User agreement for the Advertiser
Capitalized terms will have the meanings set forth in this Section 1, or in the section where first used in these Terms of Service or the Order Form (if applicable)
1.1 “Affiliate” means any person, corporation, or other entity which controls, is controlled by, or is under common control with a Party to the Agreement as of the Effective Date. A corporation or other entity will be regarded as in “control” of another corporation or entity if it owns or directly or indirectly controls more than fifty percent (50%) of the voting stock or other ownership interest of the other corporation or entity, or if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the corporation or other entity. With respect to Customer, “Affiliate” refers only to those Affiliates listed in the Order Form.
- these Terms of Service;
- each mutually-executed Order Form.
1.3 “Authorized Users” means the Customer’s employees, agents or subcontractors who are authorized to administer the Customer’s use of the Service.
1.4. “Company” means “PRIMAVERA HOME Sp. z o.o”
1.5. “Company Technology” means the Service, the Documentation, and any of the Company’s proprietary technology, including, without limitation, any software, processes, scripts, algorithms, user interfaces, know-how, technologies, designs, and/or other tangible or intangible technical material or information that the Company makes available to the Customer during the course of providing the Service, together with all updates thereto and all Intellectual Property Rights therein.
1.6. “Customer” means the Customer set forth in the Order Form.
1.7. “Customer Account Information” means the information Customer provides upon registering to the Service and Customer account settings.
1.8. “Customer Feedback” means suggestions, enhancement requests, recommendations or other feedback provided by the Customer or their Authorized Users relating to the operation or functionality of the Service.
1.9. “Documentation” means all printed and online user manuals and other technical materials relating to the Services made available to the Customer by the Company, as may be updated from time to time.
1.10. “Effective Date” means the date upon which both Parties have entered into this Agreement.
1.11. “Initial Term” means the initial term for the Customer’s use of the Service as specified in the Agreement, beginning on the Service Date.
- rights associated with works of authorship, including copyrights, mask work rights, and moral rights;
- trademark or service mark rights;
- trade secret rights;
- patents, patent rights, and industrial property rights;
- layout design rights, design rights, and other proprietary rights of every kind and nature other than trade dress, and similar rights;
- all registrations, applications, renewals, extensions, or reissues of the foregoing.
1.13. “Laws” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to the respective Party.
1.14. “Order Form” means the initial order form for Services under the Agreement, if any.
1.15. "Party" or "Parties" means Company and/or Customer, as applicable.
1.16. “Service” means the Company’s database of online bloggers and Company’s database of advertiser's task allowing the Customer to get insights into the online advertising market
1.17. “Service Date” means the service date specified in the Order Form, as applicable, on which the Company will make the Service available to Customer.
2. Access and use of the service
2.1. Subject to the terms of this Agreement the Company shall grant the Customer the right to access the Service.
Registered Customers who publish a task and submit it for execution pay the price they set themselves through a payment tool integrated into the Service. The Service charges a percentage specified in the additional agreement of the payment, which is a condition of use.
2.2. The Customer and each Authorized User shall create a unique password to access the Service. The Customer is responsible for maintaining the confidentiality of all Authorized Users’ credentials. The Company reserves the right to terminate any Authorized User’s credentials that the Company reasonably determines may have been used by an unauthorized third party, and will provide immediate notice of such termination to Customer. Credentials cannot be shared or used by more than one individual Authorized User, but may be reassigned to a new Authorized User replacing a former Authorized User who has terminated employment (or otherwise changed job function) and who no longer uses the Service.
2.3. The Customer may use the Service only in the ordinary course of its internal business operations for the benefit of the Customer and only in accordance with the terms of this Agreement.
2.4. A non-registered client has access to the service and blogger database, but their actions are limited to viewing.
2.5. Notwithstanding clause 1.1, the Company:
- does not warrant that the Customer's use of the Service will be uninterrupted, but that any interruptions will be kept within the limits;
- does not warrant that information obtained from third party data sources will be error free;
- does not warrant that any information obtained by the Customer through the Service will meet the Customer's requirements other than those detailed in this Agreement;
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service may be subject to limitations, delays or other problems inherent in the use of such communications facilities; and
2.6. The Customer acknowledges that the Service accesses various third party websites and services and agrees that the Company shall not be responsible for the availability of such third party services, or for the accuracy of any content provided thereby.
3. Restrictions and responsibilities
3.1. The Customer acknowledges that in developing or providing the Services, the Company may utilize pre-existing proprietary methodologies, tools, models, software, procedures, documentation, know-how and processes owned by the Company.
3.2. The Customer agrees that the Company owns all Intellectual Property Rights in the Services. Except as may be expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights in respect of the Services.
3.3. Except to the extent specifically authorized by this Agreement, the Customer shall not, shall not attempt to, and shall not permit any other person under its reasonable control to:
- use any Service for any purpose, at any location or in any manner not specifically authorized by this Agreement;
- make or retain any copy of the Service;
- re-engineer, reverse engineer, decompile or disassemble the Service;
- modify, adapt, translate or create derivative works based upon the Service, or combine or merge any part of the Service with or into any other software or documentation;
- refer to, disclose or otherwise use the Service as part of any effort either:
- to develop a program having any functional attributes, visual expressions or other features similar to those of the Service; or
- to compete with the Company;
- remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Service, or fail to preserve all copyright and other proprietary notices in any copy of the Service made by the Customer; or
- sell, market, license, sublicense, distribute or otherwise grant to any person, including any outsourced service provider, vendor, sub-contractor, consultant or partner, any right to use the Service or allow such other person to use or have access to the Service, whether on the Customer's behalf or otherwise.
3.4. Customer represents, covenants, and warrants that Customer will use the Service only in compliance with Company's standard published policies then in effect (the "Policy") and all applicable laws and regulations. Customer hereby agrees to indemnify and hold the Company harmless against any damages, losses, liabilities, settlements with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of the Service. Although the Company has no obligation to monitor Customer's use of the Service, Company may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.
3.5. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.
3.6. The Customer warrants that it shall comply with all Applicable Laws in respect to its activities under this Agreement; procure that any person given access to the Service by the Customer shall comply with the terms of this Agreement as if that person were a signatory to this Agreement (and any failure of such person to comply with any provision of this Agreement shall be deemed to constitute a breach of the relevant provision by the Customer).
3.7. The Customer agrees to use the Service solely for the internal use and benefit of the Customer's organization and not for resale or other transfer or disposition to, or use by, or for the benefit of, any other entity or person.
4. Confidentiality; Proprietary rights
4.1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes non-public data provided by Customer to Company to enable the provision of the Service ("Customer Data"). The Receiving Party agrees:
- to take reasonable precautions to protect such Proprietary Information, and
- not to use (expect in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document
- is or becoming generally available to the public or
- was in its possession or known by it prior to receipt from the Disclosing Party, or
- was rightfully disclosed to it without restriction by a third party, or
- was independently developed without use of any Proprietary Information of the Disclosing Party or
- is required to be disclosed by law.
4.2. Customer shall own all rights, titles and interest in and to the Customer Data. Company shall own and retain all rights, titles and interest in and to
- the Service, all improvements, enhancements or modifications thereto,
- any software, applications, inventions or other technology developed in connection with Implementation Service or support, and
- all intellectual property rights related to any of the foregoing.
4.3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to
- use such information and data to improve and enhance the Service and for the other development, diagnostic and corrective purposes in connection with the Service and other Company offerings, and
- disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.4. Customer agrees and acknowledges that any Intellectual Property Rights in information provided by third party service providers shall be subject to the relevant third party service provider terms and conditions, if any.
5. Payment of fees
5.1. The Customer shall pay to the Company the applicable non-refundable fees (in the form of a percentage rate) in accordance with the value of the order as determined by the Customer. The Company reserves the right to change the fees and to introduce new fees, upon thirty (30) days' prior notice to the Customer (which may be sent by email).
5.2. Customer shall be responsible for all taxes associated with the Service other than taxes based on Company's net income. If the Company is found to have a legal obligation to pay or collect Taxes for which Customer is responsible for under the Agreement, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.3. All sums payable under this Agreement are exclusive of value added tax ("VAT"), Goods and Services Tax ("GST") or other similar indirect taxes, which will be chargeable, where applicable, on production of a valid VAT/GST invoice by the Company.
6. Term and termination
6.1. This Agreement shall take effect on the Registration Date and shall remain in force throughout the period of use of the Service.
6.2. Either party may also terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement.
6.3. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accused rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Warranty and disclaimers
7.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall provide the Service in a professional and workmanlike manner. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond the Company's reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Service will be uninterrupted or error free; nor does it make any warrants as to the result that may be obtained from the use of the Service. Except as expressly set forth in this section, the Service is provided "as is" and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
7.2. Each Party warrants that:
- it has, and will at all relevant times have, the requisite power, capacity and authority and all necessary licences, permits and consents to enter into this Agreement and to carry out its obligations contemplated herein;
- its execution and performance of this Agreement shall not constitute a violation of any applicable Laws, or of any judgment, order or decree of any court or governmental agency to which it is a Party, or by which it is bound;
- it does not have any commitments to third Parties that conflict with its obligations or grants under this Agreement;
- it shall perform its obligations under this Agreement in a manner that complies with applicable Laws and will promptly notify the other Part if it receives a written allegation of non-compliance with any applicable Laws by any person.
7.3. Except as expressly stated in this Agreement, all conditions and warranties, express or implied by operation of law or otherwise, are hereby excluded to the fullest extent legally permissible.
8.1. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service
- not supplied by Company,
- that are modified after delivery by Company,
- combined with other products, processes or materials where alleged infringement relates to such combination,
- where Customer continues alleged infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement,
- where Customer's use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Service are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company, may, at its option and expense
- replace or modify the Service to be non-fringing provided that such modification or replacement contains substantially similar features and functionality, or
- if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8.2. Customer will defend, indemnify and hold harmless the Company and its Affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims of third parties arising from or that are based upon:
- a Customer’s use of the Service in a manner not permitted by the terms and conditions of the Agreement or the Documentation;
- a Customer’s non-compliance with Law.
8.3. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following:
- the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; provided, that failure to provide such prompt notice will not release the indemnifying Party from its indemnity obligations except to the extent the indemnifying Party is materially prejudiced thereby;
- the indemnifying Party will have sole control of the defense or settlement of any claim or suit;
- the indemnified Party will cooperate with the indemnifying Party (at the indemnifying Party’s expense) to facilitate the settlement or defense of any claim or suit; and
- the indemnifying Party will not settle any claim or suit in a manner which results in an admission of liability by the indemnified Party, without the indemnified Party’s prior written consent.
9. Limitation of liability
9.1. In no event shall the company be liable to the customer for any indirect, incidental, consequential, special or exemplary damages, including lost profits, even if such damages are foreseeable and regardless of whether the customer has been advised of the possibility of such damages. The existence of one or more claims under the agreement will not increase the company's liability. Except where prohibited by law, no claim regardless of form, which in any way arises out of the agreement may be made, nor action based upon such a claim be brought by the customer, more than one (1) year after the termination or expiration of the agreement. the company expressly disclaims all warranties regarding customer services or any portion thereof.
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