Advertising Terms and Conditions

Last updated: 09 February 2015

The insertion order entered in to by the Parties ("IO") automatically incorporates these Terms and Conditions, as updated from time to time on the TalkTalk Site (together the "Agreement"). 

1. DEFINITIONS

In these Terms and Conditions, words and phrases used with capital letters shall have the meaning set out in the IO unless otherwise defined below:

“Affiliates” means in relation to any Party, a person which, directly or indirectly, (i) is Controlled by that Party; or (ii) Controls that Party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose "Control" means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes and "Controlled" shall be construed accordingly;

“Agreement” means these Terms and Conditions and the IO;

“Ad Impression” means any instance when an individual ad is displayed to a User on the TalkTalk Site, as measured conclusively by TalkTalk;

“Advertisement” means an ad slot and size (as specified in the IO) supplied in line with TalkTalk’s standard advertising specifications, on various pages of the TalkTalk Site;

“Advertiser” means the advertiser or any third party acting on behalf of an advertiser, in either case as listed in the applicable IO or as the context may otherwise dictate;

“Advertiser Site” means any site linked into via the Advertisement;

“Campaign” means the advertising campaign to be provided by TalkTalk for the Advertiser in accordance with the Agreement and as set out in more detail on the IO;

“Campaign Period” means the period between, and including, the Campaign Start Date and the Campaign End Date during which time the Advertisement will appear on the TalkTalk Site;

 “Campaign Start Date” means the date that the Campaign Period is due to start as set out on the IO;

 “Campaign End Date” means the date that the Campaign Period is due to end as set out on the IO;

 “Net Fee” means the fee to be paid by Advertiser for the Campaign as set out in the IO;

 “Party” means a party to the IO;

 “Placements” means any promotional placement available on the TalkTalk Site, including but not limited to text links, image and text based promotions with links, feeds, logos, and standard and non-standard ad formats;

 “TalkTalk Site” means the web sites published by TalkTalk Telecom Limited a company registered in England & Wales with company number 4633015 and registered address at 11 Evesham Street, London W11 4AR under the TalkTalk brand and currently at the URL http://www.talktalk.co.uk;

 “User” means any person who accesses the TalkTalk Site;

 “Volume” means the number of Ad Impressions or clicks, or period of time in each case as set out on the IO; and

 “Working Days” means any day except for a Saturday, Sunday or public holiday in England.

 

2. SERVICES

2.1. TalkTalk will publish the Advertisement on the TalkTalk Site in accordance with the IO and in consideration of payment of the Net Fee.

2.2. TalkTalk will publish the Advertisement on the TalkTalk Site during the Campaign Period or until the Volume has accrued in respect of the Advertisement.

2.3. TalkTalk will retain full editorial control over all material appearing on the TalkTalk Site.

 

3. ADVERTISER OBLIGATIONS

3.1. The Advertiser agrees to supply either:

3.1.1. a file containing the Advertisement; or

3.1.2. all the information, trademarks, logos and other materials necessary to enable TalkTalk to assemble the Advertisement in the form agreed between the Parties (“the Information”),

to TalkTalk in an agreed format and medium at least 5 Working Days before the Campaign Start Date.

3.2. The Advertiser will permit Users to link into the Advertiser Site via the Advertisement at all times during the Campaign Period.

3.3. The Advertiser will inform TalkTalk at least ten Working Days in advance of any planned changes to the Advertiser Site that might affect the performance of any part of TalkTalk’s obligations under this contract.

3.4. Within 10 Working Days of a request by TalkTalk, the Advertiser shall provide TalkTalk with monthly reports containing such information as reasonably specified by TalkTalk.

 

4. EDITORIAL CONTROL

4.1. TalkTalk has the right to approve the content of all Advertisements prior to their inclusion on the TalkTalk Sites. Such approval will not be deemed to constitute acceptance by TalkTalk that such advertisement is provided in accordance with these Terms and Conditions nor constitute a waiver of TalkTalk’s rights hereunder. TalkTalk reserves the right at any time in its absolute discretion to reject or cancel any Advertisement, IO, URL link; space reservation or position commitment and/or remove any Advertisement from the TalkTalk Site and/or any page. Where any such cancellation or rejection is due to the Advertiser’s breach of this Agreement, the Volume may be reduced by TalkTalk in its sole and absolute discretion on a pro-rata basis.

4.2. TalkTalk has the right to omit, suspend or change the position of any Advertisement accepted. TalkTalk will use reasonable endeavours to consult with the Advertiser in good faith prior to the exercise of such rights.

 

5. PAYMENT

5.1. The Advertiser shall pay the Net Fee without any deduction, withholding or set-off in accordance with the payment terms set out in the IO.

5.2. If the number of Ad Impressions in any month appears likely to achieve the Volume prior to the Campaign End Date, TalkTalk may cease the Campaign at such time as the Volume is achieved.

5.3. If the number of Ad Impressions in any month is less than the Volume, and provided this was not due to Advertiser’s breach of the Agreement, the deficit will be carried over to the next month and aggregated to the target number of Ad Impressions for that month.

5.4. If at the end of the Campaign Period there is an aggregate deficit in the number of Ad Impressions compared with the Volume over the entire Campaign Period, and this is not due to Advertiser’s breach of this Agreement, TalkTalk will deliver the outstanding Ad Impressions to make up the shortfall or, where this is not possible, shall in its sole and absolute discretion offer an equivalent thereof.

5.5. If the Net Fee due from the Advertiser to TalkTalk is not paid within the due time, then without prejudice to any other rights and remedies of TalkTalk, the Advertiser shall pay to TalkTalk interest on the amount outstanding from the date due until payment is made at the rate of four per cent (4%) per annum above the base rate as stated by Barclays Bank Plc in the United Kingdom compounded at monthly intervals.

5.6. The Advertiser shall pay VAT on the Net Fee as applicable.

 

6. WARRANTIES

6.2. The Advertiser represents and warrants that all Advertisements, any content on websites or web pages to which Advertisements link, Advertiser's products and services, and any data processing in relation thereto:

6.2.1. comply with and do not violate any applicable law, regulation or ordinance (including subordinate legislation and the rules of statutorily recognised regulatory authorities) for the time being in force;

6.2.2. comply with and do not violate the British Code of Advertising Practice or any other relevant codes under the general supervision of the Advertising Standards Authority;

6.2.3. do not infringe on or violate any copyright, patent, trademark, trade secret or other intellectual property right of any third party, including without limitation, any music performance or other music-related rights (and Advertiser is solely responsible for securing, maintaining and paying for all such rights and licenses which, for the avoidance of doubt, includes all necessary copyright (including without limitation all royalties payable for the copyright in any underlying musical or literary works embodied in the Advertisements), performing rights, music synchronisation, and other related rights, free and clear of all claims and encumbrances);

6.2.4. do not breach any duty toward or rights of any person or entity, including, without limitation, rights of publicity or privacy and that Advertiser has obtained the written consent, release, and/or permission of each identifiable individual person or entity to use the name, image or likeness of such individual person or entity in any Advertisement; 

6.2.5. do not and have not resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity;

6.2.6 do not contain material or information constituting libel, slander or defamation;

6.2.7 complies with the requirements of the Electronic Commerce (EC Directive) Regulations 2002;

6.2.8. are not false or misleading;

6.2.9 in relation to any Campaigns relating to the financial products or services sector, comply with the Financial Services and Markets Act 2000 (as amended) and/or the Consumer Credit Act 1974, as applicable;

6.2.10 do not either:

6.2.10.1 disparage TalkTalk or TalkTalk Affiliates; or

6.2.10.2 state or imply that TalkTalk or TalkTalk Affiliates endorse any products or services of the Advertiser; and

6.2.11 are free from any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information.

6.3 Each Party warrants to the other that:

6.3.1. it has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it hereunder; and

6.3.2. the execution of the Agreement by it, and the performance of its obligations and duties hereunder, do not and will not breach any agreement to which it is a party or by which it is otherwise bound.

6.4. If the IO is signed by an Agency, the Agency represents, warrants and undertakes that:

6.4.1. it has the Advertiser's authority to enter into this Agreement on behalf of the Advertiser (including making the warranties set out in this Agreement),

6.4.2. it shall itself comply with, and shall ensure that the Advertiser complies with, all provisions of this Agreement.

6.5. Notwithstanding that Advertiser may be acting through an advertising agency or media buyer or other representative whatsoever, Advertiser represents and warrants that it contracts with TalkTalk as principal.

6.6. Advertiser shall pay on demand to TalkTalk or TalkTalk Affiliates any and all expenses and losses of any kind (including reasonable legal's fees and costs) incurred by them in connection with any claim of any kind arising out of:

6.6.1. publication of any Advertisement (including, without limitation, any claim of trade mark or copyright infringement, libel, defamation, breach of confidentiality, false or deceptive advertising or sales practices);

6.6.2. any material of Advertiser to which Users can link through such Advertisements; or 

6.6.3. any breach by Advertiser of any representation or warranty set out in this clause 6, or any breach of any other representation or warranty under this Agreement.

 

7. LIABILITY

7.1. The maximum aggregate liability of TalkTalk and its Affiliates to the Advertiser in contract, tort (including negligence) or otherwise howsoever arising shall be limited to a sum equivalent to the amounts actually paid by Advertiser to TalkTalk in relation to any Campaign Period. 

7.2. Subject to clauses 7.3. and 7.4., if TalkTalk fails to display any Campaign (or any part of any Campaign) in accordance with this Agreement (an “Omitted Campaign”), TalkTalk’s maximum liability to the Advertiser shall be limited (at TalkTalk’s option) to:

7.2.1. displaying comparable campaigns at TalkTalk’s reasonable discretion; or

7.2.2. refunding Advertiser the payments made by Advertiser which relate to the Omitted Campaign; or 

7.2.3. a combination of clauses 7.2.1. and 7.2.2. above.

7.3. IN NO EVENT SHALL TALKTALK OR ANY OF ITS AFFILIATES BE LIABLE TO ADVERTISER IN CONTRACT, TORT OR OTHERWISE (INCLUDING ANY LIABILITY FOR ANY NEGLIGENT ACT OR OMISSION OR BREACH OF STATUTORY DUTY) FOR ANY LOSS OF REVENUE, PROFITS, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, WASTED EXPENDITURE, DAMAGE TO REPUTATION OR GOODWILL, LOSS OF OR LOSS OF USE OF DATA, IN EACH CASE WHETHER DIRECT OR INDIRECT IN NATURE, TOGETHER WITH ANY OTHER INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER, HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY BREACH THEREOF.

7.4. Notwithstanding anything to the contrary, nothing in this clause or the Agreement shall be construed to exclude or limit any liability of TalkTalk or its Affiliates which cannot be excluded or limited under applicable law (including without limitation, for death or personal injury caused by TalkTalk’s negligence or for fraud or fraudulent misrepresentation).

 

8. CONFIDENTIALITY

8.1. Each Party agrees to keep confidential and not use other than for the purposes of the Agreement (both during and after the Campaign Period) the terms of the Agreement, the Campaign Report and any and all other information concerning the business or affairs of the other. This obligation will not apply in the case of any disclosure required by law or in respect of information in the possession of a Party at the time of disclosure by the other (other than as a result of a breach of any confidentiality obligation).

8.2. Each Party will comply with all applicable data protection and privacy legislation.

8.3. Each Party will implement and maintain appropriate security procedures to prevent damage, loss or corruption of, or unauthorised access to, any data and materials.

 

9. TERMINATION

9.1. Either Party may terminate this Agreement by notice in writing to the other Party. In the event of the Advertiser terminating this Agreement in accordance with the foregoing the Advertiser shall pay TalkTalk on demand the following charges based upon when the Agreement is terminated:

  • ≥15 days prior to the Campaign Start Date = Nil
  • <15 days and ≥10 days prior to the Campaign Start Date = 50% of the Net Fee
  • <10 days and ≥5 days prior to the Campaign Start Date = 75% of the Net Fee
  • <5 or after the Campaign Start Date = 100% of the Net Fee

9.2. Both Parties shall have the right to terminate the Agreement upon the giving of written notice in the event of any of the following events:

9.2.1. if the other commits any material breach of its obligations under the Agreement which, in the case of a breach capable of remedy, is not remedied within 10 days of service of a notice specifying the breach and requiring it to be remedied;

9.2.2. if the other holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrancer take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; 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; or

9.2.3. pursuant to Clause 12.

9.3. Forthwith on termination of the Agreement:

9.3.1. TalkTalk will remove the Advertisement from the TalkTalk Site; and

9.3.2. the Advertiser will account to TalkTalk for the Net Fee due up to and including the last day of the Campaign Period or date of termination, as applicable.

9.4. Termination of the Agreement shall be without prejudice to any rights of a Party accrued before termination. For the avoidance of doubt, TalkTalk shall have no obligation to compensate Advertiser for any outstanding Ad Impressions compared with Volume where termination is due to Advertiser’s breach of the Agreement and Advertiser shall be liable for the Net Fee up to and including the last day of the Campaign Period.

 

10. DISPUTE

Each Party shall use its reasonable endeavours in seeking to settle any dispute that may arise out of or related to this Agreement save that nothing in this clause 10 shall be a condition precedent to the commencement of any court or arbitration proceedings. 

 

11. NOTICES

11.1. All contractual notices must be in writing, refer to this Agreement and be sent either by:

 

Email - to TalkTalk at contractnotices@talktalkplc.com with a copy (which shall not be deemed to be valid notice) to advertise@talktalkplc.com or to the other party’s contact email address as set out on the IO

 

Guaranteed next working day delivery service providing proof of postage - To the relevant Party’s registered address for the attention of the Legal Department

 

Hand - To the relevant Party’s registered address for the attention of the Legal Department

 

11.2. Operational correspondence should be sent to a Party’s usual operational contact(s).

 11.3. Notices are effective where:

 11.3.1. delivered by hand, at the time of signature of a delivery receipt or at the time the notice is left at the relevant address;

 11.3.2. sent by guaranteed next working day delivery service providing proof of postage, on the second working day after the posting date; or

 11.3.3. sent by email, on the sending date in the sender’s time zone where sent before 5pm in the recipient’s time zone on a working day or on the next working day where sent after 5pm, in each case as verified by written or automated notification or by electronic log. 

 11.4. If, subsequent to sending an email notice in accordance with clause 11.1, a Party (the “Notifying Party”) receives notice that such email has not been delivered then this shall not invalidate the service of the original email notice (including as to time of effectiveness) but the Notifying Party shall also send the relevant notice by another method of service listed in clause 11.1 as soon as reasonably practicable.

 

12. FORCE MAJEURE

 12.1. “Force Majeure Event” means an event beyond the reasonable control of a Party (the “Affected Party”) including without limitation acts of God, expropriation or confiscation of facilities, any form of government intervention, war, threat or preparation for war, hostilities, rebellion, terrorist activity, local or national emergency, civil commotion, strikes or other industrial action, imposition of sanctions, embargo, sabotage or riots, and floods, fires, explosions or other catastrophes, natural disasters, nuclear or chemical or biological contamination, epidemic or pandemic, interruption or failure of utility service, power failures, non-availability of any third party communications services or the internet.

12.2. If the Force Majeure Event prevents a Party from materially complying with its obligations under the Agreement and it continues for more than 25 days or an aggregate period of more than 30 days in a two month period either Party may terminate the Agreement (or affected parts of it) with immediate effect by giving the other Party notice.

 

13. ASSIGNMENT

13.1. The Agreement is personal to and for the sole benefit of the Advertiser and the Advertiser shall not assign, transfer, sub-license, sub-distribute, mortgage, charge or in any other way dispose of any of its rights, interests or obligations under the Agreement to any person or organisation.

13.2. TalkTalk shall be entitled to assign or license the whole or any part of its rights under the Agreement to any Affiliate.

 

14. RELATIONSHIP OF THE PARTIES

14.1. The Parties acknowledge that they are independent from each other.  Save as expressly set out to the contrary, nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent, employer or employee of another Party, or authorise any Party to make any representations or enter into any commitments for or on behalf of any other Party.

 

15. ENTIRE AGREEMENT

15.1. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, covenants, indemnities, commitments, warranties, representations, statements and understandings between them howsoever made, whether express or implied, and whether made innocently or negligently (“Statements”) relating to its subject matter.

15.2. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of any Statements that are not expressly stated in this Agreement.

 

15.3. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any Statements or terms of this Agreement.

 15.4. Nothing in this clause 15 shall limit or exclude any liability for fraud.

  

16. WAIVER

16.1. The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.

16.2. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement.

16.3. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement will not prevent a Party from subsequently requiring compliance with the waived obligation.

 16.4. The rights and remedies provided by this Agreement are cumulative and (subject as otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law.

 

17. THIRD PARTIES

17.1. An Affiliate of TalkTalk or a beneficiary under clause 17.2 may enforce the provisions of this Agreement in accordance with the Contracts (Rights of Third Parties) Act 1999 (the “1999 Act”).  A person who is not a Party to this Agreement has no right under the 1999 Act or otherwise to enforce any term of this Agreement.

17.2. The Agreement shall enure to the benefit of TalkTalk’s Affiliates from time to time.

 

18. GOVERNING LAW

18.1. This Agreement 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) (“Disputes”) shall be governed by and construed in accordance with the laws of England and Wales.

18.2. The Parties submit to the exclusive jurisdiction of the courts in England and Wales in relation to any Disputes.