The General Terms and Conditions of madvertise Mobile Advertising Srl
Date of last edit: 13.05.2014
A. General Regulations
1. Area of Application
1.1 The following terms and conditions apply to the use of the platform ‘madvertise.it’ (subsequently referred to as ‘platform’) of the madvertise Mobile Advertising Srl and corporations associated with madvertise (subsequently referred to as ‘madvertise’) as well as for all business relations between madvertise and the respective contractual partner.
Contract partner (subsequently referred to as ‘user’) can be a publisher of mobile websites and/or applications (subsequently referred to as ‘publisher’) or an advertising client who intends to place advertising on the mobile websites and/or applications in the madvertise network (subsequently referred to as ‘advertiser’).
The following general regulations in section A are subject to all users, the special regulations in section B are subject to publishers and the special regulations in section C apply to advertisers.
1.2 madvertise reserves the right to change or alter the user regulations as well as all other documents that are relevant to the contract, which will then automatically be effective in the future. In such a case, madvertise will beforehand inform the contract partner about the changes. The changes will be pertained as accepted if the user does not object to the notification of change within four weeks or continues to utilize the services as previously without opposing to the changes. If the user opposes to the changes, madvertise has the right to terminate the contractual partnership.
1.3 Contrary or alternative terms of business, which are ascribed by the users, are not legally forceful, even if madvertise does not object in an isolated instance. A user’s differing or complementary claims to those that took place on the platform via message dialogues or via information input options are not valid even if madvertise does not object in an isolated instance. In any case, effective, individually negotiated terms will remain unaffected.
2. Conclusion of the Usage Agreement; User Account
2.1 Holder of the rights of use can be legal entities as well as natural persons that are legally competent. If the user is a natural person, the user represents and warrants that he or she (subsequently only referred to as ‘he’) is of full age and capacity. In case of a legal entity, the legal or authorized representative of the entity must confirm the contractual agreement.
2.2 The user is obligated to provide truthful, accurate, current and complete information. In addition, he is obliged to always maintain his or her (subsequently referred to as ‘his’) information in the member account updated and accurate.
2.3 The user is aware that contractual claims, which are made via a legal transaction (e.g. confirmation e-mails, amendments of the terms and conditions or other notifications) can be received via e-mail. These are considered to be received by the user if under normal circumstances; they can be accessed via the user’s inbox of the e-mail address that the user communicated to madvertise.
3. Law Relations, madvertise’s Services
To publishers, madvertise offers the opportunity to register advertising spaces on mobile websites and/or applications on the madvertise platform for the purpose to be marketed by madvertise. madvertise offers advertisers and agencies the possibility to place ads on the aforementioned mobile websites and applications. At the same time madvertise is on its own behalf and on its own account the contract partner of publishers or advertisers. Direct contract relations between the advertiser and the publisher are not available and will also not be facilitated by madvertise. madvertise also does not act for its publishers and/or advertisers as a consultancy, an agency, a fiduciary, a business supplier or similar. Legally the contracts between madvertise and publishers as well as between madvertise and advertisers deal with separate agreements whose content is adjusted according to these terms and conditions.
4. General Duties of the User
4.1 During the participation, the user must follow madvertise’s technical requirements and guidelines for advertising contents and advertising placements (as stated below, please refer to the ‘technical guidelines’). These guidelines will be provided to the user on the website madvertise.it and on request.
4.2 The user is obligated to set up his systems and programs in such a way that neither the safety, nor the integrity nor the availability of the systems that madvertise utilizes for the performance of its services are restrained. madvertise has the right to carry out necessary measures (e.g. disabling account access) that are required to secure system integrity of madvertise’s or third parties’ systems.
5. Availability of the madvertise Platform
madvertise will use commercially reasonable efforts to make the madvertise platform available to the user. In the event of a partial or total failure of the madvertise platform which results in an advertising campaign that could not be fully delivered within the agreed timeframe, madvertise is entitled to deliver the advertising materials later on, without any additional claims on behalf of the advertiser.
6. Billing and Payment Procedures
The invoice that is provided by madvertise to its customers exclusively occurs electronically. Details as to the billing and payment procedures can be found in section B for publishers and section C for advertisers. Amounts stated on invoices do not include legal sales tax but will be subjected to VAT, if not stated otherwise.
7. Termination of the Usage Agreement; Termination of the Advertising Agreements
7.1 Every user has the right to terminate the Usage Agreement at any time without stating reasons by deleting their user account or through a written cancelation. madvertise can terminate the Usage Agreement with a user by giving two weeks’ notice without stating reasons.
7.2 madvertise can terminate a customer’s utilization of its services if
• the advertiser is in default with the payment of an invoice to madvertise for a utilized advertising service or
• actions are taken against the user for the discharge that is declared legally by an insurance or insolvency proceedings concerning their economic capability is initiated unless the user performs appropriate security or
• the user breaches his contractual duties and despite a reminder with an appropriate final deadline does not offer remedial action within the time stipulated. A reminder is not required if it does not assure success or in case of a material breach which makes it unreasonable for madvertise to adhere to the contract. The extent of the breach can also be a result of the fact that the user has previously already been numerously warned due to comparable breaches.
• 7.3 The right to terminate the Usage Agreement for good cause by both parties as well as a possible statutory right of revocation remain unaffected.
7.4 Already facilitated or executed advertising placements are not affected by the termination of the Usage Agreement. If madvertise terminates the Usage Agreement with a user for good cause according to paragraph 7.2, madvertise may choose to terminate at the same time all operating or running advertising agreements in its own discretion. In case of a regular termination (pursuant to paragraph 7.1) capacity advertising agreements will remain in force until the scheduled running time expires. If at that time the agreed service has not been fully performed (i.e. the agreed volume of advertisements has not been delivered yet), the running time will be extended regardless of paragraph 7.3 until the agreed service has been fully performed. The obligation to pay costs already incurred remains unaffected by any termination.
8. madvertise’s Liability
8.1 madvertise will not be liable for the non-availability or operational failure of the mobile phone network or any other occurring operational faults, mobile phone errors, server, soft- or hardware failures or communication system failures of other companies, internet providers and/or online services or losses caused by force majeure, strike or other events that are outside of madvertise‘s sphere of influence.
8.2 Moreover, madvertise is liable according to the legal requirements for harms to life, body or health, caused by a gross negligence of madvertise, or their legal representatives, as well as for damages that result on the culpable breach of material contractual obligations. madvertise is liable according to the legal requirements for damages that are not covered by sentence 1 and that are caused deliberately or due to gross negligence or fraudulent intent. In case of slightly negligent violations of major contractual obligations, liability will be limited to the substitution of the typical damage expected at conclusion of the agreement.
8.3 madvertise assumes no further liability, regardless of the legal nature of the asserted claim; this especially applies to any claims for compensation of unavailing expenditures or for loss of profit.
8.4 Claims for damages against madvertise expire after 12 months after their origin unless they are based on an illegal or deliberate action.
9. Liability for contents; liability exemption of madvertise through the user
9.1 madvertise merely provides the technical infrastructure for the procurement and placement of online advertisements and is not responsible for the content of the advertisements of the participating advertisers or for the content of the publisher in the advertising space’s context. In particular, madvertise assumes no responsibility for the mobile websites and/or applications that are registered on the madvertise platform for participation.
9.2 madvertise does not monitor the contents stated in paragraph 9.1 and is also not obliged to do this task, however reserves the right to do so at its own discretion.
9.3 Upon initial request, the user will indemnify and hold madvertise as well as its staff, employees, associates, representatives, shareholders, auxiliary persons of madvertise and/or corporations that are associated with madvertise harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of
• content and/or information that the user saved, published and or/transmitted on his mobile websites and/or applications or that is contained in the advertising media provided by user or
• any violations of these terms and conditions or any violations of any rights of a third party.
10.1 For the period of this agreement and up to 3 years after termination of this agreement, the parties are obliged to keep confidential to third parties any documents, knowledge, experience and other confidential information given to the other party or passed on in the context of this agreement. The parties agree to protect the documents, information and other data of the other party as if it were their own confidential information, however at least with the diligence of a prudent businessman.
10.2 Documents, information and data, affecting corporations associated with the parties, other co-operating parties or suppliers as well as customers and commercial agents are also subject to this confidentiality agreement.
10.3 The confidentiality agreement does not apply to documents, information or data that were already rightfully in their knowledge before disclosure and not subject to any confidentiality clause, or that were subsequently excluded from this confidentiality clause in writing via telefax or e-mail, or that had to be disclosed in accordance with legal or administrative regulations.
11. FINAL PROVISIONS
11.1 Marketing measures or press reports regarding the cooperation have to be agreed between the parties before disclosure. This especially applies to the use of the logo and/or name of the other party. madvertise is authorized to prohibit the use of their logo and/or name at any time if the use does not correspond with the quality standards demanded by madvertise or if the use has not been agreed upon by madvertise.
11.2 madvertise is entitled to transfer any or all of the rights and obligations deriving from this contractual agreement to any company associated with madvertise. The user agrees to a corresponding transfer when agreeing to these terms and conditions.
11.3 This agreement is exclusively governed by the Italian law excluding the UN Convention on the International Sales of Goods.
11.4 In as far as this is permissible for any legal conflicts arising from this agreement the place of jurisdiction will be Milan.
11.5 There are no verbal or written agreements. Alterations and/or amendments of this agreement need to be done in writing. This does also apply when waiving this written form.
11.6 Should an individual clause of this agreement be or become invalid or impracticable this will not affect the validity of the entire agreement. The parties shall replace the invalid or impracticable clause by a clause that will come nearest to the commercial content of this agreement and the intention of the parties. The same applies for possible gaps in the agreement.
Right to Cancellation
Clients have the right to withdraw their contractual statement within 14 days in written form (e.g. letters, faxes, e-mail) without having to articulate reasons. The deadline begins upon receipt of these instructions in text form, but not before the conclusion of this contract. Cancellations are to be submitted to:
madvertise Mobile Advertising Srl
Via Stendhal 65
or via e-mail: firstname.lastname@example.org
Consequences of Cancellation
In the case of an effective cancellation, services and profits derived thereof (e.g. interest) received by both parties are to be returned or refunded. If the user is not able to fully refund received services or refund them in a deteriorated state, madvertise maintains the right to demand value compensation. It may therefore be necessary for the user to carry out the contractual duty of payment for the period until the cancellation becomes effective. The user is obligated to refund payments within 30 days of submitting your cancellation. The deadline for the user begins upon dispatch of the cancellation request and for madvertise upon receipt of the request.
The user’s right to cancellation ends prematurely if, with the explicit agreement of the user, the contract has been fulfilled entirely from both parties, even before the user has exercised his right to cancellation.
End of Instructions on Cancellation Policy.
B. Special Conditions for Mobile Website Operators and Mobile Application Developers (Publisher)
12. MADVERTISE RIGHTS & OBLIGATIONS
12.1 Marketing through madvertise
On behalf of the publisher, madvertise will undertake the marketing of advertising spaces on the mobile websites and/or applications of the publisher. madvertise will be entitled to conclude and process ad placement orders with advertising customers on its own behalf and on its own account. madvertise is entitled to form contractual terms with advertising clients as they see fit and to determine the price of the advertising media and possible discounts in its own discretion.
12.2 Delivery of Advertising Media
madvertise places advertising media provided by their advertising clients into the ad spaces provided by the publisher according to these terms and conditions. For this, madvertise connects the advertising format with a code (cf. paragraph 13.3) and delivers the advertising media via an ad server. madvertise will principally use their own ad server for delivery of advertising media. In exceptional cases, that need to be agreed upon in written form, the ad server of the publisher or of a third party will be used. In this case, madvertise maintains the right to have the results of the advertising campaigns as stated by the publisher or the third party checked by an independent and sworn accountant.
madvertise will do its best to fill the ad spaces provided by the publisher to the highest degree possible with advertising formats and to maximize the revenues of the publisher.
However, madvertise does not warrant the marketability of the advertising space and explicitly excludes all warranties as to the amount of revenues, AdImpressions, click rates and any other results of the advertising campaigns.
madvertise assumes no liability for the functionality or the content of the advertising media and/or the mobile website and/or apps it will be linked to. madvertise also assumes no liability for the advertising media or links to be in a thematical or in any other correlation with the mobile website and/or app of the publisher. madvertise will remove advertising media as it sees fit or upon written request (email will be sufficient) by the publisher, if there are objectively comprehensible indications that the content of the advertising media or websites they are linked to do violate existing laws or third party rights and/or are impermissible due to other reasons.
madvertise is entitled to continue the placement of advertising media after the suspicion and/or inadmissibility has been removed or the advertising customer has provided a suitable substitute. madvertise will not be liable for possible loss of payment that may be incurred due to the aforementioned disruption or cancellation of an advertising campaign.
Furthermore, the relevant statutory warranty provisions shall apply.
If agreed between madvertise and the publisher, madvertise will create a regular report regarding the sales activities for the publisher. Alternatively or in the case of registering via the “self service platform”, madvertise will grant the publisher access to a reporting system free of charge. The reports provided by madvertise are the exclusive basis for the invoicing and credit notes from madvertise to the publisher.
13. Rights and Obligations of the Publisher
13.1 Marketing Rights
The publisher guarantees that he is entitled to market all ad spaces on the contractually agreed mobile websites and/or apps, to freely dispose thereof and to commission madvertise for marketing purposes in accordance with the regulations of these terms and conditions.
13.2 Legality and availability of the mobile websites and/or applications
The publisher warrants that the content and design of the contractually agreed mobile websites and/or apps will each comply with applicable. The same applies to the type and kind of placement and the requirement that the advertising media are made clearly recognizable as such. The publisher represents and warrants that he does not publish or link to any illegal content on its mobile websites and/or apps, in particular content that
• glorifies violence or war
• is pornographic or harmful to minors,
• is liable to incite racial hatred or degrading, or
• contains characteristics of unconstitutional organizations.
The publisher is obliged to ensure that his mobile websites and/or apps are available at all times and not merely under construction. Substantial content changes and technical alterations of the publisher‘s mobile websites and/or apps have to be reported to madvertise in writing sufficiently in advance.
13.3 Technical integration
a) The publisher will technically place the offer on the mobile websites and/or apps in such a manner that all current and conventional advertising media and -formats can be used. The publisher will principally place the ad spaces for the user in the visible area (“above the fold“), unless the parties have agreed otherwise.
b) The publisher is obliged to integrate the ad server tags provided by madvertise on the mobile websites and/or apps as per specifications provided by madvertise and/or establish a server-to-server integration as per API specifications of madvertise. If the publisher does not adhere to the integration specification of the ad server tags and/or API specifications it will be impossible for madvertise to ensure a correct delivery of the advertising media. madvertise assumes no liability for any errors arising (e.g. reduced delivery of booked media performance and/or erroneous delivery of the advertising media) and any damage resulting hereof. The publisher will indemnify and hold madvertise harmless from any third party claims, including reasonable attorneys’ fees, that may arise in connection with the reduced, late or bad delivery of the advertising media as a result of nonadherence to the above-mentioned specifications.
c) The publisher may only use the ad server tags provided by madvertise exclusively under the provided URL and in the determined and described environment. The publisher will not receive any payment for the inappropriate use of the HTML code on non-designated mobile websites and/or in apps or in any other defined advertising environment. Any claims for damages of madvertise against the publisher shall remain unaffected. The publisher is not allowed to remove or modify in any way the tracking tags integrated in the codes.
d) The publisher must ensure that after clicking any means of advertising the URL of the advertising client is clearly displayed in the address bar. It is prohibited to frame the target sites within mobile websites and/or apps of the publisher.
13.4 Other support
The publisher will support the work of madvertise and will provide madvertise with all information necessary for the sale of advertising media.
13.5 Name and Logo of the publisher
The publisher grants madvertise, for the duration of this agreement, throughout the universe and free of charge, the irrevocable right to use the name, logo and any other ID of the publisher for its marketing activities, in particular for the creation of media data and any other materials, presentations and possible trade fair events necessary for acquisition and sale. Furthermore, the publisher grants madvertise the right to create screenshots of the mobile websites and/or apps to be marketed and to use as it sees fit as described before.
13.6 Inadmissible practices
The publisher is not permitted to directly or indirectly, by himself or through third parties create ad requests to the advertising media marketed by madvertise, in particular by repeated manual clicking or by using automatic program procedures (e.g. “robots”, “forced clicks“, etc.). Should madvertise detect unusual clicking behavior or inadmissible practices, madvertise will be entitled to immediately block the corresponding mobile website and/or app for at least 24 hours until further notice and without prior notification.
The corresponding share of payment will be lost without compensation, unless the publisher can prove a lesser damage. In case of reasonable suspicion of culpable violation against the stipulations regarding inadmissible practices, madvertise will be entitled to withhold the corresponding payment of the publisher until the matter has been resolved, unless the publisher will grant a security of the same amount. madvertise expressly reserves the right to assert additional claims.
14.1 The publisher receives a payment based on the number of valid clicks on the advertising media, the number of valid impressions of advertising media and/or other events performed in connection with the display of advertising media on the publisher’s mobile websites and/or apps, as in each case determined my madvertise based on its reports, unless other agreements have been made in writing. No ancillary verbal agreements shall be valid.
14.2 The payment obligation towards the publisher is subject to the condition precedent of madvertise’s actual receipt of the entire payment for the campaign by the advertiser. madvertise will transfer the amount as stated in its reportd plus statuary VAT principally within 90 days after the corresponding invoicing month depending on the location of the Publisher. The money transfer will be made to the bank account that is stated in the publisher’s user account. If the advertising commission funds do not amount to 100 Euros, madvertise is authorized to not disburse the cash sum immediately but with the amount due on the following settlement date or else if the accumulated amount due is at least 100 Euros. Transfers to bank accounts within Europe are without additional cost for the publisher, as long as the banking information necessary for the transfer are stated in his user account (IBAN and BIC). For transfers to bank accounts outside of the EU, each party has to bear the costs arising from his own bank. For amounts less than 100 Euros, the transfer will only be made on explicit request from the publisher and with deduction of additional banking and/or handling costs. In case of a termination of the agreement between madvertise and the publisher before the month’s end, the pro rata payment will apply.
C. Special Conditions for Advertising Clients (Advertiser)
15. Rights & Obligations of the Advertiser
15.1 Delivery of Advertising Media
The Advertiser is obliged to deliver the agreed advertising media to madvertise in a timely manner, however at the latest three (3) working days before the agreed campaign start and in the agreed format. For special advertising media, madvertise has the right to demand an earlier delivery date. The advertising media must be free from viruses or other potential sources of damage. The non-delivery of the advertising media in the aforementioned time period does not free the advertiser from his duty of payment. If a late delivery or changes to the advertising media cause a delay of the campaign, it is in madvertise’s reasonable discretion to claim the full or only a reduced amount from the advertiser.
15.2 Legality of advertising media and landing pages
The advertiser guarantees the legality of the advertising media and the websites they are linked to according to Italian law. However, if there are indications that contents of the advertising media or websites they are linked to may also be subject to other jurisdictions, then advertiser also guarantees the legality according to such other jurisdictions. The advertiser represents and warrants that the contents of the advertising media or websites they link do not violate any laws, regulatory provisions or public policy. The advertiser represents and warrants that its advertising media or websites they are linked to do not contain any illegal content, in particular content that
• glorifies violence or war
• is pornographic or harmful to minors,
• is liable to incite racial hatred or degrading, or
• contains characteristics of unconstitutional organizations.
In addition, the advertiser needs to respect the prohibition of disguised advertising, the national and international copyrights, trademark and patent laws, other industrial property and personality rights as well as the accepted code of conducts of national and international trade associations
15.3 Advertising Agencies
Orders from advertising/media agencies or other agents will only be accepted by madvertise for advertisers that are known by name. On request, the advertising agency or agent has to provide madvertise with a corresponding assignment.
16. Rights and Obligations of madvertise
16.1 Delivery of Advertising Media
madvertise reserves the right to adjust creatives in order to improve campaign performance. The client is obliged to inform madvertise in due course should this provision be unacceptable. madvertise will deliver the advertising media on the mobile websites and/or applications that have been agreed to with the advertiser and in the agreed time scope and/or until the agreed amount of clicks or impressions has been reached. madvertise will principally use their own ad server, unless the parties have agreed in writing that an external ad server shall be used.
16.2 Refusal of Advertising Media, Interruption of Campaigns
madvertise reserves the right to refuse an advertising campaign or certain advertising media due to their contents or technical reasons and to discontinue a running campaign, especially if the advertising media or websites they are linked to do not comply with these terms and conditions or if the delivery would be unreasonable for madvertise due to other reasons. madvertise will in this case inform the advertiser of the refusal and grant him the opportunity to replace the advertising media or run an alternative advertising campaign.
madvertise determines the course and success of advertising campaigns by using ad server reporting tools. Invoices are solely based on the results of the reports that have been determined by madvertise (cf. paragraph 19).
17. Rights of Use on Advertising Media and Campaigns
17.1 The advertiser grants madvertise, for the duration of the respective agreement and throughout the universe, the non-exclusive, transferable, right to use the provided advertising media and campaign contents, unrestricted in terms of quantity but limited to the purpose of the campaign agreement. The aforementioned rights include all necessary copyrights, ancillary copyrights and other rights necessary for the contractual use of the advertising media, including but not limited to the rights of publication, reproduction, dissemination, distribution, transfer, transmission, to make publicly accessible, for extraction from a database and retrieval and to edit the advertising media and the campaign contents, to the extent necessary for the performance of this agreement.
17.2 The advertiser represents and warrants that he owns any and all necessary rights for the execution of an advertising campaign, including the rights of use to the advertising media, and that he is entitled to grant madvertise those rights of use in the aforementioned manner. In particular, the advertiser represents and warrants that he owns all rights necessary for the conclusion of this agreement with respect to originators, artists, record producers, other creative producers, conferrers, collecting societies and other possible rights holders.
17.3 If the advertiser does not own the aforementioned rights at all, or only partly and/or temporarily, he is obliged to inform madvertise immediately.
17.4 The advertiser grants madvertise the right to use the advertising media or campaigns subject to this contract for the purpose of self-promotion, for example for presentations, references or other sales documents of madvertise.
18. Payment and Invoicing
18.1 madvertise generally sends an invoice to the advertiser after the campaign end or in the agreed frequency (e.g. monthly for the previous month) which states the amount due for the campaigns realized during the invoicing period. Payment in advance only applies if previously agreed between the parties. madvertise reserves the right to demand payment in advance from advertisers domiciled abroad. The same applies to advertisers if the result of a credit screening, to which madvertise explicitly reserves the right, suggests payment in advance.
18.2 The invoice is principally based on the payment scheme that has been agreed between madvertise and the advertiser in conjunction with the media services actually provided and determined by madvertise.
18.3 If agreed, an agency commission with an amount subject to agreement will be granted for agency bookings for proven agency activities and invoice processing.
Advertising agencies and agents are obliged to keep their offers, contracts and invoices to their clients in accordance with the pricing that has been agreed with madvertise.
18.4 If due to circumstances for which madvertise is not responsible, the performance of the contractual obligations becomes impossible, the advertiser is obliged to refund the difference between the discount already granted and the discount that corresponds with the actual purchase. Other legal duties of the advertiser remain unaffected.
18.5 The advertiser transfers the amount stated in the invoice to madvertise within the due date to the bank account stated unless it has been agreed otherwise. If the advertiser does not attend to his duty of timely payment, madvertise reserves the right to charge interest on all outstanding amounts at the rate of 8 percentage points above the currently effective base lending rate of the European Federal Bank. Other rights of madvertise remain unaffected.
18.6 If the advertiser does not raise any objections within four weeks upon receipt of the invoice, the invoice is deemed to be accepted.
19. Cancellation of Campaign Bookings and other Services
The advertiser is entitled to cancel a campaign up to 6 working days before the agreed campaign start without any additional costs. In case of a cancellation within 5 days before the agreed campaign start, madvertise charges the advertiser 50% of the cancelled booking volume or 100% respectively for bookings of specific ad spaces. For additional services such as the creation of landing pages, advertising media or market research, the complete amount will be charged.