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1.1 ZINE Limited trading as ZINE (“ZINE”) has developed and provides via an online platform certain information and services (together, the “Platform”) which it makes available to brands and advertising agencies (hereinafter referred to as “Advertiser” or “you”) on a subscription basis for the purpose of facilitating advertising, marketing, publicity, brand recognition/awareness/penetration, public relations or similar agreements between Advertisers and social media influencers (“Influencers”).
1.2 The following terms and conditions (“Terms and Conditions”) govern your use of the Platform and, except where expressly agreed in writing by ZINE, apply to all requests to register on the Platform, your use of Platform and any Subscription Agreements entered into between ZINE and an Advertiser.
2.1 The definitions and rules of interpretation in this clause apply in these Terms and Conditions:
“Advertiser Data”: the data inputted by or on behalf of the Advertiser for the purpose of using the Platform.
“Authorised Users”: those employees, agents and independent contractors of the Advertiser who are authorised to use the Platform.
“Brand”: one of Advertiser’s company names or trading styles (or, where the Advertiser is an advertising agency, and a Subscription Agreement or Trial Period is entered into by that agency or other agency for the benefit of the agency’s clients, one of such client’s company names or trading styles).
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Campaign”: an advertising, marketing or promotional campaign concerned with a particular project or Brand and organised by or on behalf of the Advertiser.
“Change of Control”: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and “controls”, “controlled” and the expression “change of control” shall be construed accordingly.
“Collaboration Brief”: a document created on the Platform by the Advertiser setting out the details of a proposed Campaign.
“Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.
“Data Controller”: has the meaning given to that term under the relevant Data Protection Laws.
“Data Protection Laws”: means (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of Personal Data to which a party is subject, including the Data Protection Act 1998 and EC Directive 95/46/EC (up to and including 24 May 2018) and the GDPR (on and from 25 May 2018) or, in the event that the UK leaves the European Union, all legislation enacted in the UK in respect of the protection of Personal Data; and (b) any code of practice or guidance published by the Regulator from time to time.
“Data Subject”: has the meaning given to that term under the relevant Data Protection Laws.
“Effective Date”: the date on which you registered with ZINE to receive access to the Platform whether as part of the Initial Subscription Term or a Trial Period.
“GDPR”: means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation).
“Initial Subscription Term”: the initial term of the agreement between you and ZINE, as set out in an applicable Subscription Agreement.
“Mandatory Policies”: ZINE’s business policies, including but not limited to its Privacy Policy https://www.zineme.com/privacy-policy/, as amended from time to time.
“Personal Data”: any information relating to a Data Subject of which ZINE or the Advertiser are a Data Controller.
“Regulator” the UK Information Commissioner’s Office (including any successor or replacement body).
“Renewal Period”: the period described in clause 15.1.
“Seats”: the number of Authorised Users set out in an applicable Subscription Agreement or otherwise agreed in writing by ZINE.
“Service Description”: the description of the functionality of the Platform as provided by ZINE from time to time.
“Software”: the online software applications provided by ZINE as part of the Platform.
“Subscription Agreement”: an agreement entered into between you and ZINE for the provision of the Platform beyond a Trial Period (if applicable).
“Subscription Fees”: the subscription fees payable by the Advertiser to ZINE for access to the Platform for the Seats, as set out in a Subscription Agreement.
“Term”: the period between the Effective Date and the later of any of the following: the termination or expiry of a Trial Period (if applicable), the Initial Subscription Term together with any subsequent Renewal Periods or a Subscription Agreement;
“Trial Period”: a period during which Advertiser may trial its use of the Platform, granted by ZINE to you at its sole and absolute discretion (for such period as ZINE may specify in writing from time to time), during which time, no Subscription Fees will be payable by you to ZINE.
“Virus”: 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.
2.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms and Conditions.
2.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
2.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
3.1 Subject to the Advertiser complying with these Terms and Conditions, ZINE hereby grants to the Advertiser a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Platform during the Term in respect of the Brands set out in an applicable Subscription Agreement, or, where ZINE has granted a discretionary Trial Period, the Brands agreed in writing by ZINE, solely for the Advertiser’s internal business operations.
3.2 The Advertiser undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Platform shall not exceed the number of Seats approved by ZINE in writing;
(b) it will not allow or suffer any Authorised User’s account with ZINE to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Platform;
(c) each Authorised User shall keep a secure password for his use of the Platform, such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to ZINE within 5 Business Days of ZINE’s written request;
(e) it shall permit ZINE to audit the Advertiser in order to establish the identity and number of Brands in respect of which the Advertiser uses the Platform and the number of Authorised Users using the Platform. Such audit may be conducted no more than once per quarter, at ZINE’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Advertiser’s normal conduct of business; and
(f) if any of the audits referred to in clause 3.2(e) reveal that any password has been provided to any organisation or individual who is not an Authorised User, or an Authorised User is no longer an employee, agent or independent contractor connected with the Advertiser, then without prejudice to ZINE’s other rights, the Advertiser shall promptly disable such passwords and accounts and ZINE, at its sole discretion, may decide not to issue any new passwords to any such individual or organisation; and
(g) if any of the audits referred to in clause 3.2(e) reveal that the Advertiser has underpaid Subscription Fees to ZINE owed pursuant to a Subscription Agreement, then without prejudice to ZINE’s other rights, the Advertiser shall pay to ZINE an amount equal to such underpayment as calculated in accordance with the prices set out in in the relevant Subscription Agreement and the costs of the audit within 10 Business Days of the date of the relevant audit.
3.3 The Advertiser shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Platform that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise fraudulent, illegal or causes damage or injury to any person or property,
and ZINE reserves the right, without liability or prejudice to its other rights, to suspend or disable the Advertiser’s (or any Authorised User’s) access to the Platform without notice in the event that ZINE believes that the Advertiser is in breach of any of the provisions of these Terms and Conditions and any applicable Subscription Agreement.
3.4 The Advertiser shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms and Conditions:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, export, sell or distribute all or any portion of the Software and/or the Platform in any form or media or by any means;
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(c) attempt to extract, scrape, re-sell or otherwise use any data contained on the Platform except as expressly provided for in these Terms and Conditions or an applicable Subscription Agreement (including that Advertiser shall not use the Platform to create, add to or build-up profiles or other databases based on the preferences, browsing history or similar historic data of Influencers)
(d) access all or any part of the Platform in order to build a product or service which competes with the Platform or any other service offered by ZINE;
(e) use the Platform to provide services to third parties, except as contemplated by these Terms and Conditions and any applicable Subscription Agreement;
(f) subject to the provisions of an applicable Subscription Agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party except the Authorised Users; or
(g) attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 3,
the Advertiser shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, immediately notify ZINE in writing.
3.5 The rights provided under this clause 4 are granted to the Advertiser only, and shall not be considered granted to any subsidiary or holding company of the Advertiser.
4.1 Subject to clause 4.2, the Advertiser may, from time to time during any Subscription Term, request additional Seats in excess of the number set out in the applicable Subscription Agreement or otherwise agreed in writing by ZINE. ZINE may grant or refuse access to the Platform, at its sole and absolute discretion, for such additional Seats as the Advertiser may request in accordance with the provisions of these Terms and Conditions.
4.2 If ZINE approves the Advertiser’s request to increase the number of Seats ZINE shall set out any additional costs that may, at ZINE’s discretion, be payable. If such costs are acceptable to the Advertiser, it shall, within 30 days of the date of ZINE’s invoice, pay to ZINE the relevant fees for such additional Seats.
5.1 ZINE shall, during the Subscription Term, make available the Platform to the Advertiser on and subject to the terms of these Terms and Conditions and any applicable Subscription Agreement. ZINE shall use reasonable endeavours to provide the Platform in accordance with the Service Description.
5.2 The Advertiser acknowledges and agrees that it shall only be entitled to use the Platform in respect of the Brands which are specified in the applicable Subscription Agreement or, if during a Trial Period (as applicable), such Brands as are agreed between the parties at the beginning of the Trial Period.
5.3 The Advertiser acknowledges that it shall be responsible for all costs and liabilities involved with engaging Influencers, whether or not such Influencers may be recommended to the Advertiser by ZINE in a proposal or otherwise.
6.1 The Advertiser shall own all right, title and interest in and to all of the Advertiser Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Advertiser Data.
6.2 The Advertiser shall be responsible for backing up and keeping safe copies of the Advertiser Data. ZINE shall have no obligation to back-up or keep copies of any Advertiser Data. Notwithstanding the forgoing, if there is any loss or damage to the Advertiser Data, the Advertiser’s sole and exclusive remedy shall be for ZINE to use reasonable commercial endeavours to restore the lost or damaged Advertiser Data from any back-ups it may have of the same. ZINE shall not be responsible for any loss, destruction, alteration or disclosure of Advertiser Data caused by any third party.
6.3 ZINE shall, in providing the Platform, comply with its Privacy Policy to the privacy and security of the Advertiser Data available at www.zine.co or such other website address as may be notified to the Advertiser from time to time, as such document may be amended from time to time by ZINE in its sole discretion.
6.4 The parties acknowledge that, for the purposes of these Terms and Conditions and any applicable Subscription Agreement, they are both data controllers for the purposes of the Data Protection Laws and shall comply with all applicable obligations under the Data Protection Laws.
6.5 The duration of the Advertiser’s processing under these Terms and Conditions and any applicable Subscription Agreement shall be limited to the period from the Effective Date until the end of the Subscription Term, whether by expiry or earlier termination in accordance with these Terms and Conditions and any applicable Subscription Agreement.
6.6 The Advertiser shall only process Personal Data to the extent required for the proper performance of its obligations and the proper utilisation of the Platform under these Terms and Conditions and any applicable Subscription Agreements.
6.7 The nature and purpose of the Advertiser’s processing shall be limited to:
(a) Reviewing and accessing the Personal Data of Influencers contained on the Platform for the purposes of determining whether the Advertiser wishes to engage an Influencer in relation to a Campaign;
(b) Contacting Influencers for the purposes of a Campaign;
(c) Paying the Influencers for services provided in connection with a Campaign; and
(d) Providing ZINE with the Personal Data of the Advertiser’s Authorised Users, solely to the extent necessary to facilitate the Authorised Users’ use of the Platform.
6.8 The type of Personal Data which shall be processed by the Advertiser includes:
(a) Influencers’ social media accounts and analyses of the same provided by ZINE; and
(b) Influencers’ Stripe connected account details or other payment details in accordance with clause 10.6.
6.9 Each party shall ensure that the Data Subjects, including without limitation the Influencers, have been informed of, and have given their consent to, the use, processing, and transfer of their Personal Data under these Terms and Conditions and any applicable Subscription Agreement as required by the Data Protection Laws.
6.10 Each party acknowledges that:
(a) if a party (the “Recipient”) receives a request from a Data Subject in relation to their Personal Data, for details of the Personal Data which the Recipient holds, or details of how the Recipient processes their Personal Data, the Recipient shall be solely responsible for responding to such requests.
(b) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage, including without limitation (as appropriate):
(i) the encryption of Personal Data;
(ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(iii) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and
(iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
7.1 The Advertiser acknowledges that the Platform may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties, or via third-party websites and that it does so solely at its own risk. ZINE makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Advertiser, (or goods or services ordered from or delivered by) with any such third party, including but not limited to the Influencers. Any contract entered into and any transaction completed with any third party, including but not limited to Influencers, or via any third-party website is between the Advertiser and the relevant third party, and not ZINE. ZINE recommends that the Advertiser refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. ZINE does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Platform.
7.2 The Advertiser acknowledges that:
(a) the Influencers are independent contractors and have no obligation to provide services to the Advertiser;
(b) all transactions carried out via or using the Platform are carried out at the Advertiser’s own risk;
(c) ZINE does not act as legal agent for any Influencer;
(d) it should take independent legal advice on any contract entered into with an Influencer and in particular shall be responsible for the payment of any taxes, union fees/memberships (such as Screen Actors Guild or Equity payments due) or similar liabilities arising in respect of the engagement of any Influencer;
(e) ZINE does not warrant or represent that it will undertake due diligence on the Influencers that register with the Platform; and
(f) ZINE accepts no liability for the actions or inaction of the Influencers.
7.3 The Advertiser shall not contact an Influencer, through the Platform or otherwise, where the Influencer has expressed a preference to the Advertiser or on the Platform not be contacted about a particular Collaboration Brief, Campaign or Brand or a particular type of Collaboration Brief, Campaign or Brand.
8.1 Notwithstanding any contrary provision in these Terms and Conditions, ZINE:
(a) does not warrant that the Advertiser’s use of the Platform will be uninterrupted or error-free, or that the Platform and/or the information obtained by the Advertiser through the Platform will meet the Advertiser’s requirements; and
(b) 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 Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.2 These Terms and Conditions shall not prevent ZINE from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms and Conditions.
8.3 ZINE warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms and Conditions.
9.1 The Advertiser shall:
(a) provide ZINE with:
(i) all necessary co-operation in relation to these Terms and Conditions; and
(ii) all necessary access to such information as may be required by ZINE;
(b) in order to provide the Platform, including but not limited to Advertiser Data, security access information and configuration services:
(i) comply with all applicable laws and regulations with respect to its activities under these Terms and Conditions;
(ii) carry out all other Advertiser responsibilities set out in these Terms and Conditions in a timely and efficient manner. In the event of any delays in the Advertiser’s provision of such assistance as agreed by the parties, ZINE may adjust any agreed timetable or delivery schedule as reasonably necessary;
(iii) ensure that the Authorised Users use the Platform in accordance with the terms and conditions of these Terms and Conditions and shall be responsible for any Authorised User’s breach of these Terms and Conditions;
(iv) obtain and shall maintain all necessary licences, consents, and permissions necessary for ZINE, its contractors and agents to perform their obligations under these Terms and Conditions, including without limitation the Platform;
(v) ensure that its network and systems comply with the relevant specifications provided by ZINE from time to time; and
(vi) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to ZINE’s data centres, and 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.
9.2 The Advertiser shall not engage an Influencer’s services otherwise than through the Platform.
9.3 In the event that the Advertiser re-engages the services of an Influencer within 12 months of the completion of the first Campaign the Advertiser has conducted with the Influencer, the Advertiser acknowledges and agrees that ZINE shall be entitled to a [reasonable fee], such fee to be determined by ZINE in its reasonable discretion
9.4 The Advertiser hereby acknowledges and agrees that ZINE shall be entitled to a reasonable fee in the event that the Advertiser commits a breach of clause 9.2, such fee to be determined by ZINE in its reasonable discretion.
10.1 Except during a discretionary Trial Period, the Advertiser shall pay the Subscription Fees to ZINE for the Authorised Users to access the Platform in accordance with this clause 10 and the terms of any applicable Subscription Agreement.
10.2 The Advertiser shall pay each invoice issued by ZINE under a Subscription Agreement within 30 days after the date of such invoice.
10.3 If ZINE has not received payment by the due date, without prejudice to any other rights and remedies of ZINE:
(a) ZINE may, without liability to the Advertiser, disable the Advertiser’s password, account and access to all or part of the Platform and ZINE shall be under no obligation to provide any or all of the Platform while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of ZINE’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.4 All amounts and fees stated or referred to in these Terms and Conditions:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, or other applicable taxes, which shall be added to ZINE’s invoice(s) at the appropriate rate.
10.5 ZINE shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 60 days’ prior notice to the Advertiser and the relevant Subscription Agreement shall be deemed to have been amended accordingly.
10.6 The Advertiser is responsible for paying all amounts due to Influencers or third parties engaged through the Platform.
10.7 Subject to: (i) clause 10.8; (ii) confirmation of the satisfactory completion or part-completion of a Campaign by an Advertiser; and (iii) receipt of authorisation by the Influencer and Advertiser, ZINE may:
(a) invoice the Advertiser on behalf of the Influencer for the services provided by the Influencer to the Advertiser in a Campaign; and
(b) pay the Influencer in respect of any services which the Influencer delivered to the Advertiser under the applicable Campaign on behalf of the Advertiser.
10.8 In the event that ZINE is permitted to invoice the Advertiser in accordance with clause 10.7, ZINE shall have the right to charge the Advertiser an administration fee which shall be calculated as [up to] 5% of the total fees payable to the Influencer by the Advertiser.
10.9 Except where agreed in writing between the Advertiser and the applicable Influencer(s), all payments by Advertisers to Influencers in connection with the Advertiser’s Campaign(s) shall be made:
(a) via credit card on Stripe to the relevant Influencer’s Stripe Connected Account, which is ZINE’s preferred payment service provider, subject to a 5% -20% administration fee payable by the Advertiser to ZINE for each transaction completed via the Platform and any fees which Stripe may charge; the administration fee is non-refundable.
(b) to ZINE, in accordance with clauses 10.7 and 10.8 above; or
(c) to the Influencer directly following the issuance of an invoice by the Influencer to the Advertiser via the Platform.
10.10 By using the Platform the Advertiser agrees to Stripe’s Connected Account Agreement which can be found here.
10.11 The Advertiser hereby acknowledges and agrees that, except where proscribed by law, ZINE shall not be liable to the Advertiser for any damage or loss arising from the inaccuracy of any invoice or part of an invoice issued to the Advertiser by ZINE on behalf of an Influencer, including without limitation the amount of VAT or other taxes and expenses which the Influencer may charge.
10.12 If the Advertiser makes payment to the Influencer by any means other than that prescribed in clause 10.9, the Advertiser acknowledges and agrees that it shall not be entitled to a post-Campaign report and statistics.
11.1 The Advertiser acknowledges and agrees that, subject to clause 6.1, ZINE and/or its licensors own all intellectual property rights in and to the Platform or made available to the Advertiser by ZINE (whether through the Platform or otherwise), which includes any data, information, analysis, reports or other output produced by or on behalf of ZINE using the Platform or the Advertiser Data. Except as expressly stated herein, these Terms and Conditions do not grant the Advertiser any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform.
11.2 The Advertiser hereby gives ZINE an irrevocable and perpetual non-exclusive licence to use the Advertiser Data and any promotional content generated during the course of any Campaign for the purposes of:
(a) providing the Platform;
(b) improving the Platform; and
(c) developing products, services, case studies and marketing material which it may present to or share with advertisers and agencies.
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms and Conditions. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2 Subject to clauses 12.4 and 12.6, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these Terms and Conditions.
12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms and Conditions.
12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.6 ZINE shall be entitled to use the Advertiser Data to:
(a) Create case studies or marketing materials to show to prospective clients; and
(b) Generate usage statistics or other useful metrics, which ZINE may share with third parties, for the purposes of refining the Platform.
12.7 The Advertiser acknowledges that details of the Platform, and the results of any performance tests of the Platform, constitute ZINE’s Confidential Information.
12.8 Subject to clauses 12.4 and 12.6, no party shall make, or permit any person to make, any public announcement concerning these Terms and Conditions without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.9 The above provisions of this clause 12 shall survive termination of these Terms and Conditions, however arising.
12.10 In performing its obligations under these Terms and Conditions the Advertiser shall comply with the Mandatory Policies.
13.1 The Advertiser shall defend, indemnify and hold harmless ZINE, its employees, officers, agents and sub-contractors against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and legal fees) arising out of or in connection with the Advertiser’s use of the Platform and/or any contracts concluded with Influencers.
13.2 In no event shall ZINE, its employees, officers, agents and sub-contractors be liable to the Advertiser to the extent that any alleged infringement of any patent, copyright, trade mark, database right or rights of confidentiality is based on:
(a) a modification of the Platform by anyone other than ZINE; or
(b) the Advertiser’s use of the Platform in a manner contrary to the instructions given to the Advertiser by ZINE; or
(c) the Advertiser’s use of the Platform after notice of the alleged or actual infringement from ZINE or any appropriate authority.
14.1 Except as expressly and specifically provided in these Terms and Conditions:
(a) the Advertiser assumes sole responsibility for results obtained from the use of the Platform by the Advertiser, and for conclusions drawn from such use. ZINE shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ZINE by the Advertiser in connection with the Platform, or any actions taken by ZINE at the Advertiser’s direction;
(b) ZINE accepts no liability for the content of any Campaigns that the Advertiser chooses to undertake with Influencers, including without limitation:
(i) any failure to disclose that a social media post is sponsored;
(ii) any breach of applicable laws or regulations, including the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing and/or the and the UK Code of Broadcast Advertising (known as the ‘CAP Code’); and
(iii) any claim of defamation by a third party;
(c) 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 these Terms and Conditions; and
(d) the Platform is provided to the Advertiser on an “as is” basis.
14.2 Nothing in these Terms and Conditions excludes the liability of ZINE:
(a) for death or personal injury caused by ZINE’s negligence;
(b) for fraud or fraudulent misrepresentation on the part of ZINE; or
(c) for any other liability which cannot be limited or excluded by law.
14.3 Subject to clause 14.2:
(a) ZINE shall not be liable whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution or otherwise for any:
(i) loss of profits;
(ii) loss of business;
(iii) depletion of goodwill or damage to reputation;
(iv) loss or corruption of data or information;
(v) pure economic loss;
(vi) special, indirect or consequential loss,
in each case, however arising under these Terms and Conditions; and
(b) ZINE’s total aggregate liability in contract, tort (including negligence) or breach of statutory duty, misrepresentation, restitution or otherwise, arising under or in connection with the performance or contemplated performance of these Terms and Conditions shall be limited in each calendar year to the greater of: (i) £1,000; and (ii) the total Subscription Fees paid for the use of the Platform during the year in which the claim arose.
15.1 These Terms and Conditions shall, unless otherwise terminated in accordance with these Terms and Conditions or the provisions of an applicable Subscription Agreement , commence on the Effective Date and shall continue in force for the Subscription Term.
15.2 Without affecting any other right or remedy available to it, ZINE may terminate these Terms and Conditions with immediate effect by giving written notice to the Advertiser if:
(a) the Advertiser fails to pay any amount due under these Terms and Conditions on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the Advertiser commits a material breach of any other term of these Terms and Conditions 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;
(c) the Advertiser repeatedly breaches any of the terms of these Terms and Conditions 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 the terms of these Terms and Conditions;
(d) the Advertiser suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(e) the Advertiser commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Advertiser with one or more other companies or the solvent reconstruction of the Advertiser;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that Advertiser other than for the sole purpose of a scheme for a solvent amalgamation of the Advertiser with one or more other companies or the solvent reconstruction of the Advertiser;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Advertiser;
(h) the holder of a qualifying floating charge over the assets of the Advertiser has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the Advertiser or a receiver is appointed over the assets of the Advertiser;
(j) a creditor or encumbrancer of the Advertiser attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Advertiser’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the Advertiser in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2(d) to clause 15.2(j) (inclusive);
(l) the Advertiser suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) there is a change of control of the Advertiser; or
(n) any warranty given by ZINE in clause 8.3 of these Terms and Conditions is found to be untrue or misleading.
15.3 On termination of these Terms and Conditions or an applicable Subscription Agreement for any reason:
(a) all licences granted under these Terms and Conditions and/or an applicable Subscription Agreement shall immediately terminate and the Advertiser shall immediately cease all use of the Platform;
(b) each party shall return and make no further use of any equipment, property, the Platform and other items (and all copies of them) belonging to the other party;
(c) ZINE may destroy or otherwise dispose of any of the Advertiser Data in its possession unless ZINE receives, no later than ten days after the effective date of the termination of these Terms and Conditions, a written request for the delivery to the Advertiser of the then most recent back-up of the Advertiser Data. ZINE shall use reasonable commercial endeavours to deliver the back-up to the Advertiser within 30 days of its receipt of such a written request, provided that the Advertiser has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Advertiser shall pay all reasonable expenses incurred by ZINE in returning or disposing of Advertiser Data; and
(d) 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 shall not be affected or prejudiced.
16 Force majeure
16.1 ZINE shall have no liability to the Advertiser under these Terms and Conditions if it is prevented from or delayed in performing its obligations under these Terms and Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ZINE or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, 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 sub-contractors, provided that the Advertiser is notified of such an event and its expected duration.
16.1 ZINE shall have no liability to the Advertiser under these Terms and Conditions if it is prevented from or delayed in performing its obligations under these Terms and Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ZINE or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, 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 sub-contractors, provided that the Advertiser is notified of such an event and its expected duration.
17.1 If there is an inconsistency between any of the provisions in these Terms and Conditions and an applicable Subscription Agreement, the provisions in the applicable Subscription Agreement shall prevail.
18.1 ZINE reserves the right to change these Terms and Conditions at any time without notice to the Advertiser. The Advertiser should revisit these Terms and Conditions before entering into a Subscription Agreement with ZINE.
18.2 No variation of these Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.1 No failure or delay by ZINE to exercise any right or remedy provided under these Terms and Conditions 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 by ZINE.
20.1 Except as expressly provided in these Terms and Conditions, the rights and remedies provided under these Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision (or part of a provision) of these Terms and Conditions or an applicable Subscription Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
22.1 These Terms and Conditions and any applicable Subscription Agreement constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into these Terms and Conditions it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions or an applicable Subscription Agreement.
22.3 The Advertiser agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms and Conditions.
22.4 Nothing in this clause shall limit or exclude any liability for fraud.
23.1 The Advertiser shall not, without the prior written consent of ZINE, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions or an applicable Subscription Agreement.
23.2 ZINE may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions.
24.1 Nothing in these Terms and Conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25.1 These Terms and Conditions do not confer any rights on any person or party (other than the parties to these Terms and Conditions and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26.1 Any notice required to be given by the Advertiser to ZINE under these Terms and Conditions or an applicable Subscription Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to ZINE at its address set out in these Terms and Conditions, or such other address as may have been notified by that party for such purposes.
26.2 ZINE may use such contact details as the Advertiser has provided to give any notice required under these Terms and Conditions and any applicable Subscription Agreement. In the alternative, ZINE may elect to give any notice required under these Terms and Conditions and any applicable Subscription Agreement by hand delivery, pre-paid first-class post or recorded delivery post to the Advertiser’s registered office address.
26.3 A notice delivered by hand 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 correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice delivered electronically shall be deemed to have been received at the time of transmission.
27.1 These Terms and Conditions and any applicable Subscription Agreement and any dispute or claim arising out of or in connection with either the Terms and Conditions or the Subscription Agreement or their 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.
27.2 These Terms and Conditions and applicable Subscription Agreements are drafted under English law. The Advertiser shall be solely responsible for compliance with any requirements of any local laws to which they are subject and, except where proscribed by law, ZINE does not accept any liability arising from the Advertiser’s failure to consider or notify ZINE of any local law requirements.
28.1 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 these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).