Amplifi Terms and Conditions for the Provision of Media Resale Services
(A) Client has a media services agreement with an agency (“Agency”) which is part of the Dentsu Aegis Network (“Media Services Agreement”).
(B) The Client has opted-in to the Resale Program (as defined below) and accepted these terms and conditions with the Media Supplier by signing an opt-in letter (“Opt-In Letter”).
(C) The Resale Program will form a discrete legal contract between the Client and the Media Supplier which is separate from the Media Services Agreement between the Client and the Agency. Except as expressly provided by these Terms and Conditions, the terms and conditions of the Media Services Agreement shall not apply to the Resale Program.
In the Agreement, the following definitions are used:
Affiliate: means, in relation to Media Supplier, an entity that directly or indirectly controls, is controlled by or is under common control with, Media Supplier, excluding Dentsu Inc..
Agency: has the meaning given to it in Recital (A) of these terms and conditions.
Agreement: means the Opt-In Letter, these terms and conditions, and any terms appearing in a Media Plan.
Client: means the recipient of the Services whose details are provided in the Media Plan and has opted-in to the Resale Program and accepted these terms and conditions.
Data: means all data (aggregated or non-aggregated), statistics, code or similar information provided by the Client or generated or collected by the Media Supplier in performing the Services that directly relate to the Client.
Media Expenditure: means such amount of media expenditure as is approved by the Client in the Media Plan for the purchase of media from the Media Supplier.
Media Owner: means a supplier from which the Media Supplier purchases media inventory for resale to the Client.
Media Plan: means a media plan, insertion order or similar approval document such as a media authorisation form or other written document acceptable to Media Supplier which is submitted online, by email or otherwise to Media Supplier by the Client requesting media inventory from the Media Supplier.
Media Services Agreement: has the meaning given to it in Recital (A) of these terms and conditions.
Media Supplier: means Amplifi Global Limited, incorporated and registered in England and Wales with company number 08411447 whose registered office is at 10 Triton Street, Regent’s Place, London, NW1 3BF.
Opt-In Letter: has the meaning given to it in Recital (B) of these terms and conditions.
Resale Program: means a program operated by the Media Supplier under which the Media Supplier buys media inventory for bespoke opportunities on its own account and at its own risk and resells it to clients who have opted-in.
Services: means media resale services provided by Media Supplier to the Client in accordance with a Media Plan.
2. Resale. The Media Supplier shall resell to the Client media inventory in accordance with the Media Plan, which the Media Supplier has purchased from Media Owners on its own account and at its own risk.
3. Cancellation. The terms agreed between the Client and the Agency in the Media Services Agreement for cancellation and amendment of media bookings and liability to media owners shall apply between the Client and the Media Supplier in respect of the Resale Program mutatis mutandis. In the absence of any such terms, (i) the Media Supplier will only accept requests to cancel or amend any media bookings where it is in turn able to cancel or amend that booking with the Media Owner; and (ii)the Media Supplier’s liability to the Client in respect of the acts and omissions of the Media Owner in relation to this Agreement shall be limited by the Media Owner’s terms and conditions of booking (“MO Terms”) and shall not exceed the liability of the Media Owner to the Media Supplier.
4. Pricing. The price payable for media inventory under the Resale Program shall be the Media Expenditure.
5. Payment Terms. The Client will pay the Media Expenditure to the Agency upon receipt of a valid invoice. Unless otherwise stated in the Media Plan, all sums are payable in Pounds Sterling and exclude VAT or any other sales tax, which shall be payable in addition at the applicable rate at the time of invoicing. The payment terms and terms for interest on late payment agreed between the Client and the Agency in the Media Services Agreement shall apply in respect of the Resale Program. In the absence of any such terms, unless otherwise stated in the Media Plan, the Media Supplier will use reasonable endeavours to deliver its invoices to the Client on or before the 3rd working day (in the United Kingdom) of the calendar month following that to which they relate and the Client will pay undisputed invoiced charges by the 20th day of that month. The Client acknowledges and agrees that the sole benefit it is entitled to receive in connection with the payment of the Media Expenditure is wholly and accurately described in the relevant Media Plan and these terms and conditions and that it has no right to claim any other rebate, discount, commission or other benefit from the Media Supplier in relation to the Media Expenditure.
6. Advertising Materials. As between the Client and the Media Supplier, the Client shall be solely responsible for the creation and provision of any advertising material. The Client shall ensure that all information, content, logos, graphics or other materials supplied to the Media Supplier (“Advertising Materials”) complies with all applicable laws and regulations and industry codes of practice and, in supplying any Advertising Material to the Media Supplier, the Client warrants on each occasion to Media Supplier that the Advertising Materials complies with these laws and regulations and industry codes of practice in all respects and, in addition, the receipt by Media Supplier of the Advertising Materials and use by Media Supplier thereof shall not infringe the intellectual property rights of any third party. Further, the Client agrees to indemnify and keep indemnified the Media Supplier against all demands, actions, proceedings, damages, costs, and liabilities (including reasonable legal expenses) arising from the Media Supplier’s use of the Advertising Materials in accordance with this Agreement.
7. Term and Termination. This Agreement will commence on the date on which the Client has opted-in to the Resale Program by signing the Opt-In Letter, and will continue until terminated by either party under this clause. Each party may terminate this Agreement at any time on thirty (30) days notice by written notice to the other. In addition, each party may terminate this Agreement by written notice to the other (i) if the other party breaches any material provision of this Agreement and (where capable of remedy) does not remedy that breach within 14 days of being required to do so in writing; or (ii) if the other party has a receiver, administrative receiver, administrator, liquidator or provisional liquidator (or their respective equivalents in any other jurisdiction) appointed over all or any part of its assets.
8. Limitation of Liability. Other than as prevented by law or in relation to the Client’s breach of clause 6 (Advertising Materials), 9 (Confidentiality) and 10 (Data Protection), or the Client’s liability for any Media Expenditure, the parties’ liability to each other under this Agreement, tort or otherwise shall be limited to a sum equal to 5% of the total Media Expenditure paid by the Client to the Media Supplier for the Services under this Agreement up to the date of the event giving rise to the claim. In no event shall either party be liable to the other for any loss or actual or anticipated income or profits, loss of contracts or for any special, indirect, or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
9. Confidentiality. Save as required by law or regulation, both parties will keep the contents of this Agreement and the negotiations relating to the same, and any business ideas, market opinions, information and/or material disclosed in connection with this Agreement confidential. Unless otherwise agreed in writing, no intellectual property rights or licences are implied or granted in respect of the same.
10. Data Protection. It is the parties’ intention that the Data shall not include personal data and that no personal data shall be processed by the Media Supplier in the provision of the Services. To the extent that any Data does include personal data, the data protection terms agreed between the Client and the Agency in the Media Services Agreement, or in any other relevant terms and conditions agreed between the Client and any Affiliate of the Agency (“Other Relevant Terms and Conditions”), shall apply between the Client and the Media Supplier in respect of the processing of personal data under the Resale Program mutatis mutandis, except that the limitations on liability in clause 8 above shall apply to any liability under this clause in substitution for any relevant limitations on liability in the Media Services Agreement or any Other Relevant Terms and Conditions. For the avoidance of doubt, no double recovery under this Agreement and any Other Relevant Terms and Conditions shall be permitted in respect of any loss related to data protection and/or privacy.
11. Priority/conflict. These terms and conditions, together with the Opt-In Letter and the Media Plan to which they relate, shall form the Agreement between the Media Supplier and the Client for the provision of Services set out in the Media Plan. In the event of a conflict between the Opt-In Letter and these terms and conditions, the Opt-In Letter will take precedence and apply to the extent of the conflict or inconsistency. In relation to its subject matter, such Agreement will prevail over any other agreements, contracts or terms, any correspondence, whether attached to any purchase order or instruction or elsewhere or implied by law, trade custom, practice or course of dealing entered into between the Client and the Media Supplier or the Media Supplier’s Affiliates
12. No Audit. Notwithstanding anything in the Media Services Agreement, nothing in this Agreement shall create or confer any right of audit in favour of the Client over the Media Supplier.
13. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement. This Agreement supersedes and extinguishes all previous agreements between the parties relating to such matters and any representations and warranties previously given or made other than those contained in this Agreement.
14. Governing Law. The Agreement is governed by and construed in accordance with laws of England and Wales. Both parties also submit to the jurisdiction of the English courts as regards any claim or matter arising.
15. Third Party Rights. Unless this Agreement expressly states otherwise, any and all rights conferred on third parties under the Contracts (Rights of Third Parties) Act 1999 are hereby excluded to the fullest extent permitted by law.