Byggfix Advertising Policy Terms and Conditions
2.1 Authorization. Customer grants Byggfix and its affiliates a non-exclusive, worldwide, and fully paid license to use, perform, reproduce, display, transmit, and distribute the Advertising Materials on the selected Media in accordance with this Agreement. 2.2 Account Manager. The Account Manager specified on the Cover Page will be the primary point of contact to assist Customer with various operational activities under this Agreement. 2.3 Insertion Order. For each Advertisement that Customer wishes to place, Customer will provide Advertisement duration, Media, budget, and other relevant information to Byggfix through such method as determined by Byggfix from time to time (“Insertion Order”). All Insertion Orders will be governed by these Terms and Conditions, and if there is any conflict between these Terms and Conditions and an Insertion Order, these Terms and Conditions will prevail, unless the Insertion Order explicitly provides that its terms will take precedence over specific sections of these Terms and Conditions. Customer and Byggfix may agree to vary the budget, dates and duration of any Insertion Order in writing (including by electronic mail), and such variation shall be binding upon Customer. 2.4 Submission of Advertising Materials. Customer will submit to Byggfix at the material submission email address set forth on each Insertion Order all Advertising Materials and any related Landing Page for each Advertisement by the submission deadline set forth on the applicable Insertion Order. If any Advertising Material or Landing Page is not provided in accordance with this Agreement, Byggfix cannot guarantee that it will deliver the corresponding Advertisement by the launch date of the Advertisement specified on the applicable Insertion Order. 2.5 Cancellation and Change Orders. Byggfix may cancel an Insertion Order at any time. Customer may cancel an Insertion Order at any time, which cancellation will take effect three business days after Byggfix’s receipt of Customer’s written cancellation request. Customer remains obligated to pay the Adsnavia Fees, Advertising Fee (with the applicable taxes as specified in the Insertion Order), Adsnavia Participation Fees and/or Shopeback Cashback Commission where applicable resulting from Advertisements served before the cancellation takes effect. No later than three business days before the launch date of an Advertisement, if Customer requests a change to the applicable Insertion Order and Byggfix approves that request, Byggfix will prepare a revised Insertion Order, which may include a price adjustment. A revised Insertion Order may delay the launch of the Advertisement and will not take effect until Customer executes and delivers the revised Insertion Order to Byggfix by the deadline to the email address specified on the revised Insertion Order.
COMPENSATION AND PAYMENT TERMS
3.1 Advertising Fee, Adsnavia Fees, Adsnavia Participation Fees, Shopback Cashback Commission and Invoice. (a) Following Byggfix’s receipt of the executed Insertion Order, Byggfix will issue Customer an invoice reflecting the Advertising Fee and any applicable taxes. (b) Upon receiving the invoice, (i) Customer shall deposit the Advertising Fee for such Insertion Order with Byggfix within one (1) month of receipt of invoice, or (ii) the Advertising Fee and any late interest will be deducted from the seller wallet linked to your UserID (“Seller Wallet") within net 30 days from the date of invoice. Such Seller Wallet deduction will be processed on either the 1st or 15th of each month, whichever is earlier. If there are insufficient funds within your Seller Wallet on the date of deduction, the full amount will still be deducted, resulting in a negative balance in your Seller Wallet. (c) Where the Customer has opted for Shopback Advertising, an additional invoice for the Shopback Cashback Commission (“Cashback Invoice”) will also be issued by Byggfix to the Customer within two (2) months from the expiry of the applicable campaign and the Customer shall make payment to Byggfix via the applicable payment methods as agreed upon in writing between the parties, by the date indicated in the Cashback Invoice. (d) Where the Customer has opted for Adsnavia Advertising, the payment for (i) Adsnavia Fees and (ii) where applicable, the Adsnavia Participation Fees by the Customer shall be made within the applicable payment period via the applicable payment methods as agreed upon in writing between the parties. For Customers located in United Kingdom, the tax invoices can be retrieved from the Seller Center. (e) If any amount due to Byggfix remains unpaid after the due date, Byggfix shall be entitled, without limiting any other rights it may have, to (i) charge interest on the outstanding amount at the rate of two percent (2%) per month from the due date until such outstanding amount is paid in full, (ii) block Customer’s access to the Byggfix seller center, (iii) ban Customer from participating in future campaigns; and/or (iv) vary the fees applicable to the Customer. Byggfix shall have the right to suspend, withhold or discontinue the advertisements until the full payment of the outstanding amount and the interest thereon are received by Byggfix. (f) Except as otherwise set forth in an Insertion Order or expressly set out in these Terms and Conditions, all payments made by Customer to Byggfix under this Agreement will not include any taxes. Each party will pay all taxes that it owes under this Agreement. Customer agrees that all payments made to Byggfix under this Agreement shall be free of all withholding, and if any such withholding is required, Customer shall pay an additional amount to Byggfix such that, after deduction of all amounts required to be withheld, the net amount of the payment will equal, on an after-tax basis, the amount of payment that would be due absent such withholding to Byggfix. 3.2 Wire Transfer. All payments pursuant to Section 3.1 unless expressly set out in these Terms and Conditions will be made by wire transfer to the bank account specified on the Cover Page. Each party is solely responsible for the wire transfer fees and other charges of its bank.
RESPONSIBILITIES OF CUSTOMER
RESPONSIBILITIES AND RIGHTS OF Byggfix
6.1 “Confidential Information” means: (a) any proprietary information of a party to this Agreement disclosed by one party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; (b) the Byggfix materials and all other non-public marketing or technical information, even if not marked as confidential; and (c) all information collected or developed by Byggfix regarding its customers. Confidential Information also includes oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure. 6.2 Exceptions. Confidential Information will not include any information that: (a) was publicly known and made generally available before the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the lawful possession of the receiving party at the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of that third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (f) is disclosed by the receiving party pursuant to the disclosing party’s prior written approval. 6.3 Non-Use and Non-Disclosure. Each party will: (a) treat as confidential all Confidential Information of the other party; (b) not disclose that Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section and such party has obtained the written consent to that disclosure from the party that provided the Confidential Information; and (c) not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party’s Confidential Information if required by law so long as the other party is given prompt written notice of that requirement before disclosure and assistance in obtaining an order protecting that information from public disclosure.
TERM AND TERMINATION
7.1 Term. This Agreement takes effect on the Effective Date and continues for the term specified on the Cover Page. Unless earlier terminated in accordance with Section 7.2 or either party notify the other party of its decision not to renew this Agreement no later than 30 days before the expiration of the then-current term, this Agreement will be automatically renewed for successive one-year period (each, a “Renewal Term”, and together with the Initial Term, the “Term”). 7.2 Termination. This Agreement will terminate immediately upon: (a) the written agreement of the parties; (b) either party’s dissolution or ceasing to do business, or the institution by or against either party of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of either party’s debts; or (c) the occurrence of an event of Force Majeure (as defined in Section 11.4) that continues for more than 30 days. 7.3 Termination for Cause. Furthermore, either party may terminate this Agreement immediately if the other party does not cure its material breach of this Agreement within 30 business days of receiving written notice of the material breach from the non-breaching party. 7.4 Termination for Convenience by Byggfix. Byggfix may terminate this Agreement in its entirety or any Insertion Order at any time without cause by providing Customer with a 60 days’ prior written notice. 7.5 Effect of Termination. If this Agreement is terminated due to Customer’s breach of its obligations in accordance with Sections 5.2(f)(iv) and 7.3, all amounts paid by Customer to Byggfix may be forfeited as liquidated damages without prejudice to Byggfix’s recourse for other rights or remedies available under applicable laws. 7.6 Survival. The following provisions will survive the termination or expiration of this Agreement: Sections 1, 3, 6, 7.5, 7.6, 9, 10, 11, and any other provisions that, by their nature, are intended to survive. All liabilities that accrued before the termination or expiration will survive the termination or expiration of this Agreement.
REPRESENTATIONS AND WARRANTIES
8.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing in the jurisdiction it is formed; (b) its execution and delivery of this Agreement has been duly and validly authorized; (c) this Agreement constitutes a valid, binding, and enforceable obligation upon its execution; and (d) it will comply with all applicable laws in performing under this Agreement. 8.2 Representations and Warranties by Customer. Customer represents and warrants that: (a) the execution, delivery, and performance of this Agreement will not be in conflict with or constitute a default under the terms of any agreement, instrument, judgment, decree, or any order, statute, rule, or governmental regulation applicable to Customer; (b) all of the information provided by Customer to Byggfix, including, if applicable, information provided on behalf of an Advertiser, is complete, true, accurate, and current, and each Advertiser that Customer represents (if applicable), has the right to conduct its business, including offering its products or services; (c) the Advertising Materials submitted by Customer are true and accurate; (d) each Advertiser has the right or authorization to use, market, and promote the applicable Landing Pages and Advertising Targets, and the use, marketing, and promotion of such Landing Pages and Advertising Targets in accordance with this Agreement are compliant with all applicable laws; (e) no Advertising Materials, Landing Page, or Advertising Target contains (i) any information that violates or encourages violation of any applicable law; (ii) fraudulent or deceptive information or incentives; (iii) virus, malware, spyware, Trojan, phishing, or other malicious code that could breach or circumvent any Platform security measure; (iv) information marketing or promoting fake or counterfeit goods or illegal businesses (including apps or software that contain hidden charges); (v) any material that infringes any rights of any third party; or (vi) material that may be harmful, abusive, pornographic or obscene, threatening, or defamatory; and (f) Customer has all necessary rights to permit and hereby grants Byggfix all such rights that are necessary for Byggfix to use, store, copy, modify, reform, reproduce, publish, display, transmit, display, and distribute the Advertising Materials on the Platform.
9.1 Indemnification by Customer. Customer will indemnify, defend, and hold harmless Byggfix and its affiliates and their directors, officers, and employees from and against all claims, actions, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) any breach by Customer of this Agreement; (b) any failure of Customer to perform its obligations under this Agreement in compliance with all applicable laws; (c) any violation of any rights of any third party by an Advertisement, Advertising Target, or Advertising Material; or (d) Customer’s fraud, negligence or willful misconduct. 9.2 Procedure. Byggfix will promptly notify Customer of any claim that is subject to Section 9.1, and will permit Customer to assume and control the defense of that claim. Byggfix will, however, have the right to employ separate counsel and participate in the defense of claims at the Customer’s sole cost. Customer will have the sole authority to defend, compromise, settle, or otherwise dispose of a claim, but it will not agree to any disposition or settlement of a claim that admits liability or imposes duties of performance or payment on Byggfix without Byggfix’s prior written consent. If the parties agree to settle a claim, Customer will not publicize the settlement without first obtaining Byggfix’s written permission.
LIMITATION OF LIABILITY 10.1 Disclaimer of Warranties. ALL PERFORMANCE BY Byggfix AND ITS AFFILIATES AND ANY Byggfix MATERIALS ARE PROVIDED “AS IS.” Byggfix MAKES NO GUARANTEES REGARDING THE SUCCESS OF A CAMPAIGN OR AD, NUMBER OF VISITS, SALES, OR CONVERSION RATES. CUSTOMER ACKNOWLEDGES AND AGREES THAT Byggfix CANNOT ENSURE THAT ANY MATERIAL SUBMITTED BY OR ON BEHALF OF CUSTOMER OR ADVERTISER WILL BE PROTECTED FROM THEFT OR MISUSE, AND Byggfix WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE. 10.2 Disclaimer of Consequential Damages. Byggfix WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS. 10.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL Byggfix’S OR ANY Byggfix AFFILIATE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT RECEIVED FROM CUSTOMER BY Byggfix UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD PRECEDING THAT CLAIM. 10.4 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THESE PROVISIONS FAIL THEIR ESSENTIAL PURPOSE.
MISCELLANEOUS 11.1 Subcontractors. Byggfix may exercise its rights under this Agreement via its affiliates and subcontractors. Byggfix will be responsible for the compliance of those affiliates and subcontractors with the terms of this Agreement. 11.2 Independent Contractor. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors in the performance of this Agreement. Neither party is authorized to bind the other party to any liability or obligation or to represent that it has any authority to do so. 11.3 Press Release. Except as expressly set forth in this Agreement or as required by the laws of any jurisdiction, neither party will make any public announcement or press release regarding the cooperation contemplated by this Agreement without the prior consent of the other party. Any party required by law to make a public announcement regarding any matter related to the cooperation contemplated by this Agreement will solicit from and consider in good faith the other party’s feedback on the content of that public announcement. 11.4 Force Majeure. Neither party will be liable to the other party for any failure or delay in fulfilling an obligation (other than the financial obligations) under this Agreement if that failure or delay is attributable to circumstances beyond its control, including any fire, power failure, labor dispute, war, civil dispute, or government action (including any new law or regulation) or inaction (“Force Majeure”). The deadline for fulfilling the obligation in question will be extended for a period equal to that of the continuance of the Force Majeure event. 11.5 Governing Law and Resolution of Disputes. This Agreement shall be governed by and construed under the laws of United Kingdom. In the event of any dispute, controversy, claim or difference of any kind whatsoever arising between the Parties in connection with this Agreement, including the breach, termination or validity of this Agreement, or in connection with the determination of any matters which are subject to objective determination pursuant to this Agreement (“Dispute”), which Dispute has been subject of a written notice by one Party to the other (“Dispute Notice”), the Parties shall attempt, for a period of thirty (30) days after the receipt by one (1) Party of a notice from the other Party of the existence of a Dispute, to settle such Dispute in the first instance by mutual discussions between the senior management of each of the Parties. If the Dispute cannot be settled by mutual discussions within the thirty (30) day period, it shall be referred to and finally resolved by arbitration administered by the United Kingdom International Arbitration Centre in United Kingdom in accordance with the Arbitration Rules of the United Kingdom International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. There will be three (3) arbitrators and the language of the arbitration shall be English. 11.6 Notices. All notices under the terms of this Agreement will be deemed given as of the day they are received either by overnight courier, email, postage prepaid certified or registered mail, or facsimile, and addressed either to Byggfix or Customer at their respective addresses specified in the Cover Page. 11.7 Assignment. Customer may not voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement (in whole or in part), including by direct or indirect change of control, merger (whether or not Customer is the surviving entity), or operation of law, without Byggfix’s prior written consent, which Byggfix may withhold in its sole and absolute discretion. Any direct or indirect change of control of equity ownership or management or control of Customer, whether or not Customer survives as an entity, will be deemed an assignment and delegation of this Agreement that requires Byggfix’s prior written consent. An assignment by Customer will not relieve Customer of its obligations under this Agreement and any Insertion Order unless Byggfix expressly states otherwise in its written consent. Byggfix will not release Customer of its liability under this Agreement and any Insertion Order unless Byggfix expressly states otherwise in its written consent. Byggfix may voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement or any Insertion Order (in whole or in part) without Customer’s consent. Any purported assignment or delegation in violation of this Section 11.7 will be null and void. Subject to this Section 11.7, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns. 11.8 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing provided in accordance with Section 11.6 to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. 11.9 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law, and the tribunal will preserve, as far as possible, the original intention of the parties with respect to the severed term, condition, or provision. 11.10 Remedies Cumulative. No single or partial exercise of any right or remedy will preclude any other or further exercise of any other right or remedy. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity. 11.11 Confidentiality of Agreement. Customer will not disclose any terms of this Agreement to any third party without Byggfix’s prior written consent, except as required by applicable law. 11.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. 11.13 Language. If this Agreement is executed in more than one language, then only the English version is binding on the parties. 11.14 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement. 11.15 Integration. These Terms and Conditions, together with the Cover Page, and all Insertion Orders, constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to that subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms, provisions, or conditions. These terms and conditions may be amended by Byggfix at any time.
Last Updated: 16 January 2023