STANDARD TERMS AND CONDITIONS OF BUSINESS
All contractual engagement between Adpone, S.L. (also referred to as «Adpone», “we” or “us”) and you as the Publisher (also referred to as «you») is subject to these standard terms and conditions of business (the «Standard Terms of Business«), and, if applicable, its subsequent amendments that are in force from time to time.
Adpone and the Publisher together are hereinafter referred to as the “Parties” and each of them individually as a “Party«.
- These Standard Terms of Business apply to all contractual engagement between Adpone and the Publisher related to the acquisition by Adpone of spaces (banners) located in websites owned by the Publisher.
- The website(s) or affiliated websites or media of the Publisher must meet the following criteria:
- The business must be based on its own content and cannot simply be a list of links or ads or focus on making money at the expense of our advertisers fraudulently.
- Be fully functional at all levels, not having sites or sections «under construction».
- Content of affiliated media or websites of the Publisher may not infringe any personal, intellectual rights or copyright property and shall not include, under no circumstances, content of the following nature:
- Racists, ethnic, political or which contributes to generate hate or other types of objectionable content.
- Investments, opportunities to make money or financial advice not allowed by law.
- Free or blasphemy violence.
- Defamatory material, which is abusive, or constitutes a threat of physical harm to others.
- Promotion of illegal substances or activities such as unregulated online gambling, how to build a bomb, counterfeit money, etc.
- Software piracy (for example: Warez, P2P, Bit Torrent, Hotline, etc.).
- Hacking the phreaking. Invalid clicks, invalid traffic.
- Any activity that is illegal or contrary to the law.
- Content for adults.
- Any impersonation, as well as redirection of web traffic, or the diversion of traffic from websites related to adult or pornographic content in an effort to gain traffic is prohibited.
- We expressly reserve our right to reject any site whose content (i) is deemed to be inappropriate for being included under any of the cases indicated on clause 1.2 or 1.3 or (ii) which may be considered inappropriate as its own discretion, not needing to justify the cause.
- According to the above, in case Adpone exercises its right to reject a site (i) the Publisher shall not be entitled to any kind of compensation for such reason and (ii) Adpone shall not be obliged to pay the Publisher any amount.
- These Standard Terms of Business shall enter into force on the date of acceptance by the Publisher and shall remain in force as long as the contractual relationship between Adpone and the Publisher is in force.
- In the event of dissolution or bankruptcy of any of the Parties the contractual engagement between the Parties shall be automatically terminated.
- Notwithstanding the above, Adpone is entitled, at its own discretion, to early terminate a determined campaign by withdrawing the advertisements at any time and for any reason, prior notice in writing to the Publisher.
- ONLINE REPORTS
- The Publisher may require Adpone to provide a monthly report.
- The data included in each of these reports may change during the following 45 days since the end of each month.
- Campaigns can be customized at any time by Adpone in order to comply with the advertiser’s ad serving service. At the end of each month, the reports are frozen and within 45 days the final numbers of the income are included.
- It is also stated that the data of the Adpone statistics will prevail in all cases. All data provided for billing purposes and general delivery reports are based on reports from the Adpone server. Invoicing will always be based on Adpone reports.
- Each order from Adpone to the Publisher shall be formalized by (i) a purchase order and/or (ii) in writing by electronic means (i.e. electronic mail). All payment details shall be contained in the respective purchase order or electronic email.
- Adpone shall pay within 45 calendar days since the date in which the income is recorded in Adpone’s record system.
- For payment, electronic transfer shall only be available for payments of amounts over € 400.
- The Publisher shall in all cases be responsible for providing valid payment information. In case such data is incorrect or the Publisher modifies the data without notifying Adpone, Adpone cannot be held liable for any damages caused.
- Notwithstanding clause 4.2, Adpone shall not be obliged, and the Publisher expressly accepts it, to pay the Publisher until Adpone has been paid by third parties, regardless of the cause of such failure to pay by third parties.
- AD PLACEMENT
- The Publisher shall not place any Adpone ad in any media or other web pages without the written prior consent and express approval of Adpone.
- The editor can not locate advertising pornographic / offensive and / or Warez sites, and / or websites / directories illegal MP3, and / or P2P (not approved by the RIAA) / sites Bit-Torrent, and / or spyware or Malicious code of all types and / or with questionable alternative areas. If the ads were placed in a location as indicated above or other websites without consent, Adpone reserves its right to (i) withhold payment of any campaign and / or (ii) take any legal actions immediately against the Publisher. Also, in such case, the Publisher shall compensate Adpone with a pecuniary sanction of an amount of € 50,000 which shall be paid during the following month since the date in which such action has taken place.
- REPRESENTATIONS AND GUARANTEES
- The Publisher expressly represents and warrants that (i) it has the right, power and authority to assume the rights and obligations contained in these Standard Terms of Business and ensure that it has the rights specified in this document, (ii) its media complies with all applicable laws and does not contain or promote, or link to, any other web page that contains slanderous, defamatory, abusive, violent, harmful, obscene, sexually explicit or illicit content and that (iii) it owns or is legally entitled to use and distribute all content, copyrights of materials, products and services appearing on its media.
- The Publisher expressly undertakes not to (i) promote through its website or through links to websites that contain any pornographic, racist, ethnic, political, software piracy (e.g Warez) or hacking, violent, hateful or any other reprehensible content or to (ii) engage in any activity which may be considered illegal or which, in accordance with applicable law, is not permitted.
- The Publisher expressly undertakes to abstain from using the deception in the marketing of advertiser’s offers or in the presentation of these offers to consumers.
- The Publisher guarantees that no action will be taken in order to alter, modify, remove, obscure, disable or invalidate the effectiveness of the web tags, source codes, links, pixels, modules or other data provided or obtained by Adpone that allows Adpone to measure performance of the advertisements and provide services «Site Data».
- The Publisher expressly recognizes that Adpone does not represent, warrant or make specific or implied promises as to the success of any program.
- The Publisher expressly undertakes to display the creativity as provided by Adpone and shall not, under any circumstances, alter it once it has been delivered to the Publisher.
- Adpone is entitled to resell or assign the use of the banners acquired from the Publisher to any third parties under the terms and conditions decided at each moment by Adpone.
- Adpone is entitled to validate the site of the Publisher on any SSP, Exchange or platform using the real data of the site.
- The Parties agree that if the Publisher is notified that certain fraudulent activities may be occurring in its medium (support), and the Publisher does not take any action to stop such activities, the Publisher shall be liable for all associated costs as well as any legal expenses arising from such fraudulent activities. Also, the Publisher shall compensate Adpone with an amount equal to € 30,000.
- Adpone shall not be liable for any errors or undesirable results which may occur due to causes beyond Adpone. Therefore, the Publisher expressly recognizes that, in such cases, (i) Adpone shall not be liable for losses caused from such errors or results and that (ii) the Publisher shall not be entitled to any compensation.
- LIMITATION OF LIABILITY. WARRANTY DISCLAIMER
- In no event Adpone shall be liable for any damages that may result from the use of the site by the Publisher, the operation of a program or the deployment of its creative in their average (media), including but not limited to broken images or special, indirect, punctual or moral damages, which may be caused, even in those cases in which Adpone has been advised of the possibility of such damages.
- The information, contents and services on the site are provided «as is» basis without additional warranties. The use of the site and the launch of the programs is responsibility of the Publisher. Invoking the fullest extent permitted by law, Adpone disclaims any liability, express or implied, in connection with the operation of the site, the information, services and content contained therein by Adpone, including but not limited to the implied warranties of marketing. Adpone does not respond or guarantee that the information on this site or facilitated by Adpone is accurate, complete or updated.
- In line with the above, the Publisher expressly waives any right it may be entitled to in order to claim compensation to Adpone for such concept.
- Also, the Publisher shall, in all cases, keep Adpone harmless from any claims or damages that may arise from the content advertised in the Publisher’s sites.
- The Publisher shall indemnify, defend and safeguard Adpone against all and any claims, liabilities, costs and expenses (including reasonable attorneys’ fees) that any third-party may generate due to: (a) the misuse of the Site, (b) improper handling of a program or ad units, or (c) the breach of these Standard Terms of Business.
- DATA PROTECTION
- The Parties acknowledge that the provision of the Insertion services will not involve the processing by one the Party of the personal data belonging to the other Party. Also the Parties acknowledge that there will not be communication of personal data between them.
- The Parties acknowledge that, each Party shall process their own Personal Data as an independent Data Controller, as each Party will determine the purposes and means of the processing of their personal data.
- As a consequence each Party will be responsible to comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC («GDPR«) as Data Controllers.
- Each Party will hold the other Party harmless against any claims, losses, damages, costs and expenses, arising from or relating directly or indirectly with claims of third parties with respect to a breach by the defaulting Party of their protection of personal data obligations.
- The Parties also acknowledge that Adpone will never be part in the relationship nor in the data communication process between the Publishers and third parties.
- The Publisher and/or owner of the inventory will be responsible for obtaining end-user consent. After GDPR comes into effect, if the Publisher and/or owner of the inventory continue to send Adpone requests for quotations that do not include a signal that the end user’s consent was obtained through a CMP, Adpone will assume that an alternative consent mechanism that complies with GDPR has been used.
- Through the insertion services, the Publisher will access, use and contract services liability and property of third parties. Adpone neither previously controls, approves nor is liable for the content, rental space and services provided by these third parties.
- In the same way, Adpone does not guarantee legality, reliability, usefulness, veracity, accuracy, exhaustiveness and update to the content and services provided by third parties. Therefore the Publisher accepts that Adpone is not liable for damage of any nature caused on the occasion of the relationship between the Publisher and the third party. Adpone shall not be liable, neither indirectly nor collaterally, for damages of any nature arising from the use and contracting of the contents and services provided by third parties through the insertion services, as well as the lack of legality, reliability, usefulness, veracity, accuracy, exhaustiveness and update to them. Under no circumstances, Adpone shall not be liable for the damages of any nature arisen from: a) defective compliance and / or failure to comply with the contractual and / or extra-contractual agreements assumed by third parties; b) acts of illegal advertising or unfair competition; c) services and contents of third parties which are inappropriate and fail to meet expectations; d) all kind of vices and defects of the Services and contents provided through the Site by third parties; e) the use and processing carried out by third parties and the Publisher.
- INDEPENDENT NATURE OF THE COMMERCIAL RELATION
- The Publisher represents and warrants that he is an independent contractor. Nothing in these Standard Terms of Business shall render the Publisher an employee, worker, agent or partner of Adpone and the Publisher shall not hold himself out as such. The Publisher shall be exclusive responsible of Tax, labour, Social Security’s duties or similar obligations, which may result from its personnel.
- The Publisher shall not be entitled by virtue of these Standard Terms of Business to bind Adpone or to contract in the name of or create liability against the Adpone in any way and for any purpose except as expressly authorised in writing by the Adpone.
- The Publisher undertakes to hold Adpone harmless from and against any and all claims, penalties, costs and expenses and, in general, any consequence arising out from the breach of the Publisher’s obligations which correspond to the Publisher as an independent services’ provider.
- APPLICATION AND PREVAILING TERMS
- These Standard Terms of Business supersede any earlier terms of business or any other kind of contract we may have agreed with you.
- Therefore, if there is a conflict between these Standard Terms of Business and any other conditions agreed with you previously, then these Standard Terms of Business shall prevail.
- It may be necessary to amend these Standard Terms of Business from time to time. We will notify you of any such proposed changes and unless we hear from you to the contrary within 14 days following such notification, the amendments and/or new terms will come into effect from the end of that period.
- All notices sent between us in performing the obligations deriving from our contractual engagement shall be sent in writing in English by any duly authenticated means that provides proof of the contents and delivery of the notice and the date on which it was dispatched. The date of any notices shall be the date on which they were sent.
- All notices sent by you to us shall be sent to the following address:
To the attention of Marta Batista
Address: C. Balmes 200, 08006 Barcelona, Spain
- All notices sent by us to you shall be sent to the attention of and to the address duly provided by means of Adpone’s registering process. In case any modifications to such data takes place, you must inform Adpone immediately.
- In any provision of these Standard Terms of Business is invalid, unenforceable or illegal for any reason, the other provisions shall remain unaffected and in force.
- Any failure to exercise or any delay in exercising a right or remedy provided by these Standard Terms of Business or at law or in equity (and/or the continued performance of our engagement) shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of a breach of any of the terms of these Standard Terms of Business must be in writing and shall not constitute a waiver of any other breach and shall not affect the other terms herein contained.
- The rights and remedies provided by these Standard Terms of Business are cumulative and are not exclusive of any rights or remedies provided at law or in equity.
- These Standard Terms of Business, together with the documents referred to in it, constitutes the entire agreement and understanding between the Parties in respect of the matters dealt with in them and supersedes any previous agreement between the Parties relating to such matters, as provided in section 11.
- APPLICABLE LAW AND JURISDICTION
- The contractual relation between the Publisher and Adpone by virtue of these Standard Terms of Business and any non-contractual obligations arising out of or in connection with it will be governed by and construed in accordance with the Spanish Law.
- The Publisher acknowledges and agrees that Adpone may bring a claim against the Publisher in respect of the subject matter of such engagement in any jurisdiction in which the Publisher or its assets are located.
- Unless any alternative dispute resolution procedure is agreed with you from time to time, save as set out in this section 12, the Publisher agrees that any dispute or claim arising out of or in connection with our engagement or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the Courts of the City of Barcelona.