Voluum DSP Terms and Conditions
for Self-Served Performance online marketing operations
Last updated: 01.03.2020
THE PARTIES ARE:
Codewise VL Spółka z ograniczoną odpowiedzialnością spółka komandytowa with a registered office at Lubicz 17 G, 31 – 503 Cracow, Poland Incorporated under the laws of Poland registered in the entrepreneurs 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 the number: KRS 0000824990, Voluum EU VAT ID: PL6762576919, further referred to as: “Voluum”
– AND –
Purchaser of traffic available on panel.voluum.com platform (further referred to as “you”, “your”, “Company” or “Customer”)
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 (hereinafter “Voluum DSP Platform”); The Company desires to use the Platform from Voluum and Voluum desires to share the Platform with the Customer on the terms and subject to the conditions described herein. Voluum DSP Platform is available and provides services globally.
- “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. Customer must hold a relevant license or have produced or otherwise have authority to display such materials for the purpose of promoting or marketing.
- “Bid” shall mean the process by which a Customer submits an offer to purchase selected Digital Media Inventory through the Service for the placement of Advertisement(s).
- “Business Hours” mean Monday through Friday from 9:00 (nine) a.m. to 6:00 (six) p.m. Central European Time (CET), exclusive of holidays and federal or banking holidays in Poland.
- “Campaign” means an advertising campaign for the promotion of Company’s or Company’s 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” means any person or entity that is authorized to acquire Digital Media Inventory for Advertisements and including “Advertiser”, “Advertising Agency,” or “Agency,” or any agent, employee, or other party authorized to act on behalf of the Customer.
- “Digital Media Inventory” means any digital advertising inventory sold or acquired through the Service and any advertising exchanges or publishers.
Subject to your acceptance and compliance with these Terms, Voluum grants You a non-exclusive, non-transferable, limited right to access, use and display the Website and the materials thereon. You shall not interfere or attempt to interfere with the Website 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 Website or Service, 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 Service in whole or in part.
You may not use the Website or the Services for any other commercial purpose other than as expressly stated herein. The use of the Services relies on several minimum technical requirements: 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 is via special website: panel.voluum.com. When Advertiser uses the services provided by Voluum, Advertiser will be required to create an account with Voluum to use its web-based interface.
Advertiser shall provide true, accurate and current information to Voluum and shall maintain all account information, insuring it is true, accurate and up-to-date.
When an individual, Advertiser represents and warrants: he/she is at least 18 (eighteen) years old, has full capacity to perform acts in law and is an individual running a business (i.e. Advertiser is not a consumer). If any information provided by Customer is inaccurate, not current or incomplete, Voluum has the right to refuse to register Customer’s account or terminate Customer’s account. By completing the account registration process, and clicking the “register” button, Customer agrees to be bound by this agreement and acknowledges the establishment of an account on behalf of such Customer (the “Account”). When a person signing to Voluum DSP Platform acts on behalf of their employer or an entity, this person represents and warrants that he/she has full legal authority to bind their employer or such other entity to these Terms and Conditions. Advertiser shall not permit any 3rd party to use or gain access to Voluum DSP Platform and shall use reasonable security measures to protect against unauthorized usage and/or access. Advertiser is responsible for selecting and continuously managing its password and security settings to protect Advertiser’s account and Advertiser’s campaigns settings (including Advertiser’s contact information) from unauthorized changes. Advertiser is entirely responsible for maintaining the confidentiality and secrecy of Advertiser’s password and account security settings, as well as Advertiser’s other information. All consequences of Advertiser’s voluntary disclosure of password and account information, as well as all activities that occur in Advertiser’s account are Advertiser’s responsibility. Advertiser agrees to notify Voluum immediately of any unauthorized use of Advertiser’s account or any other breach of security.
Advertiser agrees that it shall be responsible for all activity that arises from Advertiser’s account, whether initiated by Advertiser or others on Advertiser’s behalf and Voluum shall be entitled to rely on any requests which have been initiated from Advertiser’s account. Voluum disclaims any liability for any activity in Advertiser’s account, whether initiated or authorized by Advertiser or not.
Advertiser is solely responsible for the use of Voluum DSP Platform by their 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 agents. The Advertiser acknowledges and agrees that all their campaigns participating in Voluum DSP Platform will be subject to review by Voluum’s employees. Voluum reserves the right to accept or reject Advertiser’s campaign at any time based solely on Voluum judgment on compliance with the Terms of Service.
Accounts or Advertiser’s Campaigns will be verified within 72 (seventy two) hours. Requests submitted during holidays will be considered as submitted on the following working day.
Advertiser shall not access, or attempt to access, Voluum DSP Platform by any means other than through the website or interface provided by Voluum.
Advertiser shall not attempt to obstruct, disrupt or interfere with the operation of Voluum DSP Platform (in particular with the results of Proxy bidding) or other services provided by Voluum.
Advertiser shall not attempt to gain unauthorized access to accounts registered to other users, or any servers, systems or networks connected to Voluum DSP Platform or Voluum’s website.
Advertiser shall not obtain or attempt to obtain: (A) any information from the Voluum DSP Platform, including without limitation: email addresses or phone numbers of other account holders or other software data; (B) intercept, examine or otherwise observe any proprietary communications protocol or bidding mechanisms used by Voluum DSP Platform, Voluum’s website or servers; (C) use any software that is designed to provide means of unauthorized access to; or (D) distort, delete, damage or disassemble Voluum DSP Platform or Voluum’s website or servers.
Unauthorized use of the Service, by those other than the Customers in these terms and outside of the outlined permitted uses herein, is prohibited. You will provide updated and maintain truthful, accurate, current, and complete information as prompted by the registration form for login credentials. We reserve the right to delete your Account if we believe you have misrepresented any of the registration information submitted. You must use all commercially reasonable efforts safeguard your account credentials to prevent unauthorized use of, or access to Your Account and, the Service. You agree not to use the login credentials of another user at any time or to disclose your login credentials to any third party. You agree to notify Voluum immediately if you believe your account or log in credentials have been used by an unauthorized party. You are solely responsible for any and all use of your account, including that by a third party that should have reasonably been prevented by safeguarding your login credentials.
3. RESTRICTIONS AND OTHER LIMITATIONS
- Company agrees that it will not, without Voluum’s prior written consent, provide, disclose, divulge or make available the Platform or any of the Documentation to any persons other than Company’s employees under obligation of confidentiality to the Company.
- Company 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. Company may not (a) copy, distribute, rent, lease, lend, sublicense, transfer or make Voluum DSP Platform Services available to any third party outside of the Company, (b) decompile, reverse engineer, or disassemble Voluum DSP Platform, (c) create derivative works based on the Voluum DSP Platform; or (d) modify, remove, or obscure any proprietary notices or legends that appear in Voluum DSP Platform or during the use and operation there of Company agrees that it will 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 and all applicable software and Documentation.
- Company 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 Company, (iii) damaging, misusing, improperly operating, or abusing the Platform, and introducing any computer virus or malicious or unauthorized programming code(s) into the Platform.
- Company 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.
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 exchange.
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 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 Exchanges, or to the extent that Voluum is advised of the same by the respective Publisher or Exchange.
4. END USER DATA
5. CONFIDENTIAL INFORMATION
“Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally, is identified as being proprietary and/or confidential at the time of disclosure, or under the circumstances and nature of the information would be reasonably deemed to be confidential. In the case of Voluum, Confidential Information includes in each time the features and functionality of the Voluum Services and Website.Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
Use and Disclosure Restrictions. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, subcontractors, and advisers that need to know such Confidential Information and are contractually bound to the use and disclosure restrictions set forth in this Agreement. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but never less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance.
The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (b) on an as-needed, confidential basis to its legal or financial advisors. Each party may disclose the terms and conditions of this Agreement as required under applicable securities regulations and on a confidential basis to current or prospective investors or acquirers of such party.
6. CUSTOMER OBLIGATIONS
Customer covenants and agrees to pay Voluum for such Advertisements where Voluum correctly implements Customer’s instructions. 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 system. Customer’s obligation to pay Voluum does not arise from the availability of advertising inventory or the success of Customer’s bid.
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 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 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, 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 of this Agreement. 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 of this Agreement.
To the extent applicable to its performance under this Agreement, You 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 of the Services may be subject to the policies of publishers and exchanges and duly negotiated and executed contracts and agreements with those publishers and exchanges; (ii) amendments to this Agreement may become necessary from time to time to comply with a policy change of a publisher or exchange; and (iii) the Parties shall timely implement such change, and where necessary, amend this Agreement to reflect such modification.
7. VOLUUM OBLIGATIONS
Voluum hereby covenants and agrees that, subject to all disclaimer of warranty and limitations of liability contained in this Agreement, Voluum will (i) provide Customer with direct access to the Services; (ii) allow Customer access to purchase Digital Media Inventory and upload Content through the Services; and (iii) make technical support for the Services available during Business Hours as defined in this Agreement. Voluum hereby grants to Company a non-exclusive, non-sublicensable, non-transferable, revocable right and license during the Term and within the Territory to use Voluum DSP Platform for its own use or on behalf of its Customers (the “License”); or, subject at all times to the License restrictions set forth in Section 3 below.
Voluum’s grant to Company of the License hereunder is not a sale to the Company or any third party of Voluum DSP Platform or any portions thereof. All rights not expressly granted to Company by Voluum hereunder are reserved.
- Customer prior to buying traffic must deposit funds to his Voluum DSP Platform account. The minimum initial deposit amount is $500 USD + fee (five hundred United States Dollars plus fee). Top up amount above the minimum threshold are solely a decision of the Customer. Initial top ups for the minimum required amount ($500 USD) are non-refundable. Minimal amount of bank wire transfer is $1000 USD (one thousand United States Dollars). Deposited funds are ring fenced within Voluum accounts and within the accounting ledger. 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. Company may elect to make payments under this agreement in the following currencies: USD, EURO, GBP. Where Company elects to pay for Voluum DSP Platform services in a currency other than USD, either by selecting such currency from available options in the Voluum DSP Platform or by submitting an Insertion Order form as defined in Exhibit A, Voluum will convert the amounts of selected currency into USD using data from https://www.nbp.pl. The specific rate shall be calculated using an average of the selected currency exchange rate over the preceding calendar month. The rate that applies for a given billing period may be requested by Company from Voluum via notification.
Voluum reserves the right to update the applied exchange rate at its sole discretion. Reasons for such an update may include, but are not limited to, unusual fluctuations in the currency market and exceptional political events. Where such an update is applied Voluum will use its best endeavours to notify company of its intention to make that update. Deposited funds can be used only for purchase of traffic via different types of campaigns available in Voluum DSP Platform. Deposited funds do not expire and can be used to purchase traffic at any time. Customer may request to obtain a credit limit and can be granted with it base 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 number of impressions and depend on Bidding results (RTB). Customer understands and agrees that the statistics system provided by Voluum shall serve as the official record of traffic and Impressions/Clicks delivered throughout the Customer’s Campaign. Other ways of tracking the traffic are acceptable based on individual request from Customer and after written approval from Voluum.
- Payment Disputes. Customer understands and agrees to address any questions Customer may have with any payment of commissions under these provisions to Voluum within thirty (30) days of the date of such payment, in writing or by e-mail to firstname.lastname@example.org. Failure to notify Voluum within such period will constitute an acceptance of, and agreement with, the applicable payment. Refunds. You may ask for a refund of the remaining funds on your account by contacting email@example.com. This only includes funds that you have deposited using the payment methods described in 8.A. This does not include bonuses, or any other form of credit from Voluum. The Customer agrees that Voluum shall not reimburse funds Customer already spent on purchased traffic.
- Taxes. 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 Service. Such fees shall be paid without deduction or withholding of any present or future taxes. Company shall reimburse Voluum of any such taxes Voluum is required to collect and/or remit any such taxes in connection with the Service selected by Company. Company shall pay all applicable taxes or charges imposed by any government entity in connection with your use of the Service. All fees owed by User to any third party based on the activity covered by this Agreement are solely the responsibility of you and User, jointly and severally.
- 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
- As between the Parties, Voluum shall own all rights, titles and interests in and to Voluum DSP Platform, the Documentation and all Intellectual Property Rights associated therewith, including but not limited to the layout, compilation, design, copy and organization of Voluum DSP Platform and any reports or data generated by Voluum DSP Platform and Company shall not acquire any right, title or interest in the Platform, Documentation and all Intellectual Property Rights associated therewith, including without limitation the layout, compilation, design, copy and organization of the Platform and any reports or data generated by the Platform. All rights not expressly granted in this Agreement are reserved.
- Company grants to Voluum, any Publisher and any Data Publisher a non-exclusive, worldwide, perpetual, royalty-free license during the term of this Agreement or any Advertising Order into which Company has entered pursuant to this 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 Company (or its clients) to Voluum pursuant to this Agreement and/or utilized by Voluum on behalf of Company (or its clients) on the Platform pursuant to this Agreement.
- Company 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 Company (collectively “Company Marks”) in fulfilment of its obligations under this Agreement 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 this Agreement and the relationship of the Parties without the prior consent of Company.
10. REPRESENTATIONS AND WARRANTIES
Company represents and warrants to Voluum, any Publisher and any Data Publisher as follows:
- has the power and authority to enter into and perform Company’s obligations under this Agreement and this Agreement has been duly authorized under Company’s organizational documents and by-laws.
- It shall operate in accordance with all applicable laws and regulations in the Territory and Voluum shall not be used or associated with any materials in any Advertisement and/or Linked Website that are obscene, defamatory, fraudulent or illegal.
- It is the originator and/or owner of all Advertisements placed on Voluum DSP Platform during the Term or it is has the authority of the owner of the Advertisements to provide each such Advertisement to the Publisher for display on or through the Platform.
- The reproduction and/or publication of any Advertisement on the Platform or any Media Channel will 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 protection rights.
- Any information contained within any Advertisement and any Linked Site is accurate and shall not be misleading.
- 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.
- It 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.
11. DISCLAIMER OF WARRANTY
- Voluum agrees to indemnify, defend and hold harmless Company, its officers, directors, employees, subsidiaries, agents, successors and assigns from and against any third-party claims, suits, proceedings, demands or actions and any damages, losses, costs, expenses or settlement fees incurred in connection therewith (including reasonable legal fees and costs) (collectively, “Losses”) arising out of or relating to (i) any breach or alleged breach by Voluum of its representations, warranties, or covenants provided in this Agreement; or (ii) Voluum’s bad faith, gross negligence or wilful misconduct.
- Company agrees to indemnify, defend and hold harmless Voluum, its officers, directors, employees, subsidiaries, agents, successors and assigns from any Losses incurred in connection therewith arising out of or relating to (i) any breach or alleged breach by Company of its representations, warranties, or covenants provided in this Agreement; (ii) any aspect of the Advertisements and/or Linked Websites; (iii) Company’s use of the Platform or any portion of the services provided in this Agreement, except as expressly provided for herein; (iv) the Company Marks; or (v) Company’s bad faith, gross negligence or wilful misconduct.
- An indemnitee under this Section 12 (an “Indemnitee”) must (i) promptly notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend); (ii) provide Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket expenses); and (iii) give the Indemnitor full control and sole authority over the defense and settlement of such claim, subject to Indemnitee’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF VOLUUM, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES FOR ALL CLAIMS RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR THE WEBSITE SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE BID FROM WHICH THE CLAIM AROSE. SUBJECT TO APPLICABLE LAW, VOLUUM, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, (C) USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET VOLUUM SYSTEMS REQUIREMENTS, (D) ERRORS IN CALCULATIONS, PROGRAMMING OR ALGORITHMS, (E) INFORMATION OBTAINED FROM THIRD PARTIES, (F) LOSS OF PROFITES OR REVENUE, EVEN IF VOLUUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. THE ABOVE LIMITATIONS APPLY EVEN IF VOLUUM AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VOLUUM WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND VOLUUM’S CONTROL. VOLUUM SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF ITS AFFILIATES. CUSTOMER UNDERSTANDS AND AGREES THAT PARTICIPATION IN VOLUUM DSP PLATFORM SOLELY AT CUSTOMER’S OWN DISCRETION AND AT CUSTOMER’S OWN RISK. VOLUUM’S LIABILITY UNDER THE AGREEMTENT OR ANY RELATED DOCUMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO VOLUUM BY CUSTOMR UNDER THE AGREEMETN FOR THE THREE (3) MONTH PERIOD PRECEEDING THE DATE THE FIRST LIABILITY AROSE. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF VOLUUM, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES, THE WEBSITE, AND THEIR USE. EACH PARTY ACKNOWLEDGES THAT THE COMPENSATION PAYABLE HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY. Voluum does not guarantee any effects of Customer’s Campaign, in particular Voluum does not guarantee to deliver any number of visitors or Clicks. Customer also understands that Voluum does not guarantee sales or sign-ups (i.e., conversions) and will not issue a refund if none are achieved. Voluum does not guarantee any sales and will not be held responsible if sales are not generated.
In no event Voluum shall be liable for any consequential, direct, indirect, incidental, punitive, or other damages whatsoever (including, but not limited to, damages for loss of profits, loss of information, any data or other pecuniary loss) arising out of or relating to these terms of service or any related document or the use or inability to use Customer’s Campaign, even if Voluum or Customer has been advised of the possibility of such damages.
For the duration of the contract, Voluum grants the Customer the revocable, non-exclusive, non-transferable and non-sub-licensable right to use the Voluum DSP Platform for own business purposes in accordance with these Terms and Conditions.
In the event that Customer’s site or Landing Site 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, Customer’s website, Landing Site, the Customer’s network, and/or its underlying infrastructure), Customer will not hold Voluum or its partner sites responsible for these errors.
All and/or any web traffic delivered to the Customer’s site during this down time will not be refunded.
Voluum cannot be held responsible for factors beyond its control that may interfere with its ability to deliver visitors to the Customer’s site. Such factors include, but are not limited to, downtime on Customer’s server, overuse of Customer’s bandwidth quota (if applicable), errors on Customer’s site, pop-up killers, and/or network outages beyond Voluum’s servers.
Every new account created in the Voluum DSP Platform system is manually approved or denied by one of Voluum’s agents. The Customer acknowledges and agrees that all their campaigns participating in Voluum will be subject to review by Voluum’s employees. Voluum reserves the right to accept or reject Customer’s campaign at any time based solely on Voluum judgment on compliance with the Terms of Service.
Accounts or Customer’s Campaigns will be verified within 72 (seventy two) hours. Requests submitted during holidays will be considered as submitted on the following working day.
Customer shall not access, or attempt to access, Voluum DSP Platform by any means other than through the website or interface provided by Voluum.
Customer shall not attempt to obstruct, disrupt or interfere with the operation of Voluum DSP Platform (in particular with the results of Proxy bidding) or other services provided by Voluum.
Customer shall not attempt to gain unauthorized access to accounts registered to other users, or any servers, systems or networks connected to Voluum DSP Platform or Voluum’s website.
Customer shall not obtain or attempt to obtain: (A) any information from the Voluum DSP Platform, including without limitation: email addresses or phone numbers of other account holders or other software data; (B) intercept, examine or otherwise observe any proprietary communications protocol or bidding mechanisms used by Voluum DSP Platform, Voluum’s website or servers, (C) use any software that is designed to provide a means of unauthorized access to, or distort, delete, damage or disassemble Voluum DSP Platform or Voluum’s website or servers.
- Either Party may terminate this agreement at any time by providing notice to the other Party. Regardless of the circumstances, such termination shall not give rise to liability.
- In the event of any termination Customer will be entitled to refunds of the balance remaining on his account in Voluum DSP Platform after full reconciliation of the books. Any outstanding balance for Voluum DSP Platform use rendered through the date of termination, and other unpaid payment obligations during the remainder of the billing period will be immediately due and payable in full. All data, files or other information stored in Customer’s account will be no longer available to Customer.
- The termination of this agreement shall automatically, and without further action by Voluum, terminate and extinguish Customer’s right to use Voluum DSP Platform.
- Voluum may suspend or terminate Customer’s access to Voluum DSP Platform at any time, without advance notice, for any reason that Voluum finds valid in its sole discretion until cured, including but not limited to where Voluum believes that: (A) Customer is in any way in breach of the Terms and Conditions; (B) Customer, at any time, is conducting activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations, (C) Customer is late with any payment for the usage of Voluum DSP Platform for the period 15 (fifteen) days from date of payment.
- The remaining balance of any accounts banned due to advertiser guideline violations will not be refunded.
15. INACTIVE ACCOUNTS
Voluum reserves the right to suspend, disable or terminate any accounts that are inactive for a period of 6 (six) months. “Inactive” shall be defined as an account that has not been accessed via log-in for a period of 6 (six) months. In case of suspending of Customer’s account Customer should contact firstname.lastname@example.org in order to ask for unsuspending
16. GOVERNING LAW AND JURISDICTION
All legal proceedings shall be conducted in English. All agreements between Voluum and Customer shall be governed by, and construed in accordance with, the laws of the State of Poland except for its conflict of law provisions, 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 of Service. Any litigation based hereon, or arising out of, under, or in connection with these Terms of Service (and all agreements between Voluum and Customer), shall be brought and maintained exclusively in the competent court in Cracow.
You may not assign or transfer any rights or delegate any duties under the Agreement without Voluum’s prior written consent. This Agreement will bind and benefit the parties and their successors and permitted assigns. Client 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 Client) to any third party and at any time without separate consent of the Client.
18. ENTIRE AGREEMENT, CHANGES
Except as may be set forth in an written agreement signed between Voluum and Advertiser, these Terms of Service constitute the final, complete, and exclusive statement of the terms of the use of Voluum DSP Platform between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.Voluum reserves the right to revise and change these Terms and Conditions at any time in its sole discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at voluumdsp.com/terms-and-conditions/. Your continued use of Voluum DSP Platform after the effective date of any such changes will constitute your acceptance of and agreement to such changes. If Customer does not wish to be bound to any new terms he must terminate these Terms and Conditions by immediately ceasing use of Voluum DSP Platform.Voluum reserves the right to modify Voluum DSP Platform and its content, functions or services 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 Advertiser. Voluum shall not however make any amendments to the creative content of an Advertisement.
This Agreement may be executed in multiple counterparts, and each such duly executed counterpart shall be deemed to be an original of this Agreement, provided however that each Party shall receive a counterpart fully executed by the other Party.
20. INDEPENDENT CONTRACTOR
The relationship of Advertiser and Voluum established by these Terms of Service is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other.
21. FORCE MAJEURE
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
22. ENFORCEABILITY; SEVERABILITY
If a court or an arbitrator of competent jurisdiction holds any provision of these Terms of Service 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 in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of these Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.
Any notice, communication or statement relating to these Terms of Service shall be in writing or electronic form and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission; (iii) when delivered by certified mail or postage prepaid to the address of the respective party as indicated herein (or in the case of Domain Owner, as last provided to Voluum); (iv) in the event of non-material changes to this Agreement, notice shall be deemed effective upon posting at voluumdsp.com/terms-and-conditions/, (v) and in the event of material changes to this Agreement, notice shall be effective upon the sending of an email from Voluum to the email address last provided by Advertiser. Copies of all notices shall be sent to: Codewise VL Spółka z ograniczoną odpowiedzialnością spółka komandytowa, ul. Lubicz 17G, 31-503 Krakow, Poland, Attn: Legal Department.
Customer acknowledges that through its relationship with Voluum, it may learn that certain Publishers work with Voluum. During the term of the Agreement, and for the 6 (six) month period following its termination, Customer agrees not to use its knowledge of any Publisher learned through its relationship with Voluum to solicit such Publisher to enter into an agreement with Customer that would displace Voluum in its relationship with such Publisher, or otherwise obtain marketing services from such Publisher similar to those provided hereunder; provided, however, that this prohibition shall not apply to Publishers with which Customer had a business relationship that pre-dates the date of the Agreement.
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: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Customer in the amount equal to 100% (one hundred percent) of the fees paid by Customer to the applicable Performance Marketer for the prior 12 (twelve) month period; and/or (c) any and all other remedies available to Voluum at law and in equity.