Terms and Conditions
1. THIS AGREEMENT
Please read these terms carefully – by registering to use the [DigitalAdvertising.co.uk] website you are agreeing to accept these terms in full, which will form a binding legal agreement between you and Digital Advertising Limited.
These terms contain a number of important terms that govern (a) the way that the Website’s Services will be offered to you, and (b) what you will owe to Digital Advertising in consideration of the services provided through it.
By proceeding to use the Website you are agreeing to be bound by these terms, so please take time to read them carefully and in full, especially before using Digital Advertising’s services to search for, or to offer your services as, a provider of digital advertising services.
In particular, your attention is drawn to clauses 5, 8, 11 and 15 of this agreement.
2.1. In this Agreement, the following words shall have the following meanings:
“Agreement” means this agreement and all amendments, schedules and annexures to it.
“App” means any version of the Website that may be made available via an in-browser application or as a downloadable software application.
“Assignment” means an engagement between a Provider and a Buyer in which the Provider agrees to provide services which relate to digital advertising to the Buyer in return for a fee which has been mutually agreed between the two parties.
“Buyer” means a user who uses the Website to search for providers of digital advertising services and which may use the functionality provided thereon to send communications to Providers.
“Click” means a single instance of a Buyer accessing a Provider’s External Profile by clicking through to that website using a link located on that Provider’s Public Profile, or from any other similar link on the Website.
“Concierge Service” means an arrangement whereby a Provider delivers services to a Buyer pursuant to the terms of a separate agreement with Digital Advertising, whereby the relevant Provider shall act as a sub-contractor of Digital Advertising.
“Device” means an electronic computing device capable of accessing the Internet and the Website, such as a desktop computer, mobile smartphone with internet functionality, or a touchscreen computing device with internet functionality (such as a ‘tablet’ device).
“External Platform” means a website owned or operated by a Provider (or a similar online presence such as a social media account or profile).
“Lead” means a single instance of a Buyer using the ‘contact’ functionality set out on a Provider’s public profile, leading to that Provider being sent an automatically generated enquiry which contains contact details of the relevant Buyer.
“Online Specification” means the details of the pricing of the Website (such as the fees payable in respect of Clicks, Views, Leads and RFP-Leads – which may be set out as a table or schedule) which shall be made available via the Website, as well as any technical specification of the Website’s functionality, which may be posted on, or otherwise made available via, the Website from time to time.
“Provider” means a user which uses the Website to promote its services which it provides and to accept Assignments either personally or on behalf of its employees.
“Public Profile” means a publicly available page of the Website which relates to an individual Provider, to which users will be directed in the event that they click, or otherwise select, that Provider when it is listed the result of a search enquiry made on the Website.
“RFP-Lead” means a brief which relates to a particular project that a Buyer has asked Digital Advertising to make available to interested Providers that meet various criteria specified by that Buyer, which shall be offered on a ‘closed envelope’ basis to Providers which meet those criteria.
“Services” means the functionality of the Website offered to users, including the ability for those users to act as Providers and Buyers.
“Subscription Fee” means a set monthly fee paid by a Provider to Digital Advertising in respect of that Provider’s use of the Website, the value of which shall be set out in the Online Specification.
“Digital Advertising” means Digital Advertising Limited, a company registered in England with registration number 11121987.
“user” means and individual who registers an account on the Website; and terms such as “users” shall be interpreted accordingly.
“View” means a single instance of a Buyer accessing a Provider’s Public Profile by using the Website (by clicking through to that Public Profile from a list of search results which feature that particular Provider, or otherwise).
“Website” means the website digitaladvertising.co.uk and all of its subdomains, as well as any versions of the Website delivered via an App.
2.2. Where this end-user agreement (the “Agreement”) refers to “you” or “your” it means the individual accepting this agreement; where it refers to “us”, “our” or “we” it means Digital Advertising. Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
3. APPLICATION OF THESE TERMS
3.1. The terms of this Agreement apply to your use of the Website and to any updates or supplements to it which Digital Advertising may issue from time to time, unless such additions are provided pursuant to separate terms, in which case those terms shall apply.
3.2. We may change these terms at any time without notice. Any such changes shall take effect on the next occasion that you make use of the Website. Any such new terms may be displayed on-screen when you next use the Website and you may be required to read and accept them in order to continue your use of the Website.
4. ACCESS AND DATA
4.1. You will be assumed to have obtained permission from the owners of any Devices that are controlled, but not owned, by you which you may use to access or use the Website. You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with the terms of this Agreement for the use of the Website on any such Device, whether or not it is owned by you.
4.3. As you use the Website we will collect and use technical information about the Devices (and related software, hardware and peripherals) that you use to access the Website and we may use that information to provide the Website to you and/or to optimise and improve the Website for you and other users.
4.4. The Website or any Service may contain links to other independent third-party websites (“Third-party Sites”). Third-party Sites are not under our control, and we are not responsible for and do not endorse their content or their privacy policies (if any). You will need to make your own independent judgement regarding your interaction with any Third-party Sites, including the purchase and use of any products or services accessible through them.
5. LEGAL STATUS OF ASSIGNMENTS
5.1. The Website facilitates introduction between Buyers and Providers. Users are not obliged to enter into any particular Assignments as a result of such introductions, nor is any user’s use of the Website conditional on the entering into of any particular Assignment.
5.2. Buyers and Providers will not be able to enter into Assignments using the Website. The Website’s functionality is limited to enabling Buyers to identify and contact potential providers of services (and, in the case of RFP-Leads to enable Providers to bid for work from Buyers). In the event that a Buyer wishes to enter into an Assignment with a Provider, then all arrangements relating to that Assignment must be conducted between the relevant Buyer and Provider directly.
5.3. Accordingly, where Buyers and Providers agree to enter into an Assignment as a result of any introduction, or other interaction, facilitated by or arising from use of the Website, the agreement which governs the conduct of that Assignment will exist between those two parties and Digital Advertising will not be a party to it.
5.4. Pursuant to clause 5.3 Digital Advertising shall not be responsible for the performance of, or payment for, any Assignment responsibility for settling any disputes arising from the same shall belong solely to the parties to the contract which governs that Assignment.
5.5. Accordingly, you release Digital Advertising from all liability for claims, liabilities and losses arising from the type of arrangements described in this clause 5, and agree that Digital Advertising shall have no liability for, or in relation to, any dispute which may arise between you and any other user of the Website for any reason.
5.6. In particular, in the event that a Buyer withholds payment from a Provider then any dispute between the two parties shall be subject to independent adjudication in a forum mutually agreed between them. Digital Advertising is not and will not be responsible for adjudicating disputes between Providers and Hirers and shall not be a party to such proceedings.
5.7. Digital Advertising does not provide or offer insurance cover to Providers or Buyers. Accordingly, Digital Advertising recommends that all users take out independent insurance and that they take steps to satisfy themselves that all Providers or Buyers with whom they engage via the Website have adequate insurance in place.
5.8. While the Website may enable users to make representations as to their expertise and/or qualifications (or any other matter), these representations are not verified by Digital Advertising. Accordingly, Digital Advertising accepts no liability or responsibility for any such representations (including where any user makes false, misleading or otherwise incorrect statements) and you accept that you shall have sole responsibility for any representations that you may make via the Website.
5.9. Digital may, from time to time, offer you the opportunity to purchase services from Providers on a Concierge Service basis. Where this is the case you recognise that such services will be provided pursuant to separate terms, which shall be entered into directly with Digital Advertising at the relevant time.
6. BUYER CONDUCT
6.1. The Website contains functionality that enables Buyers to search for relevant Providers; that functionality is used by Buyers at their own discretion. Buyers are solely responsible for browsing for and selecting potential Providers. Digital Advertising is not, and will not be, responsible for displaying, advertising or promoting any particular Provider to a Buyer.
6.2. Buyers are specifically put on notice that Providers are not employees, affiliates, agents or representatives of Digital Advertising and that they offer their services as independent private contractors. Accordingly, Digital Advertising shall not be a party to any contract between a Buyer and a Provider and shall have no liability or responsibility for the quality of any Provider’s work or for any other aspect of the performance or conduct of it. Providers and Buyers shall be responsible for agreeing terms for the performance of any Assignment between them and acknowledge that Digital Advertising shall not be a party to such agreements.
6.3. Where the Website presents details of Providers in any kind of list or filtered search result, those details are provided purely for the convenience of the relevant Buyer. To the extent that the Website may ‘rank’ or list one Provider above another, this should be taken as no more than an opinion expressed by Digital Advertising which has been arrived at via the functioning of the Website’s assessment of the relevancy of those Provider’s respective profiles in relation to the search query performed by that Buyer. For the avoidance of doubt, Digital Advertising makes no warranty or representation that any ‘ranking’ or preferential listing of any particular Provider is accurate and accepts no liability for any inference which any party may draw from or arrive at as a result of any such ranking or listing.
6.4. While Digital Advertising may perform background checking in respect of individual users (for example, where it suspects that a user may be using the Services fraudulently) no warranty or undertaking is given that Digital Advertising will perform such checks in respect of any particular individual or at all. As such, you agree that users shall have sole responsibility for any information which they may provide or upload to the Website (including in the form of a rating of any other user) and that, in the event that any such information is false or misleading, your sole remedy shall be against the relevant user.
7. LICENCE RESTRICTIONS
Except as expressly set out in this Agreement or as specifically permitted by any local law, you agree:
(a) not to copy the Website except where such copying is incidental to normal use of the Website, or where it is necessary for the purpose of back-up or operational security;
(b) not to copy any part or aspect of the database which underlies the Website (which, for the avoidance of doubt, shall include any attempt to ‘scrape’ or copy details of individual users or Assignments – for commercial use or otherwise);
(c) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Website;
(d) not to make alterations to, or modifications of, the whole or any part of the Website, or permit the Website or any part of it to be combined with, or become incorporated in, any other programs;
(e) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Website or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Website with another software program, and provided that the information obtained by you during such activities:
(i) is used only for the purpose of achieving inter-operability of the Website with another software program;
(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
(iii) is not used to create any software that is substantially similar to the Website;
(f) not to provide or otherwise make available the Website in whole or in part (including object and source code), in any form to any person without prior written consent from Digital Advertising; and
(g) to comply with all technology control or export laws and regulations that may apply to the technology used or supported by the Website or any Service.
Together such conditions the “Licence Restrictions”.
8. ACCEPTABLE USE RESTRICTIONS
As a condition of being granted access to the Website and the Services all users agree that they shall:
(a) not to use the Website or any Service if they are under the age of 18.
(b) not use the Website or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Website, any Service or any operating system;
(c) not use the Website to offer, solicit, arrange, or engage in, any kind of activity or arrangement which is or which would be unlawful, or which that user does not possess all necessary regulatory permissions to lawfully perform;
(d) not use the Website to promote the goods or services of a third party;
(e) not to use the Website to send communications that would be considered to be spam;
(f) not infringe our intellectual property rights or those of any third party in relation to your use of the Website or any Service, including the submission of any material (to the extent that such use is not licensed by this Agreement);
(g) not upload to the Website any data, material or information which is false or misleading in any way;
(h) treat all other users with respect and courtesy at all times;
(i) respect the diversity of other users and their opinions, thoughts and beliefs;
(j) refrain from transmitting any material that is defamatory, offensive or otherwise objectionable via the Website;
(k) not use the Website or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users;
(l) not collect, extract or harvest any information or data from the Website, any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service; and
(m) refrain from using the Website for any unlawful purposes in relation to other users, including without limitation for stalking, harassing, or intimidating any other user.
Together such conditions the “Acceptable Use Restrictions”.
8.2. Users agree that they are responsible for all representations which they make via, or upload to, the Website (which may take the form of comments relating to, or reviews of, other users). Users should refrain from making untrue and/or unlawful representations about other users and are put on notice that Digital Advertising will comply with any and all requests which it receives from lawful authorities to identify users whose details are requested from it in connection with legal proceedings.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. You acknowledge that all intellectual property rights in the Website and the Online Specification anywhere in the world belong to us or our licensors, that rights in the Website are licensed (not sold) to you, and that you have no rights in, or to, the Website other than the right to use it in accordance with the terms of this Agreement.
9.2. You warrant that you have all necessary rights to upload and use any material which you may enter into or upload to the Website (or the servers which underpin its use) and to grant Digital Advertising all necessary rights to use the same for such purposes as it may see fit. You further warrant and undertake to indemnify and hold harmless Digital Advertising from any breach by you of this clause 8.2.
10.1. We warrant that:
(a) the Website will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Online Specification; and
(b) that the Online Specification correctly describes the operation of the Website in all material respects.
10.2. The warranty does not apply:
(a) if the defect or fault in the Website or any Service results from you having altered or modified the Website;
(b) if the defect or fault in the Website results from you having used the Website in breach of the terms of this Agreement; and
(c) if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
10.3. Digital Advertising makes no warranty that:
10.3.1. the Website will be available at all times, or that provision of it will be uninterrupted or error free;
10.3.2. that any representation made by any user is or is not true or accurate. In particular Digital Advertising does not warrant that it has checked or will check the accuracy of any statement by any individual that they hold any particular qualification, registration or status – users are responsible for carrying out their own checks of counterparties qualifications whenever they enter into an Assignment.
10.4. Save for as expressly set out in these terms, no implied warranties or other terms, including any implied term relating to satisfactory quality or fitness for purpose, shall apply to the Website or its use by you.
11. LIMITATION OF LIABILITY
11.1. You acknowledge that the Website has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Website as described in the Online Specification meet your requirements.
11.2. You acknowledge that Digital Advertising does not review user postings, ratings, representations, comments or other uploaded content. Accordingly you agree that Digital Advertising shall not be liable or responsible for any such user-generated content.
11.3. We shall only be responsible for loss or damage you suffer that is a direct and foreseeable result of our breach of this Agreement or our negligence up to the limit specified in clause 11.4, but we are not responsible for any indirect, consequential or unforeseeable loss or damage. Loss or damage is foreseeable if it is an obvious consequence of our breach at the time we entered into this Agreement with you. Further, Digital Advertising shall not in any circumstances be liable for any loss of profit, loss of business, loss of contracts, or loss of business opportunity that you may suffer as a result of your use of the Website, whether such loss arises directly, indirectly or otherwise.
11.4. Our maximum aggregate liability under or in connection with this Agreement and all claims arising from its subject matter, whether arising in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the total value of the Service Fee collected by Digital Advertising in relation to Assignments to which you have been a party in the 12 month period preceding the event in respect of which your entitlement to such a sum became due. This does not apply to the types of loss set out in clause 10.5.
11.5. Nothing in this Agreement shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation; and
(c) any other liability that cannot be excluded or limited by English law.
11.6. Digital Advertising accepts no responsibility for the lawfulness or compliance of any Assignment. You are and will remain responsible for your compliance with local laws at all times, including in your offering, conducting and performance of Assignments.
12.1. This Agreement shall commence on the date that it is accepted by you and shall run for terms of one month, renewing automatically unless terminated by either party in accordance with its terms.
12.2. We may terminate this Agreement immediately by written notice to you:
(a) if you commit a material or persistent breach of this Agreement which you fail to remedy (if remediable) within 7 days after the service of written notice requiring you to do so;
(b) if you breach any of the Licence Restrictions or the Acceptable Use Restrictions in any way, whether or not such breach is remediable;
(c) if Digital Advertising has any reason to suspect that your use of the Website is unlawful, or that it would bring Digital Advertising and/or other users or the Website into disrepute; and
(d) if Digital Advertising withdraws the Website from service, or otherwise reorganises or restructures its business so as to necessitate the termination or suspension of provision of the Website to you.
12.3. On termination for any reason:
(a) all rights granted to you under this Agreement shall cease;
(b) you must immediately cease all activities authorised by this Agreement, including your use of any Services; and
(c) you must immediately delete or remove the Website from all Devices, and immediately destroy all copies of the Website and Online Specification then in your possession, custody or control and certify to us that you have done so.
12.4. In addition to its rights set out above Digital Advertising shall have the right to suspend your use of the Service immediately if it has any reason to suspect that you have breached the terms of this Agreement or have otherwise acted in a fashion which it considers may bring or has brought its reputation into disrepute.
12.5. You may terminate this Agreement by using the settings made available to you on the Website. Such termination shall take effect at the conclusion of the then current monthly term.
13. COMMUNICATION BETWEEN US
13.1. If you wish to contact us in writing, or if any condition in this Agreement requires you to give us notice in writing, you can send this to us by e-mail to firstname.lastname@example.org.
13.2. If we have to contact you or give you notice in writing, we will do so by e-mail, via the Website, or by pre-paid post to the address you provide to us in your request for the Website.
14. EVENTS OUTSIDE OUR CONTROL
14.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (each an “Event Outside Our Control”).
14.2. If an Event Outside Our Control takes place that affects the performance of our obligations under this Agreement:
(a) our obligations under this Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
(b) we will use our reasonable endeavours to find a solution by which our obligations under this Agreement may be performed despite the Event Outside Our Control.
15.1. You undertake to indemnify and hold Digital Advertising harmless in respect of all costs, charges, damages or losses which it may suffer in relation to your use of the Website, including in relation to (a) any content which you may upload to the Website or any interaction you may have with any other user of the Website, and/or (b) any tax implication for which Digital Advertising may become liable as a result of your use of the Website.
16. OTHER IMPORTANT TERMS
16.1. We may transfer our rights and obligations under this Agreement to another organisation, but this will not affect your rights or our obligations under this Agreement.
16.2. You may only transfer your rights or obligations under this Agreement to another person if we agree in writing.
16.3. If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
16.4. Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
16.5. Please note that this Agreement, its subject matter and its formation, are governed by English law. You and we both agree that the courts of England and Wales will have exclusive jurisdiction.
16.6. The use of this Website is lawful in England and Wales. Should you choose to use the Website, either as a Provider or Buyer, anywhere else in the world you are responsible for checking local law and ensuring your compliance with the same.