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Advertising terms & conditions

STANDARD TERMS AND CONDITIONS FOR ADVERTISERS

1.               DEFINITIONS

1.1               In this Agreement, including the Schedules, the following words and phrases shall have the following meanings:

 “Advertising Impression”

the action (recordable by a website operator) by which End Users access, view or call up each page or screen contained under or within a Promotional Placement in each case when such page or screen is so accessed, viewed or called up through such Promotional Placement;

“Affiliate"

any Holding or Subsidiary Company of Orange Home UK Limited or France Telecom SA and any Subsidiary Company of any such Holding Company as the context may require;

“Advertiser”

a person or company (or, in the case of an Agency, its Client) who wishes to promote their products and/or services via the Orange Service;

“Advertising Order Form”

the document overleaf containing the principal terms of the Services to be provided by Orange concerning the Promotional Placements;     

“Agency”

an advertising agency which may act for Advertisers from time to time in respect of securing Promotional Placements;

“Agreement"

these terms and conditions and the Advertising Order Form;

"Brand Features"

all trade marks, service marks, logos and any other IPR and/or brand features belonging to You and which are used in conjunction with the promotion of Your services;

"Campaign"

provision of the Services for the agreed period of time (as set out in the Advertising Order Form);

 “Campaign End Date”

the date specified in the Advertising Order Form; 

"Campaign Start Date"

the date specified in the Advertising Order Form;

“Cookie”

a packet or piece of data or other information sent by a web server to a web browser, to be stored on the web browser and sent back to the web server each time the web browser makes additional requests from the web server;

"Customer Data"

all information volunteered by End Users in relation to any goods and/or services offered by You at your Website and accessed by End Users via a Promotional Placement from which the End Users of the Orange Service may be identified;

"Daily Advertising Impressions Target"

shall be the No. of Advertising Impressions to be delivered, divided by the No. of days the Promotional Placement is to be published;

“End User Data”

user information collected from or generated by End Users from which End Users can be identified;

“End Users”

any person who accesses the Orange Service;

“Fee”

 the sums specified in the Advertising Order Form;

"France Telecom SA"

shall mean the company registered in accordance with the law of France and whose head office is located at 9 place d’Alleray, 75505, Paris, Cedex 15 France (or such other address as may be notified to You); 

“Holding Company” and "Subsidiary Company"

have the meanings ascribed to them by Sections 736 and 736A of the Companies Act 1985;

“Intellectual Property Rights”

all proprietary rights, including all copyright, database rights, patents, trade marks, service marks, trade names, registered designs and design rights and other rights of a like nature, (howsoever arising and in whatever media), whether registered or not or capable of registration anywhere in the world, and all applications for the protection or registration of those rights including all renewals and extensions;

"Media Pack"

as set out at www.orange.co.uk/mediapack;

"Media Units"

shall mean the advertising formats in terms of pixels and functionality that is provided to the Advertiser to promote their products and services via the Orange Service.  Such advertising space may include but are not limited to 468x60 banners; 125x125 buttons; overlays; skyscrapers, drop-downs; pull-downs; pull-ups, special promotional boxes (Promo Box); 300x250 MPU or such other advertising formats as Orange may introduce from time to time;

"Promotional Placements"

the advertising, promotional, sponsorship or similar placements (delivered in the form of Media Units as defined on the Advertising Order Form) included by Orange within the Orange Service from which End Users may click-through to Your Website;

"Rich Media Formats"

shall include (but are not limited to) the following formats; expandable banner, expandable skyscraper, overlay, expandable MPU and Today Page MPU;

"Services"

shall mean the featuring of Promotional Placements on the agreed areas of the Orange Service;

"Sponsorship"

shall mean a booking made for a Promotional Placement using (but not limited to) Rich Media, Standard Ad Format(s), Advertorials, Microsites, Mastheads together with any other form of placement as may be agreed between the parties and which will be published on agreed specified date(s) only;

"Standard Ad Formats"

shall include (but are not limited to) the following formats; standard banner, standard button, leaderboard, MPU (except the Today Page on the Orange Service), and skyscrapers;

"Traffic Data"

information relating to End Users from which those End Users cannot be identified;

“Undelivered Advertising Impressions”

Advertising Impressions which have not been generated through the Orange Service by the Campaign End Date;

“Orange”

means Orange Home UK Limited whose registered office is at St James Court, Great Park Road, Almondsbury Park, Bradley Stoke, Bristol, BS32 4QJ;

"Orange Pan European Network"

means the websites that have agreed to be part of Orange’s European website advertising network on which Advertisers may promote their goods and services for a fee; and

"Orange Service"

the network of websites owned and/or operated by Orange and located at http://www.orange.co.uk or http://smartgroups.com and if required to other members of the Orange Pan European Network or any additional or subsequent URL’s which may replace them;

"Working Days"

means a day (other than a Saturday or Sunday) on which banks are open for business in London;

"Website"

the website owned and operated by You and which is located at the URL shown in the Advertising Order Form or any subsequent URL which may replace it.

"You"

means the Agency/Advertiser (whichever the case may be) named on the Advertiser Order Form;    

1.2        References to Clauses and Schedules in this Agreement are to clauses of and schedules to this Agreement.

1.3        The headings to the Clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction thereof.

1.4        Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.

1.5        Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies corporate, unincorporated associations and partnerships and vice versa.

1.6        References to the whole shall include the part and vice versa.

1.7        In the event of any conflict between the terms set out in these terms and conditions and the provisions set out in the Advertising Order Form, the provisions set out in the Advertising Order Form shall take precedence.

2          PROMOTION SERVICES

2.1        In return for payment of the Fee, Orange agrees to:

2.1.1     include the Promotional Placements within the areas of the Orange Service as specified on the Advertising Order Form with effect from the Campaign Start Date until either the target number of Advertising Impressions, shown on the Advertising Order Form (if any), have been delivered, or the Campaign End Date is reached.  You acknowledge that in providing these Services, Orange’s sole obligation is to include the Promotional Placement within the areas of the Orange Service specified within the Advertising Order Form;

2.1.2     provide Campaign related information and such reasonable guidance as Orange may in its absolute discretion deem appropriate concerning the conduct of the Campaign;

2.1.3     issue You with a user ID and password to enable You to assess and monitor of the progress of Your company Campaign using Orange’s tracking management service;

2.2        You acknowledge that no guarantee is given by Orange as to click-through rates or sales generated from Advertising Impressions delivered via the Orange Service;

2.3        Orange reserves the right to refuse to include any Promotional Placement or assist with any promotional campaign that relates to any of the restricted categories detailed in Orange’s promotional guidelines as varied from time to time;

2.4        In providing the Services; Orange shall be under no obligation to provide technical or design services to You.  Orange does however agree to provide (in so far as it is able) general assistance with queries based on its own experiences.  In so doing, You acknowledge that Orange shall incur no liability for any loss or damage You may suffer as a result of your acting on such information.

2.5        Orange does not guarantee the time, dates or positions agreed for publication of the Promotional Placements will be met, but if a booked Promotional Placement is not published at all, due to the direct fault of Orange, Orange will endeavour to supply an alternative publication date. If You choose not to accept this alternative date, Your original booking shall be deemed to be cancelled and Orange shall refund to You the Fee already paid (if any) in respect of such cancelled Promotional Placement in which event You acknowledge and agree that this shall be your sole remedy and that without limitation You shall have no claim for damages, expenses or other costs against Orange in respect of such non-publication.

2.6        You agree to:

2.6.1     submit for Orange’s approval all Promotional Placement related materials (together with any amendments to them).  Promotional Placements that are not approved by Orange will not be included in the Orange Service and You acknowledge that Promotional Placements that exceed the file guidelines (as specified in the Media Pack) will not be approved and if supplied on a re-direct will be stopped by Orange;

2.6.2     review and update Your promotions/advertising campaign and Website so that nothing contained within the Promotional Placements or Your Website will adversely affect, prejudice, be detrimental to, or otherwise bring Orange and/or the Orange Service into disrepute (including but not limited to any blasphemous, defamatory or libellous statements);

2.6.3     submit by email to adcreative@orange-ft.com at least 3 Working Days before the Campaign Start Date all Promotional Placements and/or related materials for inclusion within the Orange Service within the following timescales;

i) Standard Ad Formats at least 3 Working Days before the Campaign Start Date;  

            ii) Rich Media Formats at least 5 Working Days before the Campaign Start Date;                iii) Sponsorship deals on such timescales to be agreed between the parties but in any event no later than 7 Working Days before intended publication on the Orange Service;

and comply with such technical requirements as may be advised to You by Orange from time to time. Orange shall incur no liability for the delayed inclusion of the Promotional Placements where You fail to observe the terms of this clause 2.6.3 and You should be aware that where Promotional Placements are late (i.e. not delivered in accordance with this Clause) and You are charged a Fee based on;

a) length of Campaign only with no Advertising Impressions target, then You will remain liable for the full Fee;

b) the number of Advertising Impressions to be delivered then You will remain liable for the full Fee and the following formula will be applied in order to produce a new pro-rated number of Advertising Impressions to be delivered as follows;

Daily Advertising Impressions Target x No. of days Promotional Placement is to be published (minus the No. of days Promotional Placement is late) = No. of resulting Advertising Impressions left to be delivered over the remaining Campaign period;

c) Sponsorship, then You will remain liable for the full Fee notwithstanding the fact that the Campaign will not be able to be run;

2.6.4     limit creative changes to one change only in the first 4 weeks of the Campaign and once per week thereafter; and

2.6.5     refrain from sending (whether directly or indirectly) a Cookie to any web browser of an End User irrespective of whether the browser has been enabled by the End User to receive Cookies.

2.7        Orange shall have the right at any time to re-design, modify and in any other way adjust the Service and shall endeavour (in so far as it is reasonably able) to replace the Promotional Placements in a position which is comparatively similar to their original position before such redesign, modifications and/or adjustments were undertaken.  Orange shall incur no liability or obligation to You in these circumstances but You shall remain liable to Orange for any sums due to Orange under this Agreement in respect of the inclusion of the Promotional Placements in the Service.

2.8        In the event that a suitable alternative position cannot be found by Orange in relation to Clause 2.7, You shall be entitled to terminate this Agreement forthwith and Orange shall refund any balance of Fees paid in advance either on a prorata basis to the period of the Campaign or the number of Advertising Impressions served prior to termination.

2.9        Delivery to Orange of the Promotional Placements does not constitute Orange’s acceptance or approval of them or its agreement to include them in the Orange Service. Orange reserves the right but does not undertake to review the Promotional Placements. Any review of or approval by Orange shall not be deemed to constitute an acceptance by Orange that the Promotional Placements provided accord with all applicable laws and/or regulations or these terms and conditions nor shall it constitute a waiver of any of Orange’s rights under this Agreement. Orange reserves the right at any time and at its sole discretion to:

2.9.1     reject and/or cancel any request to include the Promotional Placements in the Orange Service; or

2.9.2     remove the Promotional Placements from the Orange Service; in each case without incurring any liability or obligation to You.

2.10      If Orange elects not to publish the Promotional Placement, Orange shall notify You that this is the case and You must supply alternative copy at Your own cost as soon as possible and in any event no later than 3 clear Working Days prior to the intended date of publication Campaign Start Date. You shall remain liable to pay in full for any advertising space booked irrespective of whether or not such alternative copy has been supplied to or accepted by Orange, within the time frame specified above.

2.11      Orange reserves the right to terminate this Agreement and/or remove the Promotional Placements (as the case may be) where in Orange’s judgement to continue to include the Promotional Placement would adversely affect, prejudice, be detrimental to or otherwise bring into disrepute (including but not limited to any blasphemous, defamatory or libellous statements) the Orange Service, Orange or its Affiliates.

2.12      Notwithstanding anything to the contrary elsewhere in this Agreement, Orange reserves the right in its absolute discretion to do any act or thing in respect of the inclusion of any Promotional Placements (or part) including without limitation the editing or cutting of any Promotional Placements which Orange at its sole discretion considers to contain unsuitable material. In these circumstances, Orange shall incur no liability or obligation to You but You shall remain liable to Orange for the Fee payable under this Agreement for such Promotional Placements.

2.13      Orange shall not be held responsible for any addition to, changes in, deletions from or withdrawal of any Promotional Placements as may be required by any competent authority having jurisdiction over or responsibility for the regulation of electronic and online advertising on the Orange Service.

2.14      Unless specifically agreed to the contrary in the Advertising Order Form:

2.14.1   Orange shall be free to include within the Orange Service advertising for similar or competing products and services in proximity to Your Promotional Placements; and

2.14.2   the Advertising Order Form and this Agreement are non-cancellable by You.

3          GRANT OF LICENCES

3.1        You hereby grant to Orange a non-exclusive, royalty free, worldwide fully-paid licence to use, reproduce, display and transmit Your Brand Features within the Promotional Placements.

4          PAYMENT

4.1        Orange reserves the right at anytime to request a deposit in advance in consideration of performance of the Services.

4.2        You will be invoiced for the Fee by Orange or Orange’s appointed agent either:

4.2.1     when all Advertising Impressions have been delivered pursuant to the Advertiser Order Form; or

4.2.2     following the end of each calendar month for the Advertising Impressions delivered during that month: or

4.2.3     following the Campaign End Date where no Advertising Impressions target has been agreed

4.3        Payment shall be made to Orange (or its appointed agent) in pounds sterling within 14 day’s of the date of the invoice.  All sums due under this Agreement are exclusive of Value Added Tax (“VAT”) and any other applicable sales taxes that may from time to time be introduced.  VAT and any applicable sales taxes shall be charged on all sums due under this Agreement in accordance with the relevant regulations in force at the time of making the taxable supply.

4.4        Orange reserves the right to refuse to accept the Advertising Order Form in the event that there are any outstanding amounts due to Orange from You either under this or any other agreement with You;

4.5        In the event that Orange fails to meet the any agreed target Advertising Impressions specified on the Advertising Order Form and has Undelivered Advertising Impressions, Orange shall either (i) agree with You other dates to deliver Promotional Placements to clear any Undelivered Advertising Impressions; or (ii) reimburse any Fees paid by You for Advertising Impressions in excess of those actually generated during the Campaign or subsequent efforts to clear the same.

4.6        Any amounts which remain outstanding after the due date shall bear interest at the rate of 4% per annum above the base lending rate of Barclays Bank PLC from time to time from the due date until the date of actual payment whether before or after judgement.

4.7        Should You fail to make payment by the due date, You will be responsible for all expenses (including legal fees) incurred by Orange or its appointed agents) in collecting such sums.

5          OWNERSHIP

5.1        All End User Data shall be owned by Orange.

5.2        All Traffic Data shall be jointly owned between You and Orange.

5.3        All Customer Data shall be owned by You.

5.4        You hereby undertake not to use, or authorise any third party to use the Customer Data in order to send (whether via e-mail or otherwise) End Users information about products and or services relating to Orange's competitors.

6          WARRANTIES AND INDEMNITIES

6.1        Each party to this Agreement warrants and represents to the other party that it has the full corporate right, power and authority to enter into this Agreement (whether on its own behalf or in the case of an Agency on behalf of its Client, the Advertiser) and to perform its obligations hereunder.

6.2        You represent and warrant to Orange that:

6.2.1     You have sufficient rights in the Brand Features and the materials relating to the Promotional Placements for You to be able to grant to Orange the right to use them for the purpose of including the Promotional Placements within the Orange Service in accordance with the terms of this Agreement;

6.2.2     You and Your Website fully comply with, and shall continue to fully comply with all applicable UK law and regulation including but not limited to data protection legislation together with any similar or subsequent legislation as the same may be subsequently re-enacted or amended;

6.2.3     that the Promotional Placements do not constitute investment advertising within the meaning of the Financial Services Act 1986.

6.3        Each party (the “First Party”) will fully indemnify and keep fully indemnified the other (the “Second Party”) (and its employees, directors and agents) forthwith on demand against any liability, damage, expense, claim or cost suffered by the Second Party as a result of any breach by the First Party of the warranties and indemnities set out in this Clause 6.

6.4        You will defend or settle at your own expense any action or other proceedings brought against Orange that the inclusion of the materials relating to the Promotional Placements within the Orange Service or use by Orange of the Brand Features in accordance with the terms of this Agreement infringes any third party’s Intellectual Property Rights.  Orange shall notify you promptly of any such claim and shall permit you to assume and control the defence of such action with counsel chosen by you, who shall be reasonably acceptable to Orange, and shall not enter into any settlement or compromise of any such claim without your prior written consent (which shall not unreasonably be witheld or delayed).  You shall pay any and all proper costs, damages and expenses (including but not limited to reasonable legal fees and costs) awarded against or incurred by Orange in any such action or proceedings.

7          TERM AND TERMINATION

7.1        Subject to Clause 2.11 and 4.4, this Agreement shall commence on the Campaign Start Date and end on either the delivery of the agreed number of Advertising Impressions or on the Campaign End Date (as agreed between the parties) unless terminated earlier by either party in accordance with the provisions of this Clause 7 or the circumstances set out in Clause 14 shall apply (the “Term”).

7.2        Either party shall be entitled to terminate this Agreement forthwith on written notice to the other in the event that:

7.2.1     the other commits a material breach of the terms of this Agreement which (being a breach that is capable of remedy) is not remedied within 7 days’ of receipt of a notice issued by the party not in breach to do so; and/or

7.2.2     the other shall cease to carry on its business or has a liquidator, receiver or administrative receiver appointed to it or over any part of its undertaking or assets or shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an administration order or liquidation order or similar order, or shall enter into any voluntary arrangement with its creditors, or shall be unable to pay its debts as they fall due.

8          CONSEQUENCES OF TERMINATION

8.1        In the event of the termination of this Agreement:

8.1.1     Orange shall remove the Promotional Placements and all licences granted to it in respect of the Brand Features shall forthwith cease; and

8.1.2     You shall settle all outstanding sums (if any) due to Orange within 14 days’ of the date of termination of this Agreement.

8.2        If this Agreement is terminated by You as a result of any breach by Orange of its obligations then Orange shall refund to You on a pro-rata basis all outstanding sums (if any) due from Orange to You in accordance with the term of this Agreement.

8.3        Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

8.4        Clauses 1, 4, 5, 6.3, 6.4, 8, 9, 10, and 15 shall survive expiry on termination of this Agreement.

9          LIMITATIONS OF LIABILITY

9.1        Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either party or their servants, agents or employees.

9.2        Subject to Clause 9.3, the liability of either party in contract, tort, negligence, pre-contract or other representations or otherwise arising out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement, and every applicable part of it shall be limited in aggregate to the sum of £100,000 or the total sums received by Orange from You under this Agreement (whichever is the greater) in each calendar year of this Agreement.

9.3        Neither party shall be liable in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent or negligent misrepresentations) or otherwise arising out of or in connection with this Agreement for: (i) any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings); (ii) any loss of goodwill or reputation; or (iii) 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 any matter under this Agreement.

9.4        Orange shall incur no liability to You either (a) as a result of Your failure to deliver the Promotional Placements and related materials on time as required by this Agreement or (b) as a result of our inability to deliver all Advertising Impressions requested on the Advertising Order Form.

9.5        Except as set out in this Agreement, each party excludes all conditions, terms, representations (other than fraudulent or negligent representations) and warranties relating to the Services, whether imposed by statute or by operation of law or otherwise, that are not expressly stated herein, including without limitation, the implied warranties of satisfactory quality and fitness for a particular purpose.

9.6        Each provision of this Clause 9 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the expiry or termination of this Agreement.

10         CONFIDENTIALITY

10.1      During the Term and thereafter, both parties agree with each other to keep all information that they obtain about the other concerning the business, finances, technology and affairs of the other, and in particular but not limited to the Service and/or Services and regardless of its nature ("Confidential Information"), strictly confidential.

10.2      The provisions of this Clause 10 shall cease to apply to: (i) information that has come into the public domain other than by breach of this Clause or any other duty of confidence; and (ii) information that is obtained from a third party without breach of this Clause or any other duty of confidence; and (iii) information that is known by either party as at the date of the Agreement (and can be shown from that party’s written records), in connection with the other party, and which has been disclosed to either party by a third party, other than by You or Orange or a contractor of either of us and not in breach of any duty of confidence; and (iv) information that is trivial or obvious; and (v) information that is required to be disclosed by law or court of competent jurisdiction.

11         PUBLICITY

11.1      Subject to 11.2, neither party shall issue by any medium any public announcement, whether written or otherwise, in relation to the subject matter of this Agreement.

11.2      Notwithstanding Clause 11.1, Orange shall be free to issue advertisements referring to the existence of this Agreement in such reasonable publications as Orange shall in its absolute discretion determine.

12         NOTICES

12.1      Any notices required to be given under this Agreement shall be in writing and shall be deemed to have been duly served if hand delivered or sent by facsimile (with the original to be forwarded by first class post on the same day as the facsimile was sent) or by first class registered post or recorded delivery post within the United Kingdom and outside the United Kingdom by registered airmail post correctly addressed to the address specified in this Agreement (or such other address as either party may designate from time to time) and marked for the attention of the Company Secretary

12.2      Any notice given pursuant to this Clause 12 shall be deemed to have been served:-

12.2.1   if hand delivered at the time of delivery by posting through the letter box of the correct addressee in accordance with Clause 12.1 above;

12.2.2   if sent by facsimile within one hour of transmission during normal business hours at its destination or within 24 hours if not within business hours but subject to proof by the sender that it holds an acknowledgement confirming receipt of the transmitted notice in readable form; and

12.2.3   if sent by post within 48 hours of posting (exclusive of Sundays) if posted to an address within the country of posting and seven days of posting if posted to an address outside of the country of posting;

13         ASSIGNMENT

13.1      Orange may assign the benefit and/or burden of this Agreement in whole or in part to any party.

13.2      You shall be entitled to assign the benefit and/or the burden of this Agreement in whole or in part to a third party with the prior written consent of Orange.

14         FORCE MAJEURE

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.  In particular Orange shall incur no liability for failure to deliver the target number of Advertising Impressions where such failure is as a result of circumstances beyond its reasonable control.

15         LAW AND JURISDICTION

These terms shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.

16         VARIATION

Orange shall be entitled at any time to vary any or all of terms and conditions within this Agreement on giving you 14 days notice in writing.

17         WAIVERS

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.

18         ENTIRE AGREEMENT

This Agreement (as amended from time to time) together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. Each party confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly been made a representation in this Agreement and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement save that the agreement of the parties contained in this Clause shall not apply in respect of any fraudulent representation whether or not such has become a term of this Agreement.