POWERLINKS AD EXCHANGE AND AD SERVER
MASTER SERVICES AGREEMENT
If you wish to make use of some or all of the Ad Exchange and Ad Server services provided by us, you must first register your application to use the services and comply with our registration requirements including providing full and accurate information. You must then wait until your registration is accepted. We reserve the right to refuse any application in our sole discretion without giving reason. If accepted, this Agreement sets out the terms that will apply to our supply of services unless alternative terms are agreed with you in writing. By using our services you agree to the terms of this Agreement.
This is a legally binding contract (the Agreement) between the following parties:
(1) PowerLinks Media Limited of The Edge, Clowes Street, Salford M3 5NA (PowerLinks, we or us). We are a company registered in England and Wales with company number 08012063; and
(2) You, the Company, being a business whose registration with PowerLinks Ad Exchange and/or Ad Server has been accepted by us.
Where you as an individual have entered into this Agreement on behalf of your employer or business, the terms “you” and “Company” shall refer to that employer or business.
1.1You warrant that:
(a)You have full authority and capacity to enter into this binding contract; and
(b)You have provided us with your true and accurate current postal address and your valid, operational email address and that you will keep us informed of any changes to this information.
2.1From your first use of the Services until termination of this Agreement, PowerLinks grants to Company a non-exclusive licence (the “Licence”) to use the Services on the terms set out in this Agreement and as described in the Web Based Guidelines.
2.2The Licence does not extend to any uses unless expressly permitted in this Agreement.
2.3Except to the extent necessary for the normal use of the Services or to the extent that such right cannot be excluded by law:
(a)Company has no right (and shall not permit any third party) to copy, adapt, amend, reverse engineer, decompile, disassemble, modify, distribute or make error corrections to any aspect of the Services in whole or in part; and
(b)Company has no right to a copy of any software used in the provision of the Services, or of any algorithms or code or other material relating to the Services.
2.4Company shall not sub-license, assign or novate the benefit or burden of this Agreement in whole or in part or deal in any other manner with any or all of its rights and obligations under this Agreement. PowerLinks may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Agreement.
2.5Company shall notify PowerLinks as soon as it becomes aware of any unauthorised use of the Services by any person.
2.6Where any outstanding Fees remain payable under this Agreement, Powerlinks may suspend the Licence without notice to the Company and may block access by the Company to the Services.
3.1The Company agrees to pay the Fees to Powerlinks and Powerlinks agrees to pay the Balance Due to the Company on the terms of this Agreement.
3.2Powerlinks shall be entitled to invoice the Fees as soon as they are due and all invoices shall be paid by Company in sterling within 30 days of receipt of the invoice as specified in the Web Based Guidelines or by any reasonable means specified by PowerLinks.
3.3All sums payable from you to us under this Agreement are exclusive of VAT or any relevant local sales taxes, for which Company shall be responsible.
3.4If Company fails to pay any amount payable by it under this Agreement, PowerLinks may charge Company interest on the overdue amount (payable by Company immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 5% per annum above the base rate for the time being of HSBC Bank plc. Such interest shall accrue on a daily basis and be compounded quarterly. PowerLinks may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002.
3.5On written request by the Company received by PowerLinks within 6 months of the date of any invoice, PowerLinks agrees to provide Company with a report setting out how the amount of the invoice was calculated. If Company does not give PowerLinks notice in writing that it disagrees with the amount included in an invoice within 7 months of the date of the invoice, then the amount set out in the invoice shall be taken as accurate between the parties and PowerLinks shall be entitled to destroy all records used to calculate the amount in the invoice.
3.6Company must not do anything that is likely to distort or result in an inaccurate assessment of the correct amount of the Fees or the Balance Due.
3.7You agree to all pricing structures or models set out in the Web Based Guidelines unless an alternative structure or model is specified in the Schedule. You also agree to self-invoicing and the provision of all documentation required for VAT accounting.
3.8For the avoidance of doubt, no lower threshold limits apply to money due from you to us.
3.9All payments due under PowerLinks Ad Exchange must be paid to us; you must not make any payments direct to any publisher.
3.10Where your use of the Services involves the publication of ads or other material on behalf of an advertiser on Your Site:
(a)Where Inventory has been sold by the Company to an advertiser, the Balance Due does not become payable to the Company by PowerLinks unless and until payment for the sale has been received by PowerLinks;
(b)The Balance Due shall be calculated by PowerLinks within 15 days after the end of the month in which PowerLinks received the relevant payment from an advertiser, and Power Links shall generate a self-billing invoice which shall be made available to the Publisher. PowerLinks shall pay such invoices within 30 days of the invoice date (except to the extent that any payment is withheld because of non-payment by the advertiser or because PowerLinks is exercising its right of set-off);
(c)Payment shall be subject to any minimum threshold set out in the Web Based Guidelines;
(d)If, after making reasonable endeavours to do so, we are unable to establish satisfactorily the necessary contact details to enable us to make due payments to you, then we shall be entitled to retain all unpaid sums which would otherwise have been payable to you. You will have no further right to claim these sums. For the avoidance of doubt, if we give you written notice under this Agreement that we require you to provide us with your details to enable us to make payment, and you do not provide us with satisfactory details within 3 months of our notice, then we shall be entitled to retain all unpaid sums in accordance with this clause.
3.11We may set-off any amount owed by us to you against any amount owed by you to us.
4.Confidentiality and Intellectual Property
4.1Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
4.2Company acknowledges that all Intellectual Property Rights in the Services belong and shall belong to PowerLinks (or are licensed to PowerLinks), and Company shall have no rights in or to the Services other than the right to use them in accordance with the terms of the Licence.
4.3Company shall have no agreement to use any trade marks (whether registered or unregistered) owned by PowerLinks including the trade mark PowerLinks except as expressly agreed in writing by PowerLinks.
4.4The terms of this Agreement are confidential and may not be disclosed by Company without the prior written consent of Powerlinks.
4.5PowerLinks has the right to publicly identify the Company as a user of PowerLinks Services for marketing or other purposes.
5.1The Company shall comply with all requirements set out in the Web Based Guidelines.
5.2Your Site, Content and any use by you of the Services shall comply with all relevant laws and regulations (including laws concerning data protection) and must not infringe third party rights, including Intellectual Property Rights. Your Site, Content and any use of the Services must conform to good advertising practices and must comply with any relevant codes issued by the Internet Advertising Bureau, the Advertising Standards Authority or the Committee of Advertising Practice. Your Site, Content and all ads and websites connected or linked to your use of the Services must not contain (nor contain links to) any illegal or objectionable material or sites. For these purposes, illegal shall mean illegal under the laws of England and Wales or any other jurisdiction at which Your Site is targeted. Objectionable material shall include, without limitation, material connected with the following, even if it is not illegal as such:
(a)The commission of crime;
(b)Illegal guns and weapons;
(c)Pornographic, immoral or obscene material;
(d)Discrimination or harassment on the grounds of race, racial group, sex, sexual orientation, religion or belief, age or disability;
(e)Violence towards any person or animal;
(f)Physical or mental abuse including self-abuse;
(g)The abuse of alcohol, tobacco, drugs and other substances;
(h)Defamatory or malicious material in connection with individuals or businesses.
We may remove or disable any Content or suspend or discontinue your use of the Services at any time without notice for breach of these obligations.
5.3Content must meet any technical standards set out in the Web Based Guidelines.
5.4To make use of the Services, you may be issued with an id, key, code, PIN, password, activation means or similar personal security measure (“PSM”). Any such PSM is personal to you and you shall keep it safe. You must not share a PSM with anyone except authorised employees to the extent they require knowledge of the PSM for use of the Services within the scope of the Licence. You shall be responsible for ensuring that any employee who has access to a PSM, agrees to comply with the terms of the Licence and agrees not to make use of that PSM once they leave your employment. Company shall be responsible for mis-use by any person of a PSM issued to Company.
5.5Any use of the Services or of a PSM to access data, information, user areas, or any other material to which the user concerned does not have legitimate rights of access is strictly prohibited. You must not attempt to gain unauthorised access to any PowerLinks website, server, computer, network or database.
5.6You shall not interfere with or disrupt the normal operation of the Services, including by introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful to any PowerLinks website, server, computer, network or database.
5.7PowerLinks reserves the right to take any action to avoid or mitigate loss caused by misuse or unauthorised sharing of the PSM or other breach by you of your obligations, including removing or blocking material and including deactivating access to the Services by you.
5.8Where your use of the Services involves the publication of ads or other material on behalf of an advertiser on Your Site:
(a)You will comply immediately with any request by PowerLinks or the relevant advertiser to cease using an ad;
(b)You agree not to alter, edit, filter or truncate any ads, including code, which we or the advertiser provides to you by the addition of “no-follow”, “no-index” or other commands;
(c)You are not permitted to use ads in any way which is likely to harm the reputation of us or of advertisers or to utilise them in a derogatory or misleading manner;
(d)Your Site must not contain any negative statements about us or any advertiser, or any goods or services offered by any advertiser. You will not in any way suggest that we are endorsing any products or services, or misrepresent the relationship between us and you or between us and an advertiser, nor present any other false information about us or any advertiser. You will do nothing to suggest that Your Site is owned or operated by, or associated with, or endorsed by us or any advertiser.
5.9Where your use of the Services involves you advertising through us or through another publisher:
(a)You grant us a royalty free, worldwide, non-exclusive license for the duration of this Agreement to use any Content in any media or format or adaptation and to permit publishers participating in PowerLinks Ad Exchange so to use any Content. Use includes use in accordance with the Web Based Guidelines by way of publication, display, reproduction, compilation or editing.
(b)For the avoidance of doubt, you are responsible for the correct operation of the Content, for any choice of Inventory on which to bid, for the appropriateness of that Inventory for your purposes, for the operation of Your Sites, and for any goods or services offered on Your Sites.
(c)You will provide us with an accurate data-feed which complies with our data-feed guidelines sent to you or set out on the PowerLinks Website (which may be updated from time to time). You agree to keep this data-feed updated by daily uploads (where data has changed). You warrant that your data-feed and Content reflects genuine goods and/or services you are willing to sell to customers.
5.11You agree to all minimum volumes (such as Inventory, bids and spend levels) set out in the Schedule together with any other stipulations or requirements such as a minimum term set out in the Schedule.
5.12Where, as part of your use of the Services, Inventory purchased by you is to be used by a third party, or Inventory to be sold by you is owned by a third party, you are responsible for ensuring compliance by that third party with all relevant obligations under this Agreement as if the third party had been a party to this Agreement.
6.Warranties and Limits of Liability
6.1PowerLinks warrants that the Services will conform in material respects to the description of the Services in the Web Based Guidelines.
6.2NO REPRESENTATION OR WARRANTY is given by PowerLinks that:
(a)the material displayed on the PowerLinks Website is accurate; or
(b)operation of the Services or the PowerLinks Website will be uninterrupted or error free; or
(c)any content available for downloading from us is free from viruses or any other contamination or destructive features; or
(d)you will receive any increase in business or achieve improved results in any context (such as increase in website visits, increase in conversion, reduction in bounce or improvement in search engine rankings) by use of the Services; or
(e)the websites of third party publishers, or ads placed by third party advertisers, participating in the Services meet any of your requirements; or
(f)any data provided or utilised as part of the Services (such as demographic data) is accurate, error free or comprehensive.
6.3It is the responsibility of Company to ensure that:
(a)the Services perform the purpose for which they are required;
(b)all appropriate tests are carried out to ensure that the Services will function properly in the environment in which they are to be used;
and Company warrants that it will ensure that such is the case.
6.4Company warrants that the Content is accurate, free from malicious code and that any use of the Content will not infringe the rights of any third party.
6.5Where a person is directed to Your Site as a result of your use of the Services, PowerLinks will not be liable for any acts or omissions of that person, including non-payment of any money owed by that person to you. For the avoidance of doubt, we shall not be responsible for taking any orders, enquiries, complaints or communication on your behalf and shall have no involvement in any purchases made by customers from you except as expressly set out in this Agreement.
6.6PowerLinks will not be liable for the operation or correct functioning of any links to or from Your Site provided by or on behalf of any advertiser or published by any publisher.
6.7All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
6.8Nothing in this Agreement shall operate to exclude or limit either party’s liability for:
(a)death or personal injury caused by its negligence; or
(c)any other liability which cannot be excluded or limited under applicable law.
6.9PowerLinks will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect any site, computer equipment, computer programs, data or other proprietary material due to your use of the Services.
6.10Where the Services facilitate uploading of any material (including text and images) by third parties (or by or on behalf of the Company) onto Your Site, it is your responsibility to ensure such material is not in any way illegal, defamatory, in breach of another party’s rights or contrary to regulations or good practice. Powerlinks will not be liable for any third party claims in respect of such material.
6.11Except as expressly stated in clause 6.8:
(a)PowerLinks shall have no liability for any losses or damages which may be suffered by Company (or any person claiming under or through Company), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i)special damage even though PowerLinks was aware of the circumstances in which such special damage could arise;
(ii)loss of profits;
(iii)loss of anticipated savings;
(iv)loss of business opportunity;
(v)loss of goodwill;
(vi)loss or corruption of data,
provided that this clause 6.11(a) shall not prevent claims for loss of or damage to Company’s tangible property that fall within the terms of clause 6.11(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) set out in this clause 6.11(a).
(b)The total liability of PowerLinks, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed the total sums payable by you to us (including via a third party) under this Agreement in the 12 months prior to the date on which liability first arises.
(c)Company agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) PowerLinks shall have no liability otherwise than in accordance with the express terms of this Agreement.
6.12Company agrees to indemnify PowerLinks against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by PowerLinks arising out of or in connection with:
i) any claims against PowerLinks by a third party which arise out of the use by Company (or the use by any person authorised by Company) of the Services; or
ii) the exercise by Company of its rights granted under this Agreement; or
iii) Company’s breach of this Agreement.
7.Data and Monitoring
7.1PowerLinks has the right to collect, monitor, use and disclose any data arising out of Company’s use of the Services for all of the following purposes:
(a)to provide and improve the Services and to calculate the Fees, including by way of use of third party service providers and sub-contractors;
(b)to comply with any law or regulation and for the purpose of obtaining or maintaining any appropriate certification;
(c)to prepare and publicise aggregate statistics and other information concerning the operation of the Services;
(d)to monitor compliance by the Company of this Agreement and to enforce its rights under the Agreement.
7.3You shall not pass any data to us which is or could be used as personally identifiable information concerning a third party or any data which could be regarded as “sensitive”.
8.Duration and termination
8.1Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, PowerLinks may terminate this Agreement with immediate effect by giving written notice to the Company if the Company fails to meet any of the minimum volumes agreed with the Company.
8.2Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may at any time terminate this Agreement with immediate effect by giving written notice to the other party if:
(a)the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b)the other party commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c)the other party: i) suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or ii) becomes subject to an order made or the passing of a resolution to wind up; or iii) becomes subject to an order made for the appointment of an administrator; or iv) becomes subject to the appointment of an administrative receiver or a receiver or an administrator; or v) enters into a voluntary arrangement with creditors.
8.3Either party may terminate the Agreement by giving the other party not less than 28 days’ written notice so long as, if any Initial Term has been agreed, such notice does not expire before the end of the Initial Term.
8.4On termination for any reason:
(a)all rights granted to Company under this Agreement shall cease;
(b)Company shall cease all activities authorised by this Agreement; and
(c)Each party shall immediately pay to the other any sums due to that other under this Agreement;
(d)Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
9.1Balance Due means sums received by PowerLinks from an advertiser as a result of the sale of Inventory by the Company to the advertiser less a 20% Buyer Auction Fee which is retained by PowerLinks, or using such other percentage or method of calculation as set out in the Schedule or as specified in the Web Based Guidelines. For the avoidance of doubt, if a method of calculating the Balance Due is set out in the Schedule, the Schedule shall take priority.
9.2Buyer Auction Fee: a fee retained by PowerLinks as a proportion of the sum paid by an advertiser for Inventory before paying the balance to a publisher.
9.3Content means any material provided by you for use by publishers, including us, for use in connection with Inventory or advertising purchased through the Services including names, images, text, prices, trade marks, banners, widgets, advertising, links, graphics, data, software and code.
9.4Fees means the fees payable by Company to PowerLinks for use of the Services as specified in the Schedule of this Agreement (or, in the absence of a Schedule, as agreed in writing between the parties or, failing express written agreement as set out in the Web Based Guidelines). For the avoidance of doubt, if a method of calculating the Fees is set out in the Schedule, the Schedule shall take priority. Powerlinks may amend the Fees at any time by giving the Company 30 days’ notice which shall include by posting the amendments on the Powerlinks Website.
9.5Initial Term means any initial term set out in the Schedule.
9.6Intellectual Property Rights means all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
9.7Inventory means digital advertising inventory.
9.8PowerLinks Website means www.PowerLinks.com or such other website or websites notified by PowerLinks to Company as the primary sites from which Powerlinks Ad Exchange and Powerlinks Ad Server operate.
9.9Services means the Powerlinks Ad Exchange service and the Powerlinks Ad Server service (or any aspect of them including the sale and facilitation of sale of Inventory) as described on the Powerlinks Website including use of any specialised software provided by PowerLinks connected with these services.
9.10Schedule means any document agreed in writing between the parties which: a) is expressed to be a Schedule to this Agreement; or b) otherwise relates to our provision of Services to You and contains pricing structures or models, minimum volumes, minimum term or Initial Term.
9.11Your Site means any website owned and operated by Company in connection with which the Services are used or are intended to be used.
9.13a) References to PowerLinks and Company include their permitted successors and assigns; b) references to statutory provisions include those statutory provisions as amended or re-enacted; c) references to one gender includes a reference to the other genders; d) references to “including” or “includes” shall be deemed to have the words “without limitation” inserted after them; e) subject to any express written terms of this Agreement or the Schedule, the terms of the body of this Agreement shall take priority in the case of conflict with the Schedule or the Web Based Guidelines or any other document; f) words in the singular include the plural and those in the plural include the singular; and g) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors or permitted assigns.
10.1If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
10.2Except where expressly stated, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.3Any notice required to be in writing under this Agreement can be given:
(a)by email to the last known email address of the party to whom notice is given and shall be deemed delivered immediately on sending, provided that a printed copy of the email is sent by first class post or courier the same or following business day to the registered office of the party to whom notice is given;
(b)in person or by first class post or courier to the registered office of the party to whom notice is given, in which case deemed delivery shall be the time actual delivery can be evidenced by certificate of service or signature of receipt, or otherwise on the second business day after the day of sending.
10.4No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
10.5This Agreement, any Schedule to this Agreement, the Web Based Guidelines and any further documents referred to therein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
10.6A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
10.7Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
10.8Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control (including malfunction of internet or network connection, hardware fault, virus, DNS attack), and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed provided that if the period of delay or non-performance continues for 3 months, the party not affected may terminate this Agreement by giving 14 days’ written notice to the other party.
10.9This Agreement and any connected dispute shall be governed by and construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English Courts.