Advertising Terms & Conditions
1.Definitions
In these Conditions, the following words and expressions shall have the meaning set out below:
“Advertiser” is the entity or person whose products and/or services are featured in the Advertising Material;
“Advertising Material” means promotional material (including any text, images, audio and video content) to be placed on one or more Platforms in accordance with the terms of this Agreement;
“Agreement” means these Terms and Conditions and the associated Booking Terms;
“Booking Terms” means (i) an insertion order; and (ii) any other written documents (including emails) which set out the details of a booking to place Advertising Material on Platforms and which have been accepted in writing by Publisher;
“Campaign Period” means the campaign period booked by the Client during which the Advertising Material will be placed on one or more Platforms;
“Client” means the Advertiser and/or its advertising agency as set out in the Booking Terms;
“Client Trade Marks” means the name of the Advertiser and any other trade marks incorporated in the Advertising Material other than Publisher Trade Marks;
“Client Website” means the web site(s) referred to in the Advertising Material and/or to which the Advertising Material is linked via hyper-text link(s);
“ESL” means Evening Standard Limited (company number 6770098);
“Evening Standard Platforms” means the Evening Standard printed newspaper, ES Magazine and any printed supplements, the websites standard.co.uk and esmag.co.uk and the corresponding mobile/tablet apps (including the Evening Standard App);
“GDPR” : has the meaning given to it in section 3(10) of the Data Protection Act 2018 (as supplemented by section 205(4));
“IDNML” means Independent Digital News and Media Limited (company number 7320345);
“Independent Platforms” means The Independent and indy100 digital editions, the websites independent.co.uk and indy100.com and all corresponding mobile/tablet apps (including the Independent Premium App and the Independent Daily Edition App);
“Information” means video, audio, text, images, Client Trade Marks and other materials which will appear within (or will be used to create) the Advertising Material;
“Personal Data” has the meaning given in the GDPR.
“Platform” means the relevant Publisher Platforms and (where applicable) selected Third Party Platforms;
“Publisher” means the company which publishes the relevant Publisher Platform where the Advertising Material will appear. Where more than one company is involved, each one will have the benefit of these terms. For information, the relevant companies are currently: IDNML for the Independent Platforms and ESL for the Evening Standard Platforms;
“Publisher Platforms” means the Independent Platforms and the Evening Standard Platforms;
“Publisher Trade Marks” means all trade marks owned by Publisher;
“Third Party Platform” means a digital platform owned and operated by a third party; and
“User” means any person who accesses or otherwise engages with a Platform.
“User Data” means Personal Data collected from end-users of Platforms (whether through the use of cookies, web beacons or any other technology).
2. Rights and Obligations of Publisher
2.1 Publisher will arrange for the Advertising Material to appear in the Platforms, as arranged with the Client insofar as is possible. While every endeavour will be made to meet the wishes of the Client, Publisher does not guarantee that any particular Advertising Material will be disseminated.
2.2 Publisher retains full editorial control over the Publisher Platforms.
2.3 All rights (including copyright) in all artwork, copy and other material produced by Publisher shall vest in Publisher
3. Rights and Obligations of the Client
3.1 The Client agrees to supply to Publisher on or before the agreed delivery date either:
(i) a file containing the Advertising Material in the format agreed between the Client and Publisher; or
(ii) (if it is specifically agreed with Publisher that Publisher will create the Advertising Material) all Information requested by Publisher in an agreed format and medium.
3.2 The Client agrees that it will not rotate advertisements for multiple Advertisers within one digital ad tag.
3.3 In relation to digital campaigns, the Client will not, and will not authorize any third party to, (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions or (ii) conceal conversions.
4. Acceptance
4.1 The placing of an order for the insertion of Advertising Material shall amount to an acceptance by the Client of the terms of this Agreement.
4.2 Any conditions stipulated verbally or in any other format by the Client shall be void insofar as they are (i) not approved by Publisher in writing; and/or (ii) in conflict with this Agreement.
5. Advertising Material
5.1 Publisher retains the right to omit, amend, suspend or change the position/timing of any Advertising Material, including, but not limited to where in the sole discretion of Publisher: (i) the Advertising Material is in breach of any undertakings or warranties under this Agreement, (ii) the software code associated with the Advertising Material (e.g. pixels, tags, JavaScript) or the website to which the Advertising Material is linked does not comply with Publisher’s policies or any applicable laws, regulations and/or guidelines; or (iii) where any third party claims that any of its rights or any relevant regulations have been breached.
5.2 In the event that Publisher elects to amend the Advertising Material (or the position/timing thereof), Publisher will use reasonable endeavours to consult with the Client in good faith.
6. Charges
6.1 The Client shall pay all fees and charges in advance unless an account has been previously approved by Publisher.
6.2 Where an account has been approved by Publisher, the due time for payment shall be no later than 2.00 p.m: (i) if the Client is a recognised agency under the Recognition Scheme of the News Media Association, on the last working day of the month following that in which the Advertising Material appeared; or (ii) in any other case, on the last working day prior to the 16th day following the end of the month in which the Advertising Material appeared.
6.3 In respect of each advertisement for which payment is not made by the due date, the Client agrees to pay Publisher interest on the amount overdue at the rate of 1.5% per month (or the maximum amount permitted by law if less) accruing from the due date.
6.4 The Client agrees that Publisher’s statistics (including its impression count) will be used for all digital campaigns and will be final and binding on Client.
7. Errors
7.1 It is the responsibility of the Client to check upon the first appearance of the Advertising Material and notify Publisher immediately of any errors. Publisher assumes no responsibility for the correction of errors unless notified by the Client within 7 days. In the event of any error or omission in the appearance of Advertising Material which is caused by Publisher, Publisher will either re-publish the Advertising Material (or relevant part thereof) or make a reasonable refund of or adjustment to the charges. No re-publication, refund or adjustment will be made where the error, misprint or omission does not materially detract from the advertisement.
8. Warranties
8.1 Publisher warrants to the Client that it has the full power and authority to enter into and perform this Agreement.
8.2 The Client warrants and undertakes to Publisher that:
(i) it has the full power and authority to enter into and perform this Agreement;
(ii) where it is acting as advertising agency for an Advertiser, it is authorised by the Advertiser to place the advertisement with Publisher, that it is entering into this Agreement with Publisher as a principal and that it will indemnify Publisher against any claim made by the Advertiser against Publisher arising from the publication thereof;
(iii) the reproduction of the Advertising Material and Information on the Platforms shall not infringe any copyright, trade mark, right of privacy, right of publicity or personality or any other right of any nature of any third party;
(iv) where any Advertising Material contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified, the Client has obtained the authority of such living person to make use of such name, representation and/or copy;
(v) in relation to any investment advertisement, the Advertising Material has been approved by a person authorised under the relevant legislation;
(vi) there are and shall be no claims, demands, liens, encumbrances or rights of any kind in any of the Information which can or will impair or interfere with the rights or obligations of Publisher;
(vii) the Advertising Material, the Client Website and any claims made therein:
(a) comply with all relevant laws, regulations and advertising codes (e.g. The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing) and any other standards communicated to Client by Publisher from time to time;
(b) do not contain any material that is misleading, deceptive, obscene, blasphemous, defamatory, infringing of any rights of any third party or is otherwise legally actionable under any civil or criminal laws in force in any jurisdiction from which the Advertising Material will be accessible;
(c) do not contain and will not distribute any viruses, spyware, malware or other malicious or destructive code; and
(d) do not contain any material which might bring Publisher, its products or partners into disrepute.
8.3 In relation to Advertising Material which includes: (i) a competition, prize draw, discounted offer or other form of sales promotion; and (ii) both Client Trade Marks and Publisher Trade Marks (a “Promotion”), the Client warrants and undertakes to Publisher that:
(i) it is entitled to supply the goods and services featured in the Promotion and Publisher will incur no cost or liability in respect of such supply (and the Client will put in place suitable insurance arrangements);
(ii) such goods and services will comply with any specification or description agreed between Publisher and the Client;
(iii) such goods and services will be supplied with reasonable care and skill and in accordance with best industry standards,
(iv) such goods and services will comply with all applicable laws, regulations and guidelines both in their supply and manufacture,
(v) such goods will be delivered and such services will be performed in a timely fashion, in the quantities, at the time(s) and location(s) set out in the Advertising Material or as otherwise agreed by Publisher and the Client;
(vi) in the event of any defect in such goods or in the performance of such services, the Client will supply substitute goods or services in a timely fashion, in the quantities, at the time(s) and location(s) specified by Publisher; and
(vii) it will use its best endeavours to ensure the success of the Promotion and shall cooperate fully with Publisher in respect of any reasonable request made by Publisher in relation to the Promotion.
9. Liability
9.1 The Client agrees to defend, indemnify and hold harmless Publisher and its officers, directors, agents, affiliates and employees, at all times against all claims, proceedings, demands, damages, liabilities and costs (including reasonable legal fees) arising in connection with: (i) a breach of this Agreement by the Client; (ii) the content of any Advertising Material or Client Website; (iii) a contaminated file, virus, worm, or Trojan horse originating from the Client or Advertiser; and (iv) any transaction entered into by the Client and a User.
9.2 Publisher will not be liable for any loss or damage, direct or consequential, arising out of any failure to publish any Advertising Material or for the delayed publication of any Advertising Material or Publisher’s failure to perform any other obligation howsoever occasioned, save where caused by the direct negligence of Publisher, in which case compensation shall be limited to the charges payable by the Client.
9.3 Publisher gives no warranties or guarantees in respect of Third Party Platforms and Publisher will not be liable for any loss or damage, direct or consequential, arising out of or in connection with Third Party Platforms.
9.4 Save for any liability that cannot be limited by law, Publisher’s liability to the Client will be limited to the amount of the fees due under the Booking Terms and Publisher shall have no liability to the Client for any indirect losses.
9.5 Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded by law.
10. Intellectual Property Rights
10.1 The Client warrants and undertakes that it is and shall remain the owner (or expressly authorised by the owner), of all intellectual property rights in the Client Website and the Client Trade Marks.
10.2 The Client hereby grants Publisher a non-exclusive licence to use the Information and to publish the Advertising Material on the Platforms as agreed in the Booking Terms.
10.3 Where any third party claims that any Advertising Material infringes the intellectual property rights of a third party: (i) the Client shall notify Publisher immediately; and (ii) Publisher may modify the Advertising Material or delete or replace any part of the Advertising Material, or information contained in the Advertising Material in accordance with Clause 5.
11. Confidentiality and Data
11.1 Each party agrees to keep confidential (both during and after the Campaign Period) the terms of this Agreement and all other information concerning the business or affairs of the other party. This obligation will not apply in the case of any disclosure required by law, or information which is already publicly available or in the possession of a party at the time of disclosure by the other (other than as a result of a breach of any confidentiality obligation).
11.2 Client agrees that it will not make any disclosure or public statement concerning the subject matter of this Agreement without Publisher’s prior written approval.
11.3 Client will comply with all applicable data protection legislation, including the GDPR.
11.4 Client will not collect or otherwise process any User Data without Publisher’s prior written consent.
11.5 If Publisher does grant such consent, Client acknowledges and agrees that Client will:
(i) be an independent controller of User Data;
(ii) stop processing User Data within 7 days of its collection;
(iii) not use User Data to retarget individuals on other sites;
(iv) not disclose User Data to any third party, unless it has been anonymised prior to such disclosure and there is no reference to Publisher or any Platform;
(v) not process User Data in a way that is inconsistent with the privacy notice displayed to end-users of our websites from time to time; and
(vi) not utilise the User Data to create or augment profiles of individuals based on their behaviour.
11.6 Client will ensure that all third parties who Clients work with (directly or indirectly) adhere to these provisions of this clause 11.
12. Cancellation
Orders cannot be cancelled once Publisher has started to carry out the order in accordance with the first publication date requested by the Client. Where Publisher has not started to carry out the order, unless otherwise agreed in the Booking Terms, not less than twenty-eight (28) days’ notice of cancellation is required. Email notification of cancellation is not acceptable unless acknowledged by Publisher.
13. Termination
13.1 Either party may terminate this Agreement immediately by giving written notice to the other party:
(i) if the other party commits any material breach of its obligations and/or warranties under this Agreement which, in the case of a breach capable of remedy, is not remedied within 10 days of service of a notice specifying the breach and requiring it to be remedied (Publisher reserves the right to suspend dissemination of the Advertising Material pending its eventual reinstatement upon the breach in question being remedied); or
(ii) if the other party holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangements as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrance take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of the Insolvency Act 1986; or
(iii) pursuant to Clause 16.
13.2 Upon termination of this Agreement:
(i) Publisher will remove the Advertising Material from the Platforms; and
(ii)The Client will account to Publisher within 7 days for all fees and charges payable up to and including the last day of the Campaign Period or date of termination, as applicable.
13.3 Termination of this Agreement shall be without prejudice to any rights of a party accrued before termination.
14. Disputes
14.1 This agreement 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 agreement or its subject matter or formation (including non-contractual disputes or claims).
15. Notices
15.1 Any notice given under this Agreement will be in writing and may be delivered to the other party or sent by pre-paid post or courier to, the main business of that party (or such other address as may be notified under this Agreement by that party from time to time for this purpose). Email is not acceptable, unless specifically mentioned in these Terms and Conditions.
16. Force Majeure
16.1 A party will not be liable for any failure or delay in performing its obligations under this Agreement to the extent that this failure is the result of any cause or circumstance beyond the reasonable control of that party. If by reason of force majeure a party is unable to perform all or any part of its obligations under this Agreement for a continuous period of 20 working days, the other party may terminate this Agreement immediately by written notice.
17. Assignment
17.1 This Agreement is personal to and for the sole benefit of the Client and the Client shall not assign, transfer, sub-license, sub-distribute, mortgage, charge or in any other way dispose of any of its rights, interests or obligations under this Agreement to any person or organisation. Publisher shall be entitled to assign or license the whole or any part of its rights under this Agreement to any associated company within Publisher’s group and in such event all of the representations, warranties and undertakings on the part of the Client contained in this Agreement shall inure for the benefit of the relevant Publisher associated company.
18. General
18.1 Nothing in this Agreement will be deemed to create a partnership or joint venture between the parties.
18.2 No failure or delay by any party in exercising its rights under this Agreement will operate as a waiver of that right nor will any single or partial exercise by either party of any right preclude any further exercise of any other right.
18.3 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not expressly set out in the Agreement.
18.4 Each party agrees that it shall:
(i) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”); and
(ii) maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate.
18.5 Nothing in this agreement shall exclude or restrict either party’s liability for death or personal injury resulting from the negligence of that party or for any other liability which cannot be limited by law.
18.6 Any variation to the Booking Terms must be in writing and agreed by the parties. Publisher may modify these Terms and Conditions at any time and without liability by posting an updated version on its website: www.esimedia.co.uk/advertising-terms-and-conditions
1. Agreement. These Terms and Conditions together with the accompanying signed Insertion Order constitutes a binding agreement between the advertiser identified on the Insertion Order ("Advertiser") and the Illinois State Bar Association ("ISBA"). The Agreement may not be assigned or transferred by the Advertiser.
2. Advertising. The Advertiser shall purchase the online advertising package at the rate listed, and for the duration specified, in the accompanying signed Insertion Order ("IO").
3. Positioning. Except as otherwise expressly provided in the IO, positioning of advertisements is at the sole discretion of the ISBA. Advertiser acknowledges that ISBA has not made any guarantees with respect to usage, statistics, or levels of impressions for any advertising except where expressly stated in the IO. To the extent ISBA provides Advertiser with estimated usage it does so only as a courtesy to Advertiser and shall not be held liable for any claims related to usage.
4. First Time Advertiser (Payment). If Advertiser is a first time Illinois based Advertiser with the ISBA, it shall provide payment for the first month of advertising at the time the IO is submitted. If a first time out of state Advertiser, payment for the first two months of advertising is required at the time of IO submission.
5. Payment. Advertiser shall make payment within 30 days of the billing date indicated on the ISBA invoice. ISBA reserves the right to request full or partial payment before publishing any advertisement and to cease publishing any advertisement when payment for previous advertising is more than 60 days overdue. In the event any account becomes past due, in addition to such other remedies as it may have, the full amount of the account shall immediately become due and payable by Advertiser. Advertiser is responsible for all expenses incurred in connection with the collection of past due amounts payable, including attorneys fees and costs.
6. Cancellation. Advertisements scheduled for insertion may be cancelled by the Advertiser if the ISBA is notified in writing on or before the copy deadline date of scheduled publication. When an Advertiser cancels all or part of a multiple IO, the Advertiser is responsible for payment of the rate differential resulting from such cancellation.
7. Rejection of Advertisements. Notwithstanding anything in this Agreement to the contrary, the ISBA reserves the right to reject or cancel any advertisement at any time, for any reason (including but not limited to the ISBA's belief that the advertisement conflicts with ISBA policy or association objectives, competes with ISBA products or services, is false or misleading, may degrade the graphic quality of the ISBA website, or may subject the ISBA to criminal or civil liability).
8. Indemnification. Advertiser assumes all liability for content of advertising and agrees to defend, hold harmless, and indemnify ISBA from all claims, losses, judgments, damages, costs and expenses of any nature whatsoever, including but not limited to reasonable attorney fees, for which the ISBA may become liable by reason of its publication of the Advertiser's advertisements.
9. Liability Limitation. Liability for typographical errors, wrong insertions, late publications, and/or nonpublication, or other Association nonperformance is limited to the amount charged to the Advertiser by the ISBA. In no event shall ISBA be liable to Advertiser or to any third party for any indirect, special, or consequential damages, including but not limited to lost profits or unrealized business opportunity arising out of this agreement or the publication of or failure to publish any advertisement.
10. Force Majeure. Neither party shall be held responsible for delay or failure in performance under this Agreement caused by acts of God, fires, floods, strikes, terrorism, work stoppages, breakdown of equipment, government action, internet or website downtime, or other causes beyond the affected parties' reasonable control.
11. Governing Law. This Agreement is governed by the laws of the State of Illinois without regard to its conflict of laws rules or principles.
12. Termination. ISBA shall be entitled to terminate this Agreement with or without cause upon 30 days written notice to Advertiser. In the event of termination under this paragraph, ISBA shall refund or credit Advertiser for the unused pro-rata portion of the price of the advertising purchased.
EXECUTION VERSION
MASTER ADVERTISING AGREEMENT (CPC)
This Master Advertising Agreement (CPC) (“Agreement”) is entered into by and between, on one hand, TripAdvisor LLC, TripAdvisor Limited, and TripAdvisor Singapore Private Limited (collectively, the “TripAdvisor Companies”) and, on the other, Expedia, Inc., Hotels.com LP, and Travelscape LLC (collectively, the “Expedia Companies”). This Agreement will be effective as of December 20, 2011 (the “Effective Date”).
1) Defined Terms.
a) “Ad(s)” means the advertising media specified in an applicable Schedule.
b) “Advertiser” means the Party or Parties designated in a Schedule that desire to have Ads placed on Media Properties.
c) “Affiliate” means, with respect to the Expedia Companies or the TripAdvisor Companies, any entity that controls, is controlled by, or under common control with such party.
d) “Media Properties” means one or more websites and/or other electronic media distribution channels (e.g., email) designated in an applicable Schedule.
e) “Party” means, as applicable, an Expedia Company, a TripAdvisor Company, or their respective Affiliates.
f) “Publisher” means the Party or Parties designated in a Schedule who are placing Ads on Media Properties on behalf of an Advertiser.
g) “Schedule” means an attached schedule identifying the applicable Advertiser and Publisher, Media Properties and Ad(s).
2) Description of Service. Except as otherwise provided in Sections 3, 4 and 5 of this Agreement, Publisher shall display the Ad(s) beginning on the Start Date and ending on the sooner of (a) the End Date or (b) the end date that the overall sum of the total cost per click charges, impression levels, or flight duration commitments stipulated in the applicable Schedule reach the net amount of advertising purchased. Publisher shall use good faith efforts to deliver the number of click-throughs or impressions (if specified in the applicable Schedule) within the time period stated, but shall not be liable at all for failing to do so. If a Schedule states that it is an open order, then Advertiser shall not limit or cap its budget or limit the items available for Publisher to promote on the Media Properties (e.g. Advertiser shall make all hotels that are available on Advertiser’s websites available for Publisher to promote on the Media Properties) unless otherwise specified.
3)
Schedules. Upon mutual written consent and approval (which may occur via email), the Parties may make changes to the non-financial details of an advertising campaign previously set forth in a Schedule (e.g., changes to the placement description, creative unit, start/end dates and number of ad requests). No other conditions, provisions, or terms of any sort appearing in any writings or other communications made in connection with such Schedules, including without limitation those contained on or accompanying checks or other forms of payment, will be binding on Publisher, whether in conflict with or in addition to this Agreement. The Schedules are not subject to cancellation, except as provided below under Section 7. Advertiser will use Publisher services in accordance with applicable law and in a
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by Publisher in its sole discretion. Each Schedule shall specify (if applicable) the types and amount of inventory to be delivered (e.g. impressions, clicks, or other desired actions as the “Deliverables”), the price for such Deliverables, the maximum amount of money to be spent pursuant to the Schedule (if applicable), the start and end date of the campaign, if applicable.
4) Ads
Publisher reserves the right, without liability, to reject, remove and/or cancel any Ads which contain content or links which do not meet Publisher’s advertising specifications, at Publisher’s sole discretion. Publisher’s sole liability under this Section shall be to refund the pro-rata portion of amounts paid for the unfulfilled advertising term, if any. Publisher may redesign its Media Properties at its sole discretion at any time.
a) Advertiser hereby grants Publisher the right to display its Ad(s) (and other related content such as thumbnail photos) on the designated Media Properties. Failure by Publisher to publish any requested Ad(s) does not constitute a breach of contract or otherwise entitle Advertiser to any legal remedy.
b) Advertiser’s failure to comply with all applicable requirements of Publisher’s advertising specifications may delay or prevent delivery of the Ad(s).
c) Advertiser shall be solely responsible for the content of its Ad(s) and any web site linked to from such Ad(s) and shall indemnify Publisher for all loss, costs, and damages in connection with any claims of infringement of any third party rights. Advertiser represents, warrants and covenants to Publisher that at all times, (a) it is fully authorized to publish the entire contents and subject matter of all requested Ad(s) (including, without limitation, all text, graphics, URLs, and Internet sites to which URLs are linked); (b) all such materials and Internet sites comply with all applicable laws and regulations and do not violate the rights (including, but not limited to, intellectual property rights) of any third party; (c) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and its execution of this Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound, or any applicable law, rule or regulation; and (d) each such Internet site is controlled by Advertiser and operated by Advertiser or its independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the Ad(s).
d) It is the Advertiser’s obligation to submit Ad(s) in accordance with Publisher’s then-existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Publisher’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Media Properties on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively “Policies”).
5) Privacy and Compliance. From the date that an Ad begins to run, through the expiration or termination of the Agreement or applicable Schedule, Advertiser shall have a privacy policy in place governing Advertiser’s use of end users’ personal information that meets or exceeds any applicable laws, rules and regulations governing the use of such information. Both parties shall
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
ensure that any collection, use and disclosure of information obtained pursuant to the related Schedule comply with all applicable laws, regulations and privacy policies, including all of the requirements the CAN-SPAM Act. Advertiser agrees not to send any unsolicited, commercial email or other online communication (e.g., “spam”) through to Publisher users and shall comply with all applicable Publisher policies regarding bulk mail. For the purposes of any email or advertising placements, Advertiser designates Publisher as the “sender” for compliance with the CAN-SPAM Act. This section shall survive the completion, expiration, termination or cancellation of this IO for a period of five (5) years.
6) Payment Terms and Calculations. Advertiser shall be invoiced by Publisher on a monthly basis upon completion of the calendar moth in which the advertising was displayed unless stated otherwise in the applicable Schedule. Publisher’s payment terms are net 30 days from the date of invoice. In addition to any other rights, Publisher may immediately remove Advertiser’s Ad(s) in the event of non-payment by Advertiser within such time period. All sums payable by Advertiser to Publisher under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate. All billing calculations are based solely on the ad impression or quick count metrics as calculated by Publisher (including, but not limited to CPM and CPC), not Advertiser or third party calculations, unless otherwise specified in the Schedule.
7) Term and Termination. Unless terminated earlier in accordance with this Agreement, all Schedules hereunder will begin upon the Effective Date and extend for a period of one (1) year thereafter. This Agreement may be terminated by either party if a material breach of this Agreement remains uncured after the non-breaching party has given thirty (30) days prior written notice to the breaching party specifying the breach. So long as any Schedule remains in effect, this Agreement shall also remain in effect. If any Schedule is terminated for any reason, Advertiser shall pay to Publisher, within thirty (30) days after such termination, all amounts not yet paid for such delivered Ad requests up to the effective date of termination. IF EITHER PARTY TERMINATES ANY SCHEDULE, ADVERTISER’S SOLE REMEDY WILL BE A REFUND OF ANY PRE-PAID FEES IN EXCESS OF THE FEES OWED TO PUBLISHER UNDER THE SCHEDULE. NEITHER PUBLISHER NOR ANY OF ITS AFFILIATES WILL HAVE ANY OTHER LIABILITY OF ANY NATURE TO ADVERTISER.
8) Confidentiality. Any marked confidential information and proprietary data provided by one party, including the pricing of the Ads, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations, [**] Notwithstanding the foregoing, the recipient may disclose such Confidential Information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order. [**]
9) Liability, Warranty & Indemnity
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
(a) EXCEPT AS OTHERWISE STATED HEREIN, PUBLISHER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES DISPLAYED ON THE MEDIA PROPERTIES OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE MEDIA PROPERTIES. PUBLISHER DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY ADVERTISER OR ANY THIRD PARTY. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL ANY PARTY BE LIABLE TO ADVERTISER FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR AMOUNT RECEIVED OR RECEIVABLE BY PUBLISHER FROM ADVERTISER FOR THE SPECIFIC AD AT ISSUE.
(b) Advertiser agrees to defend, indemnify and hold harmless Publisher and each of Publisher’s agents, customers, subcontractors and affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any claim against any such parties in connection with Advertiser’s Ad(s), except to the extent that such claims directly resulted from the gross negligence or willful misconduct of Publisher.
10) General Provisions. These terms and conditions are governed by the laws of the State of New York, USA. The Parties consent to the exclusive jurisdiction and venue of courts of New York City (Manhattan), New York, for all disputes related to the subject matter hereof. No joint venture, partnership, employment, or agency relationship exists between Advertiser and Publisher. Neither Party will be deemed to have waived or modified any of these terms and conditions except in writing signed by its duly authorized representative. Neither Party may assign its rights hereunder to any third party unless the other Party expressly consents to such assignment in writing, not to be unreasonably withheld. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable. Except as specifically provided herein, this Agreement and all Schedules hereto constitute the entire understanding and agreement between the parties and supersedes any and all prior understandings and/or agreements between the parties with respect to the subject matter. No change, amendment or modification of any provision of this Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties.
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
[Signature page to Master Advertising Agreement (CPC)]
Expedia, Inc. TripAdvisor LLC
By:
/s/ Mark Okerstrom
By:
/s/ Seth J. Kalvert
Title:
Chief Financial Officer
Title:
SVP and General Counsel
Date:
December 20, 2011
Date:
December 20, 2011
Hotels.com, LP
by Hotels.com GP LLC, its general partner
TripAdvisor Limited
By:
/s/ Mark Okerstrom
By:
/s/ Seth J. Kalvert
Title:
Chief Financial Officer
Title:
SVP and General Counsel
Date:
December 20, 2011
Date:
December 20, 2011
Travelscape LLC TripAdvisor Singapore Private Limited
By:
/s/ Mark Okerstrom
By:
/s/ Seth J. Kalvert
Title:
Chief Financial Officer
Title:
SVP and General Counsel
Date:
December 20, 2011
Date:
December 20, 2011
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
SCHEDULE 1
(Expedia – TripAdvisor CPC)
This Schedule is made between the Publisher and Advertiser set forth below, pursuant to the Master Advertising Agreement (CPC) between the TripAdvisor Companies and the Expedia Companies, dated December 20, 2011 (the “Agreement”). Except as expressly set forth herein, this Schedule is subject to the terms and conditions of and incorporated into the Agreement. All capitalized terms, where not defined herein, will have the meanings set forth elsewhere in the Agreement.
Advertiser: Expedia, Inc., and Travelscape LLC (collectively, “Expedia”) with respect to Expedia-branded websites operated by Expedia (e.g. Expedia.com, Expedia.co.uk, Expedia.fr, etc.)
Publisher: TripAdvisor LLC, TripAdvisor Limited, and TripAdvisor Singapore Private Limited (collectively, “TripAdvisor”)
Media Properties: TripAdvisor-branded websites, plus at TripAdvisor’s discretion, any TripAdvisor subsidiaries and/or syndication partners.
Summary:
1. Expedia may bucket inventory, at the end of each month for the following month, by profitability, or other metrics at Expedia’s sole discretion. The parties may also re-bucket inventory at other times if and as mutually agreed. TripAdvisor will provide a reasonable number of buckets by Expedia point of sale (“POS”), [**], so Expedia can optimize spend to be most effective based upon referrals, profitability or strategic objectives. [**].
2.
CPC’s are set on a per bucket level per Expedia point of sale, and are set at the end of each month for the following month; provided, however, that the CPCs are set so that the parties reasonably agree that: (i) the estimated payment for all buckets (in aggregate) in each Expedia POS for the following month represents a percentage of the aggregate estimated gross profit to be earned by Expedia in that POS for the following month [**] equal to at least [**] for such POS as listed below, and (ii) the estimated payment for each bucket (individually) in each Expedia POS for the following month represents a percentage of the estimated gross profit to be earned by Expedia for that bucket in that POS for the following month [**] equal to at least [**] as listed below [**]. The parties agree that a reasonable estimation should be based on 30 days’ past history (through the 20th day of the month prior to the month for which CPCs are being set or some other mutually agreeable cut-off date) of individual properties (regardless of which bucket they were in the past) and then aggregated based on whichever bucket the properties will be in the following month. Transactions, gross profit, and other metrics derived from clicks from TripAdvisor to a particular Expedia POS that are then redirected to another POS shall be attributed to the first Expedia POS (as will the clicks). All calculations and payments shall be based on the number of clicks tracked and counted by TripAdvisor.
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
3. In the event that the actual payment [**] than an amount equal to [**] for that POS [**], then [**].
4. In the event that the actual payment [**] than [**] for that POS [**], then [**].
5. The [**] shall be as follows:
•
[**]
•
[**]
•
[**]
•
[**]
•
[**]
•
Note: the [**] for each Expedia POS shall also apply to any traffic to such POS from users in countries without an Expedia POS; provided, however, that if such traffic is in separate buckets from the rest of such POS’s buckets (e.g. current [**] providers pointed to [**]) then such separate buckets (in aggregate) for such POS shall be treated as a separate POS for purposes of the calculations in Paragraphs 2 and 4 of this Schedule
(e.g. [**] buckets pointed to [**] are treated as their own POS [**].
•
Air Meta Economics. Notwithstanding the above, the [**] for each Meta air placement (in each POS) shall be [**]. Each meta bucket will act as a standalone POS for purposes of calculating POS floors and bucket level CPC setting (i.e. Expedia cannot bid [**]on any meta bucket), and the meta spend and gross profit will be ignored for purposes of setting non-meta bucket CPCs and calculating POS (non-meta) end-of-month true-ups [**].
6.
If both parties agree, Expedia may exceptionally adjust bid levels mid-month in response to shocks at Expedia and/or TripAdvisor (e.g., site outages, dramatic traffic quality changes, etc.). In the event of site outages or natural or man-made disasters, Expedia may pause campaigns in the appropriate regions if the parties don’t agree on appropriate bid adjustments. In the event of dramatic traffic quality changes that TripAdvisor knew about in advance but did not inform Expedia of, then the agreed-upon CPC changes shall be retroactive to the later of: (i) three days prior to the agreed CPC change, or (ii) the traffic quality change. In addition, Expedia may change its CPCs for the buckets in any point of sale, effective as of the 15th day of a month, if: (i) it shows (to TripAdvisor’s reasonable satisfaction) that, for the 15 days immediately prior to the 5th day of such month, its overall marketing efficiency (cost of clicks delivered during such period at the previously-determined CPCs divided by the gross profit from such clicks) for the TripAdvisor-sourced traffic for such POS is [**] points [**] than it was anticipated to be at the time the CPCs were set for such month (e.g. if the CPCs for the month were initially set so as to hit an efficiency of [**] but the actual efficiency for the 15-day period leading up to the 5th day of a month was [**]), and (ii) it gives TripAdvisor notice of (and details of) the requested changes at least 3 business days prior to the 15th of such month, and (iii) such CPCs meet all the requirements of Paragraph 2 of this Schedule (as applied to the 15 day period leading up to the 5th day of such month). Other CPC reductions may be made from time to time if mutually agreed upon. In addition, Expedia may (for financial, strategic, competitive, or other reasons) raise its CPCs on any buckets in any POS: (i) effective on the 15th day of a month if it gives TripAdvisor notice of such changes at least 3 business days prior to the 15th day of such month, or (ii) subject to TripAdvisor approval, at other times.
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
7. Commerce ordering and display (e.g. checking/unchecking check rates, ad order and rotation, number of ads, advertiser rank, decisions to discontinue or change current placements and/or create new placements, etc.) is at TripAdvisor’s sole discretion for all placements; [**]
8. Expedia will provide to TripAdvisor: [**] and (iii) any other data necessary for the calculations under this agreement. Expedia will also continue to provide TripAdvisor with: [**]. The parties will also work together in good faith regarding possible sharing of additional non-competitive metrics.
9. TripAdvisor will provide to Expedia: [**].
10. Expedia/Expedia JV/Hotels.com/Venere may share bids and/or bucketing schemas among themselves to facilitate internal transparency.
11. [**]
12. This Schedule does not apply to the “exit window” or to display media, which are covered separately.
13. This Schedule also applies to Expedia CPC links located on TripAdvisor’s “Activities” listing [**]
14. Expedia provides an open order (no limitation on inventory, no budget or click caps). [**]
15. In the event that Expedia changes the attribution model [**] or the manner in which gross profit is calculated or any other calculation that has the effect of materially changing the amount of gross profit to which the [**] are applied, then the parties will negotiate in good faith to make an appropriate change (either up or down) to the [**]. For clarity, such adjustments would not be made for changes in actual financial performance such as changes in ADR or amounts paid by suppliers or conversion rates.
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
SCHEDULE 2
(Hotels.com – TripAdvisor CPC)
This Schedule is made between the Publisher and Advertiser set forth below, pursuant to the Master Advertising Agreement (CPC) between the TripAdvisor Companies and the Expedia Companies, dated December 20, 2011 (the “Agreement”). Except as expressly set forth herein, this Schedule is subject to the terms and conditions of and incorporated into the Agreement. All capitalized terms, where not defined herein, will have the meanings set forth elsewhere in the Agreement.
Advertiser: Hotels.com LP (“Hotels.com”) with respect to Hotels.com-branded websites in each country (e.g. hotels.com, fr.hotels.com, etc.)
Publisher: TripAdvisor LLC, TripAdvisor Limited, and TripAdvisor Singapore Private Limited (collectively, “TripAdvisor”)
Media Properties: TripAdvisor-branded websites, plus at TripAdvisor’s discretion, any TripAdvisor subsidiaries and/or syndication partners.
Summary:
1. Hotels.com may bucket inventory, at the end of each month for the following month, by profitability, or other metrics at Hotels.com’s sole discretion. The parties may also re-bucket inventory at other times if and as mutually agreed. TripAdvisor will provide a reasonable number of buckets by Hotels.com point of sale (“POS”), [**], so Hotels.com can optimize spend to be most effective based upon referrals, profitability or strategic objectives. [**]
2.
CPC’s are set on a per bucket level per Hotels.com point of sale, and are set at the end of each month for the following month; provided, however, that the CPCs are set so that the parties reasonably agree that: (i) the estimated payment for all buckets (in aggregate) in each Hotels.com POS for the following month represents a percentage of the aggregate estimated gross profit to be earned by Hotels.com in that POS for the following month [**]equal to at least the [**]for such POS as listed below, and (ii) the estimated payment for each bucket (individually) in each Hotels.com POS for the following month represents a percentage of the estimated gross profit to be earned by Hotels.com for that bucket in that POS for the following month [**] equal to at least the [**] as listed below [**] The parties agree that a reasonable estimation should be based on the 30 days’ past history (through the 20th day of the month prior to the month for which CPCs are being set or some other mutually agreeable cut-off date) of individual properties (regardless of which bucket they were in the past) and then aggregated based on whichever bucket the properties will be in the following month. All calculations and payments shall be based on the number of clicks tracked and counted by TripAdvisor. Transactions, gross profit, and other metrics derived from clicks from TripAdvisor to a particular Hotels.com POS that are then redirected to another POS shall be attributed to the first Hotels.com POS (as will the clicks).
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
3. In the event that the actual payment [**] than an amount equal to [**] for that POS [**], then [**].
4. In the event that the actual payment [**] than [**] for that POS [**], then [**].
5. The [**] for each Hotels.com POS shall be as follows:
•
[**]
•
[**]
•
[**]
•
[**]
•
[**]
•
Note: the [**]for each Hotels.com POS shall also apply to any traffic to such POS from users in countries without an Hotels.com POS; provided, however, that if such traffic is in separate buckets from the rest of such POS’s buckets (e.g. current [**] providers pointed to [**]) then such separate buckets (in aggregate) for such POS shall be treated as a separate POS for purposes of the calculations in Paragraphs 2 and 4 of this Schedule (e.g. [**] buckets pointed to [**] are treated as their own POS [**].
•
Each of the above [**] in this Paragraph 5 shall be [**]: (i) [**]percentage points for each starting at least [**]after the date of TA’s spinoff, (ii) an additional [**] percentage points for each starting at least [**]after the date of [**], and (iii) an additional [**] percentage points for each starting at least [**]after the date of [**] (e.g. by the end of the [**] term, the [**] for the [**] POS shall be [**]).
6.
If both parties agree, Hotels.com may exceptionally adjust bid levels mid-month in response to shocks at Hotels.com and/or TripAdvisor (e.g., site outages, dramatic traffic quality changes, etc.). In the event of site outages or natural or man-made disasters, Hotels.com may pause campaigns in the appropriate regions if the parties don’t agree on appropriate bid adjustments. In the event of dramatic traffic quality changes that TripAdvisor knew about in advance but did not inform Hotels.com of, then the agreed-upon CPC changes shall be retroactive to the later of: (i) three days prior to the agreed CPC change, or (ii) the traffic quality change. In addition, Hotels.com may change its CPCs for the buckets in any point of sale, effective as of the 15th day of a month, if: (i) it shows (to TripAdvisor’s reasonable satisfaction) that, for the 15 days immediately prior to the 5th day of such month, its overall marketing efficiency (cost of clicks delivered during such period at the previously-determined CPCs divided by the gross profit from such clicks) for the TripAdvisor-sourced traffic for such POS is [**] points [**] than it was anticipated to be at the time the CPCs were set for such month (e.g. if the CPCs for the month were initially set so as to hit an efficiency of [**] but the actual efficiency for the 15-day period leading up to the 5th day of a month was [**]), and (ii) it gives TripAdvisor notice of (and details of) the requested changes at least 3 business days prior to the 15th of such month, and (iii) such CPCs meet all the requirements of Paragraph 2 of this Schedule (as applied to the 15 day period
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
leading up to the 5th day of such month). Other CPC reductions may be made from time to time if mutually agreed upon. In addition, Hotels.com may (for financial, strategic, competitive, or other reasons) raise its CPCs on any buckets in any POS: (i) effective on the 15th day of a month if it gives TripAdvisor notice of such changes at least 3 business days prior to the 15th day of such month, or (ii) subject to TripAdvisor approval, at other times.
7. Commerce ordering and display (e.g. checking/unchecking check rates, ad order and rotation, number of ads, advertiser rank, decisions to discontinue or change current placements and/or create new placements, etc.) is at TripAdvisor’s sole discretion for all placements; [**].
8. Hotels.com will provide to TripAdvisor: [**] and (iii) any other data necessary for the calculations under this agreement. Hotels.com will also continue to provide TA with: [**] The parties will also work together in good faith regarding possible sharing of additional non-competitive metrics.
9. TA will provide to Hotels.com: [**]
10. Expedia/Expedia JV/Hotels.com/Venere may share bids and/or bucketing schemas among themselves to facilitate internal transparency.
11. [**]
12. This Schedule does not apply to the “exit window” placement or to display media, which are covered separately.
13. Hotels.com provides an open order (no limitation on inventory, no budget or click caps). [**]
14. In the event that Hotels.com changes the attribution model [**]or the manner in which gross profit is calculated or any other calculation that has the effect of materially changing the amount of gross profit to which the [**] are applied, then the parties will work together to make an appropriate change (either up or down) to the [**]. For clarity, such adjustments would not be made for changes in actual financial performance such as changes in ADR or amounts paid by suppliers or conversion rates.
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
