Insertion Order Standard Terms and Conditions
Last updated: November 29, 2022
The following Terms and Conditions shall be deemed to be incorporated into any Insertion Order or any advertising campaign order placed via Opera Ads Manager (in either case an “Order”) entered into between the Opera entity (“Opera”) and the company, advertiser, or agency (collectively, “Company”) identified in such Order. The Order and these Terms and Conditions constitute a binding contract between Company and Opera and are collectively referred to herein as the “Agreement.” This Agreement governs the placement of Company’s promotional campaigns within advertising inventory owned and operated by Opera (“O&O”), and/or inventory which Opera has a contractual right to provide (“Third Party Inventory”, and with O&O collectively the “Opera Property”). In case of conflict between these Terms and Conditions and an Order, the latter shall prevail.
1. Terms Of Payment. All fees under the Agreement are exclusive of customs, taxes, duties, VAT or excises in any form. Company shall pay at the rates prescribed by applicable law all VAT (and/or other similar sales taxes where applicable) on the amounts due under the Agreement. In the event Company fails to make timely payment or otherwise breaches the Agreement: (i) any amounts owed shall bear interest at the rate of one percent (1%) per month above the base lending rate of HSBC Bank Plc (or, if less, the highest rate permitted by applicable law) from the date when payment is due until the date payment is received; (ii) Company will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Opera in collecting such amounts; and (iii) Opera reserves the right to suspend performance of its obligations under the Agreement or any other agreement with Company.
2. Provision Of Materials. Company will provide the advertising media, links, graphics, icons, and such other items (collectively, “Materials”) as may be necessary for Opera to publish the agreed promotion, link and/or advertisement (“Advertisement”). The Materials shall be provided in accordance with Opera’s policies and specifications in effect from time to time, including (without limitation) the manner of transmission to Opera, the lead-time prior to publication, and the requirements set forth herein. Opera shall not be required to publish any Materials that are not received in accordance with such policies and specifications and reserves the right to charge Company, at the rate specified in the Order, for inventory held by Opera pending receipt of acceptable Materials from Company which are past due. Company hereby grants to Opera a non-exclusive, royalty-free, worldwide, fully paid license to store, use, reproduce and display the Materials (and the contents, trademarks and brand features contained therein) in accordance herewith. In cases when Opera, at its sole discretion, decides that for the purposes of the agreed promotion the Materials need to be modified, Opera may perform such modifications and present them to Company for acceptance. If aforesaid modifications are not promptly declined (within maximum 3 business days), they are deemed to be accepted and the abovementioned license covers the modified Materials as well.
3. Third Party Ad Serving. If Opera has approved the use of a third party server (“Third Party Server”) in connection with an Order, the following provisions shall also apply: (A) Company shall post each Advertisement to a staging area and shall notify Opera of such posting at least two (2) business days prior to the date the Third Party Server is scheduled to serve such Advertisement. Such Advertisement shall be reviewed by Opera and must be approved in writing by Opera before it can be served by the Third Party Server. (B) Company shall post all scheduling changes, new target URLs, new HTML specifications, new graphics and all other new or revised Advertisements (“Revisions”) to a staging area and shall notify Opera of such posting at least two (2) business days prior to the date Company wishes such Revisions to take effect. Revisions shall not be implemented until approved by Opera in writing, which approval shall be at Opera’s sole discretion. (C) If Company discovers that Company or Third Party Server has served, or caused to be served, an Advertisement to Opera’s inventory in violation of this Agreement, Company must immediately notify Opera of the violation (along with a written explanation) and remove the Advertisement from its placement or rotation on the Opera inventory. Nothing in this Section shall limit any of Opera’s rights or remedies in the event of such breach. (D) In the event of cancellation or rejection of an Advertisement , Company shall cause the Advertisement to be removed from Opera’s inventory and from its advertising rotation no later than two (2) hours after written notification from Opera. (E) If Company or Third Party Server serves the Advertisement, neither Company nor Third Party Server may restrict the number of times an Advertisement shall be served to a user in any given period.
4. Right To Reject. Opera reserves the right to reject or cancel any Advertisement (or any element thereof), Order, campaign, URL or other link, space reservation or position commitment, at any time, for any reason whatsoever, including belief by Opera that the relevant Advertisement, Material or activity may subject Opera to criminal or civil liability or is materially adverse to Opera’s business interests. The fact that Opera has not rejected an Advertisement shall in no way reduce, limit or otherwise affect Company’s responsibility and obligations under this Agreement. In the event Opera exercises its right to reject hereunder, Opera shall notify Company in writing. Except as otherwise expressly provided in the Order, the Agreement is non-cancellable by Company.
5. Positioning. Except as otherwise expressly provided in the Order, positioning of Advertisements within the targeted inventory is at the sole discretion of Opera. Opera may, at its sole discretion, modify or remove any portion of the targeted inventory (and use commercially reasonable efforts to substitute with similar inventory). Although Opera will use reasonable efforts to comply with start and end dates, Opera does not guarantee the date or dates of insertion of the Advertisement(s) and does not guarantee that the Advertisement(s) will not be displayed after the end date specified.
6. Delivery And Usage Statistics. Unless specified otherwise in the Order, Opera makes no guarantees with respect to usage statistics, levels of impressions, click-throughs, leads generated or actions taken, including without limitations, completed program downloads or installations. Possible reasons for differences between reported initiated and reported completed downloads or installations include, but are not limited to: (a) mobile device connection failures, (b) inconsistency in download directories among mobile devices, and (c) failures of applications to operate on certain mobile devices.
7. Reporting. Unless reporting by Company or a third party is expressly agreed to in the Order, the following shall apply: (a) Company acknowledges that delivery statistics provided by Opera are the definitive and binding measurements of Opera’s performance on any delivery obligations provided in the Order; (b) no other measurements or usage statistics (including those of Company) shall be accepted by Opera or have bearing on the Agreement; (c) Opera shall own all campaign data obtained as a result of the display of the Advertisement(s), including click through rates, conversion rates, and any user data (“Campaign Data”); and (d) Company may use Campaign Data only as reasonably necessary to fulfil its obligations under this Agreement, and shall comply with Section 8 and all applicable laws in using Campaign Data.
9. Advertising Standards. All Advertisements must comply with advertising laws, regulations and industry standards in the territory in which the Advertisements are displayed as well as the codes of practice issued by the Committee of Advertising Practice in the United Kingdom and the Advertising Standards Authority for Ireland. Advertisements shall not contain any item that is misleading, inaccurate, or that makes fraudulent or unfair competitive claims or that makes insufficiently supported claims or claims that distort the true meaning or practical application of statements made. Additionally, the Advertisements may not contain or promote material that contains malware of any kind, including without limitation viruses, worms, Trojans, spyware, or adware, nor material that is offensive or which violates any provision of applicable law and regulations (including but not limited to, libel, copyright, trademark, right of privacy, etc.). Advertisements must comply with standards of decency and good taste. Opera will decide, in its sole discretion, whether the content, material or services provided in or through Company complies with these standards. Opera may change these guidelines at any time upon prior written notice to Company. Company agrees to cooperate in promptly editing, changing or stopping, any Advertisement that Opera in good faith believes to be in violation of these advertising standards.
10. Company Representations. Company represents, warrants and covenants that it holds the necessary rights to permit the use of the Materials by Opera and that none of the Materials provided by Company or Advertisements will: (a) infringe on any third party’s copyright, patent, trademark, trade secret, right of privacy or other proprietary rights or intellectual property rights; (b) violate any applicable law, statute, ordinance or regulation; (c) be defamatory or trade libelous; (d) be pornographic or obscene; or (e) contain viruses, Trojan horses, worms, time bombs, or other similar harmful or deleterious programming routines. Further Company warrants that it contracts with Opera as principal, notwithstanding that Company may be acting as an advertising agency or media buyer or in some other representative capacity.
11. Indemnification. Company agrees, at its own expense, to indemnify, defend and hold harmless Opera, its subsidiaries, and their employees, representatives, agents and affiliates, against any and all expenses, losses or liability of any kind (including reasonable attorneys’ fees and costs) incurred in connection with any claims, administrative proceedings or criminal investigations of any kind arising out of the breach of any of Company’s representations, warranties or covenants hereunder and/or the publication of Company’s Advertisements and/or any site, material, product or service to which users can link through such Advertisements (including without limitation, any claim of trademark or copyright infringement, defamation, breach of confidentiality, privacy violation, false or deceptive advertising or sales practices).
12. Disclaimer Of Warranties. Notwithstanding anything to the contrary herein, all services are provided by Opera “As Is” and Opera hereby expressly disclaims all warranties, express or implied, regarding Opera’s services or any portion thereof, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement and implied warranties arising from course of dealing or course of performance.
13. Limitations Of Liability. In the event Opera fails to publish an Advertisement in accordance with the Order in any respect, the sole liability of Opera to Company and Company’s sole remedy shall be limited to, at Opera’s sole discretion, either: (i) a pro rata refund of the fee paid; (ii) placement of the Advertisement at a later time in a comparable position; or (iii) extension of the term of the Order until the contracted impressions are delivered. In no event shall Opera be responsible for any indirect, consequential, special, punitive or other damages, including, without limitation, lost revenue or profits, in any way arising out of or related to the agreement or publication of any Advertisement(s), even if Opera has been advised of the possibility of such damages. Opera does not limit or exclude liability for death or personal injury caused by its negligence. Without limiting the foregoing, Opera will have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot explosion, embargo, strikes whether legal or illegal, labour or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of Opera affecting production or delivery in any manner.
14. Confidentiality. The Agreement and all communications exchanged between Company and Opera are confidential and shall not be disclosed to any third party (other than the qualified accountants or legal advisors of the parties). If the parties have executed a non-disclosure agreement (“NDA”) such NDA is incorporated into the Agreement by this reference. Neither party will make any public announcement regarding the existence or content of the Agreement without the other’s prior written approval.
15. Notice. All notices, consents and approvals required or permitted to be given under the Agreement shall be delivered in writing to the address set forth in the Order either by hand, by courier, by facsimile or by email. Notice will be deemed to have been received and effective: (a) if delivered by hand or courier, at the time of delivery; and (b) if delivered by facsimile (transmission confirmed) or email, immediately if transmitted during regular business hours in the recipient’s country (and otherwise upon resumption of such business hours following transmission).
16. Miscellaneous. This Agreement: (a) may be amended or assigned only by a written agreement executed by an authorized representative of each party; and (b) constitutes the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. Any additional or different terms and conditions included on any documentation or purchase order provided by Company will be null and void. In the event that any provision of the Agreement is held by a court or government agency to be void, voidable, or unenforceable, the remaining portions hereof shall remain in full force and effect. The waiver by either party of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. All outstanding payment obligations, Sections 1, 7, 10 through 18 and such other provisions which by their nature should survive, will survive any termination or expiration of this Agreement. The Agreement may be executed in counterparts, via telefacsimile or exchange of PDF or similar electronic document format, each of which shall constitute an original but all of which taken together shall constitute one and the same agreement. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. All rights and remedies hereunder are cumulative.
17. Modifications. The parties agree that Opera may, at its sole discretion, modify or replace these Terms And Conditions at any time by posting such modifications to https://legal.opera.com/contract/insertion-order. Any such modifications become effective as of the date posted. The Terms & Conditions in effect on or before the effective date of the Order apply to such Order.
18. Choice Of Law And Venue. The Agreement shall be governed by and construed in accordance with English law, without giving effect to principles of conflicts of law. Both parties consent to the exclusive jurisdiction of the courts located in London, England with respect to any legal proceeding arising in connection with this Agreement. Notwithstanding any other provision in this Agreement, a person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.