NGAMIA MARQUEE ADVERTISEMENT
TERMS & CONDITIONS FOR THE SALE OF THIRD-PARTY DIGITAL ADVERTISING
All advertisements accepted for publication by NHP in any of its online products are accepted subject to these terms and conditions. Any other conditions proposed by the Client shall be void unless accepted by NHP in writing.
These terms and conditions, in conjunction with the Marquee Advert Insertion Process (“MAIP”) comprise the agreement between NHP and the Client(“Agreement”).
3rd Party Ad Server means a third-party providing advertising of the Advertiser’s products and services that are identical or similar to those that are subject to the relevant MAIP;
Ads means advertising communicated to end users by an online distribution system;
Advertiser means the party whose products and/or services are to be advertised pursuant to the Deliverables;
Advertising Materials means advertising copy, including, without limitation, artwork, text, videos, photos and active URLs.
Affiliate means in respect of any person to whom the term Affiliate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
Agency means an advertising agency representing the Advertiser;
Algorithm means a process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer.
Campaign Period means the period of time during which the campaign subject to the relevant MAIP is to be operative;
Clicks/Visits means an act of selecting an option on an online interface by pressing a button or touching a screen.
Customer/Viewer means unique users who are exposed to the content on marquee platform
Client means the party purchasing the right to advertise pursuant to the Deliverables;
Deliverables means the type and amount of the service required including, without limitation, page impressions/views, clicks/visits or other actions specified and agreed by the parties e.g. Data Analytics irrespective of the delivery systems and platforms to which they are directed.
Impressions/Views means the number of times content on the Marquee is displayed to the target audience i.e. viewers
Licensor means NHP Limited, whose registered office is at Methodist Ministries Centre, Block B, 3rd Floor, Oloitokitok Road, Lavington, Nairobi.
MAIP means a campaign insertion order specifying the terms on which NHP will provide the Deliverables;
Personal Data has the definition applied to it in the Data Protection Act 2019.
Policies means NHP’s editorial policies from time to time including without limitation privacy policies, user experience policies, policies regarding consistency with NHP’s public image, community standards regarding obscenity or indecency, other editorial or advertising policies;
Platforms means those applications, apps, and/or websites owned or controlled by NHP or the Licensor.
Technical Specifications means the delivery format of the Advertising Materials required to ensure that the visual appearance of the Ads as set out in the MAIP is accessible and capable of view on the platforms;
Total Cost means all sums under the terms of the MAIP exclusive of VAT, which shall be paid without set-off.
MARQUEE ADVERT INSERTION PROCESSS (MAIP)
Parties may negotiate MAIPs under which NHP will deliver Ads provided by the Client on the platform(s) for the benefit of the Advertiser.
In each case, NHP shall provide the Advertiser/Client an MAIP which shall specify:
(a) the Deliverables;
(b) the price(s);
(c) the package expense the Client wishes to incur pursuant to the MAIP (if applicable);
(d) the start and end dates of the campaign;
(e) the identity of and contact information for any 3rd Party Ad Server, if applicable.
(f) any special Ad delivery scheduling and/or Ad placement requirements; and
(g) editorial adjacency requirements, if any; and
(h) Technical Specifications.
Both parties must agree in writing to a revision of an MAIP previously accepted.
AD PLACEMENT AND POSITIONING
NHP will use the Marquee Platform Algorithm (MPA) to display/transmit the Advertising copy during the Campaign Period in accordance with the terms of the MAIP.
NHP will provide to the Client within 48-hours of acceptance of an MAIP revised Technical Specifications, as agreed upon by the parties. If NHP changes such Technical Specifications after that 48-hours period it will allow the Client to suspend/reschedule delivery of the affected Ad for a reasonable time in order to either:
allow the Client to revise online the Advertising Materials; or
allow Client/Advertise to resize the Ad with creative approval of Customer, within a reasonable time period to fulfil the guaranteed levels of the MAIP; or
In the event that Client fails to comply with the editorial adjacency requirements set out in the MAIP, the Client should contact NHP Customer Care Support for assistance.
NHP shall deliver the relevant campaign in accordance with the click through rates and/or video packages as specified in the MAIP.
PAYMENT TERMS & LIABILITIES
NHP shall render an electronic means/notification to the Client for all sums due to NHP pursuant to this Agreement at intervals based on client request to continue advertising.
The Client will be responsible for payment of VAT and/or any other applicable digital tax.
The ad will start running after payment is complete and upon internal ads approvals.
Clicks and Package prices shall be adjusted at NHP discretion
Price changes shall not affect the existing campaigns/adverts
If the Client wishes to postpone the Campaign Period NHP shall consider such request in good faith but shall have no obligation to consent to such postponement.
CANCELLATION AND REVISION
The Client may not cancel the MAIP once an advert has been published.
In the event that a Client seeks to revise an MAIP Client must get in-touch with NHP Customer care Support
NHP may terminate an MAIP at any time if the Client is in material breach of its obligations
Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, third party platforms, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.
In the event that NHP suffers such a delay or default, NHP shall use its reasonable endeavors within five business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or other arrangement is reasonably acceptable to the Customer,
To the extent that a force majeure has continued for 10 business days, NHP or Client has the right to cancel the remainder of the MAIP without penalty.
The Client shall submit Advertising Materials for approval at least 48-hours before the commencement of the Campaign Period in accordance with NHP’s prevailing advertising criteria or specifications (including Content Limitations, agreed Technical Specifications, Policies, and Material Due Dates).
NHP reserves the right within its discretion to reject or remove from its platforms any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in NHP’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, NHP reserves the right within its discretion to reject or remove from its platforms any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon NHP or any of its Affiliates.
If Advertising Materials provided by the Client are damaged, not to NHP’s specifications, or otherwise unacceptable, NHP will use reasonable endeavors to notify the Client within 48-hours of its receipt of such Advertising Materials.
NHP shall at all times retain all right, title and interest in any intellectual property rights in Advertising copy produced on behalf of the Client by NHP.
The parties will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms and Conditions or an MAIP without the other’s prior written approval.
The Client hereby warrants, represents and undertakes to NHP that:
In respect of the Advertising Copy or any part thereof supplied by the Client or any other material provided to NHP by the Client(including the Customer’s and/or Advertiser’s brand) it will not infringe the copyright, trade mark or any other intellectual property or other proprietary rights or be defamatory of any third party or obscene, indecent, offensive or liable to incite racial hatred and their publication by NHP will not give rise to a right for any third party to claim payment and/or damages;
The Client has taken or will take all necessary steps to ensure that all advertising it provides for display on the Site will not be illegal or actionable for any reason in any territory and shall comply with all applicable legislation, rules and regulations including for the avoidance of doubt any applicable advertising and/or relevant financial services standards and codes;
If any Advertising Copy contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or copy by which any living person is or can be readily identified, the Client warrants that the Client and/or the Advertiser has obtained the authority of such living person to make use of such name, representation and/or copy.
The Advertising Copy contains no viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, service, infrastructure or personal information
The Client is solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Advertising Copy relates and will indemnify and hold NHP harmless accordingly.
it will comply fully with the requirements of the Data Protection Act 2019 (as will be amended from time to time).
NHP warrants that it is authorized by the Licensor to enter into agreements subject to these terms and conditions.
The Client will fully indemnify and keep NHP and its directors, officers and employees fully indemnified against all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses (including loss of profits) penalties, claims, demands and liabilities directly or indirectly suffered or incurred by NHP (or its directors, officers or employees) howsoever arising from any breach of the Customer’s warranties, obligations or agreements contained herein.
The Client will provide NHP with full co-operation in defending any claim or complaint concerning the Advertising Copy including, but not limited to, providing evidence in support of advertising claims and copies of documentation evidencing the clearance of relevant underlying third-party proprietary rights.
The Client acknowledges and confirms that NHP has not provided it with any guarantees concerning reach of the platform or target audience. Any statistics related to the platform provided to the Client are provided as an estimate based on prevailing available research only and may not be relied on by the Client as a representation or otherwise.
LIMITATION OF LIABILITY
NHP shall not be liable to the Client, under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, for any loss of profit, goodwill, business opportunity, anticipated saving or any type of special, indirect or consequential loss or damage.
Neither party’s liability to the other shall be excluded or limited by the provisions of this Agreement, save to the extent permitted by law in respect of:
death or personal injury resulting from the negligence of itself, its servants or agents;
any other liability the exclusion of which is prohibited or limited by law,
NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the MAIP, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary.
Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which:
was previously known to a party;
was or becomes generally available to the public through no fault of the receiving party (“Recipient”);
was rightfully in the Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”);
was developed by employees or agents of the Recipient independently of and without reference to any information communicated to Recipient by Discloser; or
was communicated by the Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other regulatory body, as otherwise required by law or the rules of any applicable regulator.
NHP and the Client shall comply with their respective privacy policies from time to time.
The Client shall not do, or attempt to do, any of the following without the prior written consent of NHP:
collect or use any data regarding the platforms, except that the Agency and Advertiser may use anonymous statistical data regarding a campaign that is gathered during delivery or tracking of Ads pursuant to the applicable MAIP (e.g., number of impressions, clicks or interactions), provided that such data does not contain or comprise any Personal Data, and does not identify or allow identification of NHP, the platform, any brand, content, context, or users of the platforms as such, and provided further that if such data is to be shared with any third party, such data shall not include or be combined with any details of the relevant campaign (e.g. pricing information, description of Ads activity, placement information, and any targeting information), any Personal Data, or any Confidential Information of NHP; or
use any data obtained from NHP, the platforms, or users of the platforms, to retarget any user of the Sites on any other website or to create or build a non-public profile of that user for purposes other than the performance of the relevant MAIP.
The Client may not resell, assign or transfer any of its rights or obligations hereunder.
All terms and provisions of these Terms and Conditions and each MAIP will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees (as applicable), successors and assigns (as applicable).
These Terms and Conditions and the related MAIP constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the MAIP. The MAIP may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
In the event of any inconsistency between the terms of an MAIP and these Terms and Conditions, the terms of the MAIP shall prevail.
These Terms and Conditions and the relevant MAIPs to which they relate shall be governed by and construed in accordance with the laws of Kenya, the courts of which shall have exclusive jurisdiction in connection with any dispute arising in respect of its terms, formation or construction (including non-contractual disputes).
If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect.
All rights and remedies hereunder are cumulative.
This Agreement may be executed by acceptance of terms. Each of the parties waives any and all rights to dispute the validity, legality or enforceability of such method of execution as evidence of the existence of legal relations pursuant to the Agreement for the purposes of proceedings issued in respect of any of its terms.