Master of Malt Advertising Terms of Business

Notes

These Advertising Terms of Business apply if you are an advertiser placing an online display advertisement with Atom Supplies Limited (trading as Master of Malt, Maverick Drinks, Atom Brands) on the Master of Malt website at www.masterofmalt.com.

These Advertising Terms of Business do not apply to other forms of offline or off site advertising or online advertising on other platforms/websites arrangements with Atom Supplies Limited, which may be subject to separate agreement.

1. Interpretation

1.1 In these Advertising Terms, the following definitions apply:

Acceptable Use Policy: means the policy which governs how the Website should be used by any visitor to it (as amended from time to time), a current copy of which is available at: https://www.masterofmalt.com/the-legal-stuff/acceptable-use-policy/.
Ad: means an advertisement or promotional content in any form which promotes a product or brand.
Advertiser: means the person, business, or entity who requests to place an Ad, places an Ad, requests to set up a Campaign, and/or sets up a Campaign via the Advertising Platform onto the Website.
Advertising Fees: means the fees as incurred and chargeable to Advertiser in connection with an Ad and/or Campaign.
Advertising Laws: means all laws, regulations and codes of practice which are applicable to Advertising Services (including the UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing (CAP Code) and all other codes under the general supervision of the Advertising Standards Authority, Trading Standards, and/or Competition and Markets authority).
Advertiser Materials: means Advertiser’s copy, logos, artwork, designs, brand and product information, creative materials, digital materials, text, images and any other information or materials supplied by Advertiser to Publisher in connection with the Agreement;
Advertising Platform: means such online administrative portal and platform which Publisher grants access to Advertiser in order for Advertiser to set up, implement, and organise Campaigns and Ads on the Website.
Advertising Services: means the provision of services by Publisher to Advertiser in connection with displaying and serving an Ad or Ads on the Website in accordance with the relevant Campaign parameters and these Advertising Terms.
Advertising Services Data: means data, whether made available or accessible via Advertising Platform or otherwise, relating to the performance and metrics of the Ads and Campaigns gathered via the Website or Advertising Platform in connection with delivering Ads and Campaigns and all other data provided, made available, or collected in connection with Advertising Services.
Advertising Terms: means these terms of business as set out herein which governs Advertiser’s access to and use of Advertising Services via the Advertising Platform as made available by Publisher.
Agency: where applicable, means the advertising and/or marketing agency duly authorised by an Advertiser to act on behalf of them in accessing Advertising Services and Advertising Platform.
Agreement: means the agreement between Advertiser and Publisher subject to and on the basis of these Advertising Terms.
Banner: means a rectangular display ad that appears along the top, side, or bottom, or such other positioning placement as determined by Publisher from time to time of the Website.
Business Day: a day (other than a Saturday, Sunday or public holiday in England and Wales) when banks in London are open for business.
Campaign: means a single advertising activation created by Advertiser using the Advertising Platform for the purposes of serving an Ad or Ads on the Website.
Campaign Delivery Reports: means metric reports which Publisher makes available to Advertiser within the Advertising Platform and Advertiser may customise to a certain extent, which may include such metrics as Publisher sees fit in its sole discretion, such as impressions, cost per click, click through rates, return on ad spend, sales volume, and Campaign status.
Control: means the beneficial ownership of more than 50% of the issued share capital of a company or the legal or de facto power to direct or cause the direction of the general management of a company, and the expression Change of Control shall be construed accordingly.
Confidential Information: means all information of a confidential nature (in any form) which is imparted or disclosed to, or otherwise obtained by a party (whether directly or indirectly) including the other party’s know-how, trade secrets, financial, commercial, technical, tactical, strategic, marketing or customer information, employee information, any information agreed to be or marked as confidential, any other information a party knows, or could be reasonably expected to know, is confidential and any other such information related to or concerning a party’s business.
CPC: means cost-per-click.
CPM: means cost-per-thousand impressions.
Data Protection Laws: means any laws relating to privacy or to the processing, privacy and/or use of personal data, in force and effective at any relevant time in the United Kingdom, in each case as applicable to either party or the Advertising Services, including (i) the Data Protection Act 2018, the UK GDPR, and the Privacy and Electronic Communications Regulations 2003; (ii) any laws which implement any such laws; and (iii) any laws that replace, extend re enact, consolidate or amend any of the foregoing.
Fees: means Advertising Fees and all such other fees which Publisher may charge to Advertiser as notified to Advertiser in connection with providing Advertising Services to Advertiser, including but not limited to, account set up fees and support fees.
Force Majeure Event: means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including failure or delays of Advertising Platform outside the control of Publisher, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemic or similar events, natural disasters or extreme adverse weather conditions, default of suppliers or subcontractors or change in law or regulation.
Microsoft: means Microsoft Ireland Operations Limited, or where applicable, its affiliated or associated entities, subsidiaries, or companies which are involved in operating the Advertising Platform.
Publisher: means Atom Supplies Limited (trading as Master of Malt, Maverick Drinks, Atom Brands, Atom Group), a company registered in England and Wales under company number 3193057 having its registered office at Unit 1, Ton Business Park, 2-8 Morley Road, Tonbridge, Kent, TN9 1RA and the VAT registration number GB 662241553.
PLA: means a product listing ad that is displayed on the Website alongside other product listings.
Principal Advertiser: where applicable, means the principal entity which instructs Agency to use and access Advertising Services and Advertising Platform.
Privacy Policy: means the policy which details how Publisher processes personal information in accordance with Data Protection Laws (as amended from time to time), a current copy of which is available at: https://www.masterofmalt.com/privacy-policy/.
Terms of Use: means the general rules and guidelines relating to the use of the Website (as amended from time to time), a current copy of which is available at: https://www.masterofmalt.com/the-legal-stuff/terms-of-use/.
UK GDPR: means means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time).
Website: means Publisher’s proprietary e-commerce website operated by Publisher having the uniform resource identifier www.masterofmalt.com (or any replacement website).

1.2 In these Advertising Terms, the following interpretations apply:

1.2.1 references to a person include a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2 references to a party include that party’s personal representatives, successors or permitted assigns and references to the parties are to Advertiser and Publisher;

1.2.3 a reference to a gender includes each other gender;

1.2.4 words in the singular include the plural and vice versa;

1.2.5 any words that follow “include”, “includes”, “including”, “in particular” or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.6 any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and

1.2.7 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of Publisher under this Agreement.

2. Commencement and duration

2.1 This Agreement commences and takes effect from the date, whichever is earlier, on which:

2.1.1 Advertiser accepts these Advertising Terms as part of the onboarding and registration process to access the Advertising Platform;

2.1.2 Advertiser uses and accesses the Advertising Services and/or Advertising Platform provided by Publisher; or

2.1.3 Publisher commences provision of Advertising Services to Advertiser.

2.2 The agreement between Publisher and Advertiser shall continue from the date of commencement until terminated by either party in accordance with the termination provisions as set out in these Advertising Terms.

3. Registration

Advertisers must complete account onboarding and registration as instructed by Publisher in the prescribed format as required by Publisher, including but not limited to providing billing and entity information, in order to use the Advertising Platform and the Advertising Services.

4. Advertising Platform and the Services

4.1 Subject to Advertiser’s compliance with the terms of this Agreement, Publisher shall use reasonable endeavours to:

4.1.1 provide Advertiser remote access to Advertising Platform solely for Advertiser to use Advertising Services. Only employees, contractors, and authorised representatives of Advertiser will be permitted access to and use of the Advertising Platform pursuant to these Terms;

4.1..2 make available to Advertiser different types of Ad Campaigns from time to time in its sole discretion; and

4.1.3 provide commercially proportionate support to Advertiser in its use of Advertising Platform where it is within Publisher’s control and access.

4.2 Advertiser acknowledges and agrees that the Advertising Platform is operated by, provided by and proprietary to Microsoft and Publisher has no control over the actual operation of the Advertising Platform and Microsoft may at any time make modifications to Advertising Platform or particular components, features, or functionalities of Advertising Platform. Subject to the Advertising Platform operating properly, Publisher shall use reasonable endeavours to do all such necessary acts within its control to: (i) make available to Advertiser access to and use of Advertising Platform, (ii) ensure Campaigns are delivered and Ads are served within the parameters set by Advertisers, (iii) report to Microsoft any errors or interrupted access and usage of the Advertising Platform reported to it by Advertiser, and (iv) where possible and within its control, remedy any errors or interrupted access and usage of the Advertising Platform reported to it by Advertiser.

4.3 Upon registration and onboarding of Advertiser onto the Advertising Platform, Advertiser will be able to remotely, via the Advertising Platform:

4.3.1 design and set up Campaigns in order to serve Ads on the Website based on parameters as Publisher may make available to it from time to time, such as but not limited to, start and end date, maximum budget spend, target products, target category of products;

4.3.2 organise live Campaigns; and

4.3.3 monitor Campaigns and view Campaign Delivery Reports.

4.4 Publisher does not guarantee that Advertiser’s Ads will appear in any particular time, position or rank, PLAs rank and whether they will be displayed are determined by an algorithm on Advertising Platform based on relevance, expected clickthrough rate, quality, bid amount and other relevant factors. Advertiser acknowledges that Publisher and any of our affiliates may participate in the Advertising Services to promote any of Publisher’s or Publisher’s affiliates products and services.

4.5 Publisher and Microsoft may reject, suspend or remove a specific Ad, Campaign, and/or Advertiser Material at any time for any reason without notice. For example, but not limited to if (i) an Ad violates these Terms, (ii) Advertiser is in breach of this Agreement, (iii) Advertiser Materials violates this Agreement, (iv) Publisher believes the Ad would expose Publisher or Microsoft to liability. Publisher shall have no liability for any such rejection, suspension or removal.

4.6 Publisher will not be bound by clerical or arithmetical errors in any materials produced by it or on the Advertising Platform or on the Website.

5. Fees and payment

5.1 Advertiser agrees to pay Publisher all Fees incurred by Advertiser from its use of the Advertising Services using payment method approved by Publisher from time to time.

5.2 Publisher shall invoice Advertiser on a monthly basis at the end or shortly after the end of each calendar month and Advertiser shall pay all undisputed invoices within 30 calendar days of the date of the relevant invoice or such other due date as set out in the relevant invoice. Time of payment by Advertiser of all invoices under the Agreement is of essence.

5.3 Any queries and/or disputes relating to any invoice must be raised in writing with Publisher prior to the due date, no claims in respect of any invoice will be entertained if they are raised by Advertiser after the invoice due date. Upon notice by Advertiser of an invoice query or dispute, Publisher will engage with Advertiser in good faith to resolve Advertiser’s queries within a reasonable timeframe and Publisher shall in its sole discretion extend any invoice due date where appropriate.

5.4 Advertising Fees are calculated and based solely on Advertising Platform’s measurements of applicable billing metrics as made available on Advertising Platform as follows:

5.4.1 where Advertisers set a maximum CPC in their Campaigns based on the CPC model, the actual CPC chargeable to Advertisers equals to the total cost of clicks divided by the total number of measured clicks;

5.4.2 where Advertisers set a maximum CPM in their Campaigns based on the CPM model, the actual CPM chargeable to Advertisers will equal to the total cost of impressions divided by the total number of measured impressions then multiplied by 1000; and

5.4.3 where Advertiser has set a maximum budget for a Campaign, Publisher will use reasonable endeavours to ensure Advertising Platform does not over deliver an Ad within a Campaign which would result in Fees being over the budget set by Advertiser, but Advertiser acknowledges and agrees that there will be a 10% allowance over any budget set by Advertiser in connection with any Campaign to account for potential metrics measurement reporting delays. Publisher will charge to and invoice Advertiser any such overspend and Advertiser shall pay any such overspend within 30 calendar days of the date of the relevant invoice or such other due date as set out in the relevant invoice.

5.5 Fees other than Advertising Fees will be at such rates as Publisher may see fit (whilst acting reasonably and in good faith) and as notified to Advertiser.

5.6 All amounts due under the Agreement are exclusive of VAT, sales or other tax applicable, which shall be paid in addition by Advertiser at the rate and in the manner for the time being prescribed by law.

5.7 Publisher may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by Advertiser against any amount payable by Publisher to Advertiser.

5.8 If Advertiser fails to make any amount due to Publisher under this Agreement by the due date for payment, without limiting its other rights, Publisher shall:

5.8.1 be entitled to charge Advertiser late payment interest on any overdue amount at the rate of 10% per annum above HSBC Bank Plc’s base rate at the time that the interest is calculated. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement, and shall be compounded daily. Such interest shall not prejudice any rights which Publisher has under the Late Payment of Commercial Debts (Interest) Act 1988. Advertiser shall pay the interest together with the overdue amount;

5.8.2 from the date an amount becomes overdue, have the right to suspend or cancel any ongoing or scheduled Campaigns and shall in no circumstances be obliged to serve any Ads of Advertisers on the Website; and

5.8.3 have the right to suspend or revoke Advertier’s access to the Advertising Platform and use of Advertising Services.

5.9 Where an Advertiser is a Principal Advertiser engaging Agency under this Agreement, Principal Advertiser will remain responsible for the payment of all Fees due to Publisher under the Agreement, whether properly incurred by Agency for proper use of Advertising Services and Advertising Platform within Agency’s authority or whether arising out of or in connection with Agency’s user error or exceeding Agency’s authority. Publisher shall in no event be liable for any delays, errors, failure, or misuse of Advertising Services and Advertising Platform resulting from Agency’s use of Advertising Services and Advertising Platform howsoever caused in whatsoever manner and without prejudice to any other rights or remedies of Publisher, Principal Advertiser will indemnify Publisher in respect of any liability, loss or damage (including reasonable legal costs) arising out of or in connection with any use by Agency of Advertising Services and Advertising Platform, any Ads and Campaign set up and/or served by Agency, or breach by Agency of this Agreement, except when such liabilities, losses, costs, expenses and damages, (including reasonable legal fees) suffered or incurred by Publisher arises as a direct result of Publisher’s negligence, misconduct or Publisher’s breach of this Agreement.

6. Advertiser’s obligations and warranties

6.1 Advertiser warrants and represents that:

6.1.1 it has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it under the Agreement without violation of the rights of any third party;

6.1.2 the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party;

6.1.3 this Agreement, when executed and delivered, whether by way of electronic or other physical means, constitutes its legal, valid and binding obligation; and

6.1.4 it shall comply with all applicable regulations and legislation at all times, including (but not limited to) the Bribery Act 2010 and the Modern Slavery Act 2015.

6.2 In connection with Advertiser’s use of Advertising Platform, Advertising Services and the Website, Advertiser shall:

6.2.1 where applicable, supply Advertiser Materials required for the Ad(s) and the overall Campaign in accordance with any technical specifications and within any required timeframe as notified to it by Publisher (whether via Advertising Platform or otherwise);

6.2.2 cooperate with Publisher in a timely manner in all matters relating to delivering Campaign(s) and respond promptly to any request by Publisher for approval or information reasonably required by the Publisher in connection with delivering Campaign(s);

6.2.3 where applicable, ensure Advertiser Materials are accurate and complete in all material respects;

6.2.4 ensure that the Ad(s) and any part thereof in relation to its products and services comply with all applicable laws, including the Advertising Laws;

6.2.5 comply with any Ad policies, instructions and guidelines which Publisher may notify to it from time to time;

6.2.6 comply with the Terms of Use and Acceptable Use Policy; and

6.2.7 where applicable, comply with Microsoft Trademark Usage Guidelines (available at: http://www.microsoft.com/en-us/legal/intellectualproperty/Trademarks/Usage/General.aspx) DAA’s Self-Regulatory Principles for Online Behavior Advertising (available at: https://digitaladvertisingalliance.org/principles) and the NAI Code of Conduct (available at: https://www.networkadvertising.org/code-enforcement/code/).

6.3 Advertiser is solely responsible for:

6.3.1 its account on the Advertising Platform and the operation of it;

6.3.2 for all activities that occur under its account regardless of whether the activities are authorised or undertaken by Advertiser, such as but not limited to maintaining security of Advertiser’s account, user passwords, and files on Advertising Platform;

6.3.3 setting up and designing Campaigns on Advertising Platform accurately, including but not limited to, setting correct budget limits, Campaign details and other relevant Campaign parameters. Publisher will not be liable for any incorrect or incomplete information or errors submitted by Advertiser in relation to any Campaign and Advertiser shall remain liable for any Fees, costs, expenses which it may incur resulting from errors by Advertiser;

6.3.4 monitoring Campaign details, deliveries, budget and spend; and

6.3.5 Ads, Ads trafficking or targeting decisions and any Campaign details which it sets.

6.4 Advertiser warrants and represents that all Ads, Advertiser Materials (where applicable), and/or its use of the Advertising Services:

6.4.1 are accurate, complete, true and not misleading;

6.4.2 are legal, truthful, honest and decent, not discriminatory, and otherwise comply with the provisions of all applicable laws, including Advertising Laws;

6.4.3 will not be false, defamatory, libellous, inciteful, harassing, obscene or threatening;

6.4.4 will not constitute unfair competition or unfair commercial practice;

6.4.5 will not infringe or misappropriate the Intellectual Property Rights of any third party; and

6.4.6 are free of any viruses, adware, malware, bit torrents, and will not cause an adverse effect on the operation of the Website.

6.5 Advertiser must not (or permit any third party to):

6.5.1 use any means to generate automated, fraudulent or invalid clicks or impressions;

6.5.2 conceal or attempt to conceal by any means any metrics where they are required to be disclosed;

6.5.3 use any means or do any such actions to interfere or attempt to interfere with the proper working of the Website and the Advertising Platform;

6.5.4 use any means, automated or otherwise, or scraping or data extraction to access, query or otherwise collect advertising-related information from the Website;

6.5.5 reverse engineer, decompile or disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Advertising Platform and/or the Website;

6.5.6 modify, translate, create derivative works, copy, store, display, distribute, sell, licence, sublicense, or publish any or all of the Advertising Services without prior written permission of Publisher;

6.5.7 use the Advertising Services for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of Advertiser in accordance with this Agreement;

6.5.8 copy or materially imitate the look and feel of Advertising Platform and any part of the Advertising Services or the Website; or use or glean learnings from Publisher’s Advertising Services, Advertising Platform or Confidential Information to build a competitive product or service;

6.6 Where an Advertiser is a Principal Advertiser engaging Agency under this Agreement, Principal Advertiser warrants and represents that:

6.6.1 it will notify Publisher in advance of its appointment of Agency and will provide Publisher with contact information (including, legal name, address, phone number, and e-mail address) for Agency acting on its behalf;

6.6.2 Agency has been duly and properly appointed and authorised to act on behalf of Principal Advertiser under this Agreement;

6.6.3 it has notified Agency of all obligations, promises, warranties and representations agreed with Publisher and as set out in these Terms which may apply to Agency in connection with it carrying out its duties and activities as Agency on behalf of Principal Advertiser;

6.6.4 it has signed or executed a valid and binding agreement with Agency confirming that Agency will properly perform its duties and activities and comply with all relevant promise, warranties and representations contemplated in this Agreement;

6.6.5 Principal Advertiser remains fully and primarily liable for any and all acts and omissions of Agency in connection with the use of Advertising Services and Advertising Platform under this Agreement as if they were Principal Advertiser’s own acts or omissions; and

6.6.6 without prejudice to any other rights or remedies of Publisher, Principal Advertiser will indemnify Publisher in respect of any liability, loss or damage (including reasonable legal costs) arising from any claim made by Agency against the Publisher.

6.7 Advertiser will indemnify Publisher from all liabilities, losses, costs, expenses and damages, (including reasonable legal fees) suffered or incurred by Publisher arising out of or in connection with any claims or any action, adjudication or decision taken against Publisher by any regulatory body, arising out of any breach by Advertiser of the representations and warranties provided under this clause 6.

7. Ad and Campaign cancellation

7.1 Any Ad and Campaign may be cancelled at any time via Advertising Platform prior to placement. It is Advertiser’s sole responsibility to affect Ad or Campaign cancellation correctly via Advertising Platform.

7.2 Advertiser may not cancel an Ad or Campaign after an Ad has been served on the Website without Publisher’s prior written consent.

7.3 In the event Publisher agrees to cancel an Ad or Campaign after an Ad has been served on the Website, Publisher will use reasonable endeavours to cease the Ad from serving as soon as practicable and Publisher reserves the right to charge to Advertiser a reasonable cancellation fee communicated to Advertiser by Publisher. Advertiser remains responsible for any Fees incurred resulting from any served Ads until such time the relevant Ad ceases to serve.

8. Termination and suspension

8.1 Either party may terminate this Agreement at any time by giving notice in writing to the other party if:

8.1.1 the other party commits a material breach of this Agreement and such breach is not remediable; or

8.1.2 the other party commits a material breach of this Agreement which is capable of remedy but is not remedied within 7 Business Days of receiving written notice of such breach.

8.2 Without limiting any other rights or remedies Publisher may have, Publisher reserves the right to suspend or terminate Advertiser’s use of Advertising Services and Advertising Platform if:

8.2.1 Advertiser commits a material breach of this Agreement which is capable of remedy but is not remedied within 7 Business Days of receiving written notice of such breach;

8.2.2 Advertiser’s Advertising Platform account has been, or Publisher’s controls identify that it might be used for deceptive, fraudulent, or illegal activity;

8.2.3 Advertiser’s use of Advertising Services has harmed or, Publisher’s controls identify that it might harm other advertisers, Website users, or Publisher; and/or

8.2.4 Advertiser, in Publisher’s reasonable opinion (whilst acting in good faith), is breach of the obligations and warranties in clause 6 of this Agreement.

8.3 Either party may terminate this Agreement for convenience immediately by giving notice in writing to the other party.

8.4 In the event an Advertiser has been inactive on Advertising Platform for a period of 90 calendar days, Publisher reserves the right to terminate the Agreement without notice and remove Advertiser’s account on Advertising Platform permanently, including all data relating to that account.

8.5 If Advertiser becomes subject to any events listed in this clause 8.5 or Publisher reasonably believes that Advertiser is about to become subject to any of them, Publisher may (without any liability to Advertiser and without limiting any other rights available to Publisher) suspend provision of Advertising Services, suspend Advertiser’s account on Advertising Platform and terminate the Agreement with immediate effect by giving written notice to Advertiser. The relevant events are as follows:

8.5.1 Advertiser suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

8.5.2 Advertiser commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where Advertiser is a company) in circumstances where these events take place for the sole purpose of a scheme for a solvent amalgamation of Advertiser with one or more other companies or the solvent reconstruction of Advertiser;

8.5.3 where Advertiser is a company:

8.5.3.1 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Advertiser, other than for the sole purpose of a scheme for a solvent amalgamation of Advertiser with one or more other companies or the solvent reconstruction of Advertiser;

8.5.3.2 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over Advertiser;

8.5.3.3 the holder of a qualifying floating charge over Advertiser’s assets has become entitled to appoint or has appointed an administrative receiver;

8.5.3.4 Advertiser is subject of a Change of Control;

8.5.4 where Advertiser is an individual:

8.5.4.1 Advertiser is the subject of a bankruptcy petition or order;

8.5.4.2 Advertiser dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation;

8.5.5 a person becomes entitled to appoint a receiver over Advertiser’s assets or a receiver is appointed over Advertiser’s assets;

8.5.6 a creditor or encumbrancer of Advertiser attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 Business Days;

8.5.7 Advertiser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;

8.5.8 Advertiser’s financial position deteriorates to such an extent that in Publisher’s opinion Advertiser’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

8.5.9 any event occurs, or proceeding is taken, with respect to Advertiser in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned herein.

9. Consequences of termination and suspension

9.1 In the event that this Agreement expires or is terminated for any reason:

9.1.1 Publisher shall cease all further performance of Advertising Services;

9.1.2 Advertiser shall cease to have access to Advertising Platform and Advertising Services;

9.1.3 Advertiser shall promptly pay to Publisher all Publisher’s outstanding unpaid invoices; and

9.1.4 each party shall destroy or return (at the other party’s election) all Confidential Information in its possession or under its control and all copies of such information.

9.2 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

9.3 Termination of this Agreement for whatever reason shall not operate to affect any provisions that expressly or by implication survive termination.

10. Intellectual property

10.1 Advertiser acknowledges and agrees that, as between Publisher and Advertiser, Publisher owns absolutely all right, title, and interest in and to Advertising Services Data and all Intellectual Property Rights embodied within Advertising Services Data and the Website. In circumstances where Advertiser becomes aware of any actual, suspected or threatened infringement by any third party of any of the Intellectual Property Rights referred to herein, or becomes aware of any claim from any third party that any of those Intellectual Property Rights infringe the rights of that third party, Advertiser shall immediately notify Publisher of the fact and circumstances of that infringement. Publisher shall have exclusive control over, and conduct of, all claims and proceedings relating to the Intellectual Property Rights referred to herein and Advertiser shall (at Publisher’s cost) provide such information and assistance as Publisher may reasonably require. Advertiser shall not make any admissions or seek to negotiate any terms of settlement in respect of such claims or proceedings. As between Publisher and Advertiser, Publisher shall be entitled to retain all sums recovered in any claims and proceedings relating to the Intellectual Property Rights referred to herein for its own account.

10.2 Advertiser shall have no right, licence or authorisation with respect to any of the Advertising Services Data except as expressly set forth in this Agreement. Advertiser’s access to Advertising Services Data is subject to Advertiser at all times complying with its obligations in this Agreement. Publisher reserves the right to suspend, revoke or remove Advertiser’s access to Advertising Services Data if Advertiser is in breach of any terms of this Agreement or if Publisher is required to do so for any reason (such as, but not limited to, due to third party complaint).

10.3 Publisher grants Advertiser a non-exclusive, non-transferrable, and royalty-free licence to use Advertising Services Data provided under this Agreement. Advertiser may use Advertising Services Data solely: (i) in accordance with this Agreement, (ii) to plan, organise and monitor Campaigns, (iii) to evaluate and analyse the performance of Ads and Campaigns, (iv) for internal analytic, evaluation, and processing payment of Fees purposes. Advertiser warrants and represents that it will not share the Advertising Services Data (or any part thereof) in any manner or format or medium to any third party without Publisher’s prior written consent (which may be withheld at Publisher’s discretion). Advertiser has no other rights in or to the Advertising Services Data or any part thereof other than as expressly stated in this Agreement. Advertiser agrees to indemnify Publisher for any claims, losses, fees or other costs it may suffer as a result of Advertiser breaching its warranties in this section.

10.4 With regards to Advertiser Materials provided to or made available to Publisher in connection with this Agreement, Advertiser grants us a worldwide, non-exclusive, royalty-free, fully-paid, and sublicensable right and licence to use Advertiser Materials in order to provide and improve Advertising Services. Publisher will use reasonable endeavours to follow any guidelines Advertiser may have in connection with the use of Advertiser Materials as notified to it.

11. Confidential information

11.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted under this Agreement. No party shall use the other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement. For the avoidance of doubt, this clause 11 shall survive termination of the Agreement.

11.2 Each party may disclose the other party’s Confidential Information:

11.2.1 to those of its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 11; and

11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12. Data privacy, cookies, and tracking technologies

12.1 Each party shall comply at all times with all requirements of the Data Protection Laws.

12.2 Advertiser shall not set cookies or any other tracking technologies (which includes use of any technology in connection with the collection, storage, accessing or other processing of any data in any manner that is subject to any Data Protection Laws) on the Ads and/or Advertising Platform to be published on the Website.

12.3 With regards to personal information relating to Advertiser which Publisher is required to process in order to provide Advertising Services, Publisher will process such personal information in accordance with its Privacy Policy and as necessary to perform its obligations under this Agreement.

13. Disclaimer

13.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PUBLISHER PROVIDES THE ADVERTISING SERVICES AND ACCESS TO THE ADVERTISING PLATFORM SOLELY ON AN “AS IS” AND “AS AVAILABLE” BASIS TO THE FULLEST EXTENT PERMITTED BY LAW. PUBLISHER HEREBY DISCLAIMS ALL WARRANTIES (EXPRESS, IMPLIED, OR OTHERWISE), INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, RELATED TO THE ADVERTISING SERVICES, ITS PERFORMANCE OF THE ADVERTISING SERVICES, PERFORMANCE OF THE ADVERTISING PLATFORM, OR ANYTHING PROVIDED IN RELATION TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, PUBLISHER MAKES NO GUARANTEES AND DOES NOT GUARANTEE THAT THE WEBSITE, THE ADVERTISING PLATFORM, AND THE ADVERTISING SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, NOR DOES THE PUBLISHER MAKES ANY WARRANTIES WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE ADVERTISING PLATFORM, THE WEBSITE, REVENUE, OR RESULTS FOR A GIVEN QUERY. PUBLISHER DOES NOT MAKE ANY REPRESENTATIONS WITH REGARD TO THE ADVERTISING PLATFORM PROVIDED BY OR THE SYSTEMS OF MICROSOFT OR ANY THIRD PARTY. THE WEBSITE AND ADVERTISING PLATFORM (OR FEATURES OF THE WEBSITE AND ADVERTISING PLATFORM) MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY PUBLISHER OR MICROSOFT OR BECAUSE OF OTHER CAUSES BEYOND PUBLISHER’S REASONABLE CONTROL.

15. Force majeure

15.1 If Publisher is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event, Publisher shall:

15.1.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify Advertiser of the Force Majeure Event, the date on which it started, its likely or potential duration (where possible), and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement;

15.1.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations; and

15.1.3 not be in breach of the Agreement or otherwise liable for such failure or delay in the performance of its obligations under the Agreement. The time for performance of such obligations shall be extended accordingly.

15.2 If the Force Majeure Event prevents, hinders or delays Publisher’s performance of its obligations for a continuous period of more than four weeks, Advertiser may terminate the Agreement by giving written notice to Publisher, provided that termination of the Agreement pursuant to this clause 15.2 shall not affect any of Advertiser’s obligations and liabilities that have already accrued as at termination (including payment obligations).

16. General

16.1 Assignment and other dealings

16.1.1 Publisher may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement.

16.1.2 Advertiser may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement without the prior written consent of Publisher.

16.2 Notices

16.2.1 Any notice or other communication given to a party under or in connection with the Agreement shall be sent by email. In the case of any notice or other communication which is sent to Publisher, a copy of that email shall be sent to legal@atomsupplies.com.

16.2.2 A notice or other communication shall be deemed to have been received one Business Day after transmission.

16.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

16.3 Severance

16.3.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

16.3.2 If any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.4 Waiver

A waiver of any right or remedy under the Agreement or law is only effective if given in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.5 Third party rights

A person who is not a party to the Agreement shall not have any rights to enforce its terms.

16.6 Variation

16.6.1 Except as set out in these Terms, no variation of the Agreement, including the introduction of any additional terms of business, shall be effective unless it is in writing and signed by a director of or in-house counsel to Publisher.

16.6.2 Publisher shall have the right to amend these Terms from time to time without notice, but Publisher will use reasonable endeavours to provide advance notice of material changes to these Terms. Save as set out below, changes to these Terms shall be effective from the moment in time at which they are published. No change to these Terms shall affect the terms of any Agreement which has come into existence prior to the date of publication of that change.

16.7 Governing law and jurisdiction

16.7.1 The 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.

16.7.2 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 Contract or its subject matter or formation (including non-contractual disputes or claims).

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Master of Malt Advertising Terms of Business

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Master of Malt Advertising Terms of Business

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