Vertical Intelligence
Media Buying Terms and Conditions

INTRODUCTION

A.                Vertical Intelligence is a digital agency specialising in delivering advertising campaigns based on its analysis of user profiles and behaviour through a number of its partner websites.  Through its analysis and evaluation tools Vertical Intelligence has a deep level of understanding of user data and can identify the correct impressions to be purchased for the Buyer’s campaigns.

B.                The Buyer would like to appoint Vertical Intelligence to perform the Services and has agreed to accept the Services on the terms of this Agreement.

1                  The Media Service to be Provided

1.1     The Buyer appoints Vertical Intelligence to perform the Media Service for the Campaign Period, unless this Agreement is terminated earlier in accordance with its terms.

1.2     Vertical Intelligence shall provide the Services to the Buyer using reasonable skill and care.

1.3     Any other requirements in addition to the above will be subject to negotiation between the Buyer and Vertical Intelligence (including in relation to the fees payable by the Buyer).

2                  Media Charges

2.1     For the provision of the Media Service, the Buyer shall pay Vertical Intelligence for all media charges for advertising as approved in advance by the Buyer (the “Media Charges”), in accordance with the Media Plan, in accordance with the payment terms set out in clause 6.

2.2     The Buyer may request Vertical Intelligence to change, reject, cancel or stop all plans, schedules or work-in-progress and Vertical Intelligence shall take all reasonable steps to comply, provided that Vertical Intelligence can do so within Vertical Intelligence's contractual obligations.  In the event of any such cancellations or amendments, the Buyer agrees to reimburse Vertical Intelligence for any charges or expenses to which Vertical Intelligence is contractually committed.

3                  Use of the VI Portal

3.1     Vertical Intelligence hereby grants to the Buyer for the duration of the Campaign Period a non-exclusive, non-sublicenseable, revocable licence to use the VI Portal for the purpose of enjoyment of the Media Service.  This licence is subject to strict compliance with this Agreement and any Terms of Use.

3.2     Notwithstanding anything else in this Agreement, the Buyer agrees that it will not, and will not assist any third party to:

(a)      copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Services or the VI Portal;

(b)      adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the VI Portal in whole or in part;

(c)      force any electronic barriers or locks used for the purpose of protecting Vertical Intelligence’s software or the VI Portal, and not to access any information on the VI Portal not publicly available or intended for public use;

(d)      use any information made available by or on behalf of Vertical Intelligence, to create any software where its expression or functionality is similar to that of the Service, or use such information in any manner that would be restricted by any Intellectual Property Right subsisting in it; or

(e)      upload any content onto the VI Portal that can infect a machine with malware, viruses, worms, Trojan horses, time bombs, cancel bots or any other harmful, damaging or destructive programs or content or is in breach of the Terms of Use.

3.3     In relation to Authorised Users:

(a)      the Buyer’s rights of access to and use of the Services shall be limited to individual Authorised Users who have been previously approved by Vertical Intelligence and who will comply with the terms of this Agreement and the Terms of Use;  

(b)      the Buyer shall procure that each Authorised User uses his/her own secure password for his/her use of the Services, and that each Authorised User keeps his/her password confidential and secure against unauthorised use; and

(c)      if Vertical Intelligence suspects that passwords have been provided to individuals who are not Authorised Users, then without prejudice to Vertical Intelligence’s other rights and remedies, Vertical Intelligence may disable such passwords.

4                  Approvals and Authority

4.1     After obtaining the Buyer’s general approval of Campaigns and the Media Plan, Vertical Intelligence will submit to the Buyer for specific approval estimates or quotations of the costs of the various items of advertising.

4.2     The Buyer's approval (which shall include email) of schedules and quotations will be Vertical Intelligence's authority to make reservations and contracts for space, time and other facilities.

4.3     Vertical Intelligence will promptly advise the Buyer of any material changes in the estimated cost of various items of advertising, or any changes in plans, schedules or work-in-progress previously approved.

5                  Measurement and Reports

5.1     On request by the Buyer Vertical Intelligence shall use a third party measurement company to measure the success of the Goal metrics.

5.2     Vertical Intelligence shall make available to the Buyer through the VI Portal up to date reporting information and schematics on the Campaign.

6                  Payment Terms

6.1     The payment terms are based upon the principle that the Buyer will ensure that Vertical Intelligence is paid in time to meet the liabilities which arise from orders placed by Vertical Intelligence with the media owners in respect of the Buyer's advertisements.

6.2     All invoices in accordance with the agreed media schedule will be presented to the Buyer during the first few days of the month of transmission or insertion and shall be due for payment 30 days from the date of invoice.

6.3     Some media contractors require payment of their accounts to be in their hands by specified dates, otherwise a surcharge is incurred.  The Buyer agrees to pay Vertical Intelligence this surcharge if the Buyer fails to pay by the due dates without good reason.

6.4     All invoices presented to the Buyer by the due date and not subject to dispute in good faith which are not paid by the due date shall be subject to annual interest at the rate of 5% above the base rate of Barclays Bank plc from time to time calculated daily.

6.5     In the event of there being any queries in Vertical Intelligence's invoices, the Buyer will immediately pay the undisputed amount to Vertical Intelligence whilst Vertical Intelligence investigates. If Vertical Intelligence has made an error it shall re-issue the invoice and credit the Buyer; and if there has been no error by Vertical Intelligence, the Buyer shall immediately pay the balance of the disputed invoice.  

6.6     The Buyer will promptly provide Vertical Intelligence with purchase order numbers in respect of all approved media charges and the Buyer will use such purchase order numbers on all relevant invoices.  The absence of a purchase order number on an invoice will not constitute a valid reason for withholding payment.

6.7     Vertical Intelligence is insured against credit risks and all clients of Vertical Intelligence must be acceptable to Vertical Intelligence’s insurers. In the event therefore of the insurers revising or withdrawing cover for the Buyer, Vertical Intelligence may have to revise its terms of payment and if necessary ask for payment in advance or suitable guarantees from the Buyer. Should the aforementioned occur and a suitable agreement can not be reached between the Buyer and Vertical Intelligence within 14 days of such request, Vertical Intelligence shall be entitled forthwith to terminate this Agreement by written notice to the Buyer.

6.8     All sums referred to in this Agreement are exclusive of VAT and any other duty or tax, which shall (if and to the extent applicable) be payable by the Buyer.

7                  Legal Liability and Other Claims

7.1     Nothing in this Agreement shall exclude liability for fraud or death or personal injury caused by negligence or any other type of liability to the extent it may not be excluded by law.

7.2     Subject to clause 7.1:

(a)      Vertical Intelligence’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed a sum equal to the Media Charges paid by the Buyer in the three months prior to the circumstance causing the (first) liability; and

(b)      Vertical Intelligence will not be liable under this Agreement, whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known, for:

(c)      any loss of actual or anticipated income or profits, loss of contracts, loss of revenue, loss of goodwill or loss of data; or

(d)      any special, indirect or consequential loss or damage of any kind howsoever arising.

7.3     The parties have agreed the Goals and the Campaign in good faith, but due to the nature of online advertising and digital media Vertical Intelligence cannot give any guarantee that the Campaign will reach the Goals for the agreed budget.  The Buyer accepts that this disclaimer is fair and is reflected in the fees payable under this Agreement.

7.4     The Buyer acknowledges that:

(a)      access and use of the VI Portal may not be entirely uninterrupted or error-free.  Subject to clause 7.1 Vertical Intelligence’s liability in contract, tort (including negligence) or otherwise for failure of the VI Portal to be available or fully operational shall be limited to the amount of service credit Vertical Intelligence is able to actually obtain from its own suppliers of the technology underpinning the VI Portal;

(b)      (with the exception of customisations Vertical Intelligence may have done for the Buyer) as the VI Portal has not been developed to meet the specific needs of the Buyer, the Buyer is responsible for its choice of software and services providers;  and

(c)      Vertical Intelligence shall not be liable for any failure of the Media Service to provide any service that is not expressly set out in this Agreement.

7.5     Vertical Intelligence shall not be liable for any failure or defect caused by:

(a)      failure to follow Vertical Intelligence’s instructions or policies;

(b)      user or other error not caused by Vertical Intelligence or its contractors, including amendments to configuration settings by the Buyer;

(c)      data corruption not caused by Vertical Intelligence; and

(d)      use of the Media Service other than in accordance with this Agreement.

7.6     Vertical Intelligence shall not be in any way responsible for the preparation, content, production, supplying or copy of advertisement.

7.7     If due to war, strikes, industrial action short of a strike, lockouts, accidents, fire, blockade, import or export embargo, ice obstruction, natural catastrophes or other obstacles over which Vertical Intelligence has no control, Vertical Intelligence fails to complete their assignment in the manner and within the time required by the terms of this Agreement Vertical Intelligence will not be responsible for any loss or damage which may be incurred by the Buyer as a result of such failure. 

8                  Termination Provisions

8.1     Both parties rights, duties and responsibilities shall continue in full force during the agreed notice period.

8.2     Upon termination of this Agreement the Buyer shall immediately pay all outstanding fees and expenses properly chargeable to the Buyer. Following such payment Vertical Intelligence will co-operate in transferring, with the approval of the third parties, all reservations, contracts and arrangements with third parties and all materials which are the Buyer's property with all rights and claims relating to these items.

8.3     Without prejudice to any pre-existing liability of either party to the other, either party may terminate this Agreement upon written notice to the other party:

(a)      in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within fourteen (14) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied.  The failure to pay any Media Charges on their due date shall be considered a material breach of this Agreement; or

(b)      if the other party shall cease carrying on business in the normal course, or shall call a meeting of its creditors or make a proposal for a voluntary arrangement within Part I of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed in respect of all or any part of its business or assets, or if a petition is presented or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or it is the subject of an administration order.

8.4     Upon termination of this Agreement for any reason, provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.

9                  Buyer Obligations

9.1     Vertical Intelligence is obliged to and will use all reasonable endeavours to abide by rulings of the Advertising Standards Authority and comply with The UK Code of Broadcast Advertising, The UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing and all other applicable advertising codes (the “Codes”).

9.2     The Buyer hereby warrants, represents and undertakes that:

(a)      it has full power and authority to enter into this Agreement and that by doing so it will not be in breach of any obligation to a third party;

(b)      the person accepting this Agreement on behalf of the Buyer has the power to bind the Buyer;

(c)      any advertising it seeks to place through Vertical Intelligence will comply with all applicable laws, guidance and the Codes (and it shall take appropriate steps to verify such compliance) and will not infringe the rights of any third party, nor will it be defamatory of any third party, indecent or illegal;

(d)      in the event that any advertisement is found to be in breach of Clause 9.2(b), it shall use its best endeavours to work with Vertical Intelligence and any media owners to remove or amend the advertisement in breach.

9.3     The Buyer agrees to indemnify Vertical Intelligence against all losses, claims, liabilities and expenses suffered by Vertical Intelligence as a result of a breach by the Buyer of the warranties at Clause 9.2.

9.4     The Buyer agrees to inform Vertical Intelligence without delay if it considers that any claim or trade description in any advertisement placed by Vertical Intelligence on behalf of the Buyer is false or misleading in any way.

10               Terms of Business With Media

Unless otherwise stated, Vertical Intelligence's contracts with media and suppliers for the Buyer's advertising are made in accordance with standard or individual conditions and contracts.  The rights and liabilities between the Buyer and Vertical Intelligence shall correspond to those between Vertical Intelligence and the various media and suppliers under such conditions.

11               Confidential Information

11.1   Each party shall, during the Campaign Period and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) or (without the prior written consent of the other party) 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 trade secrets, know how and information of commercial value) that 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 all reasonable endeavours to prevent the unauthorised disclosure of any such information.

11.2   The existence and terms of this Agreement are confidential and may not be disclosed in part or whole by the Buyer without the prior written consent of Vertical Intelligence.  Unless otherwise agreed in writing, Vertical Intelligence shall be entitled to publicise the existence of the Buyer as a customer of Vertical Intelligence.

12               General

12.1   If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.

12.2   This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.  Each of the parties acknowledges and agrees that:

(a)      in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this Agreement; and

(b)      its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this Agreement shall be for breach of contract as provided in this Agreement.  Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

12.3   It is expressly agreed that no variation of this Agreement shall be effective unless in writing and signed by both parties.

12.4   A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

13               Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the Courts of England and Wales to resolve any dispute between them arising under or in connection with this Agreement.

14               Definitions and Interpretation

14.1   Defined terms and expression shall have the following meaning unless the context otherwise requires.

“Agreement” means these Media Buying Terms and Conditions, the Terms of Use and the Media Plan;

“Authorised User” means those employees and contractors of the Buyer who are authorised by the Buyer to access the VI Portal and use the Service;

“Buyer” means the party signing up to this Agreement to purchase the Services from Vertical Intelligence;

“Campaign” means the ad buying campaign the Buyer wishes to conduct using the Services;

“Campaign Period” has the meaning given in the Schedule;

“Goal” means the intended outcome of the Campaign, as agreed between the parties in the Media Plan or otherwise;

“Media Charges” has the meaning given in Clause 2.1;

“Media Plan” means the agreed strategy of the Campaign, as agreed between the parties or outlined in the Schedule;

“Services” mean the services described in the Schedule;

“Terms of Use” the end user licence agreements for use of the VI Portal available within the VI Portal;

“Vertical Intelligence” means Vertical Intelligence Limited a company registered in England and Wales under Company Number 10447499 whose registered office is at 82 Cambridge Road, Teddington, England, TW11 8DN; and

“VI Portal” means the portal made available by Vertical Intelligence to the Buyer as part of the Services

14.2           The headings in this Agreement do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement.

14.3       Unless the context otherwise requires, references in this Agreement to:

(a)      the Buyer and Vertical Intelligence include their respective permitted successors and assignees;

(b)      statutory provisions include those statutory provisions as amended or re-enacted;

(c)      one gender includes a reference to the other genders; and

(d)      “including” or “includes” shall be deemed to have the words “without limitation” inserted after them.

14.4   Words in the singular include the plural and those in the plural include the singular.

14.5   A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

This Agreement is binding on the parties from the date of the Buyer indicating its acceptance.

Schedule

Services

-         Analysis and evaluation of Vertical Intelligence’s datasets for the purpose of delivering the Campaign.

-         Operation of the Campaign to achieve the Goals.

-         Purchase of online or digital inventory on behalf of the Buyer in accordance with the Media Plan.

-         Real time reporting of Goal and other success metrics of the Campaign.

Campaign Period

Until the Goals are met, or a set term as agreed in the Media Plan.

Media Plan

The plan agreed between the parties in which the Campaign details and the Goals are agreed, and on what basis Vertical Intelligence is entitled to purchase inventory for and on behalf of the Buyer.

The Media Plan maybe agreed in writing between the parties, through emails or otherwise.  The parties may agree to amend the Media Plan from time to time.