Terms & Conditions
Lift DSP Limited
1. Interpretation
1.1. The following definitions and rules of interpretation shall apply in these Terms & Conditions:
Advertising Content: the Customer's promotional, marketing and advertising material to be uploaded and displayed on the Advertising Inventory pursuant to the Sales Order Form.
Advertising Inventory: any media inventory, advertising space, placement, channel, platform, publisher, exchange, network, social media platform, messaging platform, influencer channel, clipping or content syndication channel, connected TV inventory or other medium on or through which the Advertising Content is placed, displayed, distributed or made available.
Affiliates: means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Applicable Law: all applicable laws, statutes, statutory instruments, regulations and codes (including all relevant advertising and marketing codes) from time to time in force.
Available Services: means the advertising buying, campaign management, optimisation, reporting, advisory and platform services offered by Lift from time to time including access to the Platform and services provided across Advertising Inventory.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Campaign: means each individual advertising campaign to be either (i) undertaken by the Customer via the Platform on a self service basis; or (ii) to be run and managed by Lift on the Customer's behalf using the Platform and specified in the Sales Order Form.
Contract: the legally binding contract between Lift and the Customer, comprising the Sales Order Form (and any change order or addendum to such Sales Order Form) and the Terms and Conditions.
Contract Term: the term of the Contract as determined in accordance with clause 3.1.
Creative and Content Guidelines: means Lift's acceptable use and creative policies and the minimum content standards required by Lift in respect of Advertising Content, as set out here in our Creative Policies and as varied from time to time.
Customer Data: means all Data made available by the Customer or its Users to Lift for use in connection with the Services or generated by the Customer via use of the Services including the Advertising Content and the analytics available on the Platform regarding the Services.
Customer Marks: the trade marks (whether registered or not) used, owned or licensed by the Customer, and the trading business name of the Customer, from time to time.
Data: means any text, images, documents, material, photos, audio, video, and all other forms of data or communication.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to Personal Data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including the privacy of electronic communications).
Deliverables: means any deliverables, documents, materials, information or data which is supplied by Lift to the Customer or its User in the provision of the Services (excluding Customer Data).
Effective Date: in relation to a Contract, the date specified in the relevant Sales Order Form.
Force Majeure Event: means any circumstance not within a party's reasonable control including acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on clause 16, or companies in the same group as that party); and interruption or failure of utility or internet services.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies whether mandatory or not), international and national standards, and sanctions, which are applicable to either the Customer or User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Initial Term: the initial minimum term of the Contract, commencing from the Effective Date, for such period as is set out in the Sales Order Form.
Intellectual Property Rights: any copyright, design right, database right, patent, trademark, or other intellectual or proprietary right (whether registered or unregistered), or any rights and forms of protection of a similar nature or having equivalent effect anywhere in the world.
Lift: means Lift DSP Limited (company registration number 12327780).
Media Budget: Means budgeted Media Fees.
Media Fees: Means spend including data and adserve costs, excluding Platform Fees.
Platform: means the Audience Management & Marketing platform made available by Lift including any relevant subdomains.
Platform Fee: the recurring fee payable by the Customer for access to and use of the Platform and related data, reporting and associated services, as set out in the Sales Order Form.
Sales Order Form: means each sales order form signed by duly authorised representatives of both parties, identifying the specific Services ordered by the Customer, the relevant Service Fees for such Services and any applicable Campaign details, and which incorporates these Terms & Conditions.
Service Fee: means the collective term used to describe all fees payable by the Customer for the Services, including the Platform Fee, Media Fee and any other fees or charges set out in the Sales Order Form or otherwise payable under this Agreement.
Services: the Available Services to be provided by Lift to the Customer, as set out in the Sales Order Form.
Supplier: means Lift, as the supplier of the Services under the Contract.
Terms & Conditions: these Terms & Conditions, as varied in accordance with clause 21.
Markets: means the countries, territories or geographic regions in which the Services or activities are to be performed.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (the "GDPR"); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Used Media Budget: the actual amount of the Media Budget spent, committed or incurred through the Services during the relevant period, excluding Service Fees unless otherwise stated in the Sales Order Form.
Users: means individuals who are authorised by the Customer to use the Platform. Users consist of any employee of the Customer and any independent contractor of the Customer.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
1.2 Rules of Interpretation
1.2. A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3. Unless stated otherwise, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other gender.
1.4. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.6. Clause, schedule and paragraph headings shall not affect the interpretation of these Terms & Conditions. References to clauses and schedules are to the clauses and schedules of these Terms & Conditions; references to paragraphs are to paragraphs of the relevant schedule to these Terms & Conditions.
1.7. In these Terms & Conditions, 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.
1.8. A reference to writing or written includes email.
2. Basis of Contract
2.1. Any order for Services received from the Customer constitutes an offer by the Customer to purchase Services in accordance with these Terms & Conditions.
2.2. An order for Services shall only be deemed to be accepted when both Lift and the Customer signs the Sales Order Form.
2.3. Any changes, variations or extensions to the Sales Order Form, including but not limited to the addition or revision of markets and budgets, shall only be valid if proposed and agreed in writing by both the Customer and the Supplier. Written agreement for the purposes of this clause includes agreement recorded by email. No change, variation or extension shall take effect unless accepted in writing by both parties, and until such acceptance, the original terms of the Sales Order Form shall continue to apply in full.
2.4. Any samples, drawings, descriptive matter or advertising issued by Lift and any descriptions or illustrations contained in Lift's website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.5. These Terms & Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6. To the extent Lift gives a quotation in connection with the Available Services, such quotation shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
2.7. The parties may enter into one or more Sales Order Forms. Each Sales Order Form, together with any related change order, addendum or other written variation agreed under clause 2.8, shall form a separate Contract incorporating these Terms & Conditions and shall set out the applicable Services, Campaigns, advertisers, territories, channels, budgets and Service Fees.
2.8. Any material change to the scope of the Services or a Campaign, including the addition of new brands, advertisers, fee structures or pricing arrangements, must be agreed in a further Sales Order Form or a written change order or addendum, including by email expressly approved by an authorised representative of each party, except to the extent permitted under clause 21.
2.9. Extensions to the term, or the addition of new territories or new channels, are permissible subject to a written request from the Customer and its acceptance by Lift.
2.10. Any reference to performance, including in the Sales Order Form, sales documents, or discussions between the parties, is indicative only. No such reference shall be construed as a guarantee, commitment, service level agreement (SLA), or warranty of any kind, and no liability shall attach to either party in respect of any failure to meet such indicative performance figures.
3. Term
3.1. The Contract shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with these Terms & Conditions, for the Initial Term set out in the Sales Order Form. Where the Services include access to the Platform and no Initial Term is specified in the Sales Order Form, the Initial Term shall be 12 months and shall automatically renew unless terminated with 30 days' written notice.
3.2. Following expiry of the Initial Term, the Contract shall continue unless and until either party gives the other not less than 30 days' written notice to terminate, such notice to expire no earlier than the end of the Initial Term.
3.3. The initial Term may be extended as requested by the Customer in writing without the need for a new Sales Order Form.
3.4. If an account remains dormant for a period of 6 months or more, and we do not receive any instructions from the Client during that period, we may, at our discretion, close the account. Any balance held on the account at the time of closure shall be forfeited and the Client shall have no further claim to it.
4. Managed Campaigns
4.1. Where Lift has agreed to run and manage a Campaign on behalf of the Customer using the Platform, the Sales Order Form shall set out the specific details and objectives of each Campaign.
4.2. The Customer shall ensure that the terms of any Sales Order Form are satisfactory for its purpose before agreeing to their terms and shall ensure that any details, information or specifications provided to Lift are complete and accurate.
4.3. Lift shall retain the right to refuse to publish the Advertising Content or to remove the Advertising Content from any Advertising Inventory if it, in its sole discretion, considers that such Advertising Content, or any material to which the Advertising Content links, either breaches (or might reasonably be considered as likely to breach):
4.3.1. these Terms & Conditions; and/or
4.3.2. the Creative and Content Guidelines.
4.4. The Services may be provided across one or more Advertising Inventory channels, whether managed by Lift or accessed by the Customer on a self-serve basis.
4.5. If Lift are unable to execute in the Customer's chosen territories or channels, we shall have the right to execute in an alternative territory or channel, subject to the mutual written agreement of both parties. For the avoidance of doubt, no change to the territory or channel shall take effect unless expressly agreed in writing by both parties in accordance with Clause 2.3 (Variations and Extensions to Sales Order Form). If the parties are unable to reach agreement on an alternative territory or channel, the Customer shall not be entitled to any refund, credit, or reduction in fees as a result.
5. Access to the Platform
5.1. Where Lift has agreed that the Customer can access the Platform to run and manage its own Campaign, Lift grants to the Customer during the Contract Term, a non-exclusive, non-transferable (except as set out in clause 18) right and licence, without the right to grant sublicences, to access and use the Platform and permit its Users to access and use the Platform solely in the course of the Customer's ordinary business purposes. This licence is restricted to use by the Customer and its Users and does not include the right to give access to the Platform to a third party including any subsidiary or holding company of the Customer.
5.2. The Customer is solely responsible for procuring, maintaining and securing the network connections that connect the Customer to the Platform, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
5.3. The Customer agrees:
5.3.1. that only the Users are permitted to use the Platform;
5.3.2. that it will ensure that its Users comply with these Terms & Conditions and it is liable for its Users' actions and/or failure to comply with the same;
5.3.3. not to access, store, distribute or transmit any material during the course of its use of the Platform that:
5.3.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
5.3.3.2. facilitates illegal activity;
5.3.3.3. depicts sexually explicit images;
5.3.3.4. promotes unlawful violence;
5.3.3.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
5.3.3.6. is otherwise illegal or causes damage or injury to any person or property;
5.3.4. to take all reasonable steps to protect the Platform and Deliverables from unauthorised use and/or access.
5.4. The Customer shall not:
5.4.1. except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means; or attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or access all or any part of the Platform in order to build a product or service which competes with the Platform; or
5.4.2. use the Platform to provide services to third parties; or
5.4.3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party except the Users, or attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under these Terms & Conditions; or
5.4.4. introduce or permit the introduction of, any Virus or Vulnerability into the Platform or Lift's network and information systems.
5.5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Lift.
5.6. Lift may, without incurring any liability whatsoever, block or suspend the Customer's access to the Platform in the event of an actual or suspected breach of these Terms & Conditions, for as long as Lift deems necessary in order to protect its legitimate business interests and those of its other customers.
5.7. Lift is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6. Intellectual Property
6.1. The Customer retains ownership of all right, title and interest in and to all Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
6.2. Lift retains ownership of all right, title and interest in and to the Platform, the Available Services and the Deliverables.
6.3. The Customer hereby grants Lift a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferable license (with the right to sub-license) to use, record, publish, distribute, prepare derivative works of, display and perform the Advertising Content and Customer Data for any purpose, including the exhibition, broadcast, promotion and redistribution of all or part of the Advertising Content (and derivative works thereof). The Customer further grants Lift a worldwide, non-exclusive, royalty-free, transferable licence (with the right to sub-license) to use and display the Customer Marks solely for the purposes of providing the Services and fulfilling Lift's obligations under the Contract, including the exhibition, broadcast, promotion and redistribution of the Advertising Content in which the Customer Marks appear. Any goodwill derived from use of the Advertising Content, the Customer Data and/or the Customer Marks shall accrue to the Customer.
6.4. Subject to these Terms & Conditions, and in consideration of the payment of the relevant Media Fees, Lift grants to the Customer and its Users, solely during the Contract Term, a non-exclusive, non-transferable licence to access and use any Deliverables solely for the purpose of enabling the Customer and its Users to receive the Services.
7. Warranties
7.1. The Customer represents, warrants and undertakes to Lift that all Advertising Content, Customer Marks, Customer Data and/or instructions given and/or made available to Lift in connection with the Services including in relation to any Campaign Lift is running and managing on the Customer's behalf and/or which the Customer uploads or makes available through the Platform shall:
7.1.1. comply with the Creative and Content Guidelines;
7.1.2. be accurate, complete and not include any false representations; and
7.1.3. comply with all Applicable Laws and all applicable third party platform, publisher and media owner policies in each territory in which the Advertising Content is targeted, displayed, distributed, made available or may reasonably be accessed; and
7.1.4. shall not infringe the rights (including Intellectual Property Rights) of, or cause harm to, any third party.
7.2. The Customer further represents, warrants and undertakes to Lift that, in each territory, jurisdiction or market in which the Advertising Content is to be displayed, targeted, distributed, made available or may reasonably be accessed:
7.2.1. the Customer and each relevant advertiser has obtained and shall maintain all licences, registrations, permissions, approvals, consents and authorisations required to advertise, market, promote, distribute or otherwise make available the relevant products or services;
7.2.2. the Customer is solely responsible for determining the territories, jurisdictions and audiences into which it may lawfully advertise and operate; and
7.2.3. the Customer is solely responsible for ensuring that all Advertising Content, sign-off materials, claims, disclosures, landing pages and campaign instructions are legally compliant in those territories, jurisdictions and markets. Lift shall have no liability for any failure by the Customer to comply with this clause.
7.3. The Customer represents, warrants and undertakes to Lift that:
7.3.1. it will co-operate with Lift in all matters relating to the Services in a timely and efficient manner;
7.3.2. it will obtain, prior to provision of the Customer Data to Lift, all appropriate waivers, licences, consents, authorisations or releases required for the Customer Data and any associated tracking activities to be used in accordance with the Contract and all Applicable Laws;
7.3.3. it shall provide to Lift in a timely manner all Data, documents, files, information, items and materials in any form (whether owned by the Customer or a third party) required under the Contract or otherwise reasonably required by Lift in connection with the Services and shall ensure that they are accurate, fit for purpose and complete in all material respects;
7.3.4. shall promptly notify Lift if at any time any such licence, registration, permission, approval, consent or authorisation is withdrawn, expires, is suspended, becomes subject to restriction, or is otherwise insufficient to permit the relevant Campaign or Advertising Content to continue in the relevant territory, jurisdiction or market; and
7.3.5. where it is accessing the Platform;
7.3.5.1. use the Platform in compliance with all Applicable Laws;
7.3.5.2. ensure that its network and systems comply with any relevant specifications provided by Lift from time to time;
7.3.5.3. ensure that any Users use the Platform in accordance with the Contract including these Terms & Conditions and shall be responsible for any User's breach of the Contract.
7.4. The Customer acknowledges that:
7.4.1. it has not relied on any statement, promise or representation made or given by or on behalf of Lift which is not set out in the Contract; and
7.4.2. it has not entered into the Contract based on delivery of any future functionality or features nor any dependent on any oral or written comments made by Lift regarding future functionality or features;
7.4.3. Lift gives no warranty that the results or outcomes of the Services (and/or any information obtained by the Customer through the Platform) will meet the Customer's requirements. For the avoidance of doubt, any case studies, examples, forecasts, projections or historic campaign data provided by Lift are illustrative only and shall not constitute a representation, warranty or guarantee of future performance.
7.5. Where the Customer is accessing the Platform, Lift does not warrant that:
7.5.1. the Customer's use of the Platform will be uninterrupted or error-free;
7.5.2. the Platform will be free from Vulnerabilities or Viruses; or
7.5.3. the Platform will comply with any Heightened Cybersecurity Requirements.
7.6. Lift may reject, remove, suspend, amend or decline to publish any Advertising Content or suspend any Campaign or channel activity where Lift reasonably considers this necessary to comply with Applicable Laws, the Creative and Content Guidelines, third-party platform or media owner requirements, or to protect its legitimate business interests.
8. Price and Payment
8.1. In consideration of the provision of Services by Lift, the Customer shall pay the Service Fees. Time for payment shall be of the essence.
8.2. The Service Fees shall be as set out in, or calculated in accordance with, the Sales Order Form and may include:
8.2.1. a Platform Fee;
8.2.2. recurring management, service or retainer fees;
8.2.3. fees calculated by reference to Media Budget or Used Media Budget;
8.2.4. any other recurring or one-off charges specified in the Sales Order Form.
8.3. Where any Media Fee is expressed in the Sales Order Form as a percentage of the Media Budget or the Used Media Budget, that Service Fee shall be calculated accordingly for the relevant period.
8.4. The Media Fees include the cost to Lift of any materials or services procured by Lift from third parties for the provision of the Services as such items and their cost are approved by the Customer in advance from time to time. These costs shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice.
8.5. Unless otherwise agreed in the Sales Order Form, Lift shall invoice the Customer monthly in advance for any Service Fees.
8.6. Unless otherwise agreed in the Sales Order Form, the Customer shall pay each invoice submitted to it by Lift in the currency invoiced (USD, GBP, EUR or USDT) immediately upon receipt of invoice to a bank account nominated in writing by Lift from time to time. No payment shall be deemed to have been received until Lift has received cleared funds.
8.7. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Lift any sum due on the due date:
8.7.1. the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%. Lift further reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
8.7.2. Lift may suspend part or all of the Services including (where applicable) provision of and access to the Platform until payment has been made in full.
8.8. All sums payable to Lift:
8.8.1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice;
8.8.2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law); and
8.8.3. are non-cancellable and non-refundable.
8.9. Any Media Fees stated in a Sales Order Form is a budgetary figure only and does not of itself oblige Lift to spend that amount or guarantee that such amount will be spent, unless the Sales Order Form expressly provides otherwise.
8.10. Additional media budget may be allocated without the need for a new Sales Order Form, subject to the request being made by the Customer in writing and accepted by Lift.
8.11. The Customer is solely responsible for the accuracy of all payment details, including wallet addresses, network selection, and any other information required to complete payment via cryptocurrency. Before any full payment is made, the Customer shall first submit a test transaction of a nominal amount to confirm the accuracy of the payment details and successful receipt by the Supplier. The Supplier shall have no liability for any loss, delay, or misdirection of funds arising from incorrect payment details provided by the Customer, including where such details are used following a test transaction that was itself submitted incorrectly. Cryptocurrency payments shall only be treated as received once confirmed on the relevant blockchain network in accordance with the Supplier's standard confirmation requirements.
9. Indemnity
9.1. The Customer shall indemnify and keep indemnified Lift, its Affiliates and each of their respective directors, officers, employees, workers, agents, contractors and subcontractors (each an Indemnified Person) against all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, penalties, expenses and costs (including all interest, penalties, legal costs on a full indemnity basis and professional costs and expenses) suffered or incurred by any Indemnified Person arising out of or in connection with:
9.1.1. any claim, complaint, demand, action, investigation or proceeding that any Advertising Content, Customer Data, Customer Marks, landing page, claim, disclosure, targeting instruction or Campaign:
9.1.1.1. was unlawful, misleading, defamatory, infringing or otherwise non-compliant;
9.1.1.2. was targeted, displayed, distributed or made available in any territory, jurisdiction or market in breach of Applicable Law or without the licences, registrations, permissions, approvals, consents or authorisations required for the relevant products or services; or
9.1.1.3. breached any third party platform, publisher, media owner or Advertising Inventory policy, rule or requirement;
9.1.2. any instruction from the Customer or any User to operate, target, distribute or continue any Campaign in any restricted, prohibited or non-permitted territory, jurisdiction or market; and/or
9.1.3. any breach by the Customer or any User of the Contract.
9.2. The indemnity in this clause 9 is in addition to, and shall not limit, any other rights or remedies available to Lift.
10. Limitation of Liability
10.1. Any liability of Lift for non-supply of the Advertising Inventory shall be limited to replacing or supplying alternative Advertising Inventory within a reasonable time.
10.2. Subject to clause 10.1, the following provisions set out the entire financial liability of Lift to the Customer in respect of:
10.2.1. the rights and obligations set out in the Contract;
10.2.2. the provision of the Available Services including access to and/or use of the Platform; and
10.2.3. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.3. All warranties, clauses and other terms implied by statute or common law (save for the clauses implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.4. Subject to clause 10.6, Lift's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the Contract shall be limited to 100% of the Platform Fees paid or payable in the 12 month period immediately preceding the date on which the claim arose.
10.5. In no circumstances shall Lift be liable to the Customer for:
10.5.1. loss of profit;
10.5.2. loss of sales or business;
10.5.3. loss of agreements or contracts;
10.5.4. loss of anticipated savings;
10.5.5. loss of use or corruption of software, data or information;
10.5.6. loss of or damage to goodwill;
10.5.7. indirect or consequential loss.
10.6. Nothing in these clauses excludes or limits the liability of Lift:
10.6.1. for death or personal injury caused by its negligence;
10.6.2. for any matter which it would be illegal for it to exclude or attempt to exclude its liability; or
10.6.3. for fraud or fraudulent misrepresentation.
11. Termination
11.1. Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other party immediately on giving notice to the other party if:
11.1.1. the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach. For the avoidance of doubt, non or late payment by the Customer shall always amount to a material breach; or
11.1.2. an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
11.1.3. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
11.1.4. an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
11.1.5. a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
11.1.6. the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
11.1.7. the other party ceases, or threatens to cease, to trade; or
11.1.8. the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.2. Upon termination of the Contract:
11.2.1. all licences granted under the Contract shall immediately terminate and, where access to the Platform is granted as part of the Services, the Customer shall immediately cease all use of the Platform;
11.2.2. the Customer shall immediately pay to Lift all of Lift's outstanding unpaid invoices (as well as any applicable interest thereon) and, in respect of Services supplied but for which no invoice has been submitted, Lift may submit an invoice, which shall be payable immediately on receipt;
11.2.3. Lift may destroy or otherwise dispose of any of the Customer Data in its possession unless Lift receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Lift shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Lift in returning or disposing of Customer Data;
11.2.4. the survival and continuation of any provision stated (whether expressly or by implication) to survive expiration or termination, shall not be affected; and
11.2.5. the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry shall not be affected, including the right to claim damages in respect of any breach of Contract which existed at or before the date of termination or expiry.
12. Data Protection
12.1. Both parties must comply with the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
12.2. If and to the extent that Lift processes any Personal Data on the Customer's behalf when providing the Services, the parties acknowledge that the Customer is the Controller and Lift is the Data Processor in respect of such processing (where Personal Data, Data Controller and Data Processor shall have the meanings as defined in the Data Protection Legislation), unless otherwise expressly agreed in writing.
12.3. The Customer retains control of the Personal Data and remains responsible for its compliance obligations under Data Protection Legislation, including providing any required notices and obtaining any required consents to or from data subjects, for ensuring there is an appropriate lawful basis and for the written processing instructions it gives to Lift (outlined below in 'Data Processing Schedule').
12.4. Lift shall, in relation to any Personal Data processed in connection with the performance by Lift of its obligations under these Terms & Conditions:
12.4.1. process the Personal Data only on the written instructions (outlined below in 'Data Processing Schedule') of the Customer unless Lift is required by the laws of any member of the European Union or by the laws of the European Union applicable to Lift to process Personal Data ("Applicable Data Protection Laws"). Where Lift is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Lift shall notify the Customer of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit Lift from so notifying the Customer;
12.4.2. ensure that it has in place appropriate technical and organisational measures to ensure a level of security appropriate to the risk, in particular those from accidental or unlawful loss, destruction or damage, alteration, unauthorised disclosure of or access to Personal Data, having regard to the state of technological development, the nature, scope, context and purposes of processing (as set out in the attached Data Processing Schedule as amended from time to time) the risk of varying likelihood and severity for the rights and freedoms of natural persons and the cost of implementing any measures (those measures may include, where appropriate, pseudonymisation and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
12.4.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
12.4.4. not transfer any Personal Data outside the European Economic Area unless the prior written consent of the Customer has been obtained and the following clauses are fulfilled:
12.4.4.1. the Customer or Lift has provided appropriate safeguards in relation to the transfer;
12.4.4.2. the Data Subject (which shall have the meaning as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
12.4.4.3. Lift complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
12.4.4.4. Lift complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
12.4.5. assist the Customer by appropriate technical and organisational measures, insofar as this is possible, in responding to any request from a Data Subject (as defined in Data Protection Legislation) in respect of exercising the Data Subject's rights in Chapter III of the GDPR ("Personal Data Subject Request") and assist the Customer, taking into account the nature of processing and the information available to Lift, in ensuring compliance with the Customer's obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.4.6. notify the Customer without undue delay on becoming aware of a Personal Data breach;
12.4.7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement and delete existing copies unless required by Applicable Data Protection Law to store the Personal Data; and
12.4.8. make available to the Customer all information necessary to demonstrate its compliance with this clause 12.4 and allow for and contribute to audits, including inspections, conducted by or on behalf of the Customer.
12.5. The Customer consents to Lift appointing other processors as a third-party processor of Personal Data under these Terms & Conditions. Lift confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar, as regards the obligations under the Data Protection Legislation, to those set out in this clause 12. As between the Customer and Lift, Lift shall remain fully liable for all acts or omissions as regards the obligations under the Data Protection Legislation of any third-party processor appointed by it pursuant to this clause 12.5.
12.6. Either party may, at any time on not less than 30 days' notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.
13. Compliance with Laws and Policies
13.1. In performing its obligations under the Contract, Lift shall comply with all Applicable Laws.
13.2. Lift may make changes to the Services required as a result of changes to the Applicable Laws provided such changes do not materially alter the Services to be provided.
13.3. The Services may involve the use of third party channels or suppliers. The Customer shall comply, and shall ensure that its Advertising Content, data and instructions comply, with all applicable terms, policies, specifications and eligibility requirements of those third parties. Lift shall not be liable for any act, omission, suspension, rejection, limitation, policy change, algorithm change, outage or unavailability of any such third party.
14. Confidentiality
14.1. Subject to clause 15, each party undertakes that it shall not at any time during, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, Customers or suppliers of the other party, except as permitted by clause 14.2.
14.2. Each party may disclose the other party's confidential information:
14.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 14; and
14.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.2.3. No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
15. Publicity
15.1. The Customer permits Lift the right to publicise the existence and nature of the business relationship between Lift and the Customer, including but not limited to the use of the Customer's name and logo, in any marketing, promotional, or advertising materials. The Customer further agrees to actively participate in any Lift sponsored marketing events, case studies, press releases, or other marketing activities reasonably required by Lift to promote this relationship including participating in a written or video recorded case study announcing the Customer's use of the Lift services. Lift agrees to give the Customer reasonable notice of any such requirements and will work collaboratively with the Customer to ensure that such participation does not unreasonably interfere with the Customer's operations.
16. Tracking
16.1. The Customer shall implement, maintain and not materially alter, disable, interfere with or remove without Lift's prior written consent any tracking, tagging, pixel, postback, API, SDK or other integration mechanism reasonably required by Lift in connection with the Services, including any tracking pixel and associated integrations on relevant digital properties.
16.2. The Customer shall ensure that such tracking and integrations:
16.2.1. are correctly implemented and remain continuously operational;
16.2.2. capture and transmit all agreed conversion events and related metadata reasonably required by Lift to provide, attribute, report on and optimise the Services, including, where lawful and agreed, user identifiers, registrations, deposits and transaction values;
16.2.3. comply with all Applicable Laws, Data Protection Legislation and applicable third-party platform requirements; and
16.2.4. are supported by all necessary notices, permissions, consents, access rights and technical configurations.
16.3. The Customer shall promptly provide all access, permissions, information and technical assistance reasonably required by Lift for the implementation, testing, maintenance and ongoing operation of such tracking and integrations.
16.4. The Customer acknowledges that accurate and complete tracking, attribution data and related metadata are essential to campaign delivery, measurement and optimisation.
16.5. Lift shall not be responsible for any under-delivery, underperformance, reporting inaccuracy, optimisation failure or other adverse impact to the extent caused by:
16.5.1. the absence, inaccuracy, interruption, degradation, misconfiguration or removal of tracking or integrations;
16.5.2. incomplete, delayed or inaccurate conversion data, metadata or attribution inputs;
16.5.3. any act or omission of the Customer or any third party engaged by or on behalf of the Customer; or
16.5.4. any legal, technical or third-party restriction on the use of cookies, pixels, identifiers or other tracking mechanisms.
17. Force Majeure
17.1. Provided it has complied with clause 17.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event ("Affected Party"), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
17.2. The Affected Party shall:
17.2.1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
17.2.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
17.3. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 60 days, the party not affected by the Force Majeure Event may terminate the Contract by giving written notice to the Affected Party.
18. Assignment
18.1. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract, without the prior written consent of Lift.
18.2. Lift may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
19. Notices
19.1. All notices between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:
19.1.1. (in case of notices to Lift) to its registered office or such other postal or email address as notified to the Customer by Lift, marked for the attention of the Chief Operating Officer; or
19.1.2. (in the case of the notices to the Customer) to the registered office of the Customer or to any postal or email address of the Customer set out in a Sales Order Form or such other address notified to Lift by the Customer.
19.2. Notices shall be deemed to have been received:
19.2.1. if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
19.2.2. if delivered by hand, on the day of delivery; or
19.2.3. if sent by e-mail on a Business Day before 5.30 pm, at the time it was sent and otherwise at 9.00am on the next Business Day.
20. Entire Agreement
20.1. The Contract constitutes the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter, as amended from time to time in accordance with clause 21.
20.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
21. Variation
21.1. Lift may amend, update or replace these Terms & Conditions, the Creative and Content Guidelines and any schedules, policies, service descriptions or operational, technical, security, risk or compliance requirements referred to in the Contract by publishing the revised version on its website, through the Platform or otherwise making it available to the Customer (the "Published Terms").
21.2. Any amendment under this clause 21 shall take effect on the date specified in the Published Terms or, if no date is specified, on publication of the Published Terms. The Published Terms, as amended from time to time, are incorporated into and form part of the Contract in place of the previous version, and the Customer's continued access to, use of, or dealings under the Contract shall constitute acceptance of the relevant amendment. Lift shall have no obligation to give separate notice to the Customer of any variation made under this clause 21 and it is the Customer's responsibility to review the Published Terms regularly.
21.3. If the Customer does not accept an amendment made under this clause 21 which materially and adversely affects the Customer, the Customer may terminate the affected Services by giving Lift not less than 30 days' written notice, provided that such notice is given within 30 days after the date the relevant Published Terms are published or otherwise made available.
21.4. Except as expressly permitted under this clause 21, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22. General
22.1. Rights and remedies. Each right or remedy of a party under the Contract is without prejudice to any other right or remedy of that party at law or otherwise.
22.2. Severance. If any provision or part-provision of the Contract 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 the Contract.
22.3. Waiver. A failure or delay by a party to exercise any right or remedy provided under the Contract or by 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
22.4. No partnership or agency.
22.4.1. Nothing in the Contract 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.
22.4.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22.5. Third party rights. Save for the Indemnified Persons (as defined in clause 9), the parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
22.6. Dispute Resolution:
22.6.1. If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of the same ("Dispute") then, except as expressly provided herein, the parties shall follow the dispute resolution procedure set out in this clause 22.6 as follows:
22.6.1.1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars ("Dispute Notice"), together with any and all relevant supporting documentation. Upon service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and
22.6.1.2. if each party is for any reason unable to resolve the Dispute within sixty (60) days of it being referred to them, then the parties may attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution ("CEDR") CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing ("ADR notice") to the other party requesting mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than thirty (30) days after the date of the ADR notice. Unless otherwise agreed in writing by the parties, the place of mediation shall be London, England.
22.6.2. Nothing in this clause 22.6 shall limit or restrict the parties' ability to commence court proceedings in relation to any dispute arising out of the Contract.
22.7. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
22.8. Jurisdiction. Subject to clause 22.6, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Data Processing Schedule
Scope - Processing of the Personal Data in the provision of the Services to the Customer.
Nature and purpose of processing – Lift shall be processing the Personal Data, received from the Customer for the purpose of providing advertising services as further set out in the Contract to the Customer.
The types of Personal Data to be processed in accordance with the Contract will include any information relating to an identifiable person who can be directly or indirectly identified, in particular, by reference to an identifier including name, identification number, location data or online identifier and may include:
(i) pseudonymised data and data received from any website owned and operated by the Customer or its third-party partners ("the Websites") in connection with which the Platform or the Services are used or are intended to be used;
(ii) from users of the Websites as a result of code being inserted onto the Websites,
(iii) from data feeds from the Customer to Lift;
(iv) from any content Lift has access to as a result of the Customer's use of the Platform and the Services (such as, but not limited to, tracking code, pixels, creative rich media);
(v) Personal Data within the Customer Data; and
(vi) Personal Data from Users.
The categories of Data Subject: website users, app users, prospective and actual customers of the Customer, individuals whose Personal Data is included within Customer Data, and the Customer's personnel and Users.
The duration of the processing will be for the duration of the Contract.