1.1 Scope of Application
The general terms and conditions (hereinafter “General Terms and Conditions”) apply to all offers, propositions, orders and services agreements signed between AFFIPERF and an Advertiser eventually represented by a Media Agency (both hereinafter « the Client »). The General Terms and Conditions determine the execution by AFFIPERF of the insertion and the broadcasting of Advertiser’s ads on websites that are referenced by AFFIPERF as a network member (hereinafter «Media»).
The signing of services agreement (hereinafter “Services Agreement”), pursuant to the conditions defined in the article 2.1 below, implies the Client’s acceptance of the herein General Terms and Conditions which prevail over (i) all other previous general terms and conditions and (ii) all Client’s general terms and conditions or other documents from the Client which are not previously accepted by AFFIPERF. Any tolerance about the application of the General Terms and Conditions could not be interpreted as a waiver by AFFIPERF.
Article 2. Agreement
2.1 Setting of a Services Agreement
Each Services Agreement is materialized by an «advertising order» (hereinafter «ads order») which determines the dates and the duration of the broadcasting of the Client’s ads on the Media, the name of the campaign, the category of the chosen Media, the technical specifications of advertisement, the particular conditions of the ads broadcasting (capping, schedule of broadcasting, …), the unit price of services (Cost per milli CPM Cost per click CPC, cost per acquisition CPA, …) and the global price which is determined by reference with volumes estimations and with broadcasting targets. The Services Agreement is concluded as from the signing date of the ads order by the Client. This ads order, issued by AFFIPERF, constitutes the agreement between the parties on the AFFIPERF commercial proposal and the signature of the ads order implies the acceptance of the hereby General Terms and Conditions.
Ads order issued by AFFIPERF is valid during a maximum period of 10 business days following the issue date. The Client will have to return the signed ads order with the seal and the mention «good for agreement», if necessary with the signed certificate of mandate (for media spaces buying in France only), within a period of 5 business days before the uploading.
The ads order returned by the Client has to comply strictly with the ads order set up by AFFIPERF. If not, the Services Agreement will not be concluded and AFFIPERF will not be binding by the ads order modified by the Client, AFFIPERF will not be binding by its oral or written commercial proposal before the signing of the ads order.
The Services Agreement is governed by the herein General Terms and Conditions for the general conditions of the execution of the services, and by the ads order for their particular conditions.
The ads order and the herein General Terms and Conditions have to be considered as additional and explanatory of each other. Nevertheless, in case of conflicts of interpretation between these documents, the ads order prevails upon the General Terms and Conditions only for the ads order dispositions modifying the General Terms and Conditions.
Article 3. Ads uploading
3.1 Date of uploading
The ads uploading which underlines the first day of the broadcasting, will be carried out at the date indicated on the ads order subject to: (i) the return of the signed ads order by the Client, and if necessary with the signed certificate of mandate (for media spaces buying in France only), within the period defined in the article 2.1 above; (ii) all materials, files, documents, and supports related to the ads and all these documents have to comply with the technical specifications defined in the ads order and in the technical specifications guide sent by AFFIPERF to the Client; and (iii) delivery to AFFIPERF of the materials listed under point (ii) above at least 3 business days before the ad uploading.
Except for commitment in writing specified in the ads order and accepted by AFFIPERF, AFFIPERF could not guarantee the hour of ads uploading.
Any delay in the communication of the materials, files, documents, supports related to the ads or in the communication of the signed ads order could delay or cancel the ads uploading. In this case the AFFIPERF’s liability could not be engaged.
In case of delay, the old order is replaced at any effect by a new ads order indicating the new date of ads uploading and to be returned signed by the Client.
3.2 Supports of broadcasting
The broadcasting is carried out in accordance to the targeting of the campaign, the criteria and options defined by the Client, the available stocklists. Unless particular option, the broadcasting is dedicated to Internet users on the territories defined in the ads order. The Client does not benefit of exclusivity for the Media. AFFIPERF and the Media remain free to allow the broadcasting of any other advertiser, at any time and simultaneously to the broadcasting of the Client’s ads.
The ads will be broadcasted on all category(ies) of supports and Media indicated in the ads order. The broadcasting which is handled by an Ad Server, is «anonymous» insofar as the supports cannot be identified and selected before the ads broadcasting or during the execution of the Services Agreement.
Nevertheless, the Client could exclude some Media from the broadcasting stocklist. For this purpose, the Client has to provide to AFFIPERF the corresponding websites addresses. The excluded websites will be indicated in the ads order.
By no means, AFFIPERF is liable for the ads broadcasting on a non-proper website (i.e. websites which broadcasts illegal contents, pornographic, against good moral standards …)
3.3 Compliance of the ads with the technical specifications
The Client guarantees to AFFIPERF that the materials, files, documents, supports related to the ads correspond to the specifications defined in the ads order and in the technical specifications guide, as much for its features (banners, skyscrapers, streaming video, logo,…) as for the size, the weight, the format, and the technical specifications of these materials, files, documents or supports which are compatible with all available Internet browser and type of internet connection during the execution of the Services Agreement.
Therefore, the Client will sustain the expenses by AFFIPERF in the event that the materials, files, documents or supports do not comply with the specifications defined in the ads order and in the technical specifications guide, provided that such expenses are approved in advance by the Client. AFFIPERF could not be liable in the event of the ads broadcasting is impossible, provided that: (i) the Client has been duly informed in advance (and in any case no later than 24 hours in advance of the broadcasting); (ii) the technical issues are not referable, exclusively or even partially to AFFIPERF.
Likewise, the Client guarantees AFFIPERF that the materials, files, documents, supports related to the ads are be transmitted pursuant the best practices and without virus, bugs, or all other systems likely to be prejudicial to AFFIPERF.
3.4 Compliance of advertising with the applicable regulations
The Client guarantees the compliance of the ads with the laws and regulations (related to in particular the misleading advertising, the comparative advertisement, the ads of regulated products, protection of personal data, etc.), standards, use or recommendations which could be applicable to its ads and to the ads broadcasting on the defined category (ies) of Media.
The Client warrants that the website(s) to which the ads refers to (context link notably) comply with all applicable regulations, standards, use or recommendations and this (these) website(s) does (do) not broadcast libelous, disorderly or racist contents, or contents likely to harm the image or the reputation of AFFIPERF or the Media.
The Client guarantees AFFIPERF, its directors, officers, employees from and against any claims, losses, liabilities, expenses, damages incurred by AFFIPERF arising out of a third party claim relating to the Client’s infringement of any regulations applicable to the advertising matter.
Consequently the Client agrees to indemnify, defend, and hold harmless AFFIPERF, its affiliates, and their respective officers, directors, and employees from and against any and all losses, costs, damages or liabilities, including legal fees, costs, and expenses, arising out of or related to the third party claim.
Article 4. INTELLECTUAL PROPERTY RIGHTS – RIGHTS OF THE PERSONNALITY
The entering into the Services Agreement implies automatically the authorization to AFFIPERF to represent, reproduce and adapt the ads, all creations protected by intellectual property rights, and this only for the needs of ads broadcasting on the category(ies) of Media pursuant to the herein General terms and Conditions.
The Client guarantees and represents that it holds (i) all the intellectual property rights to the representation and/or reproduction and/or adaptation of the ads, (ii) all the authorizations needed to carry out the ads broadcasting on the category(ies) of Media. The Client notably guarantees and represents that its advertisement and/or its broadcasting does not constitute an infringement to the third party‘s right of personality or to the third party’s intellectual property rights (image, privacy, trademarks, industrial designs, etc).
The Client shall indemnify and defend AFFIPERF, its agents, affiliates, directors, officers, and employees from and against any claims, losses, liabilities, expenses, damages incurred by AFFIPERF arising out of a third party claim relating to the Client’s infringement of third party’s intellectual property rights, right of the personality or unfair competition, related to the Client’s ads and/or all ads materials, files, documents, and supports.
Article 5. REJECTION OF BROADCASTING, WITHDRAWAL OF ADVERTISING, ADJOURNMENT OF ADVERTISING, TERMINATION OF THE SERVICES AGREEMENT
5.1 Rejection of broadcasting, withdrawal, adjournment of advertising or termination of the agreement by AFFIPERF
AFFIPERF reserves the right to (i) refuse, as from the receipt of the materials, files, documents, supports related to the ads, to carry out the Client’s ads broadcasting on the media, and/or (ii) at any time and without prior notice, to withdraw the advertising and/or the adjournment of the broadcasting, if AFFIPERF, at its own initiative or after a third party claim, can be considered liable because of the Client’s advertising, and notably in the event of infringement or of risk of infringement of third party’s intellectual property rights or non compliance of the Client ’s ads with the applicable regulations, and/or (iii) AFFIPERF could, by right and without prior notice and compensation, cancel the order or terminate the Services Agreement in every case of rejection of the ads broadcasting and/or withdrawal and/or adjournment of ads defined in the article 5.1 above, and in the event of delay in the transmission of materials, files, documents and supports defined pursuant to the dispositions in the article 3.1 above.
The cancellation of the order or the termination of the Services Agreement, pursuant to the above dispositions, could lead that AFFIPERF keeps all the sums already paid by the Client in the agreement and/or the invoicing of global prices of the services as it is specified in the ads order (the price is determined with reference to volumes estimations and broadcasting targets), and without prejudice to damages which could be claimed in addition.
The Client renounces in advance to take a legal action against AFFIPERF, to claim a compensation, because of rejection from AFFIPERF to broadcast the advertisement, or the withdrawal of Client’s ads, or an adjournment of broadcasting, the Client or the Agency agrees that AFFIPERF have not the skills to assess the validity of third party claim and that as a precaution, AFFIPERF could be obliged to withdrawal the disputed broadcasting in its own interest or in the Client interest.
AFFIPERF reserves the right to refuse, as from the receipt of materials, files, documents, supports related to the Client’s ads, to carry out the broadcasting on the Media, if these elements do not comply with the technical specifications described in the ads order and in the technical specifications guide.
5.2 Modification of the Services Agreement, order cancellation and termination of the Services Agreement by the Client
As from the date of acceptance, the Client cannot modify the specifications of its ads order, without the AFFIPERF’s prior approval. The AFFIPERF’s approval could give rise to the setting up of a new ads order superseding the initial order.
The Client could at any time cancel its ads order before the uploading and/or terminate the agreement after the uploading of the ads, without charges or penalties, subject to informing AFFIPERF in writing at least 24 hours before the uploading (for a cancellation of an order) or at least 24 hours before the date of termination of the Services Agreement (for withdrawal in advance of the uploaded ads).
The termination of the Services Agreement and the withdrawal of the broadcasting are effective, sooner 24 hours after the receipt of the fax or email notifying AFFIPERF about the decision of the Client or at a later date according to the Client’s instruction.
The price of the fulfilled services could be modified and will be defined pursuant to the article 7 below and will be payable pursuant to the article 8 below. The principle of quantitative rebates could be questioned by AFFIPERF owing to the modification of Services Agreement, order cancellation or termination of the Services Agreement by the Client.
Article 6. REPORT OF FULFILLMENT – ACCESS TO THE RESERVED SPACE
The statistics about the number of views which contained the ads (CPM) and/or the number of click (CPC) and/or the number of acquisition (CPA) and all other parameters concerning the broadcasting services are recorded on a secured server.
A balance sheet and a monitoring of the campaign will be delivered at the end of the broadcasting of the campaign.
Article 7. PRICE
The unit prices are determined on the services rate in force, to which eventually applied any discount in accordance to a quantitative or qualitative scale, and/or increase in accordance with the targeting options selected for the broadcasting with the aim of improve the performance.
The price of ads broadcasting services will set up on the basis (i) of the unit price(s) accepted by the Client; (ii) of the potential discounts applicable; and (iii) the reached volumes and broadcasting targets which are defined in reference to the number of viewed pages and which contained the advertisement (CPM), and/or number of click (CPC), and/or the number of acquisition (buying products, order in a catalog, subscription to a newsletter, (CPA) and/or all other parameter of the ads broadcasting services which are indicated in the ads order, as they are counted and recorded on the AFFIPERF server.
Only the statistics recorded on this server to evaluate the reached volumes and the broadcasting targets are considered as authentic to determine the price of services, except the statistics recorded by all other server.
The price is excluded VAT and all other taxes which could be applicable, the taxes are assumed by the Client.
AFFIPERF reserves the rights to modify at any time the price of services, its discounts or increase schedule, these modifications will be communicate at the first Client’s request.
These modifications will apply to all new agreements concluded subsequently to the communication of the new conditions to the Client.
Article 8. PAYMENT
8.1 General dispositions
The invoices will be set up for the attention of the Client at the end of each campaign, or if the campaign lasts few months, the invoices will be set up each beginning of the next month of ads broadcasting, for the amount defined pursuant to the article 7 above.
The invoices are payable by the Client in Euros, by check or by bank transfer, within 30 days date of invoicing.
AFFIPERF reserves rights to require a pre-payment before the execution of services, and from the receipt of the ads order returned signed by the Client or the Agency.
The Client remains responsible for the payment of AFFIPERF invoicing. Any defaulting on payment of an invoice shall involve the adjournment of the Services Agreement (adjournment of the ads broadcasting).
Constitute a defaulting on payment the deduction made unilaterally by the Client on the invoiced amount and all off-setting of sums, non authorized in writing by AFFIPERF.
AFFIPERF could, at its own convenience, consider as payable all sums due by the Client or concerning the fulfilled services. In addition, and without prejudice of all other AFFIPERF rights, penalties for late payment will be applicable. These penalties are due for payment the day after the date of payment indicated on the invoicing. AFFIPERF shall invoice late payment interest at the interest rate applied by the European Central Bank's last refinancing operation increased by 10 percentage points this rate shall be not less than 3 times the legal interest rate. Pursuant to the article L441-6 du code de commerce, in case of late payment, the Client is debtor by law, of a compensation equal to 40 €. When the collection charges are higher than 40 €, AFFIPERF could claim an extra compensation, against receipt.
8.2 Specific Dispositions for the media space buying in France
This article is only applicable to the media spaces buying carried out in France.
The media spaces’ buying in France is governed by the law 93-122 dated January 29, 1993 named “Loi Sapin”. Pursuant to this law, in the event the media spaces buying is carried out in France by a Media Agency (hereinafter “the Agent”) for the benefit and interest of the Advertiser, the Media Agency acts as an Agent on behalf of the Advertiser.
In this capacity, the Media Agency has to provide AFFIPERF a valid Certificate of mandate duly signed by the represented Advertiser.
The Agent commits itself to use the services only in the limit of its mandate gives by the represented Advertiser(s) and to respect the dispositions of the law 93-122 dated January 29, 1993 “Loi Sapin”. To that end, the Agent acts in a transparent way and has to indicate to AFFIPERF the name and the invoicing address of the Advertiser in order to AFFIPERF settles the invoices for the attention of the Advertiser.
By accepting the Services Agreement defined in the article 2.1 below, the Agent vouches for the respect of the dispositions herein by the Client(s). The Agent warrants that all its acts on behalf of the Advertiser will comply with the dispositions herein.
The invoices will set up for the attention of the Client and mention the Agent which is mandated for the payment. The original copy of the invoices will be sent to the Client and a copy to the Agent.
The invoices are payable by the Client or the Agent, in the event of mandate of payment, in Euros, within 30 days from the date of invoices, without discounts for a cash payment.
With the exception of the specific dispositions defined in the herein article, the general dispositions defined in the article 8.1, will also apply to the media spaces buying in France.
Article 9. WARRANTY– RESPONSABILITY
9.1.1 Affiperf warranties
AFFIPERF warrants the execution of the agreement pursuant to the conditions defined in the ads order and the herein General Terms and Conditions.
AFFIPERF does not warranty the reach of volumes and the broadcasting targets, such as they are estimated in the ads order, AFFIPERF is bound to a best effort obligation.
AFFIPERF cannot also warranty that the ads will broadcast on Media without interruption, and could not be responsible for failures, errors, computer virus which can prevent a permanent access to the media during the services agreement.
AFFIPERF warrants to comply with all relevant law and regulations applicable to the supply of the services and to properly perform its contractual obligations. AFFIPERF could exclude, on the Client’s request, one or more websites from the broadcasting stocklist. However, the nature of Internet prevents AFFIPERF to guarantee that the Client’s ads may not be broadcasted on a non-appropriate website. AFFIPERF shall make its best commercial efforts to prevent the broadcasting of the Client’s ads on illegal web sites or on those properties specifically excluded by the Client and communicated in writing to AFFIPERF, in this regard AFFIPERF has no performance obligation. As soon as AFFIPERF becomes aware of such broadcasting, AFFIPERF commits itself to demand to website(s) to remove the Client’s ads from those websites.
AFFIPERF shall indemnify and defend the Client, its agents, affiliates, directors, officers, and employees from and against any claims, losses, liabilities, expenses, damages incurred by the Client arising out of any breach thereof.
9.1.2 Client’s warranties
The Client will indemnify and defend AFFIPERF, its agents, affiliates, directors, officers, employees and Media (hereinafter “AFFIPERF Indemnified Persons”) from and against any claims, losses, liabilities, expenses, damages and settlement amounts (including legal fees and costs) incurred by any AFFIPERF Indemnified Person(s) arising out of any third party claim relating to arising from:
AFFIPERF will: (i) promptly notifies the Client of any claim; (ii) provide the Client with reasonable information and cooperation in defending claim; and (iii) give the Client full control and sole authority over the defense and settlement of such claim. The AFFIPERF Indemnified Persons may join the defense with counsel of its choice at its or their own expense.
9.2 Limitation of liability
The liability of AFFIPERF is limited in any case to the direct damages of the Client at the incidence date of the damages, and whatever the grounds of the liability, whether liability result from the French law or foreign law.
AFFIPERF will not be liable for indirect damages and notably the potential operating loss, clients loss, branding damages, loss of income, unreachable turnover because of a lack in the ads in the execution of services and in particular because of a lack broadcasting for whatever reasons.
To record and process the Client’s order and/or answer to an information request, AFFIPERF could lead to collect personal data.
The concerned people have the right of access, modification, opposition and deletion of their data pursuant to the law of January 6, 1978 modified by the law of August 6, 2004 related to the protection of the person regarding the treatment of their personal data.
Article 11. MISCELLANEOUS
AFFIPERF shall not be responsible and the Client cannot claim any compensation, for the non-performance of the agreement due to a case of force majeure. The force majeure is defined as all event independent of the will or out of control of AFFIPERF and notably the event likely to prevent or delay the ads broadcasting of the Media or the Client’s access to its reserved space such as notably the failure, errors, computer virus which could be stand in the way of the unbroken access to the Media websites or to the reserved space of the Client.
If any provision of the General Terms and Conditions is construed to be invalid or unenforceable, then the remaining provisions shall not be affected thereby. AFFIPERF and the Clients commit themselves to replace the invalid clause by another clause with similar economic effects.
Each Services Agreement is concluded in consideration of the person of the Client, and could not be transferable, yield, delegate and/or subcontract all of part of this agreement to a third party, without AFFIPERF’s prior notice.
AFFIPERF could freely transfer, yield, delegate and-or subcontract all of part of its obligations.
The herein General Terms and Conditions and the services agreements related to, are governed by the French law. Any controversy or claim arising out of or relating to this General Terms and Conditions or the services agreement including, without limitation, the interpretation of the breach thereof, shall remedy in Court of Nanterre, France.
In case of contradiction of the English and the French version, the French dispositions prevail on the English one.