PLACEMENT AND PROVISION OF CREATIVE

1. The Client must sign a completed IO and return it to Arsenal before the advertising, sponsorship and/or other promotional material for the Campaign (“Creative”) will be published on the relevant website(s), channels or other online platform(s) as set out in the IO (“Publisher Platform”). Arsenal agrees that it shall use reasonable endeavours to place the Creative specified in an agreed IO in the manner set out in the IO. The Creative for a Campaign shall be provided by the Client to Arsenal or the applicable Publisher Platform directly, as described in the IO.

2. Client and Advertiser shall at all times comply with the relevant Publisher Platform guidelines, policies and terms and conditions (“Publisher Platform Policies”).

3. All contents of Creative are subject to Arsenal's approval. Arsenal does not undertake to review the contents of any Creative and any such review of and/or approval by Arsenal will not be deemed to constitute an acceptance by Arsenal that such Creative is provided in accordance with this Agreement, nor will it constitute a waiver of Arsenal's rights hereunder. Arsenal reserves the right at any time in its absolute discretion to: (a) reject or cancel any Creative, space reservation or position commitment; or (b) remove any Creative from the Publisher Platform or any page.

4. Except as otherwise expressly provided in this Agreement, positioning of Creative within the Publisher Platform is at the sole discretion of Arsenal, and Arsenal will not be prohibited from also carrying advertisements for any product or business competitive to the product or business of the Advertiser. Arsenal does not warrant the date or dates of insertion of the Creative(s) and does not warrant that the Creative(s) will not be displayed after the Campaign End Date specified, however, Arsenal will use reasonable endeavours to comply with the Client's wishes in these regards. Arsenal reserves the right to redesign or modify the organisation, navigation, structure, "look and feel" and other elements of the Publisher Platform at its sole discretion at any time without prior notice.

5. The Advertiser and (if appropriate) the Agency may not re-sell, assign or transfer any of its rights hereunder, and any attempt to re-sell, assign or transfer such rights will entitle Arsenal to terminate this Agreement immediately, without liability on the part of Arsenal. Arsenal shall be entitled to assign any of its rights and obligations hereunder to any other person.

DELIVERABLES

LICENCE

CLIENT'S WARRANTIES, REPRESENTATIONS AND INDEMNIFICATION

1. The Client warrants and represents to Arsenal that:

   1. it holds all necessary rights to permit the use, reproduction, display, transmission and distribution of the Creative on the Publisher Platform (the “Use”), and grants to Arsenal such rights (which, for the avoidance of doubt, in the event that any Creative contains a sound recording (the “Recording”), shall include but not be limited to all consents and permissions from: (i) the copyright owners of the musical and/or literary composition(s) reproduced on the Recording; and (ii) labour organisations including the Musicians' Union for which the Client shall pay all re-use payments, royalties and other sums required for such consents and permissions); 

   2. the Use shall not: (a) infringe any rights of any person including, without limitation, intellectual property rights and rights of privacy;  (b) violate any applicable law or regulation; or (c) contain anything that is defamatory, obscene, false or misleading;

   3. it has complied with the codes of practice issued by the Committee of Advertising Practice in the UK and the Advertising Standards Authority for Ireland and all other relevant industry codes of practice in respect of electronic and online advertising, sponsorship and other forms of promotion (as applicable);

   4. without limiting the generality of the above Clause 4.1.2, the Creative submitted pursuant to this Agreement either: (a) does not constitute a financial promotion within the meaning of the Financial Services and Markets Act 2000 (“Act”) or other applicable law; or (b) has been approved by an 'authorised person' within the meaning of the Act and/or is otherwise permitted under the Act or an exemption order thereto and the Client has expressly notified Arsenal in writing of this; and

   5. the Creative shall be free of any defects and/or viruses and shall not affect the operation of the Publisher Platform or any other relevant online platform.

2. The Client agrees to indemnify and keep indemnified Arsenal, its affiliates, officers and employees for any and all liabilities, costs, expenses, damages and losses of any kind (including legal fees and costs) incurred by Arsenal, its affiliates, officers and/or employees and/or the Publisher Platform owner and/or operator as a result of:

   1. any claims actual or threatened, of any kind (including but not limited to any claim of third party intellectual property infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or sales practices) arising from the Creative and/or any material (of the Advertiser or otherwise) to which end-users can link through the Creative; 

   2. any claim or action made against Arsenal by the Publisher Platform in relation to any matter under this Agreement (including in relation to a breach of the Publisher Platform Policies); and/or

   3. a breach of any provision of this Agreement by the Client.

3. Where the Client is an Agency, the Agency warrants that:

   1. it contracts with Arsenal as principal and undertakes to perform all obligations of the Client under this Agreement as principal, notwithstanding that it may also be acting as an advertising agency or media buyer or in some other representative capacity;

   2. without prejudice to Clause 4.3.1, it has all relevant authority from the Advertiser that are necessary for the Agency to perform all of its and the Advertiser’s obligations under this Agreement, including all licenses and consents required to enter into this Agreement from the Advertiser (including without limitation all necessary licenses and/or other rights to supply Arsenal with the Creative pursuant to the terms of this Agreement); and

   3. without prejudice to the indemnities required under Clause 4.2 and 7.2, it undertakes to indemnify Arsenal against any claims, liabilities, losses, damages, fees and expenses of any kind (including legal fees and costs) suffered or incurred by Arsenal as a result of: (a) the Agency’s breach of the warranties contained in Clauses 4.3.1 and 4.3.2; or (b) any claim or action made against Arsenal by the Advertiser or any of the Advertiser’s affiliates in relation to any matter under this Agreement; and

   4. it shall be responsible for the payment of accounts, unless other arrangements are agreed in writing.

DATA PROTECTION

TERMS OF PAYMENT

1. Unless otherwise expressly agreed by the parties in writing, the Client will be invoiced for the Fee (as set out in the IO) in accordance with the IO and the Client must ensure that payment is made to Arsenal in pounds sterling within thirty (30) days after the date of the invoice.

2. The Client must pay the Fee and any applicable VAT at the relevant rates prescribed by law (and all similar sales tax (if applicable)). In the event of any failure by the Client to make payment, the Client will be responsible for all expenses (including legal fees on an indemnity basis) incurred by Arsenal in collecting the amounts due.

3. The Client understands that once this Agreement is executed, other than as expressly set out herein, there shall be no refunds or suspension of payments even if the Client wishes to discontinue display of the Creative prior to expiration of the Campaign (unless Arsenal agrees otherwise at its sole discretion).

4. Where Creative is received by Arsenal and/or the Publisher Platform later than the time frame set out in the IO (or later than as required by the relevant Publisher Platform), the Deliverables delivered or to be delivered (as set out in the IO) will be reduced on a pro-rata basis for each day that the Creative is late.

LIMITATION OF LIABILITY

1. If Arsenal fails to publish any Creative for any reason whatsoever or deliver any Deliverables as provided in the IO (or in the event of any other failure, technical or otherwise, of such Creative appearing as provided in this Agreement), Arsenal's liability will be limited (at the option of Arsenal) to either: (a) publishing the Creative as soon as is reasonably practicable in the period following the period during which the Creative was scheduled to run on the Publisher Platform and for such time as is necessary to generate the Deliverables equal to the shortfall; or (b) refund to the Client that proportion of the Fee which relates to that Creative and/or Deliverables which were not provided or, if the relevant amounts were not paid by or on behalf of the Client, agree that such amounts will not be due or payable.

2. Arsenal shall not be liable for any acts or omissions of any third-party digital advertising platforms associated with the delivery of the Creative under this Agreement. In no circumstance shall Arsenal be liable for any error in the Creative whatsoever whether through its own act or omission (whether negligent or otherwise) or through the incorrect presentation or codes for the Creative or otherwise and the Client hereby indemnifies Arsenal in respect of any claim, loss, damage or otherwise arising out of any error or omission in the Creative.

3. Arsenal will have no liability for any failure or delay (whether negligent or otherwise) in performing any obligation hereunder resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, technical failure, riot, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of Arsenal affecting production or delivery in any manner (including those relating to the Publisher Platform).

4. Nothing in this Agreement shall limit or exclude liability for death or personal injury caused by its negligence or fraudulent misrepresentation.

5. In no event will either party be liable under or in connection with this Agreement for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.

6. Subject to Clauses 7.1 to 7.5 (inclusive), and save in relation to any indemnity granted under this Agreement (liability for which shall be unlimited), each party’s maximum total liability under or in connection with this Agreement shall not exceed an amount equivalent to the aggregate of the Fees.

7. Each of the provisions of this Clause 7 are to be construed separately and independently of the other and, if any provision of this Clause 7 or any other clause in this Agreement is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this Clause 7 or any other clause herein which will remain in full force and effect.

TERM AND RENEWAL

1. The term of the Agreement shall commence when the IO has been signed by both parties, or the date Arsenal commences publishing the Creative (whichever is the earlier) and this Agreement shall continue in force and effect until the Campaign End Date unless terminated earlier pursuant to this Clause 8 of the Agreement. Except as expressly set out in this Agreement, any renewal of this Agreement and acceptance of any additional advertising order will be at Arsenal's sole discretion. The rates applicable to such renewal period (if any) are subject to change by Arsenal from time to time in its absolute discretion.

2. Without prejudice to its other rights and remedies either party shall be entitled to terminate this Agreement in whole or in part forthwith at any time by giving notice in writing to the other if: (a) a party fails to observe or perform any of its obligations hereunder and, where such failure is capable of remedy, does not remedy such failure within 7 days after being served notice to do so; or (b) a party becomes insolvent, a person passes a resolution for either of their winding up or dissolution, an administration order is made against either of them or a receiver is appointed over, or takes possession of, the assets of such party.

3. Without prejudice to its other rights and remedies, Arsenal shall be entitled to terminate this Agreement for convenience in whole or in part at any time by giving notice in writing to the Client.

4. In the event that this Agreement is terminated by either Party pursuant to Clause 8.2, then without prejudice to its rights and remedies, Arsenal shall be under no obligation to publish the Creative or to refund any Fee or other amounts paid by or on behalf of the Client to Arsenal in respect of such Creative.

5. In the event that this Agreement is terminated by Arsenal pursuant to Clause 8.3, then Arsenal shall (a) refund to the Client that proportion of the Fee which relates to any Creative and/or Deliverables which were not provided as at the date of termination or, (b) if the relevant amounts (for such Creative and/or Deliverables which were not provided) were not due and paid by or on behalf of the Client as at the date of termination, agree that such amounts will not be payable.

6. Upon termination of this Agreement for any reason: (a) the Client shall remain liable for any amount due under an IO for Creatives displayed by Arsenal through the Publisher Platform and such an obligation to pay shall survive the termination of this Agreement; and (b) at the request of Arsenal, the Client shall return all of Arsenal's statistics provided under this Agreement.

7. Termination or expiry of this Agreement and of any IO in whole or in part shall not affect any rights of any party in respect of any antecedent breach of this Agreement by any other party, nor shall it affect any accrued rights or liabilities (or the coming into force of any accrued rights or liabilities) of any party. The provisions of those clauses intended to have continuing effect (including but not limited to Clauses 3, 7, 8 and 9) shall continue in full force and effect following the termination for any reason or expiry of this Agreement.

CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS

1. The provisions of this Agreement and all communications passing between the Advertiser, the Agency (if any) and Arsenal are confidential and must not be disclosed to any person except to the extent necessary to comply with the terms of this Agreement or the law, to the relevant person’s legal advisors or accountants, or as otherwise agreed between the parties in writing.

2. The Advertiser and the Agency (if any) is hereby notified that Arsenal and its affiliates and associates are particularly sensitive to public statements about Arsenal, their contractual relationships and product plans, and improper or ill-timed statements are likely to have a detrimental effect on the business of Arsenal and its associates and may contravene applicable law. Consequently, the Advertiser and the Agency (if any) shall not, and shall ensure that any person acting on its behalf does not, make any public announcement in respect of this Agreement or the relationship between the parties without the prior written consent of Arsenal including any pre-announcement in respect of any Campaign. For the avoidance of doubt, the foregoing prohibition includes public announcements by any person acting on behalf of the Advertiser and the Agency (if any) and any communication, which they know, will or is likely to be made public. Any breach of this Clause 9.2 by the Advertiser or the Agency (if any) will be deemed to be a breach of confidentiality undertaking as set out in Clause 9.1.

MISCELLANEOUS

1. Arsenal may (at its discretion) update this Agreement from time to time. Unless otherwise agreed, the terms and conditions applicable shall be those that are posted online at the time of signing the IO.

2. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all other prior understandings, commitments, agreements and (unless made fraudulently) representations, whether written or oral, between the parties. Further, the Advertiser and the Agency (if any) acknowledges and agrees that it has not relied upon any representation or otherwise of Arsenal when entering into this Agreement.

3. Any notice required to be given under this Agreement shall be in writing signed by (or by some person duly authorised by) the person giving it and may be served by delivering it personally or by first class prepaid or registered mail to the address of the relevant party set out at the head of this Agreement or to such other address as is notified in writing from time to time by or on behalf of the parties. Any notice so served shall be deemed to have been received: (a) if delivered personally, at the time of delivery; or (b) in the case of a notice sent by first class prepaid or registered mail, 48 hours after the date of posting.

4. If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.

5. The failure of either party to enforce or exercise at any time any term or any right under this Agreement does not constitute and shall not be construed as a waiver of such term.

6. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999.

7. This Agreement and any disputes or claims arising under or in connection with it (including non-contractual disputes and claims) shall be governed by English law. Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales for the resolution of any dispute, claim or matter arising under or in connection with this Agreement (including non-contractual disputes and claims).