ADDITIONAL MEDIA TERMS AND CONDITIONS
1.1 These terms and conditions (“Terms and Conditions”) are entered into by the advertiser or advertising agency, whose details are set out in either an Insertion Order or a Self Service Account (the “Advertiser“) and JW Digital Ltd (trading as Additional Media), a company registered in England and Wales under company number 06996424 whose registered office is at Stoke House, Church Road, Ashford, Kent, United Kingdom, TN23 1RD (“Additional Media”) regarding the display and distribution of advertisement(s) (“Advertisements“) on Additional Media’s network and partners network(s) and websites (“Additional Media’s Network”).
1.2 These Terms and Conditions together with either an executed insertion order between the Advertiser and Additional Media (an “Insertion Order“) or the commercial details set out in an online self service advertiser account through which the Advertiser manages its own advertising campaigns as approved by Additional Media (a “Self Service Account”), shall be known as the “Agreement“.
1.3 Definitions in this Clause 1 shall apply to and have legal effect in the whole of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
2.1 In this Agreement except where the context otherwise requires the following words and expressions shall have the following meanings:
|“Business Day”||means any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London;|
|“Confidential Information”||means any information in any form or medium obtained by or on behalf of one party from or on behalf of the other party in connection with this Agreement which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential, whether disclosed or obtained before, on or after the date of this Agreement together with any reproductions of such information or any part of this information (and Additional Media’s “Confidential Information” shall include its processes, operations, methodologies and set-ups);|
|“Intellectual Property Rights”||means copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;|
|“Liability”||has the meaning given to it in Clause 9.8;|
|“Negligence”||means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and|
|“Year”||a period of 12 months commencing on the date this Agreement comes into force, or each subsequent period of 12 months commencing on an anniversary of the start of this Agreement.|
2.2 Clause headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement.
2.3 Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership.
2.4 Unless otherwise stated, references in this Agreement to Clauses are to clauses of this Agreement.
2.5 References to each party in this Agreement shall include references to its successors in title, permitted assigns and novatees.
2.6 References to “including” and “include” shall be deemed to mean “including without limitation” and “include without limitation” respectively.
2.7 References to termination or determination of this Agreement include references to expiry of this Agreement.
2.8 References to “written” or in “writing” (except in respect of sending a notice in accordance with Clause 14) includes in electronic form.
2.9 References to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification
- Advertisements and Advertising Content
3.1 Additional Media’s Network will display the Advertisements, text links, graphical links, or other advertising content provided or approved by the Advertiser together with the related keywords (the “Advertising Content“).
3.2 The Advertiser agrees that its Advertisements will conform to Additional Media’s Network specifications and editorial guidelines. Additional Media reserves the right to refuse to display any Advertising Content approved by the Advertiser which breaches Additional Media’s Network specifications and editorial guidelines.
3.3 The Advertiser is solely responsible for creating the Advertising Content and the Advertiser warrants and represents that it will choose keywords that do not violate any third party’s Intellectual Property Rights or other rights and/or will obtain licenses to use any third party trademarks as keywords.
3.4 The Advertiser grants Additional Media and members of Additional Media’s Network the right to display, perform, transmit and promote the Advertising Content, including the use of any material which contains or is subject to the Intellectual Property Rights of the Advertiser or its licensors.
3.5 The Advertiser accepts that any member of Additional Media’s Network may reject or remove any particular Advertisement or Advertising Content for any or no reason.
4.1 The Advertiser accepts that the Advertisements may appear on various website(s) within Additional Media’s Network.
4.2 The breadth of distribution of the Advertising Content may change during the term of this Agreement for any reason or no reason, including that Additional Media may change the members of Additional Media’s Network from time to time without notice, and Additional Media may adopt or discontinue one or more modes of distribution or may change or discontinue websites, website pages or methods or modes of advertisement delivery.
4.3 Additional Media cannot guarantee that the Advertiser’s Advertisement(s) will appear in any particular type of placement, or position, or that it will be displayed in any particular context or in response to any particular behaviour.
- Online Advertiser Account
5.1 Additional Media will provide a password-protected online account to the Advertiser to allow it to monitor the performance of its Advertisements and make changes to the Advertising Content as required and agreed in advance by Additional Media.
5.2 The Advertiser is solely responsible for controlling access to the password-protected account and for maintaining the confidentiality and security of the password and its account.
5.3 The Advertiser shall be required to pay for any additional charges reasonably incurred as a result of changes made through the online account and agreed in advance by Additional Media.
- Term and Termination
6.1 The term of this Agreement will be set forth in the Insertion Order or an agreement which is supplemental to this Agreement (“Supplemental Agreement”). If there is no Insertion Order or Supplemental Agreement, or the Insertion Order or Supplemental Agreement does not specify a term for this Agreement, the term shall be indefinite and shall continue in full force and effect until terminated by either party in accordance with the terms of this Agreement.
6.2 This Agreement shall, unless terminated earlier in accordance with its terms, continue in force until terminated with immediate effect by either party, save where stated to the contrary in any Insertion Order or Supplemental Agreement.
6.3 Unless otherwise set forth in the relevant Insertion Order or Supplemental Agreement, either party may terminate the Agreement at any time for any reason or no reason upon giving written notice to the other party, with such termination to be effective as soon as Additional Media has removed all of the Advertising Content from Additional Media’s Network.
6.4 Additional Media may by notice in writing to the Advertiser terminate this Agreement with immediate effect if:
6.4.1 the Advertiser is in material breach of any of its obligations under this Agreement which are incapable of remedy;
6.4.2 the Advertiser fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement after having been required in writing to remedy such breach within a period of no less than 10 Business Days; or
6.4.3 the Advertiser resolves to go into a voluntary liquidation (other than a members’ voluntary winding up for the purposes of a reconstruction of its affairs), presents or has presented against itself a winding up petition, is dissolved, comes to a compromise or arrangement with its creditors, has a liquidator, administrator, receiver, manager or administrative receiver or other encumbrance appointed to, or security enforced over, the whole or any part of its assets or property, has an administration order made in respect of it or becomes unable or admits its inability to pay its debts as they fall due or suffers any event analogous to any of the above in any jurisdiction.
6.5 Immediately on the termination or expiry of this Agreement for whatever reason:
6.5.1 all outstanding sums required for payment by the Advertiser under this Agreement shall become due and owing to Additional Media (save for any sums subject to bona-fide dispute, under this Agreement in accordance with its terms up to and including the date of termination);
6.5.2 each party shall destroy or deliver, at the other party’s election, all copies of any Confidential Information supplied by or on behalf of the other party pursuant to this Agreement which are in the former party’s possession or control at the date of termination; and
6.5.3 each party shall cease any further use of the Intellectual Property Rights of the other party used pursuant to this Agreement.
6.6 Termination of this Agreement shall be without prejudice to any other rights or remedies to which a party may be entitled under this Agreement or at law as a result of or in relation to any breach or other event which gives rise to such termination, and shall not affect any other accrued rights or liabilities of either party as at the date of termination.
7.1 Additional Media shall at its discretion, and in accordance with the commercial terms agreed between the parties in writing from time to time, invoice the Advertiser setting out the number of clicks on Advertisements in that month and any fee due for payment or obtained by Additional Media as a result. No invoices shall be issued for Advertisers using a Self Service Account.
7.2 Where an invoice is supplied to the Advertiser which requires a payment to be made by the Advertiser to Additional Media, full payment of any invoice is due within 30 days following the end of each calendar month in which the clicks have taken place.
7.3 If Additional Media, in its sole discretion, determines that the Advertiser’s credit condition warrants, Additional Media may require additional information and/or advance payment from the Advertiser and before the Advertisement is uploaded onto Additional Media’s Network.
7.4 If the Advertiser wishes to increase or exceed the budget amount in an approved Insertion Order, the Advertiser shall submit a written request to Additional Media requesting its consent to vary the terms of the Agreement in such a way.
7.5 All sums due under this Agreement or Supplemental Agreement exclude any value added tax (and any related duties, tariffs or similar charges) that may be due as a result of the transactions contemplated by this Agreement. The Advertiser will be responsible for paying all such taxes and charges.
7.6 The Advertiser has no right to set-off any debts or payments due under this Agreement or any other agreement between the parties against any sums due to Additional Media.
7.7 The Advertiser will have 10 Business Days from the date of an invoice or charge to dispute any issued invoice or charge. On the expiry of 10 Business Days the Advertiser shall be deemed to have waived any objections to the entirety of the invoice or charge.
7.8 Invoices and charges will be determined solely based on Additional Media’s click tracking technology.
7.9 The Advertiser may use a third party to track clicks on any Advertisements subject to obtaining the prior written consent of Additional Media.
7.10 In the event that the third party’s measurements of clicks on Advertisements differ from those tracked by Additional Media by more than 20 per cent over any given month, or invoiced or charged period if different, following the end of the 10 Business Day period for challenging an invoice or charge Additional Media and the Advertiser shall in good faith seek to resolve the discrepancy between the click data submitted by Additional Media and the third party (subject to the Advertiser having obtained consent to use of the third party in accordance with Clause 7.9). If any changes are agreed to Additional Media’s click tracking, the invoice in dispute shall be amended to credit an agreed account accordingly or a new invoice issued for the same period based on the revised click figure. Amendments to Additional Media’s click tracking results and any subsequent refund (if any) are at the sole discretion of Additional Media and will be granted only in the form of advertising credit on Additional Media’s Network. Additional Media shall not be obliged to take into account any click measurements submitted by a third party commissioned by the Advertiser in breach of Clause 7.9.
7.11 The Advertiser may only dispute an invoice or charge in accordance with this Clause 7.
- Late Payments
8.1 If the Advertiser is late in paying any part of any monies due to Additional Media, Additional Media may (without prejudice to any other right or remedy available to it whether under this Agreement or by any statute, regulation or by-law) do any or all of the following:
8.1.1 charge interest and other charges on the amount due but unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
8.1.2 other than as set out in Clause 8.1.3, suspend the performance of this Agreement and any other agreement between Additional Media and the Advertiser, including any Supplemental Agreement, until payment in full has been made; and
8.1.3 notify the Advertiser that it is temporarily removing the Advertising Content with immediate effect until Additional Media receives the outstanding sum and any accrued interest in full.
8.2 In the event that Additional Media is forced to engage the services of a debt collection agency and/or commence legal proceedings to recover any sum due and owing by the Advertiser to Additional Media under this Agreement, Additional Media shall be entitled to full reimbursement of its reasonable costs, including legal fees and business expenses, incurred as a result.
- Limitation of Liability
9.1 This Clause 9 prevails over all other Clauses and sets forth the entire Liability of Additional Media, and the sole and exclusive remedies of the Advertiser, in respect of:
9.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or of any services provided in connection with or supplemental to this Agreement; or
9.1.2 otherwise in relation to this Agreement or entering into this Agreement.
9.2 Additional Media does not exclude or limit its Liability for:
9.2.1 its fraud; or
9.2.2 death or personal injury caused by its Negligence; or
9.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or
9.2.4 any infringement of the Advertiser’s Intellectual Property Rights or Confidential Information; or
9.2.5 any other Liability which cannot be excluded or limited by applicable law.
9.3 Subject to Clause 9.2, Additional Media does not accept and it hereby excludes any Liability for Negligence other than any Liability arising pursuant to the terms of this Agreement.
9.4 Subject to Clause 9.2, Additional Media shall not have Liability in respect of any:
9.4.1 indirect or consequential losses, damages, costs or expenses;
9.4.2 loss of actual or anticipated profits;
9.4.3 loss of contracts;
9.4.4 loss of use of money;
9.4.5 loss of anticipated savings;
9.4.6 loss of revenue;
9.4.7 loss of goodwill;
9.4.8 loss of reputation;
9.4.9 ex gratia payments;
9.4.10 loss of business;
9.4.11 loss of operation time;
9.4.12 loss of opportunity; or
9.4.13 loss of, damage to or corruption of, data (except to the extent that Additional Media specifically has a responsibility to prevent loss of, damage to or corruption of, data under this Agreement),
whether or not such losses were reasonably foreseeable or Additional Media or its agents had been advised of the possibility of it incurring such losses. For the avoidance of doubt, Clauses 9.4.2 to 9.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
9.5 Subject to Clause 9.2, and subject to any specific right or remedy expressly set out in this Agreement that explicitly provides that the following cap may be exceeded, the total aggregate Liability of Additional Media for all causes of action arising in each Year shall be limited to the greater of: (a) £60,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by the Advertiser to Additional Media under this Agreement, in that Year.
9.6 The limitation of Liability under Clause 9.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
9.7 The Advertiser acknowledges and accepts that Additional Media only enters into this Agreement on the express condition that it shall not be responsible for nor shall it have any Liability directly or indirectly for inaccuracies or errors in or omissions from any of the information or Advertising Content provided by the Advertiser or its employees, agents or contractors or any third party on behalf of the Advertiser.
9.8 In this Agreement “Liability” means liability in or for breach of contract (including liability under any indemnity), Negligence, deliberate tort, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral or supplemental contract, but each Agreement shall constitute a separate “Agreement”).
- Advertiser Representations and Warranties
10.1 The Advertiser represents and warrants that:
10.1.1 it holds the necessary authority to grant all rights granted to Additional Media under this Agreement;
10.1.2 neither the use, reproduction, distribution, or transmission of the Advertising Content, nor any material or service available on or through the Advertiser’s website will:
10.1.2.1 violate any law or regulation or any rights of any third party;
10.1.2.2 contain any material that is harmful, abusive, hateful, obscene or threatening;
10.1.2.3 constitute false or fraudulent advertisement and that a reasonable basis exists for all claims concerning the performance of products and services offered;
10.1.2.4 the Advertising Content complies with Additional Media’s advertising guidelines as set by Additional Media from time to time;
10.1.2.5 the Advertiser’s execution of this Agreement, and its performance of obligations and duties hereunder, will not violate any agreement to which the Advertiser is a party or is otherwise bound; and
10.1.2.6 the Advertiser possesses all authorisations, approvals, consents, licenses, certificates or other rights and permissions necessary to display its website(s) and purchase, display and distribute (and allow others to display and distribute) Advertising Content for such website(s).
- Additional Media Representations and Warranties
11.1 Additional Media warrants that it holds the necessary rights to use Additional Media’s Network for display and reproduction of the Advertising Content.
11.2 Additional Media does not warrant that:
11.2.1 the number of clicks and/or the location and prominence of Advertisements within Additional Media’s Network will meet the Advertiser’s present and/or future expectations or requirements;
11.2.2 the Advertising Content or Additional Media’s Network will be complete, error-free or wholly accurate or without interruption, fault or error;
11.2.3 the performance estimates, if any, on the Insertion Order will be achieved. Any performance estimates are for guidance only and shall not constitute any form of contractual promise or guarantee. Actual performance may be higher or lower than the performance estimates provided; and
11.2.4 an Advertisement will be displayed in response to any given keyword search.
12.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement
12.2 Each party undertakes to disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors (in respect of disclosure by the Advertiser, none of whom may be a competitor or officers, employees, agents or contractors of a competitor of Additional Media) to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement and to procure that such persons are made aware of and agree in writing to observe the obligations in this Clause 12.
12.3 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or other loss of the other party’s Confidential Information immediately upon becoming aware of the same.
12.4 The provisions of this Clause shall not apply to information which:
12.4.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
12.4.2 is lawfully received from a third party free of any obligation of confidence at the time of its disclosure;
12.4.3 is demonstrably independently developed by the recipient, its officers, employees, agents or contractors;
12.4.4 is required by law, by court or governmental order to be disclosed provided that, to the extent permitted by law, prior to any disclosure, the recipient promptly notifies the disclosing party and, at the disclosing party’s request and cost, assists the disclosing party in opposing any such disclosure.
- Advertiser Indemnity
13.1 The Advertiser shall at all times indemnify and keep fully indemnified Additional Media against any and all liabilities, claims, losses, damages, demands, charges, costs, and expenses (including legal expenses) that Additional Media may suffer or incur as a result of:
13.1.1 any infringement of any Intellectual Property Rights of a third party arising from putting the Advertising Content or any information, data and materials provided to Additional Media by the Advertiser on Additional Media’s Network; or
13.1.2 the Advertiser’s breach of any third party licensor’s terms in relation to the use of any part of the Advertising Content.
14.1 Any notice required or authorised to be given under this Agreement shall be in writing and shall be served by personal delivery or by commercially recognisable overnight courier or by facsimile addressed to the relevant party at its address stated in this Agreement or at such other address or facsimile number as is notified by the relevant party to the other for this purpose from time to time or at the address or facsimile number of the relevant party last known to the other.
14.2 Any notice so given by post shall be deemed to have been served two Business Days after the same shall have been posted by commercially recognisable overnight courier and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and a receipt showing successful delivery received.
- Force Majeure
15.1 Additional Media shall not have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances beyond its reasonable control including any act of God, actions or omissions of third parties (including suppliers, couriers, hackers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation (“Event of Force Majeure“), regardless of whether the circumstances in question could have been foreseen.
15.2 Additional Media agrees to use its reasonable commercial endeavours to inform the Advertiser upon becoming aware of an Event of Force Majeure.
15.3 Additional Media’s obligations under this Agreement shall be suspended during the period that the circumstances of the Event of Force Majeure persist.
15.4 Additional Media shall be granted an extension of time for performance equal to the period of the delay.
15.5 If performance of any of Additional Media’s obligations is delayed under this Clause 15, the Advertiser shall accept performance as and when Additional Media shall be able to perform.
15.6 If the Event of Force Majeure continues without a break for more than one month, either party may terminate this Agreement immediately by notice to the other, in which event neither party shall be liable to the other party by reason of such termination.
15.7 If Additional Media has contracted to provide identical or similar services to more than one client and is prevented from fully meeting its obligations to the Advertiser by reason of an Event of Force Majeure, Additional Media may decide at its absolute discretion which contracts it will perform and to what extent.
16.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Agreement, Additional Media may assign, transfer, novate or subcontract its rights, liabilities or obligations under this Agreement either in whole or in part to any other person, firm or company. Additional Media shall promptly give notice to the Advertiser of any such assignment.
16.2 The Advertiser shall not (or purport to) assign, sub-license, sub-contract, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any of its rights, liabilities or obligations under this Agreement without the prior written consent of Additional Media (such consent not to be unreasonably withheld or delayed).
17.1 This Agreement contains all the terms agreed among the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other party upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement.
17.2 This Agreement constitutes the whole agreement and understanding of the parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
17.3 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Advertiser whether such terms and conditions are contained in the Advertiser’s purchase orders, documents or otherwise. This Agreement shall override all other terms and conditions that are inconsistent with this Agreement whether express, implied or otherwise. If the Advertiser provides Additional Media with a purchase order, this shall be purely for the Advertiser’s administrative purposes only and shall not form part of this Agreement.
17.4 Additional Media may update these Terms and Conditions for its clients generally by providing the updated Terms and Conditions to its client in any manner it deems fit and reasonable. Subject to Clause 17.5, such updated Terms and Conditions shall apply by no less than 30 days’ prior written warning (after they were sent to the Advertiser or displayed on the Additional Media website), to take effect at the beginning of the next invoice period.
17.5 Additional Media may make emergency changes to the Terms and Conditions without prior notice. Where reasonably practicable, Additional Media will endeavour to give the Advertiser reasonable warning.
17.6 Subject to Clauses 17.4 and 17.5, no change to the specific terms of this Agreement shall be binding unless it is agreed in writing by each of the parties.
17.7 This Agreement shall be legally formed and the parties shall be legally bound when both parties have agreed in writing to the relevant Insertion Order or an Advertiser has successfully set up a Self Service Account with Additional Media. In any event, the use of Additional Media’s services by the Advertiser shall constitute acceptance of the terms of this Agreement.
17.8 Each Insertion Order or Self Service Account together with these Terms and Conditions is a separate agreement; there may be more than one agreement in place if there is more than one Insertion Order and/or Self Service Account.
17.9 The relationship of the parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in this Agreement, nothing in this Agreement shall constitute the parties as partners, joint ventures or co-owners, or constitute either party as the agent, employee or representative of the other party, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other party, and neither party shall hold itself out as having authority to do the same.
17.10 The failure to enforce, at any time, the provisions of this Agreement or to require, at any time, performance by the other parties of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement (or any part), or the right of any of the parties thereafter to enforce such provision in accordance with this Agreement.
17.11 If any provision of this Agreement is held to be invalid or unenforceable by any judgment of a tribunal of competent jurisdiction, the remainder of this Agreement shall not be affected by such judgment and this Agreement shall be carried out as nearly as possible according to its original terms and intent.
17.12 This Agreement does not and is not intended to confer any rights to any third party. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
- Law and Jurisdiction
18.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. If the Advertiser is domiciled:
18.1.1 in the European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Agreement shall be the English courts; or
18.1.2 in the European Union, any dispute which may arise out of or in connection with this Agreement shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
18.2 All dealings, correspondence and contacts between the parties shall be made or conducted in the English language.