Service Agreement Conditions
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Service Agreement Conditions
Orbital Advertising, S.L.
Calle Nuñez de Balboa 120, 28006 Madrid, Spain
TAX ID: B87575692
SERVICE PACKAGES AND TERMS OF THE AGREEMENT:
The ones selected through the web page.
TERM OF THE AGREEMENT AND TERMINATION:
This Agreement shall continue in force until terminated by either party with a written notice of at least thirty (30)-days that can be communicated by email to email@example.com by the client, or to the contact email indicated by the client by OrbitalAds.
BILLING AND PAYMENTS INFO:
Credit card or Paypal payment: for the contract to start, payment details have to be completed on the web site.
The first invoice will be issued and payment charged at subscription, and subsequent invoices will be issued on a monthly basis thereafter.
These Specific Conditions together with the attached General Terms & Conditions (including Annexes 1 and 2) form the Service Agreement between Orbital Advertising, S.L. and the Client.
GENERAL TERMS & CONDITIONS
- OrbitalAds has developed and owns a technology which provides online marketing advice to companies to improve their investment in advertising by analyzing data (the “Technology”). The Technology is available to customers through a license, as established in this Agreement and the website https://orbitalads.com/ - section “Terms and Conditions”, (the “Web Site”)
The Client is aware of the Technology and wishes to receive the service provided by the Technology.
- SUBJECT MATTER
This Agreement governs the use of the Technology by the Client directly or by its customers for the Term as established in the Specific Conditions.
- TERMS AND CONDITIONS OF THE USE OF TECHNOLOGY
The use of the Technology is subject to the conditions regulated in (i) this Agreement; and (ii) the terms and conditions as established on the Website (the “Website Conditions”), which form part and are incorporated into this Agreement. The Client shall ensure compliance with this Agreement and the Website Conditions itself and by any of its customers.
The Client acknowledges that the Website Conditions are subject to change at any time.
The use of Technology is personal, non-transferable, non-exclusive and limited to the Term established in the Specific Condition.
The Client shall assign the right to use the Technology only with the prior and written the approval by OrbitalAds group.
In the event that the Website Conditions are modified, Orbital Ads shall notify the Client. In case of contradictions between Website Conditions and this Agreement, this Agreement will prevail.
- PRICE AND PAYMENT
The amounts established as remuneration in the Specific Conditions as well as in Annex 1 and 2 do not include value added tax (VAT) or any similar tax which may apply.
OrbitalAds shall issue and send to the Client the relevant invoice as stated in the Specific Conditions. Should the Client believe that the invoice is incorrect, it must inform OrbitalAds in writing within no more than ten (10) days. Otherwise, it must pay the invoice within said period.
Without prejudice of all other remedies available to OrbitalAds according to applicable laws and this Agreement, failure by the customer to pay any invoiced amount in due course shall entitle OrbitalAds to suspend the provision of the service and the use of the Technology until the relevant payment is duly received.
The Client shall assume any agreed expenses incurred by OrbitalAds within the provision of the Service. Such expenses shall be included in the invoice for the Service corresponding to the period in which are incurred.
- TERMINATION OF THE AGREEMENT
The Agreement shall terminate in any of the following circumstances:i. At any time by each party with a 30-days written notice can be communicate by email to firstname.lastname@example.org by the client, or to the contact email indicated by the client by OrbitalAds.ii.Mutual agreement between the Parties which shall be established in writing.iii.At the choice of the non-defaulting Party, for any material breach by either Party of any of the obligations established in this Agreement, except when the breach is remedied no later than thirty (30)-days from the date on which the breaching Party was notified of the breach. If this period expires without the breach being remedied, the non-defaulting Party may terminate this Agreement by giving written notice to the breaching Party and be indemnified for anyiv.In the event of the extinction of the legal entity of any of the Parties.
- INTELLECTUAL PROPERTY
The Client shall not use any registered or unregistered trademarks, symbols or trade names owned by OrbitalAds or which OrbitalAds might freely use, except when strictly requested for the promotion and sale of the Technology and the Services. The Client shall not register in any trademark office any of the above trademarks, symbols, trade names or any similar names or signs.
The Client acknowledges that the use of any such trademarks, symbols or trade names shall not give rise to any right of Client and undertakes to immediately cease to use OrbitalAds´s trademarks, symbols and tradenames upon expiration or termination of the Agreement and to return to OrbitalAds all materials in its possession bearing the trademarks, symbols and tradenames.
Any and all copyright, trademark, trade name, patent, utility model, design, know-how, trade secret, proprietary information, hardware configuration, computer software program or application, circuit or logic design, other intellectual or industrial property rights, and applications and registrations therefor in any jurisdiction in the world (collectively referred to as “IP Rights”) in and to the Services are owned exclusively by OrbitalAds or its affiliates and licensors, and the Client agrees not to claim or assert title to or ownership of any such IP Rights. The Client shall not allow (or permit any third party to do) any conduct which would or might invalidate or be inconsistent with any IP Right of OrbitalAds or its affiliates and licensors and shall assist OrbitalAds in the maintenance the validity and enforceability of such IP Rights. The Client shall not remove or alter any trademark, copyright or proprietary included.
- CONFIDENTIAL INFORMATION
Each Party (hereinafter the "Receiving Party") shall keep all Information received from the other party (hereinafter the "Disclosing Party") in whatever form as strictly confidential and shall not disclose it to third parties without the prior written consent of the Disclosing Party.The term “Confidential Information” shall mean all non-public information disclosed hereunder, whether written, oral or other tangible or intangible forms, that is designated as “Confidential” or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Information shall include, but not be limited to, techniques and related information for accomplishing testing and commercialized products/services, trade secrets and business
information, designs, manuals, plans, proposals, marketing and sales plans, customer lists, commercial contacts, business methods, company financial information, costs, pricing information and product application data, owned or developed by the Disclosing Party, and all other technical information, including but not limited to source code, object code, documentation, manuals, user reference material, training material, products, plans, technical know-how, technical data, performance data, product specification and other information of a technical nature, and other documents relating to each Party’s operations and products and services, and other information designated as proprietary or confidential by the Disclosing Party.
The Parties wish to preserve the confidentiality and prevent the unauthorized disclosure and use of any such non-public and or proprietary information disclosed to the other hereunder.
Information shall not be used by the Receiving Party for any purpose other than the provision of services referenced herein without the prior written consent of the Disclosing Party. Without limitation on the foregoing, each party acknowledges that use of Information for any other use beyond the purpose shall require a separate written agreement between the Parties.
Each Party shall restrict access to Information received from the other party to only those of its employees, representatives, contractors or advisors to whom such access is reasonably necessary or appropriate for carrying out the purpose of this Agreement. Such people shall be subject to confidentiality restrictions consistent with this Agreement.
Each Party agrees to exercise at least the same degree of care in protecting Information from such disclosure as it exercises in respect of its own confidential information and business secrets.
The foregoing obligations shall not apply to any Information which:(a) is, generally known to the public at the time of disclosure or later becomes so generally known through no fault of the Receiving Party;
(b) was known to the Receiving Party prior to disclosure by the Disclosing Party as proven by the contemporaneous written records of the Receiving Party;
(c) is disclosed to the Receiving Party by a third party who did not obtain such Information, directly or indirectly, from the Disclosing Party subject to any confidentiality obligation;
(d) is at any time independently developed by the Receiving Party as proven by its contemporaneous written records; or
(e) is required by law, court order or a governmental agency to be disclosed (in which case the Receiving Party will give the Disclosing Party as much notice thereof as reasonably practicable and disclosure will be done only to the extent required, and subject to confidentiality protection to the extent reasonably possible).
Information shall be deemed the property of the Disclosing Party, and the Receiving Party will, upon receipt of a written request from the Disclosing Party, return all Information received in tangible form to the Disclosing Party or destroy all such Information and all copies thereof or documents containing Information.
The Parties acknowledge that the breach or threatened breach of this Clause may result in irreparable injury to the Disclosing Party.Notwithstanding termination or expiration of this Agreement, all Confidential Information disclosed hereunder shall be protected in accordance with this Agreement for a period of five (5) years after termination or expiration of this Agreement.
- LIABILITY AND SECURITY
OrbitalAds shall be liable for any damage caused to the Client as a result of any breach of its obligations under this Agreement.
Notwithstanding the foregoing, OrbitalAds shall in no event be liable for any breach of its obligations with respect to the Services under this Agreement, provided that the breach can be justifiably considered to be a result of the actions or omissions of the Client.
The Client’s liability:
The Client shall be liable for any damage caused to OrbitalAds, either directly or through its employees or subcontractors or by its customers during the performance of the Agreement.
Notwithstanding the foregoing, the Client shall not be liable, as long as the damage may be justifiably considered as a result of the actions or omissions of OrbitalAds the employees of OrbitalAds or third parties contracted by OrbitalAds;
Client will defend, indemnify and hold harmless OrbitalAds from and against any and all claims, demands, liabilities (including settlement cost), suits, fines, proceeding (including any brought before any court, regulatory body, public administration, arbitration panel or other tribunal) cost and expenses (including court costs and reasonable attorney’s fees and disbursements) which may either be brought against them or be incurred by any of them on account of or arising out of (or is alleged to have arisen out of):
Any of the services rendered to the Client’s customer, including without limitation claims based upon libel, slander, defamation, piracy, plagiarism, idea misappropriation under implied contract, intellectual Property Rights, invasion of privacy or infringement of copyright.
Violation of any applicable law, government or judicial order or regulation.
All notifications and correspondence between the Parties relating to the Agreement shall be conducted in writing in the English or Spanish language and shall be signed by the duly authorized representative, sent by registered post, bureau fax or email, with acknowledgment of receipt, to the postal address or email of the other Party set out in the Specific Conditions (or a replacement address notified to the other Party in writing).
- LAW AND JURISDICTION
This Agreement shall be construed and enforced in accordance with the laws of Spain and the Parties hereby submit to the jurisdiction of the courts of Madrid.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate as of the day and year written below
- COMMERCIAL REFERENCE
Client grants OrbitalAds permission to use its name in OrbitalAds’s marketing materials and to publish its name, trademark and/or logo on the OrbitalAds website, solely for the purpose of identifying Client as an OrbitalAds’s client. Client retains the ability to request removal of the name, trademark and/or logo in the web at any time, by requesting such a removal in writing, and removal will have to be completed by OrbitalAds within 5 business days.
All features included
Support through https://orbitalads.com/
Annex II: terms and conditions for the web access
This website has created by Orbital Advertising S.L. a company dedicated to create, manage and optimize online campaigns provided and operated (“OrbitalAds”), with registered office at Calle Núñez de Balboa, 120, Madrid, registered with the Commercial Register of Madrid at volume 34,883, page 17, sheet number M-627376, with Tax Identification Number B87575692. You can contact OrbitalAds by email at email@example.com
I. PURPOSE AND ACCEPTANCE OF THE CONDITIONS
These terms and conditions (the “Conditions”) regulate the access and use of the website service through the domain https://www.orbitalads.com (the “Website”) property of OrbitalAds and the purchase and management by the user (hereinafter the “User” or “you”) of a non-exclusive and non-transferable license to use the OrbitalAds service (the “Service”) through the OrbitalAds platform (the “Platform”), .
By accessing the Website, for using the Service or, as applicable, for registering to use the Service, you declare that you have read and accepted these Conditions in full. If you do not agree with the content of these Conditions or with any part or clause hereof, you must immediately not access it or refrain from accessing and using the Website or the Service. Access to and use of the Service may be performed through the Platform or any other means established at any time by OrbitalAds. Except as otherwise provided in these Conditions, OrbitalAds may amend them at any time. The date indicated at the beginning of the Conditions corresponds to the last update of the Conditions. If you do not agree with the new Conditions, or any part of this Conditions or any clause thereof, you may refrain from accessing and using the Website and the Service, because once the new version of the Conditions has entered into force, it will be deemed that you have read and accepted it without any reservation.
2. CAPACITY TO ACCEPT THE CONDITIONS
The Service is intended for Users aged over 18 years and for an use in business or professional’s activities. The Service is not intended for consumers. If you are a natural person, by accepting these Conditions, you declare that (I) you are more than 18 years of age, (II) you are purchasing the Service for your professional activity, and (III) you are fully capable to assume and fulfil the terms of these Conditions. If you are under 18 years of age or you are a consumer, please do not access or use the Service. If you have registered and are using the Service on behalf of a company or entity, you declare that you are duly authorised and legitimated to (I) represent and act on behalf of the company or entity, (II) accept these Conditions and manage the Administrator Account (as this term is defined below) on behalf of that company or entity, and (III) abide the company or entity by these Conditions. In this case, for the purposes of these Conditions “you” or “the User” will be deemed to be the company or entity in question.
3. THE REGISTRATION PROCESS AND THE ACCOUNT'S USER
For registration in the Service, the User shall provide a valid email address at which the User will receive any notification related to the Service and activate its account (the “Administrator Account”). In some cases, OrbitalAds may directly provide an Administrator Account to a User
In addition, the full access to the Service shall require that User provides OrbitalAds with certain mandatory information as stated from time to time in the Website for the appropriate rendering of the Service.
The User represents and warrants that information provided is true, complete and up to date. It is User’s responsibility to keep such information updated. The User shall be the sole responsible for maintaining such information updated. The User shall not impersonate any other person upon registration.
In some cases, the access to the Service shall subject to further requirements.
The User may request OrbitalAds the creation of multiple user accounts to be used by its employees, subcontractors or collaborators (the “User Accounts”). In such a case, the User will provide OrbitalAds with the relevant information in order to activate each of its User Accounts and shall be responsible for the use of the Platform and the Service from each User Account. In addition, the User may request the creation of different advertising accounts linked to the Administrator Account (the “Client Accounts”). The User may manage multiple Client Accounts through its Administrator Account.
The User must safeguard its password, treat it as confidential and not disclose it to other persons. In addition, the User shall not publish, distribute or disclose the password. The User shall never allow other users or third parties to use its Administrator, User or Client Accounts (except for its employees, subcontractors or collaborators that can be authorized to use the User and Client Accounts), nor use the account of another user.
The User shall immediately inform OrbitalAds of any violation or suspected violation of security, or unauthorized use of its Account. The User shall ensure that any person authorized to use a User Account complies with the above conditions.
If OrbitalAds has reasons to believe that any unauthorized third party is using the Administrator, any Client or any User Account, OrbitalAds may suspend the Administrator, Client or User Accounts and the use of the Service. The User is the sole responsible of the use, configuration, management and administration of the Administrator, Client or User Accounts and any other use of the Service through the Administrator, Client or User Accounts, through any device or location, undertaking to indemnify and hold harmless OrbitalAds of any damages, costs, losses, claims, lawsuits or actions that would or could be incurred by OrbitalAds as a consequence of or in connection with usage of the Service by the User or by any person authorized by the User to use a User Account. OrbitalAds may suspend or eliminate the Administrator, any Client or any User Account if it believes that you do not comply with the terms set forth in these Conditions.
4. USE OF THE SERVICE
The User is authorized to access and use the Service only in accordance with these Conditions. The User undertakes to use the Service in good faith and not to use it negligently, for fraudulent purposes or in an unlawful manner. Likewise, the User undertakes not to perform any conduct or action that would or could harm the image, the interests and/or the rights of OrbitalAds, other users, or third parties. The User shall be responsible for ensuring prior to using the Service that its features fulfil the User's needs and that has all settings, equipment and software required for such purpose, bearing the necessary costs for usage of the Service. The rights granted to the User under these Conditions are personal, exclusive, and shall not be assigned by the User to third parties (except to its employees, sub-contractors and external collaborators), totally or partially, by any mean, without the prior, express and written authorization from OrbitalAds. The commercialization, reselling or any similar use of the Service is not authorized in any regard, and shall entail the immediate termination of the Service.
5. LICENSE FOR USE OF THE SERVICE
Subject to the terms of these Conditions, OrbitalAds grants to User a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license to use the Service for internal business purposes only, for the activities of creation, publication, analysis and optimization of online ads. Nothing in this license transfers or assigns to User any of OrbitalAds intellectual property rights in the Service and OrbitalAds reserves any rights in the Service not expressly granted in this license.
In connection with the use of the Service, the Platform or the Website, you may not:
Perform reverse engineering procedures, decompile, decode or hack the technology used by OrbitalAds to provide the Service;
Impersonate any person or entity, or falsely state or misrepresent its affiliation or association with a person or entity;
Interfere, interrupt or violate the security of the Service, the Platform or the Website, or the servers or accounts used by OrbitalAds to provide the Service and to operate the Website and the Platform;
Take any action that damages, make unavailable, overload (as determined by OrbitalAds at its sole discretion) or deteriorate or hamper the normal usage of the Service, the Platform or the Website, affect their security or impede or interfere with them;
Interfere or attempt to interfere in the proper operating of the Service, the Platform or the Website;
Bypass any measure used by OrbitalAds to prevent or restrict access to the Service (or to other accounts, computer systems or accounts associated with the Service), the Platform or the Website; Access the Service through any program, application or tool other than those provided by OrbitalAds, or indented for any purpose other than the normal use of the Service, such as malicious attempts to gain control of the Service or to deny the Service, performance tests or comparisons. This restriction applies to the Website and the Platform and also to any electronic activity whose destination is the OrbitalAds infrastructures (its servers and public IP addresses), that would be contrary to normal operations in accordance with the terms set forth in these Conditions or would or could unjustifiably damage the interests of OrbitalAds, without prior, express and written authorization of OrbitalAds:
Decipher, decompile, disassemble, perform reverse engineering or attempt to decipher the source code or the ideas or algorithms of any part of the Service, except to the limited extent in which applicable laws specifically prohibit such restriction;
Copy, lease, rent, distribute, download, reproduce, transmit, broadcast, display, sell, license, exploit or otherwise transfer any content of the Service, the Website or the Platform, in any manner not intended by the normal operating of the Service, the Website or the Platform, unless expressly authorized by these Conditions; or
Employ the Service to any action that violates the applicable regulations or that infringe third-party rights.
7. INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights over the Service, the Website or the Platform, the design thereof and the source code, including, without limitation, logos, trademarks, distinctive signs, graphic design, software or algorithms, belong to and are owned completely and exclusively by OrbitalAds or its licensors, and are protected by international intellectual property regulations and treaties.
The User can access and use the Service, the Website or the Platform as provided by OrbitalAds and permitted by these Conditions. Except when specifically, authorized for this purpose, the User may not reproduce, transform, distribute, make any derivative work, make available, communicate to third parties, extract, reutilize and/or use the Service, the Website or the Platform.
When the Service is contracted, OrbitalAds grants the User a personal, limited, revocable, non-exclusive and non-transferable license to use the Service (including the Platform subject thereof), in accordance with the terms provided in these Conditions.
For the provision of the Service it might be necessary that OrbitalAds perform certain software techniques such as web scraping in order to extract information from the websites designated by the User at any given moment, the User may also provide information which may be used by OrbitalAds in connection with the Services. Consequently, the User grants OrbitalAds, who accepts, a non-exclusive, free and worldwide license to access said information for the provision of the Service and to use, modify reproduce, distribute, prepare derivative works and perform such information as permitted through the functionality of the Services and under this Conditions. The User guarantees that it holds all rights required over the designated websites and the information provided for the performance of the Service and for the granting of the above license to OrbitalAds, and shall indemnify and hold harmless OrbitalAds against any third-party claim based on the performance of the use of such information, bearing any damages or losses (including legal costs) that might arise out of such claims. OrbitalAds does not allow performing activities through the Service that would infringe intellectual property rights. In this case, OrbitalAds reserves the right to suspend or eliminate the Administrator Account.
8.PERSONAL DATA PROCESSING ON BEHALF OF THE USER
Unless otherwise specifically agreed between the Parties, OrbitalAds shall not access to personal information of third parties, for which the User is the controller, nor process any personal data on behalf of the User. In case the specific services required by the User imply the processing of personal data, OrbitalAds and the User shall enter into a Data Processing Agreement under the requirements stated by applicable regulations according to the Privacy Polity [*].
The data provided through the Service shall be strictly confidential, and may therefore be used by OrbitalAds to perform of its obligations and/or the exercise of its rights herein or only to provide the Service unless otherwise provided herein, and will not be disclosed to third parties other than directors, employees, officers, professional representatives, advisers, sub-contractors and agents of OrbitalAds, which shall be subject to similar obligations of confidentiality.
The User acknowledges and accepts that it uses the Service at all times at its own risk and venture, and that OrbitalAds is therefore not responsible for any misuse or use of the Service in breach of or for any breach of these Conditions.
If you access the Service, you do so at your own risk and are responsible for the compliance with the laws of your jurisdiction.
THE SERVICE IS PROVIDED "AS IS" OR "AS AVAILABLE", AT YOUR OWN RISK, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, OR CONDITIONS OF ANY KIND. ORBITALADS MAKES NO, AND HEREBY DISCLAIMS, ALL WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, QUALITY, SATISFACTION, NON-INFRINGEMENT, LAWFULNESS, ABSENCE OF VIRUSES OR MALICIOUS CODES, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY OF PERFORMANCE OR USE OF TRADE.
To the fullest extent permitted by applicable regulations, OrbitalAds does not warrant and disclaims any liability from the availability and continuity of the Service, the Website or the Platform, their reliability, quality, correctness, security, integrity, lawfulness or fitness for a specific purpose or activity. No information, whether verbal or written, obtained from OrbitalAds or through the Service, the Website or the Platform will create any guarantee not expressly set out in these Conditions.
As a way of example and without limitation, OrbitalAds shall not be liable for any damages that might result from:
Use of devices incompatible with the Service, the Website or the Platform. Interruptions, bugs, viruses, faults, trojans horses or alike, technical problems, interferences, omissions, unavailability, power cuts, failures of the telecommunications networks or equipment of the User which are not OrbitalAds responsibility.
Delays or blockages in usage of the Service, the Website or the Platform due to deficiencies or traffic overload on the Internet, in the communication network or the electricity grid. Third parties actions.
Impossibility of accessing the Service, the Website or the Platform.
Any other event beyond OrbitalAds direct control.
OrbitalAds shall not be liable for any delay or breach of any obligation set forth in this contract provided that such delay or breach is the result of unforeseeable or foreseeable causes but inevitable, resulting from force majeure, including, without limitation, fire, accident, sequestration, governmental provision, blockade, etc.
ORBITALADS DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSABILITY FOR ANY SERVICE OFFERED BY THIRD PARTIES WITH REGARD TO THE SERVICE, AND ORBITALADS WILL NOT BE PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTIONS BETWEEN YOU AND THIRD-PARTY SERVICES PROVIDERS.
11. APPLICABLE LAW AND JURISDICTION
These Conditions shall be governed and interpreted in accordance with the laws of the Kingdom of Spain. The User and OrbitalAds agree to submit to the jurisdiction of the city Madrid.