Advertising Terms and Conditions
ADVERTISING TERMS AND CONDITIONS
These terms and conditions ("Terms") apply to the use of the Shpock advertising services. The Terms valid at the exact time of usage of the Shpock advertising services will be applied. By using Shpock advertising services the Client accepts the Terms.
“Ad” means any advertisement placement delivered by Shpock on the Platform.
“Advertising Materials” means artwork, copy, or active URLs for Ads which are necessary for the advertisement placement.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Deliverable” means the inventory delivered by Shpock as agreed between the parties.
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Shpock will deliver Ads on the Platform.
“Platform” means websites and mobile Apps for Android and IOs operated by Finderly GmbH under the name Shpock.
II. INSERTION ORDERS
Shpock and the Client agree on an IO. IOs are accepted via postal mail, fax, or as a scanned copy attached to an e-mail. Modifications to and revisions of the originally submitted IO will not be binding unless approved in writing (including e-mail) by both Shpock and the Client.
III. AD PLACEMENT AND POSITIONING
The Client shall immediately check the Ad after its publication and shall report any errors or inconsistencies otherwise, the Ad is deemed to be accepted “as is”.
If Shpock is not in the position to place the Ad accurately due to the Client’s fault, Shpock may – independently from any claims – remove the Ad from the Platform and is exempted from any liability in this context.
Shpock will provide, within the scope of the IO, Ads on the Platform and will do its best endeavours to execute a reasonable delivery of the Ads. Shpock does not warrant a specific distribution of impressions during the Ad-campaign.
IV. AD MATERIALS
All information, documents, records, files that are required for the Ad shall be submitted to Shpock in good time prior to the placement on the Platform in a complete and accurate form and in compliance with the requirements stipulated herein.
All information, documents, records, files shall be submitted in electronic form as an attachment to an e-mail. All submitted data must comply with regulatory requirements, in particular with labelling requirements for commercial communication as required by law, such as the E-Commerce law, the media law or the Fernabsatz- und Auswärtsgeschäftegesetz (FAGG).
Shpock reserves the right - within its discretion and without prior approval from the Client - to reject or remove any Ads that do not comply with applicable laws, regulations, other judicial or administrative orders or due to editorial/technical reasons. In any way, the Client shall be informed by Shpock if any such step has been taken. In addition, Shpock may review and adapt media material according to depiction and technical compatibility (in particular format, depiction technology and file size amongst others) and may return it to the Client for adaptation. Shpock may – upon mutual agreement with the Client - adapt and modify the Ads by itself.
The Client is solely responsible for the Ad and the Ad materials. In particular, the Client guarantees that the Ad complies with requirements stipulated in the respective law. The Client confirms, that he has obtained all the necessary rights of use from the holders of copyright, trademark rights, ancillary copyright, rights of personality and other rights to the materials supplied by him (for example texts, photos, graphics, audio and video recordings, etc.).
V. PAYMENT AND PAYMENT LIABILITY
The initial invoice will be sent by Shpock upon completion of the IO. Invoices will be sent to the Client’s billing address as set forth on the IO.
The Client will make payment 14 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO.
Performance measurement and tracking for invoicing shall be taken from the ad server used by Shpock. The Client however remains free to use its own tracking tool in addition. In case of discrepancys the parties will seek a solution in accordance with the IAB Standard Terms and Conditions for Internet Advertising Section XIII.d.
If Shpock does not reach the performance as agreed in the IO (e.g. Ad-impressions), Shpock may continue with the Ad placement on its Platform until the performance has been reached.
If the Client fails to fulfil his technical obligations, such as the set-up of the Advertisement Material or the supply of tracking figures, Shpock is exempted from any claims from the Client.
VI. CANCELLATION AND TERMINATION
Each party at its sole discretion has the right to unilaterally terminate this Agreement in writing, with immediate effect and without indemnity only if the other party commits a material breach of this Agreement. The occurrence of any of the following acts or events shall constitute such material breach by the party:
a) there is a change of control in 50% (fifty percent) or more of the ownership, unless in case of intragroup restructuring; b) filing of a voluntary petition in bankruptcy or under any similar insolvency law, making of an assignment for the benefit of creditors; c) assignment by either Party - unless intra-group - of any of its rights or obligations under these Terms to a third party, without the prior written consent of the other Party; d) occurrence of an event of Force Majeure provided that the effects of such event last more than 7 days after the Force Majeure situation has been notified by either party; or e) failure by either party to rectify infringement of any of its obligations under the terms of the IO and these Terms within 14 (fourteen) days after receipt of a written notice from the other party.
Termination shall not affect the Client’s obligation to pay for all Deliverables generated up until the termination date (receipt of the written notice via -mail).
VII. Intellectual property rights
Each Party owns and retains all rights, title and interest in all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world (“Intellectual Property Rights”) in its names, logos, trademarks, service marks, copyrights, patents, proprietary features, and proprietary technology. Neither Party shall copy, distribute, reproduce, or use the other Party’s Intellectual Property Rights above proprietary items except as expressly permitted under this Agreement.
Shpock may use the Client’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release, references on websites).
Irrespective of the legal grounds of any claims, the liability of Shpock shall be limited within the framework of applicable statutory law as set out below. Shpock shall be liable only up to the amount of damages as typically foreseeable at the time of entering into this agreement in respect of damages caused by negligent breach of a material contractual obligation. Shpock shall not be liable for damages caused by slightly negligent breach of a non-material contractual obligation. Neither party shall have any liability to the other for loss of profits, revenue, data or any consequential, special, indirect, or incidental damages, based upon a claim of any type or nature, unless the other party acted wilfully or gross negligently and was advised of the possibility of such damages. Neither party makes any representation that the operation of the party’s website or mobile application will be uninterrupted or error-free, and neither party shall be liable to the other, or to any third party, for the consequences of any interruptions or errors in the operation of its own site. Shpock’s total obligations and/or liability shall not exceed the charge for the advertisement in question. The foregoing limitations of liability include claims against employees or representatives of SHPOCK.
Each party (“indemnifying party”) shall indemnify and hold the other party (“indemnified party”) harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the indemnified party as a result of or in connection with any liability, loss, damage, injury, cost or expense sustained by the indemnified party, the indemnifiedparty’s employees or agents or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises as a consequence of: (a) any alleged or actual infringement, whether or not under german law, of any third party's intellectual property rights or other rights connected in any way with any act or omission of the indemnifying party; (b) a breach of any applicable law by the indemnifying party; (c) a breach, negligent performance or failure or delay in performance of this agreement by the indemnifying party.
The indemnified party will promptly notify the indemnifying party of all claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all claims; and (ii) be entitled to participate at its own expense in the defense of all claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
XI. Force Majeure
The performance by either Party of its respective obligations hereunder shall be deemed suspended and neither Party shall be in default or liable in so far as such performance is prevented or hindered by any circumstances beyond its reasonable control including but not limited to strikes, lock-out, accidents, war, fire, reduction in or unavailability of power (delete for IT or other critical service providers who should have back-up generators) or any act of God. The primarily affected Party shall promptly notify the other Party of such a situation. If the cause of such suspension shall continue for more than 1 (one) month, either Party shall have the right to terminate this Agreement upon giving not less than 7 (seven) days’ notice in writing to the other Party.
XII. NON-DISCLOSURE, PRIVACY AND LAWS
“Confidential Information” will include (i) all information marked as “Confidential” by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary; or (iii) the content of the IO.
The Recipient shall not use Confidential Information for any other purpose than for the performance of this Agreement and shall not disclose Confidential Information to anyone except an employee, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section.
The Service Provider shall maintain in utmost confidence and shall not allow third parties access to Confidential Information, except in the event: (i) either party has given its prior written approval; (ii) the Service Provider is compelled to disclose Confidential Information by any law, judicial, administrative or law enforcement authority; (iii) was previously known to Recipient; (iv) was or becomes generally available to the public through no fault of Recipient; (v) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser.
A Party compelled to disclose Confidential Information by any law, judicial, administrative or law enforcement authority shall promptly inform the other Party of that fact, provided that the authority or the law stipulates that sharing this information between the Parties is prohibited. The duties imposed by this Clause shall survive the termination of this Agreement for 5 (five) years. The termination of this Agreement shall not release the Parties from their respective obligations under this Clause. Upon termination of this Agreement or at any other time requested by a party, the other party shall return or destroy all Confidential Information.
Both parties will at all times comply with all local laws, and regulations.
Assignment. No Party may assign, transfer or otherwise dispose of any of its rights (or assign, transfer or otherwise dispose of any of its obligations) under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
Severability. In case that any one or more of the provisions contained in this Agreement, or any application thereof, shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this Agreement, and any other applications thereof, shall not in any way be affected or impaired thereby.
Governing Law. The terms shall be subject to Austrian law, excluding the UN Convention of International Sale of Goods and the reference norms (IPRG, EVÜ, etc.). The exclusive place of jurisdiction is the relevant court in Vienna, Austria.
Advertising terms and conditions version: 2016-11-01