§ 1. [AGREEMENT]
- AdTaily is in the business of rendering professional services for the Publisher, against payment, on such terms and conditions as set forth in the Agreement.
- The Agreement comes into force and commences to be binding upon the Parties as of the day AdTaily accepts the Order (effective date) placed by the Publisher electronically by means of an interactive form available on AdTaily’s webpage. AdTaily makes available to the Publisher technical means for identifying and correcting input errors prior to the placing of the Order, and affords the latter convenient access to the contents of the Agreement.
- For the purposes of optimal use of the Service in terms of its quality and scope, the Publisher shall secure the following technical means, namely unlimited access to the Internet and compatible terminal equipment with the latest version of a popular browser in place.
- The Service is dedicated to entities (natural or legal persons, or otherwise) pursuing business activity (traders). Where the consumer, meaning a natural person who, in contracts with AdTaily for the Service, is acting for purposes which are outside her/his trade, business, or profession, aspires to become the Publisher, such a person shall, prior to the effective date, disclose her/his legal status of a consumer either in the Order, by way of an email sent to the following address email@example.com, or otherwise – in a clear and unambiguous fashion, and tangible form.
§ 2. [DEFINITIONS]
Unless expressly provided otherwise, the terms listed beneath shall be understood to have the following meaning in relations between the Publisher and AdTaily with respect to the Service:
Website – internet and/or mobile website (or websites) of the Publisher located at the URL address(es) as defined in the Order.
Placement – the advertising space on the Website that is serviced by AdTaily under the Agreement;
Advertisement (or Ad) – any graphic, text, or multimedia unit of advertising or promotional nature designed for display on the Website in any format compliant with the technological requirements of the Placements;
RTB Platforms – technological platforms managed by third parties and designed for optimization and automated sale and display of the Advertisements on the Website;
Partners – entities other than RTB Platforms commissioning AdTaily to provide display of the Advertisements on the Website;
Revenue – net value of the revenue generated by AdTaily through the management of the cooperation with the operators of RTB Platforms and Partners in respect of the display of the Advertisements on the Placements;
Publisher Panel – an on-line application provided by AdTaily to the Publisher used for the settlement of dues between the Parties in respect of the display of Advertisements on the Website;
Settlement Period – a period of one calendar month or any such other period as agreed by the Parties in the Order;
Number of Impressions – the number of times a particular Advertisement located on a Placement gets loaded onto the user’s terminal equipment;
eCPM – a coefficient enabling the measurement of effectiveness of AdTaily activities on the Placements, i.e. the rate received by AdTaily for the sale of 1000 impressions of the Advertisement;
Improper Traffic – any form of Internet traffic on the Website that is generated artificially, in particular by: (i) artificial increase of the Number of Impressions achieved by means of any technique, including without limitation the use of browsers with automatic re-spawn, practice of automatic redirection of users, use of blind text type links, misleading links, forced clicks, placement of network tags (websites’ tags) on empty websites, etc.; and (ii) spam activities and activities contrary to the rules and regulations and other principles followed by RTB Platforms’ operators;
Ban – exclusion of a Website from the display of Advertisements on terms and conditions set out in the Agreement;
Parties – the Publisher and AdTaily considered together as parties to the Agreement or as entities bound in a mutual or shared manner under these Terms of Service;
Terms of Service – a set of provisions included in this document meant to regulate rights and obligations of the Parties with respect to the Service, constituting a part of the Agreement;
Agreement – a legal instrument regulating the Parties’ rights and obligations with respect to the Service, a part of which constitutes the Order, Terms of Service, and applicable laws.
Service – a service consisting in the technological optimization of Ad display on the Website;
Order – a separate document governing the Parties’ rights and obligations with respect to the Service, defining in particular: identity of the Publisher, data related to the Website, amount of remuneration and terms of payment, constituting a part of the Agreement.
§ 3. [ADTAILY OBLIGATIONS]
In performance of the Agreement, AdTaily commits:
- to take actions, to the best of its knowledge and in line with its competences, in order to maximize the Revenue earned from the management of Placements on the Website;
- to give the Publisher access to the Publisher Panel;
- to populate the Publisher Panel with information relating to the Placements managed by AdTaily, including without limitation: (i) actual Number of Impressions, (ii) eCPM measurements – in the aggregate, and divided by Placement, (iii) amount of the Revenue for each Settlement Period, by Placement, (iv) amount of the Revenue verified and authorized by AdTaily and the remuneration due to the Publisher along with any such information as required for effective issuance of an invoice for AdTaily by the Publisher;
- to carry out settlements with the Publisher in respect of the provided Placements on a timely basis;
- to promptly rectify any technical errors for which AdTaily may be held accountable insofar as those errors make the performance of the activities set out in the Agreement impossible.
§ 4. [PUBLISHER OBLIGATIONS]
In performance of the Agreement, the Publisher commits:
- to provide Placements to AdTaily on a continuous basis throughout the entire term of the Agreement;
- to plant on the Website, within three workdays of the conclusion of the Agreement, the codes supplied by AdTaily which trigger Advertisements and enable calculation of the Number of Impressions, and not to remove or change said codes in any way;
- not to introduce any changes in the Placements, including any changes relating to their specific location on the Website, and not to interfere with the visibility of the Placements, and not to cover them with any other forms of advertising;
- not to engage in any Improper Traffic practices, and to prevent third parties from engaging in such practices on the Website;
- not to take any actions that might result in the imposition of a Ban, and to comply in operating the Website with principles stipulated in the rules and regulations and with rules of operation of RTB Platforms, and specifically the “Google Policy”;
- to notify AdTaily, at least three days in advance, of any change in the Website that might affect performance of the Agreement, in particular of any change in the layout of the Website and any technological changes, including changes introduced in HTML documents in which the Advertisements will be placed, as long as they impact the location and functioning of the Placements;
- to notify AdTaily of the commencement of its cooperation with other entities which is connected with the management of the Website’s advertising space, including the display of the Ads on the Website;
- to notify AdTaily, at least three days in advance, of any actions that might result in a material, i.e. in excess of 30%, change in the Number of Impressions.
§ 5. [COOPERATION OF THE PARTIES]
- The Publisher undertakes to use its best endeavors to maintain or increase the Number of Impressions obtained through RTB Platforms, as declared in the Order, throughout the entire term of the Agreement.
- In the case of an Advertisement with respect to which a violation of applicable laws has been reported, AdTaily shall promptly, after considering the subject matter of such a report submitted by the entity raising claims or by the Publisher, take necessary measures to change or block the Advertisement.
- The Publisher may submit to AdTaily by electronic mail a demand to cease the display of any identifiable Advertisement located on the Website. In such a case AdTaily shall prevent, within three workdays of the receipt of such a demand, display of such an Advertisement on the Website. The demand may be made only where Advertisements violate applicable laws or the “Google Policy” or any corresponding (same, or like) rules and regulations.
- AdTaily commits not to display Advertisements relating to entities to the display of whose Advertisements on the Website the Publisher has explicitly voiced objection. A list of such entities shall be provided to AdTaily simultaneously with the placing of an Order; any change is subject to consent to be granted by AdTaily in due course. The provisions of Clause 5.3 of these Terms of Service shall apply accordingly.
§ 6. [REPORTING AND SETTLEMENT OF DUES]
- The Revenue shall be determined based on the information as verified and authorized by AdTaily and automatically generated in the Publisher Panel with respect to each Settlement Period, and presented to the Publisher by AdTaily within five days of the end of a Settlement Period. AdTaily shall provide the information to the Publisher in the Publisher Panel and, at the Publisher’s request, shall send it to the Publisher’s email address as specified in the Order. The information referenced in the preceding sentences shall inform an invoice to be issued by the Publisher and received by AdTaily for the Settlement Period covered by this information; the invoice shall state remuneration due to the Publisher.
- AdTaily declares and warrants that the reported Revenue shall be in compliance with the figures presented in the information reported to AdTaily by the RTB Platforms and Partners.
- AdTaily shall be entitled to adjust the settlement of the amount of Revenue due for a Settlement Period and, in consequence, to adjust the amount of the remuneration due to the Publisher in the event the entity managing the RTB Platform or the Partner makes a relevant adjustment to its settlements with AdTaily for such a Settlement Period.
- Without prejudice to the generality of the foregoing, where remuneration due for a given Settlement Period does not exceed the threshold of PLN 1,000/ EUR 250/ USD 300/ RUB 20,000/ GBP 200, then such remuneration shall not be immediately invoiced and payable but shall be included in and due under any such future invoice the total amount of which – previously not invoiced remuneration added – exceeds the threshold.
- AdTaily consents to the issuance and delivery of invoices via electronic mail to its address specified in the Order or to the placement thereof in the Publisher Panel.
- In the event of the Publisher’s breach of the obligations set out in Clauses 4.4 and 4.5 of these Terms of Service, the Publisher shall lose its right to the remuneration corresponding to those displayed Advertisements that are connected with such a breach.
- The currency of remuneration as well as the term of payment shall be defined in the Order.
§ 7. [LIABILITY]
- AdTaily shall not be liable for violation of any rights of third parties or violation of applicable laws in connection with the Publisher’s activities, including the content of the Website and materials presented there.
- AdTaily shall not be liable for breaks in the display of Advertisements caused by extraordinary events or circumstances beyond its control (force majeure) including without limitation, strikes, natural disasters, failures in telecommunication networks or errors of third parties affecting performance of the Agreement.
- AdTaily shall be entitled to cause temporary breaks in the display of Advertisements for technical reasons. AdTaily shall take utmost care to ensure that the aforesaid breaks take place at night and are as short as possible. The breaks in the provision of the Service caused for technical reasons shall not affect the assessment of the fulfillment by AdTaily of its obligations under the Agreement.
- In case of questions, suggestions, or possible complaints concerning availability or quality of the Service, the Publisher may contact a representative of AdTaily by electronic means sending its complaint to the following email address: firstname.lastname@example.org.
- The liability of the Parties for implied statutory warranty and lost profits shall be excluded.
§ 8. [CONFIDENTIALITY]
- Each Party commits to maintain confidentiality of any information, in whatever form, which they have obtained in connection with the negotiations, execution and performance of the Agreement, in particular organizational and technological information concerning the other Party as well as the commercial terms and conditions on which the Parties have entered into the Agreement (the “Confidential Information”). The secrecy obligation as regards the Confidential Information shall bind for a period of 3 years as of the moment any such information was obtained by the receiving Party, irrespective of discontinuance (expiry, termination, or the like) of the Agreement.
- Each Party declares and warrants that all Confidential Information provided or disclosed to them by the other Party shall be used and applied solely for purposes connected with the performance of the Agreement and that it shall not be transmitted or disclosed to any third party without the express prior consent of the disclosing Party granted in writing.
- The Parties agree that the Confidential Information shall not extend to and the confidentiality obligation shall not apply to: (i) information that is publicly known, (ii) information that had been known to a Party prior to its disclosure by the other Party, on condition that such prior knowledge may be proven; or (iii) information obtained from an authorized third party.
- The Parties shall be released from the secrecy obligation where the duty to disclose the Confidential Information arises from the mandatory provisions of law. In any such case the disclosing Party shall be obliged, if possible under the mandatory provisions of law, to: (i) promptly notify the other Party of the obligation to disclose the Confidential Information to the persons to whom such disclosure is to be or has been made; (ii) disclose only such part of the Confidential Information that is required by law; and (iii) take any possible measures to ensure that the disclosed Confidential Information is treated as confidential and used solely for the purposes justified by the purpose of the disclosure.
§ 9. [TERM AND TERMINATION]
- The Agreement has been entered into for an indefinite period of time, or – alternatively –any such other term as defined in the Order, and may be terminated in cases provided for in the Agreement.
- AdTaily may terminate the Agreement with immediate effect without a separate demand to cure in the event of a material breach of the provisions hereof by the Publisher, specifically in case of the Improper Traffic or Ban.
- Where the Improper Traffic or Ban has occurred, AdTaily may limit or block the display of Advertisements on the Website, and such action shall not constitute the grounds for the pursuance of any claims against AdTaily by the Publisher.
§ 10. [FINAL PROVISIONS]
- Failure to notify a change of the address or other contact details shall result in any and all correspondence sent to the address previously specified, either in or as per the Agreement, being deemed effectively delivered.
- Invalidity or ineffectiveness of any provision of the Agreement shall not result in the invalidity or ineffectiveness of the remaining provisions.
- Any amendments, supplements or any other modifications of the terms and conditions of the Agreement shall be in writing, otherwise being null and void, unless specific provisions of the Agreement provide that changes may be made in due course, in which case the e-mail form shall be sufficient.
- Any disputes that may arise in connection with the performance of this Agreement shall be resolved by a common court with jurisdiction over the registered office of AdTaily.
- The Agreement shall be governed by the laws of Poland and shall be construed in accordance with Polish law, to the exclusion of any conflict-of-law clauses that might impose the application of any foreign domestic law.