Koi Advertising Ltd Terms and Conditions

This Agreement is entered into by you, being either the entity which: (a) accepts this Agreement online; or (b) is identified as the "Customer" and signs the ANNEX A ("Customer" / "You") and Koi Advertising Ltd (Koi Advertising Ltd, Company's House Registration Number 07152223, 1 Lyric Square, W6 0NB London, VAT: GB 102437752, direct line: 0044-020-31705601) (" Koi Advertising Ltd"). This Agreement governs your participation in the Programme.

1. Definitions

"Third party " means a third party advertising or marketing server authorised by Koi Advertising Ltd to participate in those parts of the Programme that permit third party advertising or marketing serving;

"Acceptance Date" means either: (a) the date on which Customer accepts this Agreement online; or (b) the acceptance date specified in the Front Page (if any); or (c) the acceptance date of the ANNEX A (if any);

"Advertiser" means the entity whose creative (whether created by Koi Advertising Ltd or by itself or by a third party on its behalf) are made available by Koi Advertising Ltd in accordance with this Agreement, which entity may be more particularly detailed in the Front Page (if any);

"DEM Programme" means Koi Advertising Ltd's online Direct Email Marketing programme;

"Agreement" means (a) these Terms, (b) any document which references these Terms (including the ANNEX A and the Front Page, if any) and the following, which are incorporated into the Agreement by reference: (c) the Policies; and (d) any other document(s) which the parties mutually execute and agree shall incorporate the Terms;

"Claim Period" means the 60 day period from the invoice date;

"Creative" means all advertisement content, related technology and tags which are subject to the Policies;

"Display Creative" means any and all graphical ads and video ads (in .gif, .jpeg, .jpg, .png, .swf and other Flash formats, or such other formats as Koi Advertising Ltd may notify you);

"DEM" means Direct Email Marketing

"End Date" means the date (if any) on which the parties agree this Agreement will terminate and all Programme will end;

"Front Page" means a document referencing the Terms (including without limitation a front page and signature page referencing the Terms);

"Koi Advertising Ltd Property" means any database (email collection), website, application, property and/or any other media owned, operated or provided by Koi Advertising Ltd;

"AC" means advertising user action or display count;

"Partner" means the third party owner and/or operator of a Partner Property;

"Partner Property" means any website, application, content, property or any other media owned, operated, or provided by a Partner upon which Koi Advertising Ltd places ads or display DEM or display Creative;

"Policies" means the Programme's policies as made available to you;

"Programme" means the different types of Koi Advertising Ltd advertising and marketing services each as may be more particularly detailed by Koi Advertising Ltd : a) in the Direct Email Marketing or (b) online advertising system; or (c) in any other document as made available by Koi Advertising Ltd ;

"Target" means any targeting mechanism;

"Terms" means these advertising terms and conditions.

2. Placement and targeting

2.1 Koi Advertising Ltd shall use reasonable endeavors to reach Target Email in accordance with the Customer's preferences.

2.2 Koi Advertising Ltd does not guarantee: (a) the reading of sent DEM or the timing of delivery of any creative, or (b) the number (if any) of any impressions, publications or clicks

3. Costs incurred and Creative and delivery

3.1 Customer shall submit Creative for all advertising or marketing types in accordance with such due date as may be set out in the DEM or as otherwise communicated by Koi Advertising Ltd.

3.2 Unless otherwise agreed in writing by Koi Advertising Ltd : (a) the target selection on a Koi Advertising Ltd Property or any Partner Property (if applicable) is at Koi Advertising Ltd's and/or Partner's sole discretion respectively; and (b) Koi Advertising Ltd may offer the same Target to more than one Customer.

3.3 If Customer asks Koi Advertising Ltd to carry out the modification of a programme or any element of the programme, any such modification carried out by Koi Advertising Ltd shall be deemed approved by Customer from the earlier of: (a) confirmation from Customer, and (b) the end of the 5th working day following the posting or modification carried out by Koi Advertising Ltd. If Customer does not approve of the posting or modification, it must inform Koi Advertising Ltd within 5 working days of the posting or modification.

3.4 Customer is solely responsible for all: (a) Targets; (b) Creative generated by or for Advertiser; (c) properties to which a Creative directs users (including without limitation content on the domain or landing page reached by clicking on the Creative URLs); (d) advertised services and products (together the "Advertiser Services").

3.5 Customer is solely responsible for (a) the adoption of any marketing strategies and methods, and (b) the creation, modification, maintenance, and management of Programmes.

3.6 Unless otherwise specified, Koi Advertising Ltd and/or any Partner shall have the right at any time to reject, or remove any Programme, Creative and/or Target for any or no reason. In addition, Koi Advertising Ltd may at any time modify Programme to the extent reasonably required to comply with the technical specifications and/or policies related to any Koi Advertising Ltd Property or any Partner Property, or as described in the Policies. Any other modification to Programme shall only be made by Koi Advertising Ltd : (a) in accordance with clause 3.3, or (b) following Customer authorization, which may be given by Customer in various ways including without limitation by not exercising opt-out rights (e.g., for user interface or advertising or marketing quality experiments).

3.7 Customer grants Koi Advertising Ltd permission to evaluate advertising or marketing quality and for advertising or marketing serving purposes. Customer may expressly opt out of such evaluation in the manner specified by Koi Advertising Ltd.

4. Partner Properties. Even if Customer's advertising and marketing are placed on Partner Properties, Customer agrees to direct to Koi Advertising Ltd any communication regarding Customer's advertising and marketing on any Partner Property (ies). If Customer's advertising and marketing are placed on Partner Properties, Customer acknowledges and agrees that the placement of such creative shall provide Partner(s) with access to the content of creative, including (without limitation) any images and any URL(s), any contact or other information that can be obtained through such URL(s), as well as data regarding queries or clicks.

5. Advertising or marketing Serving

5.1 Customer will not breach or circumvent any Programme security measure or knowingly provide advertisement or marketing containing malware, spyware or any other malicious code.

5.2 Customer are not allowed to use a third party for serving or tracking advertisement under Programmes. If for an advertising or marketing campaign, Koi Advertising Ltd's AC is higher than the AC of Customer, only Koi Advertising Ltd AC are considered correct.

6. Advertising or marketing cancellation

6.1 Unless the Policies or a Front Page (if any) or other online interface referencing these Terms provides otherwise, either party may cancel any advertising or marketing at any time with prior written notice to Koi Advertising Ltd, including without limitation e-mail.

6.2 Ads which form part of the DEM Programme and which are cancelled will stop serving shortly after cancellation. Any other cancelled ads may be published despite cancellation if cancellation of those advertisements occurs after any applicable commitment date as notified in advance to Customer by the Partner or Koi Advertising Ltd, and Customer shall pay Koi Advertising Ltd for such published advertisements and any applicable cancellation fee. If Customer fails to submit the Creative for advertising or marketing, Customer shall be liable to pay Koi Advertising Ltd: (a) for the advertising or marketing as if such advertising or marketing had been published or sent, or (b) an applicable cancellation fee.

7. Prohibited uses. Customer shall not, and shall not allow any third party to: (a) generate automated, fraudulent or otherwise invalid impressions, actions, inquiries or clicks by using methods including but not limited to the use of robots or other automated tools and/or software; (b) use any automated means, form of scraping or other such data extraction methods to access, query or otherwise collect and use Koi Advertising Ltd advertising related information from any Koi Advertising Ltd Property unless expressly permitted by Koi Advertising Ltd in writing; (c) advertise substances, services, products or materials which contravene applicable laws and regulations in any country in which Customer's advertisement are displayed, placed or otherwise made available; (d) violate any technical specifications posted on any Koi Advertising Ltd Property, and/or the Policies; (e) engage in any other illegal or fraudulent business practice under the laws of any state or country where an advertising or marketing is made available.

8. Payment, pricing and reporting. If required, Customer shall, in the Front Page (if any) or in the Annex A, specify the costs of any Koi Advertising Ltd Programme (CPA, CPC, CPI, CPM, CPL, CPT, etc), and billing options (the "Agreement Budget"). By indicating an Agreement Budget, Customer is committing to spend the Agreement Budget. Customer shall pay Koi Advertising Ltd in accordance with the pricing model applicable to the type of advertisement or marketing selected by Customer. Koi Advertising Ltd and Customer shall mutually agree the method of payment and record the agreed method either in the Front Page (if any) or in the Annex A. All sums stated in this Agreement are exclusive of VAT unless stated otherwise. Customer shall pay the sums (including, if applicable, VAT and any other applicable taxes or charges imposed by any government entity) in the manner dictated by the method of payment agreed between the parties. If payment is not made when due, Koi Advertising Ltd may charge interest at the rate of 3% per annum above the EURIBOR base rate from the due date until the date of actual payment, whether before or after judgment. Charges shall be calculated solely based on records maintained by Koi Advertising Ltd. Refunds (if any) are at the discretion of Koi Advertising Ltd and only in the form of advertising credit for Koi Advertising Ltd Properties or Programmes.

9. Privacy Policy

Koi Advertising Ltd's Privacy Policy is available on Koi Advertising Ltd.co.uk website. Customer claims to have read and accepted the privacy policy

10. Representations and warranties

10.1 Customer represents and warrants that (a) all of the information provided by Customer to Koi Advertising Ltd is complete, correct and current; (b) it has all necessary rights to permit and hereby grants Koi Advertising Ltd and any Partners all such rights which are necessary for Koi Advertising Ltd and any Partner(s) to (as applicable) use, host, cache, route, store, copy, modify, distribute, deliver, reformat, reproduce, publish, display, transmit and distribute Customer's advertisement (including any Targets and all Creative; and (c) advertising or marketing Use in accordance with this Agreement and the websites and/or landing pages linked from Customer advertising or marketing shall not: (a) violate or encourage violation of any law or applicable regulation or code of practice (including without limitations the CAP Code in the UK and any equivalent advertising standards code of practice in any other jurisdiction); (b) infringe any intellectual property rights of any third party or contain any material which may be harmful, abusive, obscene, threatening or defamatory.

10.2 Each party waives its rights against the other in respect of warranties and representations (whether written or oral) not expressly set out or referred to in this Agreement. Nothing in this clause limits or excludes either party's liability for fraud.

11. Indemnity. Customer shall indemnify and defend Koi Advertising Ltd , its agents, affiliates, directors, officers, employees and Partners ("Koi Advertising Ltd Indemnified Persons") from and against any claims, losses, liabilities, expenses, damages and settlement amounts (including legal fees and costs) incurred by any Koi Advertising Ltd Indemnified Person(s) arising out of Customer's breach of clauses 3.3, 3.4, 3.5, 7 and/or 10 of these Terms. These indemnification obligations shall exist only if Koi Advertising Ltd : (a) promptly notifies the Customer of any claim; (b) provides Customer with reasonable information and cooperation in defending the claim; and (c) gives Customer full control and sole authority over the defence and settlement of such claim. The Koi Advertising Ltd Indemnified Persons may join in the defence with counsel of its choice at its or their own expense.

12. Limitation of liability

12.1 Nothing in this clause 12 shall limit liability for death or personal injury caused by a party's negligence.

12.2 Other than the payment obligations set out in clause 8, indemnity obligations set out in clause 11 and/or a breach of clause 13 (Confidentiality): (a) each party's liability to the other arising from any given event or series of connected events, shall be limited to the greater of: (a) the amount paid or payable by Customer to Koi Advertising Ltd under this Agreement in the three months immediately preceding the month in which the event (or first in a series of connected events) occurred and (b) £15,000; (b) neither party shall be liable in contract, tort (including, without limitation, negligence), for pre-contract or other representations (other than fraudulent misrepresentations) or otherwise arising out of or in connection with this Agreement for any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings); any loss of goodwill or reputation; or any special, indirect or consequential losses in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, suffered or incurred by that party arising out of or in connection with the provisions of, or any matter under, this Agreement.

13. Confidentiality

13.1 Subject to clauses 13.2 and 13.3 below, during the term of this Agreement and for a period of two years following the termination of this Agreement, neither party shall disclose Confidential Information of the other party to any third party without prior written (including in an email) consent except as provided herein. "Confidential Information" includes (a) any Koi Advertising Ltd Property and all mail database; (b) advertisements (including Targets and Creative), prior to publication; (c) the terms of this Agreement; and (d) any other Programme information or access to technology prior to public disclosure provided by Koi Advertising Ltd to Customer and identified at the time of disclosure in writing as confidential and/or proprietary; (e) Programme features. It does not include information that has been required to be disclosed by law or by a governmental authority.

13.2 If the Customer is an advertising third party, Customer authorises Koi Advertising Ltd to grant any Advertiser which is a client of Customer or any subsequent advertising third party appointed by the Advertiser access to and a right to use the non-billing related information relating to Advertiser's ads.

13.3 Koi Advertising Ltd may share Confidential Information of Customer: (a) with any advertising third party appointed by Customer or with the Advertiser concerned as applicable; or (b) with any holding company of Customer or with any subsidiary company of Customer or with any subsidiary company of Customer's holding company.

13.4 Customer acknowledges and agrees that any account, credit card and related billing and payment information which Customer provides to Koi Advertising Ltd may be shared by Koi Advertising Ltd with companies who work on Koi Advertising Ltd's behalf solely for the purpose of performing credit checks, effecting payment to Koi Advertising Ltd and/or servicing Customer's account.

14. Term and termination

14.1 This Agreement shall commence on the Acceptance Date and shall continue either until terminated or until the End Date is reached. If an End Date has been specified, Customer may, subject to Koi Advertising Ltd's prior email approval, extend this Agreement by email for additional periods of 90 days or such other period as agreed by Koi Advertising Ltd in writing.

14.2 This Agreement may be terminated with immediate effect by either party providing written notice (including without limitation email notice) to the other party.

15. Effects of termination and advertising or marketing cancellation

15.1 Upon expiration or termination of this Agreement: (a) if Customer continues to use the Programme it shall continue to be bound by the obligations set out in this Agreement as if this Agreement had not expired or been terminated (including without limitation the obligation to pay charges incurred in connection with the Programme); (b) until Customer cancels its ads in accordance with clause 6, Customer shall continue to be bound by the obligations set out in this Agreement and to pay charges incurred in connection with those ads; (c) Customer shall remain liable for any amounts which are outstanding at the date of expiry or termination; (d) each party shall upon request return Confidential Information of the other.

16. Assignment. The parties shall only be entitled to assign or otherwise transfer their rights and/or obligations under this Agreement with the prior written consent of the other (such consent not to be unreasonably withheld or delayed) except that Koi Advertising Ltd shall be entitled to assign or otherwise transfer any of its rights or obligations under this Agreement without consent to a subsidiary or holding company (as defined in section 736 of the Companies Act 1985) of Koi Advertising Ltd or a purchaser of all or a substantial part of the assets of Koi Advertising Ltd .

17. Rights of third parties. Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other benefits in favor of any person other than the parties to this Agreement.

18. Force majeure. Other than in respect of payment obligations, neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, terrorism, civil commotion or industrial dispute.

19. Miscellaneous. This Agreement represents the entire terms agreed between the parties in relation to its subject matter and supersedes all previous contracts, representations or arrangements of any kind between the parties relating to its subject matter. The Policies may be modified by Koi Advertising Ltd at any time to reflect changes in how Koi Advertising Ltd makes the Programme generally commercially available. No addition to or modification of these Terms shall be binding on the parties unless made by a written instrument which the parties unequivocally mutually agree in writing (including without limitation click and accept or email exchange). The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement. Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose. Unless otherwise expressly provided, any notices shall be sent to the addresses set out in this Agreement with a copy to the legal department via (a) confirmed facsimile, with a copy sent via first class or air mail; or (b) courier services, and shall be deemed given upon receipt.

20. Law and jurisdiction. This Agreement shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts in respect of any dispute or matter arising out of or connected with this Agreement.

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