Last updated: May 2019
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in these
Advertisement Revenue: any revenue generated through the display of advertisements and/or other promotional content on the Platform or Services;
Applicable Law: laws of England and Wales and any other laws or regulations, regulatory policies, statutes, guidelines or industry codes which shall be relevant from time to time;
Authorised Users: those employees, agents and independent contracts of the Publisher who are authorised by the Publisher to use the Platform;
Business Day: a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business;
Commencement Date: shall have the meaning set out in paragraph 2 of the Term Sheet;
Commercial Agreement: a prior written agreement between Opinion Token and the Publisher to monetise the Platform or Services;
Conditions: the terms and conditions set out in this document, as amended from time to time in accordance with clause 20.2;
Content: refers to any material or content that is created, uploaded, transferred, posted or made available by the Publisher through the Platform or Services, including any textual, graphic, visual or audio content.
Contract: the contract between Opinion Token and the Publisher relating to provision of the Services, which shall comprise the Term Sheet and the Conditions;
Control: the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise;
Fraudulent Traffic: includes, but is not limited to, using scripts or other devices to artificially inflate traffic counts, encouraging users to click on content or a banner or pop-under via points, inserting material on any page that automatically reloads or forwards to another page without interaction from the visitor of any Publisher Site or on pages not visible to the general public or another reward systems, auto-spawning of multiple browsers and automatic redirects.
Intellectual Property Rights: patents, copyright and neighbouring 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 or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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;
Normal Business Hours: 9:00am to 6:00pm local UK time on any day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Platform: Opinion Token’s platform which provides the ability to create, embed, share and review interactive content on websites and applications offered by online content providers;
Required Documentation: the documentation listed in paragraph 5 of the Term Sheet;
Services: those services detailed in paragraph 3 of the Term Sheet;
Term: the term of the Contract
Third Party Tools: refers to third party features, tools, services and/or content which may include, without limitation, images, GIFs, videos and animations; and Website: the website at [dotaudiences.com].
1.2 Words in the singular shall include the plural and vice versa.
1.3 A reference to any party shall include that party’s personal representatives,
successors or permitted assigns.
1.4 A reference to a statute or statutory provision is a reference to it as amended,
extended or re-enacted from time to time.
1.5 A reference to writing or written includes fax and e-mail.
2.1 Subject to the terms of the Contract hereof, Opinion Token shall grant to the Publisher a non-exclusive, non-assignable licence for the duration of the Term to use the Platform to display content on any Publisher Site.
2.2 Whilst Opinion Token will use its reasonable endeavours to ensure that the Platform remain online and accessible at all times, it does not guarantee that the Platform, or any content on it, will always be available or be uninterrupted particularly as a result of:
(a) planned maintenance, which Opinion Token will undertake outside of
Normal Business Hours; or
(b) unscheduled maintenance, of which Opinion Token will use
reasonable endeavours to notify the Publisher at its earliest
convenience if it is to be undertaken during Normal Business Hours.
3.1 The Publisher will be required to register with Opinion Token prior to using the Platform and/or Services this will involve signing up for an account through our website via either an email or a social media account.
3.2 The Publisher warrants that all information provided to Opinion Token in the registration process shall be true, accurate and not misleading.
3.3 In the event that any of the information provided to Opinion Token by the Publisher becomes inaccurate, the Publisher shall notify Opinion Token without delay.
4. USE OF ACCOUNT
4.1 The Publisher shall only provide Authorised Users with access to the Platform
4.2 The Publisher acknowledges that:
(a) the maximum number of Authorised Users that it shall authorise to use the Platform shall not exceed 20;
(b) each Authorised User shall keep a secure password for their use of the Platform which they shall keep confidential; and
(c) it shall be liable for all actions of its Authorised Users on the Platform.
5.1 The Platform will allow the Publisher to post or upload Content to be included in the interactive templates provided as part of the Platform.
5.2 The Publisher shall remain at all times solely responsible for its Content.
5.3 The Publisher represents and warrants that no Content infringes the Intellectual Property Rights, privacy rights, moral or other rights of any third party or violates any Applicable Law.
5.4 The Publisher will not post or make available any Content that: (a) posts, stores, transmits, offers, or solicits anything that contains, or that it knows contains links to:
(i) offensive material (including material promoting or glorifying hate, violence, bigotry, or links to any entity principally dedicated to such causes or items associated with such an entity);
(ii) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening;
(iii) pornography (including any obscene material, and anything depicting children in sexually suggestive situations whether or not depicting actual children) or may be harmful to a minor;
(iv) any security hole, virus, worm, trojan horse, or other harmful or disruptive component; or
(v) anything that encourages conduct that would be considered a criminal offence, give rise to civil liability, violate any law or regulation or is otherwise inappropriate,
(b) obtains or solicits another person’s password or other personal information under false pretenses;
(c) violates the legal rights of others, including defaming, abuse, stalking or threatening users;
(d) infringes (or results in the infringement of) the Intellectual Property Rights, moral, publicity or privacy rights of any third party; or
(e) is (or the Publisher reasonably believes to be) illegal, fraudulent, or unauthorised, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or the Publisher reasonably believes to nvolve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material.
5.5 Opinion Token reserves the right, at its sole discretion, to remove (or cause to be removed) without notice any Content if it has good reason to believe that such Content violates these Conditions, or for any other reason in its Discretion.
5.6 Opinion Token does not claim ownership of any Content, but the Publisher grants Opinion Token a worldwide, non-exclusive, royalty-free, transferrable perpetual license to use, edit, modify, adapt, record, perform, display and/or reproduce such Content in any manner whatsoever, including without limitation for the purpose of improving and/or commercially promoting Opinion Token, the Platform and/or the Services.
6. THIRD PARTY TOOLS, FEATURES AND SERVICES
6.1 The Third Party Tools made available for the Publisher’s use through the templates on the Platform may be added, removed or altered from time to time, at Opinion Token’s sole discretion.
6.2 Although Opinion Token has the licenses and permissions to make such Third Party Tools available via the Platform and/or Services, the integration and use of such Third Party Tools are made at the Publisher’s risk and responsibility, and it is highly recommended that the Publisher checks its own terms and conditions to ensure compliance before using any of Third Party Tools.
6.3 Opinion Token does not control, endorse or assume any responsibility for any Third Party Tools.
7.1 The Publisher shall not:
(a) commercialise the Platform or Services in any way without an executed Commercial Agreement or without the prior written approval of Opinion Token; and
(b) place any advertisements, using the Platform or Services, without the prior written approval of Opinion Token.
7.2 Notwithstanding the contrary herein, Opinion Token may, regardless of the existence of a Commercial Agreement, display advertisements and/or other promotional content provided by Opinion Token’s third party advertisers on the Platform or Services.
7.3 The Publisher agrees that Opinion Token shall have no monetary or other obligation towards the Publisher with respect to the advertisements and/or other promotional content referred to in clause 7.2 and that all Advertisement Revenue shall belong to Opinion Token, unless otherwise agreed between the Publisher and Opinion Token.
8.1 Except as expressly permitted in these Conditions, the Publisher shall not:
(a) use the Platform or Services to display Content on the website, application, mobile app or other online presence of any third party;
(b) reverse engineer, decompile or attempt to find the underlying code of the Platform or the Services;
(c) modify the Platform or Services;
(d) modify, change, interfere with or otherwise abuse any code, iFrame or script related to the Platform or Services;
(e) copy, frame or mirror the Platform or Services;
(f) use the Platform or Services to provide services to any third party;
(g) use the Platform or Services to store or transmit any viruses, worms, time bombs, Trojan horses, or any other harmful or malicious code, files, scripts, agents or programs;
(h) engage with hacking or phreaking of any code, program or file including the Platform or Services;
(i) sublicense, distribute or provide any third party with access to the Platform or Services;
(j) use the Platform or Services in any manner not permitted by these Conditions;
(k) engage in, directly or indirectly, Fraudulent Traffic; and
(l) violate any third party rights through its use of the Platform or Services and shall be solely responsible for its compliance with any Applicable Law.
9. OPINION TOKEN’S OBLIGATIONS
9.1 Opinion Token undertakes that the Services will be performed with reasonable skill and care.
9.2 The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Opinion Token’s instructions, or modification or alteration of the Services by any party other than Opinion Token or Opinion Token’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Opinion Token will use all reasonable endeavours to correct any such non-conformance promptly, or provide the Publisher with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 9.1 Notwithstanding the foregoing, the Supplier:
(a) does not warrant that Opinion Token’s use of the Platform will be uninterrupted or error-free; or that the Services and/or any information obtained by the Publisher through the Services will meet the Publisher’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Publisher acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.3 This agreement shall not prevent the Publisher from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this contract.
10.1 Opinion Token shall pay to the Publisher all payments due under paragraph 4 of the Term Sheet.
10.2 Payment shall become due to the Publisher on the payment terms set out in paragraph 4 of the Term Sheet.
10.3 If any dispute arises as to the amount of payments payable to the Publisher, the same shall be referred to Opinion Token’s auditors for settlement and their certificate shall be final and binding on both parties.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Opinion Token shall own all rights, title and interest in the Intellectual Property Rights in the Platform and Services, all software that provides the Platform and all features, templates and content made available by Opinion Token to the Publisher through the Platform or Services.
11.2 The Publisher warrants that it owns all Intellectual Property Rights and has the right to use such Intellectual Property Rights in any logo it sends to Opinion Token and any other Content.
11.3 Nothing in these Conditions shall be interpreted to provide the Publisher any rights in the Platform or Services except the limited right to use the Platform or Services subject to the Conditions hereof.
11.4 Nothing in these Conditions shall be deemed to assign any Intellectual Property Rights in any Publisher Site to Opinion Token.
12. CUSTOMER DATA AND PRIVACY
12.1 The Publisher will own all the data uploaded to the Platform.
12.2 Opinion Token shall not be liable for the loss, destruction or modification of any such data uploaded to the the Platform.
13.1 To the extent permitted by law, the Publisher shall indemnify Opinion Token against any cost, loss, damage or other liability arising from any third party demand or claim relating to:
(a) a breach of clause 5.4 by the Publisher; or
(b) a breach of any restriction in clause 8.1 by the Publisher.
14. LIMITATION OF LIABILITY
14.1 Nothing in the Contract shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation or wilful default;
(c) any matter in respect of which it would be unlawful for such party to exclude or restrict liability; and
(d) the indemnity provided by the Publisher in clause 13.
14.2 Subject to clause 14.1:
(a) Opinion Token shall under no circumstances whatsoever be liable to the Publisher, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(i) any loss of profit, revenue, or anticipated savings; or
(ii) any indirect, special or consequential losses; and
(b) Opinion Token’s total liability to the Publisher in respect of all other loss or damage arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not (unless otherwise agreed in writing between the parties) exceed the aggregate payments made by the Publisher to Opinion Token in the year immediately preceding the breach (or, if in the first year, the period from the Commencement Date to the date of the breach).
15.1 The Contract shall take effect on the Commencement Date and, subject to clause 15.2, shall continue in force for the Term.
15.2 Without affecting any other rights or remedies to which it may be entitled, Opinion Token may provide notice in writing to the Publisher terminating the Contract immediately if:
(a) the Publisher commits a material breach of any term of the Contract and (if that breach is remediable) fails to remedy that breach within 15 days of that party being required in writing to do so;
(b) the Publisher repeatedly breaches any of the terms of the Contract in a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(c) an order is made or a resolution is passed for the winding up of Publisher, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or such an administrator is appointed, or a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to make a winding-up order, or the other party takes or suffers any similar or analogous action in consequence of debt, or an arrangement or composition is made by the other party with its creditors or an application to a court for protection from its creditors is made by the other party;
(d) the Publisher suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(e) any event occurs, or proceeding is taken, with respect to the Publisher in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2
(d) to (f) (inclusive); or
(f) there is a change of Control of the Publisher.
15.3 The Publisher can advise Opinion Token of it’s intent to disconnect the service at any time, however the publisher must commit to providing 30 days notice before removing ad codes from their pages, either by post or via email to [email protected], unless this removal has been requested by Opinion Token.
The Publisher agrees that Opinion Token has the right to use the Publisher’s name and logo for advertising and publicity purposes and may refer to the existence of their relationship on the Website, in press releases, advertising or marketing materials.
17. CONSEQUENCES OF TERMINATION
17.1 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
17.2 The licence granted pursuant to clause 2.1 shall terminate on termination of the Contract.
17.3 On termination of the Contract the following clauses shall continue in force:
(e) 21; and
18.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as provided by clause 18.2.
18.2 Each party may disclose the other party’s confidential information: (a) to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 18; and
(b) as may be required by law, court order or any governmental or regulatory authority.
18.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
19. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months or more, either party may terminate the Contract by giving 28 days’ written notice to the affected party.
20.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 No amendment or variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20.3 The Publisher shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract, without the prior written consent of Opinion Token.
20.4 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
20.5 If any provision or part-provision of the Contract 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 the Contract.
20.6 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (or any other applicable legislation) to enforce any term of the Contract.
20.7 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
20.8 If there is an inconsistency between any of the provisions in these Conditions and the Term Sheet, the provisions in the Term Sheet shall prevail.
20.9 The Contract is drafted in the English language. If the Contract is translated into any other language, the English language text shall prevail.
21.1 Any notice given under or in connection with the Contract shall be in the English language.
21.2 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office.
21.3 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
21.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22. GOVERNING LAW AND JURISDICTION
The Contract 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 the law of England and each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any such dispute or claim.