This Content Ignite™ Solution and Service Agreement is automatically applied to any company or publisher that requests our service and places Content Ignite tags on their website.
Content Ignite™ is a Division of Think Clever Media Limited.
Think Clever Media Limited, a limited liability company incorporated and existing under the laws of England and Wales with registration/business identity number 08845668 (“ThinkCleverMedia”)
The company using the Content Ignite™ service will be referred to as the “Publisher” in this agreement.
ThinkCleverMedia and the Publisher also individually a “Party” and jointly the “Parties”.
This terms apply for as long as the tags are present on the Publisher website.
Use of the Content Ignite™ Service.
By placing Content Ignite™ tags on your website the Publisher agrees that to executing this Agreement, ThinkCleverMedia shall provide to the Publisher a non-exclusive in-content advertising solution and the Content Ignite™ Service.
Publisher shall use the Content Ignite™ Solution and Service in accordance with the terms and conditions of this Agreement.
All fees applicable to the Parties are set out in this Agreement and the Parties agree upon the following payment model with revenue share, as defined below.
Publisher Terms and Condition
1.1 In these Conditions, the following definitions apply:
“Advert” means a clickable image or link to content to be displayed on a Website;
“Advertiser” means the person or company who is ultimately responsible for placing the advertising content that appears via a Content Ignite solution.
“Business Day” means any day other than a weekend or public holiday in the recipient’s country;
“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 16.2;
“Confirmation Order” means a confirmation order signed (electronically or otherwise signed) by ThinkCleverMedia and the Publisher setting out Publisher’s details, relevant commercial terms and any variations to these Conditions;
“Content” means editorial content and/or advertising selected by an Advertiser (or prepared by ThinkCleverMedia on an Advertiser’s behalf) and which appears on an Advertiser’s website or any third party websites, including any operated by Advertiser;
“ThinkCleverMedia’s Dashboard Website” means http://dashboard.thinkclevermedia.com
“CPM” means the cost per thousand impressions on the Websites;
“CTR” means the click through rate from Adverts on the Websites to Content;
“End Date” means the date of expiry of this Agreement as agreed between the parties in a Confirmation Order (if applicable);
“Net Revenue” means Gross Revenue minus Fees;
“Publisher” means the person or company who registers an account with ThinkCleverMedia to represent a Website or multiple Websites specified in the Confirmation Order (if applicable) who appoints ThinkCleverMedia to sell Publisher Inventory;
“Publisher Inventory” means space for Adverts on the Websites;
“Term” has the meaning set out in clause 8.1;
“Supplier” means the company or person that ThinkCleverMedia has agreements with to provide advertising via the Content Ignite Solution
“Website(s)” means Publisher’s websites as registered by Publisher and described in the Confirmation Order (if applicable) that have been approved by ThinkCleverMedia in accordance with clause 3.2 and excludes Websites that have been rejected by ThinkCleverMedia pursuant to clause 3.4.
1.2 In these Conditions, unless the context requires otherwise, ThinkCleverMedia and Publisher are each referred to as a “party” and collectively as “parties”.
1.3 A reference to a party includes its successors or permitted assigns.
2.1 Publisher appoints ThinkCleverMedia to act as its sales representative for the sale of the Publisher Inventory to Advertisers upon either:
2.1.1 approval by ThinkCleverMedia of Publisher’s account and Websites via the registration process on ThinkCleverMedia’s Content Ignite Website; or
2.1.2 if ThinkCleverMedia requires the execution of a Publisher Confirmation Order, receipt by ThinkCleverMedia of a Confirmation Order signed (electronically or otherwise) by Publisher;
2.2 and upon such appointment ThinkCleverMedia agrees to act as Publisher’s sales representative on the terms of this Agreement. These Conditions apply to the Agreement to the exclusion of any other terms that Publisher seeks to impose or incorporate, or which would otherwise be implied by trade, custom, practice or course of dealing.
2.3 In the event of a conflict or inconsistency between these Conditions and the Confirmation Order, the terms in the Confirmation Order shall prevail.
2.4 ThinkCleverMedia represents and warrants that it has the right and authority to enter into this Agreement and that Publisher has the right to display Adverts on its Websites.
3. Approval of Websites
3.1 ThinkCleverMedia shall confirm if a Website is approved by signing the Confirmation Order which details the Website and sending it to the Publisher for confirmation.
3.2 The provisions of this Agreement will apply to any Website that is added to, updated or re-activated for, or by, Publisher during the Term.
3.3 ThinkCleverMedia may monitor the Websites from time to time throughout the Term to check if Publisher is complying with the warranties in clause 5 below. Without prejudice to any other rights or remedies, ThinkCleverMedia shall have the right to reject and exclude from this Agreement any Website that is in breach of such warranties on notice to Publisher throughout the Term.
3.4 Any approval or monitoring of the Websites carried out by ThinkCleverMedia shall not limit or affect the warranties provided by Publisher in clause 5 below.
4. Publisher’s Obligations
4.1 Publisher shall not modify any of the Adverts, or any of the reports detailing the CTR provided to Publisher by ThinkCleverMedia.
4.2 Publisher shall have no interest in or right to the Adverts and such rights are retained by the Advertisers who provide such Adverts.
4.3 No rights are granted under this Agreement for Publisher to use any trademark of ThinkCleverMedia.
4.4 Publisher must ensure that appropriate privacy policies are displayed on the Websites that comply with all applicable data protection laws including but not limited to the Data Protection Act 1998 and Publisher shall include any text reasonably required by ThinkCleverMedia on its Websites.
4.5 Publisher shall immediately notify ThinkCleverMedia of any known or suspected unauthorised use of the Publisher’s account on ThinkCleverMedia’s Dashboard Website, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of the Publisher’s username and password. Publisher shall be responsible for maintaining the confidentiality of its username and password and the Publisher is responsible for all usage of its account through its user name/password combination, including use by a third party authorised by Publisher to use its account.
5 Publisher’s Warranties 5.1 Publisher represents and warrants that:
5.1.1 it has the right and authority to enter into this Agreement;
5.1.2 it either owns, or is entitled to use the content displayed on the Websites;
5.1.3 the Websites shall not include any material that:
(i) is or may be considered libelous, pornographic, sexually explicit, obscene, defamatory, abusive, promotes hate, discrimination or participation in illegal activities, or material that may be a misrepresentation under any applicable law, or in any jurisdiction in which a user of such Website resides;
(ii) is, or may be considered an infringement of any third party’s rights, including copyright, trade marks or other intellectual property, publicity or privacy rights;
(iii) contains any viruses, or any other destructive programming, or device that could impair or injure any data, computer system or software;
(iv) is, or may be considered a violation of any applicable laws, or regulations, including without limitation, advertising laws including the CAP Code as set out at www.cap.org.uk, gaming and gambling laws, competition laws, data protection and privacy laws, hacking laws, criminal laws, or consumer protection laws;
(v) promotes or facilitates any activities that are illegal under applicable law including without limitation; creating false impressions, the copying of copyright works, hacking or other unauthorised access to or modification of devices;
5.1.4 it shall not:
(i) commit, or arrange for a third party to commit, any fraudulent activity, including but not limited to inflating the number of clicks on Adverts, the CTR or the number of impressions served on the Websites and the activities described in clause 6.4;
(ii) post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any ThinkCleverMedia user via ThinkCleverMedia’s Website;
(iii) create or submit spam to any other ThinkCleverMedia users;
(iv) interfere or attempt to interfere with the proper working of ThinkCleverMedia’s Dashboard Website or any activities conducted on ThinkCleverMedia’s Dashboard Website; or
(v) use the service or any property of ThinkCleverMedia in a manner inconsistent with the proper operation of the ThinkCleverMedia service.
6.1 ThinkCleverMedia does not guarantee any performance regarding CTR.
6.2 The reporting of CTR or page impressions will be made available to Publisher through Publisher’s account on ThinkCleverMedia’s Dashboard Website.
6.3 Publisher acknowledges that usage statistics provided by ThinkCleverMedia are the official, definitive measurements of the CTR or number of impressions served on the Websites and all payments due to Publisher are calculated using these statistics.
6.4 ThinkCleverMedia actively monitors traffic for fraud. ThinkCleverMedia reserves the right to suspend or terminate Publisher’s account and investigate Publisher if it suspects fraudulent activity in its sole discretion, for example if multiple click-throughs are generated from the same IP address, if multiple leads are generated through the use of proxy servers, or if Publisher has a significantly higher than average CTR or number of impressions. In the event that Publisher has already received payment from ThinkCleverMedia as a result of fraudulent activities, Publisher shall reimburse ThinkCleverMedia on demand. Fraudulent activity includes, but is not limited to, inflating the CTR or number of impressions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, programs, robots, iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an event.
7.1 In the absence of any other agreement, ThinkCleverMedia shall pay to Publisher Net Revenues based on ThinkCleverMedia reporting.
7.2 Calculation of payments pursuant to clause 7.1 (each a “Payment”) shall be based on data recorded and tracked by ThinkCleverMedia’s technology platform solutions for each calendar month during the Term and will be reconciled at month end.
7.3 All Payments to Publishers shall be made within 45 days from the end of each calendar month unless otherwise agreed in writing by ThinkCleverMedia.
7.4 All Payments shall be made in pounds sterling to Publisher’s bank account. Publisher is responsible for ensuring that their bank account details are accurately provided ThinkCleverMedia’s via an invoice.
7.5 Publisher is responsible for all applicable taxes (including without limitation VAT) with respect to Payments received from ThinkCleverMedia and will on request provide a VAT invoice for any Payments made to it by ThinkCleverMedia if so requested by ThinkCleverMedia.
7.6 ThinkCleverMedia in its sole discretion will determine what Payments are due to the Publisher. In the event that the Publisher disputes any calculations Publisher must notify their account manager at ThinkCleverMedia by email no later than the 5th day of the month following the month in relation to which the disputed calculation occurred or arose. If ThinkCleverMedia, in its sole discretion, determines that there has been an error it shall make any appropriate adjustments. In the absence of manifest error, ThinkCleverMedia’s findings are final and binding.
7.7 ThinkCleverMedia reserves the right not to pay (or reduce) any Payments to Publisher if Publisher is in breach of any provision of this Agreement. Without limitation, ThinkCleverMedia shall determine in its sole absolute discretion which acts or omissions include or constitute activity that is deceptive or fraudulent.
7.8 No Payment will be made to until the Net Revenue outstanding on the account is over £500 (“Threshold”). The Threshold does not have to be met in a particular period and Payment will be made as soon as the Threshold has been met at any point during the Term
7.9 You further agree that ThinkCleverMedia shall have no obligation to issue any Payment(s) to you if ThinkCleverMedia has not received remittance from the relevant Supplier(s) of Advertising of all monies due to ThinkCleverMedia. In the event of such non-payments or bad debts, ThinkCleverMedia reserves the right to offset future Payments to you or invoice you for such amount owed in its sole discretion. Your recourse for any such adjustment due to non-payment shall be to make a claim against the relevant Supplier(s) of Advertising, and ThinkCleverMedia disclaims any and all liability for such Payments.
8. Term and Termination
8.1 This Agreement will commence on the appointment of ThinkCleverMedia in accordance with clause 2.1 and, unless earlier terminated in accordance with clause 8.2, shall continue in full force until the End Date or, where there is no End Date the date when the Publisher closes its account with ThinkCleverMedia subject to any notice period set out in the Confirmation Order (“Term”).
8.2 Without prejudice to any other rights or remedies which ThinkCleverMedia may have, ThinkCleverMedia may terminate this Agreement:
(i) within 24 hours upon notice to Publisher; or
(ii) immediately upon written notice if Publisher is in material breach of any of the terms of this Agreement.
(iii) 30 days after Content Ignite™ tags have been removed by the Publisher and there has been no attempt at contact by the Publisher or activity on the account in this period.
8.3 In the event of expiry or termination, where the amount due is over the payment threshold (see 7.8) the Publisher will be entitled to all payments earned, but unpaid, prior to the date of expiry or termination provided that Publisher has complied with all provisions of this Agreement and that this Agreement was not terminated for breach pursuant to 8.2(ii) above.
8.4 In the event of expiry or termination of this Agreement for any reason:
(i) Publisher’s right to display the Adverts on the Websites shall immediately cease and Publisher shall remove all Adverts and widgets from its Websites, web servers, hard drives, networks, and other storage media including all copies;
(ii) the accrued rights and remedies of the parties as at the date of expiry or termination shall not be affected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of expiry or termination; and
(iii) provisions which expressly or by implication have effect after expiry or termination shall continue in full force and effect.
8.5 Without prejudice to any other rights or remedies which the Publisher may have, Publisher may terminate this Agreement:
(i) upon written notice within 24 hours of the signed appointment date.
(ii) once the contract has fully commenced upon written notice within 30 days.
9.1 Obligations. For the Term of this Agreement and one year following expiry or termination of this Agreement, neither party shall disclose to any third party (other than its professional advisors and employees and directors, in their capacity as such, on a need to know basis so long as they are bound by the terms of this Agreement) any Confidential Information (as defined in clause 9.2) that it has received or will receive, in whatever form or media, nor use such Confidential Information for any purpose not permitted under this Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of an order of any competent court or government agency.
9.2 Confidential Information. Confidential Information comprises the terms of this Agreement and any other non-public information disclosed by one party to the other, which is, or should be reasonably understood to be confidential or proprietary to the disclosing party or any information which has been identified as Confidential Information by the disclosing party and includes, but is not limited to the Confirmation Order. Notwithstanding the foregoing, Confidential Information does not include information that:
9.2.1 is, at the time of disclosure, or thereafter becomes, generally available to the public other than as a result of its disclosure by the recipient in breach of this Agreement;
9.2.2 was lawfully in the possession of the receiving party as of the time of disclosure;
9.2.3 is independently developed by the receiving party without reference to the Confidential Information; or
9.2.4 is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.
10. Indemnity and Limitation of Liability
10.1 Except as expressly set out in this Agreement, ThinkCleverMedia does not make and hereby disclaims, any and all express or implied warranties or conditions including, but not limited to, satisfactory quality, fitness for a particular purpose, non-infringement, absence of viruses or malicious software and furthermore ThinkCleverMedia makes no representations or warranties that use of ThinkCleverMedia’s services will result in any specific results, benefits or CTRs which may be expected.
10.2 In no circumstances does ThinkCleverMedia limit or exclude its liability for death or personal injury arising from its negligence, or its liability for fraudulent misrepresentation or any other liability which cannot be excluded or limited by law.
10.3 Subject to clause 10.2, ThinkCleverMedia shall not be liable to Publisher for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
10.3.1 the Websites, including any claims arising from use of the Websites (for example, but not limited to breach of data protection laws or advertising laws) but excluding any claims arising from wording provided directly by ThinkCleverMedia pursuant to clause 4.4;
10.3.2 use of, or inability to use, ThinkCleverMedia’s Website;
10.3.3 loss or damage caused by any Advert, including the content of any Advert or any viruses or other technologically harmful material that may be contained in an Advert;
10.3.4 loss of profits, anticipated profits or revenue;
10.3.5 business interruption;
10.3.6 loss of business opportunity, goodwill or reputation; or
10.3.7 any indirect or consequential loss or damage.
10.4 Subject to clause 10.2 and 10.3, ThinkCleverMedia’s aggregate liability to Publisher for any claims arising out of or relating to this Agreement shall not exceed the total amount paid by ThinkCleverMedia to Publisher in the 3 months prior to the occurrence giving rise to the claim.
10.5 Publisher hereby agrees to indemnify and hold harmless ThinkCleverMedia and each of its employees, directors, and officers from and against any and all losses, third-party claims, liabilities, fines, costs or expenses, including reasonable legal fees, incurred by ThinkCleverMedia and any such indemnified party to the extent that such claims, liabilities, costs or expenses result from Publisher’s breach of this Agreement.
11.1 Any notice or other communication given to a party under or in connection with this Agreement shall be delivered to ThinkCleverMedia by email to email@example.com and to Publisher at the email address entered as their primary contact in the Publisher Confirmation Order part of this document.
11.2 A notice or other communication shall be deemed to have been received one Business Day after sending, provided the sender does not receive an automated message that the email could not be delivered.
11.3 The provisions of this clause shall not apply to the service of any documents in, or in anticipation of, any legal action, which shall be delivered by first class registered post or courier to the address of ThinkCleverMedia shown above or, in the case of documents sent to the Publisher, to Publisher’s address as set out in the most recent Confirmation Order..
12. Assignment and subcontracting
12.1 ThinkCleverMedia may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
12.2 Publisher may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of ThinkCleverMedia.
13. Third party rights
A person or company who is not a party to this Agreement shall not have any rights under or in connection with it.
If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
16.1 Subject to clause 16.2, any variation to this Agreement, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by ThinkCleverMedia.
16.2 ThinkCleverMedia may revise this Agreement from time to time and will notify Publisher of any changes. If Publisher objects to any such change, it shall have the right to terminate this Agreement under clause 8.1.
17. Entire Agreement
17.1 This Agreement constitutes the entire agreement between the parties. Publisher acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of ThinkCleverMedia which is not set out in this Agreement.
17.2 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 set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
18. Force Majeure
Neither party shall be liable for, or be considered in breach of this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition which is beyond such party’s reasonable control, including but not limited to acts of God, acts of government, strikes, war, telecommunication failures or failure of power supplies or equipment.
19. No Partnership
Nothing in this Agreement shall constitute, create, or give effect to any joint venture or partnership between the parties.
20. Governing Law
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 English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.