Advertiser Terms and Conditions
The following terms and conditions (“Advertiser Terms and Conditions”) form part of an Agreement (“Agreement”) between Rockabox Media Ltd, trading as Scoota, a company incorporated in England and Wales with registered number 06475602 (“Scoota”) and the Agency or Advertiser named as the Customer in the Insertion Order (the “Customer”) for digital media services provided by Scoota (the “Services”) in relation to the Campaign described in the Insertion Order (the “Campaign”).
The costs to be charged for the Services by Scoota are set out in the Insertion Order (the “Charges”).
The Agreement including these Advertiser Terms and Conditions shall become effective upon an approved representative of the Customer signing the Insertion Order (“IO”).
2. Campaign Creatives
Unless otherwise agreed between Scoota and the Customer, a minimum of 14 days shall be required prior to the Campaign start date for designing and building the Campaign Creative.
Unless otherwise requested and agreed between the parties, the Customer will, at its sole cost and expense, provide all video, rich creative and/or other advertising materials (“Advertising Materials”) required for any Campaign Creative according to technical specifications provided by Scoota.
If Advertising Materials supplied do not conform to Scoota’s technical specifications or do not arrive within the time specified by Scoota required to deliver the Campaign on the agreed dates according to the Insertion Order, then Scoota, in its sole discretion, may: (a) reject such Campaign; or (b) postpone running such Campaign until a reasonable period of time after (i) the non-conforming Advertising Materials are corrected, or (ii) the late-arriving Advertising Materials are received.
Campaign Creatives normally require two phases, a design phase and a build phase. Within the Charges for each Campaign, two (2) rounds of Customer amendments to designs shall be permitted, before sign off, after which any further amendments may incur additional costs. During the build phase a further two (2) rounds of imagery and copy changes are permitted before sign off after which further amendments may incur additional costs.
Any changes to the designs and/or layouts during the build phase may also incur additional costs. Any changes to the Advertising Materials as supplied by the Customer may result in additional costs. Any additional Advertising Materials that are required to be purchased by Scoota shall be separately chargeable.
Once a Campaign is live any changes to the Campaign Creative shall be chargeable. Regular updates to the Campaign Creative once the Campaign is live shall be agreed in advance and any Advertising Materials required for these updates shall be supplied by the Agency at least 3 working days in advance of the required update.
3. Campaign Term and Delivery
Scoota shall run the Campaign from the Campaign start date as described in the IO until the earlier of i) the Campaign end date and ii) full delivery of the agreed quantity of impressions as defined in the IO. In the event that the agreed quantity of impressions has not been delivered as of the Campaign end date or if Scoota has otherwise failed to display the Campaign in accordance with the Agreement (“Campaign Shortfall”) then Scoota shall only invoice the Customer for the actual quantity of impressions delivered as of the Campaign end date and shall have no further liability to the Customer for the Campaign Shortfall.
For Campaigns charged on a cost per impression (CPM) basis, Scoota will use its reasonable endeavours to deliver impressions evenly throughout the Term unless otherwise specified in the IO. Scoota does not guarantee even delivery of Campaigns nor does Scoota accept any liability for uneven delivery.
Any discrepancies between the number of impressions measured by Scoota and those measured by the Customer shall be dealt with in accordance with the IAB’s Ad Impression Measurement Guidelines as updated from time to time.
4. Campaign Performance
In relation to Campaign metrics, the Customer shall comply (and where the Customer is the Agency, ensure the Advertiser complies) with any additional data requirements to achieve the Campaign objectives, including but not limited to behavioural targeting, Pixels / Web Beacons, or conversion tracking. The Customer acknowledges that failure to comply with this clause may result in the Campaign under-delivering impressions, or to uneven Campaign delivery, and/or the Campaign starting after the Campaign start date listed in the IO and therefore Scoota reserves the right not to launch, to suspend or cancel the Campaign, at no liability to Scoota, until such requirements are met.
5. Campaign Reporting
Scoota will provide the Agency and/or Advertiser listed on the Insertion Order with reports on performance and delivery of the Campaigns being placed according to the Insertion Order. Reporting on performance and delivery, including without limitation MPU impressions, views or engagements of Campaigns is handled by Scoota and is based on its numbers and measurement processes as determined in its sole discretion. Such measurement processes will also be used for invoicing the Charges, including delivery of impressions and ad serving specified in the Insertion Order.
Scoota shall submit its invoices to the Customer in respect of individual Campaigns on a monthly basis, at the end of each month during which the Campaign is running, with a final invoice submitted at the end of the Campaign. Monthly invoices shall be based on the number of impressions delivered during that month.
Scoota shall invoice the amounts agreed in the signed IO, unless there is a Shortfall and unless changes have been agreed in writing between Scoota and the Customer in respect of the Campaign.
Invoices will be sent to the billing address of the Customer, as applicable and as set forth in the Insertion Order. Failure by Scoota for whatever reason to send a timely invoice will not affect the Customer’s obligation to pay for any Campaigns booked in accordance with the Insertion Order.
7. Terms of Payment
Payment shall be made by the Customer within 30 calendar days of the Invoice date, unless Scoota expressly agrees otherwise in the Insertion Order. Payment not made within five (5) business days of the due date shall accrue interest at the rate of 6% above the Bank of England Base Rate applicable at the time, per annum. All costs of collection, including reasonable legal fees and expenses, incurred by Scoota shall be borne by the Customer.
The Agency shall pay all applicable sales taxes (VAT) that Scoota must apply to its invoices.
8. Payment Liability
Scoota will hold the Agency and the Advertiser jointly and severally liable for payment, in case of non-payment by the Customer. Upon Scoota ’s request, where the Customer is the Agency, the Agency will make available written confirmation of the relationship between Agency and Advertiser. Such confirmation will include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Insertion Order and its acceptance of these Advertiser Terms and Conditions.
Scoota offers credit terms on a ‘customer by customer’ basis. If the Customer’s credit is or becomes impaired, Scoota may require payment in advance.
9. Customer Representation and Warranties
The Customer named on the Insertion Order is responsible for any liability arising out of or relating to any Campaign and associated Advertising Materials and for any material to which users can link through to from such Campaign (“Linked Content”).
The Customer represents and warrants that no part of the Campaign, Advertising Materials or Linked Content will: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; c) be defamatory or libellous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
The Customer further represents and warrants that the product or service that is being promoted through any Campaign hereunder is not the subject of any ongoing investigation by any local or central regulatory or quasi-regulatory authorities.
Further, where the Customer is the Agency, the Customer represents and warrants that it has the authority as Advertiser’s agent to bind the Advertiser to these Agency Terms and Conditions and the Insertion Order, and that all of the Customer’s actions related to these Advertiser Terms and Conditions and each Insertion Order will be within the scope of the Customer, and the Customer will defend, indemnify, and hold harmless Scoota from claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from Customer’s alleged breach of the foregoing sentence.
Scoota reserves the right to reject or remove the placement of any Campaign (or any part of any associated Advertising Materials) or URL link embodied within a Campaign at any time in the event Scoota determines in its sole reasonable discretion that such Campaign or Linked Content does not meet its standards or comply with the Insertion Order or with any applicable law, rules, regulation, industry guidelines or policies, or other judicial or administrative order, or that such Campaign (or associated Advertising Materials) or Linked Content is unlawful or inappropriate or may be likely to bring harm upon Scoota or any of the publishers (or their domains) in the Scoota publisher network.
Scoota also reserves the right to demand third party verification for any claims made in any Campaign and to terminate this Agreement in the event that such verification is not promptly provided or is unsatisfactory, in Scoota ’s sole discretion.
For the term of this Agreement, the Customer hereby grants to Scoota and its publishers and other partners in the Scoota publisher network a non-exclusive, royalty-free, worldwide license to (i) use, perform and display any Campaign (and associated Advertising Materials) delivered hereunder in accordance with the terms of the Insertion Order, and (ii) use all associated Advertiser intellectual property in connection therewith. Without limiting the foregoing, the Customer acknowledges that Scoota may distribute and place Campaigns across a blend of online websites to deliver mass reach, response and niche contextual placements, unless specifically not permitted and confirmed in writing as such by the Customer and the rights granted hereunder shall cover and permit any and all such channels and uses (which shall be deemed to be part of the Scoota publisher network). Further, the Customer acknowledges that Scoota may use, perform and display Campaigns on its proprietary Shutters video player (“Shutters”) and via other third party players used by certain publishers in its publisher network.
The Customer hereby acknowledges that any and all intellectual property rights which subsist in or arise in connection with Shutters anywhere in the world belong to Scoota and that the Customer (where it is an Agency) and any of its associated Advertisers shall have no right in or to Shutters save for the right to use Shutters as permitted by this Agreement.
Title to and ownership of all intellectual property rights of any Campaign Creative and associated Agency and/or Advertiser intellectual property shall remain with the Agency and/or Advertiser or its third party licensors.
The Customer agrees that Scoota may, during the term of this Agreement and thereafter, include the Customer’s name (including any trade name, trademark, service mark and logo) and any Campaign or Campaign Creative provided hereunder on Scoota’s customer list and in its marketing materials, web site and sales presentations.
11. DISCLAIMER OF WARRANTIES
SCOOTA PROVIDES ITS SITE AND THE SITES OF ITS PUBLISHERS AND OTHER PARTNERS IN THE SCOOTA PUBLISHER NETWORK, AND ALL OF ITS AND THEIR SERVICES, AS PERFORMED OR CONTEMPLATED HEREUNDER OR UNDER ANY INSERTION ORDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY CAMPAIGN. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY CAMPAIGN OR TECHNICAL PROBLEMS WITH SHUTTERS, SCOOTA’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS REASONABLY PRACTICABLE. SCOOTA DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE AND HEREBY EXPRESSLY EXCLUDES ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW.
12. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL SCOOTA BE LIABLE UNDER THIS AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ADVERTISER AGREEMENT INCLUDING ANY INSERTION ORDER (EVEN IF SCOOTA WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING). UNDER NO CIRCUMSTANCES SHALL SCOOTA BE LIABLE TO THE CUSTOMER, AGENCY, ADVERTISER, OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY SCOOTA UNDER THE RELEVANT INSERTION ORDER IN RELATION TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, SCOOTA SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
The Customer may cancel the IO (after that IO has been accepted by Scoota) provided that the cancellation notice is made in writing and that :
If the Customer cancels the IO between four (4) and two (2) weeks prior to the Campaign start date it shall remain liable to pay 50% of the Charges,
If the Customer cancels the IO within two (2) weeks of the Campaign start date, or at any time after the Campaign start date, it shall remain liable to pay 100% of the Charges.
The Customer may, upon written request, ask Scoota to stop the Campaign temporarily (“Pause”). If the Campaign is not subsequently restarted within 4 weeks, then Scoota may deem it to have been cancelled by the Customer and apply the cancellation terms.
In addition to any other remedies that may be available to it, Scoota may terminate the Agreement in the event of any breach by the Customer of the representations and warranties contained herein or non-performance of any of its obligations hereunder. In such circumstances the Charges shall be payable in full.
Notwithstanding anything to the contrary contained herein, these Advertiser Terms and Conditions shall continue in effect so long as there remains an active Insertion Order. Upon expiration or termination of this Agreement or in relation to any terminated or completed Insertion Order, any provisions of the Agreement which are intended or reasonably expected to survive, shall survive termination.
The Customer and (where the Agency is the Customer) the Advertiser named in the Insertion Order agrees to indemnify, defend, and hold harmless Scoota and its directors, officers, agents and representative and its publishers and other partners in the Scoota publisher network for and from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (a) the acts or omissions or breach of this Agreement by the Customer (including Customer’s Representations and Warranties set forth above), (b) the content or subject matter of any Campaign or Advertising Materials, or c) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including without limitation relating to any end user or other data that it may collect or have collected in relation to the Campaigns placed according to the Insertion Order.
Scoota agrees to indemnify, defend, and hold harmless the Customer for any claims, liabilities, costs and expenses (including reasonable legal fees) made against the Customer by a third party or parties as a result of acts of gross negligence or wilful misconduct by Scoota.
15. Confidential Information
“Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither the Customer nor Scoota shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party’s Confidential Information to the extent required by applicable law, but only after five (5) business days prior written notification to the other party of such required disclosure. In the case of Scoota ’s Confidential Information, each of Agency and Advertiser acknowledges that Scoota works with and will place the Campaigns on third party publishers’websites and sub-networks within the Scoota publisher network. The identities of the publishers in the Scoota publisher network are considered Scoota’s Confidential Information, and each of Agency and Advertiser agrees not to disclose or use such proprietary information other than in connection with engaging and working with Scoota under this Agreement.
Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed, except that the parties may retain any electronic versions of any Confidential Information of the other party solely for archival or litigation purposes. The Customer’s Confidential Information shall remain the property of the Customer, and Scoota ’s Confidential Information shall remain the property of Scoota.
This Agreement, including these Terms and Conditions and associated Insertion Order(s), sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a written addendum signed by both parties may change this. This Agreement will be governed and construed in accordance with the laws of England and Wales. The Customer and Scoota agree to submit to the exclusive jurisdiction of the courts of England and Wales. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
The Customer may not assign this Agreement without the prior written consent of Scoota. Scoota may freely assign this Agreement in connection with any corporate reorganization, share purchase, merger, or sale of all or substantially all of the business and assets associated with the subject matter of the Agreement. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
This Agreement will be brought into effect by the signing of an Insertion Order and may be executed in counterparts.