PLATFORM SERVICES TERMS AND CONDITIONS
1.1 These terms and conditions along with any additional terms which may be made available in the Platform (as defined in clause 2 below) and/or agreed between the parties (the Terms) apply to use of the advanced advertising platform provided by The Addressable Platform Limited. The Addressable Platform Limited is a company registered in England with company number 11423826 with registered address at 2 Waterhouse Square, 140 Holborn, London EC1N 2AE. VAT no: 197 0041 67.
1.2 By clicking to accept the Platform Terms of Service, you have acknowledged that you agree to be bound by the Terms on behalf of the entity you work for (Customer). You warrant and represent that you have the authority to bind Customer to the Terms.
1.3 We may update these Terms at any time on reasonable notice and ask you to reconfirm agreement to the Terms. These Terms were last updated on 20 December 2019.
2. DEFINITIONS & INTERPRETATION
2.1 In these Terms, words and expressions shall have their ordinary meaning unless otherwise defined herein.
For the purposes of these Terms, the following definitions shall apply:
(a) Advertising Inventory means inventory which a Publisher makes available for the display or serving of advertising;
(b) Applicable Laws means any and all applicable legislation, statutes, statutory instruments, regulations, directives, orders and other legislative provision and any applicable judgment of a relevant court of law or decision of a tribunal or competent authority and all applicable codes of practice (whether statutory or self-regulatory) including the UK Code of Non-Broadcast Advertising and Direct and Promotional Marketing (CAP Code);
(c) Appropriate Safeguards means such mechanism(s) as recognised under Data Protection Laws as enabling the transfer of personal data from inside the European Union (and, if no longer part of the European Union, the United Kingdom) to a country outside the European Economic Area, including adequacy decisions, standard contractual clauses and binding corporate rules;
(d) Authorised Users means those persons using the Platform on behalf of Customer who have been authorised by us (either by direct set up or indirectly set up by a Customer super user);
(e) Bribery means conduct which constitutes an offence under the Bribery Act 2010 or which would constitute an offence under the Bribery Act 2010 if that Act were in force in the jurisdiction where the conduct took place;
(f) Buyer means a user of the Platform that selects Advertising Inventory and makes an order or agreement for the sale of any Advertising Inventory with the relevant Publisher and for any arrangements with third party data providers or other services made available as options through the Platform;
(g) Buyer Personal Data means personal data provided by or on behalf of the Buyer for use in the Platform and/or Services, which may include contact details or user identifiers such as email addresses, IP addresses, device IDs, postcodes and/or other identifiers;
(h) Buyer Targeting Data has the meaning given in clause 6.7;
(i) Confidential Information means any information, ideas or concepts disclosed directly or indirectly in connection with the Terms, the Platform and/or the Services whether in writing, verbally or by any other means by or on behalf of one party to the other (or its authorised agents) which is marked as confidential or which may reasonably be considered to be confidential including information concerning the business or trade secrets, know-how, Customers, distributors, suppliers or business methods and processes obtained from the other party in connection with the same whether before or after the start of the Services;
(j) Customer has the meaning given in clause 1.2;
(k) Customer Data means data provided by or on behalf of Customer for use in the Platform and/or Services;
(l) Customer Personal Data means personal data provided by or on behalf of the Customer for use in the Platform and/or Services;
(m) Customer Materials means materials provided by or on behalf of Customer for use in the Platform including any advertising creative, Customer Data or other assets;
(n) Data Protection Laws means all laws relating to data protection, data privacy and/or information security as applicable, including the Data Protection Act 2018, the GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003;
(o) End Users means any individual who receives or views advertising on a Publisher site or service;
(p) Fees has the meaning given in clause 7.1;
(q) GDPR means the General Data Protection Regulation (Regulation (EU) 2016/679);
(r) Insolvency Event means:
(i) that party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(ii) an order is made by a court of competent jurisdiction or a resolution is passed for the administration of that party;
(iii) a petition is presented for winding up of that party;
(iv) an order is made or a resolution is passed for winding up of that party, other than a genuine solvent reconstruction or amalgamation with the resulting entity assuming all the obligations of the entity that has been wound up;
(v) the application for an order or application for the appointment of a receiver (including an administrative receiver or manager), administrator, examiner, liquidator, provisional liquidator, trustee or similar officer is made in respect of that party;
(vi) that party becomes entitled to appoint a receiver, administrative receiver, administrator, examiner, liquidator, provisional liquidator or similar officer, or such an officer is appointed, over all or any part of the assets or undertaking of that party
(vii) that party commences negotiations with any or all of its creditors in relation to rescheduling any of its debts, enters into or proposes a “Voluntary Arrangement” as defined in Part 1 of the Insolvency Act 1986, or makes a proposal for or enters into any compromise or composition with any of its creditors or an assignment for the benefit of its creditors, or other similar arrangement (other than a genuine solvent reconstruction or amalgamation);
(viii) that party goes into liquidation (voluntary or otherwise), other than a genuine solvent reconstruction or amalgamation
(ix) that party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business
(x) any third party enforces a security interest over all, or any part, of the assets of that party;
(xi) any event analogous to any of those described in (i) to (x) above affects that party in any jurisdiction;
(s) Modern Slavery means conduct which constitutes an offence under the UK’s Modern Slavery Act 2015, or which would constitute an offence under the Modern Slavery Act 2015 if that Act were in force in the jurisdiction where the conduct took place;
(t) Original Agreement has the meaning given in clause 15.2;
(u) Permitted Purposes means purposes related to the operation of the Platform and/or performing our obligations under these Terms (including for purposes related to media preparation and distribution, any quality assurance and/or compliance functions and the delivery of media campaigns) and for any other purposes expressly agreed between the parties;
(v) Platform means our platform known as “Planet V” and/or “The Addressable Platform” (or any successor or replacement brands) intended to enable the selection and purchase of advertising inventory from approved publishers and management of delivery of advertising campaigns on those publishers, including all functionality available in the platform and any demo or test environment(s) relating to the platform;
(w) Platform Data means any data (including demographic and behavioural data) which is owned, licensed or otherwise acquired by us for use in the Platform;
(x) Platform Personal Data means personal data within the Platform Data;
(y) Platform Materials means any and all materials provided by us or on our behalf, including any platform promotional materials, specifications, designs, tests, plans, training documentation, demonstration videos, operating procedures, manuals and guidelines, the output from the Platform (including any reporting) and Platform Data;
(z) Publisher means a user of the Platform that provides Advertising Inventory and accepts orders or agreements for the purchase of any Advertising Inventory through the Platform and is ultimately responsible for delivering the campaigns on its sites and services;
(aa) Publisher Personal Data means personal data provided by or on behalf of the Publisher for use in the Platform and/or Services, which may include contact details or user identifiers such as email addresses, IP addresses, device IDs, postcodes and/or other identifiers;
(bb) Services means any services provided by us in connection with the media campaign planning, execution and reporting and other functionality in the Platform including any platform or business support services and any ancillary services;
(cc) Tax Evasion means conduct that constitutes any criminal offence of tax evasion or facilitation of tax evasion in any jurisdiction, including the tax evasion facilitation offences under section 45(1) and 46(1) of the Criminal Finances Act 2017; and
(dd) Territory means United Kingdom, Channel Islands, Isle of Man and Republic of Ireland.
2.2 Unless the context requires otherwise:
(a) references to clauses are references to the clauses of these Terms;
(b) references to any statute or statutory provision or regulatory code of practice shall include reference to any statute or statutory provision or regulatory code of practice which amends, extends, consolidates or replaces the same and shall include any directions, orders, regulatory codes of practice, instruments or other subordinate legislation made under any relevant statute or statutory provision;
(c) references to a “person” shall include any individual, company, corporation, firm, partnership, joint venture, association, organisation, institution, trust or agency, whether or not having a separate legal personality;
(d) references importing a particular gender include all genders and references importing the singular include the plural and vice versa;
(e) the words “include”, “including” and “in particular” shall not be interpreted as limiting the generality of any foregoing words;
(f) headings and sub-headings are inserted for convenience only and shall be ignored in construing these Terms;
(g) any reference to a “party” or “parties” shall mean a party or the parties to these Terms;
(h) references to processing, controller, processor, data subject and personal data and their derivatives shall bear the meanings ascribed to them in the GDPR; and
(i) for the purposes of these Terms the term "cookies" will include cookies and any other devices or technologies now known or developed in the future which store or access information on devices of End Users.
3.1 The Platform provides functionality for Buyers to plan, manage, implement and report on advertising bookings in respect of Advertising Inventory that Publishers make available in the Platform. We do not guarantee that all of the features and functionality of the Platform will be available on all browsers or devices.
3.2 Customer’s (and each of the Authorised Users’) access to and use of the Platform is as defined by us from time to time at our reasonable discretion based upon the nature of the Services being provided.
3.3 If the Customer is a Buyer, the Customer is fully responsible for making sure that its instructions, orders and/or advertising creative in relation to campaigns submitted to Publishers via the Platform and/or Services are correct and meet its requirements. If the Customer is a Publisher, the Customer is fully responsible for providing Advertising Inventory and for accepting orders from and making agreements with Buyers for the sale of any Advertising Inventory. In either case, we have no responsibility in respect of such orders or arrangements or for the purchase or supply of or payment for such Advertising Inventory or other services. We do not review the accuracy of campaign order details, advertising creative or instructions and assume no responsibility for such order details or for any Customer Materials. The parties acknowledge that the relevant Buyer is responsible for ensuring it complies with terms and conditions of Publishers and/or data providers (or other third party services made available as options within the Platform).
3.4 We will use commercially reasonable efforts to deliver advertising creative provided by or on behalf of the relevant Buyer on the Advertising Inventory selected by that Buyer for delivery of such content pursuant to the Terms and in line with the campaign orders placed via the Platform but the Platform and Services are provided on an 'as is' and 'as available' basis. We cannot promise that the Platform and Services will be free from errors or omissions nor that they will be available uninterrupted and in a fully operating condition and we make no guarantees regarding delivery, placement or timing of advertising creative or campaigns.
4. USE OF THE PLATFORM
4.1 As between the parties, we are the sole and exclusive owner of the entire right, title and interest in and to the Platform (including all software, databases and technologies related to the Platform), the Platform Materials and the Services and any enhancements thereto and any materials provided by us or on our behalf.
4.2 We hereby grant to Customer a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right and licence to use the Platform and the Platform Materials in the Territory solely in connection with advertising campaign management and delivery and related activities anticipated by these Terms on and subject to the Terms. Customer may only use the Platform and Platform Materials in accordance with the limited rights expressly granted in the Terms and not otherwise. All rights not expressly granted herein are reserved to us. In particular, the names, images and logos identifying us or our partners or third parties and any of those parties’ products and services are proprietary marks and may not be reproduced or otherwise used without our express permission.
4.3 Customer will be permitted to access and use the Platform and/or Services by means of unique password provided to Customer and/or its Authorised Users by us. It is Customer’s responsibility to ensure that it and its Authorised Users protect the password(s), keep the password(s) secure and ensure that they are only used in a manner that is consistent with the access which we have granted to the Platform and not passed to any third parties.
4.4 Customer agrees that it will:
(a) use the Platform only in accordance with such technical requirements, security requirements and reasonable instructions, as we may communicate from time to time;
(b) ensure that any Authorised Users comply with these Terms and be fully responsible for any and all acts and omissions of such Authorised Users;
(c) be responsible for providing and maintaining hardware (including devices), software (including operating systems) and connectivity needed to access the Platform and for ensuring that the same complies with any requirements or instructions as communicated by us from time to time; and
(d) promptly inform us via the ‘Service Ticketing Portal’ or via email at the email address provided during onboarding (or as updated by us from time to time) and/or such other method as may be notified to Customer from time to time of any problems with the Services or the Platform and (if applicable) any methods by which those problems were resolved. To the extent that Customer suggests any modifications, design changes, or improvements to the Services or the Platform, Customer hereby grants us a non-exclusive, worldwide, royalty-free, perpetual, sub-licensable, irrevocable licence to use such suggestions as it sees fit (but without any obligation to implement such suggestions).
4.5 Customer agrees that it will not:
(a) copy, modify, develop, maintain, adapt, correct errors, or create derivative works from, the Platform (including any intellectual property rights in the Platform);
(b) purport to sell or transfer the Platform or re-sell, re-use or duplicate the Platform or the Platform Materials, nor any of its components, at any time;
(c) actually (or attempt to) decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Platform or the Platform Materials, including (i) to build a competitive product or service to the Platform; (ii) to build a product using similar ideas, features, functions or graphics to the Platform; and/or (iii) to copy any ideas, features, functions or graphics of the Platform;
(d) offer the Platform as a service with Customer branding or otherwise use or offer the Platform on a white label basis;
(e) except as expressly permitted by us in writing in advance, permit any third party (other than Authorised Users) to access or use the Platform or the Platform Materials;
(f) use the Platform, Platform Materials and/or the Services for purposes other than the ordering, delivery and management (including reporting) of campaigns;
(g) use the Platform, Platform Materials and/or the Services to traffic or deliver any Customer Materials that promote, refer to or have links to: (i) false, misrepresentative, libelous, defamatory, pornographic, obscene, or otherwise inappropriate material; (ii) copyright piracy, hacking or phreaking; (iii) illegal activities, deceptive practices or violations of third party rights (including intellectual property or privacy rights); or (iv) that do not comply with Applicable Laws.
5. CUSTOMER MATERIALS
5.1 Customer hereby grants us a non-exclusive, royalty-free, sub-licensable licence to use and to authorise the use of the Customer Materials as provided by Customer or on its behalf for the Permitted Purposes. We agree and acknowledge that we shall not acquire any rights (including, without limitation, intellectual property rights) in, or associated with, the Customer Materials, except as expressly permitted pursuant to these Terms.
5.2 Customer agrees that it is fully and solely responsible for the Customer Materials. It warrants and represents that:
(a) it and any and all Customer Materials comply with all Applicable Laws and will not be misleading, deceptive, defamatory, discriminatory, fraudulent, obscene, unethical, or illegal or infringe the rights of any third party (including intellectual property rights);
(b) it holds the necessary rights (including, without limitation, intellectual property rights) to permit the use, processing, reproduction, display, transmission and distribution (the Use) of the Customer Materials by us for the Permitted Purposes;
(c) the Use will not cause us to breach any Applicable Laws; and/or infringe any rights of any third parties (including, without limitation, any intellectual property or other rights);
(d) the Customer Materials will not contain viruses, bugs, worms, trojan horses, harmful codes or any other form of defect or contaminant which could cause temporary or permanent damage to or will otherwise impair or harm or cause the malfunction of the Platform and/or software or hardware, computer systems or devices of any of us or any third party;
(e) it shall not acquire any rights (including, without limitation, intellectual property rights) in or associated with the Platform and will only use the Platform as permitted in these Terms; and
(f) it is contracting on the Terms as principal and not as agent for any advertisers or client.
6. USE OF DATA / PRIVACY
6.1 This clause 6 sets out the agreement between the parties in relation to the use of personal data in connection with the Platform, and specifically:
(a) clause 6.5 (Provision of Customer Personal Data) describes the Customer’s obligations where it provides us with Customer Personal Data;
(b) where the Customer is a Publisher and provides us with Publisher Personal Data, clause 6.6 (Publisher Personal Data) describes how Publisher Personal Data are used;
(c) where the Customer is a Buyer and provides us with Buyer Personal Data, clauses 6.7 and 6.8 (Buyer Bring Your Own Data - data matching and targeting) describe how Buyer Personal Data are used in respect of data matching and targeting audiences as part of the Services;
(d) where we act as a controller of Publisher Personal Data pursuant to clause 6.6 or Buyer Personal Data pursuant to clause 6.8, clause 6.9 (Data sharing arrangements) describes each party’s obligations with respect to those data;
(e) where the Customer is a Buyer, clause 6.10 (Buyer Data Sharing with Amobee) describes the Buyer’s option through the Platform to access other advertising platforms provided by Amobee Inc and/or its group companies;
(f) clauses 6.11 to 6.13 (Our Processing of Customer Personal Data) describe the data processing particulars and each party’s obligations to the extent we process any Customer Personal Data as processor in connection with the provision of the Platform and/or the Services; and
6.2 The parties agree to comply with Data Protection Laws.
6.3 The parties agree that we are the controller in respect of any Platform Personal Data. Customer shall not access or attempt to access any Platform Personal Data or other Platform Data without our prior written consent
6.4 The Data Protection Officer for any of our group companies’ data processing activities can be contacted by email at email@example.com.
Provision of Customer Personal Data
6.5 Where a Customer provides us with Customer Personal Data, the following will apply unless expressly agreed otherwise:
(a) the Customer will provide details of its key contact(s) responsible for data processing activities on request (which may include when uploading data);
(b) the Customer agrees to follow such encryption or hashing process as specified by us prior to transferring the Customer Personal Data to us;
(c) the Customer shall not provide any personal data relating to persons under 16 years of age or any special category personal data;
(d) the Customer is responsible for ensuring that the Customer Personal Data remains up to date during the period that it is held by us and, for any periods of activity which are over a month in duration, the Customer will provide updated Customer Personal Data on at least a monthly basis. Where those data are being used for Buyer Targeting Data, we shall revise the matching to generate an updated set of Buyer Targeting Data which shall supersede the previous Buyer Targeting Data; and
(e) the Customer will confirm to us whether it is relying on its legitimate interests or consent or other lawful basis as the lawful basis for providing the Customer Personal Data to us and will be responsible for: (i) ensuring that it is lawfully able to share those Customer Personal Data with us for the purposes contemplated in these Terms; and (ii) ensuring that any notices to End Users cover the nature of the processing in relation to the Platform and/or the Services.
Publisher Personal Data
6.6 Where the Customer is a Publisher, the Publisher may provide us with Publisher Personal Data relating to End Users for the purposes of enabling us to offer Buyers options to make their advertising more efficient and/or relevant to End Users, including by (i) targeting or personalising advertising to Publisher End Users generally using Publisher Personal Data; and/or (ii) where applicable, data matching Buyer Personal Data against Publisher Personal Data to generate Buyer Targeting Data; and/or (iii) matching Publisher Personal Data against other publishers’ Publisher Personal Data to help Buyers to buy and order Advertising Inventory efficiently across different Publishers. In these circumstances, the Publisher will remain a controller of the Publisher Personal Data. We will be an independent controller of the Publisher Personal Data only in order to determine the means of processing such Publisher Personal Data for the purposes as described in this clause. In all other cases where we process Publisher Personal Data, we will be a processor of the Publisher Personal Data and clauses 6.11 and 6.12 will apply accordingly. At the choice of the Publisher, we will delete or return Publisher Personal Data and copies thereof to the Publisher on termination of this Agreement unless Union or Member State law requires storage of the Publisher Personal Data.
Buyer Bring Your Own Data - data matching and targeting
6.7 Where the Customer is a Buyer, the Buyer may provide us with Buyer Personal Data relating to End Users for the purposes of enabling us to data match that Buyer Personal Data against Platform Personal Data and/or Publisher Personal Data (as applicable) as part of the Services, in order to generate a matched subset of the Platform Personal Data and/or the Publisher Personal Data (as applicable) (such subset to be the Buyer Targeting Data) and enable the targeting or avoidance of targeting advertising to specific End Users.
6.8 Without affecting clause 6.6, where the Buyer provides us with Buyer Personal Data, the Buyer will remain the controller of the Buyer Personal Data and we will be a processor of the Buyer Personal Data and clauses 6.11 and 6.12 will apply accordingly. Notwithstanding the foregoing, to the extent that any Buyer Personal Data forms part of the Buyer Targeting Data, the Buyer and either us or the Publisher will be independent controllers of that Buyer Personal Data in respect of the targeting and serving of the advertising (depending on whether the match was against the Platform Personal Data or Publisher Personal Data). The data matching processing and use of the Buyer Targeting Data shall only last for the duration of the campaign period unless a Buyer requests that we retain the Buyer Personal Data and/or Buyer Targeting Data for a further set period for future campaigns (which shall be no longer than 12 months at any time although the Buyer may renew these periods within the Platform if necessary).
Data sharing arrangements
6.9 Where we act as a controller of Publisher Personal Data pursuant to clause 6.6 or Buyer Personal Data pursuant to clause 6.8, the following will apply with respect to the Publisher Personal Data or Buyer Personal Data (as applicable) that we control unless expressly agreed otherwise:
(a) each party shall:
(i) comply with Data Protection Laws in respect of its own processing including without limitation ensuring that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data and not transferring any Publisher Personal Data or Buyer Personal Data (as applicable) outside the European Economic Area unless it ensures that there are Appropriate Safeguards in place;
(ii) be responsible for compliance with the rights of data subjects and have in place procedures for dealing with data subject access requests, complaints or queries and shall (where reasonably practicable) consult with the other party about data subject access requests in relation to the Publisher Personal Data or Buyer Personal Data (as applicable); and
(iii) provide the other party with reasonable assistance in complying with any data subject access request and/or regulatory codes of practice and in providing information in respect of compliance with its obligations under the Data Protection Laws (by way of example in relation to data protection impact assessments and/or regulatory requests for information); and
(b) if either party receives a data subject access request in relation to the Publisher Personal Data or Buyer Personal Data (as applicable), that party will be responsible for ensuring that the data subject can easily access their personal data that is contained in the Publisher Personal Data or Buyer Personal Data (as applicable).
Buyer Data Sharing with Amobee
6.10 Where Customer is a Buyer, Buyer may also have the optional ability through the Platform to access other advertising platforms provided by Amobee Inc and/or its group companies (“Amobee”), including through a single sign-on process. Such access may be subject to additional checks and requirements mandated by Amobee (such as credit checks and signing up to Amobee’s terms and conditions). The Customer may (at its option) use functionality in the Platform to grant access to Buyer Personal Data to Amobee to process such data in connection with campaigns on those other platforms outside the Platform. Such use will be subject to separate terms between Amobee and the Buyer and we take no responsibility for use of Buyer Personal Data outside the campaigns run on the Platform. For the avoidance of doubt, Amobee will not be a processor for the purpose of clause 6.12(d) in relation to such use.
Our Processing of Customer Personal Data
6.11 To the extent we process any Customer Personal Data as processor in connection with the provision of the Platform and/or the Services, the relevant processing particulars are as follows unless otherwise agreed in writing:
Purpose and nature of processing: the provision of any processing of personal data on behalf of the Customer for the purposes of providing the Platform and/or Services.
Type of personal data: the Customer Personal Data comprising contact details or user identifiers and any profile data attached to the same.
Data subjects: End Users or potential End Users of the Customer’s services comprised in any Customer Personal Data.
6.12 In respect of processing of Customer Personal Data:
(a) we shall process the Customer Personal Data only on documented instructions from the Customer, including with regards to transfers of personal data to a third country or international organisation, unless required to do so by Union or Member State law to which we are subject, in which case we shall inform the Customer in writing of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. The Customer agrees and acknowledges that we use suppliers based outside the European Economic Area in connection with the provision of the Platform and Services and hereby approves the use of such suppliers subject to clause (e) provided that we shall ensure that any transfer of data outside the European Economic Area is subject to Appropriate Safeguards;
(b) we shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) we have in place, and shall continue to have in place, appropriate technical and organisational security measures required by Article 32 (Security of Processing) of the GDPR including in relation to unauthorised or unlawful processing of or access to personal data and against accidental or unlawful loss or destruction of, or damage to, Customer Personal Data;
(d) the Customer hereby generally authorizes us to engage other processors in connection with the provision of the Platform and Services (which excludes any processing pursuant to clause 6.10) subject to clause (e) below. We maintain a list of such third party processors and that list will be available to the Customer on request;
(e) if we engage another processor, we shall ensure that substantially the same data protection obligations as set out in the Terms shall be imposed on that other processor by way of a written contract, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of Data Protection Laws. We shall remain fully liable to the Customer for the performance by such other processor of such obligations;
(f) we shall, 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 obligation to respond to requests for exercising the data subject's rights laid down in Chapter III (Rights of the data subject) of the GDPR;
(g) we shall assist the Customer in ensuring compliance with the obligations in Section 2 (Security of personal data) and Section 3 (Data protection impact assessment and prior consultation) of the GDPR, taking into account the nature of the processing of the Customer Personal Data and the information available;
(h) at the choice of the Customer, we shall delete or return all the Customer Personal Data to the Customer after the end of the provision of the Services relating to processing, and delete existing copies unless Union or Member State law requires storage of the Customer Personal Data;
(i) we shall co-operate with the Customer in relation to any complaints or queries received from any data subject or regulator in respect of such processing;
(j) we shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in Article 28 of the GDPR and allow for and contribute to audits, including inspections on reasonable notice, conducted by the Customer or any auditor mandated by the Customer in respect of such compliance, in each case at the Customer’s cost.
6.13 The Customer agrees that the use of any Customer Personal Data for the purposes set by the Customer will comply with the privacy notice titled “Privacy Notice for The Addressable Platform” which may be found here.
Cookies & Tracking Technologies
6.14 The Customer agrees that it will not in connection with the Platform and/or the Services:
(a) drop or place cookies or tracking technologies (including any technologies now known or developed in the future which store or access information on devices of End Users) unless expressly agreed in advance with us or using any option or functionality available to set such technologies in the Platform and in all cases only where such dropping or placement is compliant with Data Protection Laws (and the Customer agrees that unless agreed otherwise, the Customer is fully responsible for ensuring such compliance);
(c) use any technology or device to recreate, respawn or re-enable cookies or tracking technologies which have been deleted or disabled by an End User.
7.1 Customer shall pay any applicable fees as detailed in the Platform or as otherwise agreed between the parties (the Fees). Where applicable, data as reported in the Platform will be binding for the purposes of calculating the Fees, whether or not those data are also reported by another person.
7.2 We will invoice for the Fees monthly in arrears. Customer shall pay any Fees within 30 (thirty) days of the date of invoice.
7.3 All sums payable under these Terms are exclusive of any value added tax that may be payable by either party. Invoices will include value added tax at the relevant rate on the date of invoicing.
7.4 If the Customer fails to make any payment when due, the Customer shall be liable for any interest on any sum outstanding from the date of the invoice until settlement at a rate of 3% over Barclays Bank plc standard variable interest rate from time to time to run from day to day (both before and after any judgment) from the due date until payment is received and for all expenses (including any administrative and/or legal fees) incurred by us in collecting such amount.
7.5 If the Customer has a query or dispute on its invoice, it must bring the same to our attention within 60 days of the date of the invoice or it shall lose its right to make such query or raise such dispute.
7.6 We reserve the right to withhold the provision of further Services and/or suspend access to the Platform if the Customer has outstanding invoices and these are not being validly disputed.
7.7 Commitments and/or payments made by or on behalf of the Customer in respect of the Platform and/or Services shall not count towards any commitments by the Customer in respect of any of our other group companies.
8.1 Each Party represents and warrants that:
(a) it has full power and authority to enter into the Terms and to fully perform and comply with all its obligations under the Terms;
(b) it has, and will maintain in force for the Term, all necessary consents, permits, licences and authorisations to fully perform and comply with all its obligations under the Terms;
(c) its entry into and performance under the Terms will not cause it to be in breach of any contractual obligations to a third party or any Applicable Laws; and
(d) it shall comply with all Applicable Laws in force relating to the provision or use of the Platform.
8.2 Subject to clause 12.4, there are no other express or implied warranties, representations, conditions or terms (including as to satisfactory quality, fitness for purpose or the use of reasonable skill and care) respecting the Terms, Platform and/or Services save to the extent expressly agreed in the Terms. Without limiting the generality of this clause, we specifically disclaim any warranty regarding the number of persons who will access and/or view the any creative or campaigns run by the Customer or any benefit the Customer might obtain or be seeking to obtain from the serving of such advertising
8.3 The Customer shall indemnify and keep indemnified and shall hold us, our subcontractors and our group companies harmless, on demand, from any and all liability, loss, damages, claims or causes of action (whether foreseeable or unforeseeable), including (without limitation) reasonable legal fees and expenses, that may be incurred by us, our subcontractors or our group companies arising out of or related to Customer’s breach of any of the representations and warranties in the Terms or the use of the Customer Materials provided by or on behalf of the Customer.
9. TERM AND TERMINATION
9.1 We may suspend access to the Platform and/or provision of the Services to the Customer or any Authorised User at any time if we reasonably consider that use of the Platform by the Customer and/or such Authorised User may be in breach of these Terms.
9.2 Without prejudice to its other rights and remedies, either party may terminate these Terms in whole or in part forthwith at any time by giving notice in writing to the other party:
(a) at any time and for any reason on no less than one month’s notice subject to clause 9.4(a) in relation to active campaigns provided that the Customer shall not be entitled to extend the duration of any campaigns during this period;
(b) if the other party commits a breach of any provision of these Terms (including, in the case of the Customer, the obligation to pay the Fees when due) and: (i) such breach is incapable of remedy; (ii) or such breach is capable of remedy and the other party fails to remedy it within thirty (30) days after receipt of a written notice from the party terminating these Terms giving full particulars of the breach and requiring it to be remedied; or
(c) on the occurrence of an Insolvency Event relating to other party.
9.3 Termination or expiry of these Terms in whole or in part shall not affect any rights of any party in respect of any antecedent breach of these Terms by any other party, nor shall it affect any accrued rights or liabilities (or the coming into force of any accrued rights or liabilities) of any party.
9.4 Upon termination of these Terms for any reason:
(a) the Customer shall cease further use of the Platform and the Services and all licences granted under these Terms shall terminate on expiration of the last active campaign associated with Customer (which may include a limited period of activity after delivery for reporting purposes);
(b) the Customer shall remain liable for any Fees due in respect of campaigns delivered and such an obligation to pay shall survive termination; and
(c) at the request of either party, the other party shall immediately return to the requesting party, or permit the requesting party to collect, all items in its possession which are the property of the requesting party and immediately cease to use the intellectual property rights of the requesting party.
9.5 The provisions of those clauses intended to have continuing effect (including, but not limited to, clauses 5 (Customer Materials), 6 (Use of Data / Privacy), 7 (Fees) (to the extent of any sums due but unpaid), 9.3 (Term and Termination), 9.5 (Term and Termination), 10 (Confidentiality), 12 (Limitation of Liability), and any other provisions of this Agreement necessary for its interpretation or enforcement) shall continue in full force and effect following the termination for any reason or expiry of these Terms.
10.1 Each party undertakes that it shall not, except as permitted by the Terms, either during or after the Term disclose any Confidential Information of the other party.
10.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Terms or to its group companies providing that any such recipients have entered into equivalent obligations of confidentiality and may only use such information for the purposes of exercising its rights and/or performing its obligations under the Terms. It is also acknowledged that where Customer is a Buyer, it may disclose reporting related to the performance of a campaign to the advertiser clients who are the subject of such campaign and who are subject to equivalent obligations of confidentiality; or
(b) where such disclosure is specifically permitted by the Terms or otherwise authorised by the other party in writing in advance.
10.3 The provisions of this clause 10 shall not apply to Confidential Information which:
(a) was known to the recipient (without obligation to keep it confidential) at the date of its disclosure or is after the date of disclosure lawfully acquired by the recipient in good faith from a third party who is not subject to any obligation of confidentiality in respect of that Confidential Information;
(b) was at the time of disclosure or has become public knowledge other than by reason of the recipient’s neglect or breach of the restrictions set out in the Terms;
(c) is independently developed by the recipient without access to any or all of the disclosing party’s Confidential Information; or
(d) is required by law, judicial action, recognised stock exchange, governmental department or agency or other regulatory authority to be disclosed.
10.4 The Customer agrees that we may use its name in a listing of clients for whom we do business and that we may compile one or more case studies based on the Customer’s use of the Platform or the Services. Any external use of the case studies will be subject to the Customer’s approval (not to be unreasonably delayed or withheld).
10.5 Neither party will issue a press release or other public announcement in respect of the business relationship connected with these Terms without the prior written approval of the other party.
11. FORCE MAJEURE
11.1 Neither party shall be liable in any way for any failure to perform or delay in performing any of its obligations under the Terms caused by any Force Majeure Event (as defined below) provided that the party unable or delayed in performance informs the other party of the Force Majeure Event as soon as reasonably practicable after becoming aware of the Force Majeure Event. This clause 11 shall not apply to any obligation to pay Fees due under these Terms.
11.2 If either party is/are unable to perform any of its/their obligations under these Terms as a result of a Force Majeure Event for more than thirty (30) consecutive days, the other party may terminate these Terms at any time upon giving written notice. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these Terms occurring prior to such termination and the Customer shall pay an amount of Fees which corresponds to Services provided prior to termination.
11.3 For the purposes of these Terms, a Force Majeure Event means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by that party (or that person), or, if it could have been foreseen, was unavoidable, and includes acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities including regulatory or legislative interference, acts of war (declared or undeclared) or armed hostilities or other national or international calamity, vandalism, one or more acts of terrorism or failure of external energy sources or failure of external telecommunications, power, network or Internet services or providers of those services.
12. LIMITATION OF LIABILITY
12.1 Subject to clause 12.4, neither party shall be liable to the other, whether in tort, contract or otherwise, for any loss of profit (whether direct or indirect), loss of revenue, loss of opportunity, loss of anticipated profit or revenue, loss of goodwill, loss of reputation, loss of data and/or any loss which is indirect, consequential or economic or which, whether or not in practice it arises as a direct and natural result of a breach of these Terms or was not, at the time these Terms was made, a reasonably foreseeable result of such breach.
12.2 Subject to clause 12.4, we shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty, under statute or under common law, under any indemnity or otherwise) for any loss, damages, claims incurred or sustained resulting from: (i) the use of the Platform other than for its normal intended purposes or as permitted by the Terms; (ii) any malware introduced by Customer into the Platform; or (iii) a defect in Customer’s infrastructure or systems.
12.3 Subject to clause 12.4, our maximum aggregate liability to the Customer and any Authorised User of the Customer collectively for any loss or damage in respect of any claims arising out of these Terms whether in contract, tort or otherwise shall not exceed the greater of (i) two times the total amount paid to and received in clear funds by us under these Terms in the twelve months prior to the date the cause of action first arose (less any applicable VAT); and (ii) £100,000 (one hundred thousand pounds). For clarity: (i) the liability cap set out in this clause 12.3 shall apply once in respect of each individual Customer as a whole, regardless of the number of Authorised Users that accept these Terms on behalf of that Customer; and (ii) if there is an Original Agreement between us and the Customer, and that Original Agreement limits our liability, then the limits on liability set out in that Original Agreement shall apply instead of this clause 12.3.
12.4 Nothing in the Terms shall exclude or restrict either party’s liability for death or personal injury resulting from the negligence of that party or of its employees while acting in the course of their employment or shall exclude or restrict a party's rights, remedies or liability under the law governing the Terms in respect of any fraud or for any other liability which may not lawfully be excluded or limited. For the avoidance of doubt, nothing in this clause 12.4 shall exclude or limit the Customer's liability to make payments contractually due under the Terms or otherwise.
13.1 Each party agrees that:
(a) it has put in place and shall maintain throughout the term of these Terms all processes, procedures and compliance systems reasonably necessary to ensure that Modern Slavery and/or Bribery and/or Tax Evasion does not occur within its business or down its supply chain;
(b) it shall and shall procure that all persons associated with it shall comply with all applicable laws relating to Bribery, Modern Slavery and/or Tax Evasion; and
(c) it shall inform the other party if Bribery, Modern Slavery and/or Tax Evasion has occurred in connection with the services being provided pursuant to these Terms.
Any notice or other communication to be given under the Terms shall be in writing and shall be deemed to have been duly served on, given to or made in relation to a party if it is left at the authorised address of that party (which shall be the registered office address or such other address as each party may notify to the other in writing from time to time) or posted by pre-paid first class post addressed to that party at such address and shall:
(a) if personally delivered, be deemed to have been received at the time of delivery; or
(b) if posted to an inland address in the United Kingdom, be deemed to have been received on the second business day after the date of posting, provided in either case that where, in the case of delivery by hand, delivery occurs after 5.00pm on a business day or on a day which is not a business day, receipt shall be deemed to occur at 9.30am on the next Business Day. A copy of any notice sent to us must also be sent to Director of Legal Affairs, The Addressable Platform, 200 Gray’s Inn Road, London WC1X 8HF.
15.1 The Terms contain the entire agreement and understanding of the parties in relation to use of the Platform and the Services and supersede all prior agreements, understandings or arrangements (both oral and written) relating to the same. Each of the parties acknowledges and agrees that it does not enter into the Terms on the basis of, and does not rely, and has not relied, upon any statement, representation, warranty, forecast or other information (in any case whether oral, written, express or implied) made, given or agreed to by any person (whether negligently or innocently and whether or not made by a party) which is not expressly contained or referred to in the Terms (a Representation) and it shall have no remedy (including any rights to damages or rescission in an action for misrepresentation) for any Representation which was, is, or becomes false or misleading.
15.2 Where the parties have entered into a separate agreement either: (i) in respect of the Platform; and/or (ii) in relation to the provision of the same or substantially similar services (the Original Agreement), the provisions of the Original Agreement shall prevail over these Terms to the extent of any inconsistency.
15.3 No variation, supplement, deletion or replacement of or from the Terms shall be effective unless made in writing and signed by or on behalf of each party with the intention to vary, supplement, delete or replace being clearly expressed.
15.4 No waiver by either party of any breach of the other party’s obligations shall constitute a waiver of any other prior or subsequent breach and neither party shall be affected by any delay, failure or omission to enforce or express forbearance granted in respect of any obligation of the other party.
15.5 If the whole or any part of any provision of these Terms is or becomes invalid, void or unenforceable for any reason, the same shall to the extent required be severed from these Terms and rendered ineffective so far as is possible without modifying the remaining provisions of these Terms and shall in no way affect the validity or enforceability of any other provisions.
15.6 Nothing in these Terms shall constitute a partnership or joint venture between the parties or constitute either party as agent of the other for any purpose whatsoever and neither shall have authority or power to bind the other or to contract in the name of the other or create liability against the other in any way or for any purpose save as expressly authorised in writing by the other from time to time. The relationship between the parties is that of independent contractors. The relationship between the parties is non-exclusive unless otherwise agreed between the parties.
15.7 The Customer shall not assign or subcontract any of its rights or obligations under the Terms without our prior written consent. We may subcontract any of its rights or obligations under the Terms without Customer’s consent. Each party which subcontracts under these Terms shall remain primarily liable for all acts and omissions of its subcontractors.
15.8 No person other than a party may enforce these Terms by virtue of the Contracts (Rights of Third Parties) Act 1999.
15.9 Rights and remedies of any party under the Terms are independent, cumulative and without prejudice to its rights under the law.
16. GOVERNING LAW AND JURISDICTION
The Terms and any disputes, claims and obligations arising out of or in connection with them or their subject matter or formation (including any non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.
ANNEX 1 – SUB-PROCESSORS
- Amobee Inc, 10201 Wateridge Circle, Suite 400, San Diego, CA 92121, United States of America
- Amobee EMEA Limited, Noah's Yard, 10 York Way, London, United Kingdom, N1 9AA
- Amazon Web Services, Inc., 1200 12th Avenue South, Suite 1200, Seattle, WA 98144
- Google LLC, Amphitheatre Parkway, Mountain View, California 94043