TERMS AND CONDITIONS (ADVERTISERS)
- The following terms and conditions (“Terms and Conditions”) shall apply to the Services (as defined below) provided by Advidi (as further detailed below) to the Advertiser (as defined below).
- By signing up, registering or otherwise enrolling as an ‘advertiser’ with Advidi, the Advertiser declares to agree with and accept the applicability of these Terms and Conditions. The sign up information and Insertion Order (as defined below) of the Advertiser, together with these Terms and Conditions, the Code of Conduct and any subsequently submitted Insertion Order(s), collectively form the “Agreement”.
- Any changes or additions to these Terms and Conditions shall only be valid once agreed upon with Advidi and confirmed in writing. The applicability of any other terms and conditions, including any terms or conditions which are implied by trade, custom, practice or course of dealing or which the Advertiser may purport to apply or which are endorsed upon any correspondence or documents issued by the Advertiser irrespective of their date of communication to Advidi, are explicitly excluded.
In these Terms and Conditions, the following definitions shall have the following meaning:
“Ads”: email content, banner ads, buttons, pop-ups, pop-unders, co-registrations, lead generations, hypertext or other links, widgets, works of authorship, jumbo promos, content scripts, add tags, silver bullets, site skins, promotional and other advertising material and any kind of commercially sponsored or related content, related to Advertiser and/or a specific Campaign.
“Advertiser”: a legal person or natural person acting course of a profession or business, that engaged Advidi to provide the Services via its network of Affiliates.
“Advertiser Account”: the online account provided by Advidi to the Advertiser.
“Advidi”: Bang! Media Group B.V., a company with limited liability incorporated under the laws of the Netherlands, also acting under the trade name Advidi, having its registered place of business at Watertorenplein 8 (1051 PA) Amsterdam, the Netherlands and registered under number 34368707 at the trade register of the Dutch Chamber of Commerce.
‘Affiliate”: any legal person or natural person acting in the course of trade (and including its agents, representatives, employees or any other person acting on its behalf) that signed up, registered or enrolled on Advidi’s affiliate network to provide (part of) the Services.
“Campaign”: the advertisement campaign of the Advertiser as further detailed on the Insertion Form and accessible via a specific Landing Page.
“Code of Conduct”: the general compliance rules for Advertiser in connection with the performance of the Agreement, accessible via Advidi’s website
Code of Conduct.
“Commission”: the commission fee per Conversion to be paid by Advertiser to Advidi, as further detailed in Clause 5.
“Confidential Information”: all non-public information disclosed (whether in writing, orally, electronically or otherwise) by Advidi to Affiliate before and during the Agreement and that is marked or otherwise designated as ‘confidential’ or ‘secret’, or by its nature should be considered confidential at the time of disclosure, thereby including, without limitation: processes, methods, formulae, technical information, information in tangible or intangible form relating to and including released or unreleased software, marketing or promotional activities, business policies or practices, business relations and pricing/financial information.
“Content”: information, text, artwork, graphics, images, pictures and/or other materials, provided, transmitted or shared with Advidi by Advertiser.
“Conversion”: an action upon which the commercial deal is based, for example, if the commercial deal is: CPM (Cost Per Mille), CPA (Cost Per Action), CPC (Cost Per Click), CPL (Cost Per Lead), CPD (Cost Per Download), CPPU (Cost Per Paying User), CPAU (Cost Per Active User), CPI (Cost Per Install), then conversion is considered respectively: mille, action, click, lead, download, paying user, active user and install.
“Conversion Statistics”: statistical data for a Campaign that reflects the Conversion on and via relevant Landing Pages.
“Effective Date”: the execution date of the Insertion Order of the Advertiser.
“Intellectual Property Rights”: all intangible, intellectual, proprietary and industrial property rights, worldwide, whether registered or unregistered, including, but not limited to: (a) all trademarks, service marks, trade names and logos; (b) all copyrights, moral rights, and other rights in works of authorship, including Content, and including copyrights in software (source code); (c) all database rights, (d) all patents or utility models; (e) all designs and drawings; and (e) all other rights in or connected to (technical) know how or trade secrets.
“Insertion Order”: the sign up and registration form submitted and executed by Advertiser.
“Landing Page”: the URL related to a Campaign and which embeds a tracking code provided by Advidi to measure Conversion Statistics.
“Service(s)”: the targeting services provided by Advidi through one or more Affiliate(s) in order to generate and/or improve Conversion and collect data to optimize a Campaign by means of (without limitation) distributing the Ads.
- Upon execution of the Insertion Order by the Advertiser, Advidi shall start providing the Services to the Advertiser.
- Advidi shall perform the Services on a best efforts basis, thereby taking into account professional skill and care.
- Upon request Advidi may Advertiser with access to an Advertiser Account. Advertiser shall be independently responsible and liable for any actions (for example of employees of Advertiser) under the Advertiser Account.
- Advidi has the right to (temporarily) suspend the Services with immediate effect, and without incurring any liability towards the Advertiser, in the event one of the following situations occurs and for at least the duration this situation and/or its consequential effects:
- the Insertion Order has not been submitted and/or executed properly by duly authorized representatives of Advertiser;
- Advertiser does not, or does no longer comply with one or more of the representations and warranties set forth under Clause 4.1;
- Advertiser does not (timely) comply with the obligation set forth under Clause 4.2.
- In the event that the Advertiser informs Advidi that it elects to (temporarily) hold, (temporarily) pause or amend a Campaign or Ad, Advidi will procure on a best effort basis that the requested hold, pause or amendment will take effect within seventy-two (72) hours as from the notification (including by email) from the Advertiser.
- Advertiser may request Advidi’s Services for additional Campaigns, which requests will need to be submitted via email or Skype.
- Obligations of Advertiser
- The Advertiser represents and warrants towards Advidi:
- that any information regarding Advertiser, its business and/or website(s) shall be true, accurate and complete and that it shall inform Advidi without delay of any changes or updates in respect thereof;
- that (the Content of) the Campaign and/or Ads shall be in compliance with any and all applicable laws and regulations in the countries where the Campaign and Ads will be advertised and do not contain false, untrue or misleading information;
- that (the Content of) the Campaign and/or Ads, thereby including the products and/or services offered therein, shall not infringe upon the (intellectual) property rights of any third parties;
- that (the Content of) the Campaign and/or Ads shall not be discriminating, offensive, inappropriate or prohibited in any way;
- to adhere to and comply with the obligations set forth in the Code of Conduct;
- that the Advertiser shall act in compliance with any and all applicable laws, regulations (amongst others in relation to privacy) and/or industry codes (where applicable, e.g. for dating industry).
- In the event Advidi (in its role as intermediary) receives a ‘notice and takedown’ and/or complaint request (for alleged unlawful or inappropriate content) from a third party regarding Ads and/or Content placed by the Advertiser, Advidi will inform the Advertiser thereof and will request immediate appropriate action from the Advertiser.
- Advidi is entitled to request for additional security from Advertiser to ensure the due performance by Advertiser of its obligations under the Agreement.
- The Advertiser represents and warrants towards Advidi:
- Commission and payment
- For providing the Services during the Agreement, Advidi is entitled to receive a Commission from the Advertiser.
- Advidi will calculate the Commission on the basis of the Conversion Statistics. Advertiser acknowledges and accepts that the Conversion Statistics will comprise evidence for the calculation of the Commission, regardless of the Advertiser’s right to provide evidence of the contrary.
- Advidi will invoice the Advertiser the Commission on a weekly, bi-weekly or monthly basis, as determined by Advidi. The payment term will be determined in mutual consultation. The Advertiser shall never be permitted to offset or withhold any amounts or payments to Advidi with invoices of Advidi.
- Deductions, chargebacks or credits will not be accepted unless with prior written approval of Advidi. Any fraudulent conversion lead, sale, click, action or install must be sent to (the account manager of) Advidi including evidence that such lead, sale, click, action or install was invalid, fake or fraudulent.
- Any disputes regarding the correctness or completeness of an invoice and/or the Conversion Statistics, must be notified by Advertiser to Advidi without delay, but in no event later than within four (4) days from the invoice date. Any such disputes need to be supported with evidence. If dispute inquiries were not or not timely received by Advidi, the invoice may automatically be deemed accepted and payable in full by Advertiser.
- In the event, Advertiser does not or not timely pay the Commission due, Advidi is entitled to immediately (temporarily) suspend the Services without incurring any liability towards Advertiser.
- Term and termination
- The Agreement shall come into force on the Effective Date and shall remain in effect for a term of two (2) years after which it will be renewed and extended automatically by consecutive periods of one (1) year each, unless terminated earlier as per this Clause 6. Notwithstanding the aforementioned, the Agreement will remain in force as long as there is a Campaign running.
- Both Advidi and Advertiser are entitled to terminate the Agreement (in whole or in part, for example, only regarding a specific Campaign) with or without cause by providing written notice to the other party, thereby taking into account a notice period of at least seventy-two (72) hours, without incurring any liability towards the other party in respect hereof.
- Both Advidi and the Advertiser are furthermore entitled to terminate the Agreement in writing, with immediate effect and without incurring any liability towards the other party, in the event the other party: (i) has been declared bankrupt, files for bankruptcy or requests a suspension of payments, or (ii) ceases its business or is in the process of liquidation.
- Advidi will also be entitled to immediately terminate the Agreement or to (temporarily) suspend the Services (in whole or in part, for example regarding a specific Campaign), without incurring any liability towards the Advertiser, in the event of (i) Advertiser’s non-compliance with one or more of the warranties or representations under Clause 4.1 or (ii) Advertiser being in default of one or more of its obligations under the Agreement which default cannot be remedied or has not been remedied within eight (8) days after notification of default by or on behalf of Advidi.
- Upon termination of the Agreement in whole, or for the relevant part thereof (for example, a specific Campaign), Advidi shall immediately cease the Service in whole or in part (for a specific Campaign as the case may be) and delete all links in Landing Pages that relate to the terminated Campaign(s). Any Confidential Information related to the terminated Agreement or Services shall be deleted by the receiving party, including all copies thereof. The Advertiser shall furthermore immediately cease and delete any references to Advidi (thereby including the use of any trademark, tradename and/or logo of Advidi).
- Upon termination of the Agreement as a whole, regardless of the reason thereof, the provisions that are intended to survive the termination of the Agreement, shall remain applicable and in full effect. This in particular entails Clauses 6.5, 6.6, 7 (Intellectual Property Rights), 8 (Confidentiality), 10 (Miscellaneous) and 11 (Applicable law).
- Intellectual Property Rights
- Advidi or its licensors own all rights, titles and interests in the Intellectual Property Rights connected to Advidi and the Services.
- The Advertiser or its licensors, own all rights, titles and interests in the Intellectual Property Rights in and connected to the Campaign and the Ads.
- During the term of the Agreement, or applicable Campaign (as the case may be), the Advertiser hereby grants Advidi with a non-exclusive license to copy, disclose, transfer or otherwise use (the Content of) the Campaign and Ads and related Intellectual Property Rights for the purpose of providing the Services. This license includes the right to sub-license (the Content of) the Campaign and Ads and related Intellectual Property Rights to Affiliate(s).
- Nothing in these Terms and Conditions or the Agreement is intended to include the transfer of any Intellectual Property Rights owned by Advidi, Advertiser, or their respective licensors, to the Affiliate, or a third party.
- Confidentiality and data processing
- The receiving party shall keep confidential all Confidential Information from the disclosing party, and the content of any communication between the parties (as the case may be) in connection with the Agreement and/or the Services.
- With respect to the Confidential Information, the receiving party: (i) shall not use or disclose such Confidential Information for any purpose except as necessary to fulfil the Services, or other obligations under the Agreement, or as required by law; (ii) shall limit access to the Confidential Information solely to employees, agents or any other person who need to obtain such access to fulfil the Services or any other obligation under the Agreement, and (iii) shall require its employees, agents and other persons who have access to the Confidential Information to abide by confidentiality obligations.
- The receiving party shall be liable for any breach of the confidentiality obligations under this Clause by any of its employees, agents or any other person who obtained access to the Confidential Information.
- Confidential Information shall not include information that is or has become publicly available through no fault of the receiving party or that was or has been rightfully and independently developed or obtained by the receiving party free from any duty of confidentiality.
- Advertiser shall at all times be independently responsible for compliance with applicable law and regulations, including applicable law relating to the collection, processing and transfer of personal data such as the European General Data Protection Regulation (“GDPR”). The Advertiser acknowledges that it shall act as an independent “controller” within the meaning of the GDPR. The Advertiser shall indemnify and hold Advidi harmless from and against any and all third party claims, damages, losses, costs or expenses or any damages or costs awards sustained or incurred by Advidi in connection with any complaint made against Advidi under the GDPR and similar legislation anywhere outside the European Economic Area (EEA) as a result of Advertiser’s failure to obtain the necessary lawful ground for processing any personal data.
- Liability and indemnification
- In no event will Advidi or any of its subsidiaries, affiliates, partners, licensors or suppliers be liable for any direct, indirect, consequential, punitive, special or incidental damages resulting from, arising out of or in connection with the performance or use of, or inability to perform or use the Service, even if Advidi has been advised of the possibility of such damages, except to the extent that such damages arise directly and solely from wilful misconduct or gross negligence on the part of Advidi.
- In no event will Advidi be liable for defects in the products and/or services offered in the Campaign or Ads, or for any damage caused thereby. Additionally, Advidi has no control over, and shall therefore not be liable for, the lawfulness of the (Content of the) Campaign and Ads.
- In no event will Advidi be liable for any damages caused by an Affiliate to a third party.
- If and to the extent any exclusion or limitation of liability or disclaimer of warranty set out in this Clause 9 shall not be allowed under applicable law, such exclusion, limitation or disclaimer will not apply to the Advertiser, but only to the extent it shall not be allowed. In such case, such exclusion, limitation or disclaimer shall be limited to the extent required by applicable law.
- Except to the extent that liability cannot be limited under applicable law, any and all liability of Advidi is limited to the amount paid out, if any, under its liability insurance coverage in the matter concerned. In the event and to the extent that no monies are paid out under its liability insurance for whatever reason, any and all liability of Advidi shall be limited to a maximum amount of € 5,000 (five thousand Euros).
- In any event, a claim on Advidi shall lapse in case Advidi did not receive written notice of such a claim no later than within 12 (twelve) months after the earlier of (i) termination date of the Agreement, (ii) the discovery by the Advertiser of an event or circumstance that gives or may give rise to that claim or (iii) the moment that the Advertiser could have reasonably discovered an event or circumstance that gives or may give rise to that claim.
- The Advertiser shall indemnify and hold Advidi, its subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys harmless from and against all third party claims, damages and/or costs (including legal costs) that arise from breach with one or more of the representations and warranties set forth under Clause 4.1, unless such claims directly result from wilful misconduct or gross negligence by Advidi.
- Advidi reserves the right to unilaterally amend these Terms and Conditions from time to time. Any such amendments shall be effective 14 days after notification to the Advertiser. If the Advertiser rejects the amendments, the Advertiser is required to notify Advidi hereof within 7 days after the notification date. Such rejection will imply that Advidi shall terminate the performance of the Services upon the effective date of the amended Terms and Conditions. By continuing to use the Services after receipt of the notification, Advertiser will be deemed to have accepted the amended Terms and Conditions.
- If any provision of these Terms and Conditions should to any extent be or become invalid, void or unenforceable, the other provisions shall continue to be applicable and enforceable. With respect to the invalid or void provision, Advidi shall provide an amended text for such provision which is valid and legitimate thereby respecting the initial objective of the original provision.
- The Advertiser may not assign or pledge its rights and/or obligations under the Agreement in whole or in part to any third party without the prior written consent of Advidi.
- Advidi’s failure to exercise, or delay in exercising any rights under the Agreement or these Terms and Conditions does not constitute a waiver of such rights. Nothing in these Terms and Conditions or in the Agreement shall create or be deemed to create a partnership or relationship of employer and employee between Advidi and the Advertiser.
- Applicable Law
- These Terms and Conditions and the Agreement shall be exclusively governed by the laws of the Netherlands.
- In the event of any dispute relating to or arising from these Terms and Conditions or the Agreement that cannot be resolved amicably between Advidi and the Advertiser, the dispute shall in first instance be exclusively decided by the competent court in Amsterdam, the Netherlands.
Amsterdam, April 2019