1. ADVERTISING SERVICES
RL provides the following advertising services for the Advertiser: Standard Advertising Services and Standalone Tracking Services.
RL provides the following advertising services for the Advertiser: Standard Advertising Services and Standalone Tracking Services.
(a) For the Standard Advertising Services, RL shall provide for the dissemination of advertising content (the "Ads") for the Advertiser's goods and services, via both online and offline media, for the period of time and for the compensation set forth on the IO (the "Campaign"). RL shall determine, in its sole discretion, which online or offline media (the "Publishers") through which to run the Campaign. Advertiser acknowledges that due to changing fees from the Publishers, the Publisher mix in a Campaign may change at any time without notice. Advertiser acknowledges that RL does not operate or control the Publisher's media with the exception of its own proprietary online directory (the "RL Directory") -- and that RL acts only as a sales representative or reseller of advertising inventory or listing services for the Publishers. Accordingly, Advertiser acknowledges that RL makes no guarantees about when or where Ads will be displayed by a Publisher, nor does it guarantee that all of its available Publishers will carry the Ad. While RL will use commercially reasonable efforts to place Ads such that they will be seen by consumers in the target locales specified by Advertiser, RL cannot guarantee that the Advertiser's Ads will only or primarily be displayed to people in the target locales. RL may, in its sole discretion, place the Ads within the RL Directory or on any page of RL's website. Advertiser understands that RL is under no obligation and may not be able to provide any samples of Ads in the context of any Publisher's website or RL's Directory. In addition, as part of the Standard Advertising Services, RL may create and post online a local profile page ("Local Profile Page") for the Advertiser, which may include the following information regarding the Advertiser: name, phone number, email address, physical address and information regarding the products or services to be advertised. As part of the Standard Advertising Services, the Advertiser shall be provided with certain data and statistics concerning the performance of the Ads (the "Tracking Information") as more fully described in Section 5.
(b) Standalone Tracking Services shall refer to a service whereby RL enables the Advertiser to obtain Tracking Information regarding advertising purchased through third parties.
2. CAMPAIGN LOGISTICS/ DURATION
(a) Upon the signing of an IO by the Advertiser and acceptance thereof by RL, RL will set up the Campaign. Acceptance by RL of the IO shall be notifed by RL in writing (which may include email) to the Advertiser. The duration of the Campaign (the "Campaign Term") shall run from the Target Start Date (as detailed in the IO) to either
(i) the Target End Date, as set forth in the IO, with adjustment to such dates as is herein provided or
(ii) if the IO indicates that it is set up for Unlimited Auto Renewal (as defined in the IO) until terminated in accordance with Section 15. Advertiser acknowledges that RL may take up to 10 business days to review the Campaign and may require further input from Advertiser. Thereafter, the Publishers, in the case of Standard Advertising Services, may take additional time to commence distribution of the Campaign. Therefore, the actual commencement date for a Campaign (the "Actual Start Date") may be later than the Target Start Date. Advertiser acknowledges that RL shall have no liability, and Advertiser shall not be entitled to terminate this Agreement or seek a refund, as a result of any such delays which are outside of RL's reasonable control. The Target End Date specified on the IO is an estimate of when the Campaign will end. The Target End Date will automatically be adjusted by the number of days, if any, that the Actual Start Date is later than the Target Start Date. In addition, in the case of Standard Advertising Services, Advertiser acknowledges that it may take more or less time to exhaust the Campaign Media (as defined below), due to, among other things, the scheduling and inventory constraints of the Publishers. The Actual End Date for Standard Advertising Services will be the day when no less than 98% of the Campaign Media (as defined below) has been exhausted. The Campaign Term consists of Campaign Periods (as further defined below).
(b) For Standard Advertising Services, a Campaign Period is the period of time from RL's commencement of spending the Monthly Spend, as set forth in the IO, until such time as no less than 98% of the Monthly Spend has been spent.
(c) With respect to Standalone Tracking Services, the Campaign Period is each thirty (30) day period in which the services are provided during the Campaign Term.
3. FEES
Advertiser agrees to pay, in accordance with Section 4, the following fees, in the amounts set forth in the IO: (a) Campaign Media refers to the contractually committed spend by the Advertisers for the Standard Advertising Services, which is, as set forth in the IO, broken up into per month allocations (the "Monthly Spend"). For purposes of this Agreement, the full amount of the Campaign Media shall be payable to RL provided no less than 98% of the Campaign Media is spent (which shall be tracked using RL's Platform) and RL shall provide evidence of any such expenditure. Advertiser acknowledges that all statistics provided by RL evidencing such expenditure shall be conclusive and binding on Advertiser for all purposes of this Agreement subject to any bona fide dispute which shall be dealt with by Section 20. (b) Campaign Management/ Tracking Fees refer to fees charged by RL for managing and tracking Campaigns. The Campaign Management/ Tracking Fees will be charged for each Campaign Period. RL reserves the right to change the Campaign Management/Tracking Fees at any time, provided that such changes will not take effect until a new IO has been executed and delivered to RL by Advertiser. (c) Campaign Set-Up Fee refers to a one off fee for the set-up of a Campaign. (d) Campaign Destination Page Set-Up Fee refers to the fee charged by RL for the design and building of a Standard Offer Page (as described in Section 5(a) below). Advertiser is not entitled to receive any credits, discounts, rebates, refunds provided to RL by Publishers. Moreover, if RL, in its sole discretion, passes on any such credits, discounts, rebates, refunds, it shall be under no obligation to do so in the future.
For the avoidance of doubt, all fees shall be exclusive of VAT.
4. PAYMENT TERMS
(a) Prior to the initial Campaign Period, Advertiser shall pay the Campaign Media and the Campaign Management/Tracking Fees for the initial Campaign Period and the Campaign Set-Up Fees and Campaign Destination Page Set-Up Fees, if applicable. Generally, payment will be made by charging the Advertiser's credit card (the "Advertiser's Card"), unless RL has agreed to accept payment by cheque, debit card or to invoice Advertiser in accordance with the relevant IO. In advance of each subsequent Campaign Period, unless RL has agreed to invoice Advertiser, Advertiser shall pay the Campaign Media and Campaign Management/Tracking Fees. In connection with the foregoing and to ensure that there is no pause in the Campaign, RL may charge the Advertiser's Card for the upcoming Campaign Period when 85% of the Monthly Spend for the current Campaign Period has been exhausted and may charge the Advertiser's Card in advance for the Standalone Tracking Services. Advertiser acknowledges that RL may suspend any Campaign during any Campaign Period for which the Advertiser has not paid, in advance, the Monthly Spend (except for those Advertisers that RL has agreed to invoice).
(b) If RL has agreed to invoice the Advertiser (in lieu of charging the Advertiser's Card) Advertiser shall pay all invoices within 14 days of the invoice date.
(c) If any sum payable under this Agreement is not paid when due then, without prejudice to RL's other rights under this Agreement, that sum will bear interest from the due date until payment is made in full both before and after any judgment, at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from time to time and RL will be entitled to suspend performance of the Standard Advertising Services and/or the Tracking Services until the outstanding amount has been received by RL from the Advertiser. The Advertiser agrees to pay all costs of collection (including attorneys fees and all other legal expenses) incurred by RL in connection with its enforcement of its rights under the Agreement.
(d) Once an IO has been accepted by RL, Advertiser will be responsible for payment in full of all fees set forth therein. If Advertiser cancels an IO for any reason, the Advertiser shall compensate RL for any losses it suffers as a result of such cancellation including loss of profit, and all pre-paid fees shall be forfeited as a non-refundable deposit.
(e) All payments due hereunder are in pounds sterling and are exclusive of any sales, use or similar applicable taxes including VAT. Advertiser shall promptly pay all such taxes and any associated interest and penalties.
5. TRACKING INFORMATION
(a) Defined Terms:
Offer Page Tracking: refers to the tracking of online promotional offers, which may require consumers to provide registration information. Advertiser is responsible for providing the terms and conditions and the privacy policy governing the Standard Offer Page.
Destination Page: The Destination Page is the web page to which the consumer will be directed to as part of the Campaign. There are two types of Destination Pages. The Standard Offer Page is a web page which RL may provide to an Advertiser that does not already have its own site. It will consist of a basic web page with information provided by Advertiser on a url owned by RL. Advertiser agrees that RL may restrict the ability of Advertiser to modify or request modifications to Advertiser's Standard Offer Page once the Campaign has commenced. Upon the conclusion of the Campaign Term, RL retains ownership of the Advertiser's Standard Offer Page. The other type of Destination Page is the Existing Website, which is the Advertiser's existing site.
Destination Page Tracking: refers to the tracking of visits to the Destination Page.
eMail Tracking: refers to the tracking of emails sent to the Advertiser through the Proxy Site, as defined below (the "Proxy eMails"), which is accomplished by dynamic substitution of Advertiser's e-mail address(es) on the Destination Page with e-mail form(s). Advertiser acknowledges that the Proxy eMails are routed through RL's servers. Advertiser agrees and understands that RL is not responsible for the advertised e-mail addresses entered by Advertiser and to which the Tracking E-Mail Addresses will forward. For purposes of quality assurance and Campaign assessment, RL may access and review all Proxy eMails. RL cannot guarantee that 100% of the Proxy eMails will be delivered to the Advertiser.
Web Event Tracking: refers to the tracking of specific events on the Advertiser's site (e.g. number of visits to a contact page).
Phone Number Tracking: refers to the tracking by RL of phone calls received by Advertiser, which is accomplished by RL or its third party provider providing up to two tracking phone number(s) (each, a "Tracking Number") that will be dynamically displayed on the Destination Page in lieu of the Advertiser's phone number(s) and that will forward to the Advertiser's phone number(s). Advertiser acknowledges that it does not own and will not, as the result of this Agreement, obtain any ownership interest in the Tracking Numbers.
Tracking Services: refers to any or all of Destination Page Tracking, Offer Page Tracking, eMail Tracking, Web Event Tracking or Phone Number Tracking.
(b) For the Standard Advertising Services, RL shall provide such of the Tracking Services as RL deems to be appropriate in respect of those Standard Advertising Services where Standalone Tracking Services have not been ordered, to enable Advertiser to assess the performance of any Campaign. For the Standalone Tracking Services, RL shall provide any of the three options, as set forth on theIO: (i) Web Tracking, which shall include Offer Page Tracking and Destination Page Tracking; (ii) Phone Tracking; or (iii) Web and Phone Tracking which shall include both (i) and (ii). Unless otherwise agreed to by RL in writing, Web Tracking shall be limited to 1,000 web page visits per Campaign Period and Phone Tracking shall be limited to 60 minutes per Campaign Period.
(c) Advertiser acknowledges that RL is not obligated to keep and maintain any data obtained as the result of the Tracking Services for more than thirty (30) days after the collection of any such data (including Call Recordings (as defined below) and Proxy eMails, but may at its sole discretion do so for quality assurance and Campaign assessment purposes.
6. IMPLEMENTATION OF TRACKING SERVICES
In order to implement the Tracking Services, Advertiser hereby agrees that RL may do any of the following: (a) To the extent that the Destination Page is an Existing Web Page, Advertiser hereby permits RL to provide a mirrored or proxied version of the Advertiser's website (the "Proxy Site"). In connection with the implementation of the Proxy Site, RL may, but is not obligated to, do any or all of the following:
- Deploy click tracking code to track the pages that users may access as a result of the Campaign. RL may place cookies or similar such online tools on the Proxy Site to effect the foregoing Tracking Services and such other services as RL may reasonably determine. Advertiser acknowledges that such cookies may be used for the benefits of both the Advertiser and for third parties.
- On the Proxy Site, insert a link or links in appropriate places on the site, advising consumers of certain matters pertaining to the operation of the Proxy Site.
- Implement Keyword highlighting, which would highlight, on the Proxy Site, the search terms used by the consumer to locate the site.
- Make such other aesthetic or functional changes to the Existing Site so as to enhance the performance of the Campaign.
- Advertiser understands that, in order for RL to provide the functionality necessary to implement the Tracking Services, the url for the Proxy Site (the "Proxy URL") will be different than the url for the Existing Site. The Proxy URL shall be the property of RL. Advertiser acknowledges that except with respect to the changes contemplated hereby, the functionality and appearance of the Proxy Site will be identical to the Existing Site. Accordingly, RL disclaims any liability arising from the design, content or functionality of the Proxy Site.
(b) Advertiser hereby acknowledges that changes to the Existing Site (including any tracked phone numbers or email addresses) will result in the failure of the Tracking Services. Therefore, so as to avoid disrupting the Tracking Services, Advertiser must give RL at least ten (10) business days' prior written notice of any changes to the Existing Site (including any url changes). Any failure of the Tracking Services resulting from the Advertiser's failure to provide timely notice of disruptive changes shall not excuse Advertiser's obligations to pay, all amounts owed under any applicable IO. (c) RL cannot and does not guarantee that any of the foregoing tracking methods will track every instance of activity that is intended to be tracked. Without limiting the generality of the foregoing, the Tracking Services may not fully function in the following circumstances, among others:
- If the Existing Site significantly uses Flash or embedded images.
- When the consumer has disabled the use of cookies.
- Where the Advertiser has used the incorrect tracking url.
7. SPECIAL TERMS FOR PHONE TRACKING
(a) Provisioning Tracking Phone Numbers. Advertiser acknowledges that, for local Advertiser phone numbers, RL will first try to provision a local Tracking Phone Number, but, in the event such a local Tracking Phone Number is not available, Advertiser hereby gives RL permission to provision a toll free Tracking Phone Number instead.
(b) Advertiser's Options. At Advertiser's option, as reflected on the IO, Phone Number Tracking, may include the following features (collectively the "Call Tracking Features"): Call Recording (whereby a recording is made of inbound phone calls attributable to the Campaign); Caller ID (whereby the phone number of the caller is used to look-up their name and address). By electing the Call Tracking Features, Advertiser is representing and warranting that it has all necessary rights to implement such tracking features. The Advertiser acknowledges that RL disclaims any and all liability that may arise as the result of the implementation of Call Recording where such liability arises due to conditions outside RL's reasonable control.
(c) Call Recording Specifics. In connection with Call Recording, Advertiser understands that an initial recording shall be played to consumers at the outset of calls to the Advertisers, which shall, among other things, notify the consumer that the call is being recorded and for what purpose. In addition, Advertiser will advise its employees that its calls may be recorded and for what purpose.
(d) Call Review: For purposes of quality assurance and Campaign assessment, RL may access and review all Call Recordings.
(e) Limitations. Unless otherwise agreed to by RL in writing, call minute usage shall be limited to sixty (60) minutes of call time per Tracking Number for each Campaign Period.
8. ACCESS TO RL'S SITE
Upon execution of the IO, Advertiser will be granted a revocable, non-transferable, non-exclusive limited license to use the RL Advertiser website (the "Site") solely for the purpose of accessing the Tracking Information. Advertiser's access shall be password protected and Advertiser agrees that it shall not share its password with third parties. Advertiser acknowledges and agrees that it does not have, nor will it claim any right, title or interest in the Site software, methods, data, applications, of doing business or any elements thereof, or any content provided on the Site. Advertiser may only access the Site via web browser or in a manner otherwise approved by RL.
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Advertiser will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site. RL may terminate the foregoing license, at any time for any reason. As part of gaining access to the Site, Advertiser hereby consents to allowing its sales agent to input the Advertisers contact information, credit card information and campaign information into the Platform. RL will only use the foregoing information in connection with the implementation of the relationship contemplated by this Agreement. In addition, RL may, from time to time, send Advertiser emails regarding platform updates, campaign updates, payment reminders, and marketing opportunities.
9. PRIVACY CONSIDERATIONS
Advertiser warrants that it has and it shall, at all times, maintain a privacy policy on its site and in any other process as required to ensure compliance with its DPA obligations, and shall comply with such privacy policy. The privacy policy, in addition to complying with all applicable laws, shall permit, to the extent necessary, RL to do everything necessary to fulfill its obligations hereunder. Without limiting the generality of the foregoing, the privacy policy shall specifically permit the use of third party cookies. RL may, if it deems reasonably necessary, also insert in or otherwise make visible from the Proxy Site, links which will direct consumers to additional information concerning consumer privacy.
10. ADVERTISING CONTENT/KEYWORDS
(a) Advertiser will deliver all content required for any Ad to RL. If such content does not conform to RL's or the Publishers' specifications, then RL or the Publisher may, in their sole discretion, modify or reject such Ad. If rejected, RL will then refund any applicable amounts paid in advance. Advertiser acknowledges that it may be limited in its ability to make further modifications to its Ads after they have been delivered to RL. The right to reject an Ad does not confer on RL an obligation to do so. Moreover, the acceptance of an Ad does not constitute the approval or endorsement by RL or the Publishers of the Ad, for purposes of this Agreement or otherwise. If Advertiser requests that RL create the Ad, Advertiser is still responsible for ensuring that the content of the Ad is complete, accurate and complies with applicable law and the provisions of Section 12 below shall apply. With respect to an Ad created by RL, RL retains ownership of the design elements of the Ad, but not, in any event, the intellectual property of Advertiser.
(b) With respect to search engine marketing, Advertiser may select certain individual words or phrases ("Keywords") to be used in connection with the Campaign. RL will use reasonable efforts to use these Keywords selected by Advertiser, but makes no guarantees that any or all such Keywords will be used. RL is also permitted to choose Keywords. To the extent that RL uses Keywords of its choosing, it shall be under no obligation to disclose such Keywords to Advertiser.
11. LICENSE
For the term of this Agreement, Advertiser hereby grants to RL and the Publishers a non-exclusive, royalty-free, worldwide license to
(a) use, perform, display, broadcast and transmit all Ads delivered hereunder in accordance with the terms of the Agreement (with such modifications as permitted herein),
(b) use all associated Advertiser intellectual property in connection therewith
(c) modify such Ads to the extent necessary or desirable for the performance of a Campaign. Except as set forth in Section 5 and in Section 10 above, title to and ownership of all intellectual property rights of all Ads and associated Advertiser intellectual property shall remain with Advertiser or its third party licensors. In addition, Advertiser agrees that RL may, during the term of this Agreement and thereafter, include Advertiser's name (including any trade name, trademark, service mark and logo), any Ad provided hereunder, the Advertiser's Local Profile on RL's customer list and in its marketing materials, sales presentations and the RL Directory.
12. ADVERTISER'S LIABILITY
The Advertiser warrants that it has all necessary rights to permit and hereby grants RL all such rights which are necessary for RL to convert the Ads into the necessary media format, including without limitation, the right to store, display, transmit and distribute the Advertisers' Ads. Advertiser is solely responsible for any liability arising out of or relating to any Ad provided by Advertiser hereunder and any material to which users can link through such Ad ("Linked Content"). The Advertiser further warrants that RL's use of the Ads and the Linked Content shall not infringe any applicable laws, regulations or code of practice (including without limitation the CAP code in the UK and any equivalent advertising standards code of practice in any other jurisdiction). Advertiser represents and warrants that no part of the Ads or Linked Content will:
(a) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy;
(b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition;
(c) be defamatory or libelous;
(d) be pornographic or obscene; or
(e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Advertiser further represents and warrants that the product or service that is being promoted through any Campaign hereunder is (a) lawful and (b) not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities. Advertiser agrees to defend, indemnify and hold harmless RL, the Publishers, their subsidiaries, affiliates and parent companies and their respective directors, officers, agents and employees for any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' fees and expenses) incurred or arising from:
(i) any breach of any representations and warranties contained herein;
(ii) any claim arising from the sale or license of Advertiser's goods or services; or
(iii) any other act, omission or misrepresentation by Advertiser. RL may participate in such defense at its own expense. RL reserves the right to reject or remove any Ad or url link embodied within an Ad at any time in the event RL shall determine in its sole discretion that such Ad or Linked Content does not meet RL's standards or comply with the Agreement, or that such Ad or Linked Content is unlawful or inappropriate. The failure by RL to exercise its right to refuse an Ad or Linked Content does not constitute endorsement of any Ad that is accepted by RL, nor does it constitute a warranty that RL will continue to run an Ad once accepted.
13. AGENCY
Advertiser further represents and warrants that, in the event it is purchasing advertising on behalf of another company, it has been authorized by each such company to act as its contractor in all respects relating to this Agreement, including, without limitation, the making of any elections or giving of any consents.
14. CONFIDENTIALITY
Except as may be required by applicable law, Advertiser shall not disclose the contents of this Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without RL's prior written consent. No party may issue a press release concerning the existence or terms of this Agreement without the prior written consent of the other party.
15. DURATION AND TERMINATION
a) The Agreement commences on the day that an IO is accepted by RL and terminates on the Actual End Date, unless it is indicated on the IO that is set up for Unlimited Auto Renewal (as defined below), in which case the IO will continue until the later of the Actual End Date or until it is terminated by either party. If the IO is marked for Unlimited Auto Renewal this means that after the Actual End Date, the IO will automatically renew for consecutive Campaign Periods, until terminated by the parties.
(b) RL may terminate this Agreement and any Campaign without cause at any time by providing the Advertiser with not less than 5 days written notice and RL shall provide to the Advertiser within 5 days of such termination, a pro-rata refund of any fees paid to RL where the relevant services have not been fully performed. In the event that a contract is in the Unlimited Auto Renewal phase, Advertiser may terminate on thirty (30) days prior written notice, provided that such termination shall not take effect until the later of the end of such notice period or the conclusion of the then current Campaign Period at the time of the conclusion of the notice period. Upon termination, RL's obligation to forward the calls to the Tracking Numbers and the Proxy eMails immediately terminates. Advertiser understands and acknowledges that due to the nature of the Internet, certain information regarding the Advertiser that was posted on the Internet as part of the Advertising Services, including, for instance, the Local Profile, may continue to be available from the Internet. All provisions of this Agreement that by their sense or nature should survive termination of this Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Advertiser shall remain liable for any amounts due to RL as of the termination date.
(c) If the Advertiser wishes to renew, a new IO must be signed which shall be subject to the Terms and Conditions then in effect. Advertiser acknowledges that failure to timely renew may result in pauses between Campaigns.
16. WARRANTIES AND DISCLAIMERS
RL warrants to the Advertiser that it shall use its reasonable endeavours to perform the Standard Advertising Services and the Tracking Services in accordance with the IO. Upon notification from the Advertiser of any breach of this warranty, RL shall at its own cost, use reasonable endeavours to carry out the necessary works to rectify the problem. RL using its reasonable endeavours to rectify the problem shall be the Advertiser's exclusive remedy in the event of a breach of the warranty. Save as expressly provided in this Agreement, all representations, warranties and conditions in relation to the Standard Advertising Services and the Tracking Services whether expressly or implied are expressly excluded. Without limiting the generality of the foregoing, RL makes no guarantees with respect to the performance of any Ad. RL gives no warranty and makes no representation as to the suitability of fitness of the Standard Advertising Services or the Tracking Services for any particular purpose unless expressly agreed in writing.
17. LIMITATIONS OF LIABILITY
(a) RL's entire liability under this Agreement is as set out in Section 16 above.
(b) RL will be under no liability to the Advertiser whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with any of the Standard Advertising Services and/or the Tracking Services; any breach by RL of any of the express or implied terms of this Agreement with the Advertiser; any statement made or not made, or advice given or not given, by or on behalf of RL or otherwise under this Agreement.
(c) RL does not exclude its liability (if any) to the Advertiser for personal injury or death resulting from RL's negligence; for any matter which it would be illegal for RL to exclude (or to attempt to exclude) its liability; or for fraud.
(d) RL's maximum aggregate liability to the Advertiser arising out of or in connection with any act or omission of RL including any and all breaches of this Agreement in any calendar year shall not exceed the amount of monies payable to RL by the Advertiser in such calendar year.
(e) Advertiser agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Agreement must be filed within one year after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.
(f) Without limiting the foregoing, RL shall have no liability for any failure or delay resulting from any circumstances beyond the reasonable control of RL, including, without limitation, governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown. If such circumstances continue for a continuous period of more than 3 months RL may terminate this Agreement by written notice to the Advertiser. Advertiser acknowledges that RL has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
18. THIRD PARTY BENEFICIARIES
The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it except to the extent that Publishers are intended to be beneficiaries of sections 10,11,12, 16 and 17.
19. DATA PROTECTION
Each party agrees to comply with the provisions of the Data Protection Act 1998 ("DPA") as may be applicable to that party. The parties acknowledge that Advertiser is the "data controller" and RL its "data processor" in respect of any "personal data" "processed" (such terms as defined in the DPA) by RL in providing the advertising services hereunder, including without limiting the generality of the foregoing, the quality assurance and Campaign assessment activities referred to hereunder, and in respect thereof:
(a) RL will maintain appropriate technological and organisational measures against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data;
(b) RL will only process the personal data for the purpose of the advertising services hereunder and in accordance with Advertiser's instructions (which Advertiser warrants shall at all times be in accordance with and shall not cause RL to be in breach of the DPA) to the extent that they are consistent with the same and do not result in any material additional obligations other than as set out hereunder;
( c) Advertiser acknowledges and agrees that RL may in providing the advertising services hereunder engage a third party(ies) who may process the personal data and that RL may process or cause the personal data to be processed outside the United Kingdom, including in a country or territory which is not the subject of an adequacy finding by the European Commission under Article 31(2) of Directive 95/46/EC.
20. DISPUTES
In the event that a question, dispute or difference shall arise between the parties that cannot be resolved amicably at an operational level then the issue shall be referred to senior management (managing director or equivalent) of the parties in order for them to meet to have the opportunity to resolve any such issues prior to the parties having to seek redress through the courts. A meeting shall be scheduled within [21] days of either party requesting that such a meeting is to take place.
21. MISCELLANEOUS
(a) This Agreement shall be governed by and construed in all respects in accordance with the laws of Wales and England and the parties agree to submit to the non-exclusive jurisdiction of the courts of Wales and England.
(b) No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or some other right power or remedy.
( c) If any provision or part of any provision of this Agreement is found by a court or other competent authority to be illegal, invalid or unenforceable, such provision or part will, to the extent required, be severed from this Agreement and the remaining provisions or parts of the provision shall continue in full force and effect.
(d) This Agreement is the entire agreement between RL and the Advertiser in respect of the subject matter and supersedes any prior written or oral agreements, representations or understandings between the parties in relation to such subject matter. e) Advertiser may not assign this Agreement without the prior written consent of RL. f) The parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
(e) The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
(f) This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.
(g) This Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures. |
