Last updated: 4 December 2023. Effective 4 January 2024.
These Platform Services Terms and Conditions (“Platform Terms” or “Platform Services Terms and Conditions”) govern Client’s use of the platform services described in the applicable Order Form. These Platform Terms are used to govern a number of different Services provided under different types of Order Forms. Each Order Form that incorporates these Platform Terms will be a separate agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 Capitalised terms used but not defined in these Platform Terms may only be applicable to particular Services, and, if applicable, will have the meanings given in the relevant Order Form or Service Specific Terms.
1.2 Any use of the term “including” in the Agreement will mean “including, but not limited to.”
1.3 The following capitalised terms will have the associated meanings for purposes of the Agreement. Any definitions included in these Platform Terms, or any related Order Form(s) will have the same meaning throughout the Agreement:
Ad(s) means advertising content.
Affiliate means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.
Anti-Bribery Laws means all applicable commercial and public anti-bribery laws, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010.
Beta Feature means any Service feature that is identified by Company or Google, including via the applicable Service user interface or via other communications to Client, as “Beta”, “Alpha”, “Experimental”, “Limited Release” or “Pre-release” or that is otherwise identified by Google as unsupported.
Brand Features means each party’s trade names, trademarks, logos and other distinctive brand features.
Client Content means any content served to End Users through the Target Properties that is not provided by Company via Google (including the content of all Ads served via the Services).
Client Partner means for Target Properties, (i) the owner (if not Client) of a Target Property, (ii) the third-party co-branding Target Properties with Client, or (iii) the third party for whom Client is white labelling Target Properties.
Company means the legal entity or its Affiliates defined in the applicable Order Form.
Confidential Information means information that one party (or an Affiliate) discloses to the other party under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is lawfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
Customer means an advertiser, network publisher or other third party, if any, on whose behalf Client utilises a Service.
Data means data derived from Client’s use of the Services.
Effective Date means the date on which an Order Form commences and specified as such in the applicable Order Form.
End Users means individual human end users of a Target Property. Google Google Ireland Limited and/or its Affiliates.
EU GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
GDPR means, as applicable: (a) the EU GDPR; and/or (b) the UK GDPR.
Google means Google Ireland Limited and/or its Affiliates.
Government Officials include any government employee; candidate for public office; and employee of government-owned or government–controlled companies, public international organisations, and political parties.
Intellectual Property Rights means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information and any other intellectual property or similar rights (registered or unregistered) throughout the world.
Order Form means an Order Form, schedule or other agreement that is subject to these Platform Terms and sets forth pricing and other terms with respect to a particular Service. All Order Forms incorporate and are governed by the terms and conditions contained herein.
Personal Data has the meaning given to it in the GDPR.
Personally Identifiable Information means (in the Agreement and any policies incorporated by reference into the Agreement) information that could be used on its own to directly identify, contact or precisely locate an individual.
Policies means:
a) the Google Platforms Program Policies available at https://support.google.com/platformspolicy;
b) the Google Ad Manager Partner Guidelines available at https://support.google.com/admanager/answer/9059370 (if applicable);
c) the Google EU User Consent Policy available at https://www.google.com/about/company/user-consent-policy.html (“EU User Consent Policy”) and;
d) any other policy and implementation guidelines identified in an applicable Order Form or provided by Google to Client (in each case, as modified from time to time).
Service Fees means the service, transaction, product and other fees set out in the Order Form(s) or in an applicable user interface for a Service.
Service Specific Terms means, for each Service, the additional terms and conditions that apply to such Service that are available at the link provided in the applicable Order Form for the Service.
Service(s) means the services and products set out in each Order Form.
Subcontractor means a subcontractor, consultant, third-party service provider or agent engaged by either party (or a Customer of such party) in connection with its use or provision of Services.
Tag means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) that requests the delivery of an Ad or tracks an Ad impression or click.
Target Property means a property on which an Ad is served via the Services (i.e., web sites, consent-based email publications, approved software applications or other properties as approved by Google).
Tax or Taxes means (without limitation) all taxes, duties, levies, imposts, withholdings, social security contributions, sales, use, excise, value-added, goods and services, consumption, other similar taxes or duties, deductions or amounts in the nature of or in respect of taxation.
UK GDPR means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force.
2. CHANGES TO THE SERVICES OR THE AGREEMENT
Company may modify the terms and conditions of this Agreement (including URLs referenced in the Terms and the content within such URLs) from time to time. Company may also modify URLs referenced in an Order Form and the content within such URLs from time to time. Any modifications to the Terms or the URLs referred to in the Agreement will be available at the relevant URL or a different URL that Company may provide from time to time. Changes to content of the Terms (including changes to the content within URLs) will not apply retroactively and will become effective at least 30 days after they are posted, unless otherwise specified by Company for Policies where in Company’s reasonable opinion more immediate application of a change to Policies (“Policy Change”) is 1) required to meet legal, regulatory, or industry standards/requirements; 2) required to maintain the integrity of Services; 3) required to address matters of public interest; or 4) reasonable to provide access to the Services for categories of Ads not previously permitted. Company will use commercially reasonable efforts to inform Client of immediate Policy Changes by alerting Client via the user interface, posting changes to the applicable change log relating to the Services, or by other suitable means (e.g., via email) where in Company’s reasonable opinion, Client is impacted by such Policy Change. For clarity, changes to the URL references in these Terms and in an Order Form will be effective immediately.
3. THE PARTIES’ OBLIGATIONS; PROHIBITED ACTS
3.1 Company’s obligations. Company will:
a. provide the applicable Services described in the Order Form(s) entered into by Client;
b. provide Client access to Google’s web-based training and support if and where available for any particular Service;
c. use current industry-standard security measures in connection with its provision of Services;
d. promptly notify Client upon becoming aware of any breach of Company or Google security resulting in unauthorised third party access to the Data; and
e. provide the Services in compliance with all applicable privacy and export laws, rules, regulations and sanctions programs, as well as applicable Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau and the Digital Advertising Alliance).
3.2 Client’s Obligations. Client will:
a. use the Services in compliance with all applicable Policies (as such Policies may be updated from time to time) and at all times Client will bear the burden of proof in establishing such compliance;
b. be solely responsible for all use of Services (including, as applicable to the Services described in the Order Form(s), trafficking Ads, implementing Tags, soliciting Target Properties, all inquiries relating to Ads, the content of all Ads, obtaining necessary rights and consents for using Data and other content or information provided to Company, and the acts and omissions of all Client Partners and Customers). This Clause 3.2(b) will not be treated as limiting Company’s obligations with respect to the provision of Services under the Agreement;
c. obtain all rights necessary to use, and necessary to permit Client or Company, as the case may be, to use the Data under the terms of the Agreement, including from Client Partners, Target Property owners (if not Client), End Users and Customers;
d. use the Services in compliance with all applicable privacy and export laws, rules, regulations and sanctions programs, as well as applicable Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau and the Digital Advertising Alliance);
e. ensure that each Target Property utilising a Service contains a conspicuous link to a privacy policy that (and advise its Customers and Client Partners in writing that each of their web sites and Target Properties must contain a privacy policy that):
i. discloses:
a) the usage of third-party technology;
b) the data collection and usage resulting from the Services; and
c) that third parties may be placing and reading cookies on End Users’ browsers, or using web beacons to collect information in the course of advertising being served on the web sites;
ii. includes information about End Users’ options for cookie management; and
iii. complies with all applicable privacy laws, rules and regulations; and
f. use commercially reasonable endeavours to ensure that an End User is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the End User’s device in connection with the Services where providing such information or obtaining such consent is required by law.
3.3 Prohibited Acts. Client will not, and will not assist or knowingly permit any third party to:
a. use the Services to process Personally Identifiable Information;
b. pass information to Company or Google that Company or Google could use or recognise as Personally Identifiable Information;
c. misappropriate, misuse, or abuse any part of a Service;
d. modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect to Services or any part of a Service (except to the extent that such prohibition is not permitted by law);
e. damage or tamper with any part of a Service;
f. knowingly breach any Service security measure; or
g. provide Company or Google any Ad that:
i. when viewed or clicked on by an End User’s computer, causes such End User’s computer to download any software application; or
ii. is illegal.
3.4 No Contact with Google. Company will be solely responsible for all provisions of the Services to Client and Client’s sole point of contact for the Services and any support services will be Company. Client acknowledges and agrees that it shall not contact Google directly for support, and that it will not communicate directly with Google in relation to this Agreement.
4. PAYMENTS
4.1 Company Payments to Client.
a. Revenue Share Calculation. For each applicable Service (i.e., if an Order Form obliges Company to pay Client a Revenue Share Percentage, as such term is defined in the applicable Service Specific Terms), Company will pay Client an amount equal to the Revenue Share Percentage of Net Ad Revenues (as such term is defined in the applicable Service Specific Terms) attributable to a calendar month, except in instances where Client may receive certain payments directly from a third-party demand source rather than from Company. In such cases, notwithstanding anything to the contrary in this Clause 4.1 of the Platforms Terms and Conditions, Client agrees that the terms and conditions associated with such payment will be addressed in the agreement entered into between Client and the third-party demand source. For clarity, Company will not pay Client a Revenue Share Percentage, or any amount attributed to Ads delivered by the third-party source on Client’s Target Properties (including any revenue share payment) and Google will not owe any such amounts to Client.
b. Payment. Subject to Company having received payment from Google in respect of revenue share due to client, Company payment to Client will be made in the month following the calendar month in which the applicable Ads were displayed, subject to any minimum payment threshold set forth in the applicable Service Specific Terms.
c. Exclusions. Company payment to Client will be based on Company’s accounting which may be filtered to exclude, as determined by Company: (i) spam, invalid clicks, invalid impressions, (ii) Ads served to End Users whose browsers have JavaScript disabled or who are otherwise tampering with ad serving or measurement, (iii) any click, impression, query, conversion, or other event occurring on a Target Property that does not comply with the Policies, and (iv) any amounts refunded to advertisers in connection with Client’s failure to comply with the Agreement. If Company detects such invalid activity, either before or after issuing a payment for such activity, Company reserves the right to debit Client’s Company Ad Manager account or adjust future payments accordingly.
d. Tax.
i. Service Fees. The Service Fees are exclusive of Taxes. Client will pay all taxes and other government charges related to or arising from: (i) use of the Services, and (ii) Client’s obligations under this Agreement and/or any Order Form shall be conditional upon Client’s fulfilment of its payment obligations to Company. the Agreement (in each case except for taxes on Company’s net income).
ii. Payments to Client. Company payment to Client will be treated as inclusive of all taxes (if applicable).
e. Withholding Tax.
i. Notwithstanding any provision in this Agreement or legal obligation on Client to withhold any taxes from its payments to Company, Client agrees to pay to Company a net amount equal to the full amount invoiced.
ii. If Company is obligated to withhold any taxes from its payments to Client, Company will withhold and provide Client with tax information returns and/or withholding certificates (or other sufficient evidence of tax payments) if required by law. Company may request withholding tax exemption certificates from Client to determine if Client is eligible for a withholding exemption or a reduced rate of tax withholding.
f. Set-off. In addition to other rights and remedies that Company may have, Company may offset any payment obligations to Client that Company may incur under the Agreement against any undisputed, past due product or service fees owed to Company by Client under Agreement(s) between Client and Company.
g. Over payment. Company may withhold and offset against its payment obligations under these Platform Terms, or require Client to pay to Company within 30 days of any invoice, any amounts Company may have overpaid to Client in prior periods.
4.2 Client Payments to Company.
a. Invoicing. For each applicable Service, Company will invoice (or send a statement of financial activity to) Client for Service Fees, if applicable, in the month following the calendar month in which the Service Fees are incurred unless there is an unforeseen circumstance where billing may be delayed.
b. Payment. Client will pay Company the Service Fees (other than any portion of the Service Fees disputed in good faith) and other invoiced amounts (if any) within 30 days (“Payment Due Date”), in the currency and at the exchange rate (if any) specified in the applicable Order Form and by electronic transfer to the account notified to it by Company or such other means expressly agreed to in writing by the parties. Unless otherwise expressly agreed, Service Fees payable under an Order Form are additional to Service Fees payable under other Order Forms. Client will be solely responsible, in accordance with the terms of this Order Form and the Terms, for all payments hereunder Services provided for the benefit of Customers, regardless of whether or not Client receives payment from Customers.
c. Taxes. The Service Fees are exclusive of taxes. Client will pay all taxes and other government charges related to or arising from use of the Services (except for taxes on Company’s net income).
d. Set-off. Client shall pay all undisputed sums due to Company without any set-off, counterclaim and/or any other deductions or withholding of monies. In addition to other rights and remedies Company may have, Company may offset the Service Fees payable by Client under the Agreement against any payment obligations to Client that Company may incur under the Agreement.
e. Disputes. If Client disputes the terms of an invoice, Client must raise such dispute within 60 days of its receipt of such invoice, failing which Client’s right to dispute such invoice shall be deemed to be waived. Upon receipt by Company of a written notice of dispute setting out Client’s reasons therefore, Parties shall cooperate in good faith to resolve the any billing dispute within 10 working days. The Due Date for disputed amounts shall be 30 days from the resolution of the dispute.
f. Expenses. Out of pocket expenses incurred by Company and approved by Client shall be invoiced monthly in arrears.
g. Late Payment. Company may charge interest at a rate of 8% per year above the base rate of Barclays Bank PLC, as updated from time to time, from the date payment is due until the date of actual payment, whether before or after judgment, on any Service Fees which are overdue (other than Service Fees disputed in good faith). Client will pay reasonable expenses and legal fees Company incurs in collecting late payments not disputed in good faith.
h. Suspension for late payment. Notwithstanding any provision in this Agreement or any Services Specific Terms or any Order Form, Company’s obligations under this Agreement and/or any Order Form shall be conditional upon Client’s fulfilment of its payment obligations to Company. If Client fails to pay Service Fees invoiced by Company (other than Service Fees disputed in good faith) within 10 days following the Payment Due Date, Company may suspend each applicable Service (for which the Service Fees are overdue) immediately upon notice to Client.
i. Payment information. Any account and related billing and payment information which Client provides to Company may be shared with third parties solely for the purposes of performing credit checks, effecting payment to Company or servicing Client’s account.
j. Credit Check. Prior to Company’s commencement of any Services under any Order Form, if Client fails to pay Company in a timely manner at any point during the Terms of this Agreement or if Company has reasonable grounds to suspect that Client is or is likely to be unable to meet its payment obligations hereunder timeously, Client shall, upon Company’s request, provide Company with the information necessary to enable Company to perform a credit check on Client.
k. Credit Limit. If applicable, Client will not exceed its aggregate credit line as determined by Company in its sole discretion (and made available if requested) and Company will not be obligated to provide any Services in excess of such credit line. Company reserves the right to change or retract any credit line at any time in its sole discretion.
l. Deposit. Upon 5 days’ prior notice to Client, Company may, in its sole discretion if Company determines that there is any credit risk associated with Client, require Client to prepay Company an amount equal to not more than 2 months of reasonably anticipated or actual Service Fees under each applicable Order Form. The Deposit shall be held by Company until such time as Client does not have any overdue invoices for a period of 12 consecutive months. At such time, Company shall apply the Deposit against ensuing invoices until such time as the Deposit is reduced to zero. Without prejudice to any rights of Company, Company has the right to apply the Deposit (or a portion thereof) against any overdue invoices and Client is then required to replenish the Deposit within two (2) business days from the date of an email notice by Company. Should Client fail to replenish the deposit within this notice period, Company has the right to immediately suspend any or all Services without any liability arising by reason thereof, and not reinstate such Services until Client has paid all outstanding amounts and has replenished the Deposit. Company shall return the balance of the Deposit held upon expiration of the Term (after applying the Deposit to any outstanding payments, if any) to Client within 30 days of the termination date.
5. INTELLECTUAL PROPERTY
Except to the extent expressly stated otherwise in the Agreement, neither party will acquire any right, title or interest in any Intellectual Property Rights owned or licensed by the other party.
6. BRAND FEATURES
Company and Google may use Client’s Brand Features as necessary for Company to provide the Services (e.g., if Client makes its inventory available on a transparent basis via the Services, Company and/or Google may display Client’s Brand Features to advertisers). Other than the limited licence set forth in the preceding sentence, Company will not use, and will procure that Google does not use, Client’s Brand Features (including for marketing and promotional purposes) without Client’s prior written approval.
7. CONFIDENTIALITY
7.1 The receiving party will not disclose the Confidential Information of the disclosing party, except to: Affiliates; Subcontractors; employees; agents; and/or professional advisors of the receiving party (in each case) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The receiving party will ensure that those people and entities use the Confidential Information of the disclosing party only to exercise rights and fulfil obligations under the Agreement, and that they keep it confidential. The receiving party may also disclose Confidential Information when required by law after giving reasonable notice to the disclosing party, if permitted by law. For purposes of clarification, Data and the terms and conditions of the Agreement are considered Confidential Information under the Agreement. This Clause 7 (Confidentiality) does not affect the parties’ rights under Clause 15.18 (Raising Issues with Public Authorities).
7.2 Notwithstanding anything to the contrary in this Agreement, Client expressly consents that Company may from time to time provide Google with reports that contain Client’s Confidential and/or Personally Identifiable Information for the following purpose: (a) reporting as required by Google pursuant to the reseller agreement between Google and Company, and (b) for Google to contact Client to discuss the Services, including to discuss Client’s satisfaction with Company’s provision of the Services.
8. REPRESENTATIONS AND WARRANTIES
Each party warrants that it will use reasonable care and skill in complying with its obligations under the Agreement. Client represents and warrants that it has all necessary rights and authority to (i) enter into the Terms and each Order Form, (ii) perform its obligations hereunder and thereunder and (iii) act on behalf of any Customers and Client Partners.
9. DISCLAIMERS
9.1 No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Company under the Agreement unless expressly set out in the Agreement. Subject to Clause 13.1, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
9.2 Company’s advice and/or recommendations provided in the course of any Services are not, and must not be construed as, legal advice. Different applicable laws (including Client industry laws), industry codes of conduct and internal policies (collectively, “Applicable Rules”) apply to Company’s clients and each client (including Client) operates within a unique compliance environment. Notwithstanding any other provision herein or otherwise, Company does not warrant or guarantee that Client’s decisions, actions or inactions in reliance on Company’s advice and/or recommendations will be compliant with any or all Applicable Rules. Client acknowledges and agrees that any decisions or acts based on implementation of Company’s recommendations are at Client’s own risk.
10. ANTI-BRIBERY
In performance of its obligations under this Agreement, each party (a) will comply with Anti-Bribery Laws, which prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including Government Officials, to obtain or keep business or to secure any other improper commercial advantage; and (b) will not make any facilitation payments, which are payments to induce any official to perform routine functions they are otherwise obligated to perform. Any breach of the first sentence of this Clause 10 (Anti-Bribery) is deemed incapable of remedy. Company and/or Google may suspend performance or terminate this Agreement with immediate effect if Company and/or Google believes, in good faith, that Client has violated or caused Company or Google to violate any Anti-Bribery Laws, or that such a violation is reasonably likely to occur. Client will keep complete and accurate records relating to this Agreement. During the Term of this Agreement, and for a period of one year afterwards, Company may audit Client’s relevant records to confirm Client’s compliance with this Agreement. Such auditor will only have access to those books and records of Client that are reasonably necessary to confirm such compliance. Client will make commercially reasonable and good faith efforts to comply with Company and/or Google’s anti-bribery due diligence process, including providing requested information.
11. BETA FEATURES
Subject to Clause 13.1, Company will have no liability under the Agreement (including any indemnification obligations) arising out of or related to any use of Beta Features by Client, its Affiliates, or its or their Customers or Client Partners. Any use of Beta Features will be solely at Client’s own risk and may be subject to additional requirements as specified by Company. Company is not obligated to provide support for Beta Features and Company may, at its sole discretion, cease providing Beta Features as part of any Services.
12. INDEMNIFICATION
12.1 Indemnity by Company. Company will indemnify Client against:
a. all damages and costs finally awarded against Client in relation to a claim filed by an unaffiliated third party before a court or government tribunal that the software and other technology used by Company to provide the Services infringes any trademark, trade secret, copyright, or U.S. patent of that third party (a “Client Claim”);
b. settlement costs in relation to that Client Claim;
c. reasonable legal fees and disbursements necessarily incurred by Client in relation to that Client Claim; and
d. Reasonable costs necessarily incurred by Client in complying with Clause 12.3.
12.2 Indemnity by Client. Client will indemnify Company and its Affiliates against:
a. all damages and costs finally awarded against Company or any of its Affiliates in relation to a claim filed by an unaffiliated third party before a court or government tribunal:
i. that the creative, technology, data or other materials provided by Client or any Affiliate of Client to Company or otherwise provided and utilised by Client, any Affiliate of Client or any Client Partner in connection with the Services (“Client Materials”) infringes any trademark, trade secret, copyright, or U.S. patent of that third party;
ii. arising out of or related to (a) any Client Content, Target Properties or Client Brand Features; (b) any use of, or access to, the Services, including Ads, by any Client Partner; or (c) claims brought by any Client Partner against Company relating to the implementation or display of Ads on a Client Partner Target Property or Company’s provision of the Service(s) for such Client Partner; (in each case an “Company Claim”);
b. settlement costs in relation to that Company Claim;
c. reasonable legal fees and disbursements necessarily incurred by Company or any of its Affiliates in relation to that Company Claim; and
d. reasonable costs necessarily incurred by Company or any of its Affiliates in complying with Clause 12.3.
12.3 Indemnification process. Each party will:
a. notify the other of a Client Claim or an Company Claim (each a “Third Party Claim”) promptly after becoming aware of it;
b. provide the other with reasonable information, assistance and cooperation in responding to and, where applicable, defending that Third Party Claim; and
c. give the other sole control over the defence and settlement of that Third Party Claim subject to the indemnified party’s right to join in the defence with non-controlling counsel of its choice at its own expense and its rights under Clause 12.4.
12.4 Settlement. Any settlement requiring the Indemnified Party to admit liability, pay money, or take (or refrain from taking) any action, will require the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
12.5 Exclusions. The indemnifying party will have no obligation or liability under this Clause 12 in relation to any Third Party Claim arising from:
a. the indemnified party’s breach of the Agreement;
b. (where Company is the indemnifying party) (i) Client Materials, (ii) content, information or data provided to Company or Google by End Users or any other third parties or (iii) Ads or any third party websites or content to which such Ads may link;
c. (where Company is the indemnifying party) the combination, operation or use by Client or any Affiliate of Client of any Services(a) with any product or service not provided or authorised in writing by Company, or (b) in a modified form; or
d. (where Company is the indemnifying party) acts or omissions by Client Partners or Affiliates.
12.6 Remedies. If any Services become, or in Company’s reasonable opinion are likely to become, the subject of an Intellectual Property Rights infringement claim, then Company , at Company’s sole option and expense and upon notice to Client, may: (a) procure the right to continue providing the Services as contemplated by the Agreement; (b) modify the Services to render them non-infringing (if modification does not adversely affect use of the Services); or (c) replace the Services with functionally equivalent, non-infringing services. If none of the foregoing options is commercially practicable, then Company will have the right to terminate the Order Form on written notice.
12.7 Sole Remedy. Without affecting either party’s termination rights, this Clause 12 states the parties’ entire liability and exclusive remedy with respect to third party Intellectual Property Rights infringement allegations and Third Party Claims.
13. LIMITATION OF LIABILITY
13.1 Nothing in the Agreement will exclude or limit either party’s liability:
a. for death or personal injury resulting from the negligence of either party or their servants, agents or employees;
b. for fraud or fraudulent misrepresentation;
c. for payment of sums properly due and owing to the other in the course of normal performance of the Agreement; or
d. for any other liability that may not otherwise lawfully be excluded or limited.
13.2 Subject to Clause 11 (Beta Features), nothing in the Agreement will exclude or limit either party’s liability under the indemnities given under the Agreement, including the indemnities given in Clause 12 (Indemnification) above.
13.3 Subject to Clauses 13.1, Company will not have any obligations or liability under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise and including under the indemnities in Clause 12 (Indemnification)) in relation to: (a) the content of Ads; or (b) any websites or content to which such Ads may link.
13.4 Subject to Clause 13.1, 13.2 and 13.3, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise) for any:
a. loss of profit;
b. loss of anticipated savings;
c. loss of business opportunity;
d. loss of or corruption of data (except for loss or corruption of Personal Data); or
e. indirect or consequential losses, suffered or incurred by the other party,
(whether or not those losses were within the contemplation of the parties at the date of the Agreement).
13.5 Subject to Clauses 13.1, 13.2, 13.3 and 13.4, each party’s aggregate liability (whether in contract, tort (including negligence) or otherwise) for all Claims arising in a one year period starting on the Effective Date or an anniversary of the Effective Date (a “Contract Year”) is limited to the greater of:
a. 125% of (a) the Service Fees paid and payable to Company under the Agreement in that Contract Year; and, only if applicable to the relevant Service asset out in the relevant Order Form (b) the Ad Revenues received and retained by such party in that Contract Year; and
b. £30,000.
For the purposes of this Clause 13.5, “Claim” means any claim, demand, proceeding, action or complaint of any nature or kind under or in connection with this Agreement.