Terms

Xibo Adspace – Display Advertising Terms & Conditions

Terms

Xibo Adspace – Display Advertising Terms & Conditions

Xibo Adspace -- Display Advertising Terms & Conditions

This Agreement covers the supply of Services by Xibo Adspace on the Adspace Platform whether you are a Display Owner, an Advertiser or both.

PLEASE READ THIS AGREEMENT CAREFULLY. YOU MUST ONLY ACCEPT THESE TERMS IF YOU AGREE TO THEM IN THEIR ENTIRETY.

BY ACCEPTING THESE TERMS YOU EXPRESSLY AGREE THAT

This is a legal agreement (Agreement) between you (Client or you) and Xibo Adspace Limited incorporated and registered in England and Wales with company number 12146271 whose registered office is at Curtis House, 34 Third Avenue, Hove, BN3 2PD, United Kingdom (Xibo Adspace, us, our or we).

This Agreement commences on the date on which you accept these Terms.

In consideration of the foregoing, the parties agree as follows:

Agreed Terms

  1. Interpretation

1.1. The following definitions and rules of interpretation apply in this agreement:

Acceptable use Policy: the Xibo Adspace acceptable use policy as amended from time to time;

Ad Play: the showing of the campaign advert on an individual inventory exactly once. Ad Plays are calculated based on Proof of Performance data received from the CMS.

Adspace Exchange: the digital marketplace where Campaigns are proposed by the Adspace Platform for display on Inventory and optionally approved and displayed by Display Owners in exchange for Fees and which may include Adverts sourced from third party advertising exchanges without human interaction.

Adspace Fees: the fees payable to us by you for the Services, including the fees payable for Adspace Licence(s), and taken by us from Display Fees, Advertiser Fees and Inventory Fees as set out in the Data Reports, User Default Fees and any other fees at the rates made known to you including as set out at Schedule 1 -- Fee Rate as amended from time to time.

Adspace Marketplace: the digital marketplace where Campaigns are proposed and transacted, including the display of Programmatic Advertising, between Advertisers and Display Owners in exchange for Fees.

Adspace Platform: the digital platform and underlying software, including any Third-Party Materials, which Xibo Adspace makes available to Display Owners and Advertisers.

Adspace Wallet: the digital wallet available to users via the Adspace Platform into which Display Fees earnt or Advertising Fees or Inventory Fees incurred may be deposited or withdrawn as consideration for Campaigns displayed or Inventory listed. The Adspace Wallet functionality is provided by Stripe who is an Electronic Money Institution with regard to the PSD2 EU legislation. Xibo Adspace does not hold client funds or deposits.

Advert: digital media and content that is intended for display by an Advertiser on Inventory as part of a Campaign.

Advertiser: a person who proposes, places or runs a Campaign via the Adspace Platform.

Advertiser Account: the online account made available to an Advertiser where they can manage their preferences, maintain up to date contact information and engage with the Adspace Platform as set out in clause 4.3.

Advertiser Fees: the fees incurred by Advertisers for the display of Campaigns by Display Owners on Inventory.

Applicable Laws and Regulations: any UK laws or regulations and codes issued by statutory, regulatory and industry bodies that apply to your use of Xibo Adspace or any Adspace Licence.

Approved Campaign: A campaign which has been approved to be shown by all Display Owners and the Advertiser involved in that Campaign Proposal.

Audience: person(s) who are intended to view or engage with Campaigns and Inventory (for example, shoppers on a high street where Inventory is visible).

Audience Impressions: the total number of Audience members with an opportunity to see or notice a given Campaign.

Affiliates: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Campaign: an advertising campaign package, comprising one or more Adverts, intended for display on Inventory pursuant to one or more Campaign Proposals.

Campaign Proposal: a preliminary contract detailing a Campaign, including the Adverts to be shown as part of the Campaign, the Inventory the Campaign is to displayed on, the intended Audience, and when it should be displayed and the relevant Fees.

Commencement Date: the date this Agreement is entered into by you.

Content Creation: content creation services performed by us or a Sub-contractor for use with or as part of a Campaign and which may incorporate our Intellectual Property, User Material and Third-Party Material.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

CMS: the content management system and players operated by a User to engage with or access the Adspace Platform, which may include Xibo CMS or Xibo Players.

CPM (cost per mille): the cost to show a given Campaign until it reaches 1000 Audience Impressions. This is calculated based on Traffic Data for the given Inventory and time of day.

Creative: user materials to be shown as part of a Campaign or Campaign Proposal.

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).

Display Catalogue: the catalogue of Display Owners' Inventory which Advertisers may select to run Campaigns.

Display Fees: the fees earned by Display Owners for the display of Campaigns on Inventory by Advertisers.

Display Owner Account: the digital Adspace Platform account made available to a Display Owner where they can manage their preferences, maintain up to date contact information and engage with the Adspace Platform as set out in clause 4.3.

Display Owners: the owners, controllers or licensors of Inventory made available to Advertisers.

Documentation: means any documentation, including online documentation, specification, manual and knowledge base, provided by us in the performance of this Agreement or for the use of or access to the Adspace Platform;

Fees: the fees payable to use by Users of the Adspace Platform or for Content Creation and which may include the Adspace Fees, Display Fees, Advertiser Fees and/or Inventory Fees, or User Default Fees as the context requires and as made known to you including as set out at Schedule 1 - Fee Rate as amended from time to time.

Funded Campaign: An Approved Campaign which has been paid for in full, in advance, and transacted via the Xibo Adspace platform.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.

Inventory: digital advertising displays made available by Display Owners via the Adspace Platform.

Inventory Fees: the fees payable to us for the number of Inventories made available to Users via the Adspace Platform.

Order: means any written order incorporating a quotation for the supply of Services from Xibo Adspace, including by reference to a Campaign Proposal.

Order Confirmation: means written confirmation of Xibo Adspace's acceptance of an Order.

Private Marketplace: the digital marketplace where Advertisers and Display Owners may agree directly between themselves to make available Inventory and place, accept and display Campaigns in exchange for Fees.

Programmatic Advertising: advertising that is made available to Display Owners via the Adspace Exchange which is derived from third party advertising exchanges (also called Demand Side Platforms) to fill unused or otherwise available Inventory display slots.

Proof of Performance Data: the proof of play data of Adverts and Campaigns displayed on Inventory and collated by Xibo Adspace via the Adspace Platform and which is made available to Advertisers and Display Owners with Adspace Licences and which may include Audience and demographic data, reliability, images of Inventory, location and industry verticals among other data.

Proof of Play Data: see Proof of Performance.

Services: the advertising and display management services to be provided to you by us via the Adspace Platform including through the grant of an Adspace Licence (as defined in Clause 3) and as further set out in any Campaign Proposal, including any Content Creation services.

Sub-contractor: any third party engaged by us to provide any part of the Services.

Third-Party Materials: any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including another User's User Material, or any open source software or materials.

Traffic data: data on Audience numbers and demographics by time of day, which may be gathered from the Adspace Platform, third party sources, or from information provided by Display Owners via metrics gathering tools (such as a footfall tracker, anonymised camera tracking, etc) and which is made available to Users.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

User: a user of the Adspace Platform whether an Advertiser or Display Owner or any other third party.

User Default Fees: fees charged as a result of a User Default as defined in clause 4.11 or as amended from time to time.

User Materials: any and all materials, documents, images, video and other digital media, or other property (including all Intellectual Property therein) belonging to you or a third party, which you introduce or input to the Adspace Platform including in the form of Adverts or Campaigns, Proof of Play Data or Traffic Data and/or which otherwise comes into the possession or control of Xibo Adspace or a Display Owner in connection with your use of the Services.

User Support: the standard support provided to Users of the Adspace Platform and Services by us or our Sub-Contractors, as further set out at Schedule 2 -- User Support, but which support shall in no way extend to any CMS.

Utilisation: the proportion of time reserved or allocated for Campaigns managed by Adspace versus the total amount of time allowed to be used by Adspace to show advertisements. This can be thought of as how busy a given item of Inventory is.

VAT: value added tax chargeable under the Value Added Tax Act 1994.

1.2 In this Agreement, unless the context otherwise requires:

a. the singular includes the plural and vice versa;

b. references to subclauses, clauses or Schedules are to subclauses, clauses or Schedules of this Agreement;

c. references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);

d. 'including' (or similar words) means including without limitation;

e. clause headings do not affect their interpretation;

f. references to legislation (including any subsidiary legislation) includes any modification, amendment or re-enactment thereof;

g. a reference to writing or written includes email, and

h. any obligation on a party not to do something includes an obligation not to allow that thing to be done.

  1. Grant and Scope of Licences

Advertiser Licence

2.1. In consideration of you agreeing to abide by the terms of this Agreement and paying Fees, Xibo Adspace grants you a personal non-exclusive licence to use the Adspace Platform and Documentation as an Advertiser on the following terms:

a. Exclusivity: the licence is non-exclusive and extends to the grant of a single Advertiser Account on the Adspace Platform, to access the Display Catalogue and to run Campaigns on Inventory made available by Display Owners via the Adspace Exchange, Adspace Marketplace and Private Marketplace and to operate an Adspace Wallet;

b. Transferability: the licence is non-transferable and cannot be sublicensed;

c. Purpose: the Advertiser Account may only be used in connection with your own business purposes subject to other restrictions on use in clause 3; and

d. Term: on a monthly or annual licence, as agreed by Xibo Adspace.

Display Owner Licence

2.2. In consideration of you agreeing to abide by the terms of this Agreement and paying the Fees, Xibo Adspace grants to you a personal non-exclusive licence to use the Adspace Platform and Documentation as a Display Owner on the following terms:

a. Exclusivity: the licence is non-exclusive and extends to the grant of a single Display Owner Account to use the Adspace Platform to manage Inventory, to make the same available via the Display Catalogue and available for the display of Campaigns by Advertisers via the Adspace Exchange, Adspace Marketplace and Private Marketplace and to operate an Adspace Wallet;

b. Transferability: the licence is non-transferable and cannot be sublicensed;

c. Purpose: the Display Owner Account may only be used in connection with your own business purposes subject to other restrictions on use in clause 3; and

d. Term: on a monthly or annual licence, as agreed by Xibo Adspace

(2.1 and 2.2 shall be collectively referred to as an "Adspace Licence" and a User may operate more than one Adspace Licence at any one time).

  1. Use under an Adspace Licence

3.1. You shall not use or access or make available the Adspace Platform under an Adspace Licence contrary to any restriction stated in this Agreement or in contravention of our Acceptable Use Policy.

3.2. You are not permitted to:

a. distribute, license, sell or otherwise deal in an Adspace Licence or encumber the Adspace Platform;

b. translate, adapt, disassemble, reverse engineer or decompile the Adspace Platform, nor make any modifications, additions or enhancements to it;

c. combine, merge or otherwise permit the Adspace Platform to become incorporated in any other program or digital platform, nor arrange or create derivative works based on it, or

d. copy the Documentation, or Adspace Platform, except where such copying is incidental to normal use or for such back-ups as are reasonably necessary for operational security, provided that you keep accurate and up-to-date records of such copying,

and these prohibitions include your use and access to any part of the Adspace Platform, including any Third-Party Materials made available to you or to which you have access.

3.3. To guarantee optimal performance of the Adspace Platform it will be necessary for us, or our Sub-Contractors, to perform routine maintenance and updates for example in the case of a technical, operational or security risk, provided that the same shall always match the Documentation (as it may be amended from time to time). Such maintenance may require us to take servers off-line, typically during off-peak hours. Where reasonably possible we will always aim to give advance notice of maintenance requiring the servers to be taken off-line.

3.4. We may access your Advertiser Account or Display Owner Account on demand using an administrator account in order to provide support for your use of the Adspace Platform. In exceptional circumstances, this access may necessitate making changes to the way your access to the Adspace Platform is configured. Wherever possible we will always aim to give notice of what has been changed and the reason for such change.

3.5. It is your responsibility to keep any password provided to or chosen by you for use and access to the Adspace Platform confidential and to update the same at regular intervals. We cannot be liable for any data losses or security issues that arise as a result of a misplaced, hacked or stolen passwords.

3.6. You must ensure you comply with any Applicable Laws and Regulations in relation to your use of and access to the Adspace Platform.

  1. Adspace Services

4.1. This clause, along with the other relevant terms of this Agreement, sets out the basis on which we shall supply Services to you.

4.2. An Order constitutes an offer by you to purchase Services from us in accordance with this Agreement but acceptance of which Order shall be subject to the receipt by you of an Order Confirmation.

4.3. For so long as you validly operate an Adspace Licence:

a. Display Owner Account holders shall be entitled to:

i. list their Inventory in the Inventory Catalogue;

ii. make their Inventory available to Advertisers via the Adspace Exchange, Adspace Marketplace and Private Marketplace and to operate an Adspace Wallet;

iii. make their User Materials, including Proof of Play and Traffic Data available to us and Advertisers;

iv. accept and display Campaigns including Programmatic Advertising;

v. charge Advertisers Display Fees and incur Adspace Fees, and

vi. have access to User Support.

b. Advertising Account holders shall be entitled to:

i. access the Inventory Catalogue;

ii. make their User Materials available to us and Display Owners;

iii. access Display Owners' User Materials including Proof of Play and Traffic Data;

iv. run Campaigns via Adspace Exchange, Adspace Marketplace and Private Marketplace and to operate an Adspace Wallet;

v. incur Adspace Fees including Advertiser Fees, and

vi. have access to User Support.

4.4. Users agree to make available their User Materials to other Users where necessary for us to perform the Services, or for the Users' use of the Adspace Platform, including Proof of Play Data and Traffic Data.

4.5. Neither Xibo Adspace or the Display Owner is obliged to accept or display a Campaign and Advertiser Fees shall only be incurred in relation to Campaigns displayed to an Audience and which display is reported via Proof of Play Data.

4.6. In the event of a conflict between this Agreement and the individual terms contained in an Order or Campaign Proposal the terms of this Agreement shall prevail unless some or all of these terms are expressly disapplied by Xibo Adspace in writing.

4.7. Any quotation given by Xibo Adspace for Services is valid for a period of 30 days from its date of issue. Quotations are not binding on Xibo Adspace until an Order Confirmation has been sent.

4.8. Xibo Adspace shall:

a. provide the Services to you in accordance with the Order or any agreed Campaign Proposal from the Commencement Date for the Term or as otherwise agreed in writing;

b. use reasonable endeavours to meet any performance milestones for the Services but any such milestones, including timescales, shall be estimates only and time shall not be of the essence for the performance of any part of the Services.

c. have the right to make any changes to the Services which are necessary to comply with any Applicable Laws and Regulations, or which do not materially affect the nature or quality of the Services, and Xibo Adspace shall notify you in any such event;

d. provide User Support for Users use of the Adspace Platform;

e. use reasonable care and skill in providing the Services;

f. use reasonable commercial endeavours to clean up and remove expired Campaigns but you acknowledge that we do not own or control Display Owners' Inventory or the CMS used to engage with the Adspace Platform;

g. ensure that during the Term we hold all licences and authorisations necessary to supply the Services and to comply with our other obligations under this agreement, and

h. not do anything, nor permit anything to be done by our Sub-contractors, which infringes any rights in the User Materials.

4.9. In consideration of Xibo Adspace's performance of the Services you agree:

a. to provide all assistance to any request for information to enable Xibo Adspace or our Sub-contractors to perform the Services;

b. to pay the Fees as specified in the relevant Order or Campaign Plan or otherwise invoiced and due;

c. that the Services are personal to you and may not be assigned without the express written consent of Xibo Adspace; and

d. that you have chosen to use the Adspace Platform and ordered the Services as a result of your own due diligence and that neither the Adspace Platform, Services or Documentation have been developed specifically for you or your business sector and that the same provided to you "as is" and that it is therefore your responsibility to ensure that the capabilities, facilities and functions meet your requirements.

4.10. We reserve the right to amend any Fees by giving notice to you at any time before performance provided that any increase reflects any increase in the cost to us which is due to:

a. any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and other manufacturing costs);

b. any request by you to change the delivery date(s), quantities or types of Services ordered, including under a Campaign Proposal; or

c. any delay caused by any instructions of yours in respect of a failure by you to give us adequate or accurate information or instructions in respect of the Services.

4.11. If Xibo Adspace's performance of any aspect of the Services is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation, including as a result of your sub-contractor or agents, or failure to provide or to provide inaccurate Proof of Play or Traffic Data (User Default) we shall:

a. be entitled to suspend performance of the Services until such time as the User Default has been remedied and to be relieved from performing any obligations to the extent that we have been delayed or prevented from carrying them out;

b. not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay, or that of a Sub-contractor, to perform any of the obligations as set out in this clause 4, and

c. you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the User Default, including any User Default Fees.

  1. Term

This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 14, or either party gives the other party one month written notice to terminate.

  1. User Materials

6.1. You shall own all right, title or interest as relevant in any User Materials introduced by you to the Adspace Platform or used in relation to any part of the Services, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the same, including any Inventory Traffic Data made available to us and Users including in relation to Content Creation.

6.2. You shall be responsible for:

a. the backup, downloading and sharing of any materials exported or downloaded from the Service;

b. the use of any Third-Party Material introduced to the Services, including obtaining the necessary permissions or licences for such use and any materials uploaded or used with the Services, and

c. ensuring that all User Material and Third Party Materials provided or used by you in relation to the Services does not infringe any third party Intellectual Property, including in relation to any Content Creation.

d. ensuring that all User Material and Third Party Materials provided or used by you in relation to the Services is legal to be shown in the Inventory's location, and is not subject to any rules or restrictions for display in the Inventory location's local jurisdiction - for example but not limited to, adhering to laws on tobacco advertising, alcohol advertising or content only suitable for adults.

6.3. We shall follow our standard backup procedures for the Service, which includes the back-up of User Material.

6.4. We shall have no liability and do not warrant the legality, reliability, integrity, accuracy and quality of User's User Material made available by or to other Users.

  1. Fees and Payment

7.1. Where Campaigns are funded via the Adspace platform, we will raise invoices automatically to Advertisers on behalf of Display Owners. All fees for Campaigns placed on any of the Xibo Adspace Marketplaces must be made in full 24 hours in advance of the Campaign start date otherwise the Campaign may be cancelled and may therefore not be shown.

7.2. We shall provide to you Proof of Play Data for each Campaign accepted and displayed on Inventory and where possible Traffic Data for each Inventory (combined Data Reports). We shall endeavour to make Data Reports available via Advertiser Accounts and Display Owner Accounts as soon as is reasonably possible on receipt of such data.

7.3. Display Owners shall be entitled to keep Fees paid to them where the Proof of Play data shows that the Campaign was shown on the desired Inventory as set out in the Campaign. Where the Campaign was not shown as set out in the Campaign, then we will automatically trigger a pro-rated refund to the Advertiser from the Display Owners Adspace Wallet. Xibo Adspace shall not bear any of the cost of such refunds, and will retain its fee in full. Where Inventory fails to show Campaigns as scheduled, we will take that into account when calculating associated reliability ratings for that Inventory.

7.4. Fees shall be payable from a credit or debit card linked to the User's Adspace account.

7.5. In consideration for the provision of the Services in accordance with this Agreement you shall pay the Adspace Fees to us, which shall be calculated on the basis of the Services selected and taken. Some such fees will be deducted automatically from earnings where Xibo Adspace transacts funds for a Campaign on the Display Owners behalf.

7.6. Where an approved and funded Campaign is cancelled by an Advertiser more than 48 hours before it is due to start being shown on the selected Inventory, a full refund will be made from the Display Owner(s) to the Advertiser in respect of the Campaign via their original payment. Xibo Adspace will make reasonable efforts to prevent the campaign from being shown but cannot guarantee not to do so.

7.7. Where an approved and funded Campaign is cancelled by an Advertiser 48 hours or less before its due to start being shown on the selected Inventory, but before it is due to start, a 80% refund will be made in respect of the Campaign from the Display Owner(s) to the Advertiser via their original payment method. Xibo Adspace will retain its revenue share or fee on the remaining 20% of the transaction as set out in Schedule 1. Xibo Adspace will make reasonable efforts to prevent the campaign from being shown but cannot guarantee not to do so.

7.8. Where an approved and funded Campaign is cancelled by an Advertiser after it is due to start, we will make reasonable efforts to stop showing the campaign but cannot guarantee to do so. A refund will be made from the Display Owner(s) to the Advertiser in respect of the Campaign via their original payment method. The refund amount shall be calculated the higher of 0%, or 80% less the prorated amount of the campaign due to be shown at the time the cancellation request was processed.

7.9. Where an approved and funded Campaign is cancelled in whole or in part by a Display Owner, a full refund will be made from the Display Owner to the Advertiser in respect of the Campaign via their original payment method.

7.10. Where a refund is made to an Advertiser as set out in clauses 7.6-7.9, the cost of the refund will be split pro-rata between the Display Owner and Xibo Adspace.

7.11. Where an approved Private Marketplace campaign is cancelled, where funds were transacted outside of Xibo Adspace, no refund will be made in respect of Adspace Fees charged in relation to the Campaign as set out in Schedule 1.

7.12. Where a Display Owner cancels an approved or funded Campaign, we may take that into account when calculating that Display Owners Inventory's reliability rating.

7.13. Where we cancel an approved or funded Campaign for any reason, a full refund will be made to the Advertiser via their original payment method, except where at our sole discretion, we deem the Advertiser has acted improperly or misrepresented the Campaign, in which case refunds will be made as if the Advertiser had cancelled as set forth above in clauses 7.6-7.9.

7.14. We shall invoice you and/or process payment of any Fees due to be paid by you or to be paid to you on a net basis monthly in arrears for the Services selected and taken. Any Adspace Fees due shall be withdrawn automatically by us from your saved card linked to your account.

7.15. All Fees or other payments shall be:

a. exclusive of any VAT or any other sales tax, levies, charges or duties, which, where applicable, shall be payable by you in addition;

b. paid in the currency indicated at the time of purchase or as set out in the relevant invoice, and

c. paid without any withholding or set-off.

7.16. Late payments of any Fees owed shall be subject to interest in accordance with The Late Payment of Commercial Debts (Interest) Act 1998 from when the overdue sum became due, until it is paid.

7.17. We reserve the right to change Fee rates and/or terms of any Adspace Licence by giving reasonable written notice of any changes. No new Fee or licence terms will be imposed before the expiration of any existing licence but may be applied on monthly or annual renewal. Notice of Fee changes will be given by e-mail to the address registered on the Adspace Platform at the.

7.18. You warrant that you are lawfully authorised to make payments using the payment facility you disclose to us for your use of the Services.

7.19. You shall fully indemnify us in the event that a payment provider (including cardholder, issuer or financial institution) declines any Fee payment, including all costs incurred in administering a non-payment and obtaining payment of the Fee due.

7.20. Liability for any Display Fees due to Display Owners lies solely with the Advertiser and not with Xibo Adspace.

7.21. Payments processed by third party payment processors are subject to those processor's own terms and conditions of service, and we make no representations or warranties with respect to those terms.

7.22. Any overpayment or credit notes may at our sole discretion be used against any Fees due. Where the value of the overpayment or credit note is less than the Fee due the remainder of the balance shall be payable by you.

  1. Our Right of Suspension of the Services

8.1. We may suspend some or all of the Services to you in order to:

a. deal with technical problems or make minor technical changes to the Adspace Platform, or

b. update the Adspace Platform to reflect changes in the Applicable Laws and Regulations.

8.2. In addition to the other rights and remedies set out in this Agreement we may, at our sole discretion, and with immediate effect by giving written notice to you, suspend any Adspace Licence and the supply of the Services if:

a. you fail to pay any amount due under this Agreement on the due date for payment, or within 7 days of being reminded that payment is due; or

b. you suffer or you become (or we reasonably believe you will become) subject to an insolvency or administration or insolvency, or administration-type event or are (or we reasonably believes you will become) unable to pay your debts as they fall due; or

c. you consistently or materially breach the terms of this Agreement.

8.3. On suspension or termination of this Agreement for any reason you shall immediately pay all outstanding Fees due to us or any other Users to whom Fees are due, including any unpaid invoices and any applicable interest including any Fees accrued or due in relation to a period of suspension. The accrued rights and remedies of Xibo Adspace at termination shall not be affected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of suspension, termination or expiry of this Agreement or Adspace Licence.

  1. Ownership of Intellectual Property

9.1. Except for a Adspace Licence to use the Adspace Platform as expressly granted above, you shall not acquire in any way, any title, rights of ownership, or interest in any Intellectual Property in the Services or Adspace Platform or in any part of it, or in any copies of it and no ownership of the Intellectual Property of any party is transferred to another as a result of this Agreement.

9.2. User Materials made available under an Adspace Licence shall at all times remain the exclusive property of the User but you shall grant to us, our Sub-Contractors and other Users, including Display Owner's on who's Inventory the User Materials are intended to be displayed, including in the form of Campaigns, a non-exclusive, royalty-free, worldwide, perpetual irrevocable licence to use the same for the Campaign or the Term of this Agreement, whichever is longer.

9.3. We in no way sell, give or grant to you any ownership or a licence, where none is available for us to give, including in respect of any Third-Party Materials or other User's User Materials, non-proprietary code, components or materials comprising or incorporated into the Adspace Platform or any Services.

9.4. You acknowledge that the Services supplied to you under this Agreement comprise confidential and proprietary information and you shall not conceal, modify, remove, destroy or alter in any way any proprietary Intellectual Property or trade marks of Xibo Adspace, our licensors, or any other Users made available to or accessed by you in the Services except as permitted by this Agreement.

9.5. You have no right to have access the Adspace Platform or Services in source code form other than as expressly provided in this Agreement.

9.6. If you promptly notify us in writing of any defect or fault in the Adspace Platform or the Services as a result of which it fails to perform substantially as set out in this Agreement, including in accordance with the Documentation, or for any infringement of a third party's Intellectual Property which you suspect or become aware of, we will, at our sole option, either:

a. procure for you the right to continue using the Adspace Platform and Services; or

b. endeavour to modify or replace the defective, faulty or infringing part of the Adspace Platform or Services without materially affecting the functionality as set out in this Agreement so as to avoid the defect, fault, infringement or alleged infringement, and

c. provided that if, we having used reasonable endeavours, neither of the above can be accomplished on reasonable commercial terms, we shall refund any Adspace Fees paid by you in respect of the Services.

9.7. Clause 9.5 shall be your sole remedy in respect of the Adspace Platform or Services being defective, faulty or infringing the Intellectual Property of a third party, and in respect of which you shall make available all the information that may be necessary to help us to identify and remedy the defect or fault, or infringement.

  1. Confidentiality

10.1. Confidential Information means all confidential information (however recorded or preserved) disclosed by either of us to one another (or our authorised representatives) in connection with the provision of the Services, including but not limited to:

a. any information that would be regarded as confidential by a reasonable business person relating to:

i. the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party; and

ii. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party; and

b. any information developed by the parties in the course of carrying out this agreement.

Representatives means, in relation to a party, its employees, officers, representatives and advisers.

10.2. The provisions of this clause shall not apply to any Confidential Information that:

a. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);

b. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

c. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

d. the parties agree in writing is not confidential or may be disclosed; or

10.3. Each party shall keep the other party's Confidential Information confidential and shall not:

a. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or

b. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

10.4. A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

a. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

b. at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.

10.5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

10.6. On termination of this agreement, each party shall:

a. destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information, and

b. erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable).

10.7. The provisions of this clause 10 shall continue to apply after termination of this agreement.

  1. Data protection

11.1. You agree that in supplying the Services to you Xibo Adspace is a data processor and you are the data controller and that you shall comply with all applicable requirements of the Data Protection Legislation and as set out in the Xibo Adspace Data Processing Agreement which shall be incorporated in full into this Agreement.

  1. Representations and warranties

12.1. Each party represents and warrants to the other that it has the authority and requisite corporate power to enter into this agreement without obtaining the consent of any third party.

12.2. We do not warrant or represent that the Adspace Platform or Services shall be:

a. uninterrupted or error free, or

b. compatible with third party software or equipment, proprietary platform or open source code or solution, other than that described in the Documentation.

12.3. Any warranties given by us shall be subject to you using Adspace Platform, or any part of it, or Services in compliance with this Agreement or Adspace Licence and the Documentation, and we shall not be liable under this clause for, or required to remedy, any problem arising from:

a. a failure to install any update, patch, fix or improvement previously made available or provided to you by us;

b. any modification, alteration or repair made by anyone other than us without our express prior written consent; or

c. any defect or error wholly caused by any equipment or third-party software used in connection with the Adspace Platform, or any part of it, or Services other than that described in the Documentation or made known to you by us;

d. you failing to follow our oral or written instructions as to your use of or access to the Adspace Platform or any part thereof, or Services or (if there are none) good trade practice regarding the same;

e. the defect arising as a result of us following any instruction given by you, or

f. as a result of changes made to ensure that compliance with Applicable Laws and Regulations.

12.4. All other warranties and representations as to the Adspace Platform or any part thereof, or Services, or any part thereof, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.

12.5. You warrant to us that our use or possession of your User Materials, including through your use of the Adspace Platform and Services, shall not infringe the Intellectual Property or proprietary rights of any third party and shall not be defamatory, libellous, obscene, offensive or otherwise contravene our Acceptable Use Policy.

12.6. You warrant that you shall not use any of our Intellectual Property, Third-Party Materials or another User's User Materials except as permitted by this Agreement and the Advertiser shall have sole responsibility and bear full liability for the content of any Campaigns and in respect of which we shall have no liability whatsoever.

12.7. You shall indemnify us and any Users of the Adspace Platform and Services with which you engage against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred (Losses) arising out of or in connection with any third-party claims or any action, adjudication or decision taken against us, in each case directly or indirectly arising (in whole or in part) out of any breach by you of this clause 12.

12.8. We shall have sole and complete control of any litigation or other proceedings arising out of any unauthorised use of our Intellectual Property or Third-Party Materials or any third-party claim against you or us in respect of the Adspace Platform or Services and you shall provide us with all assistance as may be reasonably required by us to prosecute, defend or settle any such claim. You shall not take any action which might be reasonably anticipated to compromise any such claim and you shall not have any right to initiate any proceedings without our written consent

12.9. Where you act as a Display Owner, you warrant that the information you provide regarding the location, size, orientation, traffic data, or any other submission regarding the makeup of your inventory is accurate and can be relied upon by an Advertiser when they make choices about where they may want to advertise.

  1. Limitation of liability

13.1. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, or Sub-Contractors or for fraud or fraudulent misrepresentation.

13.2. We will not be liable for damage that you could have avoided by following our advice to apply an update offered to you or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us, including as set out elsewhere in this Agreement.

13.3. If you use the Adspace Platform or the Services for any commercial, business or resale purpose we shall have no liability to you for any loss of profit, loss of sales or business or business interruption, loss of contracts, loss of reputation or goodwill, loss or corruption of data, loss of anticipated savings or loss of business opportunity.

13.4. Subject to the following, in no event shall the aggregate liability of any party to the other (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement or Services exceed:

a. the value of any Adspace Fees paid by you in relation to the Services in respect of any one claim or series of related claims; and

b. provided that this shall be subject to an overall limit of the Adspace Fees paid in the preceding 12 months before the claim arose under this Agreement in respect of any and all claims, losses and damages arising under or in connection with this Agreement or the Services.

13.5. One party's liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement or the Services shall not extend to any special, indirect or consequential loss or damage whatsoever.

13.6. Notwithstanding the above neither party excludes or limits any liability for any other liability to the extent the same cannot be excluded or limited by law.

  1. Termination

14.1. We may terminate this Agreement or Adspace Licence with immediate effect by giving written notice to the you if:

a. you commit a material or persistent breach of any term of this Agreement;

b. you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or we reasonably believe this to be the case, or you commence negotiations with any class of its creditors with a view to rescheduling any of your debts, file a petition for or an order is given for winding up, or make an application or an order is made for the appointment of an administrator or receiver, or any event occurs, or proceeding is taken, in any jurisdiction that has an effect equivalent or similar to any of the events mentioned here or might otherwise be deemed an insolvency event.

14.2. In any event either of us may terminate this Agreement on one month's written notice however an Adspace Licence will not end until 1 calendar month after the day on this notice is given. We will issue a pro rata credit note in respect of any advance payment you have made for services which will not be provided to you.

14.3. Upon expiry or termination of this Agreement for any reason:

a. all rights granted to you under this Agreement or any Adspace Licence shall immediately cease;

b. you must immediately cease all activities authorised by this Agreement or any Adspace Licence;

c. you must immediately delete or remove any other User's User Materials, or any Third-Party Materials or any of our Intellectual Property from all equipment in your possession, including a CMS, and immediately destroy or return (at our option) all copies then in your possession, custody or control and, in the case of destruction, certify to us that you have done so;

d. any Fees due to be paid by you shall be paid immediately in full immediately pay to the other without any withholding or set-off all outstanding unpaid invoices in accordance with the payment terms herein, and

e. the User shall withdraw any funds remaining in their Adspace Wallet except for any Fees due to be paid and any funds that are not entitled to be withdrawn

14.4. Suspension, termination or expiry of this Agreement shall not adversely affect any rights existing as of the effective date of suspension, termination or expiry and the accrued rights and remedies provided in this Agreement are cumulative and in addition to any other rights or remedies available at law or equity, including the right to claim damages, in respect of any breach of a contract which existed at or before the date of suspension, termination or expiry of this Agreement and any terms meant to survive suspension, termination or expiry shall survive.

14.5. Consequences of Termination On expiry or termination of this agreement:

a. we shall immediately cease all further performance of the Services and your access to the Adspace Platform, except as otherwise agreed in writing by us;

b. take payment from your saved payment card for any outstanding Fees due and invoice you for any Fees not covered by the funds available from your Adspace Wallet, which invoice(s) you shall pay within 14 days of issues.

c. we shall return or make available for a further 7 days any User Materials stored in the Adspace Platform and after which time we will delete any User Materials within our possession or stored the Adspace Platform;

d. you shall execute any documents or take any actions which we reasonably request in order to formalise the end of the relationship between you and us.

14.6. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

  1. Notices

15.1. Any notice given to a party under or in connection with this agreement shall be in writing and any notice to be sent to the client shall be sent to email or contact details provided at the date this Agreement is entered into.

  1. Severance

16.1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

  1. Communications between us

17.1. If you wish to contact us in writing, or if any condition in this Agreement or Adspace Licence requires you to give us notice in writing, you can contact us via email at support@xibo-adspace.com.

17.2. If we have to contact you, we will do so by email or other form of electronic communication.

17.3. You should ensure that any xibo-adspace.com, xibosignage.com or xibo.org.uk email addresses are white listed in any email spam filtering.

17.4. You must ensure that you maintain a valid email address in relation to your obligations under this Agreement. This should be recorded in the Advertiser Account or Display Owner Account. Failure to maintain a valid email address may result in suspension of your Adspace Licence.

  1. Mitigation

18.1. In respect of any loss or damage suffered or incurred by either party under this Agreement or Adspace Licence, the party which receives the benefit of the indemnity shall take all reasonable steps to reduce or mitigate the loss or damage incurred.

  1. Entire agreement

19.1. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement.

19.2. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.

  1. Force Majeure

20.1. A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration, and uses reasonable endeavours to minimise the effects of that event.

20.2. If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than 60 days, the other party may, within a further 14 days terminate this Agreement or Adspace Licence on notice, otherwise this Agreement or Adspace Licence shall continue in full force and effect.

  1. Other important terms

21.1. We may assign, subcontract or encumber any right or obligation under this Agreement or Adspace Licence, in whole or in part. You may not assign, subcontract or encumber any right or obligation under this Agreement or Adspace Licence, in whole or in part, without the prior written consent of Xibo Adspace or except as expressly permitted in this Agreement.

21.2. No amendment or variation of this Agreement or Adspace Licence will be valid unless agreed in writing by an authorised signatory.

21.3. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement except as otherwise set out in this Agreement.

21.4. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.

21.5. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any clauses are unlawful, the remaining clauses will remain in full force and effect.

21.6. Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

21.7. Provisions which by their terms or intent are to survive termination of this Agreement will do so.

21.8. The parties are independent and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.

21.9. Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.

  1. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  1. Governing law and jurisdiction

This Agreement is governed by the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to hear any dispute in relation to it (or part thereof), subject to any applicable statutory consumer regulations.

Schedule 1 - Fees

Inventory Fees

Nil - Display Owners can list their Display Inventory on Adspace free of charge.

Advertisement Fees

Private Marketplace - $1 per Display per Campaign where transacted outside of Adspace

Private Marketplace - 8% of total invoiced to Advertiser where transacted via Xibo Adspace

Adspace Marketplace - 18% of total invoiced to Advertiser

Adspace Exchange - up to 15% - 40% of total invoiced to Advertiser

Admobilize Fees

$120 per display per year in addition to Advertisement fees.

Example:

Display Owner A has 10 Displays listed on Adspace Marketplace for which they charge a rate of 1 cent per second. Advertiser B places a Campaign with an ad duration of 8 seconds for 1000 guaranteed plays of that ad.

Advertiser B is invoiced for $800.00 and Display Owner A receives a deposit to their Adspace Wallet for $656.00 (82% of the revenue).

The Campaign runs and proof of performance data is reconciled, showing that the advert played 950 times. Advertiser B receives a refund to their original payment method of $40.00 (5% representing the 5% of their campaign that was not shown as contracted). Display Owner A has $40.00 deducted from their Adspace Wallet.

Cancellation Refund Example:

Display Owner A has 10 Displays listed on Adspace Marketplace for which they charge a rate of 1 cent per second. Advertiser B places a Campaign with an ad duration of 8 seconds for 1000 guaranteed plays of that ad.

Advertiser B is invoiced for $800.00 and Display Owner A receives a deposit to their Adspace Wallet for $656.00 (82% of the revenue).

Advertiser B decides to cancel their campaign 40% of the way through the time over which the campaign is due to run.

A refund is made from Display Owner A to Advertiser B for $320. This is calculated as the greater of 0% and 80% less campaign progress. 80% - 40% = 40%. A refund of 40% is therefore made.

Had the cancellation been made after the campaign was 80% of the way through the time over which the campaign is due to run, no refund would be due.

Had the cancellation been made 24 hours before the Campaign was due to start, a refund of 80% would have been due.