Digital Advertising Terms and Conditions
RugbyPass Digital Advertising Terms and Conditions
These RugbyPass Digital Advertising Terms and Conditions were published on 30/03/2023 and replace with immediate effect the terms and conditions previously published on 30/03/2022.
These RugbyPass Digital Advertising Terms and Conditions (the “Terms”) together with a fully executed IO shall constitute a binding agreement between RugbyPass and the Customer (the “Parties”) in relation to the purchase of digital advertising campaigns for serving on the RugbyPass Sites and are collectively referred to herein as the “Agreement”. In the event of any conflict or inconsistency between the IO and these Terms, the IO will govern. Capitalised terms shall have the meaning set out in clause 20 (Definitions) below.
For the avoidance of any doubt, these Terms and corresponding IO shall relate to the activities of digital advertising on the RugbyPass Sites. These Terms do not cover sponsorships, activations or any other arrangements or engagements involving content development, association, integration and/or special production.
1. Advertisements
1.1 RugbyPass shall serve the Advertisement(s) in accordance with the relevant Campaign on the RugbyPass Sites, together with any other services, functions and responsibilities which are necessary for the proper performance of RugbyPass’ obligations under this Agreement.
1.2 RugbyPass shall serve the Advertisement(s) during the period commencing on the Start Date and ending on the End Date.
2. Insertion Orders
2.1 All engagements to be entered into by a Customer in relation to the serving of an Advertisement by RugbyPass shall be subject to a fully executed IO and shall, through incorporation via the IO, be governed by this Agreement.
2.2 Each IO shall be numbered with an individual IO number or reference and fully executed in writing by the Customer and RugbyPass prior to the commencement of a Campaign.
2.3 Each IO must, at a minimum, specify the following details: a) the identity of and contact information for each Party, including registered name and registered address; b) a description of the Deliverables; c) the quantity of the Deliverables; d) the Fees for the Deliverables; e) billing frequency; f) the Start Date and End Date of the Campaign. Where the Campaign duration is based on a specific variable (clicks, impressions, reaching a total maximum spend, etc), this must be specified clearly on the IO; g) any campaign specific requirements (e.g. maximum spend, reporting requirements, technical requirements, Advertisement placement requirements, etc).
2.4 Fully executed IO’s are binding on the Customer and are not subject to cancellation or termination, except as provided for in this Agreement.
2.5 References in this Agreement to an “impression” mean each instance in which an Advertisement is served and displayed, whether or not it is seen or clicked on. References to a “click” or “click-through” mean each act of a user clicking on an Advertisement, regardless of whether the user arrives at the Customer’s required destination.
2.6 Any revisions required by the Customer to an already executed IO must be requested in writing and will only be effective and binding if acknowledged and approved by RugbyPass in writing. Only non-financial and non-material modifications on a previously executed IO may be changed in accordance with this clause (e.g., changes to the placement description, creative unit, Start/End Dates, etc).
3. Content
3.1 The Customer will develop and submit the Advertising Materials to RugbyPass or to the Third Party Advertising Server (upon request by RugbyPass) in accordance with the Advertising Specifications and Applicable Law and in a timely and organised manner that does not interfere with, disturb, or disrupt other network users, services or systems.
3.2 Where applicable, RugbyPass will provide the Customer with any applicable Advertising Specifications within two (2) Business Days of the execution of an IO by both Parties.
3.3 The Customer shall submit the Advertising Materials in accordance with the Advertising Specifications no later than three (3) business days (for standard media format) or five (5) business days (for rich media format) prior to the Start Date.
3.4 If the Advertising Materials are not received in accordance with the timelines for delivery contained in this clause 3, RugbyPass shall not be required to commence the Campaign and shall be entitled, at its sole discretion, to terminate this Agreement. The Customer shall pay the Fees in full to RugbyPass in the event of a Campaign not proceeding due to the Customer’s failure to supply the Advertising Materials in accordance with such timelines.
3.5 The Customer’s failure to comply with the Advertising Specifications or any other applicable requirements communicated by RugbyPass may result in a) a delay in the delivery of a Campaign, or b) the termination, in the sole discretion of the Customer, of this Agreement and applicable Campaign, whether or not the Campaign has commenced.
3.6 The Customer must provide the Advertising Materials in complete form and ready for serving on the RugbyPass Site. RugbyPass shall not be required or obliged to edit, resize, customize or modify the Advertising Materials in any way prior to serving on a RugbyPass Site, unless as otherwise agreed in advance by RugbyPass and specified in the IO and the Customer shall remain responsible for final approval and sign-off on the Advertisement.
3.7 The Customer will be solely responsible and liable for the content of any Advertisement(s) served on a RugbyPass Site and for any website or digital platform that is linked to or from an Advertisement. For the avoidance of doubt, this shall include any Advertisement that has been edited by RugbyPass under clause 3.6.
3.8 No reference to RugbyPass shall be included in any Advertising Materials or Advertisement unless RugbyPass has provided prior written consent.
3.9 The RugbyPass Sites are provided on an "as is" and "as available" basis without any representation or endorsement made and without warranty of any kind, whether express or implied, including but not limited to (to the extent permitted by law) implied warranties of satisfactory quality, suitability, fitness for a particular purpose, non-infringement, compatibility, security and accuracy.
RugbyPass shall not be liable for any loss or damages whatsoever, without limitation, indirect or consequential loss or damages, whether in action of contract, negligence or other tort action, arising out of or in connection with the performance, non-performance or functionality (including any loss of connectivity) of any RugbyPass Site.
3.10 RugbyPass reserves the right, at its sole discretion and without liability or responsibility to the Customer, to reject, remove, suspend and/or cancel any Campaign or Advertisement (or any element thereof) at any time, prior to or during a Campaign, including but not limited to, where a) the Advertising Materials contain any materials that do not meet the terms of this Agreement or the Advertising Specifications; b) the Customer commits a breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of five (5) Business Days after being notified in writing to do so; c) any websites or digital platforms to which the Advertisement is linked do not comply with Applicable Law, Advertising Specifications, the British Code of Advertising Practice, codes and/or rulings of the Advertising Standards Authority and/or any other applicable advertising rules, codes, guides, legislation or regulations and industry standards in any territory(ies) in which an Advertisement is to be displayed; d) the Advertisement brings, or is likely to bring disparagement, ridicule, or scorn upon RugbyPass, the Network Properties or any third parties; or, e) otherwise, at any time at the sole discretion of RugbyPass.
3.11 RugbyPass shall use all reasonable efforts to complete all Deliverables within the specified time period of a Campaign, but shall not be liable or responsible for any failures or shortcomings in this regard.
3.12 RugbyPass will monitor the performance of Advertisements and Campaigns on an ongoing basis and will notify the Customer as soon as reasonably possible if RugbyPass believes an under-delivery of a Campaign is likely. In the case of a probable or actual under-delivery, RugbyPass and the Customer shall use all commercially reasonable efforts to agree on a makegood service. Any such makegood service shall be similar to and consistent with the original Campaign. The Customer’s sole remedy for an under-delivery of a Campaign shall be limited to the aforementioned makegood service and the Customer shall not be entitled to a refund or any alternative form of marketing or content creation service. If an agreement regarding a makegood service is not reached between RugbyPass and the Customer, this Agreement shall be terminated and the Customer shall be liable for payment of the Fees in accordance with the applicable IO.
3.13 The predictability, forecasting and conversions for CPA, CPL or CPC Deliverables can vary due to circumstances outside of RugbyPass’ control and there shall be no guarantee by RugbyPass in relation to the full delivery of such Deliverables. As such, there shall be no obligation on RugbyPass to provide for a makegood service in such circumstances.
3.14 If an Advertisement, is not published as a result of an error or oversight by RugbyPass, RugbyPass shall be entitled to propose alternative publication dates for such Advertisement. If the alternative publication dates are not accepted, the Campaign (or applicable part thereof) will be terminated and the Customer shall be entitled to a pro-rated refund for any prepaid amounts in relation to the element of the Campaign which was not published. This shall be the Customer’s sole remedy for failure to publish an Advertisement for the reasons outlined in this clause.
3.15 Once any Advertisement is served and live on a RugbyPass Site, the Customer shall be solely responsible for checking each Advertisement and each Campaign detail or link (including repeat creatives or copy) for any errors, mistakes, changes, inaccuracies or errors and reporting same to RugbyPass without delay.
3.16 RugbyPass shall not be responsible or liable for identifying any errors or repeated errors during a Campaign and it shall, at all times, be the Customer’s responsibility to monitor a Campaign on an ongoing basis and expressly inform RugbyPass of any such errors and provide any necessary assistance to RugbyPass to avoid repeated errors thereafter. If an Advertisement published by RugbyPass contains a material error as a result of an error on the part of RugbyPass, RugbyPass and the Customer shall use all commercially reasonable efforts to agree upon the provision of a makegood service (consistent with the terms of the makegood service outlined in clause 3.12). If an agreement regarding a makegood service is not reached between RugbyPass and the Customer, this Agreement shall be terminated and the Customer shall be liable for payment of the Fees in accordance with the applicable IO.
4. Advertisement Placement and Positioning
4.1 Except as otherwise expressly provided in the IO, the placement or positioning of Advertisements on RugbyPass Sites shall always be at the sole discretion of RugbyPass.
4.2 RugbyPass may, at its sole discretion, modify or remove any inventory or advertising space from any RugbyPass Site, including any inventory or advertising spaces that have been targeted by the Customer for placement of an Advertisement and RugbyPass shall use all commercially reasonable efforts to substitute other suitable inventory or advertising spaces.
4.3 A Customer’s request for an Advertisement not to be placed adjacent to certain content on a RugbyPass Site must be expressly specified within the IO (“Editorial Adjacency Restrictions”). While RugbyPass will use commercially reasonable efforts to comply with the Editorial Adjacency Restrictions in respect of an Advertisement, RugbyPass will at all times retain full editorial control and discretion over the RugbyPass Properties. For Advertisements served on Network Properties, the Customer and RugbyPass agree that RugbyPass’ sole responsibility with respect to compliance with the Editorial Adjacency Restrictions will be to seek to obtain representations from such Network Properties that they will comply with the Editorial Adjacency Restrictions on the relevant Network Properties in respect of the relevant Campaign.
4.4 Should an Advertisement appear on a RugbyPass Site in violation of the Editorial Adjacency Restrictions, the Customer’s sole and exclusive remedy against any party is to request in writing that RugbyPass remove or reposition, or for RugbyPass to request a Network Property to remove or reposition, the relevant Advertisement. In circumstances where the repositioning of an Advertisement is not possible, the Customer and RugbyPass will agree a makegood service.
4.5 For any element, page or inventory on a RugbyPass Site which consists primarily of user-generated content, the Editorial Adjacent Restrictions shall not apply. RugbyPass will, however, make commercially reasonable efforts to ensure that Advertisements are not placed adjacent to content that violates the terms of use of any RugbyPass Site.
4.6 RugbyPass gives no warranty or guarantee in relation to technical or other digital disturbances which may inhibit the delivery of a Campaign. RugbyPass does not warrant or guarantee that the functions, services, assets or facilities contained on or provided by any RugbyPass Site will be uninterrupted, timely, secure, free from loss of connectivity or error/defect free or that any RugbyPass Site or server that makes a RugbyPass Site available are free of viruses, bugs, spyware or similar flaws. In this regard, RugbyPass shall not be liable for any damages including, without limitation, indirect or consequential damages, whether in action of contract, negligence or other tort action, arising from or in connection with any such circumstances referenced above in relation to a RugbyPass Site.
4.7 RugbyPass will use all reasonable efforts to comply with the Start Date and End Date in relation to each Campaign. However, RugbyPass does not guarantee the Start Date or End Date for any Campaign and does not guarantee that the Advertisement(s) will not be displayed after the End Date.
4.8 While RugbyPass will use all reasonable endeavours to serve an Advertisement to a specific jurisdiction where requested by a Customer and specified within an IO, RugbyPass makes no representation, warranty or guarantee that the Advertisement will be served and/or confined to persons resident in any particular countries or jurisdiction(s).
5. Fees and Invoicing
5.1 In consideration for the performance of the services by RugbyPass in accordance with this Agreement, the Customer shall pay the Fees (as outlined in the IO).
5.2 Each amount stated as payable by the Customer under this Agreement is exclusive of VAT (if any) and is to be construed as a reference to that amount plus any applicable VAT. If any VAT (or any such other applicable taxes) are properly chargeable in respect of any services provided under this Agreement, the Customer shall pay the amount of that VAT to RugbyPass against issue of a proper VAT invoice by RugbyPass.
5.3 Unless otherwise agreed and specified within the IO, all undisputed Fees shall be payable by the Customer within 30 days of receipt of a validly issued invoice. Invoices will be sent to the Customer’s address (email or physical) as set forth on the IO.
5.4 In circumstances where the Customer wishes to dispute any invoice submitted by RugbyPass, such dispute must be submitted in writing, together with all relevant details of the dispute, to RugbyPass within ten (10) days from the date of issue of the invoice. If a dispute is not raised by the Customer within the above stated time period, the Customer shall have no further right to raise a dispute in respect of the relevant invoice and shall make payment of the Fees in full.
5.5 For the avoidance of any doubt, where the Customer is an Agency, the Agency shall at all times be liable for payment of the Fees, whether or not the Agency has already received payment from the Advertiser in relation to a Campaign.
6. Intellectual Property
6.1 The Customer hereby grants to RugbyPass an irrevocable, worldwide, non-exclusive, perpetual, sublicensable, transferable and royalty-free licence to use the Advertising Materials to the extent necessary to perform RugbyPass’ obligations under this Agreement including, without limitation, the right to market, display, perform, copy, transmit, distribute, and promote an Advertisement and use any logos, trademarks or other Intellectual Property Rights provided by the Customer for the purposes of an Advertisement.
6.2 The Customer acknowledges that RugbyPass owns the title to, and all Intellectual Property Rights and other related rights in:
(a) any materials (including without limitation any and all computer programs, data, diagrams, charts, reports, templates, specifications, studies, policies and development tools) provided by RugbyPass to the Customer (the "RugbyPass Materials"); and
(b) any data including, without limitation, Confidential Information of RugbyPass, provided by RugbyPass to the Customer or hosted or processed by the Customer on behalf of RugbyPass pursuant to this Agreement (the “RugbyPass Data”);
(c) all of the Campaign reporting data obtained directly by RugbyPass (or its Third Party Advertisement Server) as a result of the display of an Advertisement, including click-through-rates, conversion rates, impressions, CPA, CPL, CPC and any other user data collected by RugbyPass during a Campaign (the "Campaign Data").
6.3 The Customer acknowledges and agrees that RugbyPass owns the title to, and all Intellectual Property Rights in, the RugbyPass Properties and any other applicable output of the RugbyPass services under this Agreement and the Customer hereby assigns (including, where applicable by way of present assignment of copyright created in the future), all such rights to RugbyPass. The Customer shall do all things necessary or desirable to substantiate the rights of RugbyPass under this clause.
7. Reporting
7.1 Upon request by the Customer, RugbyPass will make reporting available to the Customer in the form of Campaign performance reports generated by such reporting tools utilised by RugbyPass at its sole discretion. Reports will be broken out by day and limited to a summary of creative execution, content area, impressions, clicks and spend/cost. The provision of any additional details or reporting metrics shall be strictly at the sole discretion of RugbyPass at all times.
7.2 Where a Campaign performance report is delivered by RugbyPass to the Customer, the figures in such report shall be the official definitive and binding measurements of the performance of that Campaign.
7.3 Any data included in such reports shall be limited to statistical or empirical data only. RugbyPass shall not be obliged or responsible for providing any such reports or data to the Customer which includes any personal data.
8. Warranties
8.1 The Customer warrants and undertakes to RugbyPass that:
(a) it has the full authority to enter into this Agreement and to perform its obligations under this Agreement and, if the Customer is an Agency, it has the full authority from the Advertiser to enter into this Agreement and provide the Advertising Materials;
(b) it has not entered into any arrangement which in any way conflicts with this Agreement or inhibits, restricts or impairs its ability to perform its obligations under this Agreement;
(c) it shall observe and comply with all Applicable Laws to the extent that such laws are relevant to its entry into, and the performance of its obligations under, this Agreement;
(d) the Advertising Materials shall conform to the Advertising Specifications and shall be fit for purpose and free from material defect in normal use;
(e) the Advertising Materials, and Advertisements arising out of the Advertising Materials, shall not include any fraudulent, obscene, defamatory, discriminatory, misleading or deceptive (including links to illegal or immoral activity) content or advertising and shall comply with all codes, regulations, guidelines and policies of the British Code of Advertising Practice and the Advertising Standards Authority and/or any other applicable advertising rules, codes, guides, legislation, regulations and/or industry standards in the territory in which an Advertisement is displayed;
(f) the processing, including the delivery by the Customer to RugbyPass, of any personal data, within the meaning of Applicable Law, is not unlawful, has not been unlawfully obtained and does not violate the rights of any data subjects (including the obtaining of all relevant consents from applicable data subjects);
(g) the equipment, processes, methodologies and technologies used by the Customer in providing the Advertising Materials shall be appropriate to enable RugbyPass to perform the serving of an Advertisement and shall be free from material defect and conform to best industry standards;
(h) it is the owner, controller or holder of all Intellectual Property Rights contained in the Advertising Materials and that it has obtained all of the necessary, approvals, authorisations, licenses, permissions, clearances, consents, rights, titles, interests and Intellectual Property Rights to enable the provision of the Advertising Materials to RugbyPass and that the provision of the Advertising Materials and use by RugbyPass in connection with the serving of an Advertisement will not infringe the Intellectual Property Rights of any third parties;
(i) it shall not introduce any form of computer virus into any technology systems or tools used by RugbyPass or any Third Party Advertisement Server (the "RugbyPass Systems"). The Customer shall use best industry standard virus scanners and security software (updated with the then-most current virus signatures and data sets) to scan all work product, data or software immediately prior to introducing it into, connecting it with or providing to any RugbyPass or Third Party Advertisement Server system;
(j) it will not seek directly or indirectly to use or exploit its connection with RugbyPass or the World Rugby Group in any way or make any reference to any connection with RugbyPass or the World Rugby Group, without the prior approval in writing of RugbyPass and will ensure that any third party appointed by or connected to the Customer does likewise;
(k) it shall not, and shall procure that no personnel or affiliate of the Customer shall, make any defamatory or derogatory statements about, or do, omit to do or authorise any party to do, anything which may undermine or prejudice the interests (legal, sporting and commercial), integrity of, detract from the good image of, or bring into disrepute RugbyPass;
(l) it shall comply with all applicable laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Anti-Bribery Law”) and warrants that it has procedures and structures in place to prevent persons associated with its undertaking conduct what might amount to a breach of Anti-Bribery Law; and
(m) it shall comply, and shall ensure that all personnel of the Customer shall comply fully with: (i) applicable sections of the World Rugby Regulations (https://www.world.rugby/organisation/governance/regulations/); (ii) the World Rugby Code of Labour Practice (https://www.world.rugby/code-of-labour); and (iii) any and all World Rugby policies, to the extent you are notified of and provided such policies; and (iv) the World Rugby Anti-Corruption and Betting Regulations (World Rugby Regulation 6) as in force from time to time (see: http://integrity.worldrugby.org);
(n) it is not subject to an Insolvency Event.
9. Indemnities
9.1 The Customer shall indemnify, keep indemnified and hold harmless RugbyPass and World Rugby, including in each case its employees and its agents, against all Losses suffered or incurred, awarded or agreed to be paid, arising from or in connection with:
(a) any infringement or alleged infringement of any Intellectual Property Rights of any third parties in consequence of the use by RugbyPass of the Advertising Materials (or any part thereof), the serving of an Advertisement (or any part thereof) on a RugbyPass Site and/or the performance of RugbyPass’ of its obligations under this Agreement;
(b) any breach of confidentiality by the Customer (including any third parties acting on its behalf) including any breach of clause 14 (Confidentiality);
(c) any breach by the Customer (including any third parties acting on its behalf) of i) clause 13 (Data Protection); and/or, ii) Applicable Privacy Law; and
(d) any breach by the Customer (including any third parties acting on its behalf) of clause 8 and 15.4 (Warranties).
9.2 In the event RugbyPass receives notice of any third party claim in connection with which RugbyPass expects to rely on an indemnity specified in clause 9.1, RugbyPass shall:
(a) promptly notify the Customer in writing;
(b) make no admission in respect of such claim without the Customer's prior written consent; and
(c) allow the Customer, at the Customer’s request and expense, to conduct any negotiations or litigation and/or settle any claim. RugbyPass shall give the Customer all reasonable assistance as the Customer reasonably requires. The costs incurred or recovered in such negotiations or settled claim shall be for the Customer’s account.
10. Limitation of Liability
10.1 Nothing in this Agreement shall operate to limit or exclude either Party’s liability to the other for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, or in respect of the indemnity given under clause 9, or for any other liability that cannot be limited or excluded by law.
10.2 Subject to clause 10.1, neither Party shall have any liability to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss (including loss of time, savings or profits) arising under or on connection with this Agreement.
10.3 Subject to clause 10.1 and clause 10.2, RugbyPass’ total aggregate liability, whether in contract, tort (including negligence) or otherwise, arising out of or in connection with this Agreement, shall in no case exceed an amount equal to the aggregate Fees paid by the Customer under this Agreement in the 12 months prior to the date that the relevant liability first arose.
11. Sub-Contracting and Third Party Advertisement Servers
11.1 RugbyPass has the unfettered right to utilise the services of persons or entities by means of a sub-contractual relationship for the serving of an Advertisement or in fulfilling its obligations under this Agreement.
11.2 From time to time, RugbyPass may engage a Third Party Advertisement Server in order to provide digital advertising management, ad-serving, tracking, reporting and support services to RugbyPass and the RugbyPass Sites. In circumstances where RugbyPass has subcontracted the serving (or part thereof) of an Advertisement to a Third Party Advertisement Server, RugbyPass may require the Customer, and the Customer agrees, to engage directly with or send Advertising Materials directly to such Third Party Advertisement Server.
11.3 RugbyPass acknowledges that the execution of subcontracts or performance by sub-contractors in relation to the serving of an Advertisement will not diminish or alter RugbyPass’ responsibilities under this Agreement.
12. Insurance
12.1 The Customer shall be required at all times during this Agreement, and for a period of six (6) years thereafter, to effect and maintain such levels of insurance with a reputable insurer as may be required to cover any potential liability of the Customer under this Agreement. On request, the Customer shall as soon as reasonably practicable provide to RugbyPass full details of its relevant insurance arrangements.
13. Data Protection
13.1 The Customer acknowledges that in engaging RugbyPass for the serving of an Advertisement under this Agreement, the Customer may process personal data within the meaning of Applicable Privacy Law, including, the provision of personal data to RugbyPass as part of the Advertising Materials.
13.2 At all times during this Agreement, the Customer shall continue to comply with all Applicable Privacy Laws binding on the Customer which govern the collection, use, disclosure, transfer and processing of personal data.
13.3 The Customer shall have the sole responsibility for the accuracy, quality and legality of any personal data transferred to RugbyPass, including in particular, obtaining all consents necessary to enable the collection and transfer of personal data to RugbyPass for the purposes of serving an Advertisement on a RugbyPass Site.
14. Confidentiality
14.1 Each Party (the “Receiving Party") shall keep confidential any information relating to the business, affairs, plans or products of the other Party or any third party, which is designated as "confidential" or which ought reasonably to be regarded as confidential which is obtained under or in connection with this Agreement, including, without limitation, the existence, provisions and subject matter of this Agreement, any information obtained by the Customer in relation to the RugbyPass Materials, RugbyPass Data, Campaign Data or RugbyPass Systems pursuant to the performance of RugbyPass’ obligations under this Agreement ("Confidential Information") and shall not divulge the same to any third party without the prior written consent of the other Party (the "Disclosing Party").
14.2 The restrictions contained in clause 14.1 shall not apply to: a) any information in the public domain otherwise than by breach of this Agreement; b) information in the possession of the Receiving Party before disclosure as aforesaid; c) information obtained from a third party who is free to divulge the same; or d) information which is properly disclosed to the extent required by Applicable Laws, a statutory obligation (including, without limitation, under the Freedom of Information Act 2014), the order of a court of competent jurisdiction or that of a competent regulatory authority or Governmental Entity.
14.3 The Receiving Party may disclose the Disclosing Party's Confidential Information to any of its directors, other officers and employees (each a "Recipient") to the extent that disclosure is reasonably necessary for the purposes of performing its obligations under this Agreement. The Receiving Party shall ensure that each Recipient is made aware of and agrees to comply with the Receiving Party's confidentiality obligations under this Agreement as if the Recipient was a party to this Agreement.
15. Cookies and Tracking
15.1 The Customer acknowledges that RugbyPass (or a Third Party Advertisement Server acting on its behalf) may electronically tag and use such other tracking technology, as required and in accordance with Applicable Law, when serving an Advertisement on a RugbyPass Site to enable collection of Campaign Data.
15.2 If the Customer, including through the use of a third party technology system or provider, wishes to utilise cookies on user computers or use pixels, tags or other such data tracking technology in connection with an Advertisement on a RugbyPass Site for the tracking of impressions, performance and verification of a Campaign, the Customer shall a) procure that such technology or provider complies with Applicable Law and is a reputable and trustworthy technology system or provider conforming to the highest industry standards, b) notify RugbyPass in writing in advance of executing the IO, c) confirm the specific purpose for using such tracking technology and d) provide all information as may be requested by RugbyPass. The use of any such tracking technology by a Customer shall be subject, at all times, to the express consent of RugbyPass and the Customer shall only use such data collected strictly in accordance with Applicable Law and for the purposes of collection as communicated to RugbyPass.
15.3 At all times, the Customer shall ensure that it has a legitimate and lawful basis for the use of such tracking technology and the collection of user data and that the Customer’s website, or any website or platform to which an Advertisement links, complies with all Applicable Laws, regulations and codes of practice in place from time to time.
15.4 The Customer represents and warrants that it shall only utilise cookies on the device of any user or use any such tracking technology in connection with an Advertisement, in circumstances where a) the Customer complies with all Applicable Laws, regulations and user preferences (including all user consents required under Applicable Privacy Laws) and shall not cause RugbyPass to be in breach of any Applicable Laws; b) cookies utilised are dropped or used only for the purposes of displaying advertising or analysing impressions, campaign performances and click-through rates, and c) the Customer will not disclose or sell any data collected through any such cookies or tracking activities to any third parties, or combine it with any information collected by the Customer or from other sources (including for the purpose of building user profiles, interests or segmentation).
15.5 For the avoidance of any doubt, where the Customer uses any third party provider or technology system in connection with any aspect of a Campaign, the Customer shall be responsible for the management of that third party and shall be liable for all acts and omissions of that third party as if they were the acts and omissions of the Customer.
16. Term and Termination
16.1 This Agreement shall be effective upon signing by both Parties and, subject to earlier termination in accordance with its terms, the Agreement shall continue until the End Date.
16.2 RugbyPass or the Customer shall have the right to terminate this Agreement on not less than 30 days’ notice to the other Party and in such circumstances: a) the Customer shall reimburse RugbyPass for any costs incurred up to the effective date of termination in relation to the production or delivery of a Campaign; and b) the Customer shall pay to RugbyPass, within thirty (30) days after the effective date of termination, all Fees not yet paid for any part of a Campaign that has already been served by RugbyPass up to and including the effective date of termination.
16.3 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party: a) commits a breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of five (5) Business Days after being notified in writing to do so; b) persistently breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to or comply with the terms of this Agreement; or c) undergoes an Insolvency Event and, RugbyPass may terminate this Agreement with immediate effect by giving written notice to the Customer in the event that the Customer undergoes a Change of Control.
16.4 On expiry or earlier termination of this Agreement, the Customer shall cease to access, and shall cease to have any right to access, any and all of the RugbyPass Systems and shall promptly deliver to RugbyPass (or, at the election of RugbyPass, destroy and certify such destruction to RugbyPass) all Confidential Information, the RugbyPass Materials, Campaign Data and the RugbyPass Data which may be in its possession.
16.5 The rights and obligations of the Parties under this Agreement which are expressly or by implication are intended to continue in force beyond termination of this Agreement (including clauses 5, 6, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19) shall survive the termination of this Agreement and remain in full force and effect.
16.6 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
17. Force Majeure
17.1 Neither Party shall be deemed to be in breach or liable for any failure to fulfil its obligations under the Agreement to the extent that such Party is prevented from fulfilling such obligations by a Force Majeure Event, provided that the affected Party shall promptly notify the other Party of the estimated extent of and duration of such inability to perform its obligations, and shall: (a) use all reasonable endeavours to overcome the Force Majeure Event; (b) remain responsible and liable for fulfilling all obligations not prevented or hindered by the Force Majeure Event; and (c) promptly notify the other Party and fulfil all of its obligations upon cessation of the Force Majeure Event (save to the extent such fulfilment is no longer possible or is not required by the other Party).
17.2 In the case where the unaffected Party is the Customer, the Customer shall not be required to make payment of any Fees to RugbyPass in relation to any services which have not been provided or partially provided due to the Force Majeure Event.
17.3 In the event that a Force Majeure Event continues for more than 30 days then either Party will be entitled to terminate this Agreement with immediate effect by written notice to the other Party.
18. Dispute Resolution
18.1 The Parties shall use all reasonable endeavours to settle any dispute that may arise in connection with this Agreement.
18.2 Nothing contained in this clause 18 shall restrict either Party's freedom to commence legal proceedings where such proceedings are required urgently to preserve any legal right or remedy, to protect any Intellectual Property Rights or rights in Confidential Information or to otherwise prevent irreparable harm.
19. General
19.1 Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the Parties or their respective personnel.
19.2 The Customer shall not: (a) make any public announcement concerning this Agreement, including the existence and subject matter of the Agreement (b) hold itself out or announce itself as a partner or a Customer of RugbyPass or World Rugby or otherwise associate itself with RugbyPass and/or World Rugby, unless it has obtained the prior written approval of RugbyPass.
19.3 This Agreement (including its applicable IO and any applicable schedules) contains the entire agreement between the Parties with respect to its subject matter, supersedes all previous agreements and understandings between the Parties with respect to its subject matter, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
19.4 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by the Applicable Laws.
19.5 No delay, neglect, or forbearance on the part of either Party in enforcing against the other Party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right or remedy of that Party under this Agreement. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19.6 In the event that any provision of this Agreement shall be determined to be partially void or unenforceable by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject or by virtue of any other reason whatsoever, it shall be void or unenforceable to that extent only and no further and the validity and enforceability of any of the other provisions of this Agreement shall not be affected.
19.7 This Agreement may be entered into by the Parties in any number of counterparts. Each counterpart shall, when executed and delivered, be regarded as an original, and all the counterparts shall together constitute one and the same instrument.
19.8 No person who is not a Party to this Agreement may enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.
19.9 No variations or additions to these Terms shall be effective without the prior written consent of RugbyPass. RugbyPass may from time to time, at its sole discretion, modify these Terms by publishing any changes online in the relevant “Digital Advertising Terms and Conditions” page on the RugbyPass website – www.rugbypass.com.
19.10 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
20. Definitions and Interpretation
20.1 In this Agreement the following definitions shall have the following meanings unless the context requires otherwise:
“Advertisement” means the digital advertisement arising directly from the Advertising Materials provided by a Customer to RugbyPass to be served on a RugbyPass Site which may include but is not limited to advertising of audio or visual material, dynamic images, banner advertising, links, microsites, CTA advertising and emails;
“Advertiser” means the ultimate advertiser or brand to which the subject of the Advertisement relates;
“Advertising Materials” means any materials, artwork, copy, collaterals, designs, images, graphics, banners, content, links or active URLs which shall be used for the purposes of the Advertisement;
“Advertising Specifications” means any technical specifications, due dates or timelines, content limitations or restrictions, policies or guidelines, user experience policies, policies regarding consistency with RugbyPass’ public image, community standards or other forms of editorial or advertising policies which may be included in the IO or communicated by RugbyPass to the Customer from time to time in relation to a Campaign;
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity;
“Agency” means an advertising agency, media buyer or and any other digital trading partner that acts on behalf of an Advertiser or otherwise as an intermediary between an Advertiser and RugbyPass for the purposes of securing a Campaign on a RugbyPass Site.;
“Applicable Law” means all applicable laws, enactments, regulations, rules, codes of practice, guidelines, directions and decrees imposed by law or any competent authority in any jurisdiction which are in force from time to time during this Agreement (including the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act 2010 and Applicable Privacy Law);
“Applicable Privacy Law” means EU General Data Protection Regulation 2016/679, the ePrivacy Directive 2002/58/EC (as amended) and including any applicable transposing regulations, or any other applicable law on data protection or data privacy in place from time to time;
“Business Day” means a day other than a Saturday or Sunday on which banks are generally open for business in Dublin;
“Campaign” means the advertising or promotional campaign, consisting of the Advertisement(s), as set out in the agreed campaign schedule within the relevant IO;
“Control” shall be determined by reference to the provisions of section 416 of the Income and Corporation Taxes Act 1988 and a “Change of Control” shall be deemed to have occurred if any person or persons who Control the Customer at the date of execution of this Agreement subsequently cease to Control it or if any person or persons subsequently acquires Control of it;
“CPA” means cost per acquisition; “CPC” means cost per click; “CPL” means cost per lead; “CPM” means cost per thousand impressions;
“Customer” means the person or entity engaging directly, and executing the IO, with RugbyPass for the purposes of entering into the Agreement. For the avoidance of doubt, the Customer may, depending on the circumstances, be the Advertiser or the Agency;
“Deliverable” or “Deliverables” means any inventory or performance requirement specified on the IO (e.g., impressions, clicks, CPA, CPC, CPL, CPM, timeframes, advertising expenditure or other agreed deliverable) to be delivered by RugbyPass;
“End Date” means either, the date specified within the applicable IO on which a Campaign is due to end, or, as applicable, the date on which any Deliverables, specified in the IO, have been completed;
“Fees” means the amounts payable, as specified on the IO, by the Customer to RugbyPass in consideration for the purchase of digital advertising on a RugbyPass Site;
“Insolvency Event” occurs if a Party: (i) ceases, or threatens to cease, to carry on the whole or a substantial part of its business; (ii) becomes unable to pay its debts as and when they fall due, makes an arrangement or composition with its creditors or goes into liquidation; (iii) is the subject of the commencement of any bankruptcy proceedings, the passing of a resolution for its winding up, the giving of a notice of appointment or intention to appoint an administrator or liquidator (which is not dismissed, withdrawn or set aside within 14 days of presentation); or (iv) has an administrator, an administrative receiver or trustee appointed over all or any of its assets;
“Intellectual Property Rights” means all intellectual and/or industrial property rights including copyrights, patents, design rights, trade secrets, rights in confidential information, trademarks, trade names, domain names, service marks, utility models, moral rights, topography rights, rights in databases and know-how in all cases whether or not registered or registerable and including registrations and applications for registration of any of these rights to apply for the same, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world;
“IO” means a mutually agreed insertion order, together with any applicable schedules, which incorporates these Terms and confirms the details of the Campaign to be served by RugbyPass;
“Losses” means all liabilities and other amounts including all:
(a) costs (including legal and professional costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage);
(b) loss or damage to reputation, brand or goodwill;
(c) costs and expenses of investigation and remediation;
(d) to the extent permitted by Applicable Privacy Law: i) administrative fines, penalties, sanctions, liabilities or other remedies imposed by a data protection supervisory authority; ii) compensation paid to a Data Subject (including compensation to protect goodwill and ex gratia payments); and iii) costs and expenses of compliance with investigations by a data protection supervisory authority;
(e) all amounts paid or payable by RugbyPass or the World Rugby Group to a third party which would not have been paid or payable if the applicable breach had not occurred; and
(f) the costs and expenses of loading RugbyPass Data and replacement of RugbyPass Materials and equipment, to the extent the same are lost, damaged or destroyed, and any loss or corruption of RugbyPass Data (including the costs and expenses of rectification or restoration of RugbyPass Data).
“Network Property” means any websites, platforms or podcasts, specified on an IO that are not owned, operated, or controlled by RugbyPass, but on which RugbyPass has a right to serve Advertisements;
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“RugbyPass” means Rugbypass Limited, of World Rugby House, 8-10 Pembroke Street Lower, Dublin 2, Ireland;
“RugbyPass Property” means any websites, platforms, social media platforms, newsletters, podcasts or other digital inventory assets that are owned, operated, or controlled by RugbyPass, including but not limited to Rugby365, RugbyOnslaught, The Rugby Network, RugbyDump, RugbyPass and Rugby Analytics;
“RugbyPass Site” or “Sites” means a RugbyPass Property or a Network Property;
“Start Date” means the start date, as specified within the applicable IO, for a particular Campaign;
“Terms” means these RugbyPass Standard Digital Advertising Terms and Conditions.
“Third Party Advertisement Server” means any third party advertising or technology provider with whom RugbyPass has a contractual relationship that will serve, implement and/or track Advertisements and/or Campaigns, or provide any form of support services for RugbyPass in relation to the serving of Advertisements, on RugbyPass Sites;
“World Rugby” means World Rugby, the global governing body of rugby union, of World Rugby House, 8 – 10 Pembroke Street Lower, Dublin 2, Ireland
“World Rugby Group” means World Rugby and all group entities which are under the common control of World Rugby.
20.2 In this Agreement, unless the context requires otherwise:
(a) words importing the singular number shall include the plural number and vice versa and words importing a particular gender include all genders;
(b) any reference to a "person" shall be construed as a reference to any individual, partnership, firm, trust, body corporate, government, governmental body, authority, emanation, agency or instrumentality, unincorporated body of persons or associations;
(c) any reference in this Agreement to any statute or statutory provision shall be deemed to include any statute or statutory provision which amends, extends, consolidates, re-enacts or replaces same, or which has been amended, extended, consolidated, re-enacted or replaced (whether before or after the date of this Agreement) by same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute;
(d) any words following the terms "including", “include", in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to “writing” or “written” includes email unless expressly stated otherwise;
(f) any obligation on the Customer to do something includes an obligation to procure that such thing is done;
(g) any reference to "day" shall, unless otherwise stated, mean the period of time which begins with one midnight and ends with the next;
(h) all references to time of day shall be a reference to whatever time of day shall be in force in Ireland; and
(i) in the interpretation of this Agreement, where the Customer is required to be “reasonable” (and/or required not to be “unreasonable”) in determining any matter or providing its opinion, approval or otherwise, the Customer acknowledges and accepts that such matter, opinion or approval shall be determined by the Customer by reference to the overall interests of RugbyPass.
