These terms and conditions apply between you and the Alkimi Group (hereinafter each referred to as a “party”). You should review these terms carefully as they create legal obligations between you and the Alkimi Group. You should consider obtaining independent legal advice before agreeing to be bound by these terms and conditions.

1. DEFINITIONS AND INTERPRETATION

   1. In these terms and conditions the definitions set out in Appendix 1 shall apply unless the context requires otherwise:
   2. In this Agreement:
      1. headings are included for convenience only and do not affect the construction or interpretation of this Agreement;
      2. any reference to a clause (unless expressly provided otherwise) will be a reference to a clause of this Agreement. The Order Form shall have the same force and effect as if set out in the body of these terms and conditions;
      3. any reference to the singular includes the plural and vice versa and any reference to one gender includes all genders including the neuter gender;
      4. any reference to a person will, unless the context otherwise requires, include individuals, partnerships, companies and all other legal persons;
      5. the words include, includes, including and included and similar words and expressions will be construed without limitation unless inconsistent with the context;
      6. if there is any conflict as to the Order Form and these terms and conditions, the terms of the Order Form shall prevail; and
      7. any reference in this Agreement to law or to any statute, statutory instrument, directive, regulation, order or other enactment mean the same as may be amended, enacted, replaced, extended, modified, consolidated or repealed from time to time.

2. THE SERVICE

   1. With effect from the Commencement Date, Alkimi shall make the Service available to the Publisher during the Term in accordance with the terms of this Agreement.
   2. Alkimi gives no guarantee and accepts no liability for any Ad Impression made available by a Media Buyer through the Service.
   3. Publisher will send a Bid Request to the Alkimi Platform and the Alkimi Platform will provide the Bid Request to potential Media Buyers.
   4. Media Buyers will submit a Bid Response to the Bid Request and the Alkimi Platform will select the Winning Bid.
   5. The Ad Impression will be injected to the Publisher Media. If the Publisher uses:
      1. client-side integration, the auction elements of the Alkimi Platform reside on the Publisher Media. Publisher operated digital assets manage the entire auction including requests for Ad Inventory, the received bids and choosing the Winning Bid. The Alkimi Platform will then facilitate the delivery of the Ad Impression directly from the Media Buyer to the Publisher Media; or
      2. server-side integration, the auction is run from a dedicated server hosted by Alkimi. A Media Buyer submits a request to the server which shall then execute the remote auction and choose the Winning Bid. The Alkimi Platform will deliver the Ad Impression that is received from the Media Buyer to the Publisher Media.
   6. Alkimi may from time to time make changes to the Service, including to improve its functionality and enable it to add new features and fix errors. Alkimi aims to minimise any disruption caused as a result of the implementation of such change.

3. REPORTING

   1. Publisher shall receive monthly financial reporting including, but not limited to, the delivery of Ad Inventory and Winning Bids via the Alkimi Platform.
   2. Subject to clause 3.3 below, the reports will be the sole basis for determining the Net Revenue and any Publisher Service Fees. In the event of a discrepancy between Alkimi’s reporting and Publisher reporting, Alkimi’s reporting shall prevail.
   3. If the discrepancy between Alkimi’s reporting and Publisher reporting is greater than 10% then the parties agree to cooperate reasonably with the other party to resolve the discrepancy and determine the correct amount of Net Revenue and any Publisher Service Fees.

4. PUBLISHER OBLIGATIONS

   1. Publisher shall only use the Service:
      1. in accordance with this Agreement and for the purpose of making Ad Inventory available to Media Buyers;
      2. in good faith and in the manner in which is intended; and
      3. in accordance with all laws and regulations.
   2. Publisher shall, in obtaining the Services, comply with all codes of practice relevant to the Service.
   3. Publisher shall immediately notify Alkimi if it believes or suspects that the terms of this Agreement have been breached.
   4. If Alkimi reasonably believes that Publisher is not complying with its obligations in this Agreement, Alkimi may immediately suspend (without notice) Publisher’s access to the Service. Promptly following such suspension Alkimi shall notify Publisher of the suspension, the reason for the suspension and how the Publisher can rectify the problem so that access to the Service can be restored.

5. MUTUAL REPRESENTATIONS AND WARRANTIES

   1. Both Parties warrants and represents that during the Term they shall not use or provide the Service (or procure or allow the Service to be used or provided):
      1. in any way that breaches any applicable local, code of practice, national or international law or regulation;
      2. in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect, including by artificially inflating traffic statistics for Ad Inventory either via use of “bots,” pay-to-click programs or other fraudulent traffic;
      3. in any way that may damage the other party’s reputation or that of the Service;
      4. to sell any Ad Inventory or allow any Publisher Media to include any material which:
         1. is inaccurate;
         2. contains any personal data which Publisher is not permitted by law to include;
         3. expresses an opinion which is not genuinely held;
         4. contains any material which is defamatory or derogatory of any person;
         5. contains any material which is obscene, offensive, hateful or inflammatory;
         6. promotes sexually explicit material, violence, any illegal activity or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
         7. infringes any copyright, database right or trade mark of any third party;
         8. is likely to deceive any person;
         9. is made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
         10. contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware, or to attack the Service or a user’s device;
         11. is threatening, abusive or invade another’s privacy, causes annoyance, inconvenience or needless anxiety, is likely to harass, upset, embarrass, alarm or annoy any other person; and/or
         12. advocates, promotes or assists any unlawful act such as (by way of example only) copyright infringement.
   2. The Parties represent and warrant that they have all rights, permissions and authority required to provide the Services and sell Ad Inventory via the Service.

6. PUBLISHER’S REPRESENTATIONS AND WARRANTIES

   1. Publisher represents and warrants it will use best endeavours to ensure that it will deploy the required technology on the Publisher Media to allow integration with the Alkimi Platform (the “Technology”). Any alterations to the Technology shall only be permitted with the prior written consent of Alkimi.
   2. Publisher must not deploy the Technology on any asset other than authorised Publisher Media. If Publisher wishes to revise the list of authorised Publisher Media, it must notify Alkimi accordingly and Alkimi may determine whether or not to approve such change in its absolute discretion.
   3. Publisher represents and warrants that all Publisher Media is either: (i) owned and controlled by Publisher; or (ii) media that Publisher is contractually entitled to sell Ad Impressions on.
   4. Publisher is solely responsible for:
      1. all content and material available on the Publisher Media including, but not limited to ensuring that any such content does not infringe any Intellectual Property Rights or other rights of a third party; and
      2. ensuring all Bid Requests contain accurate information and tags.
   5. Publisher hereby agrees to fully indemnify and hold Alkimi and the Alkimi Group harmless from and against any and all losses, damages, claims, costs and expenses (including legal expenses) suffered or incurred by or awarded against any member of the Alkimi Group as a result of or in connection with any breach of this Agreement.
   6. Without prejudice to any other rights or remedies Alkimi may have, if Publisher fails to comply with any of the provisions of clauses 5 or 6, Alkimi may at its sole and absolute discretion:
      1. cancel any Net Revenue which would otherwise be due to Publisher in respect of any Winning Bids which were affected in any way by the non-compliance; and
      2. make ex gratia payments to any Media Buyer which it reasonably believes has been affected by the non-compliance and recover such payments under clause 6.5.

7. ALKIMI’S REPRESENTATIONS AND WARRANTIES

   1. By the nature of the Alkimi Platform, Alkimi cannot warrant that the Service will be entirely error free. Alkimi shall use its reasonable endeavours to remedy any errors reported by Publisher as soon practicable following such report.
   2. Alkimi will use reasonable efforts to ensure no “malicious code” is introduced into the Publisher Media, but it is impossible for Alkimi to identify all vulnerabilities, particularly where such vulnerabilities are not yet known to the security industry.
   3. Alkimi makes no representation or warranty as to the benefit of any Ad Impression or as to the benefit or revenues that Publisher will obtain from its use of the Service.
   4. Alkimi will not be liable to Publisher for any advertising that a Media Buyer may make available to Publisher through the Alkimi Platform.

8. REVENUE

   1. Alkimi shall pay Publisher the Net Revenue, less any Publisher Service Fees, detailed in the financial reporting for all Ad Inventory purchased via the Service in each Month.
   2. Publisher shall render an invoice to Alkimi in respect of the amount detailed in the monthly financial reporting for the previous Month and shall send this to Publisher.invoices@alkimiexchange.com . Alkimi shall pay to Publisher the amount due within 60 days of the date of receipt of an invoice.
   3. Publisher shall be entitled to simple interest on undisputed overdue sums at the rate of two percent (2%) per annum above the base lending rate for the time being of Barclays Bank plc. Once an undisputed sum becomes overdue such that interest becomes payable, Publisher shall give Alkimi not less than 10 days’ written notice of its intention to charge interest before imposing the charge.
   4. Alkimi has the right to withhold payment or set off any future invoices from Publisher for:
      1. amounts previously paid by Alkimi to Publisher that were not subsequently paid by a Media Buyer; and
      2. amounts previously paid by Alkimi to Publisher that are subsequently deemed by Media Buyers to be the result of fraudulent, unusable or invalid traffic technology.
   5. Publisher shall not be entitled to set-off any amounts owed to Alkimi unless the claim has been found to be valid by a final court ruling.
   6. All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which Alkimi shall be responsible where applicable.
   7. Alkimi may suspend the provision of any of its obligations to make payment to the Publisher if Alkimi is required (or reasonably believes it may be required) to refund or credit a Media Buyer in connection with any non-compliance with clauses 5 or 6.

9. CONFIDENTIALITY AND DATA PRIVACY

   1. These terms and conditions include our confidentiality and data privacy policy, which can be found here

10. INTELLECTUAL PROPERTY

    1. All rights, title and interest (including Intellectual Property Rights) in the Service, as between Alkimi and the Publisher, belong to Alkimi, and nothing in these terms shall operate to transfer any such rights to Publisher.
    2. All rights, title and interest (including Intellectual Property Rights) in Publisher Media shall, as between Alkimi and the Publisher, belong to Publisher, and nothing in these terms shall operate to transfer any such rights to Alkimi.
    3. Publisher is entitled to use the Service as described in these terms and to use any report generated for the purposes of identifying the Net Revenue and Publisher Service Fees payable and measuring the delivery of Ad Inventory and Ad Impressions.
    4. Subject to clause 10.5, Alkimi will indemnify, keep indemnified and hold the Publisher harmless from and against any and all losses, damages, claims, costs and expenses (including legal expenses) suffered or incurred by or awarded against the Publisher as a result of or in connection with any claim that use of the Service in accordance with these terms infringes the Intellectual Property Rights of any third party subsisting in the United Kingdom (a “Claim”).
    5. TThe Publisher shall:
       1. give Alkimi written notice of any Claim;
       2. allow Alkimi to assume control of the negotiation, defence and settlement of any Claim and not make any admissions or compromise in relation to the same; and
       3. at Alkimi’s expense, give Alkimi such assistance as Alkimi may reasonably require in the negotiation, defence, settlement or compromise of each Claim.
    6. Without prejudice to clause 10.4, where Alkimi becomes aware of any claim or potential claim that the Service infringes any Intellectual Property Rights of any third party, Alkimi may at its option:
       1. suspend access to the Service (or the affected part), and withdraw the Reporting (or the affected part);
       2. modify the Service to remedy the infringement; and/or
       3. terminate this Agreement.
    7. Nothing in this Agreement shall give Publisher any right to use Alkimi of the Alkimi Group’s name, logo and any other trade mark or branding without the prior written consent of Alkimi.

11. LIABILITY

    1. Subject to clause 11.6, Alkimi’s total aggregate liability in respect of all causes of action arising out of or in connection with this Agreement in any Year (whether for breach of contract, strict liability, tort (including negligence), misrepresentation or otherwise) will not exceed the total Publisher Service Fees paid under the Agreement during that Year. For the purposes of this clause 11.1, any causes of action arising after the termination of this Agreement will be treated as having occurred immediately preceding the termination of this Agreement.
    2. Subject to clause 11.6, Alkimi shall not be liable to Publisher for:
       1. loss of profits, revenues or contracts, lost savings, business interruptions, loss of goodwill or reputation, wasted expenditure or loss or corruption of data (in each case whether arising directly or indirectly and whether it is known, foreseen or foreseeable); or
       2. indirect, incidental, special, punitive or consequential loss or damage.
    3. Each party shall take all reasonable steps to mitigate any loss and damage it incurs in relation to any claim or action, whether for tortious act or omission including negligence, breach of contract, misrepresentation or otherwise, which it brings against the other.
    4. The parties agree that should any limitation or provision contained in this clause 11 be held to be invalid under any applicable statute or rule of law, that limitation or provision shall to that extent be deemed to be omitted and that if any party becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out in this Agreement.
    5. Neither party will be liable for any delay in or failure to comply with its obligations to the extent that the failure results from the matters outside its direct control.
    6. Neither party excludes or limits its liability for breach of Data Protection laws and regulations death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, for any other loss or damage the exclusion or limitation of which is prohibited by English law.
    7. Nothing in this Agreement shall limit or exclude Publisher’s liability in respect of any indemnity given under this Agreement.

12. DURATION AND TERMINATION

    1. This Agreement shall have effect on the Commencement Date.
    2. This Agreement shall continue in effect for the Initial Term and shall thereafter automatically renew for successive Renewal Terms, unless either party gives the other at least 30 days written notice that it does not wish this Agreement to renew.
    3. Either party may terminate this Agreement immediately on written notice if:
       1. the other commits an irremediable breach of any of this Agreement, persistently commits remediable breaches or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same;
       2. either party reasonably believes the other party is in breach of clause 5.1.2; or
       3. there is a change of control of either party (within the meaning of section 1124 of the Corporation Tax Act 2010) and the other party has not provided its prior written consent to such change of control.
    4. Without prejudice to its other rights or remedies, either party may terminate this Agreement immediately by written notice to the other if either party experiences an Insolvency Event.
    5. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

13. FORCE MAJEURE

    1. Subject to clause 13.2, a party (“Affected Party”) shall not be liable to the other party for any delay or non-performance of its obligations under this Agreement to the extent to which that delay or non-performance arises from a Force Majeure Event.
    2. So long as the Affected Party promptly notifies the other party in writing of the cause of the delay or non-performance and the likely duration of the delay or non-performance, and so long as the Affected Party uses its reasonable endeavours to limit the effect of that delay or non-performance on the other party, to the extent the performance of the Affected Party's obligations is affected by the Force Majeure Event, those obligations shall be suspended while the Force Majeure Event continues. If performance is not resumed within 14 days (or such other period as is agreed between the parties) after that notice, the other party may terminate the affected Services immediately by written notice to the Affected Party.
    3. The provisions of this clause 13 shall survive the termination of this Agreement.

14. NOTICES

    1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
    2. delivered by hand or by post or other delivery service at its address set out in the Order Form or to such other address as it has notified as being its address for service; or
       1. sent by email to (in the case of Alkimi to legal@alkimiexchange.com and in the case of the Publisher to the address first written in the Order Form or to such other address as it has subsequently notified as being its email address for service).
    3. Any notice shall be deemed to have been received when actually received or, if sent by post, when returned through the postal service despite having been properly addressed and, if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
    4. This clause 14 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15. VARIATION

    1. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16. ASSIGNMENT

    1. Neither party may assign, transfer, sub-contract or otherwise part with the Agreement or any right or obligation under it without the prior written consent of the other save that either party may assign this Agreement to an Affiliate provided they give written notice of any such assignment to the other party.

17. GENERAL

    1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges and accepts that, in entering into this Agreement, it has not relied upon any representation, undertaking or promise except as set out in this Agreement.
    2. Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
    3. The failure or delay of either party to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to this Agreement does not constitute and will not be construed as a waiver of that term or right, remedy, power or privilege and will in no way affect either party's right later to enforce or exercise it, nor will any single or partial exercise of any right, remedy, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
    4. The invalidity or unenforceability of any provision of or any part of a provision of or any right arising pursuant to this Agreement will not in any way affect the remaining provisions or rights, which will be construed as if that invalid or unenforceable part did not exist.
    5. This Agreement may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute the one agreement. No counterpart will be effective until each party has executed at least one counterpart.
    6. Nothing in this Agreement will confer any rights upon any person who is not a party to it, whether under the Contracts (Rights of Third Parties) Act 1999, or otherwise.
    7. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

18. GOVERNING LAW

    1. This Agreement (including any associated non-contractual disputes or claims) is governed by English law and the parties hereby accept the exclusive jurisdiction of the English courts in relation to any dispute arising under or in connection with this Agreement.

Appendix 1

Defined Terms

In these terms and conditions, where the context so admits, the following definitions and rules of construction shall apply

“Ad Inventory” the digital advertising units that Publisher has available for purchase by Media Buyers;

“Ad Impression” the delivery of the advertising from the Media Buyer with the Winning Bid to the relevant Ad Inventory on the Publisher Media;

“Affiliate” means any corporation or other legal entity that a party now or hereafter Controls, is Controlled by or is under common Control with a party; where “Control” means the direct or indirect ownership of more than fifty percent (>50%) of the shares or similar interests entitled to vote for the election of directors or other persons performing similar functions;

“Agreement” this Publisher Agreement comprising the Order Form and these Terms and Conditions;

“Alkimi” Alchemy Exchange Limited (registered number 13237946), a company registered in England and Wales, whose registered office is at 19 Willow Street, London EC2A 4BH;

“Alkimi Group” means Alkimi and its Affiliates;

“Alkimi Platform” the Alkimi ad exchange platform used to facilitate an auction of Ad Inventory;

“Bid Request” the Publisher’s invitation to sell Ad Inventory to Media Buyers indicating the desired price;

“Bid Response” the bid price and ad markup from a Media Buyer willing to purchase Ad Inventory;

“Commencement Date” the date specified as the “Commencement Date” in the Order Form;

“Force Majeure Event” an event beyond the reasonable control of a party including: an act of God, governmental intervention, war, fire, flood, explosion, civil commotion, armed hostilities, act of terrorism, revolution, blockade, embargo, strike, lock-out, sit-in, industrial or trade dispute to the extent to which those things do not involve employees of the party claiming relief, seriously adverse weather, disease or the act or intervention of a competent judicial or regulatory authority;

“Gross Revenue” the total of all Winning Bids submitted by Media Buyers for the Ad Inventory;

“Initial Term” a period of 12 months with effect from the Commencement Date;

“Insolvency Event” an order being made or a resolution being passed for the winding up of a party or circumstances arising which entitle a court of competent jurisdiction to make a winding-up order of a party or an order being made for the appointment of an administrator to manage the affairs, business and property of a party or documents being filed with a court of competent jurisdiction for the appointment of an administrator of a party or notice of intention to appoint an administrator being given by a party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of schedule B1 to the Insolvency Act 1986), or a receiver being appointed of a party’s assets or undertaking, or circumstances arising which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of a party, or any other person taking possession of or selling a party’s assets, or a party making any arrangement or composition with its creditors or making an application to a court of competent jurisdiction for the protection of its creditors in any way, or a party ceasing to trade or a party taking or experiencing any similar action in any jurisdiction in consequence of debt;

“Intellectual Property Rights” (a) copyright, database rights, patents, rights in trade marks, designs (in each of the last two cases, whether registered or unregistered), knowhow and confidential information; (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection, in the case of each of (a), (b) or (c) which is existing in the United Kingdom;

“Media Buyer” any party engaged in purchasing Ad Inventory;

“Month” the period beginning on and including the first of each calendar month and ending on and including the last day of such calendar month;

“Net Revenue” the Gross Revenue minus any fee charged by Alkimi to the Media Buyer;

“Order Form” the order document, completed and executed by both parties;

“Publisher” the publisher legal entity set out in the Order Form;

“Publisher Media” the digital assets set out in the Order Form;

“Publisher Service Fee” the fee specified as the “Publisher Service Fee” in the Order Form, calculated as a percentage of the Gross Revenue (unless otherwise stated);

“Renewal Term” each consecutive period of 1 month following the expiry of the Initial Term and beginning on the anniversary of the Commencement Date;

“Service” the Publisher’s use of the Alkimi Platform in accordance with these terms, which includes access to reporting and Support as described in more detail in these terms;

“Support” access to the online help desk and any technical support provided by the Alkimi Group to the Publisher;

“Term” the Initial Term or any Renewal Term (where the Initial Term is subject to renewal under clause 12.1);

“VAT” value added tax chargeable in accordance with the Value Added Tax Act 1994 and any tax of a similar nature which may be substituted for or levied in addition to it; and

“Winning Bid” the highest bid from a Media Buyer for Ad Inventory; and

“Year” the 12 month period beginning on and including the Commencement Date and each subsequent period beginning on an anniversary of the Commencement Date.