The Advertiser’s attention is drawn in particular to clause 12 (Limitation of Liability)
These terms and conditions (the “Terms”), together with the Advertiser/Merchant Insertion Order and Campaign Details above or overleaf (as the case may be) (together, the “Order”) and any other document specifically referred to in the Terms and the Order, sets out the whole agreement between you (the “Advertiser”) and Mindtech Solutions (“Mindtech”) for the supply of those services specified or referred to in the Order (the “Services”). The Advertiser acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Mindtech which is not set out in the Contract. In the event of a conflict between the Order and these Terms, the Order shall prevail.
1. MINDTECH’S OBLIGATIONS
1.1 Mindtech shall supply the Services to the Advertiser in accordance with the campaign details as set out above or overleaf (as the case may be) (the “Campaign”) in all material respects.
1.2 Mindtech shall use all reasonable endeavours to meet any performance dates specified in the Campaign, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
1.3 Mindtech shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services provided, and Mindtech shall notify the Advertiser in any such event.
1.4 Mindtech warrants to the Advertiser that the Services will be provided using reasonable care and skill.
2. ADVERTISER’S OBLIGATIONS
2.1 The Advertiser shall:
2.1.1 ensure that the terms of the Order and any information it provides in the Campaign are complete and accurate;
2.1.2 co-operate with Mindtech in all matters relating to the Services;
2.1.3 provide Mindtech with such information and materials as Mindtech may reasonably require in order to provide the Services, and ensure that such information is accurate in all material respects; and
2.1.4 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
2.2 If Mindtech’s performance of any of its obligations under the Contract (as defined below) is prevented or delayed by any act or omission by the Advertiser or failure by the Advertiser to perform any relevant obligation (“Advertiser Default”):
2.2.1 Mindtech shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Advertiser remedies the Advertiser Default, and to rely on the Advertiser Default to relieve it from the performance of any of its obligations to the extent the Advertiser Default prevents or delays Mindtech’s performance of any of its obligations;
2.2.2 Mindtech shall not be liable for any costs or losses sustained or incurred by the Advertiser arising directly or indirectly from Mindtech’s failure or delay to perform any of its obligations as set out in this clause 2.2; and
3.1 The Order constitutes an offer by the Advertiser to purchase the Services in accordance with these Terms (which apply to the exclusion of any other terms that the Advertiser seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing). The Order shall only be deemed to be accepted when Mindtech signs the Order, or if sooner when Mindtech start to provide the Services, at which point and on which date a contract between Mindtech and the Advertiser for the delivery of the Services (the “Contract”) shall come into existence.
4. ACCOUNT TERMS
4.1 Advertisers must pay for the Services in advance of such Services being provided, unless Mindtech agrees to provide the Advertiser with an account.
4.2 The Advertiser agrees that Mindtech may pass the Advertiser’s information to credit reference agencies and that Mindtech and such agencies may keep a record of any search that they do.
4.3 Mindtech shall be entitled to refuse any such account application and at any time to revoke without notice any account facilities, which it may previously have allowed and in either case to give reasons for its action or not as it in its absolute discretion shall think fit.
4.4 Mindtech reserves the right to suspend all Services until a payment has been received to bring the account balance to the Opening Balance. Mindtech will notify the Advertiser of the Opening Balance required prior to opening the account and from time to time as that limit is revised. The Opening Balance may be increased or the account facility withdrawn at the absolute discretion of Mindtech if in its opinion the account is not maintained in good order or if information is received from a credit reference agency suggesting an increase in the Opening Balance required (or withdrawal of the account facility) should be made.
5. PAYMENT TERMS
5.1 All amounts payable by the Advertiser under the Contract are exclusive of amounts in respect of VAT chargeable for the time being. Where any taxable supply for VAT purposes is made under the Contract by Mindtech to the Advertiser, the Advertiser shall, on receipt of a valid VAT invoice from Mindtech, pay to Mindtech such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.2 Without limiting any other right or remedy of Mindtech, if the Advertiser fails to make any payment due to Mindtech under the Contract by the due date for payment being 30 days from the date of invoice the “Due Date”), Mindtech shall have the right to charge interest on the overdue amount. Interest shall be calculated in accordance with the Late Payments of Commercial Debts (Interest) Act 1998 (as amended). Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Advertiser shall pay the interest together with the overdue amount. Mindtech reserves the right to refer any overdue amount to a third party agency or firm for collection and to add all and any costs associated with such referral to the overdue amount.
5.3 The Advertiser shall pay all amounts due under the Contract in full without any deduction or withholding unless Mindtech fails to comply with the advertising guide lines & banner restrictions which may result in the advertiser withholding payment for that month’s period for all traffic supplied by the source in breach.
5.4 Mindtech’s records shall be final as to determine qualified leads or sales passed. Any dispute that the Advertiser may have with the validity of qualified leads or sales must be made within ten (10) calendar days from the date of the invoice (the “Dispute Period”) in conformance with these Terms. Upon receipt of details of the dispute from the Advertiser, Mindtech shall act in good faith to attempt to resolve it.
6.1 All creative is subject to review by Mindtech, and Mindtech reserves the right to reject any advertisement at any time. Mindtech’s acceptance of creative shall not be considered an acknowledgement of the legality of the same for which the Advertiser shall at all times be responsible.
7. ADVERTISER REPRESENTATIONS
7.1 The Advertiser represents and warrants that its performance and/or any creative under the Contract will not (a) invade the right of privacy or publicity of any third person, (b) contain any libellous, obscene, indecent or otherwise unlawful material, or (c) otherwise infringe the rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, or other intellectual proprietary or property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity. The Advertiser further represents and warrants that it is and will remain duly licensed, authorized and certified by all applicable governmental regulatory authorities to operate its business.
8. CONSUMER FRAUD OR MANIPULATION
8.1 Mindtech shall not be responsible for payment to the Advertiser for any action, including but not limited to emails, impressions, clicks, acquisitions and/or purchases that is reasonably determined to be the result of consumer fraud or manipulation.
9.1 The Advertiser and Mindtech will be mutually indemnified, should any action arising out of or relating to any actual or alleged breach of these Terms or the Contract.
10.1 The Advertiser exclusively retains all rights, title and interest (including, without limitation, copyrights, trade secrets, trademark, patent rights, and any and all other proprietary rights) in and to any and all elements of its offer (including all promotions).
10.2 All Intellectual Property Rights and all other rights in the offers shall be owned by the Advertiser. The Advertiser hereby licenses all such rights to Mindtech free of charge and on a
non-exclusive, worldwide basis to such extent as is necessary to enable Mindtech to make reasonable use of the offers and deliver the Services.
11. DISCLAIMER OF SERVICES
11.1 SUBJECT TO THE TERMS THEREOF, THE ADVERTISER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT ITS SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, MINDTECH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, CUSTOM OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE. MINDTECH MAKES NO WARRANTY REGARDING ANY THIRD PARTY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE.
12. LIMITATION OF LIABILITY
12.1 Nothing in these Terms limits or excludes Mindtech’s liability for:
12.1.1 death or personal injury caused by our negligence;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 defective products under the Consumer Protection Act 1987.
12.2 Nothing in these Terms shall limit or exclude Mindtech’s liability for:
12.2.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.2.2 fraud or fraudulent misrepresentation; or
12.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.3 Subject to clause 12.2:
12.3.1 Mindtech shall under no circumstances whatever be liable to the Advertiser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, loss of business opportunity, loss, corruption or unauthorised use of data, information or software, or any indirect or consequential loss arising under or in connection with the Contract; and
12.3.2 Mindtech’s total liability to the Advertiser in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount the Advertiser paid for the Services.
12.4 Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.5 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.1.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within three days of that party being notified in writing of the breach;
13.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
13.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
13.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
13.1.8 a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.1.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.2 to clause 13.1.9 (inclusive);
13.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
13.1.12 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.2 Without limiting its other rights or remedies, Mindtech may terminate the Contract with immediate effect by giving written notice to the Advertiser if the Advertiser fails to pay any amount due under this Contract on the Due Date.
13.3 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 5 business days’ advance written notice.
14. CONSEQUENCES OF TERMINATION
14.1 On termination of the Contract for any reason:
14.1.1 the Advertiser shall immediately pay to Mindtech all of Mindtech’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Mindtech shall submit an invoice, which shall be payable by the Advertiser within the agreed payment terms.
14.1.2 Mindtech shall repay to the Advertiser such balance as stands to the credit of the Advertiser’s account (if any), save that Mindtech reserves the right to apply any such amounts standing to the credit of the Advertiser’s account (if any) to pay for any outstanding invoices in respect of Services supplied;
14.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
14.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15. GOVERNING LAW AND OTHER TERMS
15.1 This Contract is to be construed in accordance with and governed by the internal laws of England and Wales. The Advertiser agrees to comply with the laws of England and Wales that apply to the use of this Service and the compensation the Advertiser may receive.
15.2 If any part of the Contract is held to be unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remainder will remain in full force and effect.
16. FORCE MAJEURE
16.1 Except for obligations to make payment hereunder, neither party shall be responsible for any failure to perform its obligations under this Contract if such failure is caused by events or conditions beyond that party’s reasonable control and the party gives the other prompt notice and makes reasonable efforts to perform.
16.2 A party whose performance is affected by a force majeure condition shall be excused from such performance to the extent required by such force majeure condition so long as such party uses commercially reasonable efforts to avoid or remove such causes of non-performance and such force majeure event does not extend beyond one (1) month.
17.1 Advertiser recognises that Mindtech has proprietary relationships with the Publishers. Advertiser agrees not to circumvent Mindtech’s relationship with such Publishers, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Mindtech hereunder from any Publishers that is known, or should reasonably be known, by Advertiser to have such a relationship with Mindtech, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship.
17.2 Advertiser agrees that monetary damages for a breach, or threatened breach, of this Section will not be adequate by themselves and that Mindtech shall be entitled to liquidate damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, as applicable, for the prior twelve (12) month period. If the respective period is shorter than 12 months, the amount due will be calculated based on the true duration of the partnership to an equivalent of 12 months. Advertiser has the right to prove that no or only substantial lower damages occurred and Mindtech has the right to prove that higher damages occurred.
18.1 This Contract may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.
18.2 Transmission of the executed signature page of a counterpart of this Contract by e-mail (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Contract.
19. ASSIGNMENT AND SUBCONTRACTING
19.1 Mindtech or the Advertiser are not permitted at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may not subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
19.2 The Advertiser shall not, without the prior written consent of Mindtech, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by e-mail to the other party’s main e-mail address.
20.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by recorded next day delivery.
20.3 This clause 19.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails.
21.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
21.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
22. ENTIRE AGREEMENT
22.1 The Contract constitutes the entire understanding and agreement between the parties with respect to the subject matter of the Contract, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. Any changes, supplements or waivers to the Contract must be in writing and signed by authorized
representatives of both the parties.
23. NO PARTNERSHIP
23.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
24. THIRD PARTIES
24.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
25.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
25.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.