Terms & Conditions

Background

Pubguard has developed a technology to review digital display adverts served on mobile device applications (the “Pubguard Technology”).
The Pubguard Technology analyses the content, context and composition of the displayed adverts, subsequent server calls and landing pages. Adverts are analysed to identify threats to publishers, users and trends in coverage.
Pubguard flags adverts that are defined as inappropriate or that do not adhere to advertising industry standards.
These Terms govern your relationship with Pubguard in respect of the Pubguard Technology and the Services (defined below).

Definitions

In these Terms:

“Applicable Law”	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 Agreement;
“Company” or “you”	Means the entity or undertaking that is purchasing the Services and/or utilising the Pubguard Technology;
“Company Data”	Means any of the data and/or databases owned by the Company and provided to Pubguard in connection with these Terms but for the avoidance of any doubt excluding any Pubguard Data;
“Company Materials”	Means any of the items provided to Pubguard by the Company in connection with these Terms and includes Company Data;
“Confidential Information”	Means any information of a private confidential nature of any of the parties relating to its business or affairs, including without limitation information concerning customers, including the terms of these Terms and contracts entered into pursuant to these Terms; all know-how and other information relating to Pubguard’s systems, Intellectual Property Rights, and processes for providing the Services shall be Confidential Information of Pubguard;
“Intellectual Property Rights”	Means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, utility models, domain names and all similar rights and, in each case: whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; and wherever existing;
“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;
“Permitted Purpose”	Means the internal business purposes solely of the Company and not, in any event, (for the avoidance of any doubt) for the provision of any bureau services to any third parties or purposes of promoting, marketing or advertising (or similar activities), either directly or indirectly, any products or services other than Company’s own products or services;
“Pubguard”	Means Minimised Media Limited (t/a Pubguard), a company incorporated in England & Wales with company registration number 9487194, whose registered office address is at 201 Temple Chambers, 3-7 Temple Avenue, London EC4Y 0DT;
“Pubguard Data”	Means any of the data and/or databases supplied by Pubguard to the Company in connection with these Terms but excluding the Company Data;
“Pubguard Materials”	Means computer programs, works of authorship, know-how, inventions, processes, data, technical specifications, information and tables, and all improvements, derivative works, updates, fixes, and new releases thereof, which are used by Pubguard to provide the Services;
“Territory”	Means the United Kingdom and any other countries agreed to by the parties in writing from time to time; and
“Virus”	Means any computer virus, Trojan horse, logic bomb, worm or other code or programme designed to harm or disrupt any computer, software or system or their performance;
“Working Day”	Means a day which is not a Saturday, Sunday or public holiday in London, England;
“Year of these Terms”	Means a period of twelve months commencing on the Commencement Date or upon an anniversary thereof and “Half-Year” is one half of a Year of these Terms

In these Terms:
1. clause headings shall be ignored in interpretation;
2. each gender includes each other gender and the singular the plural and vice versa;
3. references to clauses, recitals and schedules are of or to the same in these Terms unless otherwise stated;
4. unless otherwise stated references to time are to that local time in the place where the event or matter which is to be done or occur at or by that time is to be done or occur;
5. provisions shall be interpreted without any presumption against the party which drafted or put forward those provisions;
6. if there is any inconsistency between the provisions of the main body of these Terms and any schedule, the provisions of the provisions of the Schedule shall prevail

Services

In consideration of the payment of the fees as agreed in writing between the parties from time to time (the “Fees”) in accordance with the terms of clause 5, Pubguard will provide to Company the set-up services, comprising integration and access management and ancillary services and ongoing services as confirmed in writing by Pubguard from time to time (“Services”).

License

Pubguard grants the Company a non-exclusive, non-transferable license to use any Pubguard Data and/or Pubguard Materials provided as part of the Services in the Territory for the Permitted Purpose on the license terms identified in Part B of the Schedule. Company shall provide Pubguard with advance notice of any new territories it plans to provide the Services in and the parties shall discuss in good faith the possible extension of the Services to such new territories.

Company Obligations

The Company grants Pubguard:
1. A royalty-free, non-exclusive, non-transferable limited right and license to use all and any Company Data which is provided to Pubguard or input into any of Pubguard’s databases under or in accordance with the terms of these Terms for (i) the purpose of fulfilling its obligations under these Terms and/or in order for Pubguard to comply with any requests made to Pubguard under statute and/or (ii) for the purpose to improve, enhance and develop its products and services; and
2. subject to Clause 4.1.1 for the Term, a royalty free, non-exclusive and non-transferable license to copy and use any Company Materials for the sole purpose of fulfilling its obligations under these Terms. Company reserves all rights in and to all Company Data and nothing contained in these Terms shall be construed as conveying any other rights or licenses in the Company Data, by implication, estoppel or otherwise.
The Company agrees that it will:
1. use all reasonable endeavours to ensure that any information provided to Pubguard including the Company Data is complete, accurate and in the agreed format;
2. use the Services, Pubguard Data and/or Pubguard Materials for the Permitted Purpose only and in accordance with any Documentation;
3. not sell, transfer, sublicense, distribute, commercially exploit or otherwise make available to, or use for the benefit of, any third party any of the Services, Pubguard Data and/or Pubguard Materials;
4. not (and will not allow any third party to) adapt, alter, modify, reverse engineer, de-compile or otherwise interfere with the Pubguard Data and/or Pubguard Materials without the prior written consent of Pubguard or as otherwise permitted by law;
5. only take such copies of the Pubguard Data and/or Pubguard Materials as are reasonably required for the use of the Pubguard Data and/or Pubguard Materials in accordance with these Terms;
6. upon termination of these Terms delete all Pubguard Data from its servers, files and any and all other databases owned or controlled by Company;

Provision of the Services

Pubguard undertakes with the Company that it shall perform the Services with all reasonable care and skill and in accordance with all applicable laws and good industry practices.
Company’s sole and exclusive remedy for a breach of the undertaking in clause 9.1 will be for Pubguard to correct or, where more appropriate, re-perform the Services to comply with such undertaking.
Save as provided in these Terms, no representations, warranties or other terms, express or implied, statutory or otherwise, including as to condition, quality, performance, or fitness for purpose are given or assumed by Pubguard in respect of the Services, and all those representations, warranties and terms are excluded save to the extent that any exclusion is prohibited by applicable law. Furthermore, the Company acknowledges that the Services are not intended to be used as the sole basis for any business decision and are based upon data which is provided by third parties, the accuracy and/or completeness of which Pubguard does not guarantee. Pubguard is therefore not able to accept any liability for any inaccuracy, incompleteness or other error in the Pubguard Data or for any failure of the Services to achieve any particular result for the Company.

Fees and Payment Terms

Fees payable are set out in Part B of the Schedule. All sums referred to in these Terms are exclusive of VAT.
The License Fees for the Ongoing Services shall be invoiced by Pubguard at the end of each calendar month.
All invoices relating to the Monthly Data Enrichment Fees are payable in cleared funds within thirty (30) days of the date of the invoice (“Due Date”). If any sum payable by the Company to Pubguard is not paid by the Due Date, Pubguard shall be entitled to charge (and where so charged, the Company shall pay).
Company will be responsible for payment of any taxes (including VAT or other relevant transaction taxes), however designated, levied or based on Company’s receipt of the Services hereunder.
Pubguard shall provide to the Company a valid VAT invoice in accordance with the scans, report and the fees set out in Part B of the Schedule.

Compliance and Privacy

Each party shall in connection with the provision or use of the Services (as appropriate) comply with all Applicable Laws.
Neither party shall provide the other party with any personally identifiable information.
Each party warrants that it shall take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, the personal data of the other party.
If, as a result of any changes in any Applicable Laws (including any reasonable interpretation thereof), Pubguard considers, in its reasonable opinion, that it is no longer desirable or commercially viable for Pubguard to continue to provide the Services at all or in accordance with these Terms, or if any third party data or software becomes unavailable to Pubguard, Pubguard may at its sole discretion, and upon two (2) months’ prior written notice to the Company either:
1. modify the affected Services as necessary to accommodate such changes or unavailability; or
2. terminate these Terms without any liability to the Company in respect of those Services which are affected by such changes or unavailability.
3. If as a result of any changes in the availability, legalities or methodology of obtaining data critical to the operations of Pubguard’ Services from either Google Inc. (“Google”) and/or Apple Inc. (“Apple”) leads to an unavailability of or the non-ability to provide the Services, Company may at its discretion immediately terminate these Terms without any liability to the Company with the exception of the payment for the months’ service in which the contract was terminated.
PROPRIETARY RIGHTS
1. Intellectual Property Rights in the Pubguard Materials, the Pubguard Data and the Services will remain vested in Pubguard (or, as applicable, its relevant licensors) and to the extent that any rights in such materials and data vest in the Company by operation of law, the Company hereby assigns all and any such rights to Pubguard.
2. All Intellectual Property Rights in the Company Materials will remain vested in the Company (or its relevant licensors) and to the extent that any rights in such materials vest in Pubguard by operation of law, Pubguard hereby assigns all and any such rights to the Company.
3. Each party:
  1. acknowledges and agrees that it shall not acquire or claim any title to any of the other party’s Intellectual Property Rights (or those of the other party’s licensors) by virtue of the rights granted to it under these Terms or through its use of such Intellectual Property Rights;
  2. agrees that it will not, at any time, do, or omit to do, anything which is likely to prejudice the other party’s ownership (or the other party’s licensors’ ownership) of such Intellectual Property Rights;
  3. agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the materials of the other party and agrees to incorporate any such proprietary markings in any copies it takes of such materials.

Warranties and Indemnities

Warranties by the Company
1. The Company hereby warrants and undertakes to Pubguard that, on the Effective Date and thereafter during the continuance of these Terms as if this clause were repeated daily, when Services are required in respect of them:
  1. the Company will own the copyright and other intellectual property (or otherwise have all applicable licenses and consents) in all Company Materials provided by the Company to Pubguard for the supply of Services;
  2. no such Company Materials will be unlawful 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 Company Materials will contain any Virus;
Mutual Warranties
1. Each of the parties warrants to the other that:
  1. it has full power and authority to enter into and perform its obligations under these Terms;
  2. it has taken all corporate steps requisite to be taken and has obtained all consents from any third party which are requisite to be obtained in relation to its entering into and performing these Terms in order that it be legally effective and binding upon it;
  3. these Terms constitutes lawful valid obligations binding upon it in accordance with its terms and will not cause or constitute any breach or default of or under any instrument to which it is a party
Indemnities
1. Each party (as the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other party (the “Indemnified Party”) and its respective directors, officers, employees, subcontractors and agents from and against all damages, expenses (including reasonable attorneys’ fees and costs), judgments and other liabilities arising out of or on account of a third party claim suit or proceeding (collectively, “Claims”) arising from or related to: (a) the Company Materials and/or any breach of the warranties in clause 10.1, in the case of the Company and the Pubguard Materials in the case of Pubguard, and (b) the gross negligence or willful misconduct of the Indemnifying Party.
2. Infringement Indemnification.
  1. By Pubguard: (i) Pubguard, at its own expense, will defend or, at its option, settle, any Claim brought against Company by a third party, and will pay any damages and costs finally awarded in any such suit or proceeding or agreed to in settlement thereof, if the Claim is based on a claim of infringement of any copyright, patent, trade secret, or trademark of any third party (an “Infringement Claim”) to the extent attributable to the Services or the Pubguard Materials, provided, however, that Pubguard will not assume liability for Infringement Claims attributable to (i) the combination of the Services or the Pubguard Materials with services, solutions, information or technology not provided by Pubguard, or (ii) use of the Services or Pubguard Materials other than as contemplated by these Terms. Should any use of the Pubguard Technology or the Services be enjoined, or if Pubguard reasonably believes that any item of the Pubguard Materials or element of the Services may be subject to an Infringement Claim, then Pubguard may, at its sole option and expense: (a) procure the right to use the affected item or element as provided in these Terms, (b) replace the affected item or element with other non-infringing material or services, (c) suitably modify the affected item or element so that it does not infringe, or (d) if Pubguard determines that none of the foregoing is feasible, terminate these Terms.
  2. By Company. Company, at its own expense, will defend or, at its option, settle, any Infringement Claim brought against Pubguard by a third party, and will pay any damages and costs finally awarded in any such suit or proceeding or agreed to in settlement thereof, to the extent the Infringement Claim is attributable to Company Material, provided, however, that Company will not assume liability for Infringement Claims attributable to the use of the Company Material other than as contemplated by these Terms.
  3. Clause 8.3.1 states the entire liability and obligations of the Indemnifying Party, and the exclusive remedy of the Indemnified Party with respect to any actual or alleged infringement of third party Intellectual Property Rights under these Terms.
3. The obligations of the Indemnifying Party as set forth in this Clause 8 are conditional upon the Indemnified Party (a) providing prompt notice to the Indemnifying Party of any Claim or Infringement Claim for which the Indemnified Party will seek indemnification; (b) tendering control of the resolution of the dispute (including settlement) to the Indemnifying Party; and, (c) providing reasonable assistance to Indemnifying Party as requested.
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 these Terms 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:
  2. 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 8.3.3
  3. which is received by a party from a third party otherwise than in breach of any confidentiality obligation;
  4. which at the time of receipt from another party was already in the possession of the recipient independently of that party;
  5. 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;
3. shall not prohibit disclosure to the extent appropriate for the purposes of enforcement of these Terms

Limitation of Liability

No Unlawful Exclusions
1. Nothing in these Terms 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
General Limitation
1. the liability of Pubguard for any default under or relating to these Terms 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 Half-Year when added to all liability of Pubguard in respect of all other defaults by it which occurred in the same Half-Year, shall not in any event exceed a sum equal to the total charges payable to Pubguard for Services rendered during that Half-Year
Individual Event Limitation
1. the liability of Pubguard in respect of all losses arising from the same event (or connected series of events) caused or contributed to by any default under or in relation to these Terms or which are the subject of any indemnity by Pubguard (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 Pubguard for Services rendered in respect of such event (or connected series of events)
Excluded Losses
1. Except under clause 8.2.1.3, no party shall be liable under these Terms (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
Force Majeure
1. No party shall be in breach of these Terms 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, national or international pandemic, terrorist act, official or unofficial industrial action or employee dispute, illness of personnel, 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)

Term and Termination

Term
1. The term of these Terms will commence on the Effective Date and continue, subject to the remaining provisions of this Clause 10, until the expiration of a notice, given by either party onto the other, of not fewer than sixty (60) days unless either party informs the other party in writing of its intent not to renew at least sixty (60) days prior to the then-current expiration date of the Term.
Premature Termination – Without Cause
1. During the first six (6) months from the Effective Date, either party may terminate these Terms without cause upon the expiration of a written notice of not less than forty-five (45) days given to the other party. Thereafter either party may terminate these Terms without cause solely in accordance with clause 12.1.
Premature Termination – For Cause
1. Either party may terminate these Terms forthwith upon written notice if the other party:
  1. fails to pay to the other party, when the same fall due for payment, any monies payable by it under these Terms and such failure continues for more than twenty-one (21) days despite two (2) written reminders; or
  2. is in material breach of any of its obligations under the Agreement and either such breach is not capable of remedy or has not been remedied within thirty (30) days of service of written notice requiring remedy of such breach; or
  3. becomes insolvent or subject to any bankruptcy, winding up or liquidation proceedings or to any proceedings for the making of an administration order or makes any voluntary arrangement or composition with its creditors; or
  4. an encumbrancer takes possession of or a receiver is appointed over the property or assets of such party or such party or is wound up except for the purposes of reconstruction; or
  5. ceases or threatens to cease to carry on business or becomes unable to pay its debts for the purposes of any legislation applicable to it and relating to insolvency.
Effect of Termination
1. Termination shall be without prejudice to the rights and remedies of the parties in respect of any prior breach of obligation under these Terms.
2. Upon the expiration or termination of these Terms each party will immediately pay to the other party all amounts due hereunder and all licenses granted under these Terms will cease unless expressly stated otherwise.
3. Clauses 1 and 7-11 (inclusive) will survive the termination or expiration of these Terms for any reason.

Miscellaneous

Assignment
1. Neither party shall assign these Terms in whole or in part and shall not agree to do so or to hold on trust for any other person any benefit hereunder or otherwise deal or dispose of the same in any respect,; any such purported assignment or delegation in breach of the foregoing shall be void. Notwithstanding the foregoing, Pubguard may assign these Terms in connection with the sale or other transfer of all or substantially all of Pubguard’s equity or assets or to a successor entity in the event of any corporate reorganisation.
2. These Terms shall be binding upon and enure to the benefit of the respective successors and permitted assigns of the parties.
Variations
1. No variation of these Terms shall be effective unless in writing signed by authorised signatories of the respective parties.
No Waiver
1. No time or other indulgence allowed by any party to any other party shall constitute any waiver of any right or remedy.
Notices
1. Any notice, notification, demand or request provided under these Terms must be in writing and sent to the party’s email address provided in this Clause 13.3 with read receipt requested. All notices, notifications, demands or requests so given will be deemed given and received when the read receipt is received by the sender.
  1. For Notices to Pubguard: hello@pubguard.com (including a courtesy copy, which shall not constitute notice, to: legal@bistack.com)
  2. For Notices to Company: to the address provided by you to Pubguard from time to time.
Relationship of the Parties
1. The parties are independent contractors with respect to each other. Each party is not and will not be deemed to be an employee, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose and will not have any right, power or authority to create any obligation or responsibility on behalf of the other.
Entire Agreement
1. These Terms constitute the entire agreement between the parties with regard to the provision of Services; it replaces all previous agreements relating to the same, all of which shall cease to have effect by mutual consent. Each of the parties confirms that it is not entering into these Terms in reliance upon any representation, warranty or other statement by the other party save those expressly set out in these Terms and any such representations, warranties and statements which are not so expressly set out are hereby expressly excluded.
Severability
1. If any provision of these Terms will be held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of these Terms will remain in full force and effect.
Due Date for Payments
1. Whenever the due date for payment of any amount under these Terms is not a Working Day that payment shall instead be due on the next following day which is a Working Day
Counterparts and Execution
1. These Terms may be executed:
  1. in any number of counterparts each of which bearing the signatures of one or more of the parties and all such counterparts shall constitute the same instrument;
  2. by signature on behalf of the parties and exchange by electronic mail containing a pdf copy of such signature and sufficient identification that it is signature to these Terms in this form;
  3. by electronic signature (including Hellosign, Adobesign or Docusign)
Governing Law & Jurisdiction
1. These Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and the parties irrevocably submit to the exclusive jurisdiction of English courts.