Welcome to The Cloud Nine Agency web site (the Web Site). The Web Site is owned and operated by The Cloud Nine Agency, Registered Address: 31 Island House, Three Mill Lane, London, E3 3AF United Kingdom. By accessing, browsing, or using this Web Site, you agree to be bound by these Terms & Conditions, without modification of the terms, conditions, and notices contained herein. If you do not agree to these Terms & Conditions then please do not use the Web Site.Any reference to we, us and our in these Terms and Conditions is a reference to The Cloud Nine Agency.
User Rights and Obligations
No Unlawful or Prohibited Use.
As a condition of your use of this website, you warrant to The Cloud Nine Agency that you will not use the website for any purpose that is unlawful or prohibited by these terms, conditions, and notices.
You must not:
1. Disrupt or interfere with the Site or servers or other software, hardware or equipment connected to or via the Site;
2. Violate any Applicable Law relating to your use of the Site; or
3. Collect or store personal data about other users of the Site.
Use of the Site Is At Your Risk
You use the Site at your risk and everything on the Site is provided to you “as is” and “as available” without warranty or condition of any kind, either expressed or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We exclude all representations and warranties to the fullest extent permissible under any Applicable Law.
Use of Content
The Website is available only for your personal and non-profit use. We have the right to change or discontinue any feature of the Website. You may make a single hard copy of the Content. You may not otherwise copy, reproduce, republish, frame, post, upload, distribute, transmit or modify in any way all or any part of the content contained on this Website, unless expressly provided for on the Website or expressly authorized in writing by The Cloud Nine Agency. You must not transmit or attempt to transmit any data, code or other material of any kind to this Website that contains a virus or other harmful component.
Definitions
C:9 means The C:9 Agency Limited, company number 06973251, with registered office at 31 Island House, Three Mill Lane, London, E3 3AF; ‘Buyer’ means the individual firm, company or other party with whom C:9 contracts; ‘Contract’ shall mean any arrangement made between C:9 and the Buyer for the provision of Services by C:9 to the Buyer subject to these Terms and Conditions. Contract constitutes the Insertion order, any specific conditions detailed thereon and these standard Terms and Conditions; ‘List Owner’ means the individual firm, company, broker or other party who has any interest in the list forming whole or part of the subject matter of the contract between C:9 and the Buyer; ‘Services’ shall mean any data planning, data buying, data processing, data tagging, fulfilment, consultancy or other similar services comprised in the contract.
General
The Contract shall not be amended unless in writing signed by an authorised signatory of both parties. No waiver of any provision of the Contract by either party shall be effective unless made in writing. Any waiver made by such party of any term or condition of the Contract shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof.
Warranties
C:9 makes no warranties, guarantees, promises or representations, either express, implied, oral, written or otherwise, except as expressly set forth in this Contract. C:9 Ltd does not make any warranty, guarantee, promise or representation, express, implied, oral, written or otherwise, as to the results of any campaign. Any payments due hereunder, shall be due and payable to C:9 as indicated in these Terms and Conditions, and any non-payment due to the dissatisfaction of the Buyer, shall be deemed a Breach under the terms of this Contract and shall be subject to the default provisions as detailed herein.
Trustee Relationship
When advertising placement is ordered by the Buyer in representation of the actual advertiser, it is hereby understood, that the Buyer is acting in Trust for C:9 and as such, any payments collected by Buyer from advertiser on behalf of C:9, shall be held in Trust for C:9, and shall not be co-mingled with the Buyer’s operating funds. Such funds, less any agreed upon commissions, shall be remitted to C:9. In the case of a bankruptcy filing or proceeding by Buyer, these funds shall be identified as held in Trust for C:9.
Invoicing, charges and payment terms
Charges will include managing the set up, delivering the impressions, email, sms, leads and providing full campaign response analysis. C:9 allows 2 creatives per list for creative testing purposes. An administration charge of £100 will be levied per additional creative submitted and tested. A charge of £250 will be made in respect of any amendments made to the supplied creative after test has been sent for approval. VAT is payable in addition to the prices and any additional charges. Unless otherwise specifically agreed in this contract all orders must be pre-paid in full. In circumstances where the execution of a job extends over a period exceeding one month, C:9 will, if C:9 considers it appropriate, invoice all the Services carried out by C:9 monthly or at such other times as may be agreed with the Buyer and all such charges will be payable forthwith, in full. Final payment is due within 30 days, interest will be charged at 3% above the Barclays plc base rate accruing daily. Queries or credits cannot be used to defer payments on invoices. C:9 will credit for any bounced emails, sms, impressions, leads that reduce the delivered number to below that purchased by the Buyer. Minimum order is £1,000. Buyer will be charged 50% of invoice cost if the job is cancelled and 90% of invoice cost if job is cancelled within 72 hours of agreed mailing or flight date. Jobs that are postponed for a period exceeding 30 days will be invoiced 30 days from the originally agreed delivery date and must be paid for in full within 30 days of the invoice date. Buyer shall pay C:9 within thirty (30) days of the date of C:9’s invoice. Buyer shall have fifteen (15) days from the date of C:9’s invoice to dispute any amount due. In the event that C:9 does not receive a written notification of a disputed bill, with rationale and support therefore specifically set forth therein, within the above time, the invoice will be deemed valid and payable and may not thereafter be disputed. Buyer specifically agrees that this provision is reasonable and that C:9 will rely upon this provision.
Default due to non-payment by advertiser to Buyer
In cases where payment is made to C:9 directly by the Buyer, and the parties agree that such payment is contingent upon Buyer’s receipt of payment from the advertiser, then upon 30 days delinquency, C:9 is hereby granted permission to contact the advertiser and to invoice them directly, and to proceed with any collection efforts as it deems necessary, directly against the advertiser. Upon collection of any monies directly from advertiser, C:9 will apply the monies collected first to any expenses and costs of collection, second to the amount due C:9 under the terms of this Insertion Order plus interest as discussed below, and thirdly to the Broker or Agency for their portion due hereunder.
Default due to non-payment
Non-payment to C:9, by the date due as established in this Contract, shall be deemed a Breach of this Contract. The Buyer shall be responsible for any and all costs and expenses, including but not limited to Attorney’s fees and Court costs incurred by C:9 in conjunction with the collection of any monies due hereunder. All unpaid amounts due hereunder shall bear Interest at the rate of 3% above the Barclays plc base rate accruing daily, or the maximum amount allowed by law.
Buyer Conduct
The Buyer is solely responsible for the content of emails, sms, impressions, leads sent. The Buyer agrees not to transmit any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Buyer further agrees not to transmit any material that encourages conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any applicable law or regulation. C:9 retains the right at C:9’s sole discretion, to refuse the delivery of any content that it considers contravenes these Terms and Conditions.
Ad Copy
Finalised Copy/HTML must be with C:9 at least 5 working days before email, sms, impressions are due to be delivered to allow for set-up and testing. Failure to adhere to the timelines shall be considered a breach of the terms of this contract and may lead to delays to the delivery date or cancellation, at C:9’s sole discretion, of the contract. Buyer will be responsible for accuracy of all text and HTML copy and will ensure that all URL links in the message are correct and working prior to delivery. All copy is to be transmitted via email in the following preferred formats: Text format = Word (.doc) or Text (.txt); Images format = .gif or .jpg or .tif; HTML format = entire ad must be completed in HTML format.
Hosting
Buyer will host all HTML images unless otherwise agreed. A charge of £0.01 per mail (HTML recipients only) will be levied on the Buyer if C:9 is required to host HTML images.
Ad Creative Approval
The Buyer must approve all ad creative no later than 48 hours prior to the agreed campaign delivery date. An authorized representative of the Buyer shall in the form of an email send such approval. A copy of the approved ad should either be included in the body of the approval email, or added as an attachment to the approval email. Failure to adhere to the timeline shall be considered a breach of the terms of this contract and may lead to delays to the delivery date or cancellation, at C:9’s sole discretion, of the contract.
Ad Creative and Campaign Transmission Services
C:9 will provide “ad creative services” and “campaign transmission services” as agreed upon between the parties. In cases where creative services and/or campaign transmission services are provided at no additional cost to the Buyer, such free service(s) shall be provided so long as the terms and conditions of this Contract are met.
Delivery and Time
Whilst C:9 will make every effort to complete the Contract within the time quoted, time shall not be of the essence of the Contract unless specifically stipulated in the Special Instructions section of the Insertion Order.
Tracking and Reporting:
C:9 will provide tracking and reporting services on all campaigns. In the event that the Buyer’s third party tracking system indicates a discrepancy in the number of deliverables hereunder from C:9′s tracking report, the parties agree that C:9′s tracking report shall prevail. Unless specifically requested in this contract to the contrary, C:9 will track all URLs within emails.
Cost Per Click (CPC) and Cost Per Open (CPO) Campaigns:
In the event that the advertising campaign ordered herein is a Cost per Click (CPC) or Cost per Open (CPO) campaign, the Buyer may not cancel the campaign once begun, unless agreed upon by the parties in writing. In the event that the parties do agree upon the ability to cancel such campaign, the Buyer understands and agrees that residual “clicks” or “opens” will occur once the campaign has been sent regardless of cancellation. Thus, any agreed upon cancellation clause regarding CPCs or CPOs will include a 7 day post-cancellation period during which time, any clicks or opens from advertisements already sent, shall be included in calculating the fees owed to C:9, regardless of the cancellation.
Guaranteed Click Through Rates (GCTR)
In the event that the number of clicks-throughs achieved falls below the number of clickthroughs offered by any GCTR given then the invoice to the Buyer will be reduced by the same percentage as the percentage shortfall between the actual number of click-throughs achieved and the number of click throughs per the GCTR offered.
Liability
C:9 shall not be liable for any direct, indirect, incidental, special or consequential damages, arising out of the Buyers marketing materials. C:9 does not accept any liability for any loss resulting from non-delivery of mail, save that the Buyer shall be entitled to rely upon the List Owner’s specific conditions. C:9 shall supply to the Buyer a copy of the List Owner’s specific conditions at the Buyers request. Damages for any loss or otherwise in respect of any claim by the Buyer arising out of or in connection with the marketing materials or their supply, the supply of C:9’s Services or any breach of Contract by C:9 shall, in any event, be limited to the price of the Contract.
Indemnification
The Buyer agrees to indemnify and hold C:9 harmless from any liability arising out of the Buyers marketing materials. This indemnification includes, but is not limited to, legal fees, costs of litigation or judgments arising out of mailing or emailing the marketing materials to any leads provided by C:9.
Force Majeure
C:9 shall not be liable for any loss suffered or incurred by the buyer as a result of C:9 being unable to perform the Contract by reason of any act of God, war, lockout, strike, fire, flood, delay in transit, postal delay, riot or any other unexpected or exceptional cause or circumstance beyond C:9’s control, in which case C:9 shall be entitled to cancel the contract or delay the performance thereof for as long as reasonably necessary.
Enforceability
If at any time any one or more of the provisions of these conditions becomes invalid, illegal or unenforceable under any law or is held by a court to be invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions hereof shall not be in any way affected or impaired thereby.
Jurisdiction
The Contract shall be governed by the laws of England, and the parties hereby submit to the exclusive jurisdiction of the English courts for the resolution of any dispute which may arise in connection herewith.
Warranties & Liabilities
We do not warrant that the Website will operate error free or that this Website and its servers are free of computer viruses and other harmful data, code, components or other material. Nor do we warrant that it will be able to prevent any illegal, harmful or inappropriate use, modification or alteration of the Website, or will give notice of such use, modification or alteration. If your use of the Website or the Material results in the need for servicing or replacing equipment or data, we are not responsible for those costs.
Limitation of Liability
To the extent permitted by law we will not be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity or loss of anticipated savings resulting from your access to, or use of, or inability to use the Site and the Content, whether based on warranty, contract, tort, negligence or any other legal theory, and whether or not we know of the possibility of such damage.
Third Party/linked sites
We have not reviewed all of the sites linked to this Site and are not responsible for the content or accuracy of any off-site pages or any other sites linked to this Site (including without limitation sites linked through advertisements or through any search engines). The inclusion of any link does not imply that we endorse the linked site, and you use the links at your own risk.
Your correspondence or dealings with, or participation in promotions of, advertisers on the Site are solely between you and such advertisers. We will not be liable or responsible for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of advertisements on the Site.
Liability Disclaimer
The information, products, and services published on the Website may include inaccuracies or typographical errors. Changes are periodically added to the information herein. The Cloud Nine Agency may make improvements and/or changes to these websites at any time. The Cloud Nine Agency makes no representations about the suitability of the information, products, and services contained in the website for any purpose. All such information, products and services are provided “as is” without warranty of any kind. The Cloud Nine Agency hereby disclaim all warranties and conditions with regard to this information, products, and services, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall The Cloud Nine Agency be liable for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with the use of this website or with the delay or inability to use this website, or for any information, products, and services obtained through this website, or otherwise arising out of the use of this website, whether based on contract, tort, strict liability or otherwise, even if Digital-North has been advised of the possibility of damages.
Earnings and Income Disclaimer
As with any business in any industry, results will vary. These results are a direct reflection on the level of capacity, experience, expertise and motivation of the business and its operators. There are no guarantees as to the level of success you will achieve. All testimonials used are exceptional results, which do not apply to the average business, and are not intended to represent or guarantee that anyone will achieve the same or similar results. Each person’s and business’ success will depend on background, dedication, desire and motivation. There is no assurance that examples of past earnings and income levels can be repeated again in the future. We cannot give a guarantee for your future success and results. Unknown risks in business carries with it no guarantee for future performance levels. We are not responsible for your actions.
You should conduct your own due diligence in relation to the purchase and use of our products and/or services. You also agree that The Cloud Nine Agency is not liable for any success or failure of your business that is directly or indirectly related to the purchase and use of our information, products and services.
Modification of These Terms and Conditions
The Cloud Nine Agency reserves the right to change the terms, conditions, and notices under which this website is offered. You agree that no joint venture, partnership, employment, or agency relationship exists between you and The Cloud Nine Agency as a result of this agreement or use of the website.
Any rights not expressly granted herein are reserved.
In addition to the general terms and conditions, The Cloud Nine Agency reserves the right to refuse acceptance of any advertisement it considers inappropriate for whatever reason.
