Zambia-Online.com
("Zambia-Online") Advertising Terms and Conditions
This Agreement (as defined below) is
entered into by you, being either the entity which: (i) accepts this
Agreement online; or (ii) is identified as the "Customer" and
signs the Policy Page ("Customer" / "You")
and the Zambia-Online.com Advertising website, which is owned and hosted
by Netshop Enterprsies (ZRA Registration Number: 123957), Lusaka, Zambia. |
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| 1.0 |
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DEFINITIONS:
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1.1 |
"3PAS"
means a third-party ad server authorised by Zambia-Online to participate
in those parts of the Programme that permit third-party ad serving;
"Acceptance Date"
means either: (i) the date on which Customer accepts this Agreement
online; or (ii) the acceptance date specified in the Policy Page (if
any);
"Advertiser"
means the entity whose ads (whether created by itself or by a third-party
on its behalf) are made available by Zambia-Online in accordance with
this Agreement, which entity may be more particularly detailed in the Policy Page
(if any);
"Advertising
Programme" means Zambia-Online's online advertising
programme;
"Agreement"
means (i) these Terms, (ii) any document which references these Terms
(including the Policy Page, if any) and the following, which are
incorporated into the Agreement by reference: (iii) the Policies; and
(iv) any other document(s) which the parties mutually execute and agree
shall incorporate the Terms;
"Claim Period"
means the 60-day period from the invoice date;
"Created Content"
means all ad content, related technology and tags which are subject to
the Policies;
"Display Ads"
means any and all graphical ads and video ads (in .gif, .jpeg, .jpg,
.png, .swf and other Flash formats, or such other formats as Zambia-Online
may notify you from time to time);
"End Date"
means the date (if any) on which the parties agree this Agreement will
terminate and all types of ads will cease to be made available;
"Policy Page"
means a document referencing the Terms (including without limitation a Policy Page
and signature page referencing the Terms);
"Zambia-Online
Property" means any website, application, property and/or
any other media owned, operated or provided by Zambia-Online;
"IC" means
ad impression count;
"Partner"
means the third-party owner and/or operator of a Partner Property;
"Partner Property"
means any website, application, content, property or any other media
owned, operated, or provided by a Partner upon which Zambia-Online
places ads;
"Policies"
means the Programme's policies from time to time located at: http://faq.zambia-online.com/index.php?cid=74
or such other URL as made available to You from time to time;
"Programme"
means the different types of Zambia-Online advertising services each as
may be more particularly detailed by Zambia-Online: (i) in the online
advertising system; or (ii) in any other document as made available by Zambia-Online;
"Target"
means any keyword, negative keyword, category and/or other targeting
mechanism;
"Terms"
means these advertising terms and conditions.
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| 2.0 |
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Placement
and targeting
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2.1 |
Zambia-Online
shall use reasonable endeavours to place Customer's ads in accordance
with the placement options made available and selected by Customer.
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2.2 |
Zambia-Online
may from time to time make new ad types available through the Programme.
All existing and new ad types made available through the Programme shall
be subject to this Agreement and Zambia-Online shall use reasonable
endeavours to make such ads available on such media and in such manner
as more particularly detailed in: (i) the online advertising system;
(ii) the Policies, or (iii) such other document as determined by Zambia-Online.
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2.3 |
Zambia-Online
does not guarantee: (i) the placement, positioning or the timing of
delivery of any ad, or (ii) the number (if any) of any impressions,
publications, conversions or clicks on any ad whether on any Partner
Property or Zambia-Online Property or sections of such properties.
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| 3.0 |
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Costs
incurred and Created Content and positioning
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3.1 |
Customer shall
submit Created Content for all ad types in accordance with such due date
as may be set out in the online advertising system or as otherwise
communicated by
Zambia-Online.
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3.2 |
Unless
otherwise agreed in writing by Zambia-Online: (i) the positioning of ads
on a Zambia-Online Property or any Partner Property (if applicable) is
at Zambia-Online's and/or Partner's sole discretion respectively; and
(ii) Zambia-Online may offer the same Target to more than one Customer.
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3.3 |
If
Customer asks Zambia-Online to carry out the posting or modification of
a campaign or any element of the campaign (including without limitation
through an authorisation for Zambia-Online to optimise campaigns
generally), any such posting or modification carried out by Zambia-Online
shall be deemed approved by Customer from the earlier of: (i)
confirmation from Customer, and (ii) the end of the 5th working day
following the posting or modification carried out by Zambia-Online. If
Customer does not approve of the posting or modification, it must inform
Zambia-Online within 5 working days of the posting or modification.
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3.4 |
Customer
is solely responsible for all: (i) Targets; (ii) Created Content
generated by or for Advertiser; (iii) properties to which a Created Content
directs users (including without limitation content on the domain or
landing page reached by clicking on the Created Content's URLs); (iv)
advertised services and products (together the "Advertiser
Services").
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3.5 |
Customer is
solely responsible for: (i) the adoption of any marketing strategies and
methods, and (ii) the creation, modification, maintenance, and
management of budgets and accounts, whether or not such activities are
performed: by or on behalf of Customer; or pursuant to any suggestions
and/or recommendations made by Zambia-Online.
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3.6 |
Unless
otherwise specified, Zambia-Online and/or any Partner shall have the
right at any time to reject, or remove any ad, Created Content and/or
Target for any or no reason. In addition, Zambia-Online may at any time
modify ads to the extent reasonably required to comply with the
technical specifications and/or policies related to any Zambia-Online
Property or any Partner Property, or as described in the Policies. Any
other modification to ads shall only be made by Zambia-Online: (i) in
accordance with clause 3.3, or (ii) following Customer authorization,
which may be given by Customer in various ways including without
limitation by not exercising opt-out rights (e.g., for user interface or
ad quality experiments).
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3.7 |
Customer grants
Zambia-Online permission to use an automated programme to retrieve and
analyze websites associated with the Advertiser Services to enable Zambia-Online
to evaluate ad quality and for ad serving purposes. Customer may
expressly opt out of such evaluation in the manner specified by Zambia-Online.
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| 4.0 |
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Partner
Properties
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4.1 |
Even if
Customer's ad(s) is/are placed on Partner Properties, Customer agrees to
direct to Zambia-Online any communication regarding Customer's ad(s) on
any Partner Property(ies). If Customer's ads are placed on Partner
Properties, Customer acknowledges and agrees that the placement of such
ads shall provide Partner(s) with access to the content of ads,
including (without limitation) any images and any URL(s), any contact or
other information that can be obtained through such URL(s), as well as
data regarding queries or clicks.
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| 5.0 |
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Ad
Serving
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5.1 |
Customer will
not breach or circumvent any Programme security measure or knowingly
provide ads containing malware, spyware or any other malicious code.
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5.2 |
Customer may
use a 3PAS solely for serving or tracking ads under Programmes that
permit third-party ad serving, and only if the 3PAS has been authorised
by Zambia-Online to participate in the Programme. Zambia-Online will
implement Customer's 3PAS tags so that they are materially functional.
If for a Display Ad campaign, Zambia-Online's IC is higher than the IC
of Customer's 3PAS IC by more than 10% over the invoice period, Customer
will facilitate reconciliation efforts between Zambia-Online and 3PAS.
If this discrepancy is not resolved and Customer has made a claim within
the Claim Period then: (i) Zambia-Online will issue to Customer
advertising credits equal to 90% of (Zambia-Online IC - 3PAS IC)
multiplied by Zambia-Online-reported campaign average CPM over the
invoice period (the "Discrepancy Credit");
and (ii) Zambia-Online may suspend Customer's permission to use the 3PAS
and Customer shall not be entitled to any Discrepancy Credit during such
suspension period. Metrics from the 3PAS whose ad server tags are
provided to Zambia-Online will be used in the calculation of Discrepancy
Credits. If requested by Zambia-Online, Customer shall procure that
discrepancy records be provided directly by the 3PAS to Zambia-Online.
Customer will not be credited for discrepancies in IC caused by 3PAS'
inability to serve ads. This clause sets out Customer's sole and
exclusive remedy.
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| 6.0 |
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Ad
cancellation
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6.1 |
Unless the
Policies or a Policy Page (if any) or other online interface referencing
these Terms provides otherwise, either party may cancel any ad at any
time before the earlier of ad auction or placement. Customer may cancel
advertising online through Customer's account if online cancellation
functionality is available, or, if not available, with prior written
notice to Zambia-Online, including without limitation e-mail.
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6.2 |
Ads which
form part of the Advertising Programme and which are cancelled online
will stop serving shortly after cancellation. Any other cancelled ads
may be published despite cancellation if cancellation of those ads
occurs after any applicable commitment date as notified in advance to
Customer by the Partner or Zambia-Online, and Customer shall pay Zambia-Online
for such published ads and any applicable cancellation fee. If Customer
fails to submit the Created Content for a reservation based ad by any
applicable date as notified in advance to Customer, Customer shall be
liable to pay Zambia-Online: (i) for the ad as if such ad had been
published, or (ii) an applicable cancellation fee.
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| 7.0 |
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Prohibited
uses
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7.1 |
Customer
shall not, and shall not allow any third-party to: (i) generate
automated, fraudulent or otherwise invalid impressions, inquiries or
clicks or conceal conversions by using methods including but not limited
to the use of robots or other automated query tools and/or computer
generated search requests, and/or the fraudulent use of other search
engine optimisation services and/or software; (ii) use any automated
means, form of scraping or other such data extraction methods to access,
query or otherwise collect and use Zambia-Online advertising related
information from any Zambia-Online Property unless expressly permitted
by Zambia-Online in writing; (iii) advertise substances, services,
products or materials which contravene applicable laws and regulations
in any country in which Customer's ads are displayed, placed or
otherwise made available; (iv) violate any technical specifications
posted on any Zambia-Online Property, and/or the Policies, as revised
from time to time; (v) engage in any other illegal or fraudulent
business practice under the laws of any state or country where an ad is
made available.
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| 8.0 |
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Payment,
pricing and reporting
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8.1 |
If
required, Customer shall, in the Policy Page (if any) or in the online
advertising system specify a maximum amount of money it wishes to spend
on ads (the "Agreement Budget"). By
indicating an Agreement Budget, Customer is not committing to spend the
Agreement Budget. Customer is merely notifying Zambia-Online that it
does not wish to exceed the Agreement Budget. Customer is and shall
remain solely liable to pay sums incurred up to the amount of the
Agreement Budget only. If applicable, Customer will not exceed its
aggregate credit line as determined by Zambia-Online in its sole
discretion (and made available if requested) and Zambia-Online shall not
be obliged to deliver any ads in excess of such credit line. Zambia-Online
reserves the right to change or retract any credit line at any time in
its sole discretion. Customer shall pay (or procure that the applicable third-party
pays) Zambia-Online in accordance with the pricing model applicable to
the type of ads selected by Customer. Zambia-Online and Customer shall
mutually agree the method of payment and record the agreed method either
in the Policy Page (if any) or in the online advertising system. All
sums stated in this Agreement are exclusive of VAT unless stated
otherwise. Customer shall pay the sums (including, if applicable, VAT
and any other applicable taxes or charges imposed by any government
entity) in the manner dictated by the method of payment agreed between
the parties. If payment is not made when due, Zambia-Online may charge
interest at the rate of 2% per annum above the prevailing base rate of
Barclays Bank PLC from the due date until the date of actual payment,
whether before or after judgment. Zambia-Online may change its minimum
pricing, if applicable, at any time. Charges shall be calculated solely
based on records maintained by Zambia-Online. Zambia-Online shall
provide Customer with password-protected access to 24/7 online reporting
information so that Customer may monitor its campaign(s). Refunds (if
any) are at the discretion of Zambia-Online and only in the form of
advertising credit for Zambia-Online Properties or (in the case where
Customer has pre-paid), cash.
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| 9.0 |
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Display
Ad remedy
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9.1 |
For
reservation-based Display Ads Zambia-Online will deliver any agreed upon
aggregate number of Display Ads by the end of the campaign. If Zambia-Online
fails to do so, then provided Customer makes a claim during the Claim
Period, Zambia-Online will not charge for the undelivered Display Ads
or, if Customer has already paid then at Zambia-Online's reasonable
discretion, Zambia-Online will provide: (i) advertising credits, (ii)
later placement of the Display Ads in a position Zambia-Online deems
comparable or (iii) an extension of the term of the campaign. This
clause sets out Customer's sole and exclusive remedy.
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| 10.0 |
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Representations
and warranties
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10.1 |
Customer
represents and warrants that (i) all of the information provided by
Customer to Zambia-Online is complete, correct and current; (ii) it has
all necessary rights to permit and hereby grants Zambia-Online and any
Partners all such rights which are necessary for Zambia-Online and any
Partner(s) to (as applicable) use, host, cache, route, store, copy,
modify, distribute, reformat, reproduce, publish, display, transmit and
distribute Customer's ad(s) (including any Targets and all Created Content)
("Ad Use"); and (iii) Ad Use in accordance
with this Agreement and the websites and/or landing pages linked from
Customer ads (including without limitation related Advertiser Services)
shall not: (a) violate or encourage violation of any law or applicable
regulation or code of practice (including without limitations the Laws
of the Republic of Zambia and/or any equivalent advertising standards
code of practice in any other jurisdiction); (b) infringe any
intellectual property rights of any third-party or contain any material
which may be harmful, abusive, obscene, threatening or defamatory.
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10.2 |
Each party
waives its rights against the other in respect of warranties and
representations (whether written or oral) not expressly set out or
referred to in this Agreement. Nothing in this clause limits or excludes
either party's liability for fraud.
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| 11.0 |
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Indemnity
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11.1 |
Customer shall
indemnify and defend Zambia-Online, its agents, affiliates, directors,
officers, employees and Partners ("Zambia-Online
Indemnified Persons") from and against any claims, losses,
liabilities, expenses, damages and settlement amounts (including legal
fees and costs) incurred by any Zambia-Online Indemnified Person(s)
arising out of Customer's breach of clauses 3.3, 3.4, 3.5, 7 and/or 10
of these Terms. These indemnification obligations shall exist only if Zambia-Online:
(i) promptly notifies the Customer of any claim; (ii) provides Customer
with reasonable information and cooperation in defending the claim; and
(iii) gives Customer full control and sole authority over the defence
and settlement of such claim. The Zambia-Online Indemnified Persons may
join in the defence with counsel of its choice at its or their own
expense.
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| 12.0 |
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Limitation
of liability
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12.1 |
Nothing
in this clause 12 shall limit liability for death or personal injury
caused by a party's negligence.
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12.2 |
Other
than the payment obligations set out in clause 8, indemnity obligations
set out in clause 11 and/or a breach of clause 13 (Confidentiality): (i)
each party's liability to the other arising from any given event or
series of connected events, shall be limited to the greater of: (a) the
amount paid or payable by Customer to Zambia-Online under this Agreement
in the three months immediately preceding the month in which the event
(or first in a series of connected events) occurred and (b) £25,000;
(ii) neither party shall be liable in contract, tort (including, without
limitation, negligence), for pre-contract or other representations
(other than fraudulent misrepresentations) or otherwise arising out of
or in connection with this Agreement for any economic losses (including,
without limitation, loss of revenues, profits, contracts, business or
anticipated savings); any loss of goodwill or reputation; or any
special, indirect or consequential losses in any case, whether or not
such losses were within the contemplation of the parties at the date of
this Agreement, suffered or incurred by that party arising out of or in
connection with the provisions of, or any matter under, this Agreement.
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| 13.0 |
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Confidentiality
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13.1 |
Subject
to clauses 13.2 and 13.3 below, during the term of this Agreement and
for a period of two years following the termination of this Agreement,
neither party shall disclose Confidential Information of the other party
to any third-party without prior written (including in an email) consent
except as provided herein. Customer is solely responsible for a third-party's
use of any Customer online accounts. "Confidential
Information" includes (i) Customer passwords; (ii) ads
(including Targets and Created Content), prior to publication; (iii) the
terms of this Agreement; and (iv) any other Programme information or
access to technology prior to public disclosure provided by Zambia-Online
to Customer and identified at the time of disclosure in writing as
confidential and/or proprietary; (v) Programme features which are
non-public and identified as "Beta" or "Ad
Experiment". It does not include information that has become
publicly known through no breach by a party, or has been (a)
independently developed without access to the other party's Confidential
Information; (b) rightfully received from a third-party; or (c) required
to be disclosed by law or by a governmental authority.
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13.2 |
If the
Customer is an advertising third-party, Customer authorises Zambia-Online
to grant any Advertiser which is a client of Customer or any subsequent
advertising third-party appointed by the Advertiser access to and a
right to use the non-billing related information relating to
Advertiser's ads.
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13.3 |
Zambia-Online
may share Confidential Information of Customer: (i) with any advertising
third-party appointed by Customer or with the Advertiser concerned as
applicable; or (ii) with any holding company of Customer or with any
subsidiary company of Customer or with any subsidiary company of
Customer's holding company.
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13.4 |
Customer
acknowledges and agrees that any account, credit card and related
billing and payment information which Customer provides to Zambia-Online
may be shared by Zambia-Online with companies who work on Zambia-Online's
behalf solely for the purpose of performing credit checks, effecting
payment to Zambia-Online and/or servicing Customer's account.
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| 14.0 |
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Term
and termination
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14.1 |
This
Agreement shall commence on the Acceptance Date and shall continue
either until terminated or until the End Date is reached. If an End Date
has been specified, Customer may, subject to Zambia-Online's prior email
approval, extend this Agreement by email for additional periods of 90
days or such other period as agreed by Zambia-Online in writing.
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14.2 |
This
Agreement may be terminated with immediate effect by either party
providing written notice (including without limitation email notice) to
the other party.
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| 15.0 |
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Effects
of termination and ad cancellation
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15.1 |
Upon expiration
or termination of this Agreement: (i) if Customer creates new campaigns
or otherwise continues to use the Programme it shall continue to be
bound by the obligations set out in this Agreement as if this Agreement
had not expired or been terminated (including without limitation the
obligation to pay charges incurred in connection with the Programme);
(ii) until Customer cancels its ads in accordance with clause 6,
Customer shall continue to be bound by the obligations set out in this
Agreement and to pay charges incurred in connection with those ads;
(iii) Customer shall remain liable for any amounts which are outstanding
at the date of expiry or termination; (iv) each party shall upon request
return Confidential Information of the other; and (v) Zambia-Online may
in its sole discretion disable or delete any Customer account within the
Programme.
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| 16. 0 |
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Assignment
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16.1 |
The parties
shall only be entitled to assign or otherwise transfer their rights
and/or obligations under this Agreement with the prior written consent
of the other (such consent not to be unreasonably withheld or delayed)
except that Zambia-Online shall be entitled to assign or otherwise
transfer any of its rights or obligations under this Agreement without
consent to a subsidiary or holding company (as defined in sectio
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| 17.0 |
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Rights
of third parties
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17.1 |
Except as
expressly stated otherwise, nothing in this Agreement shall create or
confer any rights or other benefits in favour of any person other than
the parties to this Agreement.
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| 18. 0 |
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Force
majeure
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18.1 |
Other than in
respect of payment obligations, neither party shall be liable for
failure to perform or delay in performing any obligation under this
Agreement if the failure or delay is caused by any circumstances beyond
its reasonable control, including but not limited to acts of god, war,
terrorism, civil commotion or industrial dispute.
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| 19.0 |
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Miscellaneous
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19.1 |
This Agreement
represents the entire terms agreed between the parties in relation to
its subject matter and supersedes all previous contracts,
representations or arrangements of any kind between the parties relating
to its subject matter. The Policies may be modified by Zambia-Online at
any time to reflect changes in how Zambia-Online makes the Programme
generally commercially available. No addition to or modification of
these Terms shall be binding on the parties unless made by a written
instrument which the parties unequivocally mutually agree in writing
(including without limitation click and accept or email exchange). The
failure to exercise or delay in exercising a right or remedy under this
Agreement shall not constitute a waiver of the right or remedy or a
waiver of any other rights or remedies and no single or partial exercise
of any right or remedy under this Agreement shall prevent any further
exercise of the right or remedy or the exercise of any other right or
remedy. The rights and remedies contained in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law.
The invalidity, illegality or unenforceability of any provision of this
Agreement shall not affect or impact the continuation in force of the
remainder of this Agreement. Nothing in this Agreement shall be
construed as creating a partnership or joint venture of any kind between
the parties or as constituting either party as the agent of the other
party for any purpose whatsoever and neither party shall have the
authority or power to bind the other party or to contract in the name of
or create a liability against the other party in any way or for any
purpose. Unless otherwise expressly provided, any notices shall be sent
to the addresses set out in this Agreement (or detailed in the online
advertising system) with a copy to the legal department via (i)
confirmed facsimile, with a copy sent via first class or air mail; or
(ii) courier services, and shall be deemed given upon receipt. Any
translation of the English language, English law and court Agreement
(the "Original Agreement") is provided for
convenience only and Customer agrees that in the event of a conflict
between the translated version and the Original Agreement, the Original
Agreement prevails.
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| 20.
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Law and
jurisdiction
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20.1 |
This Agreement
shall be governed by and construed in accordance with English law and
the parties hereby submit to the exclusive jurisdiction of the Zambian
courts in respect of any dispute or matter arising out of or connected
with this Agreement. |
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December
20, 2009
GLOBAL SYSTEM
ADMIN
Zambia-Online.Com |
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