For the purposes of these Terms:
1.1 “Advertisement” means any advertisement in or on:
1.1.1 any print or digital magazine published by Ink;
1.1.2 a website or application associated with any magazine published by Ink;
1.1.3 any digital media in respect of which Ink has the right to Deliver targeted advertising (including but not limited to any of the following: booking confirmation page; booking confirmation email; pre-travel reminder email; check in email; print at home boarding pass; post travel email; mobile boarding pass advertising) (each a “Targeted Advertising Media”);
1.1.4 any video to be broadcast on an Inflight Entertainment Sys tem (“IFE”), Reach TV, a website, digital channel or application on which Ink has the right to broadcast video content;
1.1.5 any advertising to be served via the Navigator Platform;
1.1.6 any media and opportunities upon which advertising may be offered for sale on one or more platforms (“Brand Partnerships”); and
1.1.7 any other media in respect of which Ink has the right to Deliver advertising (including but not limited to headrests, seatbacks and overhead lockers) collectively (“Ambient”),
and “Advertising” shall be construed accordingly.
1.2 “Advertiser” means the party identified in the Order as the advertiser, which may be the seller of the products and/or services to be advertised or the advertising agency or other party acting on behalf of that seller;
1.3 “Agreed Purposes” means the purposes of the Contract and the business relationship between the parties.
1.4 “Authorised Users” means those employees and independent contractors of the Advertiser who have a legitimate reason for accessing and using the Navigator Platform on behalf of the Advertiser;
1.5 “Business Day” means each day in Ink’s country except Saturday, Sunday and bank and public holidays;
1.6 “Cancellation Charges” means the cancellation charges in clause 5;
1.7 “Charges” means the charges for the Delivery of the Advertisement or Advertisement Series, the Services and / or the use of the Navigator Platform as set out in the Order.
1.8 “Content” means all copy and other content relating to the Advertisement (including the Advertisement itself if produced by the Advertiser or its third-party suppliers);
1.9 “Contract” means the contract between Ink and the Advertiser which is made up of the Order and these Terms;
1.10 “Controller”, “personal data”, “processing” are as defined in the Data Protection Legislation;
1.11 “Data Protection Legislation” means all legislation and regulatory requirements in force from time relating to the use of personal data and the privacy of electronic communications, including (i) in the UK, the UK General Data Protection Regulation and Data Protection 2018; (ii) in the EU, the EU General Data Protection Regulation; (iii) in Singapore, the Personal Data Protection Act 2012; and (iv) in California, the California Consumer Privacy Act;
1.12 “Delivered” means the publication or dissemination of the Advertisement as set out in the Order or otherwise agreed by the parties in writing and “Deliver” and “Delivery” shall be construed accordingly;
1.13 “Delivery Date” means the date the Advertisement is due to be Delivered;
1.14 “Design Services” as defined in clause 3.2;
1.15 “Documentation” means any instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable form supplied by Ink and relating to the Navigator Platform;
1.16 “Ink” means one or more of the following as set out in the Order: (i) eSubstance Limited, a company registered in England and Wales with company number 03829537, whose registered office is at Blackburn House, Blackburn Road, London, NW6 1RZ (“Ink UK”); (ii) Ink Publishing PTE Ltd, a company registered in Singapore with company number 200511537W, whose registered office is at 51 Changi Business Park Central 2, The Signature, #04-11A/12, Singapore 486066 (“Ink Singapore”); and (iii) Travel Content LLC dba ReachTV, a company registered in Delaware with file number 7567788, whose registered office is at 252 Little Falls Drive, Wilmington, New Castle, DE 19808 (“Travel Content”);
1.17 “Navigator Platform” means the Navigator by Ink advertising platform;
1.18 “Order” means the ‘confirmation of order’ form sent by Ink to the Advertiser setting out: (i) the details of the proposed Advertisement or series of Advertisements (“Advertisement Series”) required by the Advertiser; (ii) the details of the Services to be provided by Ink; and / or (iii) the details of the Advertiser’s use of the Navigator Platform;
1.19 “party” means the relevant Ink company(ies) and the Advertiser (together the “parties”);
1.20 “Partner” means a client which has entered into a contract with Ink for the Delivery of Advertising to its Partner Customers.
1.21 “Partner Customer” means individuals, including but not limited to passengers, those who utilise the services provided by the Partner, those who visit the Partner Site as a visitor or to either make a purchase or confirm/check in for their flight;
1.22 “Partner Site” means the websites and / or applications owned or used by the Partner for the purposes of the Order;
1.23 “Permitted Recipients” means the Parties to the Contract, the employees of each Party, and any third parties engaged to perform obligations in connection with the Contract;
1.24 “Purpose” means to set up, manage, run and report on the Advertiser’s own digital advertising campaigns;
1.25 “Services” means the advertising services to be provided by Ink to the Advertiser as set out in the Order (including the supply of any deliverables referred to in the Order);
1.26 “Shared Personal Data” means personal data related to the staff involved in the business relationship between the parties (including name, job title and contact details).
1.27 “Software” means the online software applications made available by Ink as part of the Navigator Platform;
1.28 “Specification” means the artwork specification sheet supplied by Ink to the Advertiser;
1.30 “Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
1.31 “Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentia lity, integrity, or availability;
1.32 The headings used in these Terms shall not affect the interpretation of the Contract.
1.33 A reference to a statute or statutory provision is a reference to it as amended, updated and superseded from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision from time to time.
1.34 References to clauses are to the clauses of these Terms.
2. Formation of the contract
2.1 The Order constitutes an offer by Ink to provide the Services and / or to provide access to the Navigator Platform as set out in the Order subject to these Terms.
2.2 The Advertiser shall be deemed to have accepted the offer (including these Terms) when Ink receives from the Advertiser a signed copy of the Order or when Ink starts work on the Order (whichever is earlier), at which point and on which date the Contract shall come into existence.
2.3 The Advertiser shall be solely responsible for ensuring that the Order is complete and accurate and for notifying Ink of any inaccuracies. If the signed Order returned to Ink contains any changes or additional terms, , Ink may accept or reject them in its sole discretion.
2.4 These Terms shall apply to the exclusion of any terms and conditions provided by the Advertiser to Ink and to the exclusion of any terms and conditions implied by law or by trade practice, custom or course of dealings.
3. Publication process and approvals
3.1 The Advertiser must return the signed Order and deliver all copy and other Content relating to the Advertisement to Ink within the timeframes notified to the Advertiser by Ink. Ink may provide notification either verbally by phone or written by e-mail. The advertiser must also ensure all Content is supplied in accordance with the Specification sent to the Advertiser by Ink. If the Advertiser fails to comply with this clause 3.1, , Ink reserves the right to treat the Advertisement as cancelled, in which case the Cancellation Charges shall be paid by the Advertiser to Ink.
3.2 Where the Advertiser commissions Ink to provide design services in relation to a proposed Advertisement (“Design Services”), the price of such Design Services shall be as set out in the Order, or as otherwise agreed in writing, and shall be payable in accordance with clause 4. Unless agreed otherwise with Ink in writing, the price for the Design Services shall be payable in full by the Advertiser irrespective of whether or not the Advertisement is subsequently Delivered.
3.3 Where the Advertiser provides the complete Advertisement for publication, the Advertisement shall be deemed to be approved by the Advertiser upon its receipt by Ink.
3.4 In relation to the Design Services, the Advertiser shall indicate its approval of the proposed Advertisement in writing by the approval deadline date set out in Ink’s written request for approval (“Approval Deadline Date”). Ink shall endeavour to give the Advertiser a reasonable time to provide its approval of the Advertisement, but the Advertiser acknowledges and accepts that the time for approval may be limited where the Advertiser has placed an Order at a late stage in the Delivery schedule relating to the particular media in which the Advertisement is proposed to be Delivered.
3.5 If the Advertiser fails to indicate its approval of the Advertisement by the Approval Deadline Date, Ink shall not Deliver the Advertisement and shall be entitled to treat the Advertisement as cancelled, in which case the Cancellation Charges shall be paid by the Advertiser to Ink.
3.6 No alteration to, or modification of, approved copy and/or Content relating to the Advertisement shall be made or accepted by Ink once the Advertiser has indicated approval of the Advertisement. However, where practicable, and upon written request of the Advertiser, Ink shall not Deliver the Advertisement or, if already Delivered, shall take down the Delivered Advertisement as soon as reasonably practicable, but the Advertiser acknowledges and accepts that this will not be possible in certain circumstances, for example where the Advertisement is Delivered in print media. In either case, the Advertiser shall remain liable to pay for the Advertisement in accordance with the relevant Order and invoice.
3.7 In relation to each Advertisement, the Advertiser grants Ink (and Ink may grant a sublicence to the relevant third parties including the Partner) the right to use and reproduce: (i) the Advertiser’s name, trade marks and Content as Ink may consider necessary for the purposes of performing the Services and Delivering the Advertisement; (ii) the Advertiser’s name and trade marks for the purpose of promoting its own services in its own promotional literature; and (iii) the Advertisement in any medium (print, electronic or otherwise) for promotional purposes and as part of any service in which the relevant media is Delivered or made available under licence from Ink.
3.8 Ink reserves the right not to Deliver the Advertisement at any time for any reason. This may happen for example where the Advertiser fails to meet its obligations under clauses 4.8 or 4.9 or where Ink loses the right to Deliver advertising in a particular media or where there is insufficient space in the proposed media. Ink and/or the Partner may also reject the Advertisement on grounds that it is in the reasonable opinion of Ink and/or the Partner inappropriate for the proposed media or in any way in breach of these Terms or applicable law, regulations or codes of practice. If the Advertisement is rejected in its current form, Ink shall liaise with the Advertiser to agree changes to the Advertisement. If changes cannot be agreed within the timeframe set by Ink (acting reasonably), Ink may cancel the Advertisement and clauses 3.9 and 3.10 shall apply.
3.9 If an Advertisement is cancelled solely due to Ink’s, the Partner’s or their third party supplier’s act or omission, Ink shall try to offer an alternative publication date. If no alternative date is available or the alternative date is not acceptable to the Advertiser, the Advertisement shall be cancelled, and the Advertiser shall be entitled to a full refund of all sums paid in relation to that Advertisement (excluding the sums paid for any Design Services). This shall be the Advertiser’s sole remedy in these circumstances.
3.10 If the Advertisement is cancelled for any reason except those in clause 3.9, the Advertiser shall pay Ink the Cancellation Charges.
3.11 For the avoidance of doubt, where Ink and / or the Partner reject the Advertisement on the grounds it is inappropriate for the proposed media or in any way in breach of these Terms or applicable law, regulations or codes of practice, and the Advertisement is then cancelled, the cancellation shall be deemed within the scope of clause 3.10.
3.12 If the Advertisement as Delivered by Ink contains a substantial error solely due to Ink’s or its third-party supplier’s act or omission, Ink shall, on request, re-Deliver the Advertisement at no additional cost to the Advertiser at a time and in a place agreed with the Advertiser. Ink shall not be responsible for repetition of errors and it is the Advertiser’s responsibility to inform Ink of any errors and provide any necessary assistance to Ink to prevent a repeat of the error. If the parties cannot agree on the time and place of re-Delivery within the timeframe set by Ink (acting reasonably), the Advertisement shall be cancelled and the Advertiser shall be entitled to a full refund of all sums paid in relation to that Advertisement (excluding the sums paid for the Design Services). This shall be the Advertiser’s sole remedy in these circumstances.
3.13 Ink shall be under no obligation to return any physical Content, including artwork and transparencies, provided by the Advertiser unless the Advertiser requests the return of the Content in writing at the time of providing it and pays to Ink on demand all costs associated with the return of the Content prior to its return. Ink reserves the right to destroy any Content that has been in its possession and unclaimed by the Advertiser for at least six months. The Advertiser is responsible for retaining its own copies of any Content supplied electronically, for example to Ink’s ftp account, as all such Content shall be deleted six months following receipt.
4. Charges and payment
4.1 The Charges shall be as set out in the Order (except in the case of an obvious error, in which case Ink shall be entitled to send an amended Order to the Advertiser which shall be binding on the Advertiser on receipt). Time for payment of the Charges shall be of the essence of the Contract.
4.2 Ink shall invoice the Advertiser for the Charges at the frequency set out in the Order. The Advertiser shall pay Ink’s invoice in full in the currency specified in the invoice within seven (7) days of the date of the invoice. Ink may, as a condition of fulfilling the Order, require payment from the Advertiser up front on submission of the Order and the Advertiser shall comply with such request.
4.3 All amounts payable by the Advertiser under the Contract are exclusive of any value added tax or other sales tax chargeable for the time being (as applicable) (“VAT”). Where VAT is applicable, it shall be payable by the Advertiser at the same time and in the same manner as the Charges.
4.4 Where applicable, Ink shall send a valid VAT invoice to the Advertiser.
4.5 For Advertisers based in the European Union:
4.5.1 The Charges quoted to Advertisers within the European Union (“EU”) shall not be chargeable to VAT (or other sales tax) once the VAT status of the Advertiser is verified in accordance with the Supply of Services within Article 56 of the Council Directive 2006/112/EC, with the Advertiser being required to account for VAT under the reverse charge as appropriate.
4.5.2 If the VAT status of the Advertiser is not verified, in accordance with clause 4.5.1, then VAT shall be charged at the current UK rate in line with Council Directive 2006/112/EC.
4.6 The Advertiser shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law, in which event the Advertiser shall pay Ink an additional sum to make sure Ink receives the full amount of the Charges and VAT). Ink may at any time, without limiting its other rights or remedies, set off any amount owing to Ink by the Advertiser against any amount payable by Ink to the Advertiser.
4.7 The Advertiser shall be solely responsible for any taxes, bank charges, foreign exchange commissions or other charges, deductions or withholdings which may arise in relation to the Order. The Advertiser shall ensure that Ink receives the full amount specified in the Order and/or Ink’s invoice by the due date and shall pay to Ink any shortfall on demand.
4.8 If the Advertiser fails to make any payment due to Ink under the Contract by the due date for payment, Ink reserves the right to either amend the Delivery date for the Advertisement until such time as full payment is received for the Advertisement or to treat the Advertisement as cancelled, in which case the Advertiser shall pay Ink the Cancellation Charges.
4.9 If the Advertiser fails to make any payment due to Ink under the Contract by the due date for payment, then the Advertiser shall pay interest on the overdue amount at the rate of 8% per cent per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Advertiser shall pay the interest together with the overdue amount.
4.10 Ink shall not be required to complete any purchase order or other documentation provided by the Advertiser in order to be entitled to receive payment
5.1 Unless otherwise stated in these Terms, the following cancellation charges (“Cancellation Charges”) shall apply to the Advertiser in respect of the cancellation of any Order or Advertisement forming part of any Order:
|Type of Order / Advertisement||Time of Cancellation||Cancellation Charge payable by the Advertiser to Ink Any print or digital Magazine|
|Any print or digital Magazine||More than 30 days prior to the applicable Delivery Date||50% of the price of the cancelled Order or Advertisement|
|Up to 30 days prior to the applicable Delivery Date||100% of the price of the cancelled Order or Advertisement|
|Navigator Platform||For subscriptions to the Navigator Platform for an agreed period of time, the Advertiser cannot cancel during the first full calendar month.||For cancellations after the first full calendar month: none|
|After the first full calendar month, the Advertiser can cancel at any time by giving Ink written notice|
|For any other Navigator Platform deal cancelled at any time (including those related to usage and / or numbers of impressions).||100% of the price of the cancelled Order once the Advertising campaign is live.|
|ReachTV||More than 90 days prior to the applicable Delivery Date.||0% of the price of the cancelled Order or Advertisement|
|Up to 90 days prior to the applicable Delivery Date||100% of the price of the cancelled Order or Advertisement|
|Any media type other than the above including, but not restricted to, Websites, applications, IFE, ReachTV, Targeted Advertising Media and Ambient.||Any time after the Advertiser’s acceptance (or deemed acceptance) of the Order||100% of the price of the cancelled Order or Advertisement|
|Brand Partnerships and Video||Any time after the Advertiser’s acceptance (or deemed acceptance) of the Order||Upon cancellation the Advertiser shall be liable to pay Ink for all work completed and the pro-rata cost of all Advertising provided or broadcast prior to cancellation (as determined by Ink acting reasonably).|
5.2 If the Advertiser cancels part or all of an Order for an Advertisement Series, any series discount applicable to the Order shall cease to apply to the Order and the applicable Cancellation Charges shall apply to any and all cancelled Advertisement(s). The price of any Advertisement already Delivered within the relevant Advertisement Series shall be recalculated and payable at the rate set applicable to Ink’s media pack as notified to the Advertiser by Ink. Any outstanding amounts shall be due immediately on demand.
5.3 If the Advertiser cancels the Design Services, or an Order or Advertisement for which Ink is providing the Design Services, the Advertiser shall pay Ink for the Design Services carried out by Ink pre-cancellation on a pro-rata basis (as determined by Ink acting reasonably) and shall also indemnify Ink for all costs and expenses incurred by Ink in relation to the Design Services and / or as a result of the cancellation.
6. Ink’s disclaimers
6.1 Ink does not accept liability for any errors in an Advertisement which has been approved by or on behalf of the Advertiser.
6.2 Ink shall endeavour to reproduce Advertisements as supplied by the Advertiser but cannot guarantee that the Advertisement as Delivered will be identical due to inherent variations in the results of the printing process and in different computer or digital displays.
6.3 Ink shall not be responsible for any additions to, changes in, deletions from, delays in publication of, or withdrawal of any Advertisements that are required by any person or body that has the authority to regulate or control the Advertisement.
6.4 Unless expressly stated in the Order, Ink cannot guarantee the position or broadcast time of any Advertisement within the proposed media and all such decisions will be at the sole discretion of Ink. Ink shall, however, have regard to the wishes of the Advertiser when placing the Advertisement.
6.5 In respect of Advertisements Delivered on a website, TV channel (including ReachTV), IFE or application, Ink does not guarantee continuous, uninterrupted access by users of the service.
6.6 Ink expressly does not guarantee the level of response to any form of advertising, nor the number of “click-throughs” from Advertisements Delivered in the Targeted Advertising Media, Navigator Platform and/or on websites and applications.
6.7 Ink accepts no responsibility for any physical Content, including artwork and transparencies, provided to Ink by the Advertiser in connection with an Advertisement. The Advertiser is solely responsible for ensuring that any Content is adequately insured against loss or damage whilst in transit and in Ink’s possession.
7. Warranties and indemnity
7.1 Each party warrants that:
7.1.1 it has the right, power and authority to enter into and perform the Contract;
7.1.2 it will co-operate with the other party in all matters related to the Contract;
7.1.3 it will provide the other party with all information, content and materials reasonably requested by the other party in relation to the Contract;
7.1.4 it will comply with all applicable laws and regulations; and
7.1.5 its signatory on the Order has the right, power and authority to bind the party to the Contract.
7.2 Ink agrees to perform the Services and its other obligations under the Contract with due skill, care and diligence.
7.3 The Advertiser warrants that it has entered into the Contract exclusively on the basis of the information contained in the ‘Media Pack’ provided by Ink (available at www.ink-live.com) and that it is not relying upon any other representation or warranty given by Ink or its employees and representatives that is not set out in the Contract.
7.4 The Advertiser warrants to Ink that: (i) any information provided in connection with the Advertisement is accurate, complete, true and not misleading; (ii) it has obtained the consent of any living person whose name or image (in whole or in part) is contained in the Advertisement; (iii) it has obtained the consent from the relevant entity for any third party branding whose name, image or logo (in whole or in part) is contained in the Advertisement, (iv) the Advertisement is legal, decent, honest and truthful and not contrary to the provisions of any relevant law, regulation or code of practice, and is not libellous or obscene and does not infringe the rights of any person (including any person’s intellectual property rights); (v) the Advertisement does not disparage any person or their business, products or services; (vi) the Advertisement does not impersonate, or falsely claim or imply an affiliation with, any person or its products or services; (vii) the Advertisement is not prejudicial to the image or reputation of Ink, the Partner or any of their respective affiliates; and (viii) the Advertisement submitted digitally for publication will be free of any Viruses and will not damage, disable, overburden, impair or compromise any website or Ink’s or any third party’s equipment, systems, software or security.
7.5 The Advertiser acknowledges that Delivery of an Advertisement does not imply any partnership, affiliation with or endorsement by Ink or any company associated with the Advertisement. The Advertiser shall not make any statements suggesting any such partnership, affiliation or endorsement.
7.6 The Advertiser represents and warrants that any database or set of information consisting of customer data that it creates using data or information received in connection with the relationship established by the Contract shall be used only in anonymized form for purposes of statistical analyses and shall not be used to retarget any Partner Customers with further advertising. This obligation is in addition to, and does not relieve, remove or replace, the Advertiser’s obligations under Data Protection Legislation.
7.7 The Advertiser shall promptly (and within 2 Business Days) notify Ink if the Advertiser receives any notice, complaint or request from any Partner Customer or from any regulatory body or authority related to any Advertisement or the performance of the Contract.
7.8 The Advertiser shall indemnify and keep indemnified Ink and Partner against all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, loss of opportunity, depletion of goodwill and similar losses) costs, proceedings, damages and expenses (including reasonable legal and other professional fees and expenses) awarded against, or incurred, suffered or paid by, Ink and/or Partner as a result of or in connection with:
7.8.1 the Advertiser’s breach of these Terms or failure to perform any of its obligations under the Contract; and / or
7.8.2 the publication of the Advertisement by Ink and/or the Partner in accordance with these Terms.
8.1 Neither party shall at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.2.
8.2 The recipient may disclose the discloser’s confidential information:
8.2.1 to those persons who need to know such information for the purposes of exercising the recipient’s rights or carrying out its obligations under or in connection with the Contract. The recipient shall ensure that the persons to whom it discloses the discloser’s confidential information comply with this clause 8; and 8.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Neither 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 the Contract.
8.4 Confidential information does not include information which is already publicly available or in the possession of the receiving party party at the time of disclosure by the disclosing party (other than as a result of a breach of any confidentiality obligation).
8.5 The Advertiser shall not make any disclosure or public statement concerning the subject matter of the Contract without Ink’s prior written approval.
9. Data protection
9.1 This clause 9 sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (the “Data Discloser”) will disclose to the other party (the “Data Recipient”) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
9.2 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.
9.4 The Data Discloser shall ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes.
9.5 Each party shall:
9.5.1 process the Shared Personal Data only for the Agreed Purposes;
9.5.2 not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
9.5.3 ensure that all Permitted Recipients are subject to appropriate obligations concerning the Shared Personal Data (including obligations of confidentiality); and 9.5.4 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Shared Personal Data and against accidental loss or destruction of, or damage to, Shared Personal Data.
9.6 Except for the Shared Personal Data, neither Ink nor the Advertiser collects and/or processes and/or has access to any Personal Data in performing the Contract and will not be able to identify any Partner Customers from any User Data.
9.7 The parties confirm it is the Partner’s responsibility to provide all the notices and obtain all the consents needed for the distribution of the Advertisements to the Partner Customers via the Navigator Platform.
10. Print advertising
10.1 This clause 10 only applies if the Order relates to print Advertising.
10.2 In the case of an Advertisement published within a print magazine, Ink shall deliver to the Advertiser a copy of the publication electronically in the form of an ‘emag’. Ink shall supply a single voucher copy of the publication to the Advertiser upon request. This and any request for additional copies may incur a postal/courier charge for the account of the Advertiser.
10.3 In the case of loose insert, tip-ons or other insert advertising, if the Advertiser fails to adhere to the insert delivery instructions issued by Ink, Ink reserves the right in its absolute discretion not to Deliver the Advertisement. In these circumstances, Ink shall be entitled to treat the Advertisement as cancelled, in which case the Cancellation Charges shall apply.
10.4 The Advertiser’s payment obligations shall not be conditional on the Advertiser’s receipt of voucher copies.
10.5 All additional costs incurred by Ink in relation to the loose insert, tip-ons including the production and print costs will be incorporated into the cost of Advertising to be settled by the Advertiser.
11. Navigator Platform
This clause 11 only applies if the Advertiser is given permission to use the Navigator Platform as set out in the Order.
11.1 The terms of this Order are valid for a period of three (3) months from the signature date by the Advertiser. Within this initial three (3) month period, Ink and the Advertiser will mutually agree the date on which the campaign will go live. The date the campaign is set live will be month one (1) of the contract and subsequent calendar months will succeed this for the term of the Order.
11.2 If the campaign does not go live within the initial three (3) month period, through no fault of Ink, the campaign will be deemed null and void and may be subject to the cancellation charge in accordance with clause 5 of these terms. Thereafter, if the Advertiser wishes for the campaign to proceed, a new contract must be entered into and any updates to these Terms & Conditions may apply.
11.3 Ink grants the Advertiser a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to access and use the Navigator Platform and the Documentation during the term of the relevant Order solely for the Advertiser’s own internal business operations and solely for the Purpose.
11.4 The Advertiser shall:
11.4.1 ensure the user subscriptions and passwords for the Navigator Platform are only used by the relevant Authorised User and are kept confidential; and
11.4.2 maintain an auditable record of the Authorised Users and their access rights for the Navigator Platform which it shall supply to Ink on request.
11.5 INK reserves the right, without prejudice to its other rights and remedies, to disable any Authorised User’s account if the account or its use does not comply with the Contract or the account is used to upload any Advertisement that does not comply with the Contract or with any of Ink’s policies applicable to the Navigator Platform.
11.6 The rights provided under this clause 11 are granted to the Advertiser only, and shall not be considered granted to any affiliate or group company of the Advertiser.
11.7 Ink may update, upgrade or modify the Navigator Platform at any time provided it does not cause a material degradation to the Navigator Platform.
11.8 Nothing in the Contract shall be construed as granting the Advertiser or any Authorised Users any rights to the Navigator Platform’s source code.
11.9 INK shall use commercially reasonable endeavours to make the Navigator Platform available to the Advertiser at all times, although the Advertiser acknowledges it will sometimes be unavailable due to maintenance.
11.10 Ink confirms the Navigator Platform will perform in accordance with the Documentation in all material respects.
11.11 The commitment at clause 11.10 shall not apply to the extent of any non-conformance which is caused by use of the Navigator Platform contrary to Ink’s instructions, or modification or alteration of the Navigator Platform by any party other than Ink or Ink’s duly authorised contractors or agents. If the Navigator Platform does not conform with the commitment at clause 11.10, Ink will, asthe Advertiser’s exclusive remedy, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Advertiser with an alternative means of accomplishing the desired performance.
11.12 Ink is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Advertiser acknowledges that the Navigator Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.13 During its use of the Navigator Platform, the Advertiser shall not access, store, upload, transmit or otherwise distribute or authorise for distribution any Advertisement or other materials that are unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive.
11.14 The Advertiser shall:
11.14.1 provide Ink with such access and interfaces to the Advertiser’s software and systems as Ink reasonably requests to enable the Advertiser to use the Navigator Platform;
11.14.2 ensure the Authorised Users use the Navigator Platform in accordance with the Contract; and
11.14.3 be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Ink’s and its provider’s data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Advertiser’s network connections or telecommunications links or caused by the internet.
11.15 The Advertiser is responsible for maintaining appropriate back-up copies of all Advertisements.
11.16 The Advertiser warrants that Ink’s access and use of the Advertiser’s software and systems to perform the Contract will not infringe the Intellectual Property Rights or other rights of any third party.
11.17 Where the Navigator Platform incorporates third party or open source software, the Advertiser shall comply with the terms and conditions for the third party or open source software as notified to the Advertiser by Ink and Ink shall not be responsible for the performance of the third party or open source software.
11.18 The Advertiser shall:
11.18.1 access and use the Navigator Platform and Documentation only for the Advertiser’s own internal business operations and only for the Purpose;
11.18.2 be responsible for ensuring it has appropriate software and systems to access and use the Navigator Platform as notified by Ink;
11.18.3 use all reasonable endeavours to ensure the security of access to the Navigator Platform, including by complying with the reasonable requirements notified by Ink from time to time; and
11.18.4 except as expressly permitted by the Contract, not permit others to use the Navigator Platform and use all reasonable endeavours to prevent any other unauthorised access to, or use of, the Navigator Platform. In the event of any unauthorised access or use, the Advertiser shall promptly notify Ink.
11.19 The Advertiser shall not:
11.19.1 attempt to copy, modify, duplicate, translate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Navigator Platform or the Software in any form or media or by any means or attempt to remove any proprietary notices or labels from the Navigator Platform or the Software;
11.19.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Navigator Platform and/or the Software except as may be allowed by applicable law which is incapable of exclusion by agreement between the parties;
11.19.3 access all or any part of the Navigator Platform in order to build a product or service which competes with the Navigator Platform (whether in whole or in part);
11.19.4 use the Navigator Platform to provide services to third parties without Ink’s written consent;
11.19.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Navigator Platform available to any third party except the Authorised Users;
11.19.6 introduce or permit the introduction of, any Virus or Vulnerability into the Navigator Platform or Ink’s or Ink’s licensor’s network and information systems or do anything that could damage, disable, overburden, or impair the Navigator Platform or related systems.
11.20 The Partner has the right to approve and reject any Advertisement proposed for distribution via the Navigator Platform. Ink shall have no liability in respect of such rejection, and the Advertiser shall be responsible for making such changes to the Advertisement as the Partner requires.
11.21 Ink shall defend the Advertiser against any claim that the Advertiser’s use of the Navigator Platform in accordance with the Contract infringes any registered patent, copyright, registered trade mark or database right enforceable in the United Kingdom, European Union, United States of America or Singapore, and shall indemnify the Advertiser for any amounts awarded against the Advertiser in final judgment or settlement of such claims, provided that:
11.21.1 Ink is given prompt notice of any such claim together with full written particulars;
11.21.2 the Advertiser makes no comment or admission, takes no action that may adversely affect Ink’s or its licensor’s ability to defend or settle the claim, and Ink and Ink’s licensors are given sole authority to defend or settle the claim; and
11.21.3 the Advertiser provides all reasonable co-operation and assistance to Ink and its licensors in the defence and settlement of such claim, at Ink’s reasonable expense.
11.22 In the defence or settlement of any claim, Ink may procure the right for the Advertiser to continue using Navigator, replace or modify Navigator so that it is non-infringing or, if such remedies are not reasonably available, terminate the Contract (in whole or in part) on at least 2 Business Days’ notice to the Advertiser without any additional liability or obligation to pay liquidated damages or other additional costs to the Advertiser.
11.23 In no event shall Ink be liable to the Advertiser in respect of (and shall not be required to defend) any claim which arises in whole or in part from the acts or omissions of the Advertiser or the Authorised Users.
11.24 Clauses 11.21 to 11.23 set out the Advertiser’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any such claim.
Term and Termination
11.25 The Advertiser’s rights to use the Navigator Platform and Documentation commence on the date of the relevant Order and, unless terminated earlier in accordance with these Terms, shall continue for the duration of the Order which shall be for a pre-agreed period of time or for a pre-agreed usage limit as set out in the Order.
11.26 On termination of the Order, the licence to use the Navigator Platform and the Documentation shall terminate and the Advertiser shall immediately stop using the Navigator Platform and the Documentation.
12. Limitation of liability
12.1 Nothing in the Contract limits or excludes either Party’s liability for: (i) death or personal injury resulting from its negligence (or the negligence of its employees, agents or subcontractors); (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be limited or excluded under applicable law.
12.2 Subject to clause 12.1: 12.2.1 Ink shall not be liable to the Advertiser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, whether arising under or in connection with the Contract:
126.96.36.199 for any loss of profits, sales or revenues, loss of business, business interruption, loss of opportunity, loss of anticipated savings, loss of or damage to goodwill; or 188.8.131.52 for any indirect or consequential loss arising under or in connection with the Contract; and
12.2.2 Ink’s total aggregate liability to the Advertiser arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of the Charges paid and payable by the Advertiser to Ink under the relevant Order in the 12 months immediately before the claim arose.
12.3 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
13.1 The parties rights to make cancellations, subject to payment of the Cancellation Charges, are set out elsewhere in these Terms (including in clause 5).
13.2 In addition, and without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if: 13.2.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; 13.2.2 the other party commits a material breach of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; or
13.2.3 the other party is bankrupt (whether voluntarily or involuntarily by a petition filed that is not discharged or otherwise resolved to the terminating party’s reasonable satisfaction within 30 days of such filing), insolvent or causes an assignment for the benefit of creditors or if a resolution is passed or an order is made for the winding up of the other party (otherwise than for the purpose of solvent amalgamation or
reconstruction) or if the other party becomes subject to an administration order or a receiver or administrative receiver is appointed over or an encumbrancer takes possession of any of the other party’s property, or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events aforementioned.
13.3 The expiry or termination of the Contract shall not affect any rights or remedies which accrued prior to expiry or termination and shall not affect clauses 7.8, 8, 9, 12 and 16.
14. Events beyond Ink’s control
14.1 For the purposes of the Contract, “an Event” means an event beyond the reasonable control of Ink including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Ink or any other party), failure of a utility service or communication or transport network, act of God, war, riot, pandemic, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.2 Ink shall not be liable to the Advertiser as a result of any delay or failure to perform its obligations under this Contract as a result of an Event.
14.3 If the Event prevents Ink from performing its obligations for more than 30 days, either party shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the other party. A refund for any Advertising not Delivered shall be the Advertiser’s sole remedy in these circumstances.
15.1 Any notice given under the Contract shall be in writing and shall be delivered by hand or sent by commercial courier or by email to:
15.1.1 for hand delivery or commercial courier, the other party’s address set out in the Order, or to its main trading address, or to such other address as may have been notified by that party for such purposes; or
15.1.2 for email delivery, the Ink or Advertiser email address of the contact named in the Order.
15.2 A notice delivered by hand or commercial courier shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A notice sent by email shall be deemed to have been received at the time of transmission.
15.3 This clause does not apply to the service of documents in legal proceedings.
16.1 Publication of an Advertisement by Ink does not mean that Ink accepts that the Advertisement has been provided in accordance with these Terms or that Ink has waived any of its rights under the Contract.
16.2 No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
16.3 Advertisers may not assign or transfer their rights or obligations under these Terms in any way without the written permission of Ink.
16.4 If any provision or part-provision of these Terms 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 these Terms.
16.5 Ink reserves the right to modify these Terms at any time in its sole discretion. Each time the Advertiser submits an Order, the terms in force at the time of the Order shall apply to that Order. The Advertiser is advised to check this page prior to placing any Order to ensure that it is aware of any changes. The date of the most recent changes to these Terms is shown at the top of this page. Any update to these terms will be delivered on Ink’s website (https://ink-global.com/about-us/our-policies/advertising-terms-conditions/).
16.6 Except as set out in clause 16.5, the Contract may not be varied without the written consent of both parties.
16.7 In the event of any conflict, ambiguity or inconsistency between or among these Terms and the Order, the Order shall take precedence.
16.8 A person who is not a party to the Contract shall not have any rights to enforce its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.9 The Contract is the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.10 The Contract shall not create a partnership between the parties or authorise either party to act as agent for the other.
16.11 Where the Advertiser is based:
16.11.1 In Asia, the Contract shall be governed by and construed in accordance with the law of Singapore and shall be subject to the non-exclusive jurisdiction of the courts of Singapore;
16.11.2 In the United States of America, Canada or South America, the Contract shall be governed by and construed in accordance with the law of Delaware USA and shall be subject to the non-exclusive jurisdiction of the courts of New Castle County Delaware USA; or
16.11.3 Anywhere else, the Contract shall be governed by and construed in accordance with the law of England and Wales and shall be subject to the non-exclusive jurisdiction of the courts of England and Wales,
and the word “based” means the location of the Advertiser’s main trading address (as determined by Ink acting reasonably).