TORNIKA SAS/ AFFIMOBIZ
GENERAL TERMS AND CONDITIONS
- AFFIMOBIZ mainly engages in providing publicity management services via a network of mobile advertising spaces and a recommendation intelligence widget.
- These General Terms and Conditions (the Terms and Conditions) regulate and apply to the mobile publicity management services provided by AFFIMOBIZ to the Advertiser, which shall be carried out in accordance with the Insertion Orders (IO) and notifications made between the Parties.
2. INSERTION ORDERS
- To carry out the Advertiser’s promotional and publicity campaigns, the Parties shall complete and confirm with the corresponding Insertion Orders (IO) and agree the terms and conditions applicable to each of the campaigns.
3. CREATIVE MATERIAL AND IP RIGHTS
- The Advertiser shall provide AFFIMOBIZ with the creative material of each campaign in the medium or format indicated by AFFIMOBIZ (the design of the campaign or advertisement to be inserted may consist of various images, audio-visual files or logos) and shall ensure that such medium or format complies with the restrictions regarding contents indicated in these Terms and Conditions. In any event, the Advertiser shall be responsible for the contents of the advertisements or campaigns which are made by virtue of the relevant IO and these Terms and Conditions. AFFIMOBIZ is reserved the right to reject the material provided by the Advertiser which it considers inappropriate and objectionable.
- The Advertiser declares and warrants that its creative material, advertisements, products and/or services do not, either currently or in the future, (i) infringe patents, copyrights, trade secrets or other third-party industrial or intellectual property rights; (ii) contain material which is defamatory, libelous, misleading or obscene, or which constitutes an invasion of any right to privacy, breaches advertising rights or, in any other manner, breaches third-party rights; (iii) breach any type of law or regulation, whether international, community, state, regional or municipal, which may be applicable.
- The Advertiser hereby assigns to AFFIMOBIZ a right of use over logos, photographs, images, texts, trademarks, trade names, descriptions, etc. regarding the Advertiser and/or its products in order that AFFIMOBIZ may carry out the campaign in the terms agreed in the corresponding IO. This right of use is assigned solely and exclusively for a specific approved campaign and for the duration of the campaign. This assignment is non-exclusive and in no event may the right of use be assigned or licensed to third parties. In no event shall the granted licence imply transfer of ownership.
- No Party may copy, distribute, reproduce or use the intellectual property rights of the other Party except for the uses expressly permitted in these Terms and Conditions.
- The Advertiser shall provide AFFIMOBIZ access to statistics of the advertisement server showing the purchases obtained. In addition, the Advertiser shall provide data on the evolution and results of the campaign (obtained from the searches made on its systems) on a monthly basis during the first five (5) days of every month. All data generated or supplied in connection with these Terms and Conditions or the corresponding IO are confidential and the property of the Advertiser and should not be provided to third parties unless this is necessary to carry out AFFIMOBIZ’s services and, specifically, for the communications with its publishers or suppliers.
- The Parties may establish any other mechanisms which they consider necessary for the coordination and monitoring of campaigns.
5. PRICE OF THE SERVICES
- As consideration for the services for a specific campaign, the Advertiser shall pay AFFIMOBIZ the corresponding fees in accordance with the applicable pricing structure as indicated in the IO (plus applicable VAT). The fees shall be calculated on the basis of the data provided by the Advertiser (data on the records created by its systems) regarding the evolution and results of the campaign, once they have been verified and adjusted, if the case, by AFFIMOBIZ. If the Advertiser uses a cookie-based counting method, the minimum cookie lifetime shall be of thirty (30) days. If the Advertiser does not provide the data required to calculate AFFIMOBIZ’s fees within five (5) days as from the date on which it was requested, AFFIMOBIZ may use any data which it may have in connection with the campaign (own or third-party data) to make the calculation.
- The services shall be invoiced by AFFIMOBIZ in line with a payment schedule established in the IO (or, in case not expressly determined on the IO, on a monthly basis), and VAT and any other chargeable amounts shall be shown separately on the invoice.
- The fees shall be paid to the bank account designated by AFFIMOBIZ for such purpose within fifteen (15) days of the date of the invoice (unless any other period is stated in the corresponding IO). If payment is not made within the stipulated time limits and the Advertiser fails to settle payment within three (3) days from the date of the request made by AFFIMOBIZ to this effect, the amount owing shall accrue a late payment interest of two percent (2%) for every day the payment obligation has not been met, and the Advertiser shall pay AFFIMOBIZ the costs which the latter may have incurred to claim the payment of these amounts until they have been settled (including lawyers’ costs and bank charges).
- In the event that the Advertiser’s website or mobile site, experiences downtime that affects the performance of a specific campaign, the Advertiser shall compensate AFFIMOBIZ, by means of the following process: (i) the moment when the downtime, inactivity, error or malfunction occurred and its duration, shall be identified; (ii) Advertiser’s server records will be checked in order to determine the average purchases/registrations generated per hour during the seven (7) days prior the start of the malfunction or error; (iii) the number of purchases made during the period of inactivity or malfunction will be determined by applying the purchases/registrations average (calculated in accordance with point (ii) above) to the duration of the malfunction; (iv) AFFIMOBIZ’s consideration will be calculated on the number of acquisitions determined by applying the process described in point (iii) above.
7. DURATION AND CANCELLATION
- The commercial relationship between the Parties shall be indefinite and shall come into force on the date on which the first IO is signed. Either of the Parties may terminate the commercial relationship between for any reason by giving the other Party two (2) working days’ notice in writing of its wish to terminate the relationship.
- The Advertiser may cancel or suspend a campaign by giving at least two (2) working days’ written notice to AFFIMOBIZ.
- Either of the Parties, acting in good faith, may withdraw a specific campaign without having to provide prior notice to the other Party for legal reasons or in the event of a third-party claim which may cause damage. In addition, AFFIMOBIZ may cancel a specific campaign at any time without any need to provide prior notice to the Advertiser if the campaign is not generating expected trade or yield levels.
- Without detriment to the rights of termination and cancellation regulated in the Terms and Conditions, the Parties shall comply with their respective obligations regarding campaigns which are under way up to the moment of their conclusion and payment of the corresponding price. Clauses 3 (intellectual property), 8 (liability), 11 (confidentiality), 12 (data protection) and 18 (governing law and jurisdiction) shall remain in force after the termination of the commercial relationship between the Parties.
8. COMMITMENT OF THE PARTIES AND LIABILITY
- The Advertiser represents and warrants, acknowledges and accepts that (i) all intellectual and industrial property rights associated with (a) websites or mobile telephones, (b) software, (c) contents or material, or (d) the information provided to the Advertiser, are owned by AFFIMOBIZ or its licensors, and that in no event the Advertiser is authorized to transfer or assign the same; (ii) to the extent permitted by law, due to their nature, the services (including software) are provided on an "as is" and "as available" basis with no obligations being established regarding media or results with no warranty; (iii) the Advertiser has not relied on AFFIMOBIZ’s skills, capacities or results in relation to the services (and it would not be reasonable to do so); (iv) AFFIMOBIZ does not warrant that the services are fit for the Advertiser or for the purpose which the Advertiser seeks or its business, revenue or profit perspectives (and AFFIMOBIZ cannot do so); (v) the Advertiser uses, the websites and/or mobile sites, services, software and third-party contents at its own risk; (vi) AFFIMOBIZ has made no express warranties about the services, websites and/or mobiles, software or third-party contents; (vii) AFFIMOBIZ does not represent or warrant that the information on the websites and/or mobiles or provided by AFFIMOBIZ is accurate, complete or current; (viii) the services, websites/mobiles or software may not be uninterrupted, timely, secure or free from errors; (ix) any defects in the operation or functionality of the websites/mobiles or software may not be corrected; (x) the Advertiser is solely responsible for any losses, damages, expenses, liabilities, etc. (including loss of data) arising from the use of the websites/mobiles, the services, software or any contents; (xi) the Advertiser shall comply with the regulations and good practices of the sector to warrant that its files (in any format), communications, websites/mobiles, applications, instructions, the data contained on the files, its electronic mail messages or any other media by means of which data is transferred do not contain material which may have an adverse effect on AFFIMOBIZ, its licensors, agents, collaborators and associates, contractors, directors, employees, board members, affiliates, other companies of its group, suppliers, clients or users (including, in all events, worms, viruses, Trojan horses, corrupted files, unauthorized programs or any other materials that are intended to or may damage or render inoperable the corresponding software, hardware or security measures); (xii) to the maximum extent permitted by law, the Advertiser waives all warranties, rights or remedies laid down by law or its articles of association.
- AFFIMOBIZ shall not be liable vis-à-vis the Advertiser for the results of a specific campaign or for lost profits, revenues, data or indirect damages arising as a result of the campaign.
- To the extent permitted by law, AFFIMOBIZ shall not be liable for: (i) any direct, indirect, incidental or consequential damages of any type; or (ii) lost profits, revenues, data, business interruption, or loss of goodwill, clients or reputation, arising as a result of, or in connection with, the commercial relationship between the Advertiser and AFFIMOBIZ regulated in these Terms and Conditions and the IO to which they are applicable.
- To the extent permitted by law, (i) the total and maximum accumulated liability of AFFIMOBIZ vis-à-vis the Advertiser arising from the commercial relationship regulated in these Terms and Conditions and the IO these Terms and Conditions apply to, shall not exceed the lesser of the following amounts: (a) ONE THOUSAND EUROS (€1,000), or (b) the total amount received by AFFIMOBIZ from the Advertiser for the services provided during the three (3) months prior to the occurrence of the damage; (ii) if AFFIMOBIZ is legally liable vis-à-vis the Advertiser, AFFIMOBIZ, at its sole choice, shall either (a) repair the goods or assets, or (b) re-perform the service, or (c) pay the cost of repairing or re-performing the damaged goods or services. The Advertiser declares, acknowledges and accepts that it is fair and reasonable for AFFIMOBIZ to rely on the foregoing limitations for the provision of the services and that this is reflected in the price of the services.
9. INDEMNITY FOR DAMAGES
- The Advertiser agrees to defend and hold harmless AFFIMOBIZ, its licensors, agents, collaborators and associates, contractors, directors, employees, board members, affiliates, companies of its group, clients and suppliers (the Indemnified Parties) from any actions, proceedings, claims and demands brought against the Indemnified Parties and to pay them all damages, losses, costs, liabilities, fines, penalties and any other expenses (including legal costs) suffered or incurred by the Indemnified Parties, as a consequence (directly or indirectly), or in connection with, (i) a third-party claim arising from the Advertiser’s activities in relation to the Terms and Conditions or the IO these Terms and Conditions apply to, including, by way of illustration and not limited to, claims arising from the use by the Advertiser of the websites or URL, software or services; (ii) the management, publication, display or distribution of the Advertiser’s advertisements or publicity messages (including claims for defamation, breach of confidentiality agreements, violation of privacy, false, deceptive or misleading publicity or bad sales practices); (iii) wilful, unlawful, negligent or malicious acts (or omissions) by the Advertiser; (iv) breach by the Advertiser of third-party intellectual or industrial property rights (including copyright).
- AFFIMOBIZ will only indemnify the Advertiser for damages, losses, costs, liabilities, fines, penalties or any other expenses (including legal costs) suffered or incurred by the Advertiser , as a consequence (directly or indirectly), or in connection with, wilful, unlawful or malicious acts (or omissions) by AFFIMOBIZ.
- AFFIMOBIZ will not render the services on an exclusive basis and therefore AFFIMOBIZ may provide similar publicity, promotional and marketing services to those provided to the Advertiser to other companies
- The Parties agree that they shall not disclose to third parties any information or material in connection with the Terms and Conditions or the IO to which they are applicable. In addition, they agree not to disclose to third parties and to keep strictly confidential any information or material provided by the other Party, its employees or collaborators during the course of the commercial relationship between the Parties. In particular, the Parties shall adopt the necessary safety measures and procedures to protect the confidential nature of said information, in accordance with laws regulating intellectual property and protection of personal data.
- Information which, in executing an IO, forms part of the contents of the publicity campaign and shall be made available to users, will not be considered confidential information.
- These obligations shall remain in force indefinitely even after the commercial relationship between the Parties has terminated.
- Notwithstanding, the Advertiser expressly authorizes AFFIMOBIZ to include references and credentials regarding the services provided during their commercial relationship established in the Terms and Conditions and the relevant IO to which they apply, in future services proposals for clients, publications, promotional activities or forums, at both a national and international level. In carrying out the foregoing, AFFIMOBIZ shall observe confidentiality regarding the particular conditions of the services provided.
12. DATA PROTECTION
- The Advertiser knows and accepts that all personal data contained in the relevant IO shall be incorporated on a file owned by AFFIMOBIZ, which the latter has created with the aim to carry out the contractual relationship between the Parties, as well as to provide commercial information to the Advertiser by any means available, including by web-based technology, in order to complement the commercialized services.
- AFFIMOBIZ informs the Advertiser of its rights of access, rectification, cancellation and opposition. To exercise any of these rights, the Advertiser may write to AFFIMOBIZ, in its capacity as person or legal entity responsible for the file, at the address stated in the corresponding IO.
- In the event that AFFIMOBIZ should have access to personal data to provide the services, it shall do so in its capacity as the “person processing of the personal data” in accordance with the provisions of Section 12 of the Framework Personal Data Protection Act 15/1999, of 13 December 1999, and Sections 20 et seq. of Royal Decree 1720/2007, of 21 December 2007, which passed the regulations implemented under the aforementioned Framework Personal Data Protection Act 15/1999 and other applicable laws.
- AFFIMOBIZ shall only process the personal data which it has access to in accordance with the instructions given by the (this is the Advertiser), and shall not apply or use such data for any purpose other than that established in these Terms and Conditions, and shall not notify other persons of such data, not even for their safekeeping.
- The Advertiser shall be the only Party which shall decide on the purpose and use of the data which AFFIMOBIZ has access to.
13. COMMERCIAL NATURE OF THE RELATIONSHIP
- The relationship which is established between the Parties in accordance with these Terms and Conditions and the IO to which these Terms and Conditions apply to, is a commercial relationship to all effects. AFFIMOBIZ and the Advertiser are independent parties and they shall act in this capacity at all times, and they may not be considered, based on the Terms and Conditions or the IO to which they apply to, agents or representatives of each other or understand that there is any other type of relationship between them.
- The Parties shall each be separately liable for any corporate, tax, employment or other type of obligations arising from their commercial and economic activities.
14. ASSIGNMENT OF OBLIGATIONS
- AFFIMOBIZ may assign or subcontract all or part of its obligations arising from the Terms and Conditions or the IO these Terms and Conditions apply to without need of the Advertiser’s consent.
15. ENTIRE AGREEMENT
- The Terms and Conditions and IO to which these Terms and Conditions apply to constitute the Parties’ entire agreement with respect to the subject matter hereof, and replace, annul and supersede any other agreements or documents of the Parties (including the Advertiser’s general terms and conditions) in relation thereto.
- In the event of any difference between the stipulations of the Terms and Conditions and those of the IO, the stipulations of the latter shall prevail.
- Any notices or requests related to the Terms and Conditions or the IO to which they are applicable to shall be made to the contact persons and addresses indicated in the corresponding IO. Notices may be made by any lawful means which allows for the receipt and contents thereof to be recorded (including by email and fax).
17. FORCE MAJEURE
- Neither Party shall have any liability for any failures or delays in performance of these Terms and Conditions or the IO to which they apply to, arising from force majeure events beyond their control. Force majeure events include, but are not limited to, natural disasters, governmental actions, regulatory actions or restrictions, sanctions, wars, terrorist acts, etc. Notwithstanding, a force majeure event shall not prevent the Parties from exercising their right to terminate these Terms and Conditions in accordance with the stipulations foreseen on the same.
18. GOVERNING LAW AND JURISDICTION
- These Terms and Conditions and the Insertion Orders (IO) these Terms and Conditions apply to shall be governed by and interpreted in accordance with common French law.
- The Parties expressly submit any disputes arising in connection with the validity, interpretation or performance of the Terms and Conditions or the Insertion Orders (IO) to which they are applicable themselves, to the jurisdiction of the courts of the city of Paris, waiving any other jurisdiction which may correspond to them.