1. Terms of Payment
1.1 The Advertiser (as defined in the Advertising Order) must have paid any outstanding invoices before the advertising will appear on Incredible Software Solutions.
1.2 All prices quoted are based on calendar months. Where an advertiser wishes advertising to appear part way through a month then a discount of 25% of the 1st month's fee will be given for each complete week (Sunday to Saturday) that the advertising does not appear. Part months are not included when calculating a price, or discount given, for a run of advertising of more than 1 month.
1.3 The Advertiser must pay at the rates prescribed by applicable law all VAT (and all similar sales tax (if applicable)) on the amounts due under this Advertising Order.
1.4 The Advertiser represents and warrants that it contracts with Incredible Software Solutions as principal, and has the authority to do so, notwithstanding that the Advertiser may be acting as an advertising agency or media buyer or in some other representative capacity.
2. Positioning and Licence
2.1 The Advertiser hereby grants to Incredible Software Solutions a world-wide, non-exclusive, fully paid licence to reproduce and display the advertisement (including all contents, trademarks and brand features contained therein) in accordance with the Advertising Order and these Advertising Terms and Conditions.
2.2 Except as otherwise expressly provided in the Advertising Order, positioning of advertisements within the Incredible Software Solutions properties or on any page is at the sole discretion of Incredible Software Solutions, and Incredible Software Solutions will not be prohibited from also carrying advertisements for any product or business competitive to the product or business of the Advertiser.
2.3 Incredible Software Solutions does not warrant the date or dates of insertion of the advertisement(s) and does not warrant that the advertisement(s) will not be displayed after the end date specified. However, Incredible Software Solutions will use reasonable efforts to comply with the Advertiser's wishes in these regards.
2.4 The Advertiser grants to Incredible Software Solutions the express right to reproduce throughout the world screen shots of all or part of any Incredible Software Solutions property containing all or part of any of the advertising materials supplied by the Advertiser to Incredible Software Solutions on or in any promotional or advertising material or campaign promoting or advertising Incredible Software Solutions
2.5 If the Advertiser wishes to request a change to positioning of advertisements, it must provide the relevant creatives and give prior written notice of at least 2 weeks before the end of a calendar month, such change to take place in the following calendar month. Failure to provide such prior notice will mean that the positions set out in the Advertising Order prevail. Any requested change to positioning of advertisements will be decided at Incredible Software Solutions' sole discretion, subject to availability. In any event, the Advertiser will only request changes to the position of advertisements once in any each calendar month.
3. Usage Statistics
Notwithstanding the provisions of the Advertising Order, the Advertiser acknowledges that Incredible Software Solutions has not made any guarantees with respect to usage statistics, which include, without limitation, levels of impressions or click through's for any advertisement or for any position specified for each advertisement. Incredible Software Solutions provides the Advertiser with estimated usage statistics only as a courtesy to the Advertiser and Incredible Software Solutions will not be held liable for any claims relating to any usage statistics however supplied. The Advertiser acknowledges that usage statistics provided by Incredible Software Solutions are the official, definitive measurements of Incredible Software Solutions' performance on any delivery obligations provided in the Advertising Order.
4. Renewal
Except as expressly set out in the Advertising Order, any renewal of the Advertising Order and acceptance of any additional advertising order will be at Incredible Software Solutions' sole discretion. The rates applicable to such renewal period (if any) are subject to change by Incredible Software Solutions from time to time in its absolute discretion.
5. No Assignment or Resale of Ad Space
The parties may not resell, assign or transfer any of its rights hereunder, except to any of their Affiliates provided that such Affiliates are not competitors of the other party. Any attempt to resell, assign or transfer such rights will entitle the other party to terminate this contract immediately, without liability on the part of the terminating party. "Affiliate" means in respect of a party its "holding company", its "subsidiary company" or a subsidiary company of its holding company, as those terms are defined in section 736 of the Companies Act 1985.
6. Limitation of Liability
If Incredible Software Solutions fails to publish any advertisement or deliver the number of impressions or click-through's as provided in the Advertising Order (or in the event of any other failure, technical or otherwise, of such advertisement to appear as provided in the Advertising Order), Incredible Software Solutions' liability will be limited (at the option of Incredible Software Solutions) to either:
(a) publishing the advertisement (or a replacement advertisement if provided by the Advertiser) on positions agreed in the Advertising Order or as agreed with Advertiser as soon as is reasonably practicable in the period following the period during which the advertisement was scheduled to run and for such time as is necessary to generate a number of substitute impressions or click-through's of equivalent monetary value to the shortfall; or
(b) refund to the Advertiser that proportion of the amounts paid which relate to those advertisements and/or impressions or click-through's which were not provided, and if the relevant amounts were not paid by the Advertiser, agree that such amounts will not be due or payable. Incredible Software Solutions will only provide a refund to the Advertiser under clause
6.1(b) if: (i) the creative arrived within the time limits specified in the Advertising Order;
(ii) the creative performed in accordance with Incredible Software Solutions' technical specifications at http://www.IncredibleSoftwareSolutions.com/advertising; and
(iii) cancellations and changes to media schedules were notified within the time frame set out in clause 2.5.
6.2 In no event will Incredible Software Solutions be responsible in contract, tort, negligence or otherwise, for: (a) loss of profits, business, contracts, revenues, goodwill, production and anticipated savings; or (b) any indirect, consequential, special or economic loss of any kind; arising from any failure to publish in a timely manner or at all any advertisement in accordance with the Advertising Order.
Where the Advertiser uses a third party server to serve advertisements to Incredible Software Solutions:
(i) Incredible Software Solutions will have no liability and the Advertiser will hold only the third party server (and not Incredible Software Solutions) liable for the failure to publish any advertisement or deliver the number of impressions or click-throughs as provided in the Advertising Order or any other loss of any kind suffered by the Advertiser where those failures or losses are due to or arise out of or in connection with any act or omission of the third party server; and
(ii) the statistics provided by Incredible Software Solutions are the official and definitive measurements. Incredible Software Solutions reserves the right to terminate at Incredible Software Solutions' sole discretion the right of the third party server to serve the Advertiser's advertisements to Incredible Software Solutions' network. In the event of such termination, Incredible Software Solutions may serve the advertisements instead.
6.4 Without limiting the foregoing, Incredible Software Solutions will have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of Incredible Software Solutions affecting production or delivery in any manner.
6.5 Incredible Software Solutions does not limit or exclude liability for death or personal injury caused by its negligence.
6.6 Each of the provisions of this clause 6 are to be construed separately and independently of the other, and if any provision of this clause 6 (or any other clause herein) is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this clause 6 (or any other clause herein) which will remain in full force and effect.
7. Advertisers Representations; Indemnification.
7.1 The Advertiser warrants and represents to Incredible Software Solutions that:
It has the right to publish all of the contents of the advertisements, and can grant to Incredible Software Solutions such right, and that such publication will not:
(a) infringe any rights of any third party including, without limitation, intellectual property rights and rights of privacy; and
(b) violate any applicable law or regulation.
7.1.2 The advertisements do not contain anything that is defamatory, obscene, false or misleading.
7.1.3 It has complied with the codes of practice issued by the Committee of Advertising Practice in the UK or the Advertising Standards Authority for Ireland as applicable and all other relevant industry codes of practice.
Unless the Advertiser is an "authorised person" within the meaning of the Financial Services and Markets Act 2000 ("the Act"), you agree that the advertisement submitted pursuant to the Advertising Order either:
(a) does not constitute an invitation or inducement to engage in investment activity within the meaning of the Act; or
(b) has been approved by an "authorised person" within the meaning of the Act or is otherwise permitted under the Act and the Advertiser has expressly notified Incredible Software Solutions in writing of this.
7.1.5 It does not collect or use personal information through its Advertisements on any Incredible Software Solutions property without permission from the user. The Advertiser may not combine, co-mingle, compare or match any information that they legally collect via its Advertisements on any Incredible Software Solutions property with any personal information, clickstream or cookie information that they may have.
7.2 The Advertiser agrees to indemnify and keep indemnified Incredible Software Solutions and hold Incredible Software Solutions harmless against any and all expenses, damages costs (including reasonable legal fees and costs) and losses of any kind incurred by Incredible Software Solutions 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 breach of any industry advertising codes or sales practices) arising from the advertisement and /or any material (of the Advertiser or otherwise) to which users can link through the advertisement.
8. Provision of Advertising Materials
The Advertiser will provide all materials for the advertisement (including GIF or JPEG files), in accordance with Incredible Software Solutions' requirements set out in this Agreement and in the Advertising Order, including (without limitation) the manner of transmission to Incredible Software Solutions, the lead-time prior to publication of the advertisement and such technical specifications as Incredible Software Solutions may require from time to time. Incredible Software Solutions will not be required to publish any advertisement that has not been received in accordance with such requirements and reserves the right to charge the Advertiser the advertising rate specified in the Advertising Order whilst awaiting receipt of the advertising material.
9. Right to Reject Advertisement
All contents of advertisements are subject to Incredible Software Solutions' approval. Incredible Software Solutions does not undertake to review the contents of any advertisements and any such review of and/or approval by Incredible Software Solutions will not be deemed to constitute an acceptance by Incredible Software Solutions that such advertisement is provided in accordance with these Advertising Terms and Conditions nor will it constitute a waiver of Incredible Software Solutions' rights hereunder. Incredible Software Solutions reserves the right at any time in its absolute discretion to:
9.1 Reject or cancel any advertisement, Advertising Order, URL link, space reservation or position commitment; and/ or
9.2 Remove any advertisement from any of the Incredible Software Solutions properties or any page.
10. Cancellations and Construction
The Advertiser cannot cancel the Advertising Order. No conditions other than those set forth in the Advertising Order or these Advertising Terms and Conditions will be binding on Incredible Software Solutions unless expressly agreed to in writing by an authorised representative of Incredible Software Solutions. In the event of any inconsistency between the Advertising Order and these Advertising Terms and Conditions, these Advertising Terms and Conditions will prevail.
11. Confidentiality and Public Announcements
11.1The provisions of the Advertising Order and all communications passing between the Advertiser or any of its agents and Incredible Software Solutions are confidential and must not be disclosed to any third party except: (a) by the Advertiser to its qualified accountants or legal advisers; (b) by Incredible Software Solutions to its qualified accountants or legal advisers; or (c) as otherwise agreed by the parties in writing or as otherwise required by law.
11.2 If the parties have executed a non-disclosure agreement prior to the date of this Agreement ("Non-Disclosure Agreement"), then: (a) the Non-Disclosure Agreement is hereby incorporated into this Advertising Terms and Conditions by reference whether or not it is attached to the Advertising Order; and (b) each party must comply with its obligations in the Non-Disclosure Agreement.
12. Miscellaneous
These Advertising Terms and Conditions, together with the Advertising Order (i) will be governed by and construed in accordance with, the laws of England, and the parties submit to the non-exclusive jurisdiction of the English courts; and (ii) constitute the complete and entire expression of the agreement between the parties, and supersede all other prior understandings, commitments, agreements and (unless made fraudulently) representations, whether written or oral between the parties. Clauses 6, 7, 11 and 12 will survive any expiry or termination of these Advertising Terms and Conditions. Incredible Software Solutions' failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
Notwithstanding any other provision in these Advertising Terms and Conditions, a person who is not a party to these Advertising Terms and Conditions has no right under the Contracts (Rights of Third Parties ) Act 1999 to rely upon or enforce any term of these Advertising Terms and Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
Advertising Home Page