Publisher Terms and Conditions

1.Recitals

The following terms and conditions (“Publisher Terms and Conditions”) govern the placement and delivery of advertising (“Ad”) as set forth in the Insertion Order signed by the Publisher, in relation to advertisers (“Advertiser”) and/or their associated agencies (“Agency”).

The Publisher Terms and Conditions and any associated Insertion Order or Insertion Orders are collectively referred to herein as the “Publisher Agreement”.

This Agreement is entered into by and between Rockabox Media Ltd, trading as Scoota, a company incorporated in England and Wales with registered number 06475602 and whose registered office is 52 Grosvenor Gardens, London, SW1W 0DH (“Scoota”) and the company named as the Publisher in the Insertion Order (“Publisher”).

2. Invoices

Invoices will be sent by Scoota at such times as provided in the Insertion Order, or otherwise from time to time according to Scoota’s normal billing procedures. Creative and production charges relating to the creation of campaigns within Scoota’s proprietary video format (“Shutters”) and other formats will be invoiced at the earlier of completion of the work (when approved by the Publisher and/or the Advertiser) and the start date of the campaign. Creative and production work undertaken by Scoota will be agreed between the Publisher, the Advertiser (and/or its Agency) and Scoota before the work commences. The minimum Ad serving charge will be invoiced at the same time as the creative and production costs. Any additional impressions over and above the minimum charge will be invoiced monthly with then a final invoice at the end of the Campaign. The Publisher shall be obliged to sign a monthly Insertion Order if it intends for the campaign to run over and above the number of Impressions agreed on the initial Insertion Order.

Invoices will be sent to the billing address of the Publisher, as applicable and as set forth in the Insertion Order. Failure by Scoota for whatever reason to send a timely invoice will not affect Publisher’s obligation to pay for any Ads placed in accordance with the Insertion Order.

3. Terms of Payment

Payment is due within thirty (30) calendar days following the date of invoice, 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 Publisher. The Publisher shall pay all applicable sales taxes (VAT) which Scoota must apply to its invoices.

4. Payment Liability

Credit terms will be granted subject to Publisher’s credit status based on information from reputable credit agencies. If Publisher’s credit is or becomes impaired, Scoota may require payment in advance.

5. Delivery of Advertising Materials

Unless otherwise requested and agreed between the parties, the Publisher will, at its sole cost and expense, deliver or procure that the Advertiser and/or its Agency shall deliver all video, rich creative and/or other advertising materials required for any Ad (“Advertising Materials”) according to technical specifications provided by Scoota.

The Publisher may delegate such obligations to any Agency listed on the Insertion Order, but shall remain responsible for the Advertising Materials delivered. If the delivered Advertising Materials do not conform to Scoota ’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, then Scoota, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming Advertising Materials are corrected, or (ii) the late-arriving Advertising Materials are received; in any case, Scoota may begin to charge the Publisher on the Insertion Order start date on a pro rata basis based on the full Insertion Order for each full day the Advertising Materials are not received.

6. Publisher Representations and Warranties

he Publisher is responsible for any liability arising out of or relating to any Ad and Advertising Materials provided by the Publisher hereunder and any material to which users can link through such Ad (“Linked Content”). The Publisher represents and warrants that no part of the supplied Ad, Advertising Materials or Linked Content will: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (iii) be defamatory or libellous; (iv) be pornographic or obscene; or (v) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. The Publisher 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, the Publisher represents and warrants that it has the authority to sign any associated Insertion Orders and to be bound by these Terms and Conditions and that all of Publisher’s actions related to these Publisher Terms and Conditions and each Insertion Order will be within the scope of such Publisher, and Publisher will defend, indemnify, and hold harmless Scoota from claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from Publisher’s alleged breach of the foregoing sentence.

Scoota reserves the right to reject or remove the placement of any Ad (or any part of any associated Advertising Materials) or URL link embodied within an Ad at any time in the event Scoota determines in its sole reasonable discretion that such Ad 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 Ad (or associated Advertising Materials) or Linked Content is unlawful or inappropriate or may be likely to bring harm upon Scoota or the Advertiser or the Publisher or any other publishers. Scoota also reserves the right to demand that the Publisher obtains third party verification for any claims made in any Ad and to terminate this Publisher Agreement in the event that such verification is not promptly provided or is unsatisfactory, in Scoota’s sole discretion.

7. License

For the term of this Publisher Agreement, and in connection with any associated Insertion Orders, the Publisher warrants to Scoota that it holds the appropriate licenses and rights to (a) use, perform and display any Ad (and associated Advertising Materials) delivered hereunder in accordance with the terms of the Insertion Order, and (b) use all associated Advertiser intellectual property in connection therewith. Further, Publisher grants permission that Scoota may use, perform and display Ads on its proprietary Shutters video player (“Shutters”).

The Publisher 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 Publisher shall have no right in or to Shutters save for the right to use Shutters as permitted by this Publisher Agreement.

Title to and ownership of all intellectual property rights of any Ad and associated Advertiser intellectual property shall remain with the Advertiser or its third party licensors.

The Publisher agrees that Scoota may, during the term of this Publisher Agreement and thereafter, include the Publisher’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Scoota’s customer list and in its marketing materials and sales presentations.

8. Reporting

Scoota will provide the Advertiser and/or its appointed Agency listed on the Insertion Order, if any, with reports on performance and delivery of the Ads being placed according to the Insertion Order. Reporting on performance and delivery, including without limitation MPU impressions, views or engagements of Ads 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 advertising fees and/or ad serving specified under the Insertion Order.

9. DISCLAIMER OF WARRANTIES

SCOOTA PROVIDES ITS 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 AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR PROBLEMS WITH THE SCOOTA SHUTTERS PLAYER, 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.

10. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL SCOOTA BE LIABLE UNDER THIS PUBLISHER 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 PUBLISHER 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 PUBLISHER, ADVERTISER, AGENCY OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY THEM 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.

11. Termination

At any time prior to the serving of the first impact of the Insertion Order, the Publisher may cancel the Insertion Order with 30 days prior written notice, without penalty. For clarity and by way of example, if the Publisher cancels the Insertion Order 15 days prior to the serving of the first impact, the Publisher will only be responsible for the first 15 days of the Insertion Order. Upon the serving of the first impact of the Insertion Order, the Publisher may cancel the Insertion Order for any reason, without penalty, by providing Scoota written notice of cancellation which will be effective after the later of: (i) 30 days after serving the first impact of the Insertion Order; or (ii) 14 days after providing Scoota with such written notice. In addition to any other remedies that may be available to it, Scoota may terminate the Publisher Agreement in the event of any breach by the Publisher of the representations and warranties contained herein or non-performance of any of its obligations hereunder. Notwithstanding anything to the contrary contained herein, these Publisher Terms and Conditions shall continue in effect so long as there remains an active Insertion Order. Upon expiration or termination of this Publisher Agreement or in relation to any terminated or completed Insertion Order, any provisions of the Publisher Agreement which by its terms are intended or reasonably expected to survive, shall survive termination.

12. Indemnity

The Publisher named in the Insertion Order agrees to indemnify, defend, and hold harmless Scoota and its directors, officers, agents and representatives from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (i) the acts or omissions or breach of this Publisher Agreement by the Publisher (including Publisher’s Representations and Warranties set forth above), (ii) the content or subject matter of any Ad or Advertising Materials, or (iii) 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 Ads placed according to the Insertion Order.

Scoota agrees to indemnify, defend, and hold harmless the Publisher for any claims, liabilities, costs and expenses (including reasonable legal fees) made against the Publisher by a third party or parties as a result of acts of gross negligence or wilful misconduct by Scoota.

13. 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 Publisher nor Scoota  shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by this Publisher 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.

Upon termination, cancellation or expiration of this Publisher 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 Publisher’s Confidential Information shall remain the property of the Publisher, and Scoota’s Confidential Information shall remain the property of Scoota.

14. Miscellaneous

This Publisher Agreement, including these Publisher 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 Publisher Agreement will be governed and construed in accordance with the laws of England and Wales. The Publisher and Scoota agree to submit to the exclusive jurisdiction of the courts of England and Wales. If any provision of this Publisher 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 Publisher may not assign this Publisher Agreement without the prior written consent of Scoota. Scoota may freely assign this Publisher 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 Publisher 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 Publisher Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Publisher Agreement.

This Publisher Agreement will be brought into effect by the signing of an Insertion Order and may be executed in counterparts.