ADVERTSTREAM. ADSMARKETPLACE Terms & Conditions («MEDIA BUYERS»)

Transcription

1 ADVERTSTREAM ADSMARKETPLACE Terms & Conditions («MEDIA BUYERS») Introduction THE LEGAL AGREEMENTS SET OUT BELOW GOVERN YOUR USE OF THE ADVERTSTREAM ADSMARKETPLACE referred to hereinafter as «ADSMARKETPLACE». ADVERTSTREAM is a limited company (Société par Actions Simplifiée) under French law with registered capital of ,00 euros listed on the Lyon Register of Trades and Companies under number and with registered offices at 79 Rue François Mermet TASSIN LA DEMI LUNE. THE ADVERTSTREAM ADSMARKETPLACE is an online self-serve advertising platform and virtual marketplace where Media Sellers may put their available advertising inventory on their website(s) for auction to Media Buyers, and Media Buyers may bid on the online media inventory of Media Sellers. ADVERTSTREAM accepts the delivery of the contents, their execution process and the Ad-Serving. All services provided by ADVERTSTREAM ADSMARKETPLACE are performed on the basis of these general terms and conditions. These terms and conditions apply to and prevails to all future and current agreements, even if no explicit reference is made to them in any agreement or document provided to you by ADVERTSTREAM. ADVERTSTREAM reserves the right to terminate an account and/or withhold campaign/s of an account that violates any of the cited terms and conditions. If you are an individual accessing the Service on behalf of a business entity, whether as an employee, consultant or agent of such business entity, by doing so, such you represents that you have the legal capacity and authority to bind such business entity to this Agreement. TO AGREE TO THESE TERMS, CLICK "AGREE." IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK "AGREE," AND DO NOT USE THE SERVICES. BY ACCESSING THE SITE OR THE SERVICE, YOU INDICATE AND ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT. These Terms & Conditions may be updated from time to time so please review them regularly. MEDIA BUYER agrees to be legally bound by whichever version of these Terms is in force at the relevant time. Your continued use of THE ADVERTSTREAM ADSMARKETPLACE will be deemed acceptance of any subsequent revisions to the present Terms and Conditions. ADVERTSTREAM recommends that You save a local copy of this Agreement for Your own record. Article 1 - Definitions and Interpretation In this Agreement the following words and expressions shall have the meaning set out below : «Advertiser» or «Media Buyer»: the definition of an Advertiser includes, but is not limited to, direct advertisers, advertising agencies, media buyers, representatives of a third party whose advertisements are being advertised as part of the Services or intermediaries acting on an Page 1 sur 18

2 advertiser's behalf or who provide tools and technology that are used in conjunction with or facilitate advertisers use of ADVERTSTREAM ADSMARKETPLACE. «Account»: An advertiser account is an identifier and an access to statistics and other payment, campaigns information provided by ADVERTSTREAM ADSMARKETPLACE to the Advertisers that desires to display or publish Ads, Campaigns for their products or services. «ADSMARKETPLACE Platform» : means ADVERTSTREAM Company's proprietary system and related tools that enable an Advertiser/Publisher to purchase/sell Ad inventory/advertisement and distribute Ads through the ADVERTSTREAM Network. «Advertisement» or «Ad» : means the banner, text, graphic, logo, or any other advertising format that the Advertiser submits to ADVERTSTREAM ADSMARKETPLACE for placement on the Media Vehicle in accordance with the terms of this Agreement; «Advertising Materials» : means artwork, copy, or active URL for Ads. «Advertisement Space» : means a part of a web Page/Site from the ADVERTSTREAM Network that is reserved for Advertisements. «ADVERTSTREAM Network»: Websites operated by third party publishers/media sellers having entrusted all or part of the commercialisation of their advertising space to ADVERTSTREAM and on which Campaigns might be displayed. «Campaign» : means a coordinated sales effort on behalf of a specific client or product, series of linked Advertisements with a single idea or theme running over a period of time on Advertisement spaces. «Capping» : is a limit which is set on the number of impressions per user per day. For example, an ad with a 3 cap is viewed at most three times by each specific user. «Creative» : means any creative content, Advertising materials of any type used under this Agreement, including, but not limited to, buttons, banners, text-links, pop-ups, pop-unders, Display Creatives, supplied by the Advertiser for incorporation into the Advertisement. «Impression» : means each Advertisement published on a web page of the ADVERTSTREAM Network. «Lead» : unless otherwise defined on an insertion order, means each time a visitor clicks on an Advertisement, resolving to the advertisers website and then completes and submits a web based enquiry form or completes a sale; «Media Seller» or «Publishers» : means any entity or person that joined ADVERTSTREAM Network to sell Inventory (=Advertisment spaces) to Media Buyers using the ADVERTSTREAM ADSMARKETPLACE platform. «Representative» : means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, Agent/Agency, and/or attorney. One Representative work with several Advertisers. Article 2 - Scope of Agreement Page 2 sur 18

3 This Agreement sets out the rights and obligations of the MEDIA BUYER and ADVERTSTREAM within the framework of the use of the ADVERTSTREAM ADSMARKETPLACE plateform by the MEDIA BUYER. Rights and obligation under which ADVERTSTREAM grants to the MEDIA BUYER the right to access and to use the ADVERTSTREAM ADSMARKETPLACE online ad serving platform and the conditions of the placement of Advertisements on the ADVERTSTREAM NETWORK. This Agreement defines the technical, commercial and legal obligations and responsibilities involved by the use of the ADVERTSTREAM ADSMARKETPLACE by the MEDIA BUYER. Article 3 Effective date and term The agreement comes into force upon the signing of both parties on the date of signature. This Agreement is concluded for an indefinite term, and may be terminated by either party at any time. Article 4 Registration to the ADSMARKETPLACE. Before starting to use the ADSMARKETPLACE, you need to register and create an account. To be eligible for creating an ADSMARKETPLACE account, you must : have full legal capacity to enter into a contract; if you are an individual, be at least 18 years old ; have a Bank account ; Fill the registration form and provide complete, real and true information ; Don t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify ADVERTSTREAM of any security breach of your Account. ADVERTSTREAM shall not be responsible for any losses arising out of the unauthorized use of your Account. Once your account is created, a confirmation will be sent to your address. ADVERTSTREAM reserves the right to refuse registration of an Account to anyone for any reason at any time (or to close an existing Account) especially, but without limitation : If you have opened, or are attempting to open, an Account in a fraudulent or illegal manner; If you have breached these Terms & Conditions of Use; If ADVERTSTREAM considers refusal of registration of an Account or the closure of an existing Account to be necessary to comply with any requirements of the law; If misleading or incorrect information has been provided ; If the website or the account in question can potentially damage ADVERTSTREAM s reputation Any information provided is solely at you own risk. You represent and warrant that the information you provides is true, accurate, current and complete and agree to maintain and update this information to ensure that it is true, accurate, current and complete. ADVERTSTREAM reserves the right to verify the eligibility of all accounts and data provided. If, at any time, any information you Page 3 sur 18

4 provided is untrue, inaccurate, not current or incomplete, ADVERTSTREAM will have the right to suspend or terminate your account. Once your account is validated, you have at your disposal a dedicated interface allowing you to setup and deploy campaigns easily. Article 5 Media Buyer s account The creation of advertising campaigns is available from your Media Buyer s account. After making a deposit of (Euros) on your account, you can immediately set up and launch your campaigns by yourself at any time. We adopt a pre-paid mode, you have to add funds to your account in order to start an ad campaign. The minimum deposit we accept is Euro 30. Once payment on your account has been made it cannot be reversed. Your account can be disabled or locked due to at least 12 months of inactivity. If your account has a credit balance when it is blocked, you may still request refund of the sum for a period of 6 (six) months. All request after this deadline is not possible, you cannot claim any restitution or any refund, ADVERTSTREAM retains the remaining balance. In case of inactivity on your account for 18 months, even if the account has not been blocked, the same solution as set out above shall be accepted, ADVERTSTREAM retains the remaining balance if it is not claimed within 18 months. Article 6 Representative/Representation If you are an advertising agency, search engine marketer, reseller, or other entity representing Advertisers ("Representative"), this Section applies, and in such case, "you" and "your" mean Representative, any Affiliates of Representative who execute an Insertion Order, launches a Campaign and/or creates an account, together with Advertisers. "Advertiser" means an entity (including a sole proprietor) on behalf you execute an Insertion Order, launche a Campaign and/or create an account. a. Representative represents, warrants, and covenants that: (I) it is the authorized agent of the Advertiser and has the legal authority to enter into the Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser s accounts, (II) by Representative executing an Insertion Order or otherwise creating an account, the Advertiser is also entering into the Agreement, (III) Representative will not, without ADVERTSTREAM s prior written consent: (a) make any representation, guarantee, condition, or warranty concerning any Campaign or ADVERTSTREAM, including that Representative is an affiliate or partner of ADVERTSTREAM, (b) make any commitments (e.g., guarantees as to placement of ads) to an Advertiser or potential Advertiser regarding any Campaign, (c) negotiate any terms or conditions related to the Campaigns which may affect the rights, protections, and/or obligations of ADVERTSTREAM, and/or that are inconsistent with the Agreement, or (d) engage in any telesales or telemarketing in connection with any Campaign, and (IV) Representative will perform its duties pursuant to the Agreement in a professional manner consistent with the requirements established by ADVERTSTREAM. Upon our request, Representative will immediately deliver to us each agreement that designates Representative as the Advertiser s agent and authorizes Representative to act on the Advertiser s behalf in connection with the Agreement. In the event of a termination of your relationship with an Page 4 sur 18

5 Advertiser, such Advertiser may continue to use the Information, including account and performance history with respect to its ads, and Representative will no longer have access for such Advertiser s accounts. Representative will not at any time use data or information received in connection with the Agreement to conduct any marketing efforts targeted at our existing advertisers. While the Agreement is effective and for twelve (12) months thereafter, Representative will not, directly or indirectly, refer for employment or solicit our employees, consultants, or agents. b. Payment Liability. Without limiting any other provision of the Agreement, Representative and each Advertiser will be jointly and severally liable for all payment obligations pursuant to these Advertiser Terms and Conditions, and you hereby waive any Law that may require us to proceed against one or more of you prior to proceeding against any others who may also be liable. Notwithstanding the foregoing, (I) if we offer you Sequential Liability in a particular country and we approve the applicable Advertiser s credit application, we will hold Representative liable for payments, solely to the extent Representative has received payment from such Advertiser; for sums not received by Representative, we will hold the Advertiser solely liable ("Sequential Liability"), and (II) if Representative (x) breaches or allegedly breaches these terms or (y) fails to comply with our request to confirm whether an Advertiser has paid to it in advance funds sufficient to make payments, Representative will be obligated to immediately pay all such amounts due us regardless of whether it has received payment from such Advertiser. You acknowledge that we may directly contact any Advertiser represented by Representative, including if we have not received payment for such Advertiser s account within 60 days from the date of the applicable invoice. VAT: according to article 259 B of the French General Taxes Code, within the framework of a Representation between an Advertiser located outside EC and a Representative based on the French territory, the contract will be necessarily subjected to the French VAT since the invoice is charged and/or paid by the Representative. Article 7 Campaigns In the event of a cancellation before the begining of a Campaign, Advertiser and Agency shall remain liable for the full advertising rate and shall reimburse ADVERTSTREAM for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services. There are no cancellations once a campaign begins. Any cancellation made at the request of the Advertiser after the campaign has commenced will be subject to a minimum cancellation fee of 100% of the total cost of the entire campaign. Advertiser will not be entitled to a refund of any unused portion of the campaign. ADVERTSTREAM expressly reserves the right to pause or refuse any advertising request, cancel any Campaign, or change any Campaign that does not meet or satisfy Company's performance expectations, operational requirements or for any other reason effective upon notice to Advertiser. Article 8 Campaign statistics The ADSMARKETPLACE platform allows the advertiser to track in real time through its AD-ACCESS account and its dedicated interface, the main information regarding the broadcast of its campaigns on the ADVERTSTREAM network. Page 5 sur 18

6 The advertiser will access to the following: - Its creative contents, - Number of impressions, clicks - E CPM, CPA, CPC, - Option of enabling / disabling of a campaign, - the setting of the campaign: Capping (frequency of maximum display per 24 hours Internet, monthly budget, daily budget) The Advertiser acknowledges that delivery statistics provided by ADVERTSTREAM are the official, definitive measurements of performance on any delivery obligations provided in the Advertising Agreement. Notwithstanding any provisions of the Advertising Agreement, the Advertiser acknowledges that ADVERTSTREAM does not make any guarantees with respect to usage statistics or levels of impressions for any Advertisement, and only provides the Advertiser with estimated usage statistics as a courtesy to the Advertiser and will not be held liable for any claims relating to any usage statistics however supplied. Article 9 Prices and conditions All prices on IO, sites or the platform are in Euro ( ). The total amount of taxes and levies pertaining the IO are to be met by the advertiser. Except for contract rates agreed to in writing by Advertiser and ADVERTSTREAM, advertising rates and units of space for each order shall be at the prevailing rates on the date the applicable insertion order is received by ADVERTSTREAM. ADVERTSTREAM might update the displayed prices, in such case the modification will not affect the processing orders. Payment is due in full at time of space reservation. ADVERTSTREAM ADSMARKETPLACE offers a self-serve service, Campaigns prices are auction-based. The minimum bid starts at 0.01 per click and 0.10 on CPM. Regarding affiliation Campaigns and Media Campaigns, prices are to be determined up in front in between Advertiser and ADVERTSTREAM in an Insertion Order; On ADVERTSTREAM ADSMARKETPLACE, Advertiser can choose from several operational modes: COST PER ACQUISITION ( CPA ): refers to the amount paid by Advertiser for each specific Action (a purchase, a form submission, sales, orders, making appointments, and so on) linked to the advertisement or the Campaign. COST PER CLICK ( CPC ): The Cost Per Click refers to a system where an Advertiser pays an agreed amount for each click someone makes on a link leading to their web site. You understand and agree that if you select a program and/or payment plan under the cost-per-click, you will be charged for all click-throughs on your advertisements, and that such charges will be based on the number of click-throughs on all your advertisements, multiplied by the cost of each of your click-throughs. A click-through is defined as an occasion on which a person on the Internet clicks on the Your text advertisement, banner, coupon redemption, or link directing him/her to Your landing page or web site. Page 6 sur 18

7 COST PER THOUSAND ( CPM ) : refers to the amount paid by Advertiser for the delivery of 1,000 gross impressions on the ADVERTSTREAM network. Advertiser acknowledges that ADVERTSTREAM s tracking count shall be used for all purposes under this Agreement. ADVERTSTREAM will be the sole arbiter in determining the number of impressions, clicks, actions or other applicable metric, delivered, shown, produced, clicked on, or viewed. ADVERTSTREAM will be solely responsible for determining charges to Advertiser. Charges will be determined on impressions, clicks, actions etc. delivered, which may be less than, or equal to, the amounts in the Advertiser Agreement. In the event of a dispute between Advertiser and ADVERTSTREAM regarding amounts due, Advertiser agrees that ADVERTSTREAM's tracking count shall be applied. Advertiser understands and agrees that in no event, and under no circumstance, will data provided by any Company representative constitute final billing numbers. Only invoices sent directly to Advertiser are to be construed as representative of billable amounts. The positioning, placement, frequency and other editorial decisions related to Ads shall be made by ADVERTSTREAM s Network and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The Ads may appear at any point of placement and/or distribution that ADVERTSTREAM s Network and/or its Affiliates and Publishers may determine, in their respective sole discretion. Article 10 Billing conditions Payments can be made either by Advertiser and/or Agency. Advertiser and/or Agency, agree to be jointly and severally liable for the payment of all amounts charged by ADVERTSTREAM for each advertisement. Advertiser authorizes ADVERTSTREAM, at its election, to tender any invoice to Agency, and such tender shall constitute due notice to Advertiser of the invoice and such manner of billing shall in no way impair or limit the joint and several liability of Advertiser and Agency. Payment by Advertiser to Agency shall not discharge Advertiser s liability to ADVERTSTREAM. The rights of ADVERTSTREAM shall in no way be affected by any dispute or claim between Advertiser and Agency. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Customer is responsible for paying all taxes, government charges, and reasonable expenses and attorneys fees Google incurs collecting late amounts. If the Advertiser is in material breach of the Contract (and, in the case of a breach capable of remedy, fails to correct the breach within a reasonable period stipulated by ADVERTSTREAM) or, in the reasonable opinion of ADVERTSTREAM, is insolvent ADVERTSTREAM may, upon giving written notice to the Advertiser cancel the Contract and/or pause the campaigns. Such cancellation shall not relieve the Advertiser from the responsibility to pay the fee for the Advertisement and no repayment of the fee will be made if the fee has already been paid. In case of non-payment and after simple notice by registered mail with no effect within fifteen days, ADVERTSTREAM may consider the order as canceled and claim as compensation an increase of 25% of the total amount due, in accordance with article 1226 of French Civil Code. In the event of the Customer making any voluntary arrangement with its creditors or becoming bankrupt, subject to an administration order or going into liquidation, as the case may be, or any Page 7 sur 18

8 encumbrancer taking possession of any of the property of the Customer or a receiver being appointed, then ADVERTSTREAM shall be entitled to cancel the Contract or suspend any further supplies of Services under the Contract without any liability to the Customer and if the Services have been rendered but not paid for, the price shall become immediately due and payable. Without limiting its other rights, ADVERTSTREAM may, upon notice to the Advertiser or their representative also immediately remove and suspend the placement of an advertisement or terminate these Terms & Conditions without liability if the Advertiser or their representative enters into bankruptcy, liquidation, administration, receivership, a composition or arrangement with its creditors, has a receiver or manager appointed over all or any part of its assets or becomes or is deemed to become insolvent; Taxes : Foreign Taxes. Prices in these Terms and Conditions have been quoted exclusive of any foreign taxes, including VAT or any comparable tax. Any foreign taxes, duties, including but not limited to VAT, and withholding taxes, relating to these Terms and Conditions shall be the sole responsibility of the Advertiser, which will pay them to the relevant tax administration under the applicable legislation. As a consequence, the amount to be paid to ADVERTSTREAM by Advertiser shall in all cases be equal to what such parties would have received if none of the above-mentioned taxes had been deducted, withheld or paid. Where ADVERTSTREAM is required to pay for any of the above-mentioned taxes, Advertiser will pay back the euro equivalent of such taxes to such party(ies) within 30 days after ADVERTSTREAM sends a reimbursement claim or an invoice to Advertiser. In case a double tax treaty would provide for a reduced tax rate or a tax exemption, ADVERTSTREAM will, upon request from Advertiser, use reasonable efforts to provide all documentation contemplated for the application of the treaty. If any withholding tax must be paid in relation to these Terms and Conditions, evidence of such payment, signed by the competent Tax Authority, must be provided to ADVERTSTREAM as soon as possible. VAT : Any VAT which might be chargeable in relation to these Terms and Conditions shall be the sole responsibility of the Advertiser, and shall be in addition to the prices agreed upon by the parties. If the Advertiser is established in an EC member state in which it is subject to VAT, it will, prior to any invoicing, deliver to ADVERTSTREAM its VAT identification number and a certificate issued by the relevant authority proving that it is treated as a VAT taxable person in the member state where it is established. In the absence of the requested documents, ADVERTSTREAM may issue invoices including FRENCH VAT. If the Advertiser s situation with respect to the VAT taxation location changes during the Term, Advertiser will inform ADVERTSTREAM promptly, so as to make it possible for ADVERTSTREAM to invoice the applicable FRENCH VAT. Advertiser, whose business is, or might in the future be, established outside FRANCE, certifies that it has not, or will not have, a permanent establishment (fixed place) in FRANCE to which the Service is supplied. If the aforementioned statement becomes inaccurate during the Term, Advertiser will inform ADVERTSTREAM accordingly so as to make it possible for ADVERTSTREAM to invoice the applicable FRENCH VAT. For the avoidance of doubt, any chargeable FRENCH VAT relating to these Terms and Conditions shall be the sole responsibility of Advertiser, together with interest and penalties if applicable. Article 11 Advertisment spaces Advertisments are subject to availability at the the moment of conclusion of the contract. ADVERTSTREAM may remove any Advertisement that contains content or links to a site that, in the Publisher s opinion, is defamatory or objectionable or will bring them into disrepute. Page 8 sur 18

9 ADVERTSTREAM may head an advertisement whenever required by law or whenever we consider it appropriate to do so, for any reason, to distinguish it from other types of content. If, on the starting date or during contract performance and for reasons listed above, all or some of the advertisment spaces concerned were to be unavailable, or deleted, ADVERTSTREAM may have the possibility of finding solutions with the Advertiser to find advertisment spaces on other sites, and to increase the duration of the insertion as a compensation or to terminate the contract. Such change will be confirmed by by ADVERTSTREAM. If the insertion does not cover the expected duration, it must be paid in proportion to the impressions served or clicks or leads derived during the period covered. Article 12 - Competition ADVERTSTREAM cannot guarantee that Advertiser s competitors will not be present on nearby or adjoining Advertisments spaces at the same time. Article 13 Advertiser s Campaigns and/or Creative contents Advertiser hereby grants to ADVERTSTREAM, and its third party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) in connection with its obligations herein. Advertiser acknowledges and agrees that ADVERTSTREAM is merely a venue which facilitates relationships between Advertisers and Publishers. Advertiser will confirm correct function of all creative. If Advertiser does not notify ADVERTSTREAM of any problem, ADVERTSTREAM will assume that creative is functioning properly and Advertiser agrees to pay for all impressions and clicks derived from the creative as measured by ADVERTSTREAM. All problems related to creative should be immediately brought to the attention of Advertiser's ADVERTSTREAM account executive. ADVERTSTREAM does not pre-screen the Creative for inclusion on the Company network and it shall not be responsible for policing, monitoring or editing any Creative. Advertiser is solely responsible for any legal liability arising out of or relating to the content and other material set forth on the Advertiser Websites and/or any content or material to which users can link through the Advertiser Websites. Advertiser agrees and understands that if ADVERTSTREAM is requested to retrieve creative for and on behalf of Advertiser, that ADVERTSTREAM will not be liable for any errors, including but not limited to retrieving incorrect creative. Furthermore, Advertiser agrees to pay for all campaigns delivered for and on behalf of Advertiser, as defined in the IO, where ADVERTSTREAM was requested to obtain creative from a location provided by the Advertiser. Advertiser represents and warrants that: - it is the owner or is licensed to use the entire contents and subject matter contained in the Website and/or any Creative; - the Website and/or any Creative does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, or trade disparagement; Page 9 sur 18

10 - the Website and/or any Creative does not contain any child pornography or link to such content; - the Website and/or any Creative does not contain or link to any form of illegal activity (i.e., how to build a bomb, hacking, etc.); - the Website and/or any Creative does not contain any content promoting any type of hatemongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.); - the Website and/or any Creative does not participate in or transmit inappropriate newsgroup postings or unsolicited (spam); Advertiser further represents and warrants that all Advertisements, any content on websites or web pages to which Advertisements link, Advertiser's Products and services, Advertiser's Site and any data processing in relation thereto: - comply with and do not violate any applicable law, regulation or ordinance (including subordinate legislation, the rules of statutorily recognised regulatory authorities and the law of the European Union) for the time being in force; - comply with and do not violate the French Code of Advertising Practice or any other relevant codes under the general supervision of the Advertising Standards Authority; - do not infringe on or violate any copyright, patent, trademark, trade secret or other intellectual property right of any third party, including without limitation, any music performance or other music-related rights (and Advertiser is solely responsible for securing, maintaining and paying for all such rights and licenses which, for the avoidance of doubt, includes all necessary copyright (including without limitation all royalties payable for the copyright in any underlying musical or literary works embodied in the Advertisements), performing rights, music synchronisation, and other related rights, free and clear of all claims and encumbrances). - do not breach any duty toward or rights of any person or entity, including, without limitation, rights of publicity or privacy and that Advertiser has obtained the written consent, release, and/or permission of each identifiable individual person or entity to use the name, image or likeness of such individual person or entity in any Advertisement; - do not and have not resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; Advertiser and its Agency, if applicable, each represent that any advertising (including product samples) submitted to ADVERTSTREAM complies with all applicable laws and regulations and does not violate the rights of, and is not harmful to, any person, corporation or other entity. As part of the consideration to induce ADVERTSTREAM to publish such advertisement, Advertiser and/or Agency, each agree jointly and severally to indemnify and save harmless ADVERTSTREAM, and its employees, owners and representatives, against all liability, loss, damage, and expense of any nature, including attorneys fees and court costs (including without limitation reasonable attorneys fees, costs related to in-house counsel time, court costs and witness fees) arising out of any actual or potential claims Page 10 sur 18

11 for libel, invasion of privacy, copyright or trademark infringement and/or any other actual or potential claims or suits that may arise of out the copying, printing, publishing, distribution or transmission of such advertisement. ADVERTSTREAM reserves the right to immediately terminate without any notice or compensation to the Advertiser or any one on its behalf, campaigns which in ADVERTSTREAM's reasonable commercial discretion, are conducted in contradiction to the obligations of the Advertiser as set forth herein and/or in contradiction to any legal or deontological arrangement regarding online Advertising Standards. Article 14 Limitation of liability All advertisements are published upon the understanding that the advertiser and the advertising agency (if any) assume full and complete responsibility and liability for the content of all advertisements submitted for publication. ADVERTSTREAM in due diligence cannot monitor all websites and video content for appropriate content and makes no representations with respect to user-generated content on any website or video within its and its third party network. ADVERTSTREAM reserves the right, without liability, to reject, omit, or exclude any advertising order for any reason at any time with or without notice to the Advertiser or advertising agency, and whether or not such advertising was previously acknowledged or published. Without limiting the generality of the foregoing, ADVERTSTREAM may alter or reject any advertisement that contravenes its general rules for the acceptance of advertising or that in its opinion is or may be misleading or may expose ADVERTSTREAM to any liability. ADVERTSTREAM s failure to exercise this right shall not relieve advertiser of its obligations under disposition 13 above. If Advertiser reasonably determines that the placement of any advertisement by ADVERTSTREAM hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with web sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libellous, defamatory, or other offensive materials, then ADVERTSTREAM shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser's notice thereof to ADVERTSTREAM; provided, however, that if ADVERTSTREAM reasonably believes that removal of an advertisement from a site will have a material impact on ADVERTSTREAM s ability to deliver advertisements in accordance with the IO, ADVERTSTREAM may condition such compliance on Advertiser providing an extension of the flight dates. Advertiser may cancel an advertising Campaign upon written notice to ADVERTSTREAM s Account Manager and such cancellation shall be effective two (2) business days after ADVERTSTREAM s receipt of Advertiser s written notice. Advertiser must inform ADVERTSTREAM about any third party objection, claim and/or demand ; in such case ADVERTSTREAM would be entiteld to pause or cancel the Campaign in question. Upon cancellation for any reason, after the cancellation date, the Advertiser and/or the advertiser's agency agree to pay the full charges specified. Advertiser agrees to pay for all impressions served or clicks or leads derived through the effective date of cancellation. Level of Audience - Unless otherwise specified in the Agreement, ADVERTSTREAM does not guarantee any minimum level of audience, or minimum number of impressions or click-throughs with respect to the Advertisement(s) or other material provided by Advertiser. Page 11 sur 18

12 Limitation of Liability - neither ADVERTSTREAM nor its users will be subject to any liability whatsoever for: - Any failure to provide reference or access to all or any part of the Website due to systems failures or other technological failures of ADVERTSTREAM or of the Internet; - network disconnection caused by the network operators; - system maintenance; - server down, server maintenance or device failures of the publishers; - service interruptions caused by the events beyond ADVERTSTREAM s control such as governmental actions, natural disasters, fires, or widespread failures of electric power. - Delays in delivery and/or non-delivery of Creative, including, without limitation, difficulties with a customer or Creative, difficulties with a third-party server, or electronic malfunction; and, - Errors in content or omissions in any Creative. Advertiser is responsible for maintaining in all respects the availability of its web sites and subsequent landing pages. THE ADVERTISING SERVICE PROVIDED BY ADVERTSTREAM, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ADVERTSTREAM MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. ADVERTSTREAM DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. ADVERTSTREAM DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. ADVERTSTREAM DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON ADVERTSTREAM S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND ADVERTSTREAM IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. ADVERTSTREAM WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. ADVERTSTREAM SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY. ADVERTSTREAM S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT FOR THE ADVERTISING CAMPAIGN IN QUESTION. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ADVERTSTREAM MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. Article 15 ADSMARKETPLACE account s activity Page 12 sur 18

13 Advertiser acknowledges that he cannot require from ADVERTSTREAM any other proofs of the execution of the performance than the recordings of the operations made by the ADSMARKETPLACE platform. Once the identification of the Advertiser checked through his login and password, one count of use of the platform is engaged by ADVERTSTREAM. The parties expressly agree that use of the Advertiser s account will demonstrate the acceptance of Insertion orders and purchase orders. The ADVERTSTREAM s recording systems are considered as proof of the date and duration of use. All material relating to the use of the account will be kept and archived by ADVERTSTREAM. ADVERTSTREAM may rely, in particular for evidentiary purposes, any act, file, record, report monitoring, statistics on all media including computer support established, received or kept by ADVERTSTREAM. These terms constitute an irrebuttable presumption. This presumption may be rebutted only by proving that ADVERTSTREAM systems failed. Article 16 Licence to use the ADSMARKETPLACE service ADVERTSTREAM owns all right, title and interest in and to the ADSMARKETPLACE Service. ADVERTSTREAM grants the Advertiser a non-exclusive, non-transferable, non-sublicensable right to access and use the Services as described in this Agreement. ADVERTSTREAM does not grant any other license, express or implied, to ADVERTSTREAM s and/or ADSMARKETPLACE intellectual property rights. ADVERTSTREAM expressly reserves all intellectual property rights not expressly granted hereunder. Advertiser will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the Services or any portion thereof. Article 17 Non-transferability of the ADSMARKETPLACE account Advertiser, shall not give, transfer, bargain, sell, assign, sub-let or otherwise dispose of this Agreement or any part thereof or the benefit or advantage of the Agreement or any part thereof without the prior consent in writing of ADVERTSTREAM. This license to use the ADSMARKETPLACE service shall automatically terminate if Advertiser violates any of these restrictions and may be terminated by ADVERTSTREAM at any time. Article 18 Personal Data When using ADVERTSTREAM services, the Advertiser consents for ADVERTSTREAM to collect certain data of a personal nature, for which the Advertiser agrees to provide complete, accurate, and up-todate information. This information collected is required to use and access to the ADVERTSTREAM ADSMARKETPLACE. This information includes without limitation, the use of cookies or markup tags, together with IP addresses. ADVERTSTREAM may use such data: in order to manage Advertiser s account, provide communication concerning ADVERTSTREAM s offers and changes to them, in order to respond to Advertiser s questions via customer support; Page 13 sur 18

14 in order to publish targeted advertising, determine aggregate and anonymous statistics, remedy any fraudulent or abusive activity on the ADVERTSTREAM network; to share and provide such data with any ADVERTSTREAM companies within its group. In accordance with the law known as "Information Technology and Liberties" of 6 January 1978, as modified by the terms of the law of 6 August 2004, the Advertiser has a right to access, modify, correct or delete of any personal data that applies to him. These rights can be exercised at any time electronically or by post to the following address: ADVERTSTREAM - Department of Marketing Communication and Quality BP TASSIN Advertiser data are processed in accordance with the rules for the protection of personal data, In the framework of these terms and conditions, it is hereby stated that ADVERTSTREAM has declared its user, prospects and customer databases to CNIL (French Commission on Computers and Civil Liberties). Article 19 Intellectual Property Rights Advertiser acknowledges and confirms that it shall not obtain or assert rights or any intellectual property rights in the ADVERTSTREAM or the name thereof and that nothing in this Contract shall be taken as an assignment of such rights. The Advertiser covenants that it will not make any representations or do any act which may be taken to indicate that it has any right title or interest in or to the ownership of the rights in the ADVERTSTREAM ADSMARKETPLACE or the name thereof. Consequently, any rights, tittle and interest in and to all: (1) Business names, trade marks, registered or unregistered Marks, service marks, business or trade names, logos ; (2) Patents, Patents applications, Patentable inventions and/or transformations or improvements of existing products ; (3) Trade Secrets, Confidential Information and Special Know-how ; (4) copyright, confidential information, technical information, utility models, design rights (whether registerable or otherwise), image rights, database rights, (5) all rights in the nature of unfair competition rights or rights to sue for passing-off and any other intellectual property rights whether registered or unregistered or any application therefor subsisting anywhere in the world from time to time or any other property ; are the exclusive property of ADVERTSTREAM. Advertiser hereby grants ADVERTSTREAM a non-exclusive, worldwide, royalty-free licence to use any of the Advertiser names, corporate names, logos, trade marks, service marks, trade names, trade dress, graphics, buttons, banners, URLs, domain names, business names and copyrights and content supplied or authorised by Advertiser for use in the Services ("IP") (such authorisation is deemed to occur when Advertiser makes use of the Services), such use to include, without limitation: display on and in: press releases/announcements; business plans; marketing material; the Site; publisher's websites; ADVERTSTREAM's brochures and media packs; trade shows; corporate literature; public relations materials; Page 14 sur 18

15 Article 20 - Confidentiality and Data During the Term of this Agreement and for two (2) years thereafter, each party will treat as confidential all information that it obtains concerning, but not limited to, the business, finances, technology and affairs of the other, ("Confidential Information"). Each of the parties will use at least the same degree of care (and not less than a reasonable degree of care) it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party. Each party will promptly notify the other party of any actual or suspected misuse or unauthorised disclosure of the other party's Confidential Information. The provisions of this clause 20 shall cease to apply to: (I) information that has come into the public domain other than by breach of this clause or breach of any other duty of confidence; (II) information that is obtained from a third party without breach of this clause or breach of any other duty of confidence; and (III) information that is required to be disclosed by a regulatory or government body or court of competent jurisdiction with power to compel the disclosure. In the event of termination or expiration of this Agreement, each party shall return or on request of the other party, destroy the Confidential Information of that party. Article 21 - Subcontracting It is expressly agreed between the parties that ADVERTSTREAM may, at any time, in an entirely discretionary manner, subcontract all or part of its services under this Agreement. In such a case, ADVERTSTREAM shall ensure that its contractual relationship with the said provider(s) ensures compliance with the obligations arising under this contract, for which ADVERTSTREAM shall remain the sole guarantor. Article 22 - Partnerships The AD-ACCESS platform may propose various partnerships to the Publisher with partners selected by ADVERTSTREAM. The various partnerships shall be submitted to the Publisher on its AD-ACCESS interface platform. The Publisher may at any time deactivate or reactivate its Partners according to its desire to take advantage of the partnership or not. Article 23 - Independent Contractors Each party is an independent contractor. Nothing in this Agreement shall be deemed to create a partnership or joint venture or contract of employment of any kind between the parties nor shall it be deemed to grant any authority not expressly set out in the Agreement or create any agency between the parties. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party s prior written consent. Article 24 Non- Sollicitation Advertiser agrees that, without the prior written consent of ADVERTSTREAM, neither Advertiser nor Page 15 sur 18

16 any of Advertiser's Group nor any connected persons of any of Advertiser or Advertiser's Group shall directly or indirectly, whether by itself, its employees or agents and whether on its own behalf or on behalf of any other person or otherwise howsoever: a) at any time during the Agreement or for 6 months thereafter solicit or entice away or seek to solicit or entice away from ADVERTSTREAM or ADVERTSTREAM 's Group any person who at the time of such solicitation, enticement or seeking was during the Agreement (or for 6 months thereafter or during any part of the period of 3 months immediately preceding the Agreement) an employee of the ADVERTSTREAM or any company in ADVERTSTREAM 's Group, and whether or not that person would commit any breach of his contract of employment by reason of leaving the service of ADVERTSTREAM or any company in ADVERTSTREAM 's Group; or b) at any time during the Agreement or for 6 months thereafter employ or otherwise engage any person who during the Agreement (or for 12 months thereafter or during any part of the period of 3 months immediately preceding the Agreement) was employed by ADVERTSTREAM or any company in ADVERTSTREAM 's Group. Article 25 - Contractual breaches 25.1 The advertiser may not claim a breach in the performance of an order or these general conditions if such breach was not the expressly reported to ADVERTSTREAM during the campaign and no later than within fifteen (15) days following written notice from the Advertiser to ADVERTSTREAM. Upon expiration of this period, should the Advertiser not be able to claim any error In the event of non respect with any term of the present agreement, ADVERTSTREAM reserves the right to cancel, terminate, suspend or interrupt, by operation of law, immediately and without any indemnity the agreement. In addition the Advertiser undertakes to indemnify ADVERTSTREAM against any legal fees, (including, but not limited to Lawyers, Sollicitors, Barristers, Notaries and Bailiffs), against any conviction buy a court of law, punitive damages, damages and other liability arising wholly or partially, directly or indirectly from the Advertiser s breach of the Contract. Article 26 - General Assignment - Advertiser shall not be entitled to assign, transfer, charge or licence the whole or any part of its rights and/or obligations under this Agreement to any third party without consent of ADVERTSTREAM. For the avoidance of doubt, if ADVERTSTREAM grants such consent the Advertiser or Agent shall nonetheless remain responsible for the performance of its obligations under this agreement. ADVERTSTREAM shall be free to assign, sub-contract and otherwise deal freely with its obligations under this agreement. Severability - Severance To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, then that provision shall be deemed not to be a part of this Agreement, and it shall not affect the validity, lawfulness or enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction. In the event of cancellation of one of the clauses of this Agreement, the Parties will endeavor to negotiate, in good faith, a clause with the same economic effect. Page 16 sur 18