Advertiser terms and conditions
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 Earning Tree Solutions (“Earning Tree”) 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 Earning
Tree 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. EARNING TREE’S OBLIGATIONS
1.1 Earning Tree 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 Earning Tree 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 Earning Tree 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 Earning Tree shall
notify the Advertiser in any such event.
1.4 Earning Tree 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 Earning Tree in all matters relating to the Services;
2.1.3 provide Earning Tree with such information and materials as Earning Tree
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 Earning Tree’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 Earning Tree 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 Earning Tree’s performance of any of its obligations;
2.2.2 Earning Tree shall not be liable for any costs or losses sustained or
incurred by the Advertiser arising directly or indirectly from Earning Tree’s
failure or delay to perform any of its obligations as set out in this clause
2.2; and
3. TERM
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 Earning Tree signs
the Order, or if sooner when Earning Tree start to provide the Services, at
which point and on which date a contract between Earning Tree 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 Earning Tree agrees to provide the Advertiser
with an account.
4.2 The Advertiser agrees that Earning Tree may pass the Advertiser’s
information to credit reference agencies and that Earning Tree and such
agencies may keep a record of any search that they do.
4.3 Earning Tree 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 Earning Tree reserves the right to suspend all Services until a payment has
been received to bring the account balance to the Opening Balance. Earning Tree
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 Earning
Tree 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 Earning Tree
to the Advertiser, the Advertiser shall, on receipt of a valid VAT invoice from
Earning Tree, pay to Earning Tree 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 Earning Tree, if the
Advertiser fails to make any payment due to Earning Tree under the Contract by
the due date for payment being 30 days from the date of invoice the “Due
Date”), Earning Tree 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. Earning Tree 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 Earning Tree 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 Earning Tree’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, Earning Tree shall
act in good faith to attempt to resolve it.
6. CREATIVE
6.1 All creative is subject to review by Earning Tree, and Earning
Tree reserves the right to reject any advertisement at any time. Earning Tree’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 Earning Tree 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. INDEMNITY
9.1 The Advertiser and Earning Tree 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. OWNERSHIP
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 Earning
Tree free of charge and on a
non-exclusive, worldwide basis to such extent as is necessary to enable Earning
Tree 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, EARNING TREE
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. EARNING
TREE 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 Earning Tree’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 Earning Tree’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 Earning Tree 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 Earning Tree’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. TERMINATION
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, Earning Tree 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 Earning Tree all of Earning Tree’s
outstanding unpaid invoices and interest and, in respect of Services supplied
but for which no invoice has been submitted, Earning Tree shall submit an
invoice, which shall be payable by the Advertiser within the agreed payment
terms.
14.1.2 Earning Tree shall repay to the Advertiser such balance as stands to the
credit of the Advertiser’s account (if any), save that Earning Tree 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. NON-CIRCUMVENTION
17.1 Advertiser recognises that Earning Tree has proprietary
relationships with the Publishers. Advertiser agrees not to circumvent Earning
Tree’s relationship with such Publishers, or to otherwise solicit, purchase,
contract for or obtain services similar to the Services performed by Earning
Tree hereunder from any Publishers that is known, or should reasonably be
known, by Advertiser to have such a relationship with Earning Tree, 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 Earning
Tree 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 Earning Tree has the right to prove that higher damages occurred.
18. COUNTERPARTS
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 Earning Tree 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 Earning
Tree, assign, transfer, charge, subcontract or deal in any other manner with
all or any of its rights or obligations under the Contract.
20. NOTICES
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. WAIVER
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. SEVERANCE
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.