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Terms and Conditions for Advertising on LYCOS
The following terms and conditions ("Advertiser Terms and Conditions") will apply to all advertising placed on LYCOS websites. The Advertiser Terms and Conditions are deemed incorporated into each advertising order form ("Advertiser Order Form") and contract accepted by LYCOS":
LYCOS Europe N.V, Haarlem/Netherlands, listed in the New Market stock market, is the owner or licensee of certain internet website services (collectively, the "LYCOS Services"), which are accessible through numerous URLs across Europe (all sites and LYCOS Services owned or controlled by LYCOS at any time during the term of agreement with Advertiser or by any affiliates, associates or subsidiaries of Lycos including, but not limited to Comundo, Fireball, Tripod, Spray, Caramail, Multimania, Jubii among others are collectively referred to as the "LYCOS Network");
Contracting parties will be the Advertiser and LYCOS UK Limited registered in England no 3923511 whose registered office is at Devonshire House, 60 Goswell Road, London, EC1M 7AD or one of LYCOS N.V.'s subsidiaries as set out in the Advertiser Order Form ("LYCOS").
In these terms and conditions, "LYCOS" is the web site controlled and operated by LYCOS, which appears on the World Wide Web with the domain name www.LYCOS.co.uk and which expression includes all text, graphics, images, code, data and other material on the web site. "Advertisement" and/or "Advertisements" and/or "Advertisement(s)" in these Conditions shall mean all material to be published on LYCOS for which a charge is made. "Advertiser" means the person placing the Advertisement and such expression includes the advertising or sales agency placing the Advertisement. "Contract" means the terms of the relevant Advertiser Order Form and/or agreement signed by the Advertiser and LYCOS in respect of the Advertisement and the Advertiser Terms and Conditions. "Start Date" means the first day on which an Advertisement is due to appear on LYCOS. "Rate Card" means the rate card supplied by LYCOS to the Advertiser.
1. PAYMENT TERMS
A. In the absence of any other specific arrangements expressly agreed in writing between LYCOS and the Advertiser, payment in respect of the Advertisement is due (except where LYCOS has agreed expressly in writing to allow credit to the Advertiser) from the Advertiser no later than:
(a) if the Advertiser has a pre-arranged monthly account facility, the date shown on the monthly invoice or statement; or
(b) in any other case, within thirty (30) days after the date of the relevant invoice.
B. The Advertiser must pay at the rates prescribed by applicable law all taxes and duties (including VAT and all similar sales tax if applicable) on the amounts due in respect of the Advertisement. All amounts paid by the Advertiser after the due date will bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less) above the base lending rate of LYCOS' main bank, from the date when payment was due until the date of payment is received, whether before or after judgment. In the event of any failure by the Advertiser to make payment, the Advertiser will be responsible for all expenses incurred by LYCOS in collecting the amounts due and LYCOS, at its option, may immediately terminate the Contract.
C. The Advertiser shall not be entitled to withhold payment in whole or in part for any bookings of Advertisements accepted by LYCOS by reason of the fact that LYCOS is prevented from publishing (or continuing to publish) such Advertisement in total or in part by any court of competent jurisdiction or does not publish or ceases to publish such Advertisement in consequences of any actual or threatened legal proceedings or by order or request of any regulatory body or generally recognised industry or internet watchdog organisation or for any other valid reason. The Advertiser shall immediately on demand reimburse LYCOS with any costs incurred by LYCOS in connection with such legal proceedings.
D. The Advertiser represents and warrants that it contracts with LYCOS as principal, and has the authority to do so, notwithstanding that the Advertiser may be acting as an advertising agency or media buyer or in some other representative capacity.
E. Where the Advertiser agrees to spend an aggregate amount of money across a period of time, unless expressly agreed in writing otherwise, the Advertiser must spend at least 20% and at most 33% of the agreed aggregate amount of money in each quarter of that period of time, subject to availability of the requested positions.
2. ADVERTISEMENT BOOKING
A. All material for the Advertisement and as required for its publication on LYCOS should be provided by the Advertiser to LYCOS, Carl - Bertelsmann - Str. 29, 33311 Gütersloh, Germany in accordance with LYCOS' requirements set out in this Contract and the deadlines and specifications set out in the Rate Card, including (without limitation) the manner of transmission to LYCOS, the lead-time prior to publication of the Advertisement and such technical specifications as LYCOS may require from time to time. In addition all material and or artwork to be provided by the Advertiser (LYCOS will accept GIF, JPEG, JAVA, or HTML files) must be received by LYCOS at least five working days in advance of the Start Date.
B. All bookings for advertisements must be confirmed in writing with an Advertiser Order Form signed by an authorised signatory of the Advertiser. Such bookings must be received by LYCOS no later than one working day after the booking has been made or such other date as LYCOS in its sole discretion agrees but which shall in no event be later than five working days before the Start Date. LYCOS reserves the right to reject any booking for any Advertisement that does not comply with this timetable. By submitting advertising for inclusion on any LYCOS site, the Advertiser agrees to be bound by the terms of the Contract. No conditions other than those set forth herein shall be binding on LYCOS unless: (i) specifically agreed to in writing by LYCOS and (ii) any additional terms and conditions of Advertiser are expressly written into the Advertiser Order Form signed by the Advertiser and LYCOS. Save in respect of sub-clause 2.B.(i) and (ii) above, in case of any inconsistency between the Advertiser Order Form and these Advertising Terms and Conditions, these Advertising Terms and Conditions will prevail.
C. Except as otherwise expressly provided in the Advertiser Order Form and agreed by LYCOS, positioning of Advertisements within the LYCOS properties or on any page is at the sole discretion of LYCOS, and LYCOS will not be prohibited from also carrying Advertisements for any product or business competitive to the product or business of the Advertiser.
D. LYCOS does not guarantee or commit to the date or dates of insertion of the Advertisement(s) and does not undertake that the Advertisement(s) will not be displayed after the end date specified. However, LYCOS will use reasonable efforts to comply with the Advertiser's wishes in these regards.
E. If the Advertiser wishes to request a change to positioning of Advertisements, it must provide the relevant creatives and any other materials requested by LYCOS and give prior written notice of at least 2 weeks before the end of a calendar month, such change to take place in the following calendar month. Failure to provide such prior notice will mean that the positions set out in the Advertiser Order Form prevail. Any requested change to positioning of Advertisements will be decided at LYCOS's sole discretion, subject to availability.
F. Advertisers may not cancel an Advertiser Order Form unless expressly provided for in the Advertiser Order Form in accordance with sub-clauses 2.B(i) and (ii) of these Terms and Conditions.
3. ADVERTISEMENT STATISTICS
Notwithstanding the provisions of the Advertiser Order Form, Advertiser acknowledges that LYCOS does not make any warranty or guarantee with respect to any user- or usage-statistics ("Statistics") given to the Advertiser by LYCOS. As a result of that, LYCOS shall not be held liable for any claims relating to such Statistics. The Advertiser acknowledges and agrees that LYCOS provides the Advertiser with estimated Statistics as a courtesy to the Advertiser. LYCOS shall not be held liable for any claims relating to the statistics or any usage statistics however supplied. The Advertiser acknowledges that delivery statistics provided by LYCOS are the official, definitive measurements of LYCOS' performance on any delivery obligations provided in the Advertiser Order Form. The processes and technology used to generate such statistics have been certified and audited by an independent agency. No other measurements or usage statistics (including those of the Advertiser or a third party ad server) will be valid under any Contract or in any disputes or differences between LYCOS and the Advertiser.
4. RESERVED RIGHTS AND REJECTION
A LYCOS shall have the right to change its rates for Advertisements as set out in the Rate Card at any time without notice to the Advertiser (excluding prices agreed for existing orders). Such Advertisement rates are exclusive of any Value Added Tax that LYCOS may at any time be obliged to charge.
B. LYCOS also reserves the right, without liability, to reject, replace, omit or exclude any order for an Advertisement or to reject, replace or terminate any links for any reason at any time, with or without notice to the Advertiser, whether or not such Advertisement or link was previously acknowledged, accepted, or published. Notwithstanding this, LYCOS will use reasonable endeavours to fulfil Advertiser's requests.
5. RENEWAL OF ADVERTISING
Except as expressly set out in the Advertiser Order Form and agreed by LYCOS, any renewal of the Advertiser Order Form and acceptance of any additional advertising order will be at LYCOS' sole discretion. The rates applicable to such renewal period (if any) are subject to change by LYCOS from time to time in its absolute discretion.
6. LIMITATION OF LIABILITY
A. Save as specified in this clause, LYCOS shall not be responsible for any error in the placement, or failure to place, any Advertisement on LYCOS. If LYCOS fails to publish any Advertisement or deliver the number of impressions or click-throughs as provided in the Advertiser Order Form or in the event of any other failure, technical or otherwise, of such Advertisement to appear as provided in the Advertiser Order Form, LYCOS's liability will be limited (at the option of LYCOS) to either: (i) publishing the Advertisement (or a replacement advertisement if provided by the Advertiser) on positions agreed in the Advertiser Order Form or as agreed with Advertiser as soon as is reasonably practicable in the period following the period during which the Advertisement was scheduled to run and for such time as is necessary to generate a number of substitute impressions or click-throughs of equivalent monetary value to the shortfall; or (ii) refund to the Advertiser that proportion of the amounts paid which relate to those Advertisements and/or impressions or click-throughs which were not provided, and if the relevant amounts were not paid by the Advertiser, agree that such amounts will not be due or payable. LYCOS will only provide a refund to the Advertiser under sub-clause 6.A (ii) if: (a) the creative materials provided by Advertiser arrived within the time limits specified in the Advertiser Order Form; (ii) the creative materials performed in accordance with LYCOS' technical specifications; and changes to media schedules were notified within the timeframe set out in sub-clause 2.E of these Advertiser Terms and Conditions.
B. Where the Advertiser uses a third party server to serve Advertisements to LYCOS: (i) LYCOS accepts no liability and the Advertiser will hold only the third party server (and not LYCOS) liable for the failure to publish any Advertisement or deliver the number of impressions or click-throughs as provided in the Advertiser Order Form or any other loss of any kind suffered by the Advertiser where those failures or losses are due to or arise out of or in connection with any act or omission of the third party server; and (ii) the statistics provided by LYCOS are the official and definitive measurements. LYCOS reserves the right to terminate at LYCOS's sole discretion the right of the third party server to serve the Advertiser's Advertisements to LYCOS's network. In the event of such termination, LYCOS may serve the Advertisements instead.
C. LYCOS will use reasonable skill and care in performing its duties hereunder but subject thereto:- (i) LYCOS hereby excludes any warranty, express or implied, as to the quality, accuracy, performance or fitness for a particular purpose of LYCOS or of any of its contents; (ii) LYCOS will not be liable for any losses or damages arising (whether in tort (including negligence), contract or otherwise) directly or indirectly as a result of use of LYCOS or in connection with Advertisements on LYCOS including without limitation any technical malfunction, computer error, defect in software, loss of data or other damage or disruption to advertisements; (iii) LYCOS makes no warranty that the contents of LYCOS are free from infection by viruses, worms or trojans or anything else that has contaminating or destructive properties; and (iv) certain links on LYCOS may lead to resources located on servers maintained by third parties over whom LYCOS has no control and LYCOS accepts no liability arising from access to or use of any material contained on those servers.
D. LYCOS does not limit or exclude liability for death or personal injury caused by its negligence.
E. Subject only to sub-clause 6.D above, LYCOS expressly excludes all liability, whether in contract, tort (including negligence) or otherwise (i) for any indirect, special or consequential loss or damage which may arise out of or in relation to the Contract or (ii) for loss of profit, business, contracts revenue, goodwill, production or anticipated savings, in any such case even if LYCOS has been advised as to the possibility of such damages.
F. In addition, without limiting the foregoing, LYCOS cannot be held responsible for any failure or delay resulting from any governmental action, natural disaster, insurrection, power failure, riot, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other event or condition beyond the reasonable control of LYCOS affecting production or delivery in any manner.
G. Subject only to sub-clause 6.D above, the maximum liability in aggregate under or in connection with this Contract for LYCOS shall be an amount equal to the fees paid by the Advertiser to LYCOS in respect of the Advertisement.
H. For the avoidance of doubt, each of the provisions of this clause 6 are to be construed separately and independently of the other, and if any provision of this clause 6 (or any other clause herein) is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this clause 6 (or any other clause herein) which will remain in full force and effect.
7. LICENCES, ADVERTISER REPRESENTATIONS AND INDEMNIFICATION
A. Advertiser warrants and represents that the Advertiser is the owner or is licensed to use the entire contents and subject matter contained in its advertising and information, including, without limitation, (i) the names and/or pictures of persons; (ii) any copyright in the material, trademarks, service marks, logos, and/or depictions of trademarked or service marked goods or services or any other intellectual property rights; and (iii) any testimonials or endorsements contained in any Advertisement submitted to LYCOS. The Advertiser warrants and represents to LYCOS that the publication of the distributed materials will not infringe any rights of any third party and will not violate any applicable law or regulation.
B. In addition, Advertiser warrants and represents to LYCOS that:
(i) It has the right to publish all of the contents of the Advertisements, and can grant to LYCOS such right, and that such publication will not: (a) infringe any rights of any third party including, without limitation, intellectual property rights and rights of privacy; and (b) violate any applicable law or regulation.
(ii) The Advertisements do not contain anything that is defamatory, obscene, false or misleading.
(iii) It has complied with the codes of advertising and sales promotion issued by the Committee of Advertising Practice in the UK and the Advertising Standards Authority for Ireland and all other relevant industry codes of practice.
(iv) The Advertisement submitted pursuant to the Advertiser Order Form either: (a) does not constitute a financial promotion within the meaning of the Financial Services and Markets Act 2000 ("the Act") or other applicable law; or (b) has been approved by an "authorised person" within the meaning of the Act or is otherwise permitted under the Act and the Advertiser has expressly notified LYCOS in writing of this.
(v) It does not collect or use personal information through its Advertisements on any LYCOS property without permission from the user and shall at all times comply with the Data Protection Act 1998. The Advertiser may not combine, co-mingle, compare or match any information that it legally collects via its Advertisements on any LYCOS property with any personal information, clickstream or cookie information that they may have.
C. Hereby the Advertiser expressly grants to LYCOS:
(i) a non-exclusive, world-wide right to use, reproduce, publicly display, and distribute the Advertisements in accordance with the Advertiser Order Form and these Advertising Terms and Conditions and in accordance with any contractual or statutory obligation or in compliance with any code of practice or request from any regulatory body and warrants that Advertiser has the right to grant such licence;
(ii) the express right to reproduce throughout the world screen shots of all or part of any LYCOS property containing all or part of any of the Advertisement materials supplied by the Advertiser to LYCOS on or in any promotional or advertising material or campaign promoting or advertising LYCOS (but not any promotional or advertising campaign paid for by LYCOS).
D. In consideration of LYCOS' acceptance of such Advertisements and information for publication, the Advertiser agrees to indemnify and hold LYCOS and LYCOS` employees harmless against any and all claims actual or any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or breach of any industry advertising codes or sales practices), damages, liabilities, costs and expenses), arising out of or in connection to:(i) any material to which users are able to be linked to through the Advertisement, (ii) LYCOS' performance under the Contract, (iii) the copying, printing, distributing, or publishing of Advertiser's Advertisements by LYCOS; and (iv) any breach by the Advertiser of the foregoing provisions of this clause.
8. NO ASSIGNMENT OR RESALE
Advertiser may not resell, assign or transfer this Contract or any of its rights or obligations hereunder, without prior written consent of LYCOS. Any violation of this provision will entitle LYCOS to terminate this Contract immediately, without liability and without prior notice. Lycos may at its discretion resell, assign or transfer any or all of its rights or obligations under this Contract.
9. CONFIDENTIALITY
A. The provisions of the Advertiser Order Form and all communications passing between the Advertiser or any of its agents and LYCOS are confidential and must not be disclosed to any third party except: (a) by the Advertiser to its qualified accountants or legal advisers; (b) by LYCOS to its qualified accountants or legal advisers; or (c) as otherwise agreed by the parties in writing or as otherwise required by law, by any government authority, court order, regulatory body or stock exchange requirement. In addition, in connection with their discussions, the Advertiser may have received and may in future receive from LYCOS certain valuable technical and non-technical information and materials relating to LYCOS and its business, which is confidential and proprietary to LYCOS. Advertiser agrees to preserve the confidentiality of information belonging LYCOS.
B. The Advertiser and its agents are hereby put on notice that LYCOS and its affiliates are particularly sensitive to public statements about the LYCOS web services, their contractual relationships and product plans, and improper or ill-timed statements are likely to have a detrimental effect on the business of LYCOS and its affiliates and may contravene applicable law. Consequently, the Advertiser and its agents must not, and must ensure that any person acting on its behalf does not, make any public announcement in respect of the Advertiser Order Form or the relationship between the parties without prior written consent of LYCOS including without limitation any pre-announcement in respect of the display of advertising on any LYCOS property. For the avoidance of doubt, the foregoing prohibition includes public announcements by any third party acting on behalf of the Advertiser and any communication that the Advertiser knows will or is likely to be made public. Any breach of this clause 9.B by the Advertiser will be deemed to be a breach of confidentiality under this clause 9.
10. MISCELLANEOUS
A. The placing of an Advertiser Order Form for the insertion of an Advertisement shall amount to an acceptance of these Terms and Conditions and Subject to sub-clause 2.B(i) and (ii) of these Terms and Conditions any conditions stipulated on an Advertiser Order Form or elsewhere by an agency or an Advertiser shall be void in so far as they are in conflict with them.
B. English Law shall govern any Contract entered into with LYCOS incorporating these Terms and Conditions. The English courts shall have non-exclusive jurisdiction over any dispute arising under this Contract.
C. Any modifications to these Terms and Conditions of this Contract must be in writing and signed by an authorised senior representative of LYCOS.
D Notwithstanding any other provision in these Advertising Terms and Conditions, a person who is not a party to these Advertising Terms and Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Advertising Terms and Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
E. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Contract shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
F. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
G. If any provision of these Terms and Conditions or of a Contract are determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Terms and Conditions shall remain enforceable.
LYCOS UK & Ireland, LYCOS House, 3 Sutton Lane, Clerkenwell, London, EC1M 1PU
The following terms and conditions ("Advertiser Terms and Conditions") will apply to all advertising placed on LYCOS websites. The Advertiser Terms and Conditions are deemed incorporated into each advertising order form ("Advertiser Order Form") and contract accepted by LYCOS":
LYCOS Europe N.V, Haarlem/Netherlands, listed in the New Market stock market, is the owner or licensee of certain internet website services (collectively, the "LYCOS Services"), which are accessible through numerous URLs across Europe (all sites and LYCOS Services owned or controlled by LYCOS at any time during the term of agreement with Advertiser or by any affiliates, associates or subsidiaries of Lycos including, but not limited to Comundo, Fireball, Tripod, Spray, Caramail, Multimania, Jubii among others are collectively referred to as the "LYCOS Network");
Contracting parties will be the Advertiser and LYCOS UK Limited registered in England no 3923511 whose registered office is at Devonshire House, 60 Goswell Road, London, EC1M 7AD or one of LYCOS N.V.'s subsidiaries as set out in the Advertiser Order Form ("LYCOS").
In these terms and conditions, "LYCOS" is the web site controlled and operated by LYCOS, which appears on the World Wide Web with the domain name www.LYCOS.co.uk and which expression includes all text, graphics, images, code, data and other material on the web site. "Advertisement" and/or "Advertisements" and/or "Advertisement(s)" in these Conditions shall mean all material to be published on LYCOS for which a charge is made. "Advertiser" means the person placing the Advertisement and such expression includes the advertising or sales agency placing the Advertisement. "Contract" means the terms of the relevant Advertiser Order Form and/or agreement signed by the Advertiser and LYCOS in respect of the Advertisement and the Advertiser Terms and Conditions. "Start Date" means the first day on which an Advertisement is due to appear on LYCOS. "Rate Card" means the rate card supplied by LYCOS to the Advertiser.
1. PAYMENT TERMS
A. In the absence of any other specific arrangements expressly agreed in writing between LYCOS and the Advertiser, payment in respect of the Advertisement is due (except where LYCOS has agreed expressly in writing to allow credit to the Advertiser) from the Advertiser no later than:
(a) if the Advertiser has a pre-arranged monthly account facility, the date shown on the monthly invoice or statement; or
(b) in any other case, within thirty (30) days after the date of the relevant invoice.
B. The Advertiser must pay at the rates prescribed by applicable law all taxes and duties (including VAT and all similar sales tax if applicable) on the amounts due in respect of the Advertisement. All amounts paid by the Advertiser after the due date will bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less) above the base lending rate of LYCOS' main bank, from the date when payment was due until the date of payment is received, whether before or after judgment. In the event of any failure by the Advertiser to make payment, the Advertiser will be responsible for all expenses incurred by LYCOS in collecting the amounts due and LYCOS, at its option, may immediately terminate the Contract.
C. The Advertiser shall not be entitled to withhold payment in whole or in part for any bookings of Advertisements accepted by LYCOS by reason of the fact that LYCOS is prevented from publishing (or continuing to publish) such Advertisement in total or in part by any court of competent jurisdiction or does not publish or ceases to publish such Advertisement in consequences of any actual or threatened legal proceedings or by order or request of any regulatory body or generally recognised industry or internet watchdog organisation or for any other valid reason. The Advertiser shall immediately on demand reimburse LYCOS with any costs incurred by LYCOS in connection with such legal proceedings.
D. The Advertiser represents and warrants that it contracts with LYCOS as principal, and has the authority to do so, notwithstanding that the Advertiser may be acting as an advertising agency or media buyer or in some other representative capacity.
E. Where the Advertiser agrees to spend an aggregate amount of money across a period of time, unless expressly agreed in writing otherwise, the Advertiser must spend at least 20% and at most 33% of the agreed aggregate amount of money in each quarter of that period of time, subject to availability of the requested positions.
2. ADVERTISEMENT BOOKING
A. All material for the Advertisement and as required for its publication on LYCOS should be provided by the Advertiser to LYCOS, Carl - Bertelsmann - Str. 29, 33311 Gütersloh, Germany in accordance with LYCOS' requirements set out in this Contract and the deadlines and specifications set out in the Rate Card, including (without limitation) the manner of transmission to LYCOS, the lead-time prior to publication of the Advertisement and such technical specifications as LYCOS may require from time to time. In addition all material and or artwork to be provided by the Advertiser (LYCOS will accept GIF, JPEG, JAVA, or HTML files) must be received by LYCOS at least five working days in advance of the Start Date.
B. All bookings for advertisements must be confirmed in writing with an Advertiser Order Form signed by an authorised signatory of the Advertiser. Such bookings must be received by LYCOS no later than one working day after the booking has been made or such other date as LYCOS in its sole discretion agrees but which shall in no event be later than five working days before the Start Date. LYCOS reserves the right to reject any booking for any Advertisement that does not comply with this timetable. By submitting advertising for inclusion on any LYCOS site, the Advertiser agrees to be bound by the terms of the Contract. No conditions other than those set forth herein shall be binding on LYCOS unless: (i) specifically agreed to in writing by LYCOS and (ii) any additional terms and conditions of Advertiser are expressly written into the Advertiser Order Form signed by the Advertiser and LYCOS. Save in respect of sub-clause 2.B.(i) and (ii) above, in case of any inconsistency between the Advertiser Order Form and these Advertising Terms and Conditions, these Advertising Terms and Conditions will prevail.
C. Except as otherwise expressly provided in the Advertiser Order Form and agreed by LYCOS, positioning of Advertisements within the LYCOS properties or on any page is at the sole discretion of LYCOS, and LYCOS will not be prohibited from also carrying Advertisements for any product or business competitive to the product or business of the Advertiser.
D. LYCOS does not guarantee or commit to the date or dates of insertion of the Advertisement(s) and does not undertake that the Advertisement(s) will not be displayed after the end date specified. However, LYCOS will use reasonable efforts to comply with the Advertiser's wishes in these regards.
E. If the Advertiser wishes to request a change to positioning of Advertisements, it must provide the relevant creatives and any other materials requested by LYCOS and give prior written notice of at least 2 weeks before the end of a calendar month, such change to take place in the following calendar month. Failure to provide such prior notice will mean that the positions set out in the Advertiser Order Form prevail. Any requested change to positioning of Advertisements will be decided at LYCOS's sole discretion, subject to availability.
F. Advertisers may not cancel an Advertiser Order Form unless expressly provided for in the Advertiser Order Form in accordance with sub-clauses 2.B(i) and (ii) of these Terms and Conditions.
3. ADVERTISEMENT STATISTICS
Notwithstanding the provisions of the Advertiser Order Form, Advertiser acknowledges that LYCOS does not make any warranty or guarantee with respect to any user- or usage-statistics ("Statistics") given to the Advertiser by LYCOS. As a result of that, LYCOS shall not be held liable for any claims relating to such Statistics. The Advertiser acknowledges and agrees that LYCOS provides the Advertiser with estimated Statistics as a courtesy to the Advertiser. LYCOS shall not be held liable for any claims relating to the statistics or any usage statistics however supplied. The Advertiser acknowledges that delivery statistics provided by LYCOS are the official, definitive measurements of LYCOS' performance on any delivery obligations provided in the Advertiser Order Form. The processes and technology used to generate such statistics have been certified and audited by an independent agency. No other measurements or usage statistics (including those of the Advertiser or a third party ad server) will be valid under any Contract or in any disputes or differences between LYCOS and the Advertiser.
4. RESERVED RIGHTS AND REJECTION
A LYCOS shall have the right to change its rates for Advertisements as set out in the Rate Card at any time without notice to the Advertiser (excluding prices agreed for existing orders). Such Advertisement rates are exclusive of any Value Added Tax that LYCOS may at any time be obliged to charge.
B. LYCOS also reserves the right, without liability, to reject, replace, omit or exclude any order for an Advertisement or to reject, replace or terminate any links for any reason at any time, with or without notice to the Advertiser, whether or not such Advertisement or link was previously acknowledged, accepted, or published. Notwithstanding this, LYCOS will use reasonable endeavours to fulfil Advertiser's requests.
5. RENEWAL OF ADVERTISING
Except as expressly set out in the Advertiser Order Form and agreed by LYCOS, any renewal of the Advertiser Order Form and acceptance of any additional advertising order will be at LYCOS' sole discretion. The rates applicable to such renewal period (if any) are subject to change by LYCOS from time to time in its absolute discretion.
6. LIMITATION OF LIABILITY
A. Save as specified in this clause, LYCOS shall not be responsible for any error in the placement, or failure to place, any Advertisement on LYCOS. If LYCOS fails to publish any Advertisement or deliver the number of impressions or click-throughs as provided in the Advertiser Order Form or in the event of any other failure, technical or otherwise, of such Advertisement to appear as provided in the Advertiser Order Form, LYCOS's liability will be limited (at the option of LYCOS) to either: (i) publishing the Advertisement (or a replacement advertisement if provided by the Advertiser) on positions agreed in the Advertiser Order Form or as agreed with Advertiser as soon as is reasonably practicable in the period following the period during which the Advertisement was scheduled to run and for such time as is necessary to generate a number of substitute impressions or click-throughs of equivalent monetary value to the shortfall; or (ii) refund to the Advertiser that proportion of the amounts paid which relate to those Advertisements and/or impressions or click-throughs which were not provided, and if the relevant amounts were not paid by the Advertiser, agree that such amounts will not be due or payable. LYCOS will only provide a refund to the Advertiser under sub-clause 6.A (ii) if: (a) the creative materials provided by Advertiser arrived within the time limits specified in the Advertiser Order Form; (ii) the creative materials performed in accordance with LYCOS' technical specifications; and changes to media schedules were notified within the timeframe set out in sub-clause 2.E of these Advertiser Terms and Conditions.
B. Where the Advertiser uses a third party server to serve Advertisements to LYCOS: (i) LYCOS accepts no liability and the Advertiser will hold only the third party server (and not LYCOS) liable for the failure to publish any Advertisement or deliver the number of impressions or click-throughs as provided in the Advertiser Order Form or any other loss of any kind suffered by the Advertiser where those failures or losses are due to or arise out of or in connection with any act or omission of the third party server; and (ii) the statistics provided by LYCOS are the official and definitive measurements. LYCOS reserves the right to terminate at LYCOS's sole discretion the right of the third party server to serve the Advertiser's Advertisements to LYCOS's network. In the event of such termination, LYCOS may serve the Advertisements instead.
C. LYCOS will use reasonable skill and care in performing its duties hereunder but subject thereto:- (i) LYCOS hereby excludes any warranty, express or implied, as to the quality, accuracy, performance or fitness for a particular purpose of LYCOS or of any of its contents; (ii) LYCOS will not be liable for any losses or damages arising (whether in tort (including negligence), contract or otherwise) directly or indirectly as a result of use of LYCOS or in connection with Advertisements on LYCOS including without limitation any technical malfunction, computer error, defect in software, loss of data or other damage or disruption to advertisements; (iii) LYCOS makes no warranty that the contents of LYCOS are free from infection by viruses, worms or trojans or anything else that has contaminating or destructive properties; and (iv) certain links on LYCOS may lead to resources located on servers maintained by third parties over whom LYCOS has no control and LYCOS accepts no liability arising from access to or use of any material contained on those servers.
D. LYCOS does not limit or exclude liability for death or personal injury caused by its negligence.
E. Subject only to sub-clause 6.D above, LYCOS expressly excludes all liability, whether in contract, tort (including negligence) or otherwise (i) for any indirect, special or consequential loss or damage which may arise out of or in relation to the Contract or (ii) for loss of profit, business, contracts revenue, goodwill, production or anticipated savings, in any such case even if LYCOS has been advised as to the possibility of such damages.
F. In addition, without limiting the foregoing, LYCOS cannot be held responsible for any failure or delay resulting from any governmental action, natural disaster, insurrection, power failure, riot, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other event or condition beyond the reasonable control of LYCOS affecting production or delivery in any manner.
G. Subject only to sub-clause 6.D above, the maximum liability in aggregate under or in connection with this Contract for LYCOS shall be an amount equal to the fees paid by the Advertiser to LYCOS in respect of the Advertisement.
H. For the avoidance of doubt, each of the provisions of this clause 6 are to be construed separately and independently of the other, and if any provision of this clause 6 (or any other clause herein) is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this clause 6 (or any other clause herein) which will remain in full force and effect.
7. LICENCES, ADVERTISER REPRESENTATIONS AND INDEMNIFICATION
A. Advertiser warrants and represents that the Advertiser is the owner or is licensed to use the entire contents and subject matter contained in its advertising and information, including, without limitation, (i) the names and/or pictures of persons; (ii) any copyright in the material, trademarks, service marks, logos, and/or depictions of trademarked or service marked goods or services or any other intellectual property rights; and (iii) any testimonials or endorsements contained in any Advertisement submitted to LYCOS. The Advertiser warrants and represents to LYCOS that the publication of the distributed materials will not infringe any rights of any third party and will not violate any applicable law or regulation.
B. In addition, Advertiser warrants and represents to LYCOS that:
(i) It has the right to publish all of the contents of the Advertisements, and can grant to LYCOS such right, and that such publication will not: (a) infringe any rights of any third party including, without limitation, intellectual property rights and rights of privacy; and (b) violate any applicable law or regulation.
(ii) The Advertisements do not contain anything that is defamatory, obscene, false or misleading.
(iii) It has complied with the codes of advertising and sales promotion issued by the Committee of Advertising Practice in the UK and the Advertising Standards Authority for Ireland and all other relevant industry codes of practice.
(iv) The Advertisement submitted pursuant to the Advertiser Order Form either: (a) does not constitute a financial promotion within the meaning of the Financial Services and Markets Act 2000 ("the Act") or other applicable law; or (b) has been approved by an "authorised person" within the meaning of the Act or is otherwise permitted under the Act and the Advertiser has expressly notified LYCOS in writing of this.
(v) It does not collect or use personal information through its Advertisements on any LYCOS property without permission from the user and shall at all times comply with the Data Protection Act 1998. The Advertiser may not combine, co-mingle, compare or match any information that it legally collects via its Advertisements on any LYCOS property with any personal information, clickstream or cookie information that they may have.
C. Hereby the Advertiser expressly grants to LYCOS:
(i) a non-exclusive, world-wide right to use, reproduce, publicly display, and distribute the Advertisements in accordance with the Advertiser Order Form and these Advertising Terms and Conditions and in accordance with any contractual or statutory obligation or in compliance with any code of practice or request from any regulatory body and warrants that Advertiser has the right to grant such licence;
(ii) the express right to reproduce throughout the world screen shots of all or part of any LYCOS property containing all or part of any of the Advertisement materials supplied by the Advertiser to LYCOS on or in any promotional or advertising material or campaign promoting or advertising LYCOS (but not any promotional or advertising campaign paid for by LYCOS).
D. In consideration of LYCOS' acceptance of such Advertisements and information for publication, the Advertiser agrees to indemnify and hold LYCOS and LYCOS` employees harmless against any and all claims actual or any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or breach of any industry advertising codes or sales practices), damages, liabilities, costs and expenses), arising out of or in connection to:(i) any material to which users are able to be linked to through the Advertisement, (ii) LYCOS' performance under the Contract, (iii) the copying, printing, distributing, or publishing of Advertiser's Advertisements by LYCOS; and (iv) any breach by the Advertiser of the foregoing provisions of this clause.
8. NO ASSIGNMENT OR RESALE
Advertiser may not resell, assign or transfer this Contract or any of its rights or obligations hereunder, without prior written consent of LYCOS. Any violation of this provision will entitle LYCOS to terminate this Contract immediately, without liability and without prior notice. Lycos may at its discretion resell, assign or transfer any or all of its rights or obligations under this Contract.
9. CONFIDENTIALITY
A. The provisions of the Advertiser Order Form and all communications passing between the Advertiser or any of its agents and LYCOS are confidential and must not be disclosed to any third party except: (a) by the Advertiser to its qualified accountants or legal advisers; (b) by LYCOS to its qualified accountants or legal advisers; or (c) as otherwise agreed by the parties in writing or as otherwise required by law, by any government authority, court order, regulatory body or stock exchange requirement. In addition, in connection with their discussions, the Advertiser may have received and may in future receive from LYCOS certain valuable technical and non-technical information and materials relating to LYCOS and its business, which is confidential and proprietary to LYCOS. Advertiser agrees to preserve the confidentiality of information belonging LYCOS.
B. The Advertiser and its agents are hereby put on notice that LYCOS and its affiliates are particularly sensitive to public statements about the LYCOS web services, their contractual relationships and product plans, and improper or ill-timed statements are likely to have a detrimental effect on the business of LYCOS and its affiliates and may contravene applicable law. Consequently, the Advertiser and its agents must not, and must ensure that any person acting on its behalf does not, make any public announcement in respect of the Advertiser Order Form or the relationship between the parties without prior written consent of LYCOS including without limitation any pre-announcement in respect of the display of advertising on any LYCOS property. For the avoidance of doubt, the foregoing prohibition includes public announcements by any third party acting on behalf of the Advertiser and any communication that the Advertiser knows will or is likely to be made public. Any breach of this clause 9.B by the Advertiser will be deemed to be a breach of confidentiality under this clause 9.
10. MISCELLANEOUS
A. The placing of an Advertiser Order Form for the insertion of an Advertisement shall amount to an acceptance of these Terms and Conditions and Subject to sub-clause 2.B(i) and (ii) of these Terms and Conditions any conditions stipulated on an Advertiser Order Form or elsewhere by an agency or an Advertiser shall be void in so far as they are in conflict with them.
B. English Law shall govern any Contract entered into with LYCOS incorporating these Terms and Conditions. The English courts shall have non-exclusive jurisdiction over any dispute arising under this Contract.
C. Any modifications to these Terms and Conditions of this Contract must be in writing and signed by an authorised senior representative of LYCOS.
D Notwithstanding any other provision in these Advertising Terms and Conditions, a person who is not a party to these Advertising Terms and Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Advertising Terms and Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
E. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Contract shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
F. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
G. If any provision of these Terms and Conditions or of a Contract are determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Terms and Conditions shall remain enforceable.
LYCOS UK & Ireland, LYCOS House, 3 Sutton Lane, Clerkenwell, London, EC1M 1PU