Terms & Conditions
Last Updated: 15.12.2023
THE PARTIES ARE:
Commerce Media Tech sp. z o.o., with a registered office at ul. Lubicz 17G, 31-503 Kraków, Poland incorporated under the laws of Poland and registered in the companies register of the National Court Register held by District Court Krakow – Srodmiescie in Cracow XI Commercial Division (Sąd Rejonowy dla Krakowa – Śródmieścia w Krakowie XI Wydział Gospodarczy) under (KRS) no. 0000830352, having EU VAT ID: PL5272922087 and the share capital in the amount of 5 000 PLN
further referred to as: “NewProgrammatic”
the purchaser of the Advertising space and time on the Internet for advertising purposes via NewProgrammatic Platform.
Please notify that these Terms and Conditions do not govern the relationship between NewProgrammatic and the Publishers – the website owners or operators interested in providing Advertising Space on the Internet for advertising purposes. Such relation shall be subject to a separate agreement (https://newprogrammatic.com/publisher-terms-and-conditions/) .
2.1. Definitions. As used herein, the following capitalized terms shall have the meanings provided as follows:
- “Account” an account created by the Advertiser after correctly filling in the registration form and accepting the Terms and Conditions.
- “Advertiser” or “You” means the entity that created the Account in the NewProgrammatic Platform, accepted the conditions stated in the Terms and Conditions, and therefore is bound by them.
- “Advertiser’s Campaign” or “Campaign” means a type of operation by which the Advertiser bids in order to purchase the Advertising space and time on the Internet for advertising purposes within Traffic sources; campaign has its settings such as name, daily and total budget, geo-targeting, bid average price and Destination URL.
- “Advertising space” means advertising space with specific parameters, in the range defined by the publisher, mainly search.
- “Agreement” means the agreement on the basis of which the Advertiser is entitled to use NewProgrammatic’s Services according to these Terms and Conditions.
- “Destination URL” is the URL address of the page where End Users are redirected.
- “Effective date” is the date the Advertiser registers as a NewProgrammatic Platform user and accepts the conditions stated in the Terms and Conditions.
- “End User”means a bona fide living human Internet user. An “End User” excludes invalid traffic (IVT) as defined in Interactive Advertising Bureau (IAB) IVT guidelines available at: https://www.iab.com/guidelines/mrc-invalid-traffic-ivt-detection-and-filtration-guidelines-addendum/ (especially non-human traffic – spiders, bots, etc., or activity designed to produce fraudulent traffic).
- “Invalid visits” may include visits (i) generated by automated crawlers, robots or click generating scripts providing traffic which has no intent to sign-up, purchase or otherwise act upon a product or service offering; (ii) multiple visits on the same redirect URL; (iii) that NewProgrammatic Platform receives and rejects for a valid business purpose; (iv) or visits containing mismatches to the original XML feed call, which prompted a bid response from NewProgrammatic Platform.
- “Publisher” is the website owner or operator interested in providing Advertising space on the Internet for advertising purposes.
- “Real-time bidding (RTB)” is a model of automated real-time purchase of advertising space in an auction model. When the End User visits a Traffic source that participates in the auction, the system bids on the ad space available on the Traffic Source, with the aim of showing an ad to the End User.
- “Services” or “NewProgrammatic’s Services” mean selling of the Advertising space and time on the Internet for advertising purposes (PKWiU – Polish Classification of Products and Services 220.127.116.11) via the NewProgrammatic Platform.
- “Term” means duration of the Terms and Conditions from the Effective Date until its termination.
- “Terms and Conditions” are the conditions stated herein.
- “Traffic sources” include, but are not limited to, websites, domains, toolbars, browser extensions, apps, etc.
- “NewProgrammatic Platform” is a platform operated by NewProgrammatic available at: www.newprogrammatic.com.
3. NEWPROGRAMMATIC’S SERVICES
3.1. Effective Date. These Terms and Conditions are effective as of the date the Advertiser registers as a NewProgrammatic Platform user and accepts the conditions stated herein. The Agreement is concluded between the parties at the same time. After the aforementioned actions of the Advertiser, the Account is created by NewProgrammatic. This means that by participating in or using the Services or features of NewProgrammatic Platform, you are agreeing to be bound by the Terms and Conditions. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the NewProgrammatic’ Services shall be subject to and shall abide by these Terms and Conditions.
3.2. Duration. The Agreement is concluded for an indefinite period of time. The parties can terminate the Agreement at any time in writing or by email by providing the other with a 14 (fourteen) days advance notice. If due to the change of the Terms and Conditions, its provisions come into force during the notice period, the previous content of the Terms and Conditions shall prevail with respect to the parties’ relations.
3.3. Termination of the Agreement with immediate effect. NewProgrammatic is entitled to suspend or ban the Advertiser’s access to NewProgrammatic Platform for any time according to its discretion regarding the breach of the Agreement or breach of any of legal relationships with NewProgrammatic, especially for the following reasons: (i) the Advertiser breaches the Terms and Conditions or terms regarding other services provided by NewProgrammatic on the basis of separate agreements or there is a suspicion of such breach, (ii) the Advertiser conducts activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations or there is a suspicion of such activities, (iii) in case of delay in payment to NewProgrammatic for the Servicesor any other services provided by NewProgrammatic on the basis of separate agreements, (iv) in case of negative verification of the Account according to point 3.5.9. If aforementioned suspicions were refuted, NewProgrammatic shall restore the Advertiser’s access to the Account. Otherwise NewProgrammatic is also entitled to terminate the Agreement at any time, without advance notice. Regardless of the circumstances, such suspension, banning or termination by NewProgrammatic shall not give rise to liability. The deposited funds from a banned Account shall not be refunded and are accounted for as revenues of NewProgrammatic in the ledger books. In exceptional cases, NewProgrammatic may, however, decide to refund that funds at its sole discretion.
3.4. Services. NewProgrammatic allows the Advertiser to purchase the Advertising space and time on the Internet for advertising purposes in Traffic sources by Real-time bidding (RTB). To use NewProgrammatic Platform an internet connection and a web browser with Java support is required.
3.5. Account Access. NewProgrammatic grants to the Advertiser a non-exclusive, non-assignable, and non-transferable right during the Term to use NewProgrammatic Platform in order to use NewProgrammatic’s Services in accordance with all of the conditions set forth herein. To use the Services provided by NewProgrammatic, the Advertiser shall log into the Account in NewProgrammatic Platform using its email address and password. The Advertiser’s email address shall be the one set up on the Advertiser’s website domain name. Otherwise the person registering as the Advertiser shall prove on NewProgrammatic’s request that she/he is entitled to act on behalf of and for the Advertiser (especially by sending a written authorization). NewProgrammatic can demand such proof at any time. You shall use NewProgrammatic’s Services only through your Account. The Account inactive for a period of more than 6 months (no logins during this time by the Advertiser) shall get the suspended status which involves the need to apply for its activation by the Advertiser.
3.5.1. Before the Account is created, in the registration form the Advertiser is obliged to state its company/business name (including the Advertiser’s legal form), an address of the registered office or business address, TAX/VAT ID, a first and last name of the person authorized to register an account on behalf of and for the Advertiser, as well as contact data of the Advertiser. The Advertiser shall provide true, accurate and current information and shall maintain all account information, ensuring it is true, accurate and up-to-date. Aforementioned data shall be consistent with VIES database (if applicable). The Advertiser is not allowed to enter the data of another entity without NewProgrammatic’s consent – even if it does so, that does not mean a transfer of the Account’s ownership to this entity. In case of any change of that data as well as any other data provided by the Advertiser (including email address), the Advertiser is obligated to provide NewProgrammatic with accurate data as well as to send NewProgrammatic a documentation that proves such changes. Additionally, each Advertiser must have a bank account.
3.5.2. When an individual, the Advertiser represents and warrants that: he/she is at least 18 years old, has full capacity to perform acts in law and is an individual running a business (i.e. the Advertiser is not a consumer).
3.5.3. When a person signing up to the NewProgrammatic 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. In case of doubt, NewProgrammatic is entitled to demand proofs confirming that the person is entitled to act on behalf of and for the Advertiser.
3.5.4. As a general rule, the Advertiser can have only one Account at the same time unless otherwise agreed by NewProgrammatic. The owner of the Account is the Advertiser that data has been provided according to the point 3.5.1. of these Terms and Conditions and indicated on the invoices issued by NewProgrammatic. The Advertiser must not open a new account if there is any outstanding balance for NewProgrammatic Platform use. If it does, however, it authorizes NewProgrammatic to charge the amount due to a previous Account from the Advertiser’s credit card connected with the new Account. NewProgrammatic is obliged to start provision of the Services only if all due amounts are paid by the Advertiser.
3.5.5. If the person acting on behalf of one Advertiser, opens the new Account on behalf of another Advertiser, NewProgrammatic can refuse to provide Services for that other Advertiser at its sole discretion. The second Advertiser shall have no claims against NewProgrammatic related to refusal to provide Services.
3.5.6. Any Advertiser is obliged to use its business credit cards with regard to chosen payment method. If the Advertiser chooses the consumer card instead of business credit card, it undertakes to repay NewProgrammatic all costs, expenses or lost benefits connected with payments made by a consumer card as well as it waives its right to claim damages, especially in the amount of commission paid in the higher amount that stated in the relevant law provisions. The Advertiser also authorizes NewProgrammatic to charge relevant amounts from its credit card.
3.5.7. The Advertiser shall not permit any third party to use or gain access to NewProgrammatic Platform and shall use reasonable security measures to protect against unauthorized usage and/or access. The Advertiser is responsible for selecting and continuously managing its password and security settings to protect the Advertiser’s Account and this Account’s settings (including the Advertiser’s contact and payment information) from unauthorized changes. The Advertiser is entirely responsible for maintaining the confidentiality and secrecy of the Advertiser’s password and the Account’s security settings, as well as the Advertiser’s other information. All consequences of the Advertiser’s voluntary disclosure of password and account information, as well as all activities that occur in the Advertiser’s Account are the Advertiser’s responsibility. The Advertiser agrees to notify NewProgrammatic immediately of any unauthorized use of the Advertiser’s Account or any other breach of security.
3.5.8. The Advertiser agrees that it shall be responsible for all activities that arises from the Advertiser’s activities on its Account, whether initiated by the Advertiser or other person on the Advertiser’s behalf and NewProgrammatic shall be entitled to rely on any requests which have been initiated from the Advertiser’s Account. NewProgrammatic disclaims any liability for any activity in the Advertiser’s Account, whether initiated or authorized by the Advertiser or not, unless it is NewProgrammatic’s intentional fault. Subject to NewProgrammatic’s intentional fault, the Advertiser is solely responsible for use of NewProgrammatic Platform by its employees or any unauthorized person.
3.5.9. Every new Account created in the NewProgrammatic Platform system is manually approved or denied by one of NewProgrammatic’s employees. The Advertiser acknowledges and agrees that all its Campaigns shall be subject to review by NewProgrammatic’s employees. NewProgrammatic reserves the right to accept or reject the Advertiser’s Campaign at any time based on a violation of the Terms and Conditions or any applicable law, ordinance, rule, regulation or treaty. Accounts and the Advertiser ‘s Campaigns will be verified within 72 hours. Requests submitted during public holidays will be considered as submitted on the following working day.
3.5.10. The Advertiser is entitled to access the Account by means (e.g. via API) provided by NewProgrammatic. The Advertiser shall not attempt to gain unauthorized access to accounts registered to other users, or any servers, systems or networks connected to NewProgrammatic Platform or NewProgrammatic’s website as well as it shall not attempt to obstruct, disrupt or interfere with the operation of NewProgrammatic Platform or other services provided by NewProgrammatic.
3.6. Support. NewProgrammatic shall not be obligated to provide the Advertiser with any support, but may elect to do so at its sole discretion. In the event, technical support shall be delivered in English and refers to the working days Monday through Friday, from 9:00 to 17:00, Eastern European Time. Detailed information on technical support is posted on NewProgrammatic Platform.
4.1. Payments. Payments are based on purchased Advertising space and time on the Internet for advertising purposes by the Advertiser in its Campaigns as reported by NewProgrammatic. The Advertiser indicates the maximum price that it is willing to pay for a bid (bid maximum price in the Campaign), however bids can be bought at the lower or higher price that the one indicated by the Advertiser subject that bid average price in the Campaign does not exceed that maximum price. The parties may also agree on non-standard conditions of purchasing Advertising space and time on the Internet for advertising purposes followed by separately agreed prices. All costs related to payments, depositing funds or refunds shall be borne by the Advertiser.
4.2. Deposit.The Advertiser prior to purchasing the Advertising space and time on the Internet for advertising purposes must deposit funds to its Account on NewProgrammatic Platform. The minimum initial deposit amount (understood as a first payment of funds by the Advertiser on its Account in order to pay for NewProgrammatic’s Services) is 200 USD (two hundred United States Dollars). Top up amount above the minimum threshold is solely a decision of the Advertiser. Deposited funds are ring fenced within the Advertiser’s Account. Deposited funds can be used only for purchasing the Advertising space and time on the Internet for advertising purposes via different types of Campaigns available in NewProgrammatic Platform. The Advertiser acknowledges and agrees that different funds deposit options – such as Bank Wire, or PayPal – may hold additional costs of transactions which are subjected to change without explicit notice from NewProgrammatic. However information on additional costs of transactions is always displayed on NewProgrammatic Platform’s payment screen.
4.3. Credit limit. The Advertiser may request to obtain a credit limit and can be granted the one, based on the individual decision of NewProgrammatic. NewProgrammatic reserves the right to cancel the credit limit in its absolute and sole discretion at any time.
4.4. Strong Customer Authentication. 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.
4.4.1. 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 Advertiser to make a payment.
4.5. Payment Currency. The Advertiser can make payments under the Terms and Conditions in all currencies indicated in the Account by NewProgrammatic at the moment of settlements between parties. However if the Advertiser chooses to pay for NewProgrammatic’s Services in a currency other than USD by selecting such currency from available options in the NewProgrammatic Platform, NewProgrammatic shall convert the amounts paid in that selected currency into USD using the rate indicated in payment gateway used for payment at the time of that payment.
4.6. Reporting. Unless agreed to otherwise by the parties, the amount to be paid by the Advertiser to NewProgrammatic shall be determined by NewProgrammatic’s reports and indicated in the Advertiser’s Account. Payments shall not be made for purchases deemed invalid by NewProgrammatic’s internal filtering system (Invalid visits). The statistics are fully available to the Advertiser via the Account.
4.7. Payment Disputes. The Advertiser understands and agrees to address any questions it may have concerning any payments under these Terms and Conditions within thirty (30) days of the date of receipt of the relevant invoice issued by NewProgrammatic, in writing or by email to [email protected]. Failure to notify NewProgrammatic within such period will constitute an acceptance of, and agreement with, the applicable payment.
4.8. Refunds. The minimum initial deposit is nonrefundable, subject to point 4.8.3. or the situation in which the Campaign has not been approved by NewProgrammatic.
4.8.1. On an ongoing basisNewProgrammatic refunds the Advertiser the payment made for purchases deemed invalid by NewProgrammatic’s internal filtering system. The Advertiser can be entitled to a refund for any invalid purchases (Invalid visits) purchased. NewProgrammatic may request additional evidence from the Advertiser to prove that the purchases constituted Invalid visits under the terms of the above definition. The refunded amounts shall be ring fenced only into the Advertiser’s Account (i.e. in the form of deposit) and not into bank account or any other Advertiser’s account. Notwithstanding, in an event that discrepancies between the Advertiser and NewProgrammatic’s statistics exceed 10%, the Advertiser and NewProgrammatic agree to work together in good faith with the aim of reducing the discrepancies to below the 10% threshold.
4.8.2. Subject to point 4.8.3., during the Term of the Agreement or in the event of any termination of the Agreement, the Advertiser may be entitled only to a refund of remaining funds deposited in the Advertiser’s Account above the amount of minimum initial deposit (if the one has not been completely used). Bonuses or any form of credit granted by NewProgrammatic are not subject to refund.
4.8.3. Any Advertiser’s Account that remains inactive for a period of more than 6 months is to be suspended. Reactivation of inactive Accounts shall require additional verification as per instructions available in the Advertiser’s panel. The remaining funds deposited on the Account are automatically deducted by NewProgrammatic for keeping the Account active during the aforementioned period and accounted for as revenues of NewProgrammatic in the ledger books. If the Advertiser asks for reactivation of the Account, the funds may be reinstated as a “bonus” in the amount equal to the remaining funds deposited on the Account before its deactivation (in exceptional situations if requested). That bonus shall be ring fenced only into the Advertiser’s Account (i.e. in the form of deposit) and not into bank account or any other Advertiser’s account.
4.8.4. In accordance with the Terms and Conditions, the Advertiser may ask for a refund of the remaining funds deposited on the Account by contacting [email protected].
4.9. Taxes and Withholding.TheAdvertiser understands and agrees that taxes with respect to commissions or any other payments made to NewProgrammatic hereunder will not be withheld or paid directly or indirectly by NewProgrammatic unless NewProgrammatic determines in its sole discretion that NewProgrammatic or its affiliates may be liable for any such taxes, in which case it shall withhold the estimated amount and notify the Advertiser of such withholding. The Advertiser understands and agrees that it is the Advertiser’s responsibility to pay all applicable local, state, federal, and/or foreign taxes on commissions and other expenses to NewProgrammatic pursuant to these Terms and Conditions. The Advertiser agrees to promptly reimburse and indemnify NewProgrammatic from any claim or assessment of taxes by any foreign, United States, State of Poland, state, and/or local taxing authority, and any other costs and damages, arising from or in connection with the operations stated in the Terms and Conditions.
5. RESTRICTIONS AND RIGHTS
5.1. Effects of the Services. NewProgrammatic guarantees to sell the Advertising and time on the Internet for advertising purposes (in the form of clicks, impressions, or redirects) according to the settings of the Advertiser’s Campaign. However NewProgrammatic does not guarantee conversion as an effect of the Advertiser’s Campaign (e.g., sales or sign-ups) and shall not issue a refund if none are achieved. It means that NewProgrammatic does not guarantee any sales and shall not be held responsible if sales are not generated.
5.2. Destination URL. In the event that the Destination URL becomes unavailable for any reason (e.g., server hosting the provided URL is down or unavailable, timed out, or shows to be active but with internal server errors, 404 errors and other types of common or uncommon errors associated with the Internet, Destination URL, the Advertiser’s network, and/or its underlying infrastructure), the Advertiser shall not hold NewProgrammatic or its partner sites responsible for these errors. NewProgrammatic shall not be held responsible for factors beyond its control that may interfere with its ability to deliver End Users to the Destination URL. Such factors include, but are not limited to, downtime on the Advertiser’s server, overuse of the Advertiser’s bandwidth quota (if applicable), errors on the Destination URL, pop-up killers, and/or network outages beyond NewProgrammatic’s server. Any such purchases concerning End Users not delivered to the Destination URL during these aforementioned circumstances shall not be refunded.
5.3. Prohibited activities. The Advertiser shall not obtain or attempt to obtain: (A) any information from NewProgrammatic 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 the NewProgrammatic Platform, NewProgrammatic’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 the NewProgrammatic Platform or NewProgrammatic’s website or servers.
5.3.1. The Advertiser is prohibited to use NewProgrammatic’s Services to promote sites containing illegal and/or socially unacceptable content such as violent pornography, child pornography, hate or violence related, racism, harassment, illegal drugs and other acts and contents banned by laws of Poland, European Union and/or United States of America. NewProgrammatic will publish guidelines for Advertiser’s Campaigns on NewProgrammatic website.
5.3.2. The Advertiser shall not use NewProgrammatic Platform in any manner, or in connection with any content, data, hardware, software or other materials, that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias), (D) violates any applicable law, ordinance, rule, regulation or treaty, (E) is in any other way harmful to the End User.
5.4. Right of control. NewProgrammatic reserves the right to control and verify compliance with these restrictions and limitations. The Advertiser shall be responsible for all damages incurred by NewProgrammatic arising from violation of any of the provisions herein, including the loss of business profits caused by termination of contracts by NewProgrammatic’s business partners.
5.5.Right to revoke access. In any case of breaching the Terms and Conditions by the Advertiser, NewProgrammatic is entitled to ban the Advertiser’s Account. It means no longer access for the Advertiser to the Account and no use of NewProgrammatic’s Services.
6. GENERAL TERMS
6.1. Representations & Warranties. NewProgrammatic represents and warrants that it has full power and authority to enter into these Terms and Conditions. The Advertiser represents and warrants that it has full power and authority to agree to these Terms and Conditions.
6.2. Limitation of liability. NEWPROGRAMMATIC AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS AND AGENTS (COLLECTIVELY THE “NEWPROGRAMMATIC PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING THE PUBLISHERS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF NEWPROGRAMMATIC PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEWPROGRAMMATIC PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF CAMPAIGN ON NEWPROGRAMMATIC PLATFORM, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH NEWPROGRAMMATIC, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF NEWPROGRAMMATIC. NEWPROGRAMMATIC IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND, ANY USE BY YOU SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEWPROGRAMMATIC PARTIES BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR TORTS/DELICTS, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ANY DATA OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR ANY RELATED DOCUMENT OR THE USE OF OR INABILITY TO USE NEWPROGRAMMATIC PLATFORM (INCLUDING CAMPAIGN’S SETTINGS). EVEN IF NEWPROGRAMMATIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THE ABOVE LIMITATION OF LIABILITY IS DEEMED INAVLID BY THE COMPETENT COURT, THE TOTAL, CUMULATIVE LIABILITY OF NEWPROGRAMMATIC PARTIES RESULTING FROM THESE TERMS AND CONDITIONS OR CONNECTED WITH IT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE LAST CAMPAIGN. LIABILITY OF THE NEWPROGRAMMATIC PARTIES IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, IT MEANS THAT IT IS LIMITED ONLY TO DAMAGES CAUSED BY INTENTIONAL FAULT OF ANY OF THE NEWPROGRAMMATIC PARTIES.
6.3. Intellectual Property. As between NewProgrammatic and the Advertiser, NewProgrammatic (or others it so designates in writing) shall own all rights, titles and interests to use of Intellectual Property Rights (as defined below), relating to the NewProgrammatic Platform (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to NewProgrammatic Platform. For purposes of these Terms and Conditions, “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and reinstatements thereof, now or hereafter in force and effect worldwide. The Advertiser shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the NewProgrammatic Platform or NewProgrammatic; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any site, or any other technology, software, materials and documentation related to NewProgrammatic Platform or NewProgrammatic; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the NewProgrammatic Platform; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from NewProgrammatic, any aspect of NewProgrammatic Platform under any timesharing, service bureau or other unauthorized method or access thereto; or (v) engage in any action or practice that reflects poorly on the NewProgrammatic Platform, NewProgrammatic or its Publishers, or otherwise disparages or devalues the reputation or goodwill of the same.
6.3.1. As between NewProgrammatic and the Advertiser, NewProgrammatic (or others it so designates in writing) shall own rights to use of the all algorithms, methods of computation used by the NewProgrammatic Platform to measure purchases including all applicable rights to use of the patents, copyrights, trademarks, trade secrets, or other proprietary or Intellectual Property Rights inherent therein or appurtenant thereto. All rights not expressly granted to the Advertiser herein are reserved to NewProgrammatic and other entitled entities.
6.3.2. The Advertiser’s materials (i.e. websites, domains, creatives, landing pages, etc.) are and shall remain its sole and exclusive property, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or Intellectual Property Rights inherent therein or appurtenant thereto.
6.4. Confidentiality. The Advertiser agrees to safeguard and, except NewProgrammatic’s written consent, not to disclose to anyone any proprietary or confidential information acquired in relation to the Advertiser’s access to NewProgrammatic Platform. Such information includes, without limitation, Personal Data, principles of operations of NewProgrammatic Platform, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds (hereinafter referred to as “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly available through no action or fault of the Advertiser, (ii) was already in the Advertiser’s possession or known to the the Advertiser prior to being disclosed or provided to it by or on behalf of the other party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to NewProgrammatic or any other party with respect thereto, (iii) was or is obtained by the Advertiser from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary obligation of confidentiality to NewProgrammatic or any other party with respect to such information or material, or (iv) is independently developed by the Advertiser without reference to the Confidential Information.
6.4.1. The Advertiser shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. The Advertiser agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of NewProgrammatic’s rights therein. The Advertiser shall use its best efforts to assist NewProgrammatic in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, the Advertiser shall advise NewProgrammatic immediately in the event the Advertiser learns or has reason to believe that any person to whom the Advertiser has given access to Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other the proprietary rights of NewProgrammatic, and the Advertiser will, at the Advertiser’s expense, cooperate with NewProgrammatic in seeking injunctive or other equitable relief in the name of the Advertiser or NewProgrammatic against any such person. The Advertiser agrees to maintain the confidentiality of NewProgrammatic’s Confidential Information using at least as great a degree of care as the Advertiser uses to maintain the confidentiality of the Advertiser’s own most confidential information (and in no event less than a reasonable degree of care). Especially, the Advertiser is obliged to conclude non-disclosure agreements with any person that has access to the Advertiser’s Account, which content shall allow for objective protection of Confidential Information. The Advertiser acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation NewProgrammatic Platform or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to NewProgrammatic inadequately compensable in damages at law, and NewProgrammatic is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available.
6.4.2. The disclosure of the Confidential Information is not a breach of these Terms and Conditions if it was made due to the demand of common courts, administrative courts, public authorities due to the obligation stipulated by the provisions of applicable law and the Advertiser notifies NewProgrammatic immediately about this obligation and in any case before the disclosure and discloses the Confidential Information only in the least possible extent.
6.4.3. The Advertiser is obliged to keepconfidentiality of the Confidential Information during the Term of the Agreement and for 20 (twenty) years after its termination. NewProgrammatic may immediately ban the Advertiser’s Account and terminate all license rights granted herein, in the event the Advertiser breaches any of its confidentiality obligations.
6.5. Modifications. NewProgrammatic reserves the right to change these Terms and Conditions and prices for its Services at any time in its sole discretion and pursuant to applicable law. Amended versions of the Terms and Conditions or new pricing lists shall be effective upon providing the Advertiser with a notice of at least 2 (two) weeks. Amendments of pricing list do not affect ongoing Campaigns. Your continued use of NewProgrammatic Platform after the effective date of any such notice shall constitute your acceptance of and agreement to such changes. IF THE ADVERTISER DOES NOT WISH TO BE BOUND TO NEW TERMS AND CONDITIONS, IT MUST TERMINATE THE AGREEMENT AT LEAST ONE DAY BEFORE THE EFFECTIVE DATE OF NEW TERMS AND CONDITIONS BY AN EMAIL NOTICE.
6.5.1. NewProgrammatic reserves the right to modify NewProgrammatic Platform and its functions or functionalities at any time in its sole discretion and without any liability. NewProgrammatic agrees to use commercially reasonable efforts to minimize unscheduled modification and maintenance interruptions. However, NewProgrammatic reserves the right to modify or maintain NewProgrammatic Platform at any time, with or without notice to the Advertiser.
6.6. Indemnification. The Advertiser shall indemnify, defend, and hold harmless NewProgrammatic (including the NewProgrammatic Parties) from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by NewProgrammatic, known or unknown, contingent or otherwise, directly or indirectly arising from the Advertiser’s breach of any term or provision of these Terms and Conditions or any way related to the Advertiser’s use of the NewProgrammatic Platform, including but not limited to any claim for infringement of Intellectual Property Rights of a third party. NewProgrammatic shall notify the Advertiser of any such claim and shall cooperate with the Advertiser, at its expense, in defending or settling such claim. The Advertiser shall not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects NewProgrammatic’s rights without NewProgrammatic’s prior written consent. The Advertiser may join in defense with counsel of its choice at its own expense. If the Advertiser does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, NewProgrammatic may defend against such claim in such manner as it may deem appropriate at the Advertiser’s expense, including, without limitation, settling such claim, after giving notice to the Advertiser.
6.7.1. If any Data is personally identifiable information or personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (further referred to as “Personal Data” and the “GDPR” and respectively), and processed thereof, it shall be governed under the terms and conditions set forth in the NewProgrammatic Data Processing Agreement (https://newprogrammatic.com/dpa/), further referred to as the “DPA”. The DPA is an integral part of these Terms and Conditions. Unless otherwise explicitly stated in the DPA, it is agreed and acknowledged by the parties that with respect to Personal Data included in the Data processed in connection with Services, the Advertiser shall be considered as a the “Controller” or the “Processor” of Personal Data and NewProgrammatic shall be considered as the “Processor” or the “another Processor” (“Sub-Processor”), as applicable, according to the terms defined under the GDPR and the DPA. The Advertiser represents and warrants that NewProgrammatic is permitted to collect, use and transfer Data on behalf of the Advertiser in order to provide Services according to the terms defined under DPA.
7.1. Governing Law. The Terms and Conditions shall be governed by, and construed in accordance with, the laws of Poland, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions.
7.2. Jurisdiction and Venue. Any litigation based hereon, or arising out of, under, or in connection with these Terms and Conditions, shall be brought and maintained exclusively in the court competent for NewProgrammatic’s registered office. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the aforementioned court for the purpose of any such litigation as set forth above. In addition, each party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
7.3. Waiver of Jury Trial. Each of the parties hereto hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms and Conditions and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.
7.4. No Third Party Beneficiaries. These Terms and Conditions are made solely for the benefit of the Advertisers and NewProgrammatic Parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms and Conditions.
7.5. Assignment. The Advertiser may not assign any of its rights or delegate any of its duties under these Terms and Conditions or additional agreements (if concluded with NewProgrammatic) without the prior written consent of NewProgrammatic. Despite such consent, no assignment shall release the assignor any of its obligations or alter any of its primary obligations to be performed under these Terms and Conditions. The Advertiser hereby agrees that NewProgrammatic is entitled to assign any of its rights and obligations under these Terms and Conditions and additional agreements (if concluded with the Advertiser) to any third party and at any time without separate consent of the Advertiser.
7.6. Successors and Assigns. Except as otherwise expressly provided herein, these Terms and Conditions shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to the Terms and Conditions.
7.8. Independent Contractor. The relationship of the Advertiser and NewProgrammatic established by these Terms and Conditions is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
7.9. Force Majeure. Neither party shall be deemed in default of the Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an event of force majeure. An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent i.e. riot, war, invasion, act of foreign enemies, hostilities, terrorism, strikes, flood, fire or other physical natural disaster, epidemic, strike, act or actions of government or shortage of materials or supplies.
7.10. Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms and Conditions shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by NewProgrammatic in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
7.11. Entire Agreement. Except as may be set forth in an written agreement signed by NewProgrammatic and the Advertiser, these Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the use of NewProgrammatic Platform between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.
7.12. Severability. If any provision of the Terms and Conditions is found to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable it shall be so narrowly drawn, without invalidating the remaining provisions of the Terms and Conditions or affecting the validity or enforceability of such provision.
7.13. Attorney’s Fees. If NewProgrammatic prevails in any action, suit, or proceeding arising from or based upon the Terms and Conditions, NewProgrammatic shall be entitled to recover from the Advertiser NewProgrammatic’s reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding.
7.14. Headings. The headings in the Terms and Conditions are included for convenience only and shall neither affect the construction or interpretation of any provision herein nor affect any of the rights or obligations of the parties of the Terms and Conditions.
7.15. Notices and Complaints. Any notice, communication or statement relating to Terms and Conditions shall be done by an email unless the written form is reserved in these Terms and Conditions. The notice is deemed effective upon delivery to the contact data of the respective party as indicated herein or in the Advertiser’s Account. In the event of non-material changes to the Terms and Conditions (e.g. editorial changes, correction of obvious typographical errors), notice shall be deemed effective upon posting at NewProgrammatic Platform. In the event of material changes to the Terms and Conditions (i.e. affecting the rights and obligations of the parties), notice shall be effective upon delivery to the email address last provided by the Advertiser. In the event that the Advertiser believes that the Agreement is not being performed in accordance with the provisions of the Terms and Conditions, it may submit a complaint to NewProgrammatic in the term of 14 (fourteen) days from noticing the breach of the Agreement by NewProgrammatic. All complaints will be handled within a reasonable timeframe, not exceeding 30 days. The notices and complaints of the Advertiser can be sent on the following addresses: Commerce Media Tech Spółka z ograniczoną odpowiedzialnością, ul. Lubicz 17G, 31-503 Krakow, Poland, Attn: Legal Department or by email to: [email protected].
7.16. Survival. Sections Representations & Warranties, Intellectual Property, Confidentiality, Indemnification and Miscellaneous and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms and Conditions shall survive and remain in effect after such happening.
7.17. Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the provisions of these Terms and Conditions. These Terms and Conditions shall not be construed against either party by reason of its drafting.