"Action(s)" means the user completing the action in accordance with the Campaign.
"Advertiser" means the person or company identified in the Insertion Order.
"Ad" means an advertisement to be placed on the Website as more particularly described in the Insertion Order.
"Campaign(s)" means the placement of advertisements on the Website on a CPC (cost per click), CPA (cost per action) or CPM (cost per 1000 impressions) pricing model for the duration and as specified in the Insertion Order.
"Click Through" means the user (not via an automated process) clicking from the Website using the tracking url provided for the Campaign.
"Dot Zinc" means Dot Zinc Limited a company registered in England & Wales with company number 04093922 whose registered office address is at The Cooperage, 5 Copper Row, London, England, SE1 2LH.
"Insertion Order" means the insertion order agreed between the Advertiser and Dot Zinc in relation to the Campaign.
"Prescribed Form" means the form as determined by Dot Zinc that all agreed variations must comply with so as to be binding.
"Sales" means the user completing a Click Through or Action as the case may be in accordance with the Campaign.
"Website" means the website(s) as detailed in the Insertion Order together with any replacement url's during the term of the Insertion Order.
2.1 The Advertiser warrants that:-
2.1.1 in relation to these Terms the Advertiser contracts with Dot Zinc as a principal notwithstanding that the Advertiser may be acting directly or indirectly for the Advertiser as an agent or in some other representative capacity and that it has the authority to publish the Ad on the Website;
2.1.2 it has the right to publish all of the contents of the Ad and can grant Dot Zinc such right, and that the reproduction and/or publication of the Ad by Dot Zinc as submitted will not breach any contract or infringe or violate any copyright, trademark or any other personal or proprietary right of any person or render Dot Zinc liable to any proceedings whatsoever;
2.1.3 any information supplied in connection with the Ad is accurate, complete and does not contain anything which is defamatory, obscene, false or misleading;
2.1.4 in respect of any Ad submitted for publication which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified the Advertiser has obtained the authority of such living person to make use of such name, representation and/or copy;
2.1.5 in relation to any investment Ad, the Advertiser is, or the Ad's contents have been approved by, an "authorised person" within the meaning of the Financial Services legislation of the originating country of the Ad, or is otherwise permitted under such relevant legislation;
2.1.6 each Ad complies with the requirements of all relevant legislation (including subordinate legislation, the rules of statutorily recognised regulatory authorities and the legislation of the European Union) for the time being in force or applicable in the United Kingdom or in any other territory where the Ad is to be shown and directed to the residents of that territory. The Advertiser accepts responsibility for notifying Dot Zinc of any restrictions which should be placed on the display of the Ad in any territories;
2.1.7 all advertising copy submitted to Dot Zinc is legal, decent, honest and truthful and complies with the Code of Advertising Practice and all other relevant codes under the general supervision of the Advertising Standards Agency in respect of online advertising and all other relevant industry codes of practice including such other codes as may apply to advertising in such other territories where the Ad is to be shown and directed to residents of that territory;
2.1.8 no hypertext link from any Ad to the Advertiser's Website will render Dot Zinc liable to any proceedings whatsoever and Dot Zinc will be promptly advised of any changes which would affect the functioning of the link and all necessary steps will be taken to correct any malfunction of any such hypertext link; and
2.1.9 any hypertext link from any Ad to the Advertiser's website will not affect any user of the Website's ability to click on the back button on the browser back to the Website.
The Advertiser agrees promptly and fully to indemnify and keep indemnified and hold harmless Dot Zinc against any and all expenses, damages, liability, claims and losses of any kind (including reasonable legal fees and costs) incurred by Dot Zinc in connection with any claims actual or threatened, of any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or sales practices) arising from an Ad and/or any material of the Advertiser or otherwise to which users can link through an Ad or as a result of any breach or non-performance of any of the representations, warranties or other terms contained in these Terms or implied by law and the indemnity may, without limitation, be claimed as a debt or liquidated demand.
4.1 Dot Zinc reserves the right to reject or remove the Ad or require the Ad to be amended if it is deemed inappropriate by Dot Zinc or if it does not comply with the Terms or any applicable laws or regulations.
4.2 Dot Zinc reserves the right to exclude access to the Website to persons accessing the Website from a country where the displaying of the Website may be unlawful.
4.3 Dot Zinc reserves the right to review, update and amend its Terms as and when it sees fit and the Advertiser confirms that they are aware that Dot Zinc's Terms are available to view on the Website and their continued use of service constitutes acceptance of any variation to the Terms.
5.1 Dot Zinc will invoice the Advertiser in accordance with the prices set out in the Insertion Order for the publishing of the Ad including VAT (where applicable).
5.2 The Advertiser must pay the invoiced amounts to Dot Zinc in pounds sterling (by cheque or electronic transfer) within 30 days of the date of the invoice. If payment is not received by the due date Dot Zinc reserves the right to charge interest at a rate of 2% above the base rate for the time being of Barclays Bank Plc on the unpaid balance (such interest to accrue on a day to day basis from the due date until receipt by Dot Zinc of the full amount whether before or after judgment).
5.3 Dot Zinc reserves the right to suspend the Ad until such time as payment is made in full.
5.4 All payments due to Dot Zinc under the Insertion Order shall be collected in full without any set off, deduction or deferment of any nature.
5.5 If payment is not received by the due date the Advertiser will be responsible for all reasonably incurred expenses (including legal and agency costs) in collection of the outstanding sums.
Dot Zinc is hereby granted by the Advertiser a worldwide non-exclusive, fully paid licence to reproduce and display each Ad (including all contents, names, trademarks, logos and brand features contained therein) in accordance with the provisions of these Terms.
7.1 Except as otherwise expressly provided for in the Insertion Order the positioning of the Ad on the Website is at the discretion of Dot Zinc and unless otherwise stated in the Insertion Order Dot Zinc will not be prohibited from also publishing advertisements for any product or business competitive to the product or business of the Advertiser.
7.2 Dot Zinc shall be entitled and the Advertiser grants an express right to Dot Zinc to reproduce any part of the Website containing all or part of the Ad on any promotional or advertising material promoting or advertising the Website.
7.3 The Advertiser will provide all materials for the publishing of the Ad on the Website as set out in the Insertion Order (including unique tracking url's) and in accordance with any instructions, technical requirements or other specifications of Dot Zinc from time to time, including (without limitation) the manner of transmission to Dot Zinc and the lead time prior to publication of the Ad. Dot Zinc will not be required to publish any Ad that has not been received in accordance with any such instructions or requirements. Dot Zinc will not be liable for the loss or corruption of any materials provided by the Advertiser.
7.4 In relation to a CPA Campaign, the Advertiser will notify Dot Zinc by the 10th of each month of the number of Sales.
7.5 The Advertiser will accept Click Through statistics provided by Dot Zinc in relation to the Campaign as valid unless there is a differential of 10% or more in Dot Zinc's figures and the figures provided by the Advertiser, and in such cases the Advertiser will provide Dot Zinc with access to their records so that Dot Zinc can attempt to reconcile any discrepancy.
7.6 In the event that the supplied tracking url fails to correctly track a user and any Sales then Dot Zinc would calculate the average Click Through value generated when Sales were correctly tracked for a period of up to 30 days and apply this commission value to the clicks over the period when the tracking failed. If no Sales are available due to the failure of the tracking url then the commission due would be the average click value generated for that type of product on the Website which would then be applied to the clicks over the period when the tracking failed.
7.7 In relation to a CPA Campaign, if any budget restrictions are put in place in relation to a Campaign then it is the responsibility of the Advertiser to notify Dot Zinc in writing when any budgets have been reached. The Advertiser will continue to pay Dot Zinc in accordance with the Insertion Order for any Sales until such time as Dot Zinc receives written notice in accordance with this clause.
8.1 The Advertiser acknowledges at any Website on which the Ad is displayed is provided on an "as is" and "as available" basis without any representation or endorsement. Dot Zinc or its employees make no warranties of any kind, whether express or implied, in relation to such Website including but not limited to, implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security, accuracy, condition or completeness, or any implied warranty arising from course of dealing or usage or trade or that the Website will meet any requirements or will be uninterrupted, timely, secure or error free, that defects will be corrected, or that the Website or the server that makes it available are free of viruses or bugs or are fully functional, accurate, or reliable.
8.2 If Dot Zinc fails to publish the Ad (or in the event of any other failure of such Ad to appear as provided for in the Insertion Order), Dot Zinc's liability will be limited (at the option of Dot Zinc) to either:-
8.2.1 publishing the Ad (or a replacement Ad if provided by the Advertiser) as soon as is reasonably practicable following the period during which the Ad was scheduled to run; or
8.2.2 refunding to the Advertiser that proportion of the amounts paid which relate to the Ad which were not provided, or if the relevant amounts were not paid by the Advertiser, agree that such amounts will not be due or payable.
8.3 If the Campaign fails to provide the Sales as set out in the Insertion Order Dot Zinc will (by agreement with the Advertiser) either:-
8.3.1 invoice the Advertiser on a pro rata basis for the relevant number of Sales delivered; or
8.3.2 extend the period of the Campaign in order to reach the targeted number of Sales.
8.4 Dot Zinc will not be responsible for any indirect, incidental, consequential, special or economic loss of any kind including without limitation loss of profits, business, contracts, revenues, goodwill, production or anticipated savings arising out of or in connection with the publishing of the Ad on the Website, any failure to publish the Ad in a timely manner or at all in accordance with the provisions of the Insertion Order or these Terms or any other breach by Dot Zinc of the Insertion Order or these Terms.
8.5 In the event of any inconsistency between the Insertion Order and these Terms, these Terms will prevail.
8.6 Nothing in these Terms shall exclude or limit Dot Zinc's liability for death or personal injury resulting from its negligence or that of its servants, agents or employees.
9.1 These Terms together with the Insertion Order constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of these Terms and will apply to this Campaign and future Campaigns between Dot Zinc and the Advertiser. The contract will come in to being only at the point of Dot Zinc sending to the Advertiser a written acknowledgement that the Insertion Order has been signed by both parties. Subject to any agreed variation under Clause 9.3, these Terms form part of the contract to the exclusion of all other terms and conditions (including any terms or conditions which the Advertiser purports to apply under any purchase order, confirmation of order, specification or other document).
9.2 The parties agree that neither of them have been induced to enter into these Terms or the Insertion Order in reliance upon any warranty, representation, statement, agreement or undertaking of any kind (whether negligently or innocently made) of any person other than as expressly set out in these Terms as a warranty. The only remedy available to the parties for breach of the warranties shall be for breach of contract under these Terms and the parties unconditionally and irrevocably waive any other claims, rights or remedies that may otherwise be available. Nothing in this clause shall however, operate to limit or exclude any liability for fraud.
9.3 No variation of these Terms or of the Insertion Order shall be valid unless it is in accordance with our Prescribed Form.
10.1 Dot Zinc reserve the right to terminate these Terms, wholly at their discretion at any time without any liability whatsoever if the Advertiser:-
10.1.1 is in material breach of these Terms or the Advertiser's conduct is such that it is harmful to Dot Zinc or its clients;
10.1.2 becomes insolvent, has any distress, execution or other process levied or enforced on their assets, has a receiver or administrator appointed or enters into voluntary or other arrangements with its creditors, or ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
10.2 The Advertiser may terminate these Terms by providing Dot Zinc with 7 days written notice at any time provided that the Advertiser reimburses Dot Zinc for any costs incurred up to and including the date of termination.
10.3 Termination of these Terms will be without prejudice to any rights of a party accrued before termination.
The Advertiser may not resell, assign, transfer, encumber or otherwise dispose of or subcontract any of its rights or obligations hereunder and any attempt to do so will entitle Dot Zinc to terminate this agreement and any arrangements contemplated hereby immediately without liability on the part of Dot Zinc.
In addition to the terms of any prior confidentiality or non-disclosure agreement entered into between the parties (which shall continue in force) the parties agree to keep the terms of the Insertion Order and these Terms and any information (written, oral or in any other form) which is of a confidential nature concerning the business and affairs of the other party or their clients, officers or employees obtained hereunder strictly confidential during as well as after the term of this agreement and will not make any public statement regarding such terms and information except with the prior written consent of the other (such consent not to be unreasonably withheld or delayed). This obligation shall not apply to any information which is in the public domain otherwise than as a result of a breach of this clause, which is required to be disclosed by law or any regulatory or governmental body or which is provided to either party free of any obligations of confidence.
Nothing herein shall or shall be deemed to create any partnership or joint venture between the parties hereto.
14.1 The failure of either party to enforce or exercise at any time or for any period any term or any right pursuant to these Terms shall not be construed as a waiver of any such term or right and shall in no way affect that party's right later to enforce or exercise it.
14.2 If any provision of these Terms is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of these Terms which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
Neither the Advertiser nor Dot Zinc shall be in breach of these Terms or under any liability for any delay, loss, or damage caused wholly or in part by any act of God, governmental restriction, fire, flood, power failure, condition or control breakdown, malfunction in any telecommunication system computer service, link failures, power difficulties, telephone outages, network overload, default or failure of a third party, or by any other act, matter, or thing beyond its reasonable control.
These Terms and the Insertion Order will be governed by and construed in accordance with the laws of England, and the parties submit to the exclusive jurisdiction of the English Courts.