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Home > Advertising> Terms and Conditions

The following terms and conditions ("Advertising Terms and Conditions") are deemed to be incorporated into each advertising insertion order accepted by iRail ("Insertion Order"):

1. Terms of Payment

The Advertiser (as defined in the Insertion Order) will be invoiced on the first day of the contract period set out in the Insertion Order. Unless otherwise expressly agreed by the parties in writing, the Advertiser must ensure that payment is made to Alex Seal ("Alex Seal") in pounds sterling within thirty (30) days after the date of the invoice, unless this date is earlier than the date on which the relevant advertising is scheduled to begin in which case the due date for payment will be no later than the date on which the advertising is scheduled to begin.

For the avoidance of doubt, the Advertiser must pay at the rates prescribed by applicable law all VAT (and all similar sales tax (if applicable)) on the amounts due under this Insertion Order. All amounts paid by the Advertiser after the due date will bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less) above the base lending rate of iRail’s main Bank, from time to time, from the date when payment was due until the date of payment is received, whether before or after judgement. In the event of any failure by the Advertiser to make payment, the Advertiser will be responsible for all expenses (including legal fees) incurred by iRail in collecting the amounts due. The Advertiser warrants that it contracts with iRail as principal notwithstanding that the Advertiser may be acting as an advertising agency or media buyer or in some other representative capacity.

2. Positioning and Licence

2.1 The Advertiser hereby grants a world-wide non-exclusive, fully paid licence to reproduce and display the advertisement (including all contents, trademarks and brand features contained therein) in accordance with the Insertion Order and these Advertising Terms and Conditions.

2.2 Except as otherwise expressly provided in the Insertion Order, positioning of advertisements within the iRail properties or on any page is at the sole discretion of iRail, and iRail will not be prohibited from also carrying advertisements for any product or business competitive to the product or business of the Advertiser.

2.3 iRail does not warrant the date or dates of insertion of the advertisement(s) and does not warrant that the advertisement(s) will not be displayed after the end date specified. However, iRail will use reasonable efforts to comply with the Advertiser’s wishes in these regards.

2.4 The Advertiser grants to iRail the express right to reproduce throughout the world screen shots of all or part of any iRail property containing all or part of any of the advertising materials supplied by the Advertiser to iRail on or in any promotional or advertising material or campaign promoting or advertising iRail.

3. Usage Statistics

Notwithstanding the provisions of the Insertion Order, the Advertiser acknowledges that iRail has not made any guarantees with respect to usage statistics or levels of impressions for any advertisement. iRail provides the Advertiser with estimated usage statistics only as a courtesy to the Advertiser and iRail will not be held liable for any claims relating to any usage statistics however supplied. The Advertiser acknowledges that delivery statistics provided by iRail are the official, definitive measurements of iRail’s performance on any delivery obligations provided in the Insertion Order. No other measurements or usage statistics (including those of the Advertiser or a third party ad server) will be accepted by iRail or have bearing on this Agreement.

4. Renewal

Except as expressly set out in the Insertion Order, any renewal of the Insertion Order and acceptance of any additional advertising order will be at iRail's sole discretion. The rates applicable to such renewal period (if any) are subject to change by iRail from time to time in its absolute discretion.

5. No Assignment or Resale of Ad Space

The Advertiser may not resell, assign or transfer any of its rights thereunder, and any attempt to resell, assign or transfer such rights will entitle iRail to terminate this contract immediately, without liability on the part of iRail.

6. Limitation of Liability

6.1 If iRail fails to publish any advertisement or deliver the number of impressions as provided in the Insertion Order (or in the event of any other failure, technical or otherwise, of such advertisement to appear as provided in the Insertion Order), iRail’s liability will be limited (at the option of iRail) to either: (a) publishing the advertisement (or a replacement advertisement if provided by the Advertiser) as soon as is reasonably practicable in the period following the period during which the advertisement was scheduled to run and for such time as is necessary to generate a number of substitute impressions equal to the shortfall, or (b) refund to the Advertiser that proportion of the amounts paid which relate to those advertisements and/or impressions which were not provided or, if the relevant amounts were not paid by the Advertiser, agree that such amounts will not be due or payable.

6.2 In no event will iRail be responsible for any indirect, consequential, special or economic loss of any kind including without limitation loss of profits, business, contracts, revenues, goodwill, production and anticipated savings arising from any failure to publish in a timely manner or at all any advertisement in accordance with the Insertion Order.

6.3 Without limiting the foregoing, iRail will have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of iRail affecting production or delivery in any manner.

6.4 iRail does not limit or exclude liability for death or personal injury caused by its negligence.

6.5 Each of the provisions of this clause 6 are to be construed separately and independently of the other, and if any provision of this clause 6 (or any other clause herein) is found by any court or other judicial body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision will not affect the other provisions of this clause 6 (or any other clause herein) which will remain in full force and effect.

7. Advertisers Representations; Indemnification.

7.1 The Advertiser warrants and represents to iRail that:

7.1.1 It has the right to publish all of the contents of the advertisements, and can grant to iRail such right, and that such publication will not: (a) infringe any rights of any third party including, without limitation, intellectual property rights and rights of privacy, and (b) violate any applicable law or regulation.

7.1.2 The advertisements do not contain anything which is defamatory, obscene, false or misleading.

7.1.3 It has complied with the codes of practice issued by the Committee of Advertising Practice in the UK and the Advertising Standards Authority for Ireland in respect of electronic and online advertising and all other relevant industry codes of practice.

7.1.4 The advertisement submitted pursuant to the Insertion Order either: (a) does not constitute an investment advertisement within the meaning of the Financial Services Act 1986 ("the Act") or other applicable law, or (b) has been approved by an "authorised person" within the meaning of the Act or is otherwise permitted under the Act and the Advertiser has expressly notified iRail in writing of this.

7.2 The Advertiser agrees to indemnify and keep indemnified iRail and hold iRail harmless against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by iRail in connection with any claims actual or threatened, of any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or sales practices) arising from the advertisement and /or any material (of the Advertiser or otherwise) to which users can link through the advertisement.

8. Provision of Advertising Materials

The Advertiser will provide all materials for the advertisement (including GIF or JPEG files), in accordance with iRail's practices and policies in effect from time to time, including (without limitation) the manner of transmission to iRail, the lead-time prior to publication of the advertisement and such technical specifications as iRail may require from time to time. iRail will not be required to publish any advertisement that has not been received in accordance with such policies and practices and reserves the right to charge the Advertiser, at the rate specified in the Insertion Order, for inventory held by iRail pending receipt of acceptable materials from the Advertiser which are past due.

9. Right to Reject Advertisement

All contents of advertisements are subject to iRail's approval. iRail does not undertake to review the contents of any advertisements and any such review of and/or approval by iRail will not be deemed to constitute an acceptance by iRail that such advertisement is provided in accordance with these Advertising Terms and Conditions nor will it constitute a waiver of iRail's rights thereunder iRail reserves the right at any time in its absolute discretion to:

9.1 Reject or cancel any advertisement, Insertion Order, URL link, space reservation or position commitment; or

9.2 Remove any advertisement from any of the iRail properties or any page.

10. Cancellations and Construction

The Advertiser cannot cancel the Insertion Order. No conditions other than those set forth in the Insertion Order or these Advertising Terms and Conditions will be binding on iRail unless expressly agreed to in writing by an authorised representative of iRail. In the event of any inconsistency between the Insertion Order and these Advertising Terms and Conditions, these Advertising Terms and Conditions will prevail.

11. Confidentiality and Public Announcements

11.1 The provisions of the Insertion Order and all communications passing between the Advertiser and iRail are confidential and must not be disclosed to any third party except: (a) by the Advertiser to its qualified accountants or legal advisers, (b) by iRail to its qualified accountants or legal advisers, or (c) as otherwise agreed by the parties in writing or as otherwise required by law.

11.2 If the parties have executed a nondisclosure agreement prior to the date of this Agreement ("Nondisclosure Agreement"), then: (a) the Nondisclosure Agreement is hereby incorporated into this Advertising Terms and Conditions by reference whether or not it is attached to the Insertion Order, and (b) each party must comply with its obligations in the Nondisclosure Agreement.

11.3 The Advertiser is hereby put on notice that iRail and its affiliates are particularly sensitive to public statements about the iRail web services, their contractual relationships and product plans, and improper or ill-timed statements are likely to have a detrimental effect on the business of iRail and its affiliates and may contravene applicable law. Consequently, the Advertiser must not, and must ensure that any person acting on its behalf does not, make any public announcement in respect of the Insertion Order or the relationship between the parties without prior written consent of iRail including without limitation any pre-announcement in respect of the display of advertising on any iRail property. For the avoidance of doubt, the foregoing prohibition includes public announcements by any third party acting on behalf of the Advertiser and any communication which the Advertiser knows will or is likely to be made public. Any breach of this clause 11.3 by the Advertiser will be deemed to be a breach of confidentiality under clauses 11.1 and/or 11.2.

12. Miscellaneous

These Advertising Terms and Conditions, together with the Insertion Order (i) will be governed by and construed in accordance with, the laws of England, and the parties submit to the non-exclusive jurisdiction of the English courts; and (ii) constitute the complete and entire expression of the agreement between the parties, and supersede all other prior understandings, commitments, agreements and (unless made fraudulently) representations, whether written or oral between the parties. Clauses 6, 7, 11 and 12 will survive any expirey or termination of these Advertising Terms & Conditions.

Notwithstanding any other provision in these Advertising Terms & Conditions a person who is not a party to these Advertising Terms & Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Advertising Terms & Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

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Last Modified: 00:39 Wednesday 20 January 2010

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