Publisher terms and conditions

1.1 Each Service Order entered into between the Parties from time to time for Ozone’s provision of services for its programmatic advertising technology and related services (and which refer to these Ozone Publisher Terms and Conditions) incorporates these Ozone Publisher Terms and Conditions, which as described below, together form the Agreement between the Parties.

1.2 Capitalised terms used in this Agreement shall have the meanings set out below:

• “Accumulated Personal Data” means any Personal Data that: (a) is Bidstream Data; or (b) otherwise relates to a User (including all User Data relating to a User), and which is disclosed to or collected by Ozone under or in connection with the Agreement;
• “Ad Partners” means (a) advertising networks and SSPs; (b) data management platforms, research vendors, brand safety vendors, viewability vendors, and any other third party providers of technology services; and (c) any other third party service provider granted access to the Platform from time to time by Ozone, but always excluding Publisher Partners;
• “Ad Quality Standards” means the ad quality standards available on Ozone’s website here.
• “Advertiser” means brands, marketers, media agencies representing marketers or brands, and advertising networks;
• “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity;
• “Applicable Laws” means all applicable laws, enactments, regulations, binding regulatory guidelines, binding industry codes, regulatory permits and regulatory licences, in each case which are in force from time to time and which relate to the Services;
• “Audience Segment” means a homogeneous subgroup of Users based on defined criterion such as product usage, demographics, psychographics, communication behaviours and media use;
• “Bidstream Data” means the log-level data that is generated from the transmission of Inventory Bid Requests from Publisher to SSPs and the corresponding data that is returned from the SSP;
• “Business Day” means a day (other than Saturday or Sunday) on which commercial banks in London, England are generally open for normal business.
• “Confidential Information” has the meaning given to that term in Clause 9.1;
• “Contract Year” means the period of 12 months following the Effective Date and each succeeding 12-month period;
• “Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and “Controls” and “Controlled” shall be interpreted accordingly;
• “Data Protection Laws” means (a) the EU GDPR and the UK GDPR as applicable; (b) the DPA 2018; (c) EC Directive 2002/58/EC on Privacy and Electronic Communications; (d) The Privacy and Electronic Communications (EC Directive) Regulations 2003 and (e) all local laws or regulations implementing or supplementing the foregoing legislation and all other laws concerning the processing or protection of Personal Data; and (e) all binding codes of practice and guidance issued by national regulators relating to aforementioned laws and regulations.”
• “Disclosing Party” has the meaning given to that term in Clause 9.1;
• “Documentation” the documents and information supplied or made available by Ozone as updated from time to time which describe the features and functionality of the Services, set user instructions and requirements of the Publisher in relation to the Services under this Agreement;
• “DPA” means the Ozone Publisher Data Protection Agreement available on Ozone’s website here.
• “DPA 2018” means the UK Data Protection Act 2018;
• “Effective Date” means the date the Effective Date set out on the applicable Service Order;
• “Fee” has the meaning given to it on the applicable Service Order;
• “Force Majeure Event” means a cause or causes beyond a Party’s reasonable control, including: act of God, governmental act, act of terrorism, war, fire, earthquake, flood, disease, adverse weather, traffic congestion, embargo, riot, sabotage, strike (other than of its own employees), failure of third party telecommunications networks (other than Affiliates), failures of third parties (other than subcontractors or Affiliates, but including Amazon Web Services and/or Google Cloud Platform), explosion or civil commotion;
• “Good Industry Practice” means the exercise of a degree of skill, diligence, prudence and foresight as can be expected from a reasonably skilled and experienced person engaged in the same or similar type of undertaking under the same or similar circumstances;
• “Indemnified IPR Claim”, “Indemnified Party” and “Indemnifying Party” have the meaning given to those terms in Clause 8.5;
• “Information Sharing Protocol” means the information sharing protocol set out below in these terms and conditions at Schedule 1;
• “Insolvency Event” means in respect of a Party: (a) other than for the purposes of a bona fide reconstruction or amalgamation, such Party passing a resolution for its winding up, or a court of competent jurisdiction making an order for it to be wound up or dissolved, or that Party being otherwise dissolved; or (b) the appointment of an administrator of, or the making of an administration order in relation to, either Party, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or any part of the entity’s undertaking, assets, rights or revenue; or (c) that Party entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them, or taking steps to obtain a moratorium, or making an application to a court of competent jurisdiction for protection from its creditors; or (d) that Party being unable to pay its debts, or being capable of being deemed unable to pay its debts, within the meaning of section 123 of the Insolvency Act 1986; or (e) that Party entering into any arrangement, compromise or composition in satisfaction of its debts with its creditors;
• “Intellectual Property Rights” means: (a) trademarks, copyright, patents, database rights, designs, know-how, inventions, discoveries, modifications, improvements, trade secrets and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights in any jurisdiction; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;
• “Inventory Bid Request” means an out-going bid request in respect of a single unit of Publisher Inventory, generated when a User visits a Publisher Property;
• “Loss” means each loss, damage, fine, penalty, cost, expense or other liability (including reasonable legal and other professional fees) and “Losses” shall be interpreted accordingly;
• “Other Publisher” means any publisher which uses the services of Ozone, other than Publisher;
• “Other Publisher Inventory” means all digital impressions that are available on Other Properties and are capable of being sold via programmatic sale to Advertisers for the purposes of serving advertisements on Users;
• “Other Publisher Property” means a Property owned, operated or controlled by an Other Publisher in respect of which Ozone provides services;
• “Other Publisher User Data” means all User Data in relation to the Other Publisher Properties visited by a User;
• “Ozone” means Ozone Project Limited, a company registered in England and Wales with company number 11471303 and with registered office at New City Court, 20 St. Thomas Street, London, England, SE1 9RS;
• “Ozone Data” means all data generated by Ozone, or by any third party in connection with the provision of the Services, excluding any Publisher Information;
• “Ozone IPRs” means those Intellectual Property Rights in any tools, processes, methodologies, operating manuals, specifications, documents (including the Documentation) or other materials: (a) owned by Ozone or any subcontractor of Ozone before the Effective Date; (b) acquired by Ozone or any subcontractor of Ozone after the Effective Date; or (c) created by Ozone or any subcontractor of Ozone, in each case used in the provision of the Services;
• “Permitted Recipients” has the meaning given to that term in Clause 9.3;
• “Personal Data” has the meaning given to that term in the Data Protection Laws;
• “Property” means a website, mobile app or other digital property;
• “Publisher” means the Publisher entity identified on the applicable Service Order;
• “Publisher Ad Partner Agreement” means the agreement between Publisher and a Publisher Ad Partner for the monetisation of Publisher Inventory;
• “Publisher Ad Partner” means a Publisher Partner which is an SSP or other advertising demand partner with whom Publisher has entered into a Publisher Ad Partner Agreement and to which Publisher wishes Ozone to transmit advertising bid requests on Publisher’s behalf;
• “Publisher Information” means: (a) the Publisher User Data; (b) all pricing information in respect of the Publisher User Data and Publisher Inventory; and (c) any other commercially sensitive information of, or relating to, Publisher;
• “Publisher Inventory” means all digital display impressions that are available on Publisher Properties and are capable of being sold via programmatic sale to Advertisers for the purposes of serving advertisements on Users;
• “Publisher IPRs” means those Intellectual Property Rights in any software, tools, processes, methodologies, operating manuals, specifications, documents or other materials: (a) owned by Publisher, its Affiliates or their subcontractors before the Effective Date; (b) acquired by Publisher, its Affiliates or their subcontractors after the Effective Date other than pursuant to this Agreement; or (c) created by Publisher, its Affiliates or their subcontractors; in each case provided to Ozone in connection with this Agreement, but excluding any Ozone IPRs and enhancements, modifications or derivative works of such Ozone IPRs;
• “Platform” means the technology platform made available by Ozone, as may be further described in a Service Order and/or Documentation;
• “Publisher Partner” means a vendor that provides Services directly to Publisher and which has no direct relationship with Ozone;
• “Publisher Property” means a Property owned, operated or controlled by Publisher in respect of which Ozone provides the Services;
• “Publisher User Data” means all User Data in relation to the Publisher Properties visited by a User;
• “Quarter” means each period of three months commencing 1 January, 1 April, 1 July and 1 October in each calendar year;
• “Receiving Party” has the meaning given to that term in Clause 9.1;
• “Sales Tax” means any sales, purchase or turnover tax as may be applicable in any relevant jurisdiction including value added tax chargeable under or pursuant to the Value Added Tax Act 1994 or Council Directive 2006/112/EC, and any other tax from time to time replacing it or of a similar nature;
• “Security Breach” means: (a) the occurrence of an actual unauthorised disclosure of, or access to, any Confidential Information, Ozone Data, or Publisher Information, whether accidental or otherwise; or (b) any attempted IT security breach or Software Virus that compromises or may compromise the confidentiality, integrity, availability and resilience of the Services;
• “Service Levels” means the service levels set out in the relevant Documentation;
• “Service Order” means a service order entered into between the Parties in accordance with these terms and conditions;
• “Service Start Date” means the date that Ozone first begins providing the relevant Services, as set out in a Service Order;
• “Services” means the services provided by Ozone as described in the relevant Service Order;
• “Software Virus” means any software virus, clock, timer, counter or other limiting or disabling code, design or routine that is intended to be harmful to one or more information technology Systems or to data stored in those Systems (including, by causing all or any part of any system or data to be erased, inoperable or otherwise incapable of being used in the full manner for which it was designed) or which enables unauthorised access to the system or theft or misuse of data or Confidential Information or otherwise impairs the operation of the system;
• “SSP” means a supply-side platform;
• “Systems” means all the software, hardware, network and telecommunications equipment and internet related information technology that are used by either Party in connection with the operation of its business as currently conducted;
• “Term” has the meaning given to that term in Clause 13.1;
• “User” means a subscriber or visitor, to any Publisher Property or an Other Publisher Property (as applicable);
• “User Data” means all behavioural data in relation to the Publisher Properties or Other Publisher Properties (as applicable) visited by a User, and any other data or metadata generated by a User, whether gathered by or on behalf of Publisher or an Other Publisher (including by Ozone or any third party).

1.3 In these terms and conditions, unless the context otherwise requires:

• (a) words importing the singular shall include the plural and vice versa;
• (b) any phrase introduced by the words including, includes, in particular or for example or similar shall be construed as illustrative and shall not limit the generality of the related general words;
• (c) unless a right or remedy of a Party is expressed to be an exclusive right or remedy, the exercise of it by a Party is without prejudice to that Party’s other rights and remedies; and
• (d) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and
• (e) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

2.1 The Parties may agree Service Orders from time to time (which incorporate these terms and conditions) pursuant to which Ozone shall provide one or more of the Services to the Publisher.

2.2 A Service Order is only effective and binding on the Parties when it has been signed by both Parties. All fully executed Service Orders, together with annexes to such Service Orders, the Documentation relating to such Service Orders, and the DPA, taken together, shall constitute the “Agreement” between the Parties.

2.3 A Service Order may include additional terms and conditions which apply in respect of the applicable Service to be provided under such Service Order. The Publisher acknowledges and agrees that Ozone’s provision of such Service (and Publisher’s receipt of the same) is conditional on Publisher’s compliance with any such additional terms and conditions. The Parties further acknowledge that, in accordance with clause 3.1 below, any such additional terms and conditions contained in a Service Order will prevail over these terms and conditions in the event of any conflict.

3.1 If there is a conflict between any of the documents comprising the Agreement, the order of priority, highest first, is:

• (a) the Service Orders (including any annex to the Service Order);
• (b) the DPA;
• (c) these terms and conditions; and
• (d) the Documentation.

4.1 In respect of the Services, Ozone shall:

• (a) provide to the Publisher the Documentation;
• (b) ensure that the Services materially conform to the relevant Documentation and are provided in accordance with Good Industry Practice; and
• (c) manage ad quality in accordance with the Ad Quality Standards.

5.1 Publisher shall:

• (a) ensure that it, and each of its staff, access and use the Services in accordance with the Agreement and the Documentation;
• (b) ensure that each of its staff accessing or using the Services has appropriate experience and training in programmatic advertising to understand and apply the information contained in the Documentation;
• (c) provide to Ozone any information required by the Documentation in a prompt and timely manner;
• (d) ensure that the Publisher Properties do not contain any content (excluding advertisements which are displayed on the Publisher Properties as part of the Services) which:
• (i) breaches, or otherwise promotes the violation of any Applicable Laws;
• (ii) infringes, or otherwise enables or facilitates the infringement of the Intellectual Property Rights of any third party; and/or
• (iii) consists of any of the following: (a) obscene, pornographic, or adult content, (b) gambling, (c) graphic or excessively violent content, (d) discriminatory content, including content that promotes discrimination by race, ethnicity, nationality, religion, disability, gender, age, or sexual orientation, or (d) harassment, bullying, threats, or similar content that advocates against any group, organization, or individual. The Parties acknowledge and agree that any bona fide news editorial relating to any of the foregoing shall not constitute a breach of this clause.

5.2 Publisher must not make any Publisher Inventory available by:

• (a) using automated means to generate the impression, such as spiders, scripts, or other non-human agents;
• (b) offering any cash or equivalent incentives (such as gift cards or cryptocurrencies) to view or interact with an ad;
• (c) automatically spawning an impression, or otherwise hijacking an end user’s device or browser; or
• (d) using any other method whatsoever designed to fraudulently, deceptively, or artificially inflate the number of impressions, clicks, or other measurable actions.

6.1 Each Party represents, warrants and undertakes to the other Party during the Term that:

• (a) it has the power and authority to enter into and perform its obligations under the Agreement and that the Agreement is legal, valid and binding on it;
• (b) it has all necessary consents, licences, authorisations and approvals in connection with the entry into and performance of its obligations under the Agreement, including the provision or use of the Services (as applicable) and all conditions of each consent, licence, authorisation or approval have been complied with;
• (c) that it holds all necessary rights to grant any licences granted in this Agreement;
• (d) its entry into the Agreement and performance of its obligations under the Agreement will not violate or conflict with, or exceed any limit imposed by: (i) any law or regulation to which it is subject; (ii) its memorandum and articles of association; or (iii) any other agreement, instrument or undertaking binding upon it.
• 6.2 Each Party shall comply with all Applicable Laws in performing its obligations under the Agreement and in providing, receiving and using the Services.
• 6.3 Save as expressly provided in the Agreement, no representations, warranties or other terms, express or implied, statutory or otherwise, as to condition, quality, performance or fitness for purpose are given or assumed by Ozone in respect of the Services, and all those representations, warranties and terms are excluded to the fullest extent permitted by Applicable Laws.

7.1 Fees and sums payable by one Party to the other in respect of the Services are as set out in the Service Order and shall be paid in accordance with this Clause and the Service Order.

7.2 Payments under the Agreement shall be made to the bank account nominated in writing by the payee from time to time and shall, in the absence of any contrary agreement, be paid in pounds sterling. If Ozone collects monies for and on behalf of Publisher in a currency other than pounds sterling, Ozone shall convert such sums into pounds sterling using exchange rates that Ozone applies in respect of transactions made for its own account.

7.3 Where a Party is owed any undisputed amount under the Agreement by the other Party and that amount remains unpaid for more than 30 days after the relevant due date, the Party that is owed such amount may charge, and the other Party shall pay on demand, interest at the rate of 2% per annum above the base rate of Barclays Bank plc for the time being in force, accruing daily from the due date to the date of actual payment.

7.4 All sums payable under the Agreement are exclusive of Sales Tax which (if applicable) shall be charged in addition at the applicable rate from time to time in force. A Sales Tax invoice shall be provided against any payment if required by Applicable Laws.

7.5 Except as expressly stated otherwise in this Agreement, or as required by any Applicable Laws, each Party shall pay all amounts due under the Agreement free and clear of any deduction or withholding (other than any deduction or withholding of tax as required by Applicable Laws).

7.6 All payments to be made by Publisher under the Agreement shall be paid free and clear of any deductions or withholdings for, or on account of, tax, set-offs or counterclaims, except any deduction or withholding which is required by law, in which case, the sum payable by Publisher in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, Ozone receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum it would have received had no such deduction or withholding been made or required to be made. If Ozone subsequently receives a credit for such deduction or withholding, it shall immediately pay the amount of such credit to Publisher. No credit shall be deemed received by Ozone unless it has relieved Ozone of a present obligation to pay tax. Ozone shall be entitled to set-off from sums that it owes to Publisher under or in connection with the Agreement any sums owed by Publisher to Ozone under or in connection with the Agreement.

8.1 As between the Parties, (a) Ozone IPRs and Ozone Data are and shall remain vested in Ozone; and (b) Publisher IPRs and Publisher Information (including the Accumulated Personal Data) are and shall remain vested in Publisher.

8.2 Publisher hereby grants Ozone a non-exclusive, sublicensable, non-transferable, royalty-free licence for the Term to use the Publisher IPRs and Publisher Information (including the Accumulated Personal Data) made available to Ozone to the extent necessary to provide the Services in accordance with the terms of the Agreement.

8.3 Ozone hereby grants Publisher a non-exclusive, non-sublicensable, non-transferable, royalty-free licence for the Term to use the Ozone IPRs made available to Publisher for the purpose of receiving or using the Services in accordance with the terms of the Agreement.

8.4 Subject to Clauses 8.5 and 8.6:

• (a) Ozone shall indemnify Publisher on written demand against all Losses incurred by or awarded against Publisher as a result of a claim or action by a third party (other than an Affiliate of Publisher) that the use by Publisher of the Ozone IPRs for the purposes of Publisher receiving the Services in accordance with the Agreement infringes the Intellectual Property Rights of that third party; and
• (b) Publisher shall indemnify Ozone on written demand against all Losses incurred by or awarded against Ozone as a result of a claim or action by a third party (other than an Affiliate of Ozone) that the use by Ozone of the Publisher IPRs in accordance with the Agreement infringes the Intellectual Property Rights of that third party.
• 8.5 The Party seeking to rely on an indemnity at Clause 8.4 (the “Indemnified Party”) shall, upon becoming aware of a matter for which it may seek such indemnification (“Indemnified IPR Claim”):
• (a) promptly notify the other Party (the “Indemnifying Party”) of the Indemnified IPR Claim to the extent permitted by Applicable Laws, and consult with the Indemnifying Party with respect to the Indemnified IPR Claim;
• (b) take any action that the Indemnifying Party may reasonably request (at the Indemnifying Party’s reasonable expense) in order to dispute, resist, appeal, compromise, defend, remedy or mitigate the Indemnified IPR Claim;
• (c) at the Indemnifying Party’s election, allow the Indemnifying Party (or, if the Indemnifying Party so directs, its licensor) the exclusive right to conduct any proceedings or action, negotiate the settlement of the Indemnified IPR Claim and conduct all discussions and dispute resolution efforts in connection with the Indemnified IPR Claim; and
• (d) not admit liability in respect of, or settle, the Indemnified IPR Claim without first obtaining the Indemnifying Party’s written consent (such consent not to be unreasonably withheld or delayed).

8.6 Nothing in Clauses 8.4 and 8.5 in any way restricts or limits the Parties’ general obligations at law to mitigate a Loss which it may incur as a result of a matter giving rise to an Indemnified IPR Claim.

9.1 For the purposes of this Clause, “Confidential Information” means all information of a confidential nature disclosed by whatever means by one Party (the “Disclosing Party”) to any other Party (the “Receiving Party”). Confidential Information includes the provisions and subject matter of the Agreement, Ozone IPR, Ozone Data and Publisher Information. Confidential Information excludes information that: (a) is, or becomes, generally available to the public through no act or omission by the Receiving Party; (b) was available to the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party; (c) was, is, or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party’s knowledge, is not under any confidentiality obligation in respect of that information; (d) was lawfully in the possession of the Receiving Party before the information was disclosed by the Disclosing Party; or (e) is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party.

9.2 Each Party undertakes to keep, and shall procure that each of its Affiliates shall keep, the Confidential Information confidential and not disclose it to any person, other than as permitted under this Clause or otherwise in accordance with the Agreement.

9.3 Ozone may disclose the Publisher’s Confidential Information to its employees, staff, workers, agents, consultants and subcontractors (the “Permitted Recipients”) who are engaged in the establishment, development, operation or performance of the Services from time to time. Ozone shall ensure that such Permitted Recipients are aware of, and comply with, these confidentiality obligations.

9.4 Notwithstanding Clause 9.3, Ozone shall not, and shall procure that the Permitted Recipients do not, use any of the Publisher’s Confidential Information received otherwise than for the purposes of the Agreement.

9.5 Each Party shall, and shall procure that each of its Affiliates, directors, employees, secondees, contractors, agents and consultants shall, comply with the Information Sharing Protocol.

9.6 Clause 9.2 shall not apply to the disclosure of any Confidential Information if and to the extent required by: (a) Applicable Laws; (b) the rules of any securities exchange on which securities of the Receiving Party or any member of its Affiliates are listed; or (c) any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body; provided that the Receiving Party will, to the extent reasonably practicable and legally permitted, promptly notify the Disclosing Party and co-operate with the Disclosing Party regarding the timing and content of such disclosure and any action which the Disclosing Party may reasonably wish to take to challenge the validity of such requirement.

10.1 The DPA shall apply in respect of the processing of Personal Data by either Party under or in connection with the Agreement and shall survive termination of the Agreement and continue in force for the duration of any such processing.

10.2 Failure by the Publisher to comply with its obligations under the DPA shall entitle (but not oblige) Ozone with immediate effect to suspend the provision of the Services and/or terminate the Agreement.

11.1 Without prejudice to the Parties’ obligations under the DPA, each Party shall:

• (a) implement appropriate technical and organisational measures to protect: (i) in the case of Ozone, the Services; and (ii) in the case of Publisher, access to, and use of, the Services; from a Security Breach in a manner which conforms to Good Industry Practice;
• (b) refrain from using or adding features that could disrupt or compromise the security of the Services;
• (c) maintain appropriate and up-to-date malware and anti-virus software for detecting and preventing the introduction of any Software Virus into any System used in connection with the Services in accordance with Good Industry Practice;
• (d) ensure that it has policies, procedures and controls in place that address critical aspects of security including security governance, personnel security, physical security, system security, network security, application security, administrative security, security assurance and risk evaluation, incident management and response, security awareness and training, and business continuity and disaster recovery; and
• (e) promptly upon becoming aware of a Security Breach:
• (i) investigate the cause and impact of that Security Breach where such Security Breach relates to Confidential Information, data or systems under its possession or control, and take adequate remedial measures;
• (ii) notify the other Party of that Security Breach in any event within 24 hours after becoming aware of the same and provide the other Party with a reasonable description of the Security Breach to the extent possible;
• (iii) where such Security Breach relates to Confidential Information, data or systems under its possession or control, use reasonable efforts to remedy that Security Breach and to prevent reoccurrence; and
• (iv) not publish any communication concerning the Security Breach without first consulting the other Party, save that it may disclose the breach to the extent required by Applicable Laws.

11.2 The Publisher shall ensure that its staff:

• (a) keep their passwords for use of the Service secure; and do not disclose their password for the Services to any other individual;
• (b) do not request access to the Services for any individual who is not explicitly authorised by the Publisher to access the Services;
• (c) do not, without the prior written permission of Ozone, install or configure any software that is reasonably likely to adversely impact the Services (for example where the Publisher incorrectly implements a consent management platform and/or ad server); and
• (d) do not undertake or allow a third party to undertake ethical hacking, penetration testing, reverse engineering or decompiling of any system or software or supplier connected to the Services without the prior written consent of Ozone.
• 11.3 Ozone shall not be liable to Publisher for any Security Breach to the extent that the Security Breach results from or is exacerbated by Publisher’s breach of the Agreement.

12.1 Nothing in the Agreement excludes or limits either Party’s liability:

• (a) for fraud or fraudulent misrepresentation;
• (b) for death or personal injury arising from its negligence or that of its employees, agents or subcontractors;
• (c) to pay any undisputed Fee, Publisher Revenue Share or other sum which is due and payable under the Agreement; or
• (d) to the extent that any Applicable Laws preclude or prohibit any exclusion or limitation of liability.

12.2 Subject to Clauses 12.1 and 12.3, neither Party shall be liable for any:

• (a) loss of profits, loss of business, loss of goodwill, loss of contract or anticipated savings or loss, or
• (b) indirect, consequential, punitive or special loss or damage,
• in each case whether arising in tort (including negligence), breach of contract or otherwise.
• 12.3 Publisher acknowledges that non-compliance by Publisher of its obligations under this Agreement may cause Ozone to breach obligations that it owes to Ad Partners and/or Other Publishers and that any related Loss that Ozone suffers shall not be excluded by Clause 12.2(b), but, for the avoidance of doubt, shall remain subject to the limitation of liability in Clause 12.5.
• 12.4 Ozone shall not be liable to Publisher for any Loss to the extent the Loss arises as a result of:
• (a) the Publisher’s use of the Services in a manner that is inconsistent with the terms of the Agreement or the Documentation;
• (b) any act or omission of an SSP used or engaged by Publisher.

12.5 Subject to Clauses 12.1, 12.2 and 12.4, the aggregate liability of each of Ozone and Publisher under or in connection with the Agreement, whether arising in tort (including negligence), for breach of contract or otherwise, shall not, in respect of each Contract Year, exceed one million pounds sterling (£1,000,000).

13.1 The Agreement shall commence on the Effective Date and shall continue in full force and effect for so long as any Service Order is in effect, unless it is terminated earlier in accordance with this Clause 13 (the “Term”).

13.2 Either Party may terminate the Agreement in whole or in part:

• (a) immediately on written notice to the other Party if the other Party commits any material breach of any of the provisions of the Agreement and either: (i) the breach is not capable of remedy; or (ii) the breach is capable of remedy, but the defaulting Party fails to remedy it within thirty (30) days after receiving a written notice from the complaining Party containing full particulars of the material breach and requiring it to be remedied; or
• (b) to the extent permitted by applicable law, on written notice to the other Party if the other Party suffers an Insolvency Event.

14.1 The termination or expiry of the Agreement (or any part of it) shall not affect any rights or obligations of either Party which may have accrued prior to such termination.

14.2 Upon termination or expiry of the Agreement (or any part of it), and without prejudice to Clause 14.3, to the extent that any Confidential Information relating to the Agreement (or the relevant part of the Agreement that has been terminated) has been disclosed, each Party shall return to the other Party all such Confidential Information of the other Party and, if so requested, certify that it no longer holds the other Party’s Confidential Information.

14.3 From the effective date of termination of the Agreement (or any part of it), Ozone shall, as applicable:

• (a) cease to make available Publisher Inventory to Advertisers and Ad Partners;
• (b) cease to use or process the Publisher User Data; and
• (c) comply with any reasonable written request of Publisher to delete, destroy or return to Publisher any of the Publisher User Data within 30 days of Ozone’s receipt of Publisher’s written request.

14.4 The provisions of the Agreement which are either expressed to survive its termination or expiry, or from their nature or context it is contemplated that they are to survive such termination or expiry, shall remain in full force and effect notwithstanding such termination or expiry.

Any notice required to be delivered hereunder will be deemed delivered one Business Day after collection if sent by overnight courier service, and immediately if sent electronically. All notices to Ozone and Publisher will be sent to the contact as noted on the Service Order, or to the business address/contact generally used between the Parties.

16.1 This Agreement shall not be construed as creating a joint venture, partnership, agency or any other similar relationship between the Parties and neither Party shall have any authority to bind or make commitments on behalf of the other Party.

16.2 No Party may assign or otherwise transfer any of its rights or obligations under the Agreement without the other Party’s prior written consent (such consent not to be unreasonably withheld of delayed), except that each Party may assign this Agreement (a) to an acquirer of substantially all of its assets, or business by sale, merger or otherwise or (b) to an Affiliate.

16.3 The Publisher grants Ozone the limited right to use the Publisher’s name and logo in customer lists on Ozone’s website, in Ozone’s sales collateral and for informational materials related to the activities contemplated under this Agreement. Ozone may issue press releases or similar broad distribution marketing communications concerning this relationship only with the prior written consent of the Publisher.

16.4 The Publisher acknowledges and agrees that Ozone may make changes to the functionality of the Services at any time during the Term with or without notice, provided that any such changes do not involve a material deterioration to the Services.

16.5 If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Agreement and the remainder of the provision in question shall not be affected.

16.6 No failure or delay by either Party to exercise any right or remedy under the Agreement will be construed as a waiver of that right or remedy nor will any single or partial exercise of any right or remedy preclude the further exercise of that right or remedy.

16.7 If by reason of a Force Majeure Event a Party is prevented from performing, or is hindered or delayed in the performance of, any of its obligations under the Agreement, that Party shall be relieved of its obligations to perform such obligations until such Force Majeure Event no longer exists.

16.8 Ozone shall be entitled, without incurring any liability to Publisher (but without prejudice to its obligation to comply with its obligations to comply with the Agreement, including Clause 11), to immediately suspend its provision of the Services in part or in whole: (a) in the event of a Security Breach; (b) if continued provision of the Services would breach Applicable Laws or a lawful request of a regulator or supervisory authority; (c) Ozone receives a notice or a complaint from a regulator or supervisory authority indicating that the Services may not comply with Applicable Laws; or (d) in the event of a material breach, or any persistent breach, by the Publisher of this Agreement.

16.9 A person who is not a party to this Agreement (including for the avoidance of doubt any Affiliate) has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.

16.10 This Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

16.11 Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England in relation to any claim or matter arising out of or in connection with this Agreement (including non-contractual disputes or claims).

Information sharing protocol

Ozone consists of the establishment of a shared technology platform:

• facilitating the sale of digital advertising on publishers’ websites;
• accessible to publishers in exchange for a fee; and
• providing Software as a Service (SaaS) to publishers, also in exchange for fees.

This Protocol sets out the basis on which information should be shared between Ozone and Publishers participating in Ozone, to ensure that the manner in which Ozone operates is compatible with applicable competition rules prohibiting the exchange of commercially sensitive information between competitors. It is intended that this Protocol will be updated and expanded in order to further protect the confidential information and commercial interests of Publishers.

Interpretation

In this Protocol:

1.1 Commercially Sensitive Information means any individualised confidential data regarding the commercial policy, performance or strategy of Publisher. This includes all data and information provided by Publisher to Ozone, in whatever form or medium (including, but not limited to, reserve pricing, performance metrics and volumes of inventory made available to Ozone) and all information developed or derived therefrom by or on behalf of Ozone, together with all data and information generated by or on behalf of Ozone which relates to Publisher or its Publisher Inventory.

1.2 Commercial Role means any role involving digital advertising sales, in particular any role involving responsibility for negotiating the prices or other terms and conditions at which digital advertising inventory is sold.

Information-sharing between Ozone publishers and Ozone

2.1 Publisher may share Commercially Sensitive Information with Ozone on a bilateral basis. Ozone will provide Publisher with Commercially Sensitive Information relating only to the Publisher. This means that:

• (a) Ozone will not disclose nor make available Commercially Sensitive Information regarding Publisher to any Other Publisher;
• (b) any sales or other data reported by Ozone to its Affiliates will only relate to the Affiliate or to Ozone’s performance in aggregate (e.g., Ozone’s total sales or average prices for categories of inventory) and not to sales made by Publisher;
• (c) For the avoidance of doubt, Ozone’s Affiliates may have access to aggregated information or information relating to Ozone itself (e.g. fees charged to Publisher and Other Publishers for access to Ozone’s services, or Ozone’s market share relative to that of other advertising sales platforms or channels), provided this does not constitute or include Commercially Sensitive Information relating to Publisher.

2.2 Ozone will develop and implement a detailed security and access control policy (Security Policy) in order to restrict access to and protect Commercially Sensitive Information and will provide compliance training to its officers, employees and sub-contractors, and will ensure that its officers, employees and sub-contractors owe duties of confidentiality in respect of Publisher’s Commercially Sensitive Information.