11. Acknowledgements, Liability and Indemnities

11.1 Acknowledgements

The Customer acknowledges that:

  • 11.1.1 content held on the Platform may be accessed by the authorised Media Owner to be “taken” rather than delivered. Where Media Owners elect to “take” content, Adstream cannot be held and is not responsible to the Customer or the Media Owner for any failure on the part of such Media Owner to “take” the content and the Customer shall indemnify Adstream against any costs, claims, damages or expenses incurred by or awarded against Adstream as a result of any claim made against Adstream by a third party following or arising out of any such failure.
  • 11.1.2 save as set out in clause 7 Adstream shall not be liable for any failure by the Customer to upload material onto the Platform correctly or which has been uploaded and which fails AutoQC or ManualQC.
  • 11.1.3 complex software can never be completely free from defects, errors and bugs and that (subject to any specific provision to the contrary) Adstream gives no warranty or representation that the Adstream Products will be free from defects, errors and bugs.
  • 11.1.4 software can never be made entirely free from security vulnerabilities and that (subject to any specific provision to the contrary) Adstream gives no warranty or representation that the Adstream Materials or the Platform will be entirely secure.
  • 11.1.5 the Adstream Materials and Platform are only compatible with that software and those systems specified by Adstream from time to time and that Adstream does not warrant or represent that the Adstream Materials or Platfom will be compatible with any other software or systems;
  • 11.1.6 the Internet is not a completely secure medium of communication;
  • 11.1.7 the speed and upload capability of the Adstream Materials and Platform available online is determined by the quality of the Internet connection from where such Adstream Materials and Platform are accessed;
  • 11.1.8 use of Adstream Materials and Platform and the availability of the Adstream Site may involve reliance on third party data carriers over which Adstream has no control; and
  • 11.1.9 except as expressly provided in this Agreement and to the extent permitted by law, Adstream does not make any warranties of any kind, whether express or implied in relation to goods or services supplied by Adstream in accordance with this Agreement (including the Adstream Materials and Platform).

11.2 Limitation of liability

  • 11.2.1 If Adstream fails to meet any of the Service Levels the Customer’s sole remedy will be to receive Service Credits;
  • 11.2.2 If any statute implies any term into Customer’s use of, or any arrangement arising out of Customer’s use of the Adstream Platform and that statute prohibits exclusion of that term, then that term is included. However, if and to the extent permitted by the statute, Adstream’s liability for any breach of such term is limited to the re-supply of the Adstream Platform.

11.3 Exclusion of indirect loss

Adstream are not liable for any indirect or consequential loss or damage, lost profits, lost revenue, lost data or business interruption suffered or incurred by Customer or any other person arising out of or in connection with the provision of the Adstream Products, whether arising from breach of contract or in tort.

11.4 Exclusion of specific liability Adstream are not liable to Customer or any other person for any loss or damage arising out of or in connection with:

  • 11.4.1 any person gaining unauthorised access to the Adstream Site or any user zone;
  • 11.4.2 any malfunction, bugs or viruses in customer equipment, software or links as a result of using Adstream Products;
  • 11.4.3 use or disclosure of any data obtained by any third party as a result of the unauthorised access to the Adstream Site or having intercepted any data as it passes between Customer, Adstream or any third party;
  • 11.4.4 defects in or the unsuitability of any materials supplied by Customer or a third party or by Adstream’s adherence to specific instructions given by Customer;
  • 11.4.5 any data sent via the Internet, via or to Adstream, or via any dedicated link made available by Adstream to Customer or to any third party;
  • 11.4.6 the unavailability of the Adstream Site;
  • 11.4.7 Customer’s inability to access the Adstream Site or to use the Adstream Site or the Adstream Materials and Platform; or
  • 11.4.8 any delay in the receipt of any data transmitted by Adstream or using any of the Adstream Materials and Platform (save where such delay is the result of Adstream’s own negligence).

11.5 Liability cap

Subject to clause 11.6 of this Agreement, Adstream’s liability for any loss or damage (whether arising from breach of contract or in tort) which is not excluded or limited by clauses 11.2, 11.3 or 11.4 of this Agreement is limited in aggregate to the lower of the amount of Fees paid by Customer and US$500,000

11.6 Nothing in this Agreement excludes Adstream’s liability:

  • 11.6.1 for death or personal injury caused by Adstream’s negligence; or
  • 11.6.2 for fraud or fraudulent misrepresentation; or
  • 11.6.3 any other liability which cannot be excluded by law.

11.7 Liability for non-transmission

Subject to clause 11.1.1, if Customer uses the Adstream Platform in the transmission of any material and the material is not transmitted, Adstream will (at Customer’s option):

  • 11.7.1 arrange retransmission of the material; or
  • 11.7.2 refund any licence or service fee paid to Adstream in respect of that particular transmission.

If Customer uses t7he Platform in the transmission of any material and the material is not transmitted and Customer incurs direct costs with a Broadcaster which it is unable to recover following that non-transmission, Adstream shall reimburse Customer in an amount equal to such direct costs. Customer agrees this is Adstream’s entire liability to Customer in such circumstances.

11.8 Adstream shall accept liability for reasonably foreseeable losses arising as a direct result of breach by Adstream of Adstream’s statutory duty. However Adstream shall not be liable where the causes or potential causes of the loss:

  • 11.8.1 arose from the use of the Services for purposes other than for the Purpose;
  • 11.8.2 were reasonably foreseeable and preventable by the Customer such as those arising from, but not limited to:
    • a) virus damage; or
    • b) user inflicted problems such as those caused by failure to read and/or follow user instructions provided in writing or orally by one of Adstream’s technicians.

11.9 If Adstream’s performance of our obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its affiliates, agents, subcontractors, consultants or employees, or Users it shall not be liable for any costs, liabilities, charges or losses sustained or incurred by the Customer or its affiliates that arise directly or indirectly from such prevention or delay.

11.10 Customer must indemnify Adstream (“indemnified party”) against all claims, liability, loss and damage of any kind whatsoever suffered or incurred by an indemnified party arising out of or in connection with Customer’s act or omission or any breach by Customer of this Agreement. Customer must provide the indemnified party with prompt notice of any third-party claim or threatened third party claim of which Customer has knowledge. Customer must not enter into any settlement or compromise of any third-party claim without the indemnified party’s prior written consent.

Contents{/a}
Definitions{/a}
1. Interpretation{/a}
2. Overriding Provisions{/a}
3. Access to the Services{/a}
4. Payment of Charges, VAT & Withholding Taxes{/a}
5. Warranties{/a}
6. Confidentiality{/a}
7. Customer Data and Information Security{/a}
8. Intellectual Property{/a}
9. Term And Termination{/a}
10. Consequences of Termination and Expiry{/a}
11. Acknowledgements, Liability and Indemnities{/a}
12. Force Majeure{/a}
13. Data Protection{/a}
14. Transfer and Sub-Contracting{/a}
15. The Contracts (Rights of Third Parties) Act 1999{/a}
16. Dispute Resolution{/a}
17. Waiver and Severability{/a}
18. Previous Terms and Conditions{/a}
19. Entire Agreement and Variation{/a}
20. Notices{/a}
21. Youtube{/a}
22. Law and Jurisdiction{/a}

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