Peach platform agreement - General Terms

These terms and conditions (the "General Terms"), together with the Commercial Terms and the Rate Card, govern the provision of the Services. 

1. Definitions

Unless otherwise expressly stated, the following definitions shall have the following meanings when used in this Agreement:

Account: the protected webpages accessible on the Platform by You or Your Authorised Third Parties via a password.

Affiliate: in relation to a party, a person who is, from time to time, a subsidiary or holding company of that party, or is a subsidiary of that party's holding company.

Agreement: means, together, the General Terms, the Commercial Terms and the Rate Card.

Applicable Law: all relevant laws, regulations or directives, regulatory policies, guidelines or industry codes which apply to the provision of the Services.

Authorised Third Party: those third parties that are authorised by You from time to time to be able to use the Platform to commit Orders and/or enter Media Instructions and/or enter Content Metadata and/or upload or download Content on Your behalf, as notified to Us pursuant to clause 4.1. For the avoidance of doubt, such third parties may include production companies, post production companies, media agencies, creative agencies and/or Broadcasters.

Broadcaster: television broadcaster, broadcaster vendor such as an outsourced transmission company, website operator, ad network, ad exchange, ad server, radio station operators or any other entity capable of broadcasting and/or making Content available to the public.

Business Day: a day other than a Saturday, Sunday or bank or public holiday in England.

Charges: the charges payable pursuant to this Agreement.

CPI Increase: the percentage increase in the UK consumer price index as most recently published by the Office for National Statistics (or any government department to which duties in connection with the consumer price index shall be devolved) over the same period in the previous twelve months.

Commercial Terms: any Customer-specific terms agreed between You and Us, which may be recorded on the Commercial Terms & Rates page or appendix. 

Content: the video or audio material which is or may be intended to be broadcast or otherwise made available to the public uploaded to the Platform by You or on Your behalf by an Authorised Third Party and, if applicable, any related content.

Content Metadata: the market specific key metadata for each item of Content such as - advertiser, product, title, duration, key number or local equivalent, format (SD/HD), creative agency name, post house name, media agency name, first airdate and music information.

Customer or You: the company or other legal entity who has accepted (or is deemed to have accepted) these General Terms and to whom we provide the Services pursuant to this Agreement. 

Customer Confidential Information:

1. any information disclosed by the Customer to Peach whether relating to itself or the Customer’s own client who owns the rights in the Content during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure (i) was marked as "confidential"; or (ii) should have been reasonably understood by Peach to be confidential; and

2. the Customer Data.

Customer Data: all data, works and materials (other than Content) uploaded to or stored on the Platform by the Customer, transmitted by the Platform at the instigation of the Customer, supplied by the Customer to Peach for uploading to, transmission by or storage on the Platform or generated by the Platform as a result of the use of the Hosted Services by the Customer.

Data Protection Legislation: any law applicable from time to time relating to the processing of personal data and/or privacy, as in force at the date of this Agreement or as re-enacted, applied, amended, superseded, repealed or consolidated, including without limitation, the Data Protection Act 2018, the GDPR and the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case including any legally binding regulations, directions and orders issued from time to time under or in connection with any such law.

Documentation: any documentation for the Services produced by Peach and made available by Peach to the Customer from time to time.

EU GDPR: the EU General Data Protection Regulation 2016/679.

Force Majeure Event: an event, or a series of related events, that is outside the reasonable control of the party affected (including hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics and pandemics, explosions, fires, floods, riots, terrorist attacks and wars).

GDPR: as relevant, the EU GDPR or the UK GDPR.

Hosted Services: the services offered by Peach by which Content is delivered to Publishers and which will be made available by Peach to the Customer as a service via the internet in accordance with this Agreement, including access for the Customer to the Platform and Your Account.

Hosted Services Defect: means a defect, error or bug in the Platform, but excluding any defect, error or bug caused by or arising as a result of:

1. any act or omission of the Customer or any Authorised Third Party;

2. any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by an Authorised Third Party;

3. a failure of the Customer to perform or observe any of its obligations in this Agreement (or to procure such performance or observance by an Authorised Third Party); and/or

4. an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software.

Hosted Services Specification: www.peach.me (as it may be updated from time to time)

Intellectual Property Rights: patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including knowhow and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Maintenance Services: the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades.

Media Instructions: the information to accompany all Content which should be submitted to Us via the Platform specifying inter alia the channels or delivery points for the uploaded Content.

Order: any request for Services submitted in accordance with clause 4.

Platform: the platform made available via browser access over the internet pursuant to which the Content may be uploaded, Media Instructions entered, Content Metadata entered and Orders committed for the Services. The Platform may be branded as (without limitation) "IMD Cloud", "Peach" or "Honeycomb".

Provider means the entity identified as such in the Commercial Terms. 

Publishers: television or radio broadcasters and digital platforms publishing content or advertising.

Rate Card: the rate card published by Peach from time to time or any alternative basis for charging agreed in writing between the parties, including as may be set out in the Commercial Terms.

Services: the services provided by Peach pursuant to this Agreement, as may be further detailed in the Commercial Terms and including (as relevant) the Hosted Services, the Maintenance Services and the Support Services.

Support Services means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services.

Supported Web Browser: means an appropriately recent release from time to time of [any web browser identified as compatible in the Hosted Services Specification] or any other web browser that Peach agrees in writing shall be supported from time to time. 

Technical Specifications: means the specifications required for the uploading of Content to the Platform which are available at https://peachme.zendesk.com/hc/en-us/categories/4406281019793-Technical-Specifications (as they may be updated from time to time).

Term: the term of this Agreement.

Terms of Use: the online terms governing access for Authorised Third Parties to the Customer Account, use of the Platform by Authorised Third Parties and use of Our website which are available at www.peach.me/terms (as they may be updated from time to time).

Update: a hotfix, patch or minor version update to any Platform software.

Upgrade: a major version upgrade of any Platform software.

UK GDPR means the UK GDPR, as defined in section 3 of the Data Protection Act 2018.

We, Us, Our or Peach: means IMD Media Ltd (trading as "Peach") acting for itself and as agent for the Provider.  

2. Supply of Services

2.1 We shall supply the Services during the Term in accordance with this Agreement.

2.2 In supplying the Services, We shall:

2.2.1 perform the Services with reasonable care, skill and diligence in accordance with good industry practice;

2.2.2 perform the Services in accordance with the applicable service level set out in the Commercial Terms; and

2.2.3 hold all Content in safe custody, maintain the Content in good condition, and not dispose of or use the Content other than in accordance with Your or Your Authorised Third Parties' instructions for the period of time necessary to perform the Services.

3. Hosted Services

3.1 Peach hereby grants to the Customer a non-exclusive licence to use the Hosted Services by means of a Supported Web Browser to enable the Customer to make arrangements for delivery of Content to Publishers through the Platform during the Term.

3.2 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by Peach to the Customer under clause 3.1 is subject to the following prohibitions:

3.2. 1 the Customer must not sub-license its right to access and use the Hosted Services; and

3.2.2. the Customer must not permit any person other than the Authorised Third Parties to access or use the Hosted Services (and must take all necessary steps, including implementation of appropriate security measures to ensure that no unauthorised third parties gain access to the Account or otherwise access or use the Hosted Services).

3.3 Peach shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer but does not guarantee 100% availability. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of the foregoing obligation:

3.3.1 a Force Majeure Event;

3.3.2 a fault or failure of the internet or any public telecommunications network;

3.3.3 a fault or failure of the Customer's computer systems or networks;

3.3.4 any breach by the Customer of this Agreement; or

3.3.5 scheduled maintenance carried out in accordance with this Agreement.

4. Customer Obligations

4.1 You shall:

4.1.1 notify Us from time to time via the Platform of Your Authorised Third Parties; and

4.1.2 procure that Your Authorised Third Parties co-operate with Us in all matters relating to the Services.

4. 2 You shall be entitled to submit Orders on the Platform. You may authorise Your Authorised Third Parties to submit Orders on the Platform on Your behalf. We shall be entitled to assume that any Order placed by an Authorised Third Party has been authorised or instructed by You. Any such Orders will be upon and subject to these General Terms and You shall be liable for any Orders committed to by any such Authorised Third Party via Your Account.

4.3 We will provide passwords to enable access to the Platform by You and any Authorised Third Parties who You notify to Us in accordance with clause 4.1.1. We shall have no liability to You for any unauthorised access to the Account made by means of Your or Your Authorised Third Parties' password(s) from time to time.

4.4 We shall remain liable solely to You in relation to the Services. We shall have no liability to any Authorised Third Parties.

4.5 You warrant to Us that no Content shall contain any virus, software, code or data that will or may cause corruption or any other form of damage to any element of the Platform and that all Content will comply with Applicable Law.

4.6 You shall at all times comply with the Terms of Use and shall ensure that all Authorised Third Parties and all persons using the Hosted Services by means of an Account comply with the Terms of Use.

4. 7 Without prejudice to the Terms of Use, You agree that You must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

4.8 The Customer must not use the Hosted Services:

4.8.1 in any way that is unlawful, illegal, fraudulent or harmful; or

4.8. 2 in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4. 9 If the Commercial Terms specify that Peach will provide the Services (or any element of them) on an exclusive basis or this has otherwise been agreed in writing between You and Us, You agree not to procure and shall not request any third party to procure any services which are competitive with or in substitution for the Services (or the relevant element of them) from any person other than Us and/or our Affiliates during the continuance of this Agreement unless and only to the extent that one or more of Your clients require that You use an alternative provider.

5. Intellectual Property

5.1 You warrant that You either own, or have the right to use and grant Us a licence to use, the Content and all Intellectual Property Rights associated with such Content. Should You not (or no longer) own the Content or have such a right to use the Content and/or the associated Intellectual Property Rights, You acknowledge and agree that we shall be permitted to withdraw Your access to the Content and We shall have no liability to You for any losses arising whatsoever in connection with such withdrawal.  

5.2 We shall retain ownership of all Intellectual Property Rights in the Platform.

5.3 In consideration of the Charges, we grant to You a fully paid-up, non-exclusive, royalty-free licence to use the Platform solely for the purpose of using the Services.

5.4 You may sub-license the right granted in clause 5.3 to:

5.4.1 Your Affiliates; and/or

5.4.2 Your Authorised Third Parties for the sole purpose of Your receipt of the Services.

5.5 You grant to Us and/or Our Affiliates (as necessary) a non-exclusive, royalty-free licence to receive, store, process and/or make available (in accordance with Your instructions) the Content for the purposes of providing the Services and for analytics purposes.

5.6 You shall keep Us indemnified in full against any and all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Us as a result of or in connection with any claim brought against Us alleging that our receipt, distribution or the subsequent use by a Broadcaster of any Content:

5.6.1 infringes a third party's Intellectual Property Rights;

5.6.2 is libellous or defamatory; or

5.6.3 is contrary to Data Protection Legislation or any other Applicable Law.

This clause 5.6 shall survive the termination of the Services and/or the termination of this Agreement.

5.7 We shall:

5.7.1 notify You in writing of any claim against Us in respect of which We wish to rely on the indemnity at clause 5.6 (a "Claim");

5.7.2 allow You, at Your own cost, to conduct all negotiations and proceedings and to settle the Claim, always provided that You shall obtain Our prior approval of any settlement terms, such approval not to be unreasonably withheld; and

5.7.3 provide You with such reasonable assistance regarding the Claim as is required by You, subject to reimbursement by You of Our costs so incurred.

5.8 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

5.9 The parties acknowledge and agree that, for the avoidance of doubt, nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Peach to the Customer, or from the Customer to Peach.

5.10 Peach warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction.

5.11 If Peach reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, Peach may at its own cost and expense:

5.11.1 modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

5.11.2 procure for the Customer the right to use the Hosted Services in accordance with this Agreement.

6. Security and Confidentiality

6.1 The Platform will be operated with a view to maintaining the full security and confidentiality of Content, Content Metadata and Media Instructions but We will have no further obligations or liability in respect of maintaining security or confidentiality. In particular and without limitation We cannot accept any liability in respect of any breach of security or confidentiality arising out of (i) the delivery of Content to Peach via electronic means and/or the submission of Media Instructions to the Platform or (ii) the operations of the owner(s) of the telecommunication lines used by the Platform or (iii) anything done or not done by the Broadcasters on receipt of any Content or Content Metadata.

6.2 Without prejudice to clause 6.1 but subject to clause 6.3, Peach will:

6.2.1 keep the Customer Confidential Information confidential;

6.2.2 not disclose the Customer Confidential Information to any person without the Customer's prior consent; and

6.2.3 use the same degree of care to protect the confidentiality of the Customer Confidential Information as Peach uses to protect Peach's own confidential information of a similar nature, being at least a reasonable degree of care.

6.3 Notwithstanding clause 6.2, Peach may disclose the Customer Confidential Information to Peach's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

6.4 This clause 6 imposes no obligations upon Peach with respect to Customer Confidential Information that:

6.4.1 is known to Peach before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

6.4.2 is or becomes publicly known through no act or default of Peach; or

6.4.3 is obtained by Peach from a third party in circumstances where Peach has no reasonable belief that there has been a breach of an obligation of confidentiality.

6.5 The restrictions in this clause 6 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of Peach on any recognised stock exchange.

6.6 The provisions of this clause 6 shall continue in force for a period of five years following the termination of this Agreement, at the end of which period they will cease to have effect.

7. Customer Data

7.1 The Customer hereby grants to Peach a non-exclusive, royalty-free licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Customer Data, and to use the Customer Data for analytics purposes. 

7.2 The Customer warrants to Peach that the use of the Customer Data and distribution of Content by Peach in accordance with this Agreement will not:

7.2.1 breach the provisions of any Applicable Law;

7.2.2 infringe the Intellectual Property Rights or other legal rights of any person; or

7.2.3 give rise to any cause of action against Peach,

in each case in any jurisdiction.

8. Charges and Payment

8.1 You agree to pay the Charges for the Services in accordance with the terms of this Agreement and as set out in the Rate Card.

8.2 You acknowledge and agree that, subject to any agreement to the contrary in writing between the parties, the Rate Card may be adjusted from time to time at Peach's sole discretion, save that the amount of any increase in excess of the CPI Increase shall be subject to Us providing You with prior written notice. 

8.3 We will promptly invoice You in respect of fulfilment of Services. It is an essential condition of these Terms that all invoices (together with VAT thereon) are paid within 30 days of the date of the invoice.

8.4 It is an essential condition of the Terms that any purchase order that you require in order to pay an invoice is obtained and sent to Us with a purchase order number before any Order is made by You.

8.5 We will invoice on the basis of Media Instructions received by Us at the time that the Order is placed so that any future removal of Broadcasters will not reduce the invoiced amount after distribution of any Content.

8.6 No charge will be made where We make available any Content in error. Where We have agreed to this in the Commercial Terms or otherwise in writing in advance, reduced Charges may apply where We do not meet any agreed service levels.

8.7 In the event that any undisputed payment due to Us by You is more than 14 days overdue, We shall, without further notice and without prejudice to any of Our other remedies, be entitled to immediately suspend the provision of the Services and be paid interest on the sums outstanding from the date payment was originally due at a rate of 5% per annum above the Bank of England base rate from time to time for the period such sums remain unpaid, and in addition We shall be entitled to be reimbursed for any reasonable costs that may be incurred by Us in recovering such sums. 

8.8 For the avoidance of doubt, You shall be solely responsible for the payment of all air time fees and charges payable to any Broadcaster including without limitation cancellation fees and late copy surcharges.

8.9 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding.

8.10 Peach reserves the right to carry out checks at any time in order to satisfy itself as to the creditworthiness of a Customer before providing, or continuing to provide, the Services.

9. Limitation of Liability

9.1 Nothing in this Agreement:

9.1.1 shall limit or exclude either Your or Our liability for:

9.1.1.1 death or personal injury caused by negligence, or the negligence of Your or Our (as applicable) employees, agents or subcontractors; 

9.1.1.2 fraud or fraudulent misrepresentation; or

9.1.1.3 any other liability which cannot be limited or excluded by Applicable Law; or

9.1.2 shall limit or exclude Your liability under clause 5.6, clause 7.2 or 13.1 or any obligation to pay the Charges.

9.2 Subject to clause 9.1, neither party shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect, special or consequential loss or damage arising under or in connection with this Agreement including without limitation, loss of profits, loss of revenue, loss or corruption of any data, database or software, loss of business opportunity, or any loss of use or production.

9.3 Subject to clause 9.4 below, (i) your aggregate liability to Peach; and (ii) the aggregate combined liability of IMD Media Ltd and the Provider under this Agreement in any rolling 12-month period shall not exceed the greater of:

9.3.1 £50,000; and

9.3.2 the total amount paid and payable by the Customer to Peach under this Agreement in the 12 month period preceding the commencement of the event or events. 

9.4 Peach’s liability for any failure on its part that results either in the non-transmission of material for broadcast uploaded by the Customer or the transmission of incorrect broadcast material will not exceed the level of Peach’s insurance cover from time to time. As at July 2022 that cover was in the amount of £2,000,000 per claim or claims arising from the same circumstance and in the aggregate per annum.

9.5 This clause 9 shall survive termination of the Services and/or the termination of this Agreement.

10. Term and Termination of Services

10.1 This Agreement takes effect on the earlier of:

10.1.1 the date that you click to accept the General Terms in the course of registering for an Account; or

10.1.2 the first date on which You or an Authorised Third Party places an Order,

and shall continue in force unless and until terminated by either party in accordance with this clause 10.

10.2 Without affecting any other right or remedy available to Us, Peach may terminate this Agreement with immediate effect by giving written notice to the Customer if:

10.2.1.1 the Customer fails to pay any undisputed amount due on the due date for payment and remains in default more than thirty days after being notified in writing to make such payment;

10.2.1.2 the Customer commits a material breach of any other term of this Agreement or the Terms of Use which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty days after being notified in writing to do so;

10.2.1.3 the Customer repeatedly breaches any of the terms of this Agreement or the Terms of Use in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to comply with the terms of this Agreement

10.2.1.4 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;

10.2.1.5 the Customer enters into any compromise or arrangement with its creditors or a petition is filed or a notice is given, or a resolution is passed, or an order is made, for or in connection with the winding up of the Customer in each case OTHER THAN for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

10.2.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;

10.2.1.7 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2.1.4 to clause 10.2.1.6 (inclusive)

10.3 We also reserve the right to suspend or end the Services at any time at Our discretion and without notice:

10.3.1 if we reasonably suspect that You are not complying with any term of this Agreement;

10.3.2 if Your use or use by Your Authorised Third Parties of the Services is in a manner that could reasonably be expected to cause Us legal liability, disrupt the Services or disrupt others' use of the Services; or

10.3.3 for non-use of the Services or inactivity on the Platform for a period of three years or more. 

10.4 On termination of this Agreement, for any reason whatsoever or howsoever:

10.4.1 all amounts owing by You to Us will become immediately due and owing and will be settled in full by You;

10.4.2 Peach must refund to the Customer any Charges paid by the Customer to Peach in respect of Services that were to be provided to the Customer after the termination of this Agreement (less any costs reasonably incurred by Peach in preparation for the provision of those Services);

10.4.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall not be affected; and

10.4.4 the following clauses shall continue in force: clause 5.6 (Your indemnity), clauses 5.8 and 5.9, clause 6, clause 9 (Limitation of Liability), this clause 10.4 and clauses 20 to 29 (inclusive).

10.5 The Customer hereby acknowledges and agrees that Peach shall not be required on termination of this Agreement to delete or return digital files in its possession.

10.6 Termination of this Agreement shall not affect the accrued rights of either party.

11. Maintenance and Support Services

11.1 Peach shall, where practicable, give to the Customer reasonable prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to Peach's other notice obligations under this Agreement.

11.2 Peach shall make available to the Customer a helpdesk which may be used by the Customer for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

11.3 Peach shall respond within a reasonable period of time to all requests for Support Services made by the Customer through the helpdesk.

12. Warranties and Warranty Limitations

12.1 Each party warrants to the other that:

12.1.1 it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and

12.1.2 it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under this Agreement.

12.2 Peach warrants to the Customer that:

12.2.1 the Hosted Services will be substantially (but not completely) free from Hosted Services Defects; and

12.2.2 the Platform will incorporate security features reflecting the requirements of good industry practice.

12.3 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

12.4 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, Peach gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

12.5 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, Peach gives no warranty or representation that the Hosted Services will be entirely secure.

12.6 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification and Peach does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

13. Customer Acknowledgements

13.1 Publishers will indicate to Peach in respect of any distribution to them of Content whether they wish that content to be sent to them or whether they would prefer that they “pull” that content as and when they need it. Where the latter election has been made Peach cannot be and is not responsible to the Customer or its own client in any way for any failure on the part of the Publisher to pull the content and the Customer hereby indemnifies Peach for any costs, claims, damages or expenses incurred by or awarded against Peach as a result of any claim made against Peach by a third party arising out of any such failure. In addition, Peach shall not be liable for any failure on the part of the Customer to upload Content properly onto the Platform.

13.2 The Customer acknowledges that Peach will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in this Agreement, Peach does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

14. Entire Agreement and Order of Precedence

14.1 This Agreement shall constitute the entire agreement between You and Us regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, arrangements, undertakings, proposals or representations, written or oral, concerning such subject matter.

14.2 In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the Rate Card, (2) the Commercial Terms and (3) these General Terms.

15. Manner of Giving Notice

15.1 Except as otherwise specified in these General Terms, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon:

15.1.1 personal delivery, or

15.1.2 the second Business Day after mailing; or

15.1.3 the first Business Day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim or any legal proceedings).

15.2 Billing related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the contact person as specified in the Commercial Terms. 

15.3 Any notices to be Peach must be sent:

15.3.1 By personal delivery or post: IMD Media Ltd, 10 John Princes St, London, W1G 0JW

15.3.2 By email: kim.clarke@peach.me.

15.4 A party may change its details for service of notices by giving written notice to the other party.  Any change notified pursuant to this clause 15.4 will take effect at 9.00am on the date falling five Business Days after deemed receipt of such notice.  In the meantime, service on the relevant party at its previous or updated notice details shall be valid.

16. Third Party Rights

A person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement. For the avoidance of doubt, no Authorised Third Party shall have any right to enforce any term of this Agreement.

17. Force Majeure

17.1 promptly notify the other; and

17.2 inform the other of the period for which it is estimated that such failure or delay will continue.

17.2.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

17.2.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

18. Data Protection 

18.1 Both parties acknowledge their respective duties under such data protection legislation as may be applicable to them from time to time. To the extent relevant, each party undertakes to comply with their obligations and duties (if any) under such legislation and shall give all reasonable assistance to each other where appropriate or necessary.

18.2 In this clause 18, the terms "data processor", "data controller", "data subject" and "processing" shall be as defined in the Data Protection Legislation.

18.3 The Customer warrants to Peach that it has the legal right to disclose all personal data that it does in fact disclose to Peach under or in connection with this Agreement.

18.4 To the extent that Peach processes any personal data that is subject to the GDPR as a data processor on behalf of the Customer as a data controller, the following provisions will apply:

18.4.1 Peach shall: 

a. Process the personal data only on documented instructions from the Customer, including with regard to transfers of personal data to a third country or an international organisation, unless:

i. required to do so by applicable law, in which case Peach will notify the Customer of this before performing the processing, unless the law prohibits such information on important grounds of public interest; or

ii. in its opinion, an instruction given by the Customer infringes the Data Protection Legislation, in which instance Peach will immediately inform the Customer of such opinion;

b. ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

c. take all measures required pursuant to Article 32 GDPR;

d. taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests for exercising the data subject's rights under Chapter III GDPR;

e. assist the Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 GDPR taking into account the nature of processing and the information available to Peach;

f. at the choice of the Customer, delete or return all the personal data to the Customer after the end of the provision of the Services relating to processing, and delete existing copies unless Applicable Law requires storage of the personal data; and

g. make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this clause 18.4 and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer.

18.5 In the event that the processing requires Peach to transfer the personal data outside of the EEA or the UK (as relevant), Peach will ensure appropriate safeguards are put in place to ensure such transfer complies with the requirements of the GDPR.

18.6 The Customer grants Peach a general authorisation to engage sub-processors to provide the Services on behalf of Peach. When engaging a sub-processor, Peach will ensure that such sub-processor is engaged by way of a written agreement that imposes on such sub-processor that are substantially equivalent to the obligations imposed on Peach pursuant to this clause 18. As between the Customer and Peach, Peach will remain liable for all acts or omissions of any sub-processor appointed by it with respect to the processing of personal data. Peach will inform the Customer of any intended changes concerning the addition or replacement of any sub-processors that will process the personal data.

19. Anti-Bribery

19.1 Neither party will and nor will any of their officers, employees, representatives or agents, directly or indirectly, either in private business dealings or in dealings with the public sector, offer, give or agree to offer or give (either itself or in agreement with others) any payment, gift or other advantage (whether or not by using any payments under this Agreement) with respect to this Agreement which (i) would violate any anti-corruption laws or regulations applicable to such party and its Affiliates, (ii) is intended to, or does, influence any person to act or reward any person for acting in breach of expectation of good faith, impartially or trust, or which it would otherwise be improper for the recipient to accept (iii) is made to or for a public official with the intention of influencing them and obtaining or retaining an advantage in the conduct of business, or (iv) which a reasonable person would otherwise consider to be unethical, illegal or improper.

20. Interpretation

20.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

20.1.1 any schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Commercial Terms and the Rate Card;

20.1.2 a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;

20.1.3 unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;

20.1.4 a reference to writing or written includes e-mail (unless otherwise expressly stated);

20.1.5 any obligation on a party not to do something includes an obligation not to allow that thing to be done; and

20.1.6 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

20.1.7 The following rules of interpretation apply in this Agreement:

20.2 Clause and schedule headings shall not affect the interpretation of this Agreement:

21. No Waiver

21.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

21.2 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by Applicable Law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by Applicable Law shall prevent or restrict the further exercise of that or any other right or remedy.

22. Severance

22.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

23. Assignment and Other Dealings

23.1 You shall not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without Our prior written consent.

24. No Partnership

24.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party save that You authorise Authorised Third Parties to place Orders on Your behalf. 

25. Variation

This Agreement may not be varied except by a written document signed by or on behalf of each of the parties. 

26. Governing Law

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

27. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (of whatever kind and however it arose) arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).