These Terms apply to the media sales services to be provided by ORANGE CREATIVE LIMITED, a company with its address at 701 HIGHGATE STUDIOS, 53/79 HIGHGATE ROAD, LONDON, NW5 1TL and company number 07192766 (“Orange”) to the Client, as detailed in the insertion order or other document (the “Booking Form”) to which these Terms relate.
These Terms and the Booking Form together constitute the “Agreement” between the parties. Each Booking Form that is signed by both parties shall constitute a separate agreement between the parties. These Terms shall apply to the exclusion of all other terms and conditions of the Client, notwithstanding anything to the contrary in any such documents.
1.1 The Client appoints Orange to provide the Services described in the Booking Form (the “Services”). The Services shall be performed subject to and in accordance with the provisions of the Agreement.
2.1 In consideration of the performance of the Services, the Client shall pay Orange the fees detailed in the Booking Form (the “Fees”). Unless otherwise stated the fees are payable in GBP.
2.2 The Client will also pay Orange for all charges levied by:
(a) media providers for the placement of advertising as approved in advance by the Client, in accordance with any media plan provided by Orange; and
(b) advertising exchanges, trading platforms or other third party intermediaries or providers, including automated advertising bidding service providers (together the “Digital Intermediaries”) involved in the placement, delivery or optimisation of the Client’s digital advertisements or other Services identified in a Booking Form.
3.1 The Agreement shall apply from the date specified in the Booking Form and will continue in full force and effect for the term specified in the Booking Form (the “Initial Term”), and thereafter unless and until terminated by either party giving the other not less than the period of notice specified at clause 3. 5 below
3.2 Upon termination of the Agreement, the Client shall promptly pay all outstanding Fees and reimburse Orange for any costs properly incurred by Orange in the course of performing the Services and to which it is committed at the time of termination.
3.3 Either party may terminate this Agreement immediately upon written notice to the other party:
(a) in the event of any material breach of this Agreement by the other party which breach is not remediable or, if remediable, is not remedied within thirty (30) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or
(b) if the other party shall cease carrying on business in the normal course, or shall call a meeting of its creditors or make a proposal for a voluntary arrangement within Part I of the Insolvency Act 1986 or for any other composition or scheme of arrangement with (or assignment for the benefit of) its creditors, or shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if a trustee, receiver, administrative receiver or other similar officer is appointed in respect of all or any part of its business or assets, or if a petition is presented or a meeting is convened for the purpose of considering a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or it is the subject of an administration order.
3.4 Notwithstanding any other provision of the Agreement, Orange may immediately, on written notice to the Client, suspend or terminate the Services if:
(a) any of its suppliers (including without limitation media providers or Online Intermediaries) suspend or terminate the services being supplied to Orange, provided always that Orange will only suspend or terminate that part of the Services affected by the actions (or inaction) of any such third party supplier; or.
(b) any sum that is the subject of one or more invoices submitted by Orange under or in connection with this Agreement remains unpaid by the Client for at least 14 days beyond its due date for payment.
4.1 After obtaining the Client’s general approval of campaigns, Orange will submit to the Client for specific approval quotations of the costs of the advertising or digital services (whether in an insertion order or otherwise).
4.2 The Client’s written approval (which shall include email) of such estimates along with a signed Booking Form (digital signature to suffice) will be Orange's authority to make reservations for media and other facilities.
6.1 The payment terms are based upon the principle that the Client will ensure that Orange is paid in time to meet the liabilities which arise from orders handled by Orange on its network and with media owners and Digital Intermediaries in respect of the Client’s advertisements.
6.2 An invoice for each campaign will issued in accordance with the Booking Form terms approved by the Client and shall be due for payment on our standard 30 days payment terms.
6.4 All invoices presented to the Client and not subject to dispute which are not paid by the due date shall be subject to an interest charge at the statutory rate specified in the Late Payment of Commercial Debts (Interest) Act 1998.
6.5 The Client will promptly provide Orange with purchase order numbers in respect of all approved media and Digital Intermediary charges and the Client will use such purchase order numbers on all relevant invoices. The absence of a purchase order number on an invoice will not constitute a valid reason for withholding payment.
6.6 TAN is insured against credit risks and all clients of Orange must be acceptable to Orange's insurers. In the event therefore of the insurers revising or withdrawing cover in respect of the Client, Orange shall revise its terms of payment and if necessary ask for payment in advance. Should the aforementioned occur and a suitable agreement cannot be reached between the Client and Orange within 14 days of such request, Orange shall be entitled to immediately terminate the Agreement by written notice to the Client.
6.7 If the Client has a bona fide dispute in respect of the whole or any part of any invoice, it shall use all reasonable endeavours to notify Orange in writing within 14 days after its receipt of the invoice. If the Client notifies Orange in writing that it disputes the whole or any part of sums payable under any invoice, the Client may withhold payment of the amount in dispute, but shall pay the undisputed part in accordance with this Agreement. The parties shall co-operate in good faith to resolve the dispute over the invoice as amicably and promptly as possible.
7.1 Nothing in the Agreement shall exclude or limit liability for fraud, death or personal injury caused by negligence or any other type of liability to the extent it may not be excluded or limited as a matter of law. Subject to this:
(a) Orange's maximum aggregate liability to the Client under or in connection with this Agreement for losses or damages suffered for any single event or series of related events and whether in contract, tort (including negligence) or otherwise will in no in circumstances exceed the greater of: (i) £5,000; and (ii) the Fees payable by the Client under this Agreement; and
(b) Orange will not be liable under or in connection with this Agreement for any:
(i) loss of actual or anticipated income or profits, loss of revenue, loss of goodwill or damage to reputation, loss of anticipated savings, loss of contracts; or
(ii) special, indirect or consequential loss or damage of any kind,
in each case howsoever arising, and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
7.2 Orange shall not be liable for any delay in or omission of publication, transmission or delivery or any error in any advertisement or its placement in the absence of negligence on Orange's part.
7.3 While Orange will take all reasonable care to ensure that its systems and services are safe and secure, Orange is unable, due to circumstances beyond its reasonable control, to guarantee that its systems, services and deliverables will be free from viruses or other executable code. Should Orange become aware of any viruses or executable code that may adversely affect Client’s business, it will inform the Client as soon as possible.
7.4 Orange shall not be in any way responsible for the preparation, content, production, supplying or copy of advertisements supplied or to be supplied by the Client or its agents, subcontractors or other representatives.
7.5 If due to war, strikes, industrial action short of a strike, lockouts, accidents, fire, blockade, import or export embargo, ice obstruction, natural catastrophes or other act, event, non-happening, omission or accident over which Orange has no control, Orange fails to complete its assignment or deliver the Services in the manner and within the time required by the terms of the Agreement Orange will not be responsible for any loss or damage which may be incurred by the Client as a result of such failure.
8.1 Client will give Orange clear briefings and will make available to Orange all relevant information required for its performance of the Services. Client shall provide any data, documents or other materials to be supplied by the Client to Orange under the Agreement (“Client Materials”) promptly so that Orange is able to comply with its obligations under the Agreement.
8.2 The Client hereby warrants and undertakes that:
(a) it has full power and authority to enter into the Agreement and that by doing so it will not be in breach of any obligation to a third party;
(b) it shall in connection with this Agreement, and the Client Materials shall, comply with all applicable laws, regulations and any applicable codes of practice, and it shall take appropriate steps to verify such compliance;
(c) use of Client Materials will not infringe the rights (including without limitation the intellectual property rights) of any third party anywhere in the world;
(d) Client Materials will not be obscene or discriminatory and will not defame or breach the privacy rights of any third party;
(e) Client Materials (including, without limitation, instructions in any insertion order or similar document) are accurate in all material respects;
(f) Client Materials will not contain any executable code, virus or malicious code;
(g) it shall comply with any third party policies applicable to the Services that Orange notifies to Client from time to time;
(h) it shall not set, place, read, write, access, delete or otherwise use any cookies or similar technology in connection with the Services.
8.3 The Client hereby indemnifies and keeps Orange indemnified against all losses, claims, liabilities, damages, costs and expenses suffered or incurred by Orange as a result of any breach of the above warranties and undertakings.
8.4 The Client agrees to inform Orange without delay if it considers that any claim or trade description in any Client Materials placed by Orange on behalf of the Client is false or misleading in any way.
9.1 Orange warrants that: (i) the individual signing this Agreement (and the Booking Form) on behalf of Orange has (and shall have) the full authority to legally bind Orange; and (ii) it will perform the Services in a workmanlike manner and with reasonable skill and care.
10.1 Unless otherwise stated, Orange's contracts with media, Digital Intermediaries and other suppliers for the Client’s advertising are made in accordance with media rate cards and/or other standard or individual conditions and contracts. The rights and liabilities between the Client and Orange shall correspond to those between Orange and the various media, Digital Intermediaries and suppliers under such conditions, and the Client hereby indemnifies and keeps indemnified Orange against all losses, claims, liabilities, damages, costs and expenses suffered as a result of any breach by the Client of any third party terms and conditions which Orange has entered into on the Client’s behalf. Digital media owners agree to add Orange's direct seller ID to their Ads.txt file on all sites receiving our ads, on request.
11.1 It is recognised that during the course of business certain confidential information concerning marketing, sales, new products, media buying rates, media plans, pricing (including that of Digital Intermediaries) and the like, will be communicated to Orange by the Client and vice versa. Each party undertakes to maintain the confidentiality of the other party’s confidential information and only use such confidential information in the performance of its obligations under this agreement. Both parties shall instruct all employees that they have an obligation to ensure confidentiality of such information at all times. It is agreed that this obligation of confidentiality shall continue after termination.
(a) “Background Materials” means Creative Material in existence prior to the date on which it is intended to use them in connection with the Services and in relation to which the Intellectual Property Rights are owned by Orange;
(b) “Creative Material(s)” means the advertising copy and other creative materials described in the Booking Form that are to be provided by Orange under this Agreement, but excluding any Client Materials;
(c) “Intellectual Property Rights” means all copyright, patents, database rights, trademarks, design rights and any other proprietary right, now known or hereinafter created, together with all extensions and renewals of such rights;
(d) “Third Party Materials” means Creative Materials in which the Intellectual Property Rights are owned by a third party.
12.2 The Client hereby grants Orange and other third party suppliers engaged in the provision of the Services a non-exclusive, non-transferable royalty-free licence during the term of the Agreement to use the Client Materials in connection with the Agreement.
12.3 The Client acknowledges and agrees that all Intellectual Property Rights in the Creative Materials shall immediately upon creation vest in and shall be and remain the exclusive property of Orange.
12.4 Subject to the remaining provisions of this Clause 12, upon payment of all Fees due for the Creative Material intended to be assigned (and provided that no other sum that is payable at that time by the Client to Orange pursuant to this Agreement is overdue), Orange hereby assigns the Intellectual Property Rights owned by Orange in that Creative Material to Client. At Client’s cost and expense, Orange agrees to execute and deliver, promptly upon request, any documents, or do all such further acts, that the which Client may reasonably request to evidence, obtain or perfect the assignment of rights to Client set out in this Clause 12.
12.5 The Client acknowledges that all Intellectual Property Rights in the Background Materials shall be owned by and remain the property of and vested in Orange (or its licensors). Subject to Orange receiving payment of all Fees and subject to ongoing compliance by the Client with the terms of this Agreement, Orange hereby grants to Client a perpetual, non-exclusive, non-assignable, non-sub-licensable royalty-free licence to use in the UK, and such other countries as Orange may agree in writing, the Background Materials in connection with the Creative Materials.
12.6 If and to the extent that any of the Creative Materials comprise or include any Third Party Materials, Orange shall procure a licence for Client to use such work on such terms as may be agreed between Orange and the relevant third party.
12.7 Notwithstanding any of the above, Orange shall retain all know how obtained in connection with the Services and Orange shall not be prevented nothing in this Agreement shall prevent Orange from using any know how, ideas , functionality or concepts acquired before or during the performance of the Services for any purpose, subject always to Orange's obligations of confidence to Client under Clause 11.
(a) “Data Controller” has the meaning given in the DPA;
(b) “Data Subject” means an individual who is the subject of Personal Data;
(c) “DPA” means the Data Protection Act 1998 (as replaced, updated or amended from time to time);
(d) “Personal Data” has the meaning set out in the DPA;
(e) “Processing and process” have the meaning set out in the DPA.
13.2 The Client and Orange acknowledge that for the purposes of the DPA, Orange is the data processor in respect of any Personal Data processed by Orange.
13.3 Where Orange processes Personal Data on behalf of Client, then Orange shall:
(a) process such data solely in accordance with Client’s reasonable instructions from time to time;
(b) adopt and maintain appropriate security measures for processing data, both in terms of the technology used and how it is managed.
13.4 The Client warrants and undertakes to Orange that during the term of this Agreement:
(a) it has, and will continue to have, the necessary consents from Data Subjects to permit Orange (and its contractors) to process Personal Data in accordance with this Agreement;
(b) it will process the Personal Data in compliance with all applicable laws, regulations and codes of practice.
13.5 The Client hereby indemnifies and keeps Orange indemnified against all losses, claims, liabilities, damages, costs and expenses suffered or incurred by Orange, its group companies and contractors due to any failure by the Client or its employees or agents to comply with this Clause 13, provided always that such indemnity shall not cover any such loss or damage caused by Orange's negligence or by Orange being in breach of this Clause 13.
14.1 The Agreement and the documents referred to in it contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that:
(a) in entering into the Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in the Agreement; and
(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in the Agreement shall be for breach of contract as provided in the Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
14.2 The Agreement states the full extent of Orange's obligations and liabilities in respect of the performance of the Services and the parties agree that any condition, warranty, representation or other term concerning the performance of the Service which might otherwise be implied into or incorporated in the Agreement, whether by statue, common law or otherwise, is excluded to the maximum extent permitted by law.
15.1 Client shall not be entitled to assign, sub-license or otherwise transfer the benefit or burden of the Agreement to any person without the prior written agreement of Orange.
15.2 The Client shall not without the prior written consent of a member of the Orange Board, solicit the services of any Orange employee, who has been engaged in the provision of services to the Client during the period of this agreement, nor for the period of time set out in the employees Terms and Conditions of Employment as they relate to “Restrictions when your employment with Orange ends”.
15.3 In the event of any conflict between the provisions set out in the Booking Form and the Terms, the Terms shall take precedence in relation to that matter.
15.4 If any term of the Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from the Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of the Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
15.5 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to the Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
15.6 All notices, which are required to be given hereunder, shall be in writing and shall be sent to the address of the recipient set out in the Booking Form. Any such notice may be delivered by hand or by first class post or facsimile and shall be deemed to have been served by hand when delivered if by first class post, 48 hours after posting and if by facsimile when delivery confirmation is received.
15.7 A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
15.8 We reserve the right to amend these Terms by publishing a note on our website or by using reasonable endeavours to bring the new Terms to your attention.
15.9 The construction, validity and performance of the Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute between them arising under or in connection with the Agreement.