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Zambia Online Network  ("Zambia-Online.Com") 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.

     
1.0   DEFINITIONS:

  1.1 "3PAS" means a third-party ad server authorised by Zambia Online Network 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 Network in accordance with this Agreement, which entity may be more particularly detailed in the Policy Page (if any);

"Advertising Programme" means Zambia Online Network's online advertising service;

"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 Network 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 Network Property" means any website, application, property and/or any other media owned, operated or provided by Zambia Online Network;

"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 Network places ads;

"Policies" means the Programme's policies (or their updates) 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 Network advertising services each as may be more particularly detailed by Zambia Online Network: (i) in the online advertising system; or (ii) in any other document or file as made available by Zambia Online Network;

"Target" means any keyword, negative keyword, category and/or other targeting mechanism;

"Terms" means these advertising terms and conditions.

2.0   Placement and targeting
  2.1  Zambia Online Network shall use reasonable endeavours to place Customer's ads in accordance with the placement options made available and selected by Customer.
  2.2  Zambia Online Network 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 Network 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 Network.
  2.3  Zambia Online Network 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 Network Property or sections of such properties.

3.0   Costs incurred and Created Content and positioning
  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 Network.              
  3.2  Unless otherwise agreed in writing by Zambia Online Network: (i) the positioning of ads on a Zambia Online Network Property or any Partner Property (if applicable) is at Zambia Online Network's and/or Partner's sole discretion respectively; and (ii) Zambia Online Network may offer the same Target to more than one Customer.
  3.3  If Customer asks Zambia Online Network 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 Network to optimise campaigns generally), any such posting or modification carried out by Zambia Online Network 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 Network. If Customer does not approve of the posting or modification, it must inform Zambia Online Network within 5 working days of the posting or modification.
  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"). 
  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 Network.
  3.6  Unless otherwise specified, Zambia Online Network 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 Network 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 Network Property or any Partner Property, or as described in the Policies. Any other modification to ads shall only be made by Zambia Online Network: (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).
  3.7  Customer grants Zambia Online Network permission to use an automated programme to retrieve and analyze websites associated with the Advertiser Services to enable Zambia Online Network to evaluate ad quality and for ad serving purposes. Customer may expressly opt out of such evaluation in the manner specified by Zambia Online Network.

4.0   Partner Properties
  4.1 Even if Customer's ad(s) is/are placed on Partner Properties, Customer agrees to direct to Zambia Online Network 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.

5.0   Ad Serving
  5.1  Customer will not breach or circumvent any Programme security measure or knowingly provide ads containing malware, spyware or any other malicious code.
  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 Network to participate in the Programme. Zambia Online Network will implement Customer's 3PAS tags so that they are materially functional. If for a Display Ad campaign, Zambia Online Network'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 Network and 3PAS. If this discrepancy is not resolved and Customer has made a claim within the Claim Period then: (i) Zambia Online Network will issue to Customer advertising credits equal to 90% of (Zambia Online Network IC - 3PAS IC) multiplied by Zambia Online Network-reported campaign average CPM over the invoice period (the "Discrepancy Credit"); and (ii) Zambia Online Network 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 Network will be used in the calculation of Discrepancy Credits. If requested by Zambia Online Network, Customer shall procure that discrepancy records be provided directly by the 3PAS to Zambia Online Network. 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.

6.0   Ad cancellation
  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 Network, including without limitation e-mail.
  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 Network, and Customer shall pay Zambia Online Network 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 Network: (i) for the ad as if such ad had been published, or (ii) an applicable cancellation fee.

7.0   Prohibited uses
  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 Network advertising related information from any Zambia Online Network Property unless expressly permitted by Zambia Online Network 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 Network 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.

8.0   Payment, pricing and reporting
  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 Network 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 Network in its sole discretion (and made available if requested) and Zambia Online Network shall not be obliged to deliver any ads in excess of such credit line.  Zambia Online Network 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 Network in accordance with the pricing model applicable to the type of ads selected by Customer. Zambia Online Network 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 Network may charge interest at the rate of 2% per annum above the average prevailing banking base rate from the due date until the date of actual payment, whether before or after judgment. Zambia Online Network may change its minimum pricing, if applicable, at any time. Charges shall be calculated solely based on records maintained by Zambia Online Network. Zambia Online Network 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 Network and only in the form of advertising credit for Zambia Online Network Properties or (in the case where Customer has pre-paid), cash.

9.0   Display Ad remedy
  9.1  For reservation-based Display Ads Zambia Online Network will deliver any agreed upon aggregate number of Display Ads by the end of the campaign. If Zambia Online Network fails to do so, then provided Customer makes a claim during the Claim Period, Zambia Online Network will not charge for the undelivered Display Ads or, if Customer has already paid then at Zambia Online Network's reasonable discretion, Zambia Online Network will provide: (i) advertising credits, (ii) later placement of the Display Ads in a position Zambia Online Network deems comparable or (iii) an extension of the term of the campaign. This clause sets out Customer's sole and exclusive remedy.

10.0   Representations and warranties
  10.1  Customer represents and warrants that (i) all of the information provided by Customer to Zambia Online Network is complete, correct and current; (ii) it has all necessary rights to permit and hereby grants Zambia Online Network and any Partners all such rights which are necessary for Zambia Online Network 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.
  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.

11.0   Indemnity
  11.1 Customer shall indemnify and defend Zambia Online Network, its agents, affiliates, directors, officers, employees and Partners ("Zambia Online Network Indemnified Persons") from and against any claims, losses, liabilities, expenses, damages and settlement amounts (including legal fees and costs) incurred by any Zambia Online Network 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 Network: (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 Network Indemnified Persons may join in the defence with counsel of its choice at its or their own expense.

12.0   Limitation of liability
  12.1  Nothing in this clause 12 shall limit liability for death or personal injury caused by a party's negligence.
  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 Network 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) US$1,000; (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.

13.0   Confidentiality
  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 Network 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.
  13.2  If the Customer is an advertising third-party, Customer authorises Zambia Online Network 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.
  13.3  Zambia Online Network 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.
  13.4  Customer acknowledges and agrees that any account, credit card and related billing and payment information which Customer provides to Zambia Online Network may be shared by Zambia Online Network with companies who work on Zambia Online Network's behalf solely for the purpose of performing credit checks, effecting payment to Zambia Online Network and/or servicing Customer's account.

14.0   Term and termination
  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 Network's prior email approval, extend this Agreement by email for additional periods of 90 days or such other period as agreed by Zambia Online Network in writing.
  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.

15.0   Effects of termination and ad cancellation
  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 Network may in its sole discretion disable or delete any Customer account within the Programme.

16. 0   Assignment
  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 Network 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

17.   Rights of third parties
  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.

18. 0   Force majeure
  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.

19.0   Miscellaneous
  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 Network at any time to reflect changes in how Zambia Online Network 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.

20. 0   Law and jurisdiction
  20.1 This Agreement shall be governed by and construed in accordance with laws of the Republic of Zambia 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.
   
    November 19, 2010

GLOBAL SYSTEM ADMIN
Zambia Online Network

 

   
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