Voluum DSP Terms and Conditions
for Self-Served Performance online marketing operations
Last updated: 1.11.2020
THE PARTIES ARE:
CentralNic Poland sp. z o.o., with a registered office at ul. Lubicz 17G, 31-503 Kraków, Poland incorporated under the laws of Poland and registered in the companies register of the National Court Register held by District Court Krakow – Srodmiescie in Cracow XI Commercial Division (Sąd Rejonowy dla Krakowa – Śródmieścia w Krakowie XI Wydział Gospodarczy) under (KRS) no. 0000830352, having EU VAT ID: PL5272922087 and the share capital in the amount of 5 000 PLN further referred to as: “Voluum”
– AND –
the purchaser of the Advertising space and time on the Internet for advertising purposes via Voluum DSP Platform.
Voluum owns and operates Voluum DSP Platform -an online advertising demand side platform that enables users to plan, select, purchase and monitor global online advertising campaigns in real time from online media outlets. The Customer desires to purchase Advertising space on the Internet and time for advertising purposes via the Voluum DSP Platform and Voluum desires to make its Services available to h the Customer on the terms and subject to the conditions described herein. Voluum DSP Platform is available and provides services globally.
- “Account” an account created by the Customer after correctly filling in the registration form and accepting the Terms and Conditions.
- “Advertisement(s)” means an advertisement in its graphical-, audio-, video-, multimedia- and/or text-based form, including all related technical features, such as artwork, copy, active URLs, images, Flash, rich media, and/or audio/video files, as well as other creative elements. The Customer must hold a relevant license or have produced or otherwise have authority to display such materials for the purpose of promoting or marketing.
- “Advertising space” means advertising space with specific parameters, in the range defined by the publisher, mainly native advertising.
- “Agreement” means the agreement on the basis of which the Customer is entitled to use Voluum’s Services according to these Terms and Conditions.
- “Business Hours” mean Monday through Friday from 9:00 (nine) a.m. to 6:00 (six) p.m. Central European Time (CET), exclusive of public holidays in Poland.
- “Campaign” means an advertising campaign for the promotion of the Customer’s products or services via the Platform.
- “Content” shall have the same meaning as and shall be used interchangeably with Advertisement(s), except as expressly stated otherwise.
- “Customer” or “You” means the entity that created the Account in Voluum DSP Platform, accepted the conditions stated in the Terms and Conditions, and therefore is bound by them.
- “Destination URL” is the URL address of the page where End Users are redirected.
- “Effective date” is the date the Customer registers as a Voluum DSP Platform user and accepts the conditions stated in the Terms and Conditions.
- “End User” means a bona fide living human Internet user. An “End User” excludes invalid traffic (IVT) as defined in Interactive Advertising Bureau (IAB) IVT guidelines available at: https://www.iab.com/guidelines/mrc-invalid-traffic-ivt-detection-and-filtration-guidelines-addendum/ (especially non-human traffic – spiders, bots, etc., or activity designed to produce fraudulent traffic.
- “Publisher” is the website owner or operator interested in providing Advertising space on the Internet for advertising purposes.
- “Real-time bidding (RTB)” is a model of automated real-time purchase of advertising space in an auction model. When the End User visits a Traffic source that participates in the auction, the system bids on the ad space available on the Traffic Source, with the aim of showing an ad to the End User.
- Services” or “Voluum’s Services” mean selling of the Advertising space and time on the Internet for advertising purposes (PKWiU – Polish Classification of Products and Services 126.96.36.199) via the Voluum DSP Platform.
- “Term” means duration of the Terms and Conditions from the Effective Date until its termination.
- “Terms and Conditions” or “Terms” are the conditions stated herein.
- “Traffic sources” include, but are not limited to, websites, domains, toolbars, browser extensions, apps, etc.
- “Voluum DSP Platform” or “Platform” is a platform operated by Voluum available at: www.panel.voluum.com.
- These Terms and Conditions are effective as of the date the Customer registers as a Voluum DSP Platform user and accepts the conditions stated herein. The Agreement is concluded between the parties at the same time. After the aforementioned actions of the Customer, the Account is created by Voluum. This means that by participating in or using the Services or features of Voluum DSP Platform, you are agreeing to be bound by the Terms and Conditions. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the Services shall be subject to and shall abide by these Terms and Conditions.The Agreement is concluded for an indefinite period of time.
- Voluum grants to the Customer a non-exclusive, non-assignable, and non-transferable right during the Term to use Voluum DSP Platform in order to use Voluum’s Services in accordance with all of the conditions set forth herein. To use the Services provided by Voluum, the Customer shall log into the Account in Voluum DSP Platform using its email address and password. The Customer’s email address shall be the one set up on the Customer’s website domain name. Otherwise the person registering as the Customer shall prove on Voluum’s request that she/he is entitled to act on behalf of and for the Customer (especially by sending a written authorization). Voluum can demand such proof at any time. You shall use Voluum services only through your Account. The Account inactive for a period of more than 6 months (no logins during this time by the Advertiser) shall get the suspended status which involves the need to apply for its activation by the Customer.
- Before the Account is created, in the registration form the Customer is obliged to state its company/business name (including the Customer’s legal form), an address of the registered office or business address, TAX/VAT ID, a first and last name of the person authorized to register an account on behalf of and for the Customer, as well as contact data of the Customer. The Customer shall provide true, accurate and current information and shall maintain all account information, ensuring it is true, accurate and up-to-date. Aforementioned data shall be consistent with VIES database (if applicable). If any information provided by the Customer is inaccurate, not current or incomplete, Voluum has the right to refuse to register the Customer’s Account or terminate the Customer’s Account. The Customer is not allowed to enter the data of another entity without Voluum’s consent – even if it does so, that does not mean a transfer of the Account’s ownership to this entity. In case of any change of that data as well as any other data provided by the Customer (including email address), the Customer is obligated to provide Voluum with accurate data as well as send Voluum a documentation that proves such changes. Additionally, each Customer must have a bank account.
- When an individual, the Customer represents and warrants that: he/she is at least 18 years old, has full capacity to perform acts in law and is an individual running a business (i.e. the Customer is not a consumer).
- When a person signing up to the Voluum DSP Platform acts on behalf of their employer or an entity, this person represents and warrants he/she has full legal authority to bind their employer or such other entity to these Terms and Conditions. In case of doubt, Voluum is entitled to demand proofs confirming that the person is entitled to act on behalf of and for the Customer.
- As a general rule, the Customer can have only one Account at the same time unless otherwise agreed by Voluum. The owner of the Account is the Customer that data has been provided according to the point 2.4. of these Terms and Conditions and indicated on the invoices issued by Voluum. The Customer must not open a new Account if there is any outstanding balance for Voluum DSP Platform use. If it does, however, it authorizes Voluum to charge the amount due to a previous Account from the Customer’s credit card connected with the new Account. Voluum is obliged to start provision of the Services only if all due amounts are paid by the Customer.
- If the person acting on behalf of one Customer, opens the new Account on behalf of another customer, Voluum can refuse to provide services for that other Customer at its sole discretion. The second Customer shall have no claims against Voluum related to refusal to provide Services.
- Any Customer is obliged to use its business credit cards with regard to chosen payment method. If the Customer chooses the consumer card instead of business credit card, it undertakes to repay Voluum all costs, expenses or lost benefits connected with payments made by a consumer card as well as it waives its right to claim damages, especially in the amount of commission paid in the higher amount that stated in the relevant law provisions. The Customer also authorizes Voluum to charge relevant amounts from its credit card.
- The Customer shall not permit any third party to use or gain access to Voluum DSP Platform and shall use reasonable security measures to protect against unauthorized usage and/or access. The Customer is responsible for selecting and continuously managing its password and security settings to protect the Customer’s Account and this Account’s settings (including the Customer’s contact and payment information) from unauthorized changes. The Customer is entirely responsible for maintaining the confidentiality and secrecy of the Customer’s password and the Account’s security settings, as well as the Customer’s other information. All consequences of the Customer’s voluntary disclosure of password and account information, as well as all activities that occur in the Customer’s Account are the Customer’s responsibility. The Customer agrees to notify Voluum immediately of any unauthorized use of the Customer’s account or any other breach of security.
- The Customer agrees to notify Voluum immediately if it believes that Account or login credentials have been used by an unauthorized party. The Customer agrees that it shall be responsible for all activities that arises from the Customer’s activities on its Account, whether initiated by the Customer or other person on the Customer’s behalf and Voluum shall be entitled to rely on any requests which have been initiated from the Customer’s account. Voluum disclaims any liability for any activity in the Customer’s account, whether initiated or authorized by the Customer or not unless it is Voluum’s intentional fault. Subject to Voluum’s intentional fault, the Customer is solely responsible for use of Voluum DSP Platform by its employees or any unauthorized person.
- Every new Account created in the Voluum DSP Platform system is manually approved or denied by one of Voluum’s employees. The Customer also acknowledges and agrees that all its Campaigns shall be subject to review by Voluum’s employees. Voluum reserves the right to accept or reject the Customer’s Account or Campaign at any time based on a violation of the Terms and Conditions or any applicable law, ordinance, rule, regulation or treaty. Accounts and the Customer ‘s Campaigns will be verified within 72 hours. Requests submitted during public holidays will be considered as submitted on the following working day.
- The Customer is entitled to access the Account by means (e.g. via API) provided by Voluum. The Customer shall not obtain or attempt to obtain: (i) any information from the Voluum DSP Platform, including without limitation: email addresses or phone numbers of other account holders or other software data; (ii) intercept, examine or otherwise observe any proprietary communications protocol or bidding mechanisms used by Voluum DSP Platform, Voluum’s website or servers; (iii) use any software that is designed to provide means of unauthorized access to; or (iv) distort, delete, damage or disassemble Voluum DSP Platform or Voluum’s website or servers.
- You shall not interfere or attempt to interfere with the Voluum DSP Platform or the Services in any way through any means or device including, but not limited to using automation software, bots, spamming, hacking, uploading computer viruses or time bombs, or any unauthorized third-party software modifying or interfering with the Voluum DSP Platform or Services, or by any means prohibited by these Terms or binding law. Voluum reserves the right to determine what conduct it considers to be in violation of these Terms. Voluum reserves the right to control and verify compliance with these restrictions and limitations. Voluum reserves the right to take action as a result of violations, which may include terminating your Account and prohibiting you from using the Services in whole or in part.
- You may not use the Voluum DSP Platform or the Services for any commercial purpose other than as expressly stated herein. The use of the Services relies on several minimum technical requirements: an electronic device, which is able to run web browser software (desktop or mobile) such as: Chrome, Firefox, Safari, Internet Explorer, with stable Internet connection access to Voluum DSP Platform via a special website: panel.voluum.com. When the Customer uses the Services provided by Voluum, the Customer shall be required to create the Account with Voluum.
- Voluum shall not be obligated to provide the Customer with any support, but may elect to do so at its sole discretion. In that event, technical support will be delivered in English and refers to the working days Monday through Friday, from 9:00 to 17:00, Eastern European Time. Detailed information on technical support is posted on Voluum DSP Platform.
3. RESTRICTIONS AND OTHER LIMITATIONS
- The Customer agrees that it will not, without Voluum’s prior written consent, provide, disclose, divulge or make available the Platform or any of the documentation connected with it to any persons other than the Customer’s employees under obligation of confidentiality to the Customer.
- The Customer shall have no rights or licenses with respect to Voluum DSP Platform except as expressly provided in this Agreement and Voluum reserves all rights not explicitly granted herein. The Customer may not (i) copy, distribute, rent, lease, lend, sublicense, transfer or make Services available to any third party outside of the Customer, (ii) decompile, reverse engineer, or disassemble Voluum DSP Platform, (iii) create derivative works based on the Voluum DSP Platform; or (iv) modify, remove, or obscure any proprietary notices or legends that appear in Voluum DSP Platform or during the use and operation. The Customer agrees that it shall not itself, or through any parent, subsidiary, affiliate, agent or other third party sell, lease, license, sublicense, encumber or otherwise deal with any portion of Voluum DSP Platform, including any applicable software or documentation.
- The Customer and its employees are prohibited from (i) modifying or altering Voluum DSP Platform in any way, (ii) failing to install or apply within thirty (30) days of receipt any updates, improvements, enhancements, or software corrections, including any newly released version of Voluum DSP Platform made available to the Customer, (iii) damaging, misusing, improperly operating, or abusing the Platform, and introducing any computer virus or malicious or unauthorized programming code(s) into the Platform.
- The Customer shall not use the Platform to promote Campaigns or Advertisements containing:
i. content that is an invasion of privacy, degrading, defamatory, libellous, unlawful, profane, obscene, pornographic, violent, hate material, or discriminatory on the basis of sex, age, race, religion, nationality, disability, sexual orientation, family status, or other such classification, as determined at the sole discretion of Voluum;
ii. content that promotes any illegal activity, including without limitation, the promotion of illegal substances, software piracy, hacking, or gambling (unless permitted by local laws);
iii. content that infringes the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, P2P file-sharing apps, torrent or any apps that facilitate or promote copyright infringement or any other Intellectual Property Right of any third party;
iv. content that violates any law, rule or regulation of any applicable jurisdiction including but not limited to: sexual content, pornography, nudity (full, partial or implied), alcohol, tobacco, drugs, firearms, violence, offensive or hateful speech and visuals;
v. content that promotes or references software piracy and/or activities generally understood as Internet abuse including but not limited to sending of unsolicited bulk email or use of spyware, malware or distribution of worms and/or viruses; or
vi. content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable consumer protection laws and regulations including but not limited to: ads that impersonate a system message, error warning, fake buttons, impersonate another app/software, missed message/call or chat window, state or imply that the user’s software is at imminent risk of a virus attack, or that it already contains one, violate copyright or trademarked content, make untrue statements.
- The Customer must comply with the policies, terms or guidelines in its contracts with the publishers or exchanges to prevent anything that may constitute a breach of Voluum’s contract with the respective Publisher or other entities providing Advertising space on the Internet for advertising purposes.
- Voluum reserves the right to control and verify compliance with these restrictions and limitations. Voluum also reserves the right to remove the Content, and shall not be liable to the Customer for any damages or other legal or equitable relief for such determination or removal, to the extent that Voluum determines, in its sole and absolute discretion, that content provided by the Customer to Voluum does not satisfy the terms, policies, or guidelines contained in the contracts agreed to by Voluum and the respective Publishers or other entities providing Advertising space on the Internet for advertising purposes, or to the extent that Voluum is advised of the same by any of the respective aforementioned entities.
- In any case of breaching the Terms and Conditions by the Customer, Voluum is entitled to ban the Customer’s Account. It means no longer access for the Customer to the Account and no use of Voluum’s Services.
4. END USER DATA
- If any Data is personally identifiable information or personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 and processed thereof, it shall be governed under the terms and conditions set forth in the Voluum Data Processing Agreement (https://voluumdsp.com/dpa/), further referred to as the “DPA”. The DPA is an integral part of these Terms and Conditions.
- The Customer agrees to safeguard and, except Voluum’s written consent, not to disclose to anyone any proprietary or confidential information acquired in relation to the Customer’s access to Voluum DSP Platform. Such information includes, without limitation, personal data, principles of operations of Voluum DSP Platform, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds (hereinafter referred to as “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly available through no action or fault of the Customer, (ii) was already in the Customer’s possession or known to the the Customer prior to being disclosed or provided to it by or on behalf of the other party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to Voluum or any other party with respect thereto, (iii) was or is obtained by the Customer from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary obligation of confidentiality to Voluum or any other party with respect to such information or material, or (iv) is independently developed by the Customer without reference to the Confidential Information.
- The Customer shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. The Customer agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of Voluum’s rights therein. The Customer shall use its best efforts to assist Voluum in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, the Customer shall advise Voluum immediately in the event the Customer learns or has reason to believe that any person to whom the Customer has given access to Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other the proprietary rights of Voluum, and the Customer shall, at the Customer’s expense, cooperate with Voluum in seeking injunctive or other equitable relief in the name of the Customer or Voluum against any such person. The Customer agrees to maintain the confidentiality of Voluum’s Confidential Information using at least as great a degree of care as the Customer uses to maintain the confidentiality of the Customer’s own most confidential information (and in no event less than a reasonable degree of care). Especially, the Customer is obliged to conclude non-disclosure agreements with any person that has access to the Customer’s Account, which content shall allow for objective protection of Confidential Information. The Customer acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation Voluum DSP Platform or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to Voluum inadequately compensable in damages at law, and Voluum is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available.
- The disclosure of the Confidential Information is not a breach of these Terms and Conditions if it was made due to the demand of common courts, administrative courts, public authorities due to the obligation stipulated by the provisions of applicable law and the Customer notifies Voluum immediately about this obligation and in any case before the disclosure and discloses the Confidential Information only in the least possible extent.
- The Customer is obliged to keep confidentiality of the Confidential Information during the Term of the Agreement and for 20 (twenty) years after its termination. Voluum may immediately ban the Customer’s Account and terminate all license rights granted herein, in the event the Customer breaches any of its confidentiality obligations.
6. CUSTOMER OBLIGATIONS
- The Customer covenants and agrees to pay Voluum for performed Services in which Voluum correctly implements the Customer’s instructions. The Customer may be relieved from its obligation to pay when there occurs and to the extent that there is a technical malfunction solely in the Services and which is not in any part the result of any malfunction of any third party’s system. The Customer’s obligation to pay Voluum does not arise from the availability of purchasing the Advertising space and time on the Internet for advertising purposes.
- The Customer covenants and agrees that it is responsible for uploading its Advertisements and Content, and that while Voluum has the right to review any and all of the Customer’s Content, Voluum is under no obligation to do so. However, Voluum, in its sole and absolute discretion, reserves the right to disapprove of any or all of the Customer’s Content and remove any Content that Voluum, in its sole and absolute discretion, determines is in violation of the Agreement, and any terms and conditions or policies contained herein or incorporated by reference. As such, the Customer shall not knowingly post or distribute any Advertisements through the Services that are obscene, illegal, or which promote illegal behavior, or which otherwise violate the Terms and Conditions. The Customer agrees that it is responsible for any acts or omissions of any of its employees, agents or subcontractors, and that it will use reasonable efforts to ensure such employees, agents and subcontractors comply with the Terms and Conditions.
- To the extent applicable to its performance under the Agreement, the Customer shall at all times comply with any and all applicable laws and regulations with respect to its use of the Services. You agree and acknowledge that (i) the Services and Voluum’s operation with regard to the Services may be subject to the policies of Publishers and other entities providing Advertising space on the Internet for advertising purposes and duly negotiated and executed contracts and agreements with both aforementioned entities; (ii) amendments to the Terms and Conditions may become necessary from time to time to comply with a policy change of a Publisher or other entities providing Advertising space on the Internet for advertising purposes; and (iii) the parties shall timely implement such change, and where necessary, amend these Terms and Conditions to reflect such modification.
7. VOLUUM OBLIGATIONS
- Voluum hereby covenants and agrees that, subject to all limitations of liability contained in the Terms and Conditions, Voluum will (i) provide the Customer with direct access to the Services; (ii) allow the Customer access to upload Content through the Services; and (iii) make technical support for the Services available during Business Hours as defined in the Terms and Conditions.
- The Customer prior to purchasing tje Advertising space on the Internet for advertising purposes must deposit funds to its Account. The minimum initial deposit amount (understood as a first payment of funds by the Customer on its Account in order to pay for Voluum’s Services) differs depending on the payment method chosen by the Publisher, as follows: 500 USD plus fee (five hundred United States Dollars plus fee) is to be paid if the payment is made by any means except a bank wire transfer and 1000 USD (one thousand United States Dollars) if the payment is made by a bank wire transfer.Top up amounts above the minimum threshold are solely a decision of the Customer. Initial minimum deposit ) is non-refundable.Deposited funds are ring fenced within Voluum accounts. To facilitate the depositing of funds, the Customer is provided with multiple payment options such as Bank Wire and Paypal Account. Voluum is not liable for the payments made via Bank Wire, Paypal Account or any other payments systems or platforms as well as for handling the complaint proceedings concerning such payments. All costs related to transfer of payments are born by the Customer. The Customer can make payments under the Terms and Conditions in all currencies indicated in the Account by Voluum at the moment of settlements between parties. However if the Customer chooses to pay for the Services in a currency other than USD by selecting such currency from available options in the Voluum DSP Platform, Voluum shall convert the amounts paid in that selected currency into USD using the rate indicated in payment gateway used for payment at the time of that payment. Deposited funds can be used only for purchasing Advertising space on the Internet for advertising purposes via different types of Campaigns available in Voluum DSP Platform. The Customer may request to obtain a credit limit and can be granted with it based on individual decision of Voluum. Voluum reserves the right to cancel the credit limit in its absolute and sole discretion at any time. Fees are based on the number of impressions and depend on Real-time bidding (RTB) results. The Customer understands and agrees that the statistics system provided by Voluum shall serve as the official record of Internet traffic delivered throughout the Customer’s Campaign. Other ways of tracking the results of purchases are acceptable based on individual request from the Customer and after written approval from Voluum.
- The Customer understands and agrees to address any questions the Customer may have with any payments under these provisions to Voluum within thirty (30) days of the date of such payment, in writing or by email to email@example.com. Failure to notify Voluum within such period shall constitute an acceptance of, and agreement with, the applicable payment.
- The minimum initial deposit is non-refundable, subject to point 5 or the situation in which the Campaign has not been approved by Voluum.
- Subject to point 5, during the Term of the Agreement or in the event of any termination of the Agreement, the Customer may be entitled only to a refund of remaining funds deposited in the Customer’s Account above the amount of minimum initial deposit (if the one has not been completely used). Bonuses or any form of credit granted by Voluum are not subject to refund.
- Any Customer’s Account that remains inactive for a period of more than 6 months is to be suspended. Reactivation of inactive Accounts shall require additional verification as per instructions available in the Customer’s panel. The remaining funds deposited on the Account are automatically deducted by Voluum for keeping the Account active during the aforementioned period and accounted for as revenues of Voluum in the ledger books. If the Customer asks for reactivation of the Account, the funds may be reinstated as a “bonus” in the amount equal to the remaining funds deposited on the Account before its deactivation (in exceptional situations if requested). That bonus shall be ring fenced only into the Customer’s Account (i.e. in the form of deposit) and not into bank account or any other Customer’s account.
- You may ask for a refund of the remaining funds on your account by contacting firstname.lastname@example.org. The Customer agrees that Voluum shall not reimburse funds that Customer has already spent on purchasing Advertising space on the Internet for advertising purposes. The Customer understands and agrees that spend overages caused by exceeded budget limits in Campaigns’ configuration are non-refundable.
- The Customer is responsible for any applicable sales, use, gross receipts, value added or transaction based taxes, in excess of any and all fees payable in connection with the Services. Such fees shall be paid without deduction or withholding of any present or future taxes. The Customer shall reimburse Voluum of any such taxes Voluum is required to collect and/or remit any such taxes in connection with the Services selected by the Customer. The Customer shall pay all applicable taxes or charges imposed by any government entity in connection with your use of the Services. All fees owed by the Customer to any third party based on the activity covered by the Terms and Conditions are solely the responsibility of the Customer.
- According to the relevant payment providers’ policies some of the transactions may demand Strong Customer Authentication (SCA), which means that electronic payment is performed with multi-factor authentication to increase the security of such a payment.
- The type of used multi-factor authentication as well as demanding SCA in any case depends on the policy of the relevant payment provider that is used by the Customer to make a payment.
9. INTELLECTUAL PROPERTY
- For purposes of these Terms and Conditions, “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and reinstatements thereof, now or hereafter in force and effect worldwide.
- As between the Parties, Voluum (or others it so designates in writing) shall own all rights, titles and interests to use of Intellectual Property Rights relating to Voluum DSP Platform, the documentation concerning the Platform (as well as any derivative works or enhancements thereof) including but not limited to software, technology, processes, materials, guidelines, layouts, compilation, design, copy and organization of Voluum DSP Platform and any reports or data generated by Voluum DSP Platform and the Customer shall not acquire any right, title or interest in the Platform, aforementioned documentation and all Intellectual Property Rights associated therewith. All rights not expressly granted in the Terms and Conditions are reserved.
- The Customer shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to Voluum DP Platform or Voluum; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any site, or any other technology, software, materials and documentation related to Voluum DSP Platform or Voluum; (iii) crawl, index or in any non-transitory manner store or cache information obtained from Voluum DSP Platform; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from Voluum any aspect of Voluum DSP Platform under any timesharing, service bureau or other unauthorized method or access thereto; or (v) engage in any action or practice that reflects poorly on Voluum DSP Platform, Voluum or its Advertising space’s providers, or otherwise disparages or devalues the reputation or goodwill of the same.
- The Customer grants to Voluum and any of its Publishers a non-exclusive, worldwide, perpetual, royalty-free license during the Term of the Agreement to transmit over the Internet, use, display, copy, translate, and create derivative works in respect of any Intellectual Property Rights embodied in any Advertisement and in any information provided by the Customer (or its clients) to Voluum pursuant to the Terms and Conditions and/or utilized by Voluum on behalf of the Customer (or its clients) on the Platform pursuant to the Agreement.
- The Customer grants to Voluum a non-transferrable, non-exclusive, non-sublicensable, royalty-free, right and license to use and display those trade names, trademarks, service marks, and logos of the Customer (collectively the “Customer’s Marks”) in fulfilment of its obligations under the Terms and Conditions and in other promotional materials for Voluum’s business and services for the purposes of promoting the existence of the relationship between the Parties. Voluum may issue a press release relating to the concluded Agreement and the relationship of the Parties without the prior consent of the Customer.
10. REPRESENTATIONS AND WARRANTIES
- The Customer represents and warrants to Voluum and any of its Publishers as follows:(i) the Customer has the power and authority to enter into and perform its obligations under the Terms and Conditions and concluded Agreement and that it has been duly authorized under the Customer’s organizational documents and by-laws,(ii) the Customer shall operate in accordance with all applicable laws and regulations and Voluum shall not be used or associated with any materials in any Advertisement and/or linked websites that are obscene, defamatory, fraudulent or illegal,
(iii) the Customer is the originator and/or owner of all Advertisements placed on Voluum DSP Platform during the Term or it is properly authorised by the owner of the Advertisements to use them in relation to its use of the Services,
(iv) using Advertisements in relation to the Customer’s use of the Services shall not breach any contract or infringe or violate any Intellectual Property Right, any applicable laws, rules or regulations, or any personal or proprietary right of any person including any data
(v) any information contained within any Advertisement and any linked website is accurate and shall not be misleading,
(vi) each Advertisement and any linked website shall not contain any viruses, bugs, worms, Trojan horses or any other computer programming routines that are intended to damage, interfere or intercept any computer system or extract any data or personal information,
(vii) the Customer shall notify the applicable Publisher and Voluum of any errors in any Advertisement and any complaints or claims made in respect of any Advertisement as soon as the same come to its attention.
- The Customer shall indemnify, defend, and hold harmless Voluum (including the Voluum Parties) from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by Voluum, known or unknown, contingent or otherwise, directly or indirectly arising from the Customer’s breach of any term or provision of these Terms and Conditions or any way related to the Customer’s use of the Voluum DSP Platform, including but not limited to any claim for infringement of Intellectual Property Rights of a third party. Voluum shall notify the Customer of any such claim and shall cooperate with the Customer, at its expense, in defending or settling such claim. The Customer shall not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects Voluum’s rights without Voluum’s prior written consent. The Customer may join in defense with counsel of its choice at its own expense. If the Customer does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, Voluum may defend against such claim in such manner as it may deem appropriate at the Customer’s expense, including, without limitation, settling such claim, after giving notice to the Customer.
12. LIMITATION OF LIABILITY
- YOUR USE OF VOLUUM DSP PLATFORM IS AT YOUR SOLE RISK. VOLUUM DSP PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VOLUUM AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS AND AGENTS (COLLECTIVELY THE “VOLUUM PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES . EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE VOLUUM PARTIES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE VOLUUM PARTIES MAKES NO WARRANTY THAT (I) VOLUUM DSP PLATFORM WILL MEET YOUR REQUIREMENTS, (II) VOLUUM DSP PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF VOLUUM DSP PLATFORM WILL BE ACCURATE OR RELIABLE, (IV) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH VOLUUM, OR (V) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH VOLUUM DSP PLATFORM WILL MEET YOUR EXPECTATIONS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE VOLUUM PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF VOLUUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE VOLUUM DSP PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM VOLUUM DSP PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON VOLUUM DSP PLATFORM; (V) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, (VI) USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET VOLUUM SYSTEMS REQUIREMENTS, (VII) ERRORS IN CALCULATIONS, PROGRAMMING OR ALGORITHMS, OR (VIII) ANY OTHER MATTER RELATING TO VOLUUM DSP PLATFORM. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF VOLUUM DSP PLATFORM. IF THE ABOVE LIMITATION OF LIABILITY IS DEEMED INAVLID BY THE COMPETENT COURT, THE TOTAL, CUMULATIVE LIABILITY OF THE VOLUUM PARTIES RESULTING FROM THESE TERMS AND CONDITIONS OR CONNECTED WITH IT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE LAST CAMPAIGN. LIABILITY OF THE VOLUUM PARTIES IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, IT MEANS THAT IT IS LIMITED ONLY TO DAMAGES CAUSED BY INTENTIONAL FAULT OF ANY OF THE VOLUUM PARTIES.
- Voluum guarantees to sell the Advertising and time on the Internet for advertising purposes (in the form of clicks, impressions, or redirects) according to the settings of the Customer’s Campaign. However Voluum does not guarantee conversion as an effect of the Customer’s Campaign (e.g., sales or sign-ups) and shall not issue a refund if none are achieved. It means that Voluum does not guarantee any sales and shall not be held responsible if sales are not generated.
- In the event that the Destination URL becomes unavailable for any reason (e.g., server hosting the provided URL is down or unavailable, timed out, or shows to be active but with internal server errors, 404 errors and other types of common or uncommon errors associated with the Internet, Destination URL, the Customer’s network, and/or its underlying infrastructure), the Customer shall not hold Voluum or its partner sites responsible for these errors. Voluum shall not be held responsible for factors beyond its control that may interfere with its ability to deliver End Users to the Destination URL. Such factors include, but are not limited to, downtime on the Customer’s server, overuse of the Customer’s bandwidth quota (if applicable), errors on Destination URL, pop-up killers, and/or network outages beyond Voluum’s server. Any such purchases concerning End User not delivered to the Destination URL during these aforementioned circumstances shall not be refunded.
- The parties can terminate the Agreement at any time in writing or by email by providing the other with a 14 (fourteen) days advance notice. Regardless of the circumstances, such termination shall not give rise to liability. If due to the change of the Terms and Conditions, its provisions come into force during the notice period, the previous content of the Terms and Conditions shall prevail with respect to the parties’ relations. All data, files or other information stored in the Customer’s Account will be no longer available to the Customer.
- Voluum is entitled to suspend or ban the Customer’s access to Voluum DSP Platform for any time according to its discretion regarding the breach of the Agreement or breach of any of legal relationships with Voluum, especially for the following reasons: (i) the Customer breaches the Terms and Conditions or terms regarding other services provided by Voluum on the basis of separate agreements or there is a suspicion of such breach, (ii) the Customer conducts activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations or there is a suspicion of such activities, (iii) in case of delay in payment to Voluum for the Services or any other services provided by Voluum on the basis of separate agreements, (iv) in case of negative verification of the Account according to point 2.11. If aforementioned suspicions were refuted, Voluum shall restore the Customer’s access to the Account. Otherwise Voluum is also entitled to terminate the Agreement at any time, without advance notice. Regardless of the circumstances, such suspension, banning or termination by Voluum shall not give rise to liability. The deposited funds from a banned Account shall not be refunded and are accounted for as revenues of Voluum in the ledger books. In exceptional cases, Voluum may, however, decide to refund that funds at its sole discretion.
- I Any outstanding balance for the Voluum DSP Platform’s use rendered to the date of termination as well as other unpaid payment obligations during the remainder of the billing period shall be immediately due and payable by the Customer in full.
- The termination of the Agreement shall automatically, and without further action by Voluum, terminate and extinguish the Customer’s right to use Voluum DSP Platform.
14. GOVERNING LAW AND JURISDICTION
- The Terms and Conditions shall be governed by, and construed in accordance with, the laws of Poland, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions.
- Any litigation based hereon, or arising out of, under, or in connection with these Terms and Conditions, shall be brought and maintained exclusively in the court competent for Voluum’s registered office. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the aforementioned court for the purpose of any such litigation as set forth above. In addition, each party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
- Each of the parties hereto hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms and Conditions and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.
- The Customer may not assign any of its rights or delegate any of its duties under these Terms and Conditions or additional agreements (if concluded with Voluum) without the prior written consent of Voluum. Despite such consent, no assignment shall release the assignor any of its obligations or alter any of its primary obligations to be performed under these Terms and Conditions. The Customer hereby agrees that Voluum is entitled to assign any of its rights and obligations under these Terms and Conditions and additional agreements (if concluded with the Customer) to any third party and at any time without separate consent of the Customer.
- Except as otherwise expressly provided herein, these Terms and Conditions shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to the Terms and Conditions.
16. ENTIRE AGREEMENT, CHANGES
- Voluum reserves the right to change these Terms and Conditions and prices for its services at any time in its sole discretion and pursuant to applicable law. Amended versions of the Terms and Conditions or new pricing lists shall be effective upon providing the Customer with a notice of at least 2 (two) weeks. Amendments of pricing list do not affect ongoing Campaigns. Your continued use of Voluum DSP Platform after the effective date of any such notice shall constitute your acceptance of and agreement to such changes. IF THE CUSTOMER DOES NOT WISH TO BE BOUND TO NEW TERMS AND CONDITIONS, IT MUST TERMINATE THE AGREEMENT AT LEAST ONE DAY BEFORE THE EFFECTIVE DATE OF NEW TERMS AND CONDITIONS BY AN EMAIL NOTICE.
- Voluum reserves the right to modify Voluum DSP Platform and its functions or functionalities at any time in its sole discretion and without any liability. Voluum agrees to use commercially reasonable efforts to minimize unscheduled modification and maintenance interruptions. However, Voluum reserves the right to modify or maintain Voluum DSP Platform at any time, with or without notice to the Customer.
17. INDEPENDENT CONTRACTOR
- The relationship of Customer and Voluum established by these Terms and Conditions is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other.
18. FORCE MAJEURE
- Neither party shall be deemed in default of the Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an event of force majeure. An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent i.e. riot, war, invasion, act of foreign enemies, hostilities, terrorism, strikes, flood, fire or other physical natural disaster, epidemic, strike, act or actions of government or shortage of materials or supplies
- If any provision of the Terms and Conditions is found to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable it shall be so narrowly drawn, without invalidating the remaining provisions of the Terms and Conditions or affecting the validity or enforceability of such provision
- The Customer acknowledges that through its relationship with Voluum, it may learn that certain Publishers and other entities providing Advertising space on the Internet for advertising purposes work with Voluum. During the Term of the Agreement, and for the 6 (six) month period following its termination, the Customer agrees not to use its knowledge of any Publisher or other entities providing Advertising space on the Internet for advertising purposes learned through its relationship with Voluum to solicit to enter into an agreement with the Customer that would displace Voluum in its relationship with any of the aforementioned entities, or otherwise obtain marketing services from such Publisher or other entities providing Advertising space on the Internet for advertising purposes,similar to those provided hereunder; provided, however, that this prohibition shall not apply to the entities the Customer had a business relationship with that pre-dates the date of concluding the Agreement.
- The Customer agrees that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that Voluum shall be entitled to: (i) liquidated damages from the Customer in the amount equal to 100% (one hundred percent) of the fees paid by the Customer to Voluum for a maximum of the previous 12 (twelve-month) term of the Agreement; and/or (ii) any and all other remedies available to Voluum at law.
- These Terms and Conditions are made solely for the benefit of the Customers and Voluum Parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms and Conditions.
- No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms and Conditions shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Voluum in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
- If Voluum prevails in any action, suit, or proceeding arising from or based upon the Terms and Conditions, Voluum shall be entitled to recover from the Customer Voluum’s reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.
- The headings in the Terms and Conditions are included for convenience only and shall neither affect the construction or interpretation of any provision herein nor affect any of the rights or obligations of the parties of the Terms and Conditions.
- Sections Representations & Warranties, Intellectual Property, Confidentiality, Indemnification and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms and Conditions shall survive and remain in effect after such happening.
- Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the provisions of these Terms and Conditions. These Terms and Conditions shall not be construed against either party by reason of its drafting.
22. NOTICES AND COMPLAINTS
- Any notice, communication or statement relating to Terms and Conditions shall be done by an email unless the written form is reserved in these Terms and Conditions. The notice is deemed effective upon delivery to the contact data of the respective party as indicated herein or in the Customer’s Account. In the event of non-material changes to the Terms and Conditions (e.g. editorial changes, correction of obvious typographical errors), notice shall be deemed effective upon posting at Voluum DSP Platform. In the event of material changes to the Terms and Conditions (i.e. affecting the rights and obligations of the parties), notice shall be effective upon delivery to the email address last provided by the Customer. In the event that the Customer believes that the Agreement is not being performed in accordance with the provisions of the Terms and Conditions, it may submit a complaint to Voluum in the term of 14 (fourteen) days from noticing the breach of the Agreement by Voluum. All complaints will be handled within a reasonable timeframe, not exceeding 30 days. The notices and complaints of the Customer can be sent on the following addresses: CentralNic Poland sp. z o.o., with a registered office at ul. Lubicz 17G, 31-503 Kraków, Poland incorporated under the laws of Poland and registered in the companies register of the National Court Register held by District Court Krakow – Srodmiescie in Cracow XI Commercial Division (Sąd Rejonowy dla Krakowa – Śródmieścia w Krakowie XI Wydział Gospodarczy) under (KRS) no. 0000830352, having EU VAT ID: PL5272922087 and the share capital in the amount of 5 000 PLN, Attn: Legal Department or by email to: email@example.com.