Informa acquired Penton Information Services on November 2, 2016, bringing together two great Exhibitions and Information Services Groups to provide a greater range of products and information to our global customer base.
These Terms and Conditions (these “Terms”) are made by (i) the customer (“Client”) who has executed a statement of work, proposal, insertion order, agreement and/or similar document to which these Terms are attached and/or are stated to apply (“SOW”), and (ii) Informa Media, Inc. (f/k/a Penton Media, Inc.) and Informa Business Media, Inc. (f/k/a Penton Business Media, Inc.) (together with each of their respective subsidiaries, “Informa”; Client, any agency executing any SOW on behalf of an Informa customer (“Agency”), and Informa, collectively, the “Parties,” and each individually a “Party”), effective as of the date identified as the effective date in the SOW or, if no such date is identified, as of the date of the latest signature on the latest-executed SOW between the Parties (the “Effective Date”).
Agency and its customer shall be jointly and severally liable for the payment and the performance of the obligations of “Client” and for any breach by either of them of any representation, warranty, or other provision hereof. Upon execution of the SOW(s), these Terms automatically shall be deemed incorporated into such SOW(s) and these Terms and all SOW(s) shall be deemed to constitute one agreement (the “Agreement”).
Terms and conditions shall control in the following order of priority in the event of any conflict between or among them: first, these Terms; second, any SOW identified as a statement of work or proposal; third, any SOW identified as an insertion order; and fourth, any other SOW. Two or more provisions shall be deemed to conflict, or create an ambiguity or inconsistency, if and only if (a) they cover the same general substantive topic (e.g., indemnification obligations, limitations of liability, or warranties), and (b) no one such provision expressly excludes, supplements, or modifies such other provision(s) by expressly referencing the applicable section number(s) of such other provision(s) which are so excluded, supplemented, or modified. The Parties acknowledge and agree that this paragraph will control over any inconsistent or conflicting “priority” provision in any SOW or in any purchase order or other document proposed or delivered by Client or Agency.
1. ENGAGEMENT, TERM AND TERMINATION.
1.1 Client hereby engages Informa to render the services (“Services”) and deliver any specified deliverables (“Deliverables”), and agrees to pay Informa the fees (due within 30 days of invoice, with any overdue amounts subject to interest at the rate of the lesser of 1.5% per month or the maximum rate permitted by law), in each case which are set forth in the SOW. To the extent that the Services include the delivery to Client of booth or exhibit space at an in-person trade show or conference or other in-person event (a “Show”), or the delivery of sponsorship or other related promotional opportunities specifically in conjunction with such Show, the delivery of such Services shall be governed by the terms and conditions located at https://engage.informa.com/terms-of-service/exhibit-space/ and https://engage.informa.com/terms-of-service/sponsorship-event-marketing/, respectively. Unless otherwise stated in the SOW, upon execution of the Agreement Informa may invoice Client for all amounts to be paid under the SOW. Except as expressly provided in the Agreement, in no event will Client be entitled to any refund of any amounts paid under the Agreement, including any prepaid amounts. Without limiting Agency’s joint and several liability for Client’s payment and other obligations pursuant to the Agreement, Agency will (a) employ best efforts to collect and clear payment from Client on a timely basis, and (b) if requested by Informa, reasonably assist Informa in collecting payment from Client or obtaining Client’s consent to dispense funds. Client will reimburse Informa for any and all costs, including collection agency fees and court costs, incurred by Informa in successfully collecting any delinquent amounts hereunder. The Services may be performed by Informa employees or by subcontractors on behalf of Informa. In the case of any Services and/or Deliverables in respect of Traditional Digital Advertising (as defined in Section 2.1), (x) unless otherwise specified in the SOW, Informa may charge fees at a monthly rate per thousand impressions, and (y) Client acknowledges and agrees that (i) rates in the SOW are based on contracted impression levels and overall contract year spending levels, and (ii) if Client does not fulfill contracted impression levels and/or spending levels during the campaign period, Client will be charged the earned rate (CPM based on published Informa Rate Card) commensurate with impression levels run.
1.2 After execution of the SOW, the Parties may mutually agree to a production schedule outlining each step of the project and/or other details concerning the engagement (“Production Schedule”), in which case such Production Schedule, when mutually agreed by both Parties, shall be deemed a part of the SOW and shall be automatically incorporated herein and made a part hereof. If any request by Client would change the scope of the SOW (including the Production Schedule), as determined by Informa in good faith, then the Parties will promptly and in good faith jointly determine the effects that implementation of such request would have on the fees, timeline, Deliverables, or any other term or condition of the SOW. Changes to the scope of the Services, Deliverables, or other terms and conditions set forth in any SOW will be effective only upon execution of a written change order by authorized representatives of each Party (“Change Order”). If the Parties do not execute such a Change Order, Informa may in its discretion charge Client at Informa’s then-prevailing hourly rates for any additional work performed and/or resources devoted to accommodate such request.
1.3 Client will cooperate with Informa as reasonably requested by Informa and will perform the responsibilities of Client set forth in the Agreement (“Client Responsibilities”). Informa will have no liability for any inability or failure to perform Services or to deliver Deliverables, or delay in performing Services or delivery of Deliverables, to the extent such inability, failure, or delay results from any Client failure, delay or error in providing such cooperation and/or performance or any approvals, consents, or materials contemplated by the Agreement (“Client Delay”). Informa may charge Client, and Client will pay as set forth above, additional fees if any Client Delay (a) causes Informa to perform additional work and/or devote additional resources beyond those contemplated by the applicable SOW (in which case such fees shall be based on Informa’s then-prevailing hourly rates) or (b) in Informa’s good faith judgment, renders any previously agreed delivery date or other milestone impossible or impractical (in which case such fees shall be the fees applicable to a “Reschedule Request” as defined and set forth in the applicable SOW or, if the SOW is silent as to Reschedule Requests, in Section 1.6 below).
1.4 Client agrees to pay all taxes in connection with the Agreement, except that each Party shall be responsible for taxes based on its own net income, employment taxes of its own employees, and taxes on any property it owns or leases. Client agrees to reimburse and hold Informa harmless from any deficiency (including penalties and interest) relating to taxes that are the responsibility of Client hereunder and to pay or reimburse Informa for any amounts required by any governmental authority to be withheld from any payment to Informa hereunder.
1.5 Except as otherwise specified in the SOW, the term of the Agreement shall commence on the Effective Date and continue for a period of 12 months, unless earlier terminated pursuant to the following sentence or renewed by mutual written agreement of Informa and Client (the “Term”). Either Party may immediately terminate the Agreement (a) if the other Party materially breaches the Agreement and such breach has not been cured within 30 days of receipt of written notice of such breach, or (b) in the event of the other Party’s bankruptcy, insolvency, liquidation, dissolution, receivership, or assignment for the benefit of creditors. The following provisions of these Terms will survive expiration or earlier termination of the Agreement: this sentence and Sections 1.6, 2.1, 2.2, 3, 4, 5.3, and 8.
1.6 Unless otherwise provided in the SOW or in Section 7, the Agreement may not be terminated (in whole or in part) for convenience, nor may any Deliverable or Service be rescheduled without Informa’s prior written consent. Without limiting the foregoing, Client shall have no right to cancel or reschedule any advertising, promotion, email marketing, webinar, or other Deliverable or Service of any kind at any time without Informa’s prior written consent. Client acknowledges and agrees that, upon execution of the Agreement, Informa may begin allocating resources to Client’s engagement and incurring hard and soft costs in connection therewith, that if Client were to cancel or reschedule any aspect of the Agreement, Informa would also incur opportunity costs, loss of anticipated profits, and other indirect damages, and that quantifying such losses and other losses, such as damage to reputation, which Informa may suffer as a result of cancellation or rescheduling is inherently difficult. Therefore, the Parties agree that the following cancellation and/or rescheduling fees will apply as liquidated damages, and not as a penalty, and that such liquidated damages represent the Parties’ best estimate, and a reasonable measure, of Informa’s damages in connection therewith:
(a) Except as permitted by Section 1.5, if Client does nonetheless cancel any Deliverable or Service, or all or any of the Agreement, the following liquidated damages (the “Cancellation Damages”) shall apply: (i) 50% of the amounts payable for the cancelled item(s) if cancellation takes place between the Effective Date and the earlier of (A) 90 days prior to the scheduled deployment, delivery, or other performance of the applicable canceled item(s), or (B) the first day of promotion by either Party of such canceled item; or (ii) 100% of the amounts payable for the cancelled item(s) if cancellation takes place after the earlier of the dates described in clauses (a)(i)(A) and (a)(i)(B) above.
(b) If Client requests a change of a previously agreed delivery date (“Reschedule Request”), Informa may, in its discretion, accommodate such request and charge a rescheduling fee of 50% of the amount payable for such rescheduled item(s) (the “Rescheduling Damages,” and together with the Cancellation Damages, the “Liquidated Damages”). To the extent accommodating such Reschedule Request requires Informa to perform additional work and/or devote additional resources, Client will also pay all additional fees attributable to such additional work and/or resources at Informa’s then-prevailing hourly rates. If Informa cannot or does not accommodate a Reschedule Request, such Reschedule Request shall be deemed a constructive cancellation and the applicable Cancellation Damages shall apply. If the SOW specifies more than one Deliverable and/or Service, each Deliverable and Service shall be subject to separate Liquidated Damages.
2. PROPRIETARY RIGHTS AND LICENSES.
“Client-Branded Deliverable” means any Deliverable displaying or including trademarks and/or branding solely of Client (but not Informa).
“Client-Owned Data” means all Market Research Data which are included or embodied in any Client-Owned Deliverable, excluding all General Industry Data.
“Client-Owned Deliverables” means all Client-Branded Deliverables and Web Consulting Deliverables, in each case excluding Informa’s Pre-Existing IP, Informa-Owned Data, and Joint Lead Data.
“Client Property” means any and all Property (other than Lead Data) which is provided or made available by or on behalf of Client to Informa under the Agreement, including any and all IP Rights therein.
“Creative” means all creative material or similar Property provided or made available to Informa by or on behalf of Client for use in or with any advertising, promotion, and/or marketing pursuant to the Agreement.
“Developed” means possessed, owned, controlled, created, developed, obtained, or acquired.
“General Industry Data” means all Market Research Data which are not directly related to Client, including general industry data and information relating to the operation and methodologies of social networking sites and other non-Client websites.
“Impression” or “impression” means an ad request that is received and counted by the ad serving software used by Informa.
“Informa-Branded Deliverable” means any Deliverable that is not a Client-Branded Deliverable.
“Informa-Owned Data” means (i) all Market Research Data included or embodied in any Informa-Owned Deliverable, (ii) all General Industry Data and any portion(s) of any Client-Owned Deliverable reflecting, incorporating, or based on General Industry Data, and (iii) all Lead Data (other than Joint Lead Data).
“Informa-Owned Deliverables” means the Informa-Branded Deliverables, excluding the Client Property, Web Consulting Deliverables, and Joint Lead Data.
“IP Rights” means copyrights, patents, trademarks, trade secrets, rights of attribution, integrity, and other moral rights, Confidential Information (as defined below), and all other intellectual property or proprietary rights of any kind under applicable law.
“Joint Lead Data” means (i) any Lead Data which Informa delivers directly to Client (it being understood that delivery to Client’s third-party email deployment vendor shall not be deemed a delivery directly to Client) and (ii) any Lead Data which is collected from Leads by Client (but not by Informa, whether on behalf of itself or on behalf of Client) in connection with the Agreement pursuant to an arrangement mutually agreed upon by Informa and Client.
“Lead” means any existing or prospective customer, client, participant, respondent or end user, in each case excluding Client and Informa.
“Lead Data” means all information collected from or about a Lead which is obtained, provided or used in connection with any Deliverable or Services.
“License” means a non-exclusive, non-transferable, nonassignable, nonsublicenseable, perpetual, worldwide license.
“Market Research Data” means all data, research results, market and/or industry data and other information gathered, created, or compiled by Informa in connection with the Services, in each case other than Lead Data.
“Pre-Existing IP” of a Party means all IP Rights (and the Property associated therewith) Developed by such Party (i) prior to the Term or (ii) during the Term except as Developed solely and specifically in connection with the Agreement. All IP Rights (and the Property associated therewith) Developed by any Informa Supplier, in which such Supplier (or any of its direct or indirect Suppliers) retains any right, title, and/or interest, shall be deemed to constitute Pre-Existing IP of Informa for purposes of the Agreement.
“Property” means creative or audiovisual works, content, images, graphics, graphs, charts, tables, texts, formats, names, images and likenesses, characters, information, ideas, data, sound recordings, logos, artwork, video clips, software, code, website content, technology, research, databases, documentation, and other information or materials in any format or medium, whether now existing or hereafter invented, developed or discovered.
“Supplier” of a Party means any freelancer, subcontractor, software or data provider, supplier or other third party who licenses or otherwise provides or makes available to such Party IP Rights and/or Property relevant to the Agreement.
“Third-Party Dependent Software” means any third-party software to which Client must obtain its own license pursuant to the SOW.
“Traditional Digital Advertising” means Deliverables sold on any of the following bases: cost per thousand impressions (“CPM”); cost per click (“CPC”); cost per lead (“CPL”); or cost per acquisition (“CPA”).
“Web Consulting Deliverable” means a Deliverable by or on behalf of Informa to Client pursuant to Informa’s delivery of Web Consulting Services under the Agreement.
“Web Consulting Services” means search engine optimization, e-listening, social media, online media buy, and paid search engine marketing services.
(a) Notwithstanding anything in the Agreement to the contrary, each Party shall retain and own all right, title, and interest, including all IP Rights, in and to all of its Pre-Existing IP.
(b) Unless otherwise stated in the SOW, as between the Parties, (i) Client shall own all right, title, and interest, including all IP Rights, in and to the Client Property, Client-Owned Deliverables, and Client-Owned Data, and (ii) Informa shall own all right, title, and interest, including all IP Rights, in and to the Informa-Owned Deliverables and Informa-Owned Data.
(c) Informa shall own all right, title, and interest, including all IP Rights, in and to all Lead Data, except that Informa and Client shall jointly own all right, title, and interest, including all IP Rights, in and to any Joint Lead Data, and each Party will be free to exploit such Joint Lead Data during and after the Term with no duty to account to the other Party.
(d) If an SOW provides for the delivery of Leads to a Client (“Lead Services”), and such Leads are provided to its agency for data scrubbing or any other purpose in the course of Informa’s performance of such Lead Services, nothing herein shall be construed to grant to such agency any rights with respect to such Leads, and such agency is expressly prohibited from using (and Client shall be responsible for not permitting such agency to use) such Leads for any purpose except the exercise of such non-agency Client’s rights, on such non-agency Client’s behalf and for such non-agency Client’s sole benefit, in each case specifically as permitted in accordance with these Terms.
(a) Subject to Client’s compliance with all terms and conditions in the Agreement, including Client’s payment and confidentiality obligations, and except as otherwise set forth in the SOW, Informa hereby grants to Client, in addition to any license(s) to Lead Data which are mutually agreed upon by the Parties and set forth in the SOW:
(i) in the case of any Web Consulting Deliverable or any modification or derivative work thereof, a License to use, copy, make derivative works of, and modify any of Informa’s Pre-Existing IP and Informa-Owned Data which is and remains included or embodied therein, but in each case solely for Client’s internal business purposes; and
(ii) in the case of any Client-Owned Deliverable (other than a Web Consulting Deliverable) or any modification or derivative work thereof, a License to use, copy, display, distribute, make derivative works of, and modify any of Informa’s Pre-Existing IP and Informa-Owned Data which is and remains included or embodied therein, in each case whether for Client’s internal or external business purposes, but in each case, solely without payment of direct compensation by any third party to Client (or any other party on Client’s behalf); and
(iii) in the case of any Informa-Owned Deliverable, a License to use, copy, display, and distribute such Informa-Owned Deliverable, in each case whether for Client’s internal or external business purposes but solely (A) in the form and substance delivered by Informa to Client, (B) without payment of direct compensation by any third party to Client (or any other party on Client’s behalf), and (C) subject to any additional restrictions set forth in the SOW.
If Client displays, distributes, or otherwise makes available to any third party, in whole or in part, any Informa-Owned Deliverable, or any work or other materials which include or incorporate any of Informa’s Pre-Existing IP or any Informa-Owned Data (any such Informa-Owned Deliverables, Informa Pre-Existing IP, and/or Informa-Owned Data, collectively, the “Licensed Content”), Client will, if requested by Informa, include, in reasonably close proximity to the Licensed Content, a reasonably conspicuous (and in no event less conspicuous than any attribution Client provides to other contributors of similar content) attribution in a form reasonably requested by Informa. Client shall not delete, obscure, or alter in any manner any of the proprietary information, copyright, trademark, or other attribution notices or legal disclaimer notices, if any, appearing on or with respect to any Deliverable, including any Licensed Content.
(b) Subject to Informa’s compliance with all terms and conditions in the Agreement, including its confidentiality obligations, Client hereby grants to Informa and its affiliates a limited, non-exclusive, fully paid-up, sublicenseable (subject to the terms of the Agreement), worldwide license during the Term to use, have made, make, import, compile, decompile, disclose, copy, modify, create derivative works of, display, and distribute the Client Property, in each case solely for purposes of exercising its rights and performing its obligations pursuant to the Agreement. Client is solely responsible for obtaining its own licenses to any Third-Party Dependent Software.
3.1 Each Party will use any confidential, proprietary, and/or nonpublic information (“Confidential Information”) of the other Party or its affiliates solely for the purpose of and to the extent necessary for performing under the Agreement, will disclose such Confidential Information only to its subcontractors and agents (for each of whose acts or omissions with respect to such Confidential Information the receiving Party will be liable) and employees, in each case with a need to know the same for such purposes, and will use at least the same degree of care in protecting the confidentiality of such Confidential Information as it uses in protecting its own information of a similar type, but in no event less than a reasonable standard of care.
3.2 The restrictions set forth in Section 3.1 shall not apply to the extent that any Confidential Information (a) has been rightfully received by the receiving Party from a third party or public source without confidentiality limitations; (b) was known to the receiving Party, without confidentiality limitations, prior to its first receipt by the receiving Party from the disclosing Party; (c) is or becomes known publicly through no fault of the receiving Party; (d) is independently developed by the receiving Party without use of the Confidential Information; or (e) is required to be disclosed in the context of any administrative or judicial proceeding, provided that the receiving Party provides the disclosing Party prompt prior written notice of such required disclosure and cooperates as reasonably requested by the disclosing Party to oppose or limit any such required disclosure.
3.3 Breach of this Section 3 will cause irreparable harm. Either Party may seek injunctive relief in any action to enforce this Section 3 and the other Party hereby waives the claim or defense that the suing Party has an adequate remedy at law.
4. REPS & WARRANTIES; INDEMNITIES; LIABILITY LIMITATIONS.
4.1 Reps and Warranties; Disclaimer.
(a) Each Party represents, warrants and covenants that (i) the Agreement is a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms, without violating any contract to which it is a party (and to the extent the Agreement is executed by an Agency on behalf of any client or customer, such Agency represents and warrants that it has the authority to execute the Agreement (including, for clarity, all SOWs) on such client’s or customer’s behalf and to act on behalf of such client or customer, and only within the scope of such agency, with respect hereto); (ii) it will comply with all laws, statutes, regulations, rules and ordinances, including the CAN SPAM Act, Canadian Anti-Spam Legislation (“CASL”), the European Union data protection directives and regulations, and each other federal, state, local and foreign Law relating to unsolicited e-mail, data protection or privacy (collectively, “Laws”) applicable to its performance of its obligations under the Agreement and its use of any Deliverables and any Lead Data; and (iii) it has obtained all rights and permissions necessary for it to perform its obligations hereunder and to grant the rights it grants hereunder.
(b) Informa represents and warrants that it will perform the Services in a professional and workmanlike manner (with Client’s sole remedy for breach, notwithstanding Section 4.2, being Informa’s re-performance of any non-conforming Services if Client provides written notice of same to Informa within 30 days of performance of such Services), and that the Deliverables (except any Third-Party Dependent Software), as and when delivered to Client by Informa, without modification or alteration by Client, when properly used for the purpose and in the manner specifically authorized by the Agreement, and except to the extent that same were Developed based on specifications, information, or Property provided or made available by or on behalf of Client, do not infringe, misappropriate or otherwise violate (“Infringe”) any third-party IP Rights, are not libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, do not violate any third party’s privacy, publicity, or contractual rights, do not constitute false or misleading advertising, and do not violate any applicable Laws. Deliverables created by Informa may use open-source fonts or other fonts licensed by Informa, and Client acknowledges that any font provided by Client or third-party vendors for use may be replaced by an open-source or licensed alternative font at Informa’s sole discretion. In the event of any actual or alleged Infringement of any third-party rights by any Deliverable(s), Informa shall have the option (but not the obligation), in its sole discretion with respect to each Deliverable, to do any one or more of the following: (i) procure the right for Client to continue using it, (ii) make any adjustments as may be necessary for it to become non-Infringing, and/or (iii) replace any Infringing Deliverable, or portion thereof, with non-Infringing substitutes.
(c) Client (including, for clarity, Agency) represents and warrants that (i) the Client Property (including, but not limited to, fonts), as and when provided or otherwise made available to Informa by or on behalf of Client and when used by or on behalf of Informa in accordance with the Agreement, does not Infringe any third-party IP Rights, is not libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, does not violate any third party’s privacy, publicity, or contractual rights, does not constitute false or misleading advertising, and does not violate applicable Law; (ii) no Creative or other Client Property will include, contain, or be delivered or bundled with any viruses, worms, or other malicious or damaging code, any time bombs, Trojan horses, drop-dead devices, or other disabling or self-help devices, or any other malware or corrupting elements of any kind, or, without Informa’s prior written approval in each instance, any cookies, web beacons, tracking scripts, tracking pixels, or other scripts or code of any sort which facilitate the tracking of any user or user behavior or the collection or storage of any Lead Data; and (iii) Client (including, for clarity, Agency) and all Client Property (including all Creative) will comply with all policies, practices, and procedures communicated by Informa to Client from time to time. In addition, Informa reserves the right, in its sole discretion and at any time, to reject, cancel, limit, omit, remove, or edit (including inserting the word “advertisement” or a similar word or phrase above or below the copy to distinguish it from any editorial product) any Client Property (including any Creative), or any link to any other materials in, or code of, any Client Property (including any Creative), in whole or in part, which Informa in its sole discretion deems inappropriate, unlawful, or contrary to Informa’s policies or practices, whether or not the same Client Property has previously been accepted or run; such cancellation or rejection by Informa shall not preclude payment on similar advertising previously run or services previously performed.
(d) EXCEPT AS EXPRESSLY STATED ABOVE IN THIS SECTION 4.1, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES CONCERING THE SERVICES, THE DELIVERABLES (INCLUDING INFORMA’S ADVERTISING SPACES, INVENTORY OR PLACEMENTS), AND/OR SOFTWARE (ALL OF WHICH ARE PROVIDED AS-IS AND AS-AVAILABLE), INCLUDING FOR FITNESS FOR A PARTICULAR USE, MERCHANTABILITY, INFORMATIONAL CONTENT, PERFORMANCE (INCLUDING RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS) OR NONINFRINGEMENT, AND EACH PARTY EXPLICITLY DISCLAIMS THE SAME TO THE FULLEST EXTENT PERMITTED UNDER LAW.
(a) Each Party (the “First Party”) agrees to indemnify, defend and hold harmless (“Indemnify”) the other Party, its affiliates and all of their respective officers, directors, equity holders, employees, independent contractors, agents and representatives (collectively, “Related Parties”), from and against all third-party actions, proceedings, damages, penalties, claims, demands, liabilities, fees (including reasonable attorneys’ fees), costs or losses of any kind (collectively, “Claims”) threatened or asserted against or otherwise incurred by any of them, but in each case solely to the extent such Claims arise from the First Party’s breach of Section 3, Section 4.1 or Section 5.
(b) A Party seeking indemnification pursuant to Section 4.2(a) (“Indemnitee”) shall provide the other Party (“Indemnitor”) with (i) prompt, reasonable written notice of any circumstances which may give rise to all relevant Claims, (ii) reasonable cooperation as requested by Indemnitor, at Indemnitor’s expense, in the defense of such Claims, and (iii) the right to control the defense and settlement of any such Claim; provided that (A) Indemnitor shall not, without the prior written approval of Indemnitee, settle or dispose of any Claim in any manner that adversely affects Indemnitee’s rights or interests, and (B) Indemnitee shall have the right to participate in the defense, with counsel of its own choosing, at its own expense.
4.3 Limitations of Liability. EXCEPT WITH RESPECT TO A BREACH OF SECTION 3, INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 4.2, LIQUIDATED DAMAGES PURSUANT TO SECTION 1.6, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS:
(a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS RELATED PARTIES FOR ANY CLAIM IN CONNECTION WITH THE AGREEMENT (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR MORE THAN AN AMOUNT EQUAL TO THE FEES PAID (INCLUDING ANY AMOUNTS PROPERLY INVOICED BUT NOT YET PAID) UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD (OR, IF SHORTER, THE DURATION OF THE TERM) PRIOR TO THE MAKING OF SUCH CLAIM; AND
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSS OR EXPENSES OF ANY KIND, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND WHETHER OR NOT FORESEEABLE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
4.4 Other Remedies.
(a) If any SOW refers to a “guarantee” (or similar promise) as to number of Leads, number of attendees, number of participants, viewability, or any other matter (any of the foregoing, a “Guarantee”), such language shall be deemed only to require Informa to make commercially reasonable efforts to achieve the applicable agreed-upon threshold for such metric. Without limiting Section 4.3, Client’s sole remedy for (i) Informa’s failure to achieve any Guarantee, (ii) Informa’s under-delivery of impressions or other failure to meet any advertising or marketing campaign conditions specified in any SOW due to circumstances within Informa’s control, or (iii) any typographical or other error or omission in any advertisement or promotion shall be, at Informa’s option in its sole discretion, either (x) one or more (as reasonably determined by Informa) make-goods or any similar additional effort to correct the applicable shortfall, discrepancy, or error, at no additional cost to Client, or (y) reduction of the fees owed by Client (or, in the case of prepaid fees, a refund) in a pro rata amount reasonably determined by Informa to reflect the applicable shortfall, discrepancy, or error. Notwithstanding the foregoing, the Parties acknowledge and agree that predictability, forecasting, and conversion may vary with respect to CPA Deliverables, CPL Deliverables, and CPC Deliverables, and that Informa will have no liability (including the remedies set forth in clauses (x) and (y) above), for failure to achieve any delivery or Guarantee. Every individual person or entity about whom Client receives any Lead Data shall constitute a Lead for purposes of any Lead Guarantee or target, and Client (and, for clarity, Agency) shall have no right to reject any Lead for any reason, unless (and solely to the extent) such Lead fails to satisfy any eligibility requirements expressly specified in the applicable SOW executed by all Parties. Client agrees to pay for all impressions and other Services and Deliverables actually delivered by Informa in accordance with the terms of payment, even if same are delivered as make-goods after the originally anticipated end date of the applicable campaign or engagement.
(b) Informa makes no viewability Guarantee unless otherwise expressly stated in the SOW. If the SOW does expressly set forth a viewability Guarantee, then, without limiting anything in Section 4.4(a) or Section 6.2, and notwithstanding anything to the contrary in the SOW or the remainder of the Agreement, (i) Informa’s ad server data will be used to measure viewability, (ii) in no event will Informa be deemed to Guarantee greater than 70% viewability (based on 50% of pixels being within view for at least one continuous second), and (iii) in no event will any viewability Guarantee apply to sponsorships, roadblocks, native advertising, logos, video, mobile-optimized, or mobile-app advertising. If Informa does agree to a viewability Guarantee greater than 70%, Informa reserves the right to increase the fees applicable to same in a commensurate amount.
(c) If any SOW sets forth requirements concerning separation or adjacency of any Deliverable from any materials of any Client competitor or any other objectionable material (“Adjacency Requirements”), same shall be deemed only to require that Informa must use commercially reasonable efforts to comply with same, and Client’s sole remedy for Informa’s failure to comply with any of same shall be that Informa will, if Client provides written notice of such failure, move or remove, at Informa’s option, such Deliverable and, if mutually agreed by the Parties in writing, provide mutually agreed makegoods or reduction of applicable fees (or, in the case of prepaid fees, a mutually agreed refund). Notwithstanding the foregoing, Informa shall have no responsibility or liability for failure to comply with any Adjacency Requirement with respect to (i) any Deliverable placed in any location other than a website that is under Informa’s sole control, (ii) any Deliverable placed on any property that Client (or, for clarity, Agency) is aware, or should reasonably be aware, may contain content in potential violation of such Adjacency Requirement, or (iii) any such failure arising out of any user-generated content.
5. CERTAIN PRIVACY-RELATED OBLIGATIONS.
5.1 Required Email Content. To the extent the Services or Deliverables include the distribution of promotional e-mails to third parties, Client agrees to provide the following to Informa: (a) Client’s postal address; (b) a functioning unsubscribe mechanism which, when activated by a user, will actually and permanently remove the user’s email address from Client’s database within five days of receipt of user’s request; and (c) any other information necessary and/or reasonably requested by Informa to comply with applicable Laws, including the CAN SPAM Act, CASL, and the European Union data protection directives and regulations.
5.2 Suppression List. To the extent the Services or Deliverables include the distribution of promotional e-mails to third parties, (a) Client further agrees (i) to maintain and to deliver to Informa, within five days prior to the start of a promotional e-mail campaign, a true, correct, and complete suppression list containing email addresses of those individuals who have opted out or unsubscribed from receiving communications from Client or any of its applicable affiliates, subsidiaries, or divisions (the “Suppression List”), and (ii) for the duration of the campaign, to provide to Informa an updated Suppression List, in a format specified by Informa, immediately following each instance that a user has requested to be opted out or unsubscribed, and (b) to the extent that any e-mails will be sent to any e-mail addresses provided by Client, Client represents, warrants, and covenants, that Client has obtained all consents and permissions required for such e-mails to be sent to such addresses, and that no such email address appears on any applicable Client Suppression List.
5.3 Privacy Policies and GDPR. Each Party will post its privacy policies, which will be consistent with all applicable Laws, on its website(s) and will comply at all times with its privacy policies in connection with the Agreement, including in its use of any Lead Data. Where the Parties are subject to the provisions of the General Data Protection Regulation (EU 2016/679) (“GDPR”) as a result of processing personal data pursuant hereto, the Parties agree that each Party acts as a controller in respect of Lead Data, Joint Lead Data, and Client-Owned Data; each Party shall only process Lead Data, Joint Lead Data, and Client-Owned Data in compliance with the GDPR and shall not cause itself or the other Parties to be in breach of the GDPR; each Party shall provide the other Parties with reasonable details of any enquiry, complaint, notice or other communication it receives from any supervisory authority relating to its processing of Lead Data, Joint Lead Data, and Client-Owned Data, and act reasonably in co-operating with the other Party in respect of its response to the same; and each Party shall act reasonably in providing such information and assistance as the other Parties may reasonably request to enable them to comply with their own obligations under the GDPR. Where Client or Agency receives Informa-Owned Data, Joint Lead Data or Client-Owned Data from Informa, each shall use such Informa-Owned Data, Joint Lead Data or Client-Owned Data only for the purpose for which it was provided, or as necessary to comply with its requirements under any applicable Law, and shall maintain all appropriate technical and organizational measures to ensure the security of the Informa-Owned Data, Joint Lead Data or Client-Owned Data, including protection against unauthorized or unlawful processing.
6. CERTAIN TERMS SPECIFIC TO PRINT AND DIGITAL ADVERTISING.
This Section 6 applies only to any print advertising and/or Traditional Digital Advertising described in any SOW.
6.1 Ad Materials. Client must deliver all Creative to Informa or its designee at least 10 business days prior to the closing date for the applicable issue of publication in the case of print advertising, at least five business days prior to the campaign start date in the case of digital, rich media Creative, or at least three business days prior to the campaign start date in the case of any other digital Creative. Informa shall make a good faith effort to comply with any request for modification to the Creative for an ongoing campaign, if received from Client with at least two business days’ prior written notice. For clarity, Creative first provided by or on behalf of Client to Informa under the Agreement, including any and all IP Rights therein, shall constitute Client Property for purposes of the Agreement. Unless Client has paid a placement premium (or unless otherwise provided in the SOW), positioning of advertising is in Informa’s sole discretion. Informa reserves the right in its sole discretion to designate the general and classified rates for any advertising. Unless specifically provided in the applicable SOW signed by all Parties or otherwise with Informa’s prior written consent, no advertising pursuant to any SOW may promote any affiliate of the Client or any third party.
6.2 Third-Party Ad Serving and Controlling Measurement.Notwithstanding any approval by Informa of a Client 3PAS as provided below, all impressions purchased as stated within any SOW, and all measurements used for invoicing advertising fees in connection with the Agreement (the “Controlling Measurement”), will be determined, calculated and billed from the Informa ad server reports, regardless of whether Advertiser utilizes a third-party ad server (“3PAS”) for centralized advertising campaign management and reporting. Unless Informa grants its prior written approval, in its sole discretion, Client (and, for clarity, Agency) may not use any 3PAS on any Informa property and may not substitute any 3PAS which has not been so approved for any approved 3PAS. Upon Client’s (or, for clarity, Agency’s) reasonable written request, Informa will, within a reasonable time, provide Client reporting relating to the applicable campaign that is reasonably sufficient to allow Client to confirm the Controlling Measurement. If a discrepancy of greater than 10% exists between the Controlling Measurement and the corresponding measurement by Client’s 3PAS (if any), the Parties will negotiate in good faith a potential adjustment, if mutually agreed by the Parties, to the Controlling Measurement.
7. DIVISION-SPECIFIC TERMS.
The terms and conditions set forth in this Section 7 apply only to the extent that any Services and/or Deliverables described in the SOW are being sold and/or provided by the applicable Informa division(s) described in this Section 7:
7.1 Manufacturing and Supply Chain. Solely with respect to any webinar sold by Informa’s Manufacturing and Supply Chain division, the reference to “90 days” in Section 1.6(a)(i)(A) is replaced by “45 days.”
7.2 Supermarket News.Solely with respect to any webinar sold by Informa’s Supermarket News division, (a) the reference to “90 days” in Section 1.6(a)(i)(A) is replaced by “45 days,” and (b) notwithstanding anything to the contrary in Section 1.6(b), Rescheduling Damages shall in all cases be $5,000 for each rescheduling request granted by Informa.
7.3 Technology Group. This Section 7.3 applies solely with respect to the following Services and Deliverables sold by Informa’s Technology Group which includes ITPro Today, Data Center Knowledge, Channel Futures, Web Hosting Talk and IoT World Today. Banner campaigns: Campaigns providing for guaranteed impressions and sold on a flat rate monthly basis will be billed at the contracted amount of the guarantee. If under-delivery is greater than 5% of the guarantee, the under-delivery is made up the following month. If creative is not received 5 business days before the scheduled launch date, the fulfillment of the campaigns may be extended by Informa. For campaigns providing guaranteed impressions on a CPM basis (as opposed to flat rate), the Client will be invoiced based on impressions delivered each month. The last month will be billed at the contracted amount remaining on the original order unless under-delivery over the course of the entire campaign is greater than 5% of the guarantee. If greater than 5%, only impressions served will be invoiced. If creative is not received 5 business days before the scheduled launch date, the fulfillment of the campaigns may be extended by Informa. Sponsorships & content syndication: Sponsorship packages (including but not limited to Platinum sponsorships, Topic alignment programs, and content syndication) may be cancelled by Client only upon at least 30 days’ prior written notice, in all cases effective on the first day of the month following the expiration of such 30-day notice period. Components of a sponsorship (e.g., guest blog, newsletter inclusion) are forfeited if Client does not supply material at least 5 business days before the scheduled run date. For time-based sponsorship programs that start late due to late creative from Client, Informa will endeavor to deliver in full by the original end. When not delivered in full by the original end date, then Informa will extend the original amount of booked time.
7.4 New Hope Network. This Section 7.4 applies solely with respect to products and services offered by any of the properties comprising Informa’s New Hope Network (“New Hope Network Properties”). To the extent that the Services are being provided by New Hope Network Properties, the delivery of such Services shall be governed by, in addition to these Terms, the terms and conditions located at http://www.newhope.com/advertising-standards-and-guidelines, which shall be deemed incorporated into these Terms, and made part of the Agreement, by this reference.
8. GENERAL TERMS.
The Agreement shall be governed and construed in accordance with the laws of the State of New York, and the state and federal courts located in New York, New York shall have exclusive jurisdiction of any actions arising in connection herewith, and each Party hereby submits to the jurisdiction of same. The Agreement constitutes the entire agreement between Client and Informa, supersedes all prior agreements or representations concerning the subject hereof, and may not be amended in any way except (a) by written agreement signed by both Parties, or (b) by Informa as follows: Informa may, in its sole discretion, update, revise, change, modify, or amend (any of the foregoing, “Change”) these Terms at any time, and Client will be bound to such Changes, subject only to the following requirements: (i) any such Changes will have prospective effect only, unless retroactive effect is legally required; (ii) in the event of a Change to these Terms which has a materially adverse effect on Client’s rights and obligations under the Agreement, taken as a whole (any such Change, a “Material Change”), Informa will provide notice to Client of such Material Change, which notice obligation may be fulfilled by Informa’s posting a notice on its applicable website for at least 30 days, stating that these Terms and Conditions have been updated (or words to a similar effect); and (iii) Client may, within 30 days of the date a Material Change became effective (as evidenced by the “Last updated” date at the end of the Terms), terminate the affected portion of the Agreement upon 30 days’ prior written notice to Informa. The waiver by either Party of a breach or violation of any provision of the Agreement shall not constitute a waiver of any subsequent or other breach or violation. Paragraph headings are for reference only and shall not affect the meaning or interpretation of the Agreement. As used herein, except where otherwise explicitly provided, “include”, “includes” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words, “hereunder” means “under the Agreement (including, for clarity, any SOW),” and “$” or “dollars” means, and all payments are due in, United States dollars. The Agreement shall not be assignable, except that Informa shall have the right to assign the Agreement to any of its affiliates or to any purchaser of all or substantially all of the stock or assets of, or any other successor in interest to, Informa (or its applicable division). The Agreement may be executed in counterparts (including by electronic transmission), each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Informa agrees to perform the Services hereunder solely as an independent contractor and the Agreement does not create any actual or apparent agency, partnership, joint venture, or relationship of employer and employee between or among any parties for any purpose, including taxes or employee benefits. Neither Party shall be responsible for any failure or delay in performing its obligations (other than payment obligations) under the Agreement if such failure or delay arises from any cause or causes beyond its reasonable control. In all cases by mutual written agreement (including as to content), the Parties may issue press releases, individually or jointly, relating to the Agreement and/or the Services or Deliverables hereunder, and, in any event, Informa shall have the right to use Client’s name, trademark and/or logo in Informa’s client list and marketing and promotional material distributed to prospective clients, customers, vendors and business partners. Any notices to either Party under the Agreement will be in writing and delivered by hand or sent by nationally recognized messenger service or by registered or certified mail, return receipt requested, to the address set forth in the SOW for such Party or to such other address as that Party may hereafter designate by notice, in each case with a copy to such Party’s Legal Department, and notice will be effective when received.
Last updated August 11, 2022
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