:
- such disclosure is a requirement of Law placed upon the Party making the disclosure;
- such information was in the possession of the Party making the disclosure without obligation of confidentiality prior to its disclosure by the information owner;
- such information was obtained from a third party without obligation of confidentiality;
- such information was already in the public domain at the time of disclosure otherwise than by a breach of these Conditions; or
- it is independently developed without access to the other Party’s Confidential Information.
- In the event that either Party fails to comply with clauses 7.1 to clause 7.6, the other Party reserves the right to terminate these Conditions with immediate effect by notice in writing.
- Each Party shall, except to the extent set out in this clause or where disclosure is expressly permitted elsewhere in these Conditions:
- Customer Data and Information Security
- The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of it.
- Both Parties shall comply with their respective obligations in respect of Customer Data and the processing of personal data.
- Adstream shall use all reasonable commercial endeavours to safeguard Customer Data from unauthorised or unlawful processing, or accidental loss, destruction or damage by complying with Adstream’s own internal information security policies and with such of the Customer’s security policies as are mutually agreed in writing.
- Responsibility for the Assets will pass to Adstream:
- upon submission of the Assets by the Customer to Adstream digitally; or
- upon the receipt of the Assets by Adstream in respect of physical delivery to Adstream’s address.
- Intellectual Property
- All Intellectual Property rights in the Services including the user interface content, design and process flows used to deliver the Services including, but not limited to, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software (together “Adstream Intellectual Property”) and all improvements, variations, adaptations, upgrades and conversions is the property of Adstream, its affiliates, its licensors or other relevant third parties and the Customer shall have no rights in respect of the Adstream Intellectual Property except as expressly granted under these Conditions. By continuing to use the Services the Customer acknowledges that such material is protected by applicable United Kingdom and International intellectual property and other laws.
- Adstream hereby grants to the Customer a non-exclusive, non-transferrable, licence to access and use the Services and One Social Platform in accordance with these Conditions and the End User Agreement (the “Licence”). The Customer may not use the Services for any other purpose without Adstream’s prior written consent and the Customer acknowledges that additional fees may be payable on any change of use approved by Adstream.
- The Services are provided subject to the following:
- neither the Customer nor Users are permitted to reproduce, copy, distribute, store or in any other fashion re-use material from the user interface content, design and process flows used to deliver the Services unless otherwise given express written permission to do so by Adstream, and
- payment of the applicable Charges as set out in the Customer Account Page.
- The Customer and Users are expressly prohibited from using or exploiting any information provided by Adstream (including, but not limited to, training materials, technical documentation, high level and low level designs, service specifications and user guides) for any purpose other than for the effective use and management and/or security of the Services.
- Notwithstanding clauses 9.1 to 9.4, content comprising the Services may be re-used without written permission where any of the exceptions detailed in Chapter III of the Copyright Designs and Patents Act 1988 apply.
- The Customer, the relevant third party licensor or, where applicable, Users, own all intellectual property rights in and to the Customer Data. Except as expressly stated herein, these Conditions do not grant us any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Customer Data and all such rights are expressly reserved to the Customer (or the applicable User). The Customer grants Adstream a non-exclusive, royalty-free licence to use the Customer Data for the purposes of providing the Service, and as part of service data, to provide services to our other clients, subject always to the data protection and confidentiality provisions set out in these Conditions.
- Term And Termination
- These Conditions will come into effect on the date that the Customer starts using the Services and shall remain in effect until terminated in accordance with these Conditions.
- Notwithstanding anything else contained in these Conditions, Adstream may terminate (or at its option suspend) the Agreement or part thereof:
- immediately on giving notice in writing to the Customer if the Customer fails to pay any sum due under the Agreement (otherwise than as a consequence of any default on Adstream’s part) and such sum remains unpaid for five (5) days after written notice from Adstream requiring such sum to be paid;
- immediately on giving notice in writing to the Customer if the Customer is in material breach of any term of the Agreement (other than any failure by the Customer to make any payment hereunder, in which event the provisions of clause 10.3.1 shall apply) and, in the case of a breach capable of being remedied, shall have failed to have remedied, within 30 days of receiving notice requiring the Customer to do so.
- If the Customer chooses to cancel its Corporate Subscription pursuant to the terms of clause 10.3 the Customer is not entitled to a refund in respect of the remainder of any period in respect of which the Corporate Subscription or other fee was paid in advance (if applicable). If Adstream cancel without cause (which Adstream may do on ninety (90) days’ written notice), then Adstream will refund to the Customer (to the extent the Customer has already paid it to Adstream), on a pro-rata basis, the amount of unused Corporate Subscription remaining right before the cancellation.
- Notwithstanding the above, Adstream may suspend access to any part of the One Social Platform and/or the Services immediately without notice if: (a) the Customer is in breach of this Agreement; (b) the Customer’s use of the Services has or is likely to have an adverse impact on Adstream, its clients, or any other third party. Suspension in accordance with the foregoing shall not relieve the Customer of any of its liabilities or obligations under this Agreement.
- Either Party may terminate these Conditions with immediate effect by giving written notice to the other if the other commits a material breach of any obligation under these Conditions and if:
- the breaching Party has not remedied the material breach within thirty (30) Working Days (or such other longer period as may be specified by the Customer) of written notice to the breaching Party specifying the material breach and requiring its remedy;
- the material breach is not, in the opinion of the non-breaching Party capable of remedy; or
- a Party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors or goes into voluntary or compulsory liquidation (other than for the purpose of amalgamation or reconstruction) or a receiver or administrator is appointed over the Party’s assets.
- For the purposes of Clause 10.4, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
- a substantial portion of the Agreement; or
- any of the obligations set out in clause 4, clause 5, clause 6.1 or clause 6.7
- over the term of the Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
- If, thirty (30) Working Days after service of a formal warning notice as described in clause 1.4, the Party has failed to demonstrate to the satisfaction of the non-breaching Party that the breach specified has not continued or recurred and that the breaching Party has put in place measures to ensure that such breach does not recur, then the non-breaching Party may deem such failure to be a material breach not capable of remedy for the purposes of clause 10.5.2.
- Consequences Of Termination And Expiry
- Notwithstanding the service of a notice to terminate these Conditions or any part thereof, Adstream shall continue to provide the ordered Services until the date of expiry or termination (howsoever arising) of these Conditions (or any part thereof) or such other date as required under this clause 11.
- Within ten (10) Working Days of the earlier of the date of expiry or termination (howsoever arising) of these Conditions:
- Adstream shall return (or make available) to the Customer any data (including (if any) Customer Data), Customer Personal Data and Customer Confidential Information in Adstream’s possession, power or control, either in its then current format or in a format nominated by the Customer (in which event the Customer will reimburse Adstream’s pre-agreed and reasonable data conversion expenses), together with any access keys and other related documentation, and any other information and all copies thereof owned by the Customer;
- the Licence shall automatically terminate; and
- The Customer shall and shall ensure that its Users immediately cease using the One Social Platform;
- Adstream may submit invoices for any Services that it has supplied to the Customer, but for which no invoice has been submitted and the Customer shall pay these invoices immediately on receipt.
- The Customer and Adstream shall comply with the exit and service transfer arrangements as per these Conditions.
- Any termination of the Agreement howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
- Acknowledgements, liability and indemnities
The Customer acknowledges that:
- save as set out in clause 8 Adstream shall not be liable for any failure by the Customer to upload material onto the One Social Platform or Social Media Sites correctly or which has been uploaded and which fails AutoQC or ManualQC.
- Users determine what is uploaded to Social Media Sites and therefore Adstream shall not be liable for any content uploaded by a User to a Social Media Site.
- 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.
- 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 Materials or the One Social Platform will be entirely secure.
- the Adstream Materials and One Social Platform 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 Materials or Platfom will be compatible with any other software or systems;
- the Internet is not a completely secure medium of communication;
- the speed and upload capability of the Adstream Materials and One Social Platform available online is determined by the quality of the Internet connection from where such Adstream Materials and One Social Platform are accessed;
- use of Adstream Materials and One Social Platform and the availability of the Adstream Site may involve reliance on third party data carriers over which Adstream has no control; and
- 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 Materials and One Social Platform).
- 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 One Social Platform 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 One Social Platform.
- 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.
- 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:
- any person gaining unauthorised access to the Adstream Site or any user zone;
- any malfunction, bugs or viruses in customer equipment, software or links as a result of using Adstream Products;
- 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;
- 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;
- 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;
- the unavailability of the Adstream Site;
- Customer’s inability to access the Adstream Site or to use the Adstream Site or the Adstream Materials and One Social Platform; or
- any delay in the receipt of any data transmitted by Adstream or using any of the Adstream Materials and One Social Platform (save where such delay is the result of Adstream’s own negligence).
- Liability cap
Subject to clause 12.6 of this Agreement, 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 12.2, 12.3 or 12.4 of this Agreement is limited in aggregate to the lower of the amount of Fees paid by Customer and US$500,000.
- Nothing in this Agreement excludes Adstream’s liability:
- for death or personal injury caused by Adstream’s negligence; or
- for fraud or fraudulent misrepresentation; or
- any other liability which cannot be excluded by law.
- Liability for non-transmission
Subject to clause 12.1.1, if Customer uses the Adstream One Social Platform in the transmission of any material and the material is not transmitted, Adstream will (at Customer’s option):
- arrange retransmission of the material; or
- refund any licence or service fee paid to Adstream in respect of that particular transmission.
If Customer uses the One Social Platform 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.
- Adstream shall accept liability for reasonably foreseeable losses arising as a direct result of breach by Adstream of Adstream’s statutory duty. However Adstream shall not be liable where the causes or potential causes of the loss:
- arose from the use of the Services for purposes other than for the Purpose;
- were reasonably foreseeable and preventable by the Customer such as those arising from, but not limited to:
- virus damage; or
- user inflicted problems such as those caused by failure to read and/or follow user instructions provided in writing or orally by one of Adstream’s technicians.
- If Adstream’s performance of our obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its affiliates, agents, subcontractors, consultants or employees, or Users it shall not be liable for any costs, liabilities, charges or losses sustained or incurred by the Customer or its affiliates that arise directly or indirectly from such prevention or delay.
- 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.
- Force Majeure
- Adstream shall not be liable to the Customer for any delay in performing, or failure to perform, its obligations under these Conditions to the extent that such delay or failure is caused by a Force Majeure Event.
- Adstream’s performance under the Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and Adstream will have an extension of time for performance for the duration of that period.
- Notwithstanding clause 13.1, each Party shall use all reasonable endeavours to continue to perform its obligations under these Conditions for the duration of such Force Majeure Event. However, if such Force Majeure Event prevents Adstream from performing its material obligations under these Conditions for a period in excess of one hundred and twenty (120) calendar days, either Party may terminate these Conditions with immediate effect by notice in writing to the other Party.
- Data Protection
- Shared Personal Data. This clause sets out the framework for the sharing of personal data between the parties as controllers. Each Party acknowledges that one Party (referred to in this clause as the Data Discloser) will regularly disclose to the other Party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
- Effect of non-compliance with Data Protection Legislation. Each Party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one Party shall, if not remedied within 30 days of written notice from the other Party, give grounds to the other Party to terminate this Agreement with immediate effect.
- Particular obligations relating to data sharing. Each Party shall:
- ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
- give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
- process the Shared Personal Data only for the Agreed Purposes;
- not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
- ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other Party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
- not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
- complies with the provisions of Articles 26 of the GDPR (in the event the third Party is a joint controller); and
- ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) Binding corporate rules are in place or (iv) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
- Mutual assistance. Each Party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each Party shall:
- consult with the other Party about any notices given to data subjects in relation to the Shared Personal Data;
- promptly inform the other Party about the receipt of any data subject access request;
- provide the other Party with reasonable assistance in complying with any data subject access request;
- not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other Party wherever possible;
- assist the other Party, at the cost of the other Party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
- notify the other Party without undue delay on becoming aware of any breach of the Data Protection Legislation;
- at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the personal data;
- use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
- maintain complete and accurate records and information to demonstrate its compliance with this clause 13; and
- provide the other Party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.
- Transfer And Sub-Contracting
- The Customer shall not, without the prior written consent of Adstream, assign, transfer, charge, assign, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions. Adstream may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.
- The Contracts (Rights Of Third Parties) Act 1999
- A person who is not party to these Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions but this does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
- Dispute Resolution
- The Customer and Adstream shall attempt in good faith to negotiate a settlement of any dispute between them arising out of or in connection with these Conditions within twenty (20) Working Days of either Party notifying the other of the dispute.
- If the dispute cannot be resolved by the Parties pursuant to this clause, the Parties shall refer it to mediation at the Centre for Effective Dispute Resolution unless Adstream considers that the dispute is not suitable for resolution by mediation.
- If the dispute cannot be resolved by mediation the Parties may refer it to arbitration.
- The obligations of the Parties under these Conditions shall not be suspended, cease or be delayed by the reference of a dispute to mediation or arbitration pursuant to this clause.
- Waiver and Severability
- In the event that any Party to these Conditions fails to exercise any right or remedy contained herein, this shall not be construed as a waiver of that right or remedy.
- Whilst every effort has been made to ensure that these Conditions adhere strictly with the relevant provisions of the Unfair Contract Terms Act 1977, in the event that any of these terms are found to be unlawful, invalid or otherwise unenforceable, that term is to be deemed severed from these terms and conditions and shall not affect the validity and enforceability of the remaining terms and conditions. This term shall apply only within jurisdictions where a particular term is illegal.
- Previous Terms and Conditions
- In the event of any conflict between these Conditions and any prior versions thereof, the provisions of these Conditions shall prevail unless it is expressly stated otherwise.
- Entire Agreement and Variation
- These Conditions and any other documents referred to in the first paragraph of these Conditions constitute the entire Agreement between the Customer and Adstream.
- Adstream may change the terms of this Agreement where it considers it necessary for security or to comply with changes in laws or regulations by providing one month’s notice.
- The Customer acknowledges that, even where the Customer has been required to procure the Services in accordance with a procedural rule or other instruction by any Court, Tribunal, Arbitrator or other dispute resolution body, the Customer and Adstream are the sole Parties to this Agreement and the Customer waives any right to, and agrees that it will not, join or otherwise proceed against any third party in any dispute arising out of this Agreement.
- All notices / communications shall be given to Adstream either by post to our Registered Office (see address above) or by email to our Commercial Director; ‘email@example.com’. Such notice will be deemed received 3 days after posting if sent by first class post, the day of sending if the email is received in full on a Working Day and on the next Working Day if the email is sent on a weekend or public holiday.
- Law and Jurisdiction
These terms and conditions and the relationship between the Customer and Adstream shall be governed by and construed in accordance with the Laws of Italy.
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