Terms & Conditions

Part A

Background

1. Your Insertion Order(s), along with these Conditions (together the “Contract”), governs your relationship with Bidstack and you in respect of your wish for Ads to be displayed in Games, to be viewed by Consumers and for Bidstack to provide you with the Services (each as defined herein).
2. If there is any conflict between any provision(s) of these Conditions and those of your IO, the provisions contained within the IO shall take precedence in the matter of construction.

Part B

General

1. Definitions
   1. In these Conditions:

   “Ads”	means advertisements, including any applicable advertising materials, other media and/or any other marketing materials displayed in the Game;
   “Applicable Laws”	means any law, statute, statutory instrument, regulation, rule or by-law in force in any jurisdiction in which either party performs its obligations or receives a benefit under the Contract;
   “Associate”	means any entity which is under the same control as the entity concerned, control for this purpose meaning the ability directly or indirectly to exercise or control the exercise of at least one half of all the votes exercisable in general meetings of shareholders or members of the entity (other than on specific matters) or the ability to control the appointment of one half or more of the board of directors or similar governing management body of the entity concerned;
   “Bidstack”	means Bidstack Limited, and/or such Associate(s) of Bidstack as is/are stated on the applicable IO(s);
   “Campaign”	Has the meaning given in clause 2.1 of Part C of these Conditions;
   “Commencement Date”	means the date upon which the Services and/or access to the Platform are provided to you pursuant to the Contract;
   “Confidential Information”	means any non-public information, in whatever form, which is confidential in nature, is designated orally or in writing as confidential, or which may reasonably be considered by a business person to be commercially sensitive, (and for the avoidance of doubt includes any information which is provided by Bidstack or on behalf of Bidstack to you, including (i) the content of these Conditions, (ii) information relating to Bidstack’s clients, customers, suppliers, products, services, finances, operations, processes, SDK, formulae, plans, strategy, know-how, market opportunities, customer lists, commercial relationships, and general business affairs, and (iii) material created by you that contains, or otherwise reflects or is generated or derived from, the information referred to above);
   “Consumers”	means end-users of Games;
   “Contract”	has the meaning given in clause 1 of Part A of these Conditions;
   “Game”	means a computer game in any format or upon any medium;
   “Intellectual Property Rights”	means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, rights in software, semiconductor chip topography rights, the right to sue for passing off, mask works, utility models, domain names and all similar rights and, in each case, (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future, and (v) wherever existing;
   “liability in relation to”	shall mean “liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with”;
   “Insertion Order” or “IO”	means the order form, including any applicable specification, submitted by you to Bidstack for Services;
   “Interest”	means interest (as well after as before judgment) accruing from day to day at that rate which is the then prevailing rate under the Late Payment of Commercial Debts (Interest) Act 1998, compounding monthly;
   “Platform”	means Bidstack’s platform;
   “Price”	means the agreed cost of the Services, as set out in the applicable Insertion Order or as separately agreed in writing by the parties;
   “Privacy Laws”	means the Data Protection Act 2018, the UK General Data Protection Regulation, the European Union General Data Protection Regulation, the California Consumer Privacy Act, Children’s Online Privacy Protection Act, and any other Applicable Law, in any jurisdiction, relating to the collection, processing and sharing of information about consumers by you and anyone on your behalf;
   “Publisher”	means the publisher of a Game;
   “Services”	means those services agreed to be provided to you by Bidstack comprising access to the Platform to submit Ads that you seek to be displayed within available spaces within a Game which have been allotted to Bidstack by the Publisher, and any ancillary services (including Campaign management and arrangement) as set out on the applicable Insertion Order(s);
   “Virus”	means any computer spyware, robot, spider, virus, Trojan horse, logic bomb, worm or other code or programme designed to spy on, furnish unauthorised access to, harm or disrupt any computer, software, device or system or their performance;
   “Working Day”	means a day which is not a Saturday, Sunday or public holiday in London, England;
   “you” or “your”	the advertiser agency and/or advertiser individual and/or affiliate and/or or entity who applied to use our platform and services;

2. Interpretation

   In these Conditions, unless the context requires otherwise:

   1. clause headings shall not affect the interpretation of this Agreement;
   2. a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns;
   3. a reference to “writing” or “written” includes e-mail but not fax;
   4. a reference to one gender includes a reference to all genders;
   5. a reference to the singular includes the plural, and vice versa;
   6. any obligation on a Party not to do something includes an obligation not to allow that thing to be done; and
   7. “including”, “include”, “in particular”, and similar expressions are illustrative and do not limit the sense of the words preceding those terms.

PART C

Advertisements & the Platform

1. Ads
   1. To enable Bidstack to provide the Services to you, you hereby grant Bidstack with a non-exclusive, worldwide, royalty-free license to access, display and otherwise use the Ads in accordance with the provisions of the Contract.
   2. You shall at all times during the continuance of the Contract be and remain solely responsible to Bidstack for:
      1. the Ads; 
      2. any data or information submitted via the Platform and/or for the provision of the Services;
      3. ensuring the accuracy of the terms of any IO;
      4. providing Bidstack with all and any necessary information relating to the Ads or Services as may be required in sufficient time to enable Bidstack to perform the Contract (and if any information changes you shall provide written confirmation of the change promptly and in any event in a timely manner).

      You will defend, indemnify and hold Bidstack harmless in the event of any raised claims by a Publisher, any Consumer(s) and/or any other third parties in relation to the Ads, including in respect of their accuracy and/or their infringing any rights (including Intellectual Property Rights) of any third party.

   3. Subject in any event to (i) these Conditions and (ii) the provisions of the IO(s), Bidstack shall provide the Services and deliver the Ads on your behalf to the relevant Publisher(s) for their inclusion in the Game(s) in accordance with the IO.
   4. You shall obtain in writing in good time and hereby warrants that it has so obtained any and all necessary licences, permits, consents or approvals for the use, copying, production, reproduction or distribution of the Ads or the provision of the Services (including without limitation all necessary copyright, design right, registered design, trade mark, patents and other applicable intellectual property rights, consents, clearances, licences or approvals and any necessary waivers of moral rights) and you will be solely liable for and remain liable for the same and shall defend, hold harmless and indemnify Bidstack and keep it fully and effectively indemnified on demand against any cost, claim, liability or expense Bidstack incurs as a result of any failure or delay so to do.
   5. Bidstack shall not be responsible for any loss, damage, cost or expense arising from, or from any mistake, defect or inaccuracy in, any Ads or other materials or items specified or supplied by you. Any loss, damage, cost or expense arising therefrom shall be for the sole account of you who shall indemnify Bidstack accordingly.
   6. You acknowledge and agree that Bidstack neither endorses not controls any of the Ads, nor shall Bidstack be liable for nor have any obligation to any party in respect of any Ads or the Game(s). You acknowledge and agree that it is your sole responsibility to ensure that all Ads are fully compliant with all Applicable Laws.
   7. You acknowledge, agree and understand that Bidstack has no control over and makes no representations in respect of: 
      1. All and any acts and/or omissions of any Publisher regarding Ads being displayed in the Game; 
      2. (ii) the quality of the Game display; and 
      3. (iii) any third party advertisements being displayed alongside the Ads and/or displayed instead of the Ads

      You shall defend, hold harmless and indemnify Bidstack against all and any claims raised by you, any Publisher(s), any Consumer(s) and/or any other third party in relation to any Ads or any such display of Ads in the Game.

   8. You further acknowledge, agree and understand that Bidstack is in no way liable and/or responsible for any change or deviation from any IO(s) in the event the Publisher chooses differently.
2. The Platform
   1. In providing you the Services, Bidstack may provide you access to the Platform upon which Ads may be submitted for the inclusion in Games for a limited timeframe (“Campaign”);
   2. You acknowledge and agree that you shall at all times:
      1. prevent unauthorised third party access to the Platform; and 
      2. be solely responsible and liable for any third party:
         1. access and/or use of the Platform where you have granted authorised access; and 
         2. acts and omissions;

      You will ensure that any such access and/or use shall at all times be strictly in accordance with these Conditions.

   3. You understand that any breach of the foregoing clause 2.2 of this Part C, without limiting any other rights or remedies available to Bidstack, may result in a permanent cessation of your access to the Platform and/or Services and/or a termination of the Contract without liability to Bidstack.
3. Payments 
   1. You shall pay to Bidstack the fees for the Services (“Price” as more fully particularised in the applicable IO(s)) the subject of each IO in accordance with the IO and this Agreement (and as agreed in writing by the parties from time to time, where appropriate). The Price shall be payable by you in the currency stated in the applicable IO(s).
   2. If you request any alteration of the scope of the Services or any change in dates, quantities or specifications for Services, or if you cause any delay or fail to give Bidstack adequate information or instructions or fails to perform any obligations in the Contract, Bidstack may increase the Price by a reasonable amount to reflect any additional costs (whether internal time or personnel or external expenditure) or expenses incurred by Bidstack by reason of such alteration, change, delay or failure.
   3. In accordance with the terms of the IO, Bidstack shall issue an invoice for the charges payable under this Agreement for the Services in respect of such IO.
   4. Bidstack shall provide you with reporting in terms of the calculation of Price in accordance with the provisions of each IO.
   5. You shall pay each invoice issued pursuant to this Agreement without deduction, set-off or counterclaim net within the credit period from its date of issue (the credit period being that stated in the applicable IO(s) or, if none is so stated, thirty (30) days); payment shall be made by electronic bank transfer to such bank account as Bidstack from time to time specifies and payment shall be deemed made upon its being cleared funds in that account.
   6. If you, for any reason other than default by Bidstack, fail to make any payment on the due date then, without prejudice to any other right or remedy available to Bidstack:
      1. Bidstack shall be entitled to suspend further performance of all or any of the Services and refuse any Insertion Orders until payment is received; and
      2. you shall pay Interest on the amount overdue from its due date for payment until payment is actually made.
   7. If you have a genuine and bona fide reason to dispute any invoice:
      1. You shall notify Bidstack within five (5) Working Days of receipt of such invoice, such notice specifying in reasonable detail the reason for the dispute; 
      2. save for any reasons stated in a notice so given the invoice shall be deemed to be undisputed and agreed by you;
      3. each party shall use its reasonable endeavours in good faith to resolve a dispute concerning any invoice; and
      4. you shall pay the undisputed amount of such invoice in accordance with the credit terms provided for in the Agreement.
   8. All sums payable by you to Bidstack in consideration for the Services are stated exclusive of value added tax, sales tax and any similar tax, each of which shall in any event be paid by you in accordance with applicable tax law and regulations.
4. Term 
   1. The Contract shall enter into force and terminate in accordance with the provisions contained within the applicable IO (and where such IO is silent with respect to such provisions, the Contract shall enter into force upon the IO being duly executed by you, and it can be terminated without cause by either Bidstack or you, upon the expiration of prior written notice, of not fewer than forty-five (45) calendar days, given to the other party). 

Part D

Undertakings, Warranties and Limitations of Liability

1. Warranties and Indemnities
   1. Warranties

      You hereby covenant, warrant and undertake to Bidstack that, on the Commencement Date and thereafter during the continuance of this Agreement as if this clause were repeated daily:

      1. when Services are required in respect of them:
         1. you will own the copyright and other intellectual property in (or otherwise be entitled to reproduce, have reproduced, distribute and have distributed) all content and material, including, for the avoidance of any doubts all Ads and ancillary materials (“Materials”) submitted by you for the supply of Services 
         2. no such Materials will be unlawful, libellous or in any way contravene any requirement of any Applicable Law or code of practice or infringe the rights of any third party;
         3. no such Materials will contain any Virus;
         4. storage, distribution and other dealing by Bidstack and its subcontractors of such Materials and performance of the Services will not be in any respect unlawful or infringe any rights of any third party;
         5. no such Materials have as their direct or indirect objective, or as a direct or indirect objective of any third party, the marketing and/or targeting of the Ads to any persons who have not yet reached the legal age of majority pursuant to Applicable Laws in the applicable jurisdiction(s) in respect of the relevant IO and/or each Campaign; and
      2. you shall be fully responsible for complying with any and all Privacy Laws and any other applicable law relating to the collection, use and sharing of information about Consumers by you and anyone on your behalf.
   2. Indemnities
      1. You undertake with Bidstack that you will indemnify Bidstack and its subcontractors against all claims, damages, losses, costs, liabilities and expenses which any of them may suffer or incur and which would not have been suffered or incurred had the warranties in the preceding clause 1.1 been wholly correct (including in respect of any claim against any of them by a third party which such third party fails to substantiate for any reason).
   3. Suspension of Services
      1. If when and to the extent that it thinks fit, Bidstack may refuse any reject any Materials and suspend or withhold further Services and performance under any Contract which Bidstack reasonably considers relevant to a claim against it for which it is entitled to indemnity under the previous clause 1.2; if it does so Bidstack will not be in breach of contract or otherwise liable by reason of such suspension or cessation.
2. Confidentiality
   1. Each of the parties undertakes with each other party that it will treat Confidential Information of the other party in strict confidence, will not disclose the same to any third party except in confidence to persons who need to know the same for the purposes of or permitted by this Agreement or any other contract between the parties and will not use the same except for any such purpose PROVIDED THAT this undertaking:
      1. shall not apply to information:
         1. which is already in the public domain at the relevant time or which comes into the public domain otherwise than by breach by the receiving party of its obligations under this clause 2
         2. which is received by a party from a third party otherwise than in breach of any confidentiality obligation;
         3. which at the time of receipt from another party was already in the possession of the recipient independently of that party;
         4. which the party generated itself independently of the use of Confidential Information of the other party;
      2. shall not prohibit disclosure which is required by law but if any party is required to make any such disclosure it shall consult with the party whose Confidential Information is required to be disclosed and shall endeavour to cause the disclosure to be made in confidence and to the smallest extent possible; and
      3. shall not prohibit disclosure to the extent appropriate for the purposes of enforcement of this Agreement.
3. Intellectual Property Rights
   1. You hereby acknowledge and agrees that Bidstack owns all Intellectual Property Rights in and to the Platform and the Services and that you shall neither have, nor shall you gain, any ownership or any other right in any of these and/or anything in relation thereto.
4. Limitation of Liability
   1. Nothing in these Conditions or any IO shall limit or exclude any liability of either party which may not be limited or excluded by law, including without limitation liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation;
   2. The total liability of Bidstack for any default under or relating to these Conditions and applicable Contracts or which are the subject of any indemnity (whether in compensation for any breach, under any indemnity or otherwise and whether in contract, tort, for breach of statutory duty or otherwise) in any six (6) month period when added to all liability of Bidstack in respect of all other defaults by it which occurred in the same six (6) month period, shall not in any event exceed a sum equal to the total charges payable by you to Bidstack for Services rendered during such six (6) month period;
   3. The liability of Bidstack in respect of all losses arising from the same IO caused or contributed to by any default under or in relation to this Agreement or which are the subject of any indemnity by Bidstack (whether in compensation for any breach or under any indemnity or otherwise and whether in contract, tort, for breach of statutory duty or otherwise) shall not in any event exceed a sum equal to the total charges payable to Bidstack for Services rendered in respect of such IO; 
   4. Bidstack shall not be responsible for:
      1. any liability in relation to, or from any mistake, defect, Virus, poor quality of or inaccuracy in, any electronic communication, other content, or other materials or items (including for the avoidance of any doubt the Ads) specified or supplied by or on behalf of you; all of the foregoing shall be for the sole account of you, which shall indemnify Bidstack and any applicable sub-contractors against any liability in relation to the same;
      2. any failure to perform, or delay in performing, any Services which is caused or contributed to by a breach by you of its obligations under this Agreement; Bidstack shall be entitled to rely on all information and materials provided by you without verifying the same.
   5. Except under clauses 1-2 (inclusive) of this Part D, no party shall be liable under any Contract (whether in compensation for any breach or pursuant to any indemnity and whether in contract, tort, for breach of statutory duty or otherwise) for any loss of anticipated savings, loss of revenue, loss of data, loss of goodwill or reputation, business interruption, management time, loss of use of any asset or any loss which procedures and precautions implemented by the other party (or which would generally be implemented by a person exercising a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a reasonably and appropriately skilled and experienced person in the same or similar circumstances) could have prevented or reduced, or any special incidental or consequential losses or damages.
5. Force Majeure
   1. No party shall be in breach of these Conditions or any Contract(s) or otherwise liable to the other party by reason only of any delay in performance or the non-performance of any of its obligations hereunder (other than the payment of money) to the extent that the delay or non-performance is due to any circumstances beyond the reasonable control of that party (including without limitation any act of god, war, armed conflict, riot or civil commotion, terrorist act, official or unofficial industrial action or employee dispute, third party injunctive relief, illness of personnel, pandemic (or equivalent national, regional or other health event) failure by suppliers, compliance with any law or government order, rule, regulation or direction, failure or interruption of internet communications or telecommunications, criminal or malicious damage to networks or systems, fire, explosion, flood or storm) (“Force Majeure Event”).

Part E

Miscellaneous

1. Termination For Cause
   1. Bidstack shall be entitled to terminate the Contract forthwith by notice in writing to you if:
      1. you fail to pay to Bidstack any sum when due; or
      2. you fail to remedy any breach or non-performance within ten (10) days of notice from Bidstack so to do;
      3. you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
      4. you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors other than for the sole purpose of a scheme for a solvent amalgamation of you with one or more other companies or your solvent reconstruction;
      5. 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 you; 
      6. a floating charge holder over your assets has become entitled to appoint or has appointed an administrative receiver; 
      7. a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets; or
      8. any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 1.1.3 to clause 1.1.7 (inclusive).
2. Consequences of Termination
   1. Other than as set out in this clause, neither party shall have any further obligation to the other under this Agreement after its termination
   2. The following provisions and clauses shall continue to apply after the termination of this the Conditions: Parts A, B, D and E (in their entirety), and clauses 1.2, 1.4-1.8(inclusive), and 2.2-2.3 (inclusive) of Part C;
   3. Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
3. General
   1. Nothing in these Conditions shall constitute the creation, establishment or relationship of partnership, joint venture or employer and employee between the parties, nor shall it grant any authority in any event to bind the other party.
   2. These Conditions and (as applicable) any Contract(s) constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
   3. Each party acknowledges that in entering into these Conditions and (as applicable) any Contract(s) it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Conditions and no party shall have any claim for innocent or negligent misrepresentation based upon any statement in these Conditions.
   4. If any court or competent authority finds that any provision of these Conditions (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
   5. The Contract shall be governed and construed in all respects in accordance with the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales provided that (and without prejudice thereto) Bidstack shall be entitled to apply for any provision of conservatory measures or interim relief in any other court having jurisdiction.
   6. In the event of a Force Majeure Event, Bidstack may terminate the Contract whereupon you shall pay a sum equal to the costs to Bidstack to date of performing the Contract and Bidstack’s liability shall be limited to repayment of any sums paid for unperformed Services, less such costs.
   7. Bidstack’s rights shall not be prejudiced by any indulgence, forbearance or previous waiver extended to you. You shall not assign, charge, or otherwise dispose of any Contract or any of its rights thereunder without Bidstack’s prior written consent.
   8. All notices or other communications under a Contract shall be in writing in English addressed to the addressee’s registered office or address stated in the Order (or other address notified to the other party) and shall be sent by hand (and thereby be deemed served when properly left at such address) or by first class pre-paid post (and thereby be deemed served 48 hours after posting).
   9. No person who is not a party to the Contract shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract, but this does not affect any right or remedy which is available apart from that Act.
   10. Whenever the due date for payment of any amount under this Agreement is not a Working Day that payment shall instead be due on the next following day which is a Working Day.