Advertising Terms and Conditions

1.1. In these Conditions, words and phrases used with capital letters shall have the meaning set out in the Insertion Order unless otherwise defined below:

“Additional Fee” means a sum of money payable by the Client to TalkTalk in respect of the number of Ad Impressions/Placements in any month of the Agreement in excess of the Weight and calculated in accordance with the rates set out in the Insertion Order;

“Agreement” means these Conditions and the Insertion Order;

“Ad Impression” means any instance when a page is downloaded to a User where that page includes an Advertisement;

“Advertisement” means one or more of the following (as specified in the Insertion Order): (i) a banner occupying a file of up to 12k and not more or less than 468 x 60 or 728 x 90pixels; (ii) a button occupying a file of up to 3k and not more or less than 120 x 60 pixels; (iii) a mpu occupying a file of up to 20kb and not more or less than 300x250 pixels (iv) a Skyscraper occupying a file of up to 15k and not more or less than 120 x 600, on various pages of the TalkTalk Site which shall include a hyper-text link to the Client Site (or as notified);

“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 or in TalkTalk email broadcasts;

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

“Net Fee” means the fee to be paid by Client for the Campaign which is calculated with reference to the Weight, but is not dependent thereon;

“Page Traffic Statistics” means the number of Ad Impressions, and the click-through rate in respect of the Advertisements occurring during the previous calendar month;

“Placements” means any text link, search box, feed of information or product branded logo;

“TalkTalk Site” means the web sites published by Tiscali UK Limited (trading as TalkTalk) a company registered in England & Wales with company number 03408171 and registered address at 11 Evesham Street, London W11 4AR under the TalkTalk brand and currently at the URL http://www.talktalk.co.uk; and

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

2.1. TalkTalk will publish the Advertisement on the TalkTalk Site each day during the Campaign Period or until the Weight has accrued in respect of the Advertisement.

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

3.1. The Client agrees to supply either:

3.1.1. a file containing the Advertisement; or

3.1.2. all the information, Trade Marks, logos and other materials necessary to enable TalkTalk to create the Advertisement (“the Information”) to TalkTalk in an agreed format and medium at least 5 working days before the Campaign Start Date.

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

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

3.4. At TalkTalk’s request, the Client shall provide TalkTalk with monthly reports containing such information as specified.

3.5. The Client shall be allowed up to 3 creative changes per month of the Campaign Period, provided that the Client shall always give TalkTalk at least 3 working days notice of any such changes it requires.

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 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, Insertion Order, 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 Client’s breach of this Agreement, the Weight may be reduced by TalkTalk in its sole and absolute discretion on a pro-rata basis.

4.2. The Advertisement will be published on the TalkTalk Site in consideration of payment of the Net Fee.

4.3. TalkTalk has the right to omit, suspend or change the position of any Advertisement accepted. TalkTalk will consult with the Client in good faith if it decides to exercise such rights.

5.1. The Client shall pay the Net Fee without any deduction, withholding or set-off in accordance with the Payment Terms set out in the Insertion Order.

5.2. If the number of Ad Impressions in any month appears likely to exceed the Weight, TalkTalk will notify the Client Contact and seek to agree:

5.2.1. whether to reduce the average number of pages of the TalkTalk Site which will include an Advertisement for the remainder of the month so that the number of Ad Impressions does not exceed the Weight; or

5.2.2. whether to permit the Weight to be exceeded with a pro rata increase in the Net Fee due from the Client in respect of that month.

5.3. TalkTalk shall invoice the Client for any Additional Fee in respect of the previous calendar month, which invoice shall be payable within 30 days.

5.4. If the number of Ad Impressions in any month is less than the Weight, and provided this was not due to Client’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.

5.5. If at the end of the Campaign Period there is an aggregate deficit in the number of Ad Impressions compared with the Weight over the entire Campaign Period, and this is not due to Client’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.

5.6. If the Net Fee due from the Client to TalkTalk is not paid within the due time, then without prejudice to any other rights and remedies of TalkTalk, the Client 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.

5.7. The Client shall pay VAT on the Net Fee as appropriate.

6.1. TalkTalk will be entitled to use the Client’s name and Trade Marks in connection with the Advertisement.

7.1. TalkTalk warrants to the Client that:

7.1.1. it has the full power and authority to enter into and perform the Agreement and has not entered into any arrangement which in any way conflicts with the Agreement or inhibits, restricts or impairs its ability to perform its obligations under the Agreement; and

7.1.2. it will use reasonable skill and care in designing, and installing the Advertisement.

7.2. The Client warrants and undertakes to TalkTalk:

7.2.1. it has the full power and authority to enter into and perform the Agreement and has not entered into any arrangement which in any way conflicts with the Agreement or inhibits, restricts or impairs its ability to perform its obligations under the Agreement;

7.2.2. nothing contained in the Information shall infringe any right of copyright, right of trade mark, right of privacy, right of publicity or personality or any other right of any other nature of any person, or be obscene or libellous or blasphemous or defamatory, or be otherwise unlawful, that it shall comply with the British Codes of Advertising and Sales Promotion, and that the Information does not incorporate any third party source material;

7.2.3. there are no and shall be no claims, demands, liens, encumbrances or rights of any kind in any of the Information resulting from any act or omission of the Client

8.1. The Client agrees to indemnify TalkTalk and keep it indemnified at all times against all claims, proceedings, demands, damages, liabilities and costs arising in connection with or further to the subject of the Agreement, including legal costs arising out of any infringement or alleged infringement of any intellectual property rights of any third party, any use of an Advertisement by a User, and further including without limitation in respect of any transaction between the Client and a User.

8.2. Except in cases of death, personal injury or fraud to which no limit shall apply, TalkTalk will not be liable for any loss or damage direct or consequential, occasioned by error in the positioning of or omission to publish any Advertisement or for late publication of an Advertisement or failure to perform any other obligation whether occasioned by negligence or otherwise save in cases occasioned by the direct negligence of TalkTalk, in which case compensation may be negotiated up to a maximum of the cost of the Advertisement booked and paid for by the Client.

9.1. TalkTalk is the owner or licensee of all intellectual property rights in the TalkTalk Site and the design of the Advertisement (if created by TalkTalk), with the exception of any of the Trade Marks appearing on the Advertisement.

9.2. The Client is the owner of all intellectual property rights in the Client Site and the Client logos and Trade Marks that may feature within the Advertisement.

9.3. TalkTalk does not grant any licence to Client to use its Trade Marks other than as permitted under section 10(6) of the Trade Marks Act 1994.

9.4. Ifany third party claims that the design of the Advertisement infringes the intellectual property rights of that third party, TalkTalk will consult with the Client and may modify the Advertisement or delete or replace any part of the material, or information contained in the Advertisement, provided that any modification, deletion or replacement does not materially affect a User’s ability to access the Client Site via the Advertisement. Notwithstanding the above, TalkTalk reserves the right to remove any such Advertisement immediately on receipt of notice that it breaches a third party’s rights.

10.1. 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 Page Traffic Statistics 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, trivial information or information which is already publicly available or 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).

10.2. Each party will comply with all English data protection and privacy legislation.

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

11.1. Both parties shall have the right to cancel the Agreement by giving notice to cancel in writing to the TalkTalk Account Manager or the Buyer, as applicable, subject to the Client reimbursing TalkTalk in respect of any costs incurred up to the date of cancellation in production of the Advertisement, on a reasonable time spent basis, together with a cancellation charge as a percentage of the Net Fee on the following scale according to the number of days prior to or after the Campaign Start Date such notice is received by TalkTalk:

• 15+ prior to the Campaign Start Date Nil
• 10-14 prior to the Campaign Start Date 50%
• 5-9 prior to the Campaign Start Date 75%
• < 5 or after the Campaign Start Date 100%

12.1. 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:

12.1.1. 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;

12.1.2. 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

12.1.3. pursuant to Clause 15.

12.2. Forthwith on termination of the Agreement:

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

12.2.2. the Client 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.

12.3. 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 Client for any outstanding Ad Impressions compared with Weight where termination is due to Client’s breach of the Agreement and Client shall be liable for the Net Fee up to and including the last day of the Campaign Period.

13.1. Both parties shall use their best efforts to negotiate in good faith and settle amicably any dispute that may arise out of or relate to the Agreement or a breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations by appropriate representatives of the parties the dispute shall be referred to the signatories of the Agreement or their successors who shall attempt to resolve the dispute.

13.2. If any an attempt at resolution further to 13.1 fails to result in a settlement, the matter at the election of either party may be submitted for resolution to a court of competent jurisdiction, which shall be the courts of England and Wales.

14.1. Any notice given under the Agreement will be in writing and may be delivered to the other party or sent by pre-paid post or facsimile transmission to the address or transmission number of that party specified in the Schedule or such other address or number as may be notified under the Agreement by that party from time to time for this purpose.

15.1. A party will not be liable for any failure/delay in performing its obligations under the Agreement to the extent that this failure is the result of any cause or circumstance beyond the reasonable control of that party and that failure could not have been prevented or overcome by that party acting reasonably and prudently. If by reason of force majeure a party is unable to perform all or any part of its obligations under the Agreement for a continuous period of 20 working days, the other party may terminate the Agreement immediately by written notice.

16.1. The Agreement is personal to and for the sole benefit of the Client and the Client 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.

16.2. TalkTalk shall be entitled to assign or license the whole or any part of its rights under the Agreement to any parent company or TalkTalk subsidiary and in such event all of the representations, warranties and undertakings on the part of the Client contained in the Agreement shall inure for the benefit of parent company or TalkTalk subsidiary and, if the parent company or such subsidiary undertakes direct with the Client to comply with the obligations of TalkTalk to the Client (but not otherwise), then with effect from the date of such undertaking, TalkTalk shall have no further liability to the Client

17.1. Nothing in the Agreement will be deemed to create a partnership or joint venture between the parties.

17.2. Each party confirms that the Agreement sets out the entire agreement and understanding between the parties and that it supersedes all previous agreements, arrangements and understandings between them. Nothing in this condition shall limit the liability of either party in relation to fraudulent misrepresentation.

17.3. No failure or delay by any party in exercising its rights under the Agreement will operate as a waiver of that right nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.

17.4. The rights and remedies of the parties under the Agreement are cumulative and in addition to any rights and remedies provided by law.

17.5. Any variation to the Agreement must be in writing and agreed by the parties.

17.6. The parties do not intend that any term of the Agreement will be enforceable by any third party solely by virtue of the Contracts (Rights of Third Parties) Act 1999.