Terms and Conditions of Sale

Sep 24, 2018

  These terms and conditions govern relations between the Customer and Ogury Ltd with regards to the sale of an Advertisement in Applications, which gave rise to an Insertion Order being established. Unless explicitly agreed via a joint agreement between Ogury Ltd and the Customer, any request for information made to Ogury Ltd shall automatically assume the Customer’s agreement to these terms and conditions.   DEFINITIONS “Advertiser” refers to the person on whose behalf the Insertion Order for an Advertisement is enacted in Application marketed by Ogury Ltd; “Advertisement” refers to the advertisement described in the Insertion Order; “Application(s)” refers to any Application(s) set out in the Insertion Order in which the Advertisement will be displayed. “Authorised Representative” refers to the intermediary mandated by the Advertiser, who has signed the Insertion Order; “Customer” refers to: (i) the Advertiser should this person directly establish a contract with Ogury Ltd; or (ii) the Advertiser and their Authorised Representative, should it be the Advertiser’s Authorised Representative who signs the Insertion Order, the latter declaring themselves duly mandated to act on behalf of the Advertiser to sign the Insertion Order for the purchase of the established advertising space. Should this be the case, the Authorised Representative guarantees that the Advertiser shall observe this contract and personally commits to observing the terms and conditions of this contract, including but not limited to the situation in which the Authorised Representative should also be mandated, as stated, to pay Ogury Ltd the sums due upon enactment of this contract; “Insertion Order” refers to the document signed by the Customer, requesting that Ogury Ltd place an Advertisement in the Application; and “Offer” refers to Ogury’s offer of services in response to a request for information from the Customer, which has been formally accepted by the Customer, and the Insertion Order for which leads to its implementation. 1. ESTABLISHING THE Insertion Order  1.1. Setting out an offer. Upon receiving a request for information from the Customer with a view to displaying an Advertisement, and subject to Ogury’s agreement, Ogury’s sales department sets out an Offer which is sent to the Customer for their approval. The Customer accepts Ogury’s Offer and sends the type of file they will use for their Advertisement for Ogury’s prior agreement, along with, where necessary, the documents and/or information required by the latter. The Customer should accept within the timescale mentioned in the Offer. Ogury will then send the Customer the Insertion Order which the Customer should return, duly signed and with “read and approved” handwritten on it, within 7 days of receipt of the proposed Insertion Order. 1.2. Placement. Except where expressly set out in the Insertion Order, the choice of Advertisement placement in Application remains at the exclusive discretion of Ogury Ltd. 1.3. Rejection, cancellation, modification or withdrawal of an Advertisement by Ogury. If Ogury reasonably believes that the content and/or placement of the Advertisement or any other issue could leave it criminally and/or civilly liable, if the Advertiser is one of Ogury’s competitors, or if the Advertisement runs counter to the customs and values to which Ogury adheres, including Ogury’s Brand Safety Policy, it reserves the right to:  - 1.3.1. reject or cancel the Offer; - 1.3.2. request modification to the Advertisement design; or - 1.3.3. withdraw all Advertisement currently being displayed in Application; This may be done at any time without offering any reason and all requests for the withdrawal of Advertisements shall be handled in accordance with Ogury’s Brand Safety Policy. Such a rejection does not grant the Customer any right to damages of any nature. 1.4. Reimbursement of the Advertisement is however possible, depending on the sole judgement of Ogury in light of the reasons leading to the decision to stop the Advertisement. The reimbursement will be made in proportion to the number of days that remain for the Advertisement to be displayed, or the number of advertisements displayed. 1.5. Nevertheless, Ogury’s acceptance of the Advertisement does not constitute confirmation by it that the content of the Advertisement complies with the provisions of this document and/or the regulations in force, nor does it constitute a waiver of Ogury’s rights in accordance with this document.  1.6. Ogury reserves the right to submit the Advertisement to the BVP (Advertisement Verification Office) for feedback prior to displaying it. Should the BVP (Advertisement Verification Office) consider that the Advertisement not comply with the regulation in force and/or professional standards, Ogury may decide not to display the Advertisement or to withdraw an Advertisement currently being displayed, at its discretion. In this case, the Insertion Order will be terminated in accordance with the law, without any compensation to the Customer, without prejudice to any damages or interest to be paid to Ogury, should it have suffered damages. 2. EXCLUSIVITY/CONFIDENTIALITY 2.1. Ogury does not grant exclusive rights to the Customer. 2.2. The Insertion Order, the provisions thereof, as well as any other information directly or indirectly related to the Insertion Order and/or the Advertisement are confidential (hereafter “Confidential Information”). The Customer agrees to only reveal the Confidential Information to managers and employees whose work is closely related to advertising and for whom this information is absolutely necessary in order to carry out their work.  2.3. The Customer agrees that none of their managers, employees, and/or representatives will inform the public of the Confidential Information, via press conference and/or press release and/or press article, informational leaflet about the Customer, publicity information or any other means, for any reason whatsoever. Any breach of this obligation by the Customer could give rise to the termination of the Insertion Order, with the Customer unable to claim any payment in this regard. 3. PROVISION OF Advertisement INFORMATION 3.1. The Customer will provide all information relating to the Advertisement required for its display, in line with the values and customs in force at Ogury, and with the technical specifications required by Ogury, including but not limited to the format, size, weight, animation as well as all specific formatting related to events operations, and in general any other information specified by Ogury. This material should be provided to Ogury at the latest seven (7) working days before the first day of the Advertisement being displayed, unless specified otherwise in the Insertion Order. 3.2. Should these deadlines and/or technical specifications and/or customs and values not be observed (particularly should the technical information requested by Ogury not be provided within the aforementioned deadlines, especially on the first day of the Advertisement being displayed), the full price of the Advertisement shall by payable by the Customer; Ogury shall not be liable to pay any compensation, payment or interest to the Customer and/or any interested third party. 4. CONDITIONS OF PAYMENT 4.1. The invoice shall be issued from the first date that the Advertisement is displayed as set out in the Insertion Order. The invoice is in the name of the Advertiser, and settled by the Advertiser or their Authorised Representative according to the invoicing terms agreed with Ogury, without prejudice to any of the Advertiser’s legal transmission obligations. The invoice includes the price for displaying the Advertisements, plus technical fees and duties where necessary. It is payable by bank cheque or by transfer (fees to be paid by the sender) 30 days from the end of the month. If the signatory of the Insertion Order is the Advertiser’s Authorised Representative, the Authorised Representative undertakes to guarantee that the Advertiser will adhere to this contract and undertakes to adhere to the terms of this contract themselves, including but not limited to the event that the Authorised Representative is also mandated, as stated, to pay Ogury the sums due for the enactment of this contract. 4.2. Non-payment. Any non-payment of an undisputed invoice by the due date shall lead to the automatic suspension of the Insertion Order, and, where necessary, a readjustment of the preferential tariff agreed up on. Ogury can, at its convenience, call in all sums due by the Customer for all services already rendered. After a formal notice has been served and gone unheeded, any non-payment may give rise to a fee equal to 10% of all sums due to Ogury. Any costs for recovering the sums due which Ogury are obliged to pay will be recovered from the Customer. 4.3. Specific provisions for Customers outside of UK. For Customers whose headquarters is outside of UK, Ogury reserves the right to demand full payment of the Insertion Order before their Advertisement is displayed. 5. CANCELLATION/MODIFICATION/RENEWAL BY THE CUSTOMER 5.1. Any request for modification, cancellation and any request for deferment of the Insertion Order after signing (whatever the type of Advertisement): - 5.1.1. is only authorized if sent by email or post and received within a minimum period of three calendar weeks prior to the date set out for first display of the Insertion Order;  - 5.1.2. will give rise to the termination of the Insertion Order; and - 5.1.3. will lead to the Customer being reimbursed the sums paid for the display of the Advertisement.  5.2. Any modification, cancellation and any request for deferment of the Insertion Order after signing, sent by email or post and received between three to one calendar week/s prior to the date set out for first display as established in the Insertion Order: - 5.2.1. will give rise to the termination of the Insertion Order; and - 5.2.2 will lead to either (a) Ogury reimbursing the Customer a sum not exceeding 50% of the amount already paid for the display of the Advertisement, or (b) if no payment has been made, the Customer paying Ogury a sum not exceeding 50% of the amount owed by them to Ogury under the Insertion Order. 5.3. Any modification, cancellation and any deferments to the display of Advertisements in Applications after signing which is sent by email or post and received between one calendar week prior to the date of first display, and the date of first display set out in the Insertion Order: - 5.3.1. will give rise to the termination of the Insertion Order; and - 5.3.2. will give rise to the Customer paying Ogury Ltd 100% of the sums owed by the former to Ogury under the Insertion Order. 5.4. In any event, any modification, cancellation and any deferment of the Insertion Order on any grounds is strictly prohibited after the aforementioned deadline and/or during display of the Advertisement in Applications. 5.5 Unless otherwise stated in the Insertion Order, any renewal of the Insertion Order shall be undertaken via joint agreement between the parties, and shall be subject to the new conditions and tariffs in force where necessary. 6.CUSTOMER GUARANTEES 6.1. Customer represents and warrants that it has all necessary licenses and clearances to use the content contained in the Advertisement. 6.2. The Customer guarantees that the content of the Advertisement will not contravene any standard and/or regulation in force (particularly those relating to advertising, competition, sales promotions, intellectual property, personality rights, collection of personal data), or any third party’s rights (particularly pertaining to intellectual property law for work and for software), or the guidelines of the International Chamber of Commerce, the codes of professional ethics, and that it does not contain any defamatory or prejudicial content regarding third parties. 6.3. The Customer expressly guarantees that they hold all of the rights for the Advertisement and that they will personally attend to all payments due to this end, particularly with regards to reproduction, communication and provision of the Advertisement for the general public, and has finalised or will finalise any contracts and has obtained or will obtain all necessary permissions from all physical or moral persons concerned for whatever reason with the production of the Advertisement and/or elements within the Advertisement, or who may claim rights to the use of the Advertisement and/or elements within the Advertisement (namely their successors, including collectively managed companies), and physical persons whose name, image, voice, biography or (physical or non-physical) assets appear in the Advertisement and/or elements of the Advertisement. 6.4. The Customer guarantees that the Advertisement will not grant access via hyperlinks to sites whose content contravenes the regulations in force or which provide information or documents of a defamatory nature, or which distorts or damages the image of the Application or of Ogury, or which runs counter to Ogury’s editorial line, or more generally which damages the Applications or Ogury. 6.5. Customer acknowledges that Ogury is not responsible for the content or subject matter of any Advertisement to the extent used by Ogury in accordance with these terms or an Insertion Order. 6.6. This guarantee includes but is not limited to any damages and interest and/or criminal penalties which would be brought against Ogury and also includes reasonable legal fees, irrecoverable costs and lawyers’ fees. 6.7. Should the Customer not comply with the guarantees above, Ogury reserves the right, acting reasonably, to suspend the display of the Advertisement, immediately and without prior notice. Customer shall pay the fees due for the deliverables delivered up to the effective date of termination of the Insertion Order. 7. OGURY’S LIMITATION OF LIABILITY 7.1. Any technical faults in advertising material provided by the Customer, including by not limited to not complying with the technical specifications, or any delay in delivery of said material, or in the launch or the websites which it aims to promote, cannot in any case justify the termination of the Insertion Order, or give rise to any right to payment to the Customer and releases Ogury of any duty to carry out the Insertion Order. The sums invoiced by Ogury are still payable by the Customer on the agreed date and for the entirety of the campaign. 7.2. Ogury is released of its obligation to display the Advertisement in the case of a force majeure event, or any event which can be attributed to a third party, or any other circumstance caused by events outside and/or independent of Ogury’s liability and which directly or indirectly prevents it from fulfilling its obligations. Under such circumstances, any delay or non-provision of the service does not justify the termination of the Insertion Order by the Customer, nor does it give rise to a right to damages and interest payable to them. 7.3. In the case that the Advertisement is not displayed, excepting the cases already listed, Ogury undertakes to display the Advertisement in similar conditions to those set out under the Insertion Order depending on availability in the Applications. 7.4. If actual deliverables for any campaign fall below the levels, as set forth on the IO, and/or if there is an omission of any Advertisement (placement or creative unit), the parties will use commercially reasonable endeavors to agree upon the conditions of a makegood flight, either on the Insertion Order or at the time of the shortfall. 7.5. In the case that the Ogury service/s and/or category/ies set out in the Insertion Order should be permanently stopped at Ogury’s instigation, the Customer may request that Ogury: - 7.5.1. i) move the display of the Advertisement to another Ogury service and/or category for the period that remains; or - 7.5.2. ii) reimburse them for the sums paid for the display of the Advertisement, on a prorate temporis basis for the display period that remains. 7.6. In no case shall Ogury be liable for any direct or indirect damages, loss of earnings, loss of business or any other prejudice resulting from not displaying the Advertisement in line with the Insertion Order. 8. NON-TRANSFERABILITY OF THE INSERTION ORDER 8.1. The Customer cannot resell, concede or transfer to any physical or moral person, including a parent company, sister company or subsidiary, any of the rights granted through this document and/or the Insertion Order; any attempt to do so will give rise to the immediate termination of the Insertion Order without Ogury being liable, and without prejudice to the right to claim damages and interest. 9. MISC 9.1. Entire agreement. Each Insertion Order (including this agreement) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Insertion Order. The Insertion Order may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. 9.2. Conflicts; Jurisdiction; Amendment. In the event of any inconsistency between the terms of an Insertion Order and this agreement, the terms of the Insertion Order will prevail. This agreement (including each Insertion Order) and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim. No modification of this agreement will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. 9.3. Assignment. Customer may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Ogury’s prior written approval will be null and void. All terms and conditions in this agreement and each Insertion Order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns. 9.4. Third party rights. This agreement does not confer any rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999, or otherwise.