In these Conditions, the following definitions apply:
Advertising: the provision of advertising and promotional content services via the Website, as more particularly set out in the Order.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Client for the Services in accordance with clause 7.
Client: the person or firm who purchases the Services from SIFT.
Client Content: the text, images, electronic files/media and/or other materials provided to SIFT by the Client in connection with the Services.
Commencement Date: the date on which Advertising and/or Event Sponsorship shall commence, as set out in the Order, agreed by the parties or otherwise within a reasonable period of time from the Effective Date.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.7.
Contract: the contract between SIFT and the Client for the supply of the Services in accordance with these Conditions.
Effective Date: has the meaning set out in clause 2.2.
Event Sponsorship: the provision of advertising and promotion in connection with organised events, as more particularly set out in the Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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.
Order: the Client’s order for the Services as set out on SIFT’s order form.
Services: means the provision of SIFT Content, Advertising, Event Sponsorship, and/or any other services which SIFT agrees to provide, as set out in the Order.
SIFT: SIFT Limited, registered in England and Wales with company number 3230061
SIFT Content: any text, images, electronic files/media and/or other materials, digital or otherwise, created by SIFT in connection with the performance of the Services.
Website: the website(s) owned and/or operated by SIFT.
In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and emails.
The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
The Order shall only be deemed to be accepted when SIFT issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Effective Date). Notwithstanding the foregoing, SIFT may commence the Services without issuing written acceptance, in which case the Contract shall come into existence on commencement of the Services and Effective Date shall be construed accordingly.
The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of SIFT which is not set out in the Contract.
Any samples, drawings, descriptive matter or promotional information issued by SIFT, and any descriptions or illustrations provided by SIFT, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by SIFT shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
In the event that a contract is formed between SIFT and an advertising agency on behalf of a third party, the advertising agency shall be responsible for procuring its client’s compliance with these Conditions.
Subject to the Client’s performance of its obligations under these Conditions, SIFT shall supply the Services to the Client in accordance with the Order in all material respects for the agreed duration.
SIFT shall use all reasonable endeavours to provide the Services from the Commencement Date, but time for performance of the Services shall be an estimate only and shall not be of the essence of the Contract.
SIFT warrants that the Services will be provided using reasonable care and skill.
Unless otherwise agreed, no representations, warranties or guarantees are given that the Services will achieve any particular results or outcomes.
Where the provision of the Services involves the use of Client Content, the Client shall deliver such Client Content to SIFT:
(a) in the case of standard text or images (for example, logos, advertising banners, slogans, or company information), at least 4 Business Days in advance of the Commencement Date for the Services; or
(b) in the case of promotional or editorial content or other non-standard content (for example, promotional articles, news features, opinion pieces, guides, product comparisons, or video/audio material), in accordance with the Order or otherwise at least 20 Business Days in advance of the Commencement Date for the Services.
The Client shall provide the Client Content in whatever format and on whatever media SIFT may reasonably require.
SIFT shall have the right (but not the obligation) to review all Client Content prior to publication. In the event that it objects to the Client Content on reasonable grounds (including, by way of example, because the file format, size or appearance of the Client Content is unsuitable, or because the Client Content does not meet SIFT’s editorial standards), it shall notify the Client, which shall promptly make such adjustments to the Client Content as SIFT reasonably requires and re-submit the Client Content for further review in accordance with this clause.
Where the provision of Advertising involves the creation and/or use of SIFT’s Content, the parties shall jointly agree the specification of such SIFT Content in advance. SIFT shall deliver the SIFT Content to the Client for review prior to publication. To the extent that the SIFT Content differs from the agreed specification, or is otherwise inaccurate, the Client may (within 3 Business Days) request reasonable adjustments to be made to the SIFT Content. SIFT shall make such adjustments promptly and re-submit the SIFT Content to the Client for further review.
Any requests for amendments or additional content which are not necessary to correct an error or render the SIFT Content compliant with the specification are beyond the scope of clause 4.4. SIFT shall not be obliged to make such changes or additions and, if it agrees to do so, it shall be entitled to charge for its additional time spent at its standard rates.
SIFT shall have the right to make any changes to the Client Content and/or the provision of the Services which are necessary to comply with any applicable law or any technical, formatting, or design requirement, provided that such changes do not materially adversely affect the nature or quality of the Services.
SIFT has the full discretion as to the operation of the Website and the content thereon, including all content and other advertisements displayed in conjunction with or around the Advertising. SIFT shall use all reasonable endeavours to procure that the Website shall not contain any illegal or inappropriate content which would have an adverse impact on the Client’s brand (including pornography, gambling, violent, or discriminatory content), provided that, so long as it maintains reasonable moderation practices, SIFT cannot be held responsible for user-generated content.
SIFT does not warrant or represent that the Advertising will be displayed to users of the Website on a permanent basis, or that the availability of the Website will be uninterrupted or error-free.
The Client agrees that it shall not use, in conjunction with the Advertising, any embedded tags or tracking tools which enable it to track users of the Website and/or obtain user data.
SIFT shall, from time to time, deliver reports to the Client regarding the performance of the Advertising. SIFT shall use its reasonable endeavours to comply with an ad-hoc request for a report within 5 Business Days, provided that it may decline excessive requests.
The Client shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) ensure that the Client Content is true, accurate and complete and does not contain any material which is illegal, inappropriate or which may infringe any third party rights;
(c) ensure the Client Content is of sufficient quality to be displayed as intended;
(d) ensure that it will be clear to those who view the Client Content, that such content is an advertisement;
(e) co-operate with SIFT in all matters relating to the Services;
(f) provide SIFT with such other instructions, information and materials as SIFT may reasonably require in order to supply the Services, and ensure that the same is complete and accurate in all material respects;
(g) ensure that the Client Content and any other materials provided to SIFT electronically does not contain any malicious code or material, including but not limited to targeting cookies, viruses or spyware; and
(h) obtain and maintain all necessary licences, permissions and consents which may be required in connection with the Services.
If SIFT’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) SIFT shall without limiting its other rights or remedies have the right to delay or suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays SIFT’s performance of any of its obligations;
(b) SIFT shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from SIFT’s failure or delay to perform any of its obligations as set out in this clause 6.2; and
(c) the Client shall reimburse SIFT on written demand for any costs or losses sustained or incurred by SIFT arising directly or indirectly from the Client Default.
The Client warrants and represents that:
(a) the Client Content shall be true and accurate and shall not contain anything which is or may be unlawful, misleading, offensive, defamatory, or otherwise inappropriate;
(b) the Client Content shall comply with all applicable advertising codes and regulations, including the “UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing”;
(c) it owns, or has the lawful right to use, the Client Content and to provide the same to SIFT for the purposes of the Contract.
SIFT shall have the right to reject any Client Content, or remove the Client Content from publication, if SIFT reasonably believes that the Client Content, or any websites, content or materials accessible via it, is or may be unlawful, in breach of these Conditions, or otherwise unacceptable.
In the event of any rejection or suspension pursuant to clause 7.1, SIFT shall notify the Client, giving the reasons for its decision and give the Client the opportunity to remedy the situation. SIFT shall have no liability to the Client in connection with the rejection and any delays or suspension in the Services caused as a result.
The Charges for the Advertising shall be set out in or calculated in accordance with the Order.
Unless otherwise specified in the Order or agreed, SIFT shall invoice the Client for the Charges in advance.
The Client shall pay each invoice submitted by SIFT:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by SIFT.
All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by SIFT to the Client, the Client shall, on receipt of a valid VAT invoice from SIFT, pay to SIFT such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
If the Client fails to make any payment due to SIFT under the Contract by the due date for payment , then the Client shall pay interest on the overdue amount at the rate of 4% per cent per annum above the HSBC Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and shall be compounded annually. The Client shall pay the interest together with the overdue amount.
The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
Notwithstanding its other rights and remedies, in the event that the Client is in default of its payment obligations for more than 14 days, SIFT may suspend provision of the Services until payment is received.
An agency discount of 15% is applicable to SIFT’s prices for the Services placed by an advertising agency, unless otherwise agreed by the agency and SIFT. The Charges shown in the Order shall include this discount.
The Client Content shall remain the property of the Client or its third party licensors. The Client grants SIFT a non-exclusive, royalty free licence to use the Client Content for the purposes of performing its obligations under the Contract.
Save for the Client Content, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by SIFT.
All SIFT Content shall be and remain the exclusive property of SIFT. The Client does not obtain any rights or licences to such content.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract.
Both parties shall comply with their respective obligations under the Data Protection Act 1998 (Act) in relation to any Personal Data (as defined in the Act) received from the other pursuant to the Contract. For the avoidance of doubt, SIFT does not agree to disclose any Personal Data about its users to the Client.
The Client warrants that it has obtained all necessary consents to enable SIFT to receive and process any Personal Data from or on behalf of the Client pursuant to the Contract. The Client shall fully indemnify SIFT from and against all actions, claims and proceedings made against SIFT and all loss, damages, costs (including legal costs) and/or expenses incurred by SIFT arising out of or in connection with the Client’s breach of this clause.
Nothing in these Conditions shall limit or exclude SIFT’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
(a) SIFT shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, business, contracts, goodwill, data or any indirect or consequential loss arising under or in connection with the Contract; and
(b) SIFT’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges paid by the Client under the relevant Order.
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
This clause 13 shall survive termination of the Contract.
Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the other party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction; or
(c) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
Without limiting its other rights or remedies, SIFT may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 30 days after being notified in writing to do so.
Without limiting its other rights or remedies, SIFT may suspend provision of the Services under the Contract or any other contract between the Client and SIFT if the Client becomes subject to any of the events listed in clause 14.1(b)) to clause 14.1(d), or SIFT reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
On termination of the Contract for any reason:
(a) the Client shall immediately pay to SIFT all of SIFT’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, SIFT shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all SIFT Content, materials and confidential information;
(c) SIFT shall terminate any ongoing Services and shall return or destroy all Client Content in its possession;
(d) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication survive termination shall continue in full force and effect.
For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of SIFT including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of SIFT or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
SIFT shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
Assignment and other dealings.
(a) SIFT may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Client shall not, without the prior written consent of SIFT, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 17.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
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.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising 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 prevent or restrict its 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.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by SIFT.
This 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 Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).