1. DEFINITIONS & INTERPRETATION

 

1.1 Definitions

Action means the action perpetrated by the User in order to fulfil the Advertiser’s objective and to trigger payment as set out in the Deal Terms.

Ad(s) means each separate and distinct advertisement which shall each be an individual Creative.

Ad Tag means HTML or other software code provided by Hoopla Digital Ltd for Publisher to use in making requests to deliver an Ad to the Inventory.

Advertiser(s) means an entity that wishes to advertise its goods and/or services within the Media.

Advertising Guidelines means any restrictions upon any Ads to be placed within the Media.

Agency(ies) means advertising agents that manage one or more Advertisers for the purchase of advertising inventory.

Anonymous means in a manner that does not identify or permit identification, association or correlation of or with Publisher, Media or any User of the Media.

Click means the act of a User clicking on an Ad to interact with the Ad or initiate an action within the Ad.

Confidential Information means all financial, business, operational, supplier, and technical information or data including any know how and all other information (whether written, oral, in electronic or other media form) concerning the business and affairs of a Party that the other Party obtains, receives or has access to, under or in connection with this Agreement (including as a result of the discussions leading up to or the entering into or the performance of this Agreement and including the terms of this Agreement).

Content means all text, graphics, creative, logos, URLs and websites to which Ads link and any other materials for use in connection with the Ads.

CPA means cost per Action.

Cookie means any cookie, pixel, beacon or similar internet tracking mechanism.

CPC means cost per Click.

CPM means cost per thousand Impressions.

CPV means cost per view.

Creative means each Unit of advertising creative delivered to the Publisher including, but not limited to, video creative, video, video pre-roll, video in-banner, in-stream, buttons, banners, text, text-links, MPUs and leaderboards.

Email Lists means lists of email addresses of persons who have provided written authorisation to the Publisher (opt-in) to receive emails containing Creatives via electronic mail over the internet.

Forced Click means where a person, automated script, or computer program imitates a legitimate User clicking on an Ad for the purpose of generating a CPC (or giving the impression of artificially high click-through rates) without having actual interest in the target of an advertisement’s link.

Impression(s) means the serving to and receipt of, a Creative by a User as measured by Hoopla Digital Ltd. Impressions that are served but are not received or viewed due to user blocking technology or software (e.g. ad blocking software) shall not count as an Impression for the purposes of revenue calculation. A video Creative served with any companion banner shall count as a single Action.

Insertion Order or IO means the insertion orders entered into by Agency or Advertiser and Hoopla Digital Ltd for the display of Ads within the Inventory in the Media.

Intellectual Property means patents, design rights, trademarks, copyrights (including any such rights in typographical arrangements, web sites or software), rights subsisting in trading, business or domain names and e-mail addresses, rights in inventions,  rights in databases and all other intellectual property rights of a similar or corresponding character which subsist now or in the future in any part of the world whether registered or not and whether or not capable of registration, and any applications to register or rights to apply for registration of any of the foregoing in all parts of the world.

Inventory means the advertising inventory made available by Publisher exclusively to Hoopla Digital Ltd for the sale of advertising on the Media.  

Media refers to the Publisher’s online property, including Websites, Email Lists and any other online applications as described in Appendix A.

Net Revenue means the amounts actually received by Hoopla Digital Ltd from Advertisers for placement of Ads within the Inventory less any commissions charged by, or rebates granted to, Agencies or third party suppliers that are not affiliated with Hoopla Digital Ltd (if any) and any Transaction Taxes.

Network means Hoopla Digital Ltd’s centrally managed group of Advertisers, Agencies and publisher inventories together with other select third party networks.

Redirect means a piece of code which searches for alternative sources with Ads to fulfil Inventory.

Term shall have the meaning given to it in Clause 10.

Transaction Taxes means any and all applicable sales, use, gross receipts, value added, or similar transaction based taxes.

Unit(s) means the Ad units displayed within the Inventory.

User means an end user the Media.

Website(s) means the Publisher’s websites as set out in the Deal Terms.

 

1.2 Interpretation

References to clauses, subclauses and Appendices are unless otherwise stated references to clauses, subclauses and appendices to this Agreement.

References to person or persons include individuals, incorporated and unincorporated bodies or partnerships and include reference to that persons legal representatives, successors and permitted assigns.

Words and phrases used herein shall where appropriate have the meanings ascribed to them by the Copyright, Designs and Patents Act 1988 as amended by the Copyright and Related Rights Regulations 1996 and 2003.

References to include and including shall be construed without limitation.

Headings are for convenience only and shall not affect the interpretation of this Agreement.

Words importing the singular include the plural and vice versa.  Words importing the masculine gender include the feminine and neuter and vice versa.

 

  1. Inventory

2.1 Subject to Clause 2.2, Publisher shall not sell or make available any Inventory to any other person without the prior written consent of Hoopla Digital Ltd.

2.2 Publisher may sell Inventory for direct sponsorships and pan-regional sales negotiated and entered into directly by Publisher provided that Publisher gives Hoopla Digital Ltd sufficient notification of its intention to enter into such sponsorship or sales arrangement and the Parties can agree in good faith any consequential changes to the financial obligations under this Agreement in order to reflect the decreased Inventory being made available by Publisher to Hoopla Digital Ltd.

2.3 Subject to the terms of this Agreement, Hoopla Digital Ltd will make Ads available on the Inventory from its Network. The timing, location, manner, scope and duration of posting of all Ad Tags will be determined by Hoopla Digital Ltd in its sole discretion. 

2.4 If, in its reasonable opinion, Publisher deems an Ad served by Hoopla Digital Ltd on the Inventory to be inappropriate, Publisher may request the removal of such Ad by written notice to Hoopla Digital Ltd. Hoopla Digital Ltd will use all reasonable endeavours to remove such Ad as soon as practicable. Publisher’s sole remedy against Hoopla Digital Ltd in respect of such request is to require Hoopla Digital Ltd to serve alternative Ads that are appropriate and acceptable to Publisher.

2.5 Publisher warrants and undertakes (i) to maintain and update the Inventory and Media in a timely and professional manner and (ii) to maintain at least the same volume of Inventory as is available on the Media as at the date of this Agreement (or as otherwise agreed between the Parties). 

2.6 Publisher undertakes to give Hoopla Digital Ltd thirty (30) days’ written notice of any of the following events: (i) any redesign of Publisher’s Websites or other Media; or (ii) any changes to the amount or type of Inventory or Creative available to Publisher on the Media, and the Parties undertake to agree in good faith any consequential changes to the financial obligations of this Agreement in order to reflect any such changes and in particular any decrease in Inventory being made available by Publisher to Hoopla Digital Ltd.

2.7 Hoopla Digital Ltd shall not be liable for any failure to fulfil its obligations under this Agreement in the event Publisher breaches the provisions of Clauses 2.5 or 2.6 and Publisher shall indemnify Hoopla Digital Ltd on demand for any direct loss (including loss of profit) suffered as a result of Publisher’s breach of Clauses 2.5 or 2.6. Furthermore, Hoopla Digital Ltd shall be entitled to terminate this Agreement without further liability if any breach by Publisher of Clause 2.5 is not remedied within five (5) days of written notice of such breach from Hoopla Digital Ltd.

2.8 In the event that Hoopla Digital Ltd does not have any Ads available to display in response to a call from an Ad Tag, Hoopla Digital Ltd will Redirect the Ad request to the house ads provided by the Publisher. Such Redirects are not paid advertising.

 

  1. Collection, Billing and Reporting 

3.1 Hoopla Digital Ltd will bill Advertisers and or Agencies (as the case may be) for the Inventory used and purchased pursuant to the applicable IO. 

3.2 Within ten (10) days following the end of each calendar month, Hoopla Digital Ltd shall deliver a revenue report (Revenue Report) to Publisher setting out the revenue actually received from Advertisers and/or Agencies as the case may be for Ads for such calendar month and calculating the amount of the Publisher’s Revenue Share (as defined below).

3.3 Within fourteen (14) days of receipt of each Revenue Report, Publisher will invoice Hoopla Digital Ltd (as set out in the relevant Revenue Report) for the amounts set out in such Revenue Report. Publisher acknowledges and agrees that the Unit figures provided by Hoopla Digital Ltd in their monthly report are the definitive measurements for the purposes of this Agreement and for calculating the payments due to Publisher that no other measurements or statistics will be accepted.  For the avoidance of doubt, should Hoopla Digital Ltd be required to sign any third party insertion order or Publisher insertion order before or after execution of this Agreement, any terms therein shall not bind Hoopla Digital Ltd and shall been deemed to be null and void.

3.4 Publisher may audit Hoopla Digital Ltd’s books and records only as they pertain to the Revenue Reports upon giving fifteen (15) days’ written notice to Hoopla Digital Ltd and Publisher shall be solely responsible for any costs associated with said audit. In the event of any agreed discrepancy, the appropriate adjustments shall be made, which shall be the sole remedy of the relevant Party.

 

  1. Payment Terms

4.1 Hoopla Digital Ltd will pay Publisher the percentage of Net Revenue as set out in the Deal Terms for Ads placed on the Inventory. Hoopla Digital Ltd shall retain the remainder Net Revenue. 

4.2 Hoopla Digital Ltd shall pay Publisher the amounts due within sixty (60) days after the end of each applicable calendar month or receipt of an appropriate invoice, whichever is the later. If Publisher fails to deliver an appropriate invoice to Hoopla Digital Ltd within six (6) months of the end of the month in which the Net Revenue or other fees were reported, then Hoopla Digital Ltd shall have the option, acting in good faith, to deem the Publisher to have waived its rights to claim such Net Revenue or other fees and thereafter such Net Revenue or other fees shall inure to the benefit of Hoopla Digital Ltd absolutely.

4.3 All amounts shall be paid in the Currency specified in the Deal Terms.

4.4 All payments to Publisher by Hoopla Digital Ltd will exclude any Transaction Taxes.  

4.5 To ensure timely payment, Publisher must notify Hoopla Digital Ltd of any changes to its Network account information including change of address, phone or email address. All such payments shall be made via wire transfer for credit to the Publisher’s account designated above, unless and until such time as Hoopla Digital Ltd is directed by Publisher in writing to direct payment elsewhere.

 

  1. Prohibited Content and Activities

5.1 Publisher acknowledges that Hoopla Digital Ltd does not place any Ads in any Media that contains indecent or obscene (each as determined by Hoopla Digital Ltd acting reasonably) or illegal subject matter (Prohibited Content). 

5.2 Publisher represents and warrants that during the Term, none of the Media shall contain any Prohibited Content.

5.3 Publisher agrees to ensure that no material that is obscene, offensive, racially motivated, inappropriate, defamatory, illegal and/or derogatory is placed on the Website(s) and complies with best industry practice within the UK and European Union, and all applicable laws, regulators guidance and codes of conduct that shall apply from time to time.

5.4 Publisher shall NOT incentivise Users to Click on Creatives 

5.5 Publisher shall NOT serve or drive traffic to Creatives using any downloadable applications.

5.6 Except as otherwise provided in this Agreement, under no circumstances may Publisher alter, copy, modify, take, sell, re-use, or divulge in any manner any Creatives or code provided by Hoopla Digital Ltd. 

5.7 The following methods of generating visitor interest in the Media or Creatives are prohibited: mailing emails to persons that have not requested to receive such emails (i.e. spamming); use of unsolicited email or inappropriate newsgroup postings to promote the Media or Creatives; autospawning of browsers; automatic redirecting of visitors; blind text links; respawning; misleading links, Forced Clicks, or any other method that may lead to artificially high numbers of delivered clicks (Prohibited Methods). Publisher acknowledges and agrees that it will not be entitled to receive any share of Net Revenue or other fees generated as a result of any Units created by Prohibited Methods. If Publisher does not cease use of Prohibited Methods within two (2) working days of receipt of a notice from Hoopla Digital Ltd requesting such, Hoopla Digital Ltd shall be entitled to terminate this Agreement immediately without further liability.

5.8 Publisher may not purchase keywords from search engine service providers in order to drive traffic to Creatives, including, but not limited to purchasing keywords that include the trademark, service mark or brand name of the Advertiser to which the applicable Creative relates or any derivative of any such trademark, service mark, or brand name. If Publisher purchases such keywords and does not cease within five (5) days of receipt of a notice from Hoopla Digital Ltd requesting such, Hoopla Digital Ltd shall be entitled to terminate this Agreement immediately without further liability to Publisher.

 

  1. Ad-Server Code Implementation

6.1 Publisher hereby agrees to the placing of Hoopla Digital Ltd’s Ad-server code on the Media in accordance with the traffic instructions set out in Appendix A and the guidelines set out in Appendix B.

6.2 PUBLISHER MAY NOT PLACE ADVERTISER OR HOOPLA DIGITAL LTD AD-SERVER CODE OR CREATIVE ON ANY WEBSITE OR SERVE THROUGH CODE OR CREATIVE ON ANY EMAIL LIST OTHER THAN THE INVENTORY FOR WHICH SUCH AD-SERVER CODE OR CREATIVE WAS INTENDED AND ACCEPTED AS SET OUT IN THIS AGREEMENT.

 

7 Licence, Intellectual Property

7.1 License; Ownership. Hoopla Digital Ltd hereby grants to Publisher a non-exclusive, worldwide, non-transferable license to display the Ads (including the Content and any trademarks contained therein) and use the Ad Tags solely to the extent reasonably necessary for Hoopla Digital Ltd to perform its obligations hereunder. Except for the limited licence expressly granted in this Clause 7, nothing in this Agreement will be construed as Hoopla Digital Ltd granting Publisher any right, title or interest in the Ads or Ad Tags. Publisher acknowledges and agrees that, as between the Parties, Hoopla Digital Ltd owns all right, title and interest in and to the Ads, Ad Tags and all related Intellectual Proprietary Rights.  

7.2 Intellectual Property Ownership.  Subject to the licenses granted to Publisher hereunder, each Party will own and will retain all right, title and interest in its Intellectual Property currently used or which may be developed and/or used by it in the future.  Except as provided in this Agreement, neither Party may distribute, sell, reproduce, publish, display, perform, prepare derivative Works of or otherwise use any of the Intellectual Property of the other Party without the express prior written consent of such Party.

7.3 Marketing. Publisher hereby grants Hoopla Digital Ltd a non-exclusive, limited licence to use the Publisher’s name and trademarks for marketing and publicity purposes.

 

  1. Data

8.1 Collection of Data. In accordance with all applicable laws, regulations and guidelines, such as the General Data Protection Agreement (GDPR), and upon receipt of all necessary consents, Hoopla Digital Ltd may collect or store non-personally identifiable information from Users of the Media in connection with the performance of its obligations under this Agreement.. 

8.2 Use of Publisher Data. Hoopla Digital Ltd may use and disclose data only as follows (collectively, the Permitted Uses): 

  1. to perform its obligations to Publisher under this Agreement; 
  2. on an Anonymous basis (as defined below), for Hoopla Digital Ltd’s reporting purposes as part of compilations of aggregated statistics about the performance of campaigns (e.g. the aggregate number of Ads delivered) that may be provided to customers, potential customers and the general public; 
  3. on an Anonymous basis, for Hoopla Digital Ltd’s reporting purposes to Advertisers and/or Agencies as part of aggregated statistics about the performance of a particular Ad campaign; 
  4. to perform frequency capping of Ad campaigns
  5. on an Anonymous basis, for internal analysis and improvement of Hoopla Digital Ltd’s services and the optimisation of Ads on the Inventory); 
  6. if required by court order, law or governmental or regulatory agency; and
  7. to the extent permitted by law, to enable appropriate Ads to be served that are pertinent and relevant to the User.  

8.3 Hoopla Digital Ltd may Redirect Ads for the purpose of preventing the display of Ads on pages with URLs or content that may contain inappropriate words in order to adhere to the guidelines set out in Appendix B or to perform click fraud analysis 

8.4 Cookies. In accordance with all applicable laws, regulations and guidelines, Hoopla Digital Ltd may place a Cookie (or permit a Cookie to be placed on behalf of Hoopla Digital Ltd or any Advertiser) on User browsers while they are using the Media. Nothing herein is intended to restrict Hoopla Digital Ltd from associating data it collects or obtains from third person media with the Publisher Cookie. Hoopla Digital Ltd may use data gathered from its use of the Cookie on the Media on an Anonymous basis for performing its obligations hereunder including:

  1. targeting based on whether a User views or clicks on a particular Creative;
  2. frequency monitoring and capping to meet frequency capping requirements for specific campaigns;
  3. targeting based on counts of the numbers of times and how recently a User accesses various parts of the Media comprised solely of the standard content channel level (such as shopping, shopping/electronics, and travel) and only to the extent Publisher has selected such content channel to apply to the Inventory (or some portion thereof);
  4. meeting delivery requirements (if any);
  5. re-targeting based on information supplied by third parties to Hoopla Digital Ltd
  6. Reporting, on an Anonymous basis, includes:

(vii)Advertiser campaign performance including Impressions, Clicks and conversion rates; 

8.5 Security. Hoopla Digital Ltd will implement and maintain during the term of this Agreement, and shall use its reasonable endeavours to ensure that any third party server implements and maintains, security procedures and practices appropriate to the nature of the Data to protect such data from unauthorised access, destruction, use, modification or disclosure.

 

  1. Non-solicitation

Publisher acknowledges and agrees that Hoopla Digital Ltd has proprietary relationships with third person Advertisers and Agencies and Publisher agrees not to, directly or indirectly, solicit or recruit any Advertiser that is known to the Publisher to be an advertising client and/or customer of Hoopla Digital Ltd. This restriction shall not apply to advertisers with whom Publisher had a relationship prior to the execution of this Agreement, as proven by documented evidence provided by Publisher to Hoopla Digital Ltd immediately upon Hoopla Digital Ltd’s written request. This is a material term of this Agreement.

 

10. Term 

The initial term of this Agreement shall commence on the Contract Start Date and shall expire on the Contract End Date as set out in the Deal Terms, unless terminated earlier in accordance with the provisions of Clause 11.

 

  1. Termination

11.1 In the event of any termination, Hoopla Digital Ltd shall be liable for payment only for Ads actually delivered to the Inventory prior to the date of termination.

11.2 If a Party breaches any provision contained in this Agreement and such breach is not cured within two (2) working days after receiving written notice of such breach from the other Party, then the non-breaching Party may deliver a second written notice to the breaching Party terminating this Agreement, in which event this Agreement, and any rights granted hereunder shall terminate on the date specified in such second notice.

11.3 Either Party may terminate this Agreement immediately by written notice to the other Party if the other Party ceases to carry on business or makes any composition with its creditors; or if any action or proceeding under bankruptcy or insolvency law is taken against the other Party and is not dismissed or discharged within thirty (30) days, or if a receiver is appointed over all or part of the others assets of the other Party or if the other Party shall effect a voluntary or compulsory liquidation of assets (other than for the purposes of a bona fide reconstruction or amalgamation) or an analogous event happens to that Party.

11.4  Upon any termination or expiration of the Term, (a) Publisher agrees to promptly remove all Ads and Ad Tags from the Website(s); and (b) all rights and obligations of the Parties under this Agreement will be extinguished, except that the rights and obligations of the Parties necessary to survive to give effect to the provisions, together with any accrued but unpaid payment obligations of either Party hereunder, will survive the termination or expiration of the Term. 

11.5 Any provision herein to the contrary notwithstanding, either Party may terminate this Agreement by giving at least ninety (90)  

        days written notice to the other Party if, in its reasonable opinion, termination is necessary to its overall business needs.

 

12. Representations and Warranties, Indemnification, Disclaimer

12.1 Mutual.  Each Party represents and warrants to the other that: (i) it has all right, power, and authority necessary to enter into this Agreement and perform its obligations hereunder (including, in the case of Hoopla Digital Ltd, all authorisations, consents, licenses and approvals necessary for Hoopla Digital Ltd to display the Ads as contemplated herein); (ii) neither the execution, delivery, nor performance of this Agreement will result in a breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such Party is bound; (iii) it will comply with all applicable laws and regulations including laws relating to advertising, the Internet, privacy and unfair business practices; and (iv) when executed and delivered, this Agreement will constitute its legal, valid and binding obligation enforceable against it in accordance with its terms.  

12.2 By Hoopla Digital Ltd. Hoopla Digital Ltd represents and warrants to Publisher that it will use its reasonable commercial endeavours to procure a warranty from the Advertiser that (i) Content and Hoopla Digital Ltd’s display of the Ads as contemplated herein will not infringe the Intellectual Property rights of any third person; (ii) all Ads will comply with all applicable local laws, regulations, orders and other requirements of any governmental authority (including all permits, licenses or consents necessary for any contest, lottery or sweepstakes promoted in an Ad); and (iii) the Content and Ads will not contain, link to, or otherwise transmit or cause the downloading of any viruses, worms, Trojan horses, adware, spyware, or other harmful code or programs.

12.3 By Publisher.  Publisher warrants and represents that: 

  1. The Publisher holds and agrees all necessary licenses and permissions necessary to display the content on the Media including any Ad(s) placed thereon, including but not limited to any music, public performance or making available license and shall pay all royalties in respect thereof.
  2. The Publisher of the Site either owns or reasonably believes that it is entitled to use the content displayed on the Site;
  3. The Site does not, to the Publisher’s knowledge, include any “virus” or other destructive programming or device that could impair or injure any data, computer system or software; 
  4. The Site and its content do not, to the Publisher’s knowledge, violate any applicable laws or regulations, including without limitation those relating to advertising, gambling, competitions and consumer protection;
  5. The Site and its content do not, to the Publisher’s knowledge, violate the rights of any person or entity, including without limitation any intellectual property or other proprietary right, any right of privacy, or by being defamatory;
  6. The Site does not, to the Publisher’s knowledge, promote or facilitate any activities that are illegal under applicable law or that infringe the rights of any person or entity, including without limitation the pirating of copyright works, or hacking or other unauthorised access to or modification of devices.
  7. The Publisher shall operate a “notice and takedown” policy that complies with applicable law (currently, for Publishers situated in the UK, the Electronic Commerce (EC Directive) Regulations 2002) in respect of unlawful activity or information on the Site of which the Publisher gains knowledge or awareness.
  8. The Publisher shall use all reasonable endeavours to ensure that the Site does not include any “Barred Content” as specified in Appendix B. 
  9. The Publisher shall use all reasonable endeavours to ensure that Inventory booked on the Site is not re-sold or re-brokered.

  

Publisher shall indemnify Hoopla Digital Ltd on demand in respect of any judgement or proven amounts arising out of any claims, actions, demands, liability or loss directly incurred thereof.

 

13.     Disclaimers, Limitations and Reservations.  

13.1 Publisher acknowledges and agrees that whilst Hoopla Digital Ltd will use its reasonable endeavours to obtain all appropriate clearances and warranties from Advertisers, it accepts no liability or any infringement of any third person Intellectual Property Rights or any breach of any law and that in the event of any infringement or breach of any law Publisher shall exercise its rights under the Contract (Rights of Third Parties Act) 1999 to enforce its rights as against the appropriate Advertiser.  

13.2 EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES IN RELATION TO THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  

13.3 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT OR CONSQUENTIAL (i) LOSS OF PROFITS (ii) LOSS OF DATA (iii) LOSS OF GOODWILL (iv) OR ANY OTHER INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE; OR ANY SPECIAL, EXEMPLARY, PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY; AND (B) EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY HOOPLA DIGITAL LTD TO PUBLISHER HEREUNDER.

 

14. Privacy and Cookie Policies 

Each Party will post and comply with its applicable privacy and cookie policies as those privacy policies are in effect during the Term of this Agreement. Publisher will ensure its privacy and cookie policies fully comply with applicable laws and industry standards of practice, such as the ePrivacy Directive and General Data Protection Regulation (GDPR). As such, Publisher must make certain disclosures to their users in the European Economic Area (EEA) and obtain their consent for the use of cookies or other local storage where legally required. Publisher will also ensure that their privacy policy i) identifies the use of third-party advertising companies to serve advertisements, ii) provides users with clear and comprehensive information about the use of cookies and/or web beacons by the Websites’ operator and third parties, as well as information about how users may prevent cookies from being run on, or read from, their devices, iii) discloses that third-party advertising companies may use non-personally identifiable information about the user’s visits to the Media Owner’s sites in order to provide advertisements about goods and services that may be of interest to the user, iii) discloses that the user can find more information about these practices and the user’s opt out choices concerning these practices by visiting http://www.youronlinechoices.com or an equivalent site.

This is a material term of this Agreement.

 

  1. Remedy

15.1 Publisher’s sole remedy for any failure by Hoopla Digital Ltd to serve any Ads is the provision of alternate Ads and the Parties will agree in good faith alternate campaigns for such replacement Ads.

15.2 Publisher has the right to request removal of any Ads in accordance with the provisions of Clause 2.4 and therefore, Publisher waives any claim, loss or damage against Hoopla Digital Ltd arising from any Content that may be offensive, obscene, inappropriate or infringes the rights (including Intellectual Property rights) of any third person. This shall be the sole remedy of the Publisher

 

  1. Confidentiality.

Each Party shall keep all Confidential Information confidential and will not disclose the Confidential Information to any person or entity except: (i) if and to the extent required by law for the purpose of any judicial proceedings including under the Freedom of Information Act 2000 (FOI 2000), provided that, if a Party discloses Confidential Information to a ‘public authority’ (as defined in FOI 2000), the other Party undertakes to use its reasonable endeavours to ensure (including notifying the public authority of any provisions of this Agreement regarded as confidential or otherwise commercially sensitive) that the public authority will notify the Party to whom the Confidential Information relates immediately in writing in the event of a request for information pursuant to the FOI 2000 that relates to the Confidential Information in any way, and will consult directly with that Party in making any disclosure thereof: (ii) and to the extent required by regulatory or governmental body to which that Party is subject, whether or not the requirement for information has the force of law; (iii) to its professional advisers, auditors and bankers; (iv) if and to the extent the information has come into the public domain through no fault of that Party; or (v) if and to the extent the other Party has given prior written consent to the disclosure.

 

17. Miscellaneous.  

17.1 Governing Law. This Agreement will be construed and enforced in accordance with the laws of England and Wales without reference to its choice of laws rules. The Parties hereby consent to the exclusive jurisdiction of the Courts of England.  

17.2 Assignment.  No rights or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party, provided that, either Party may assign this Agreement or its rights or obligations hereunder to its affiliate. Any attempt to assign this Agreement in violation of this section will be null and void.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of respective successors and assignees.

17.3 Independent Contractors.  The Parties to this Agreement are independent contractors, and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them.  

17.4 Waiver. Except as otherwise provided herein, each remedy specified in this Agreement will be cumulative and in addition to every other remedy available hereunder and the election of any one or more remedies by either Party will not constitute a waiver of the right to pursue other available remedies. The failure of either Party to enforce any provision of this Agreement will not constitute a waiver of the Party’s rights to subsequently enforce such provision. To be effective, any waiver by a Party of any of its rights or the other Party’s obligations under this Agreement must be made in a writing signed by the Party to be charged with the waiver.  

17.5 Notices.  Except for notices for which an alternative procedure is identified in this Agreement, to be effective, any notice or other communication under this Agreement given by either Party to the other Party must be in writing and must be sent to the intended recipient by prepaid registered mail, receipted commercial courier, or electronically receipted facsimile transmission, at its address(es) and/or facsimile number(s) and to the attention of the persons specified on the first page of this Agreement.  Either Party may from time to time change such address or individual by giving the other Party notice of such change in accordance with the preceding sentence.    

17.6 Entire Agreement; Severability. This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and supersedes any proposals, representations previous or contemporaneous oral or written agreements and any other communications between the Parties regarding such subject matter; and may be amended or modified only by a written instrument signed by a duly authorised agent of each Party.  If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect and will be construed to effectuate the purpose and intent of this Agreement. 

17.7 Counterparts.  This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one instrument.  The Parties agree that copies of this Agreement (including copies of any signatures) that are reproduced or transmitted via electronically receipted fax transmission will be equivalent to original documents until such time (if any) as original documents are completely executed and delivered.  

17.8 Force Majeure. In the event that either Party is unable to perform their respective obligations hereunder by reason of explosion, fire, flood, Act of God, war, change in legislation, or similar cause or occurrence beyond the reasonable control of either Party (event), then the Party unable to perform shall not be deemed to be in breach hereof, provided that it immediately gives notice of such event and the date it began to the other Party and this Agreement shall then be suspended as from the date the event began; provided however that if such event shall continue for a period in excess of thirty (30) days then either Party shall have the right to terminate this Agreement by notice to the other Party without further liability. 

17.9 Amendment. This Agreement cannot be changed or terminated orally and no changes or amendments to this Agreement shall be binding upon the Parties until accepted in writing by a duly authorised representative of both Parties.  

17.10 Third Parties. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.

 

  1. Anti-Bribery.

18.1 Publisher hereby represents that in performing the duties required under this Agreement, it will comply with all applicable laws, regulations and administrative requirements and will take no action that would subject itself or Hoopla Digital Ltd to liability and/or penalties.

18.2 Publisher hereby represents that it, its owners, partners, directors, officers and employees shall not offer nor deliver to any third party (public officers included), any payments, offers, promissory notes, of any valuable goods, in connection with the services to be rendered to or by Hoopla Digital Ltd or engage in acts or transactions otherwise in violation of the relevant anti-bribery laws and regulations.

18.3 Hoopla Digital Ltd will be entitled to immediately terminate this Agreement for cause without prior notification, in case of breach by the Publisher of any of its anti-bribery related warranties under this Clause 18 or in case of violation of any applicable local anti-bribery laws or regulations. 

18.4 Publisher will indemnify and hold Hoopla Digital Ltd harmless for any damages, costs, expenses, and claim from third parties based on the breach by the Publisher of any of these anti-bribery related warranties and/or any violation of the applicable anti-bribery laws and regulations

 

APPENDIX B

 

Barred Content

1. Hate Content, Obscenity and Indecency

Content articulating views intended or reasonably likely to cause or incite hatred of any race, religion, creed, class or ethnic group. 

Content articulating views calculated to cause offence to or incite hatred of any individual or group.

Content explicitly glorifying or delivering for the purposes of entertainment, scenes or descriptions of non-consensual pain, suffering, death, torture or ill-treatment of humans or animals. 

Content that is obscene or indecent under prevailing legislation.

Video content that may not be distributed under prevailing legislation, including without limitation because it requires (but lacks) a video classification certificate or because of the restricted nature of the classification it has been given. 

2.Bombs/guns/ammunition

Content offering genuine or replica guns, bombs, ammunition or other offensive weapons for sale. 

Content glorifying the use of or offering technical information on the illegal use of guns, bombs, ammunition or other offensive weapons.

3.Invalid Clicks

Invalid clicks are clicks generated automatically or wrongfully. 

Examples of invalid clicks include repeated manual clicking or the use of robots, automated clicking tools, or other deceptive software. Invalid clicks are sometimes intended to artificially or maliciously drive up an Advertiser’s clicks or a Publisher’s earnings.

4.Spyware

Any software covertly installed on a user’s machine (as distinct from the legitimate addition of a cookie to the appropriate location within the user’s browser software). 

Typically, Spyware is:

  • installed without the user’s informed consent;
  • cannot be easily uninstalled or disabled; and
  • covertly transmits information about the user’s activities to a remote host, often used to facilitate delivery of advertising messages, often with a high frequency.

A sub-set of Spyware is malware (malicious code). A defining characteristic of malware is that it is intended to cause harm or be used for criminal purposes. Examples of malware include keystroke loggers, password sniffers, spam launchers, remote access tools or screen capture utilities.  Malware may deliver viruses, worms or Trojans.

5.Unauthorised code requests (anywhere that the code requesting the ad isn’t owned by the publisher)  

Any ad code requests from sites to whom the Hoopla Digital has not intended to assign the campaign, typically generated through unauthorised duplication of a Publisher’s site HTML code.

6.Legality Generally

Any other content that infringes applicable laws or regulations, or the rights of any person or entity.