ADVERTISING SERVICES TERMS AND CONDITIONS

Last Modified on 19 April 2016

StarFin Ltd. (“Hotwire Media”) provides a range of advertising products and services for small and medium sized businesses (the “Advertising Services”). The Order Form (the “Order Form”) sets forth which Advertising Services are being purchased by Client (“Client”), the costs for such Advertising Services, and other relevant details of the proposed advertising campaign (the “Campaign”). These Advertising Services Terms and Conditions (“Advertising Terms”), together with any other special terms relating to the product or service ordered referenced herein or in the relevant Order Form, shall be incorporated by reference into and made a part of any Order Form submitted to Hotwire Media and govern the relationship between Hotwire Media and Client. No other terms proposed by Client shall apply unless expressly agreed to in the relevant Order Form. All Order Forms are subject to acceptance by Hotwire Media in its sole discretion. The Order Form and any data processing agreements entered into between the parties in connection with the Advertising Services, the Advertising Terms and the documents and/or links referenced in the Order Form are referred to as the “Agreement.”

The Agreement binds the parties from the time that Hotwire Media accepts by counter-signing or where electronic acceptance is used, by sending a confirmation email that it accepts the Order Form that Client has signed or accepted electronically without modifications, for the duration of the Term, as set forth below. Hotwire Media may change the terms and/or the services at any time on 2 week’s written notice to Client. If the change is material and results in a material detriment to the Client and Client notifies Hotwire Media within the 2 week period following receipt of such notice, Client may terminate the Agreement and will be entitled to a refund of any unspent Campaign Media, Management & Optimisation Fees or Tracking Technology Services Fees or other applicable fees set out in the Product Terms as at the date Client gives notice it wishes to terminate. Otherwise, the change will be deemed accepted once the 2 week notice period has expired.

1. Advertising Services

The Advertising Services include, but are not limited to, the following products and services (where contracted for under the relevant Order Form):

  • SearchWire™ refers to Hotwire Media’s standard search engine marketing product, where Hotwire Media promotes Client through various search engines in their non-organic search results. SearchWire is Hotwire Media’s proprietary search advertising service which places each client’s text ads on top Internet search engines and local directories so local consumers searching for keywords related to an client’s business, products and services can find such client easily. For each campaign, Hotwire Media’s conversion optimization technology learns over time which keywords and sources drive the most leads to the respective client’s website, and is able to shift more of the client’s media budget automatically to such sources. Also, the company’s reverse proxy technology replaces the contact information on each client’s website(s) and records the related consumer interaction so that clients can easily follow up on leads and track the activity their campaigns generate. The results of the campaigns can be accessed online or via mobile reports at any time while the campaign is live.
  • DisplayWire™ refers to Hotwire Media’s standard online display product, where Hotwire Media promotes Client through online display advertisements disseminated through Hotwire Media’s network of online publishers.
  • ReWire refers to Hotwire Media’s behavioural targeting product that enables Hotwire Media to display an ad to consumers who have previously evidenced interest in Client’s products or services.

SearchWire, DisplayWire and ReWire are referred to herein collectively as the “Media Products,” the Product Terms for which are at Media Product Terms.

  • SEOWire refers to Hotwire Media’s organic search engine optimisation services. Product Terms: SEOWire Terms
  • Tracking Services provide Clients with “Tracking Information,” which refers to data and statistics concerning the performance of the Campaigns. The terms for Tracking Services are applicable to all of the products and services listed above, so please review carefully. Product Terms: Tracking Services Terms

Client will be able to see the additional terms and conditions governing each of Hotwire Media’s Advertising Services by clicking the links above (the “Product Terms”). These Advertising Terms take precedence over any conflicting schedule or document unless expressly stated otherwise in such schedule or document.

As Hotwire Media adds other products and services, such products and services will be referenced in the Order Form and any special terms and conditions will be linked to in a revised version of this document.

2. Fees.

a. Identification of Fees. Client agrees to pay the amounts set forth in the Order Form in accordance with Section 3 and as may be further explained in the Product Terms (the “Fees”). The Fees are generally divided into Product Fees (e.g. Campaign Media, Management and Optimisation Fees payable for SearchWire), Service Fees (e.g. Tracking Technology Services Fees payable for SearchWire) and Set-Up Fees. Product Fees are the recurring fees that Client will be charged for the specific product Client has purchased as shown on the Order Form. Service Fees are for the delivery of any premium services that Hotwire Media may, from time to time, offer. Set-Up Fees are one-time fees for the set-up of campaigns or other services.

b. No Pass-Through Obligations. Client is not entitled to any credits, discounts, rebates, refunds provided to Hotwire Media by its third-party publishers (“Publishers”).

3. Payment Terms.

General. Once an Order Form has been accepted by Hotwire Media, Client will be responsible for payment in full of all fees set forth therein. All payments due hereunder are in pounds sterling and are exclusive of any sales, use or similar applicable taxes, which shall be the sole responsibility of Client.

a. Manner of Payment. Client may pay for all amounts payable under this Agreement by credit card (the “Client’s Card”), ACH (electronic debit from Client’s bank account) or such other form of payment as Hotwire Media may, in its sole discretion, permit. If paying by credit card or ACH, Client will be required to sign and comply with the applicable payment authorization forms. In the case of payment through ACH, no amounts owing are considered paid until the electronic debit has been received by Hotwire Media’s bank..

b. Timing of Payment. Fees, as identified on the Order Form, are due in advance of each Cycle (means the time period (approximately 30 days) over which the relevant Campaign Budget will be exhausted) as more fully described in the Product Terms. If there are Set-Up Fees (as set forth on the Order Form), such Fees shall be paid in advance together with all amounts owed for the first Cycle. Hotwire Media shall have the right to charge the Client’s Card or debit from Client’s account through ACH for Fees in accordance with these Advertising Terms and the Product Terms. In case of payment through ACH, Hotwire Media shall send a prenotification with a minimum notice of 2 days prior to collecting any due Fees. Client understands and acknowledges that all amounts owed must be paid in advance and that, in addition to being in breach of its contractual obligations, Client’s Campaign(s) may be paused or terminated if timely payment is not received.

4. Term/Termination.

Term.  Unless specified in the Order Form otherwise, the Advertising Services will continue indefinitely until terminated in accordance with these Advertising Terms. Otherwise the Advertising Services will automatically end after completion of the Initial Cycles.

a. Termination by Hotwire Media. Hotwire Media may terminate this Agreement or any Advertising Service(s) provided hereunder immediately without notice and without cause, subject to Section 4(g).

b. Termination by Client.

1.  If Client gives written notice to Hotwire Media of the termination of the Agreement or any Advertising Service(s) provided hereunder (the “Termination Notice”) at least 14 days prior to the expiry of the Initial Cycles then such termination will take effect on the expiry of the Initial Cycles.

2. If Client gives written notice of the termination of the Agreement or any Advertising Service(s) provided hereunder less than 14 days before the expiry of the Initial Cycles or at any time after the expiry of the Initial Cycles, then such termination will take effect on the date of expiry of the second full Cycle following the date of the Termination Notice.  For example, if Client has purchased 6 Initial Cycles and gives the Termination Notice whilst in the middle of 7th Cycle, the termination will be effective after completion (and payment) through and including the 9th Cycle).

3.  Any notices should be send per email to cancellations@hotwiremedia.co.uk

c. Termination Revocation. Client may, on written notice to Hotwire Media (email is acceptable) revoke such termination given in accordance with Section 4 (b) within thirty (30) days after Client has provided Hotwire Media with the Termination Notice, in which case the Order Form will be reinstated and all applicable campaigns, if they had been stopped,  will be re-initiated upon payment in full of all amounts owed.

d. Termination for Cause. The parties may terminate this Agreement or any Advertising Service(s) provided hereunder with immediate effect for an important reason (termination for cause). If the important reason is a contract breach, the termination for cause generally requires the expiration of a reasonable remedial period or, respectively, a prior warning notice without result. For a termination for cause given by the Client the remedial period generally is not less than thirty one (31) days.”

e. No Refunds. Client understands and agrees that Client will not be entitled to any refunds of amounts already paid to Hotwire Media, unless either Client terminates under the introduction paragraph above or Section 4(b) or Hotwire Media terminates under Section 4(a), in which case Client shall only be entitled to a refund for the unspent balance of the then applicable Cycle Payment which can be checked at any time on the Hotwire Dashboard.

f. Collection of Amounts Owed. Any amounts not paid by Client when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Client agrees to pay all costs of collection (including attorneys’ fees and costs and all other legal and collection expenses) incurred by Hotwire Media in connection with its enforcement of its rights under the Agreement.

g. Effect of Termination; Survival. Client understands and acknowledges that due to the nature of the Internet, certain information regarding Client that was posted on the Internet as part of the Advertising Services, including, for instance, the Local Profile (as defined in Section 1(c) of the Media Product Terms), may continue to be available on the Internet after termination of this Agreement. All provisions of this Agreement that in order to be effective shall survive the termination of this Agreement. Without limiting the generality of the foregoing, in the event of any termination, Client shall remain liable for any amounts due to Hotwire Media as of the effective date of termination and all limits of liability, indemnity obligations, and confidentiality obligations shall survive indefinitely.

5. Hotwire Media Platform.

Client Data. As part of the Campaign initiation process and from time to time during the Campaign, Client shall provide certain information to Hotwire Media, which Hotwire Media will input into its proprietary advertising platform (the “Platform”). Accordingly, Client hereby permits Hotwire Media to input Client’s contact information, credit card or ACH information and campaign information into the Platform. Hotwire Media will only use such information in connection with the fulfilment of the Advertising Services and as otherwise permitted by the Agreement. In addition, Hotwire Media may, from time to time, send Client emails regarding Platform updates, Campaign updates, payment reminders, and marketing opportunities, always in compliance with relevant privacy obligation set forth herein.

a. License to Platform. Upon execution of the Order Form, Client will be granted a revocable, non-transferable, non-exclusive, limited license to use the Platform solely for the purpose of accessing the Tracking Information. Client’s access shall be password protected and Client agrees that it shall not share its password with third parties. If the security of Client’s username(s) or password(s) is compromised in any way, or if Client or its agent suspects that it may be, Client shall immediately contact Hotwire Media. Client acknowledges and agrees that it does not have, nor will it claim any right, title or interest in the Platform, the Platform software, data, applications, methods of doing business or any elements thereof, or any content provided on the Platform. Client may only access the Platform via a Web browser or in a manner otherwise approved by Hotwire Media. Client will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Platform, except to the extent permitted by applicable law and provided always that any information obtained by Client as a result of any such acts is (i) used only as permitted by applicable law for the purpose of achieving inter-operability between the Platform software and other software; (ii) not disclosed to a third party without Hotwire Media’s prior written consent; and (iii) is not used to create any software that is similar to the Platform software. Hotwire Media may terminate the foregoing license, at any time and for any reason (subject to Section 4(e) where applicable).

6. Privacy Considerations.

Personal Information Collected in the Provision of the Services.

i. By contracting with Hotwire Media for the provision of the Services, Client as the data controller is directing Hotwire Media as its data processor to obtain and collect certain personal information relating to Client’s customers through the provision of the Services.

ii. The information and methods that Hotwire Media uses to collect it (including the use of behavioural targeting) are set out in the Notice of Marketing Practices and the Client Services Cookies Policy.

a. Client’s Obligation to Post a Compliant Privacy Policy on its Existing Site.

It is Client’s responsibility to ensure that all applicable laws are met for it to allow Hotwire Media to collect and make such personal information available to it, including but not limited to posting a privacy policy on its native website or on the Site made available to it as part of SiteWire (the “Existing Site”) describing, amongst other things, the personal information that Hotwire Media collects and makes available to it on its behalf and how Client will use that information, together with any other personal information Client collects and uses through the operation of its Existing Site and other marketing channels covered by the Services and a link to the privacy policy at the footer of each page of its Existing Site.

i.Where Client fails to comply with the foregoing, Hotwire Media reserves the right to immediately suspend the provision of the Services by written notice to Client and if Client fails to post a compliant privacy policy within seven (7) days of such notice, terminate the Agreement by written notice for material breach.

b. Client’s Obligation to Incorporate a Compliant Cookies Policy on its Existing Site.

. Provision of the Media Products and Tracking Services also requires Hotwire Media to place and read cookies on the computers and devices of users of Client’s website. Details of those cookies are set out at Client Services Cookies Policy. It is Client’s responsibility to ensure that all applicable laws are met for it to allow Hotwire Media to place and read such cookies via its website, including but not limited to placing a suitably prominent pop up notice about the use of cookies on its website through which it will obtain consent to the use of such cookies and a link to a cookies policy at the footer of each page of its website that incorporates the details of the Client Services Cookies Policy.

i. Where Client fails to include a pop up and link to a cookies policy at all, Hotwire Media reserves the right to either:

A. include (at its discretion and without any obligation to do so) such pop up and link in the Client’s website. In all cases, the Client’s own cookies policy and privacy policy will set out the use that the Client may make of the information that Hotwire Media obtains on behalf of, and makes available to, the Client under the Client Services Cookies Policy and under the Notice of Marketing Practices and the Client will remain liable for the compliant collection and use of the information; or

B. immediately suspend the provision of the Services by written notice to Client and if Client fails to include a compliant pop up link and cookies policy within seven (7) days of such notice, terminate the Agreement by written notice for material breach.

ii. Further Client data protection obligations relating to phone tracking are set out in Tracking Services Product Terms.

c. Data Processor Obligations.

Each party agrees to comply with the provisions of the Data Protection Act 1998 (“DPA”) as may be applicable to that party. The parties acknowledge that Client is the “data controller” and Hotwire Media its “data processor” in respect of any “personal data” relating to Client’s customers, personnel, agents, subcontractors or the end-users of Client’s Existing Site which is “processed” (such terms as defined in the DPA) by Hotwire Media in providing the services hereunder, including without limiting the generality of the foregoing, the quality assurance and Campaign assessment activities.

i. Hotwire Media will maintain appropriate technological and organisational measures against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data.

ii. Hotwire Media will only process the personal data for the purpose of providing the Services and in accordance with Client’s instructions (which Client warrants shall at all times be in accordance with, and shall not cause Hotwire Media to be in breach of, applicable law) to the extent that they are consistent with the same and do not result in any material additional obligations for Hotwire Media.

iii. Client acknowledges and agrees that Hotwire Media may in providing the advertising services hereunder engage third parties who may process the personal data for a subset of the purposes permitted to Hotwire Media and that Hotwire Media may process or cause the personal data to be processed outside the EEA provided that it has imposed similar safeguards on such sub-processors.

7. Intellectual Property Matters.

License to Hotwire Media. During the Campaign Period, Client hereby grants to Hotwire Media and the Publishers a non- exclusive, royalty-free, worldwide license to use, copy, modify (as permitted herein), publicly perform, display, broadcast and transmit (a) any text, images, logos, trademarks, service marks, promotional materials, product or service information, comments, reviews, photos, audio and video clips and other information (“Client Content”) Client provides in connection with any Advertising Services and (b) the Existing Site to the extent necessary for Hotwire Media to perform the Services. Except as set forth in Product Terms and this Agreement, title to and ownership of all intellectual property rights of all Client Content shall remain with Client or its third party licensors. In addition, Client agrees that Hotwire Media may, during the Campaign Period and thereafter, include Client’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder in Client’s Local Profile, on Hotwire Media’s customer list, and in its marketing materials, sales presentations and any online directories that Hotwire Media may, from time to time, publish.

a. Hotwire Media Creative Services. Except as may be otherwise provided in any of the Product Terms, if Client requests that Hotwire Media provides any creative services, Client will remain fully responsible for ensuring that the content is complete, accurate and complies with applicable law and does not infringe any third party rights. With respect to any content created by Hotwire Media, as between Client and Hotwire Media, Hotwire Media shall retain ownership of the design elements of such content, excluding any trade name, trademark, service mark or logo of Client or other proprietary elements of Client content that may be included within such content, but that predate the creation of the Ad. Hotwire Media hereby grants to Client a non-exclusive, royalty-free licence to use, copy, publicly perform, display, broadcast and transmit any design elements of the Ad created and owned by Hotwire Media, to the extent necessary to enable Client to receive the Advertising Services and for the duration of the Campaign only.

8. Client Representations, Warranties and Covenants. Client is solely responsible for any liability arising out of or relating to the Existing Site, any Ad or any content provided by Client hereunder and any material to which users can link through such Ad (“Linked Content”). Client represents, warrants and covenants that the Existing Site, the Ads and Linked Content, and any portion thereof, do not and will not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libellous; (d) be pornographic or obscene; or (e) contain viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Client further represents, warrants and covenants that the product or service that is being promoted through any Campaign is (x) lawful and (y) not the subject of any on-going investigation by any local, state or federal regulatory or quasi-regulatory authorities.

9. Indemnification.

Client will indemnify, defend (with counsel reasonably acceptable to Hotwire Media) and hold harmless Hotwire Media, the Publishers, their subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys’ fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (i) any breach by Client of any representation, warranty, covenant or other obligation contained in these Client Terms or in any of the Product Terms; (ii) the violation of any rights of any third party, publicity, intellectual property or other proprietary rights by Client or anyone using Client’s account; (iii) the sale, license or provision of Client’s goods or services; (iv) the violation of any data privacy obligations by Client or Hotwire Media arising from Client’s breach of the terms of this Agreement or (v) any other act, omission or misrepresentation by Client. Hotwire Media reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Client. If Hotwire Media does assume the defence of such a matter, Client will reasonably cooperate with Hotwire Media in such defence. Client will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without Hotwire Media’s prior written consent.

a. Hotwire Media will indemnify, defend, and hold Client harmless from and against any loss, damage, cost, liability or expense (including reasonable legal fees) arising out of any claim that any Hotwire Media technology used in connection with its provision of the Advertising Services infringes the copyright, patent, trade secret or other proprietary rights of any third party, provided that notice is given to Hotwire Media promptly of such claims and that Client provides such assistances as may be reasonably required in the defence of such matters.

10. Agency. Client represents and warrants that, in the event it is purchasing advertising on behalf of another company, it has been authorized by each such company to act as its contractor in all respects relating to this Agreement, including, without limitation, the making of any elections or giving of any consents. In addition, where the person that enters into this Agreement (the Signatory) is acting as an agent on behalf of another person (the Principal) and purports to enter into this Agreement on their behalf, the Signatory shall remain fully liable for compliance with the terms of this Agreement and any act, omission or breach of this Agreement by the Principal except where the Principal has expressly agreed with Hotwire Media in writing to be liable for such actions and has agreed in writing to the terms of this Agreement itself.

11. Confidentiality. Except as may be required by applicable law, Client shall not disclose the contents of this Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Hotwire Media’s prior written consent. Client may not issue a press release concerning the existence or terms of this Agreement without the prior written consent of Hotwire Media. In addition, except as may be required by applicable law, Client may not disclose any Confidential Information regarding Hotwire Media. “Confidential Information” means information about Hotwire Media’s (or its suppliers’) business, products, technologies (including the Platform), strategies, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by Hotwire Media. Confidential Information will not include information that Client can establish is in or enters the public domain without breach of this Agreement.

12. DISCLAIMER OF WARRANTIES.

SUBJECT TO SECTIONS 12(b), 12(c) AND 13, HOTWIRE MEDIA WARRANTS TO USE REASONABLE ENDEAVOURS TO PROVIDE THE ADVERTISING SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

a. WITHOUT LIMITING THE SPECIFIC DISCLAIMERS SET OUT BELOW, CLIENT EXPRESSLY ACCEPTS THAT HOTWIRE MEDIA MAKES NO GUARANTEES WITH RESPECT TO THE RESULTS GENERATED BY ANY OF THE PRODUCTS AND SERVICES PROVIDED HEREUNDER

b. HOTWIRE MEDIA PROVIDES THE PLATFORM AND ALL ADVERTISING SERVICES PERFORMED HEREUNDER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY CONTENT OR OTHER ADVERTISING PRODUCTS OR SERVICES OR THAT THE ADVERTISING SERVICES WILL BE SECURE, ERROR OR VIRUS FREE. IN THE EVENT OF INTERRUPTION OF AVAILABILITY, DISPLAY OR DISTRIBUTION OF ANY AD OR OTHER ADVERTISING SERVICES, HOTWIRE MEDIA’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE

c. HOTWIRE MEDIA DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. HOTWIRE MEDIA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH ANY LINKED WEB SITE. HOTWIRE MEDIA DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES WILL COMPLY WITH APPLICABLE LAWS AND CLIENT EXPRESSLY ACCEPTS THAT IT IS CLIENT’S RESPONSIBILITY TO DEPLOY SUITABLE NOTICE AND CONSENT MECHANISMS ON ITS WEBSITE TO ALLOW COMPLIANT USE OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM HOTWIRE MEDIA OR THROUGH THE HOTWIRE MEDIA SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT

13. LIMITATIONS OF LIABILITY.

EXCLUDED LOSSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR DAMAGES FOR LOSS OF OR DAMAGE TO PROPERTY, INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST GOODWILL, LOST DATA OR LOST PROFITS (WHETHER DIRECT OR INDIRECT), OR FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY) (EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING). THE FOREGOING EXCLUSION OF LIABILITY WILL NOT APPLY TO (I) CLIENT’S INDEMNIFICATION OBLIGATIONS, INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION THEREWITH; (II) TO CLIENT’S CONFIDENTIALITY OBLIGATIONS AND (III) CLIENT’S NEGLIGENCE OR WILFUL MISCONDUCT.

a. LIMITATION ON DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL HOTWIRE MEDIA’S CUMULATIVE, AGGREGATE LIABILITY TO CLIENT OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY HOTWIRE MEDIA HEREUNDER DURING THE 12- MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. WHERE LIABILITY IS RECOVERABLE UNDER THIS AGREEMENT IN LIEU OF REFUND, HOTWIRE MEDIA MAY, IN ITS SOLE DISCRETION, PROVIDE OF “MAKE-GOOD” ADVERTISING, PROVIDED SUCH “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED

b. Other Limitations. To the extent Hotwire Media may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Hotwire Media’s liability will be the minimum permitted under such law. Nothing in this Agreement limits or excludes, or will be deemed to limit or exclude, Hotwire Media’s liability for fraudulent misrepresentation, death or personal injury caused by its negligence or liability that may not otherwise be limited or excluded by law.

c. Timing of Claims. Client agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within one year after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.

d. Acknowledgement. Each party acknowledges that the other party has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.

14. Third Party Beneficiaries. Save as elsewhere provided in this Agreement and subject to the right of a Publisher, affiliate, joint venture of any other partner of Hotwire Media to enforce the terms of Sections 7, 8, 9 and 13 of this Agreement, any person who is not party to this agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

15. Miscellaneous.

.     Governing Law/Venue. This Agreement will be governed and construed in accordance with the laws of England and Wales without giving effect to conflict of laws principles. Client agrees to submit to jurisdiction in England and Wales and further agrees that any cause of action arising under this Agreement must be brought exclusively in the English courts.

a. Entire Agreement/Amendment. This Agreement (which includes the Order Form, the Schedules, all applicable Product Terms and any payment authorization forms or data processing agreements and all other documents referenced in such documents (including via hypertext link)) sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Except as set out in the second paragraph of these Advertising Terms, it may be amended only in writing signed by both parties.

b. Notices. Any written notices to Hotwire Media required under this Agreement shall be provided by email to cancellations@hotwiremedia.co.uk with a copy per mail to Hotwire Media’s EU Corporate headquarters address (as shown on http://www.hotwiremedia.co.uk), Attn: General Counsel and shall be deemed delivered 24 hours after the notice is emailed . Notices to Clients will be via posting to the administrator account on the Platform and email to the email address set out in the Order Form and will be deemed effective 24 hours after posting on the Platform or on dispatch of the email.

c. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.

d. Assignment. Client may not assign this Agreement without the prior written consent of Hotwire Media. Hotwire Media may assign, novate, subcontract or otherwise transfer this Agreement or any of its rights or obligations hereunder, whether in whole or in part (and without the prior written consent of Client). The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.

e. Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.

f. Force Majeure. Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) 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 affecting production or delivery in any manner beyond the reasonable control of such party