Purpose and application
Between:
- The company TUDO CERTO & WOUAMM SAS whose head office is located at 6 passage du Prado 75001 PARIS, on the one hand and operating under the Qosmik trademark
- The "Advertiser" (or his "Agent") on the other hand,
and jointly referred to as "the Parties",
these Terms and Conditions (T & CS) govern the sale of "Advertising" on "Media", this sale being materialized by the conclusion of an "Advertising Insertion Order". Any acceptance of a quote or signature of an Advertising Insertion Order automatically and unreservedly implies acceptance of these Terms and Conditions and current prices, with the exception of any contrary clause duly specified by the Advertiser or its Mandatory and validated by Qosmik in the relevant document (hereinafter, “Special Conditions”).
Definitions
“Advertiser”: any natural or legal person who wishes to broadcast an “Advertising” on the “Support”. All companies owned more than 50% of the capital by a parent or holding company are considered to be part of the same group.
"Capping": in the sense given by the IAB, option allowing the limitation of the number of displays of a given Advertising for a period defined for a user or a group of users.
"Click": activation of Advertising by the user resulting in a redirection to a URL defined by the Advertiser.
"Client": the Advertiser and its Agent (if applicable).
"Special conditions": special conditions appearing in the Advertising Insertion Order and prevailing over these Terms and Conditions in the event of contradiction.
“Publisher (s)”: Qosmik partner company that publishes one or more of the Media sites on which Qosmik is likely to distribute contextual video content and Advertisements.
"Placement": Advertising spaces present on the Medium (s) and on which Qosmik can serve Advertisements.
"Impression": display of the first item of the Advertisement on a connected computer.
"Agent": any professional intermediary to whom the Advertiser has given a written mandate to purchase and place Advertising on its behalf.
"Advertising Insertion Order": (also called "IO"), document provided by Qosmik, completed and signed by the Advertiser or its Agent and confirming the purchase of the Advertising.
"Player": software allowing the distribution in the Site, of a content video and / or an advertising video
"Pre-roll": video advertisement (in video or flash format) broadcast within the Player, before the Internet user plays an editorial video
"Advertising": any insertion, mention or element (text, image, video) of an advertising or promotional nature, provided by the Advertiser (or its Agent) to Qosmik, and intended to promote its offers of goods or services.
"Technical specifications": technical rules and constraints applicable to Advertising (format, duration, size, etc.)
"Support (s)": Sites or applications accessible from the Internet, Qosmik partners, on which Qosmik is likely to broadcast the Advertisements within Specified Placements.
“Visitor”: user (actually a connected workstation) connected to the Media and likely to view or click on the Advertisements.
Order and Insertion Order (IO)
2.1 - Formalization of the order
Any request from the Advertiser or its Agent concerning the delivery of Advertising on Sites managed by Qosmik will be the subject of a quote sent to the Client. The Customer will verify with Qosmik that the formats or targeting desired for the distribution of the Advertising are compatible with Qosmik's technical specifications.
Following acceptance of the offer by the client, Qosmik will send an Advertising Insertion Order (including, where applicable, Special Conditions) which will be duly completed and signed (including the company stamp) by the Client. The offer presented in the IO is valid for a period of 7 days following its sending to the Customer. The Advertiser and / or its Agent declares and guarantees that it has all the rights to enter into an IO and accept these T & CS.
The General Conditions of the Advertiser or of its Agent cannot prevail over the signed IO and these T & Cs.
Only a contract signed jointly by the Advertiser (or its Agent) and the duly authorized representative of Qosmik and stipulating contrary conditions, could prevail over the IO and these T & Cs.
The IO applies specifically to the Advertiser, unless otherwise duly stipulated. As such, the Advertiser or its Agent may not sell, resell or transfer it for the benefit of another Advertiser, Agent, company, natural or legal person, including parent companies, subsidiaries or company belonging to the same group.
The conclusion of an IO as well as the provisions contained in the IO are considered "Confidential Data". The Advertiser and / or the Agent as well as Qosmik undertake to communicate this "Confidential Data" only to employees who would necessarily need it to perform their duties and ensure the successful completion of the campaign. The Customer and Qosmik agree that no employee will publicly communicate this "Confidential Data" by any means and for any reason.
The IO will clearly indicate all the elements allowing the distribution of the Advertising and in particular the identity of the Advertiser (and if applicable of its Agent), the nature of the offer (good or service) promoted, the period campaign delivery (start and end date), delivery volume, unit price and total, any targeting, format and characteristics (duration, weight, format, etc.) of the Advertisement.
2.2 - Technical specifications
The Customer will provide Qosmik with the Advertisements and the technical elements necessary for its distribution in a format corresponding to the technical specifications hereof or the Special Conditions and within the deadlines notified in the commercial documents.
The Advertiser or its Agent must make all the technical elements and files of the Video Advertising available to Qosmik no later than 3 working days before the scheduled start of the broadcast. Qosmik reserves the right to refuse the broadcast of a campaign without the Advertiser being able to claim any compensation in the event that the Advertisement is not compatible with these specifications or these deadlines. In any case a delay in the delivery of technical elements on the part of the Advertiser or the Agent may not result in a modification of the IO (in particular on the purchasing budget) or give the right to any compensation or indemnity towards the Advertiser or the Agent. Any delay in the delivery of technical elements releases Qosmik from any possible volume delivery commitment over the period mentioned in the IO.
It is expressly agreed that Qosmik cannot be held responsible for any direct or indirect damage for the loss of the technical elements of the Advertising during their delivery (in particular, slowness, loss or degradation of data during transmission).
The IO commits the Advertiser or its Agent from the time it is sent signed to Qosmik, and does not bind Qosmik until the latter signifies its acceptance to the Advertiser or the Agent.
2.3 - Modification or cancellation of a campaign
If a postponement, modification, partial deletion or cancellation of the Advertising campaign as defined in the IO, is requested by the Advertiser or its Agent:
- within a period of more than 10 working days before the date of the first broadcast as stipulated in the IO, will result in the termination of the IO and will not give rise to invoicing.
- within a period of less than 10 working days before the date of the first broadcast as stipulated in the IO, Qosmik will be entitled to demand as a penalty 30% of the total price notified in the IO,
- and 50% of this amount if the deadline is less than 5 working days before the date of the first broadcast, or (at the choice of the Advertiser), invoicing of 100% of the amount of the campaign with a reprogramming under the same conditions within a period of less than 6 months from the initially planned start date).
For any campaign cancellation at the initiative of the Advertiser and / or its Agent and whose delivery has already started, full payment of the price mentioned on the IO will be payable by Qosmik.
Any modification of the IO shall be the subject of a joint agreement of the Parties and, where applicable, the commercial conditions in force on the date of this agreement will apply.
3- Delegation to a Representative
The Advertiser may delegate the purchase and placement of Advertising to a professional Agent, duly authorized by a written and signed mandate, or a valid contract binding him to the Advertiser and allowing him to act in his name and on his behalf.
In this context, the Agent must inform Qosmik of the nature of this mandate and communicate to him the contract or the certificate of mandate with the signed return of the first Advertising Insertion Order.
The Agent acts in the name and on behalf of the Advertiser. Advertiser and Agent are therefore jointly and severally bound by the Insertion Order signed and sent to Qosmik and the related payments.
4- Placement and distribution of Advertisements
4.1 – Placements
Unless otherwise stated in writing, expressly stipulated in the IO and validated by Qosmik, the choice of Placements remains at the sole discretion of Qosmik. Furthermore, given the nature of its offer, Qosmik does not market Support in a specific and unitary manner.
The signing of the Advertising Insertion Order does not confer any exclusivity of any kind on the Advertiser on the Site (s) on which the Advertising is likely to be broadcast.
4.2 - Refusal of Ads by Qosmik
Qosmik refuses advertisements that promote (or redirect to a page that promotes):
- goods or services of astrology or clairvoyance;
- betting, lottery and games of chance products and services (with the exception of operators who have obtained an operating license or approval from the government and after validation from Qosmik);
- dating services (chat, livecam, etc.) which may present or lead to sites of an erotic or pornographic nature;
- goods, services or software that may lead to a page containing malicious software such as "adware" or "spyware";
Qosmik reserves the right to refuse an Insertion Order, to immediately withdraw an Advertisement that is being broadcast from all or part of the Media or Placements, or to cancel the broadcast of any Advertisement, without this refusal giving the right to any compensation. for the benefit of the Advertiser or its Agent, in the following cases:
- if the Advertising is contrary to the uses, principles or interests of Qosmik (or all or part of its Partner Publishers) and for any legitimate reason,
- if Qosmik (or all or part of its Partner Publishers) considers that the distribution of the Advertising would be likely to call into question its civil or criminal liability,
- if the Advertiser is a competitor of Qosmik (or a competitor of the Medium on which the Advertising would be broadcast)
If the Advertisement has been partially broadcast, Qosmik will reimburse the Advertiser or the Agent in proportion to the volume remaining to be broadcast or the remaining duration of the campaign. Any refusal by Qosmik does not exempt the Advertiser and its Agent from paying the sums due for the number of Advertisements already broadcast.
In the event that the submission of the Advertisement (before or during broadcast) encounters an unfavorable broadcast notice from the BVP, Qosmik reserves the right to suspend or cancel the campaign's broadcast and immediately terminate the IO, and to ask the customer for compensation for any image damage suffered.
4.3 - Adserving
Qosmik is not responsible for the intrinsic technical quality of the Advertisements nor for any transmission problems or the slowness of the Internet network which may in particular generate losses of quality, integrity or alterations of the Advertising (sound, text, image) displayed on the user's workstation.
If during the campaign, the Advertiser or the Agent wished to modify the technical elements provided for the delivery, the costs incurred would be fully borne.
However, in the event of recurring malfunctions for more than 7 (seven) consecutive days noted jointly by the Advertiser (or the Agent) and Qosmik, the customer will have the possibility of interrupting the delivery, and will pay Qosmik the amount corresponding to Advertisements already served up to that date. In any event, no compensation may be demanded by the Advertiser or the Agent in this regard
Qosmik and its Publishers cannot be held responsible for any technical failure attributable to the Advertiser or its Agent and involving the inability to place or distribute the Advertising on its Placements. If a technical problem, in terms of format, link, message or video, hinders the proper functioning of the Advertising or the Support, Qosmik will suspend the ad delivery and will inform the Advertiser as soon as possible.
4.4 - Delivery
Qosmik will seek the Client's agreement in the event that it is required to modify the delivery criteria stipulated in the IO and will inform the Client in the event that it is not able to deliver the total number of Advertisements agreed upon at the end of the law.
5- Support control and statistical reporting
5.1 Support control
Via Qosmik's campaign management interface, made available to the Client, the latter has the possibility of seeing the media on which the Advertising is actually broadcast.
In additIOn, Qosmik makes its best efforts to ensure a premium selectIOn of Publisher partners and thus the quality of the Materials and Sites on which the Advertisements are distributed, but does not grant any guarantee as to the quality or content of the Materials of its Partner Publishers. However, once brought to its attentIOn, Qosmik will make its best efforts to remove any Site or Advertising from a Support whose content or links infringe any regulatIOns in force.
5- control and statistical reporting
5.1 control of the delivery
Via Qosmik's campaign management interface, made available to the Client, the latter has the possibility of seeing the media on which the Advertising is actually delivered
In addition, Qosmik makes its best efforts to ensure a premium selection of Publisher partners and thus the quality of the Materials and Sites on which the Advertisements are distributed, but does not grant any guarantee as to the quality or content of the Materials of its Partner Publishers. However, once brought to its attentIOn, Qosmik will make its best efforts to remove any Site or Advertising from a Support whose content or links infringe any regulatIOns in force.
5.1 Control and tracking
Qosmik has tools for controlling the distribution of Advertising and a tracking system that complies with the state of the art and in particular allowing the posting of Advertising (Impressions) and interaction on the Advertising ( Clicks), as well as the duration of diffusion (VTR) and other KPIs measuring the visibility of the advertisement or the attention of the Internet user.
If the Advertiser or the Agent sets up in the technical elements of the Advertising a system of tags making it possible to collect statistical data on the delivery of said Advertising, he has the obligation to give Qosmik access to consult these data. .
Qosmik has the right to ask the Advertiser to deactivate one or more tags that may disrupt the distribution of the Advertising, alter the proper functioning of the Qosmik service or the pages of the Materials, or collect "sensitive" data. user connection within the meaning of the Data Protection Act of January 6, 1978.
5.2 Statistical reporting
At the end of the Advertising campaign, Qosmik will send the Advertiser or its Agent a statistical report which will notify in particular the number of Impressions (display of the Advertising) and Clicks.
The Parties expressly recognize that this information will be officially valid for invoking, unless the Advertiser or the Agent disputes the validity of the data provided within 5 working days after receipt of the statistical report. After this period, the information in the statistical report will be deemed to be definitive.
In the event of a dispute over the validity of the data provided by Qosmik and of a comparison with a statistical source specific to the Advertiser or the Agent, it is expressly agreed that Qosmik's statistical data will prevail if the difference observed between the 2 sets of data for a criterion is less than 10%.
In the event that the difference is greater than 10%, the Parties will come together to reiterate measures and / or find a friendly solution.
6- Guarantees and responsibilities of the Advertiser
6.1 Compliance with regulations
All Advertising will be broadcast under the sole responsibility of the Advertiser. As such, the Advertiser or its Agent expressly guarantees:
- take personal responsibility for obtaining all the rights and authorizations necessary to carry out (all or part of the Advertising or integrate one or more elements into it), reproduce, make available to the public and distribute the Advertising and all remuneration due as such (including in particular collective rights management societies).
- that the Advertisement is free from viruses or other malicious computer programs.
- that the content of the Advertising does not contravene any law, standard, professional code of ethics or regulations in force, in particular (and not limited to) regulations relating to advertising, comparative advertising, the International Commercial Code, intellectual property and the rights of third parties on their works and software,
- that the Advertising does not contain any illegal, deceptive, parasitic, denigrating, defamatory or damaging message with regard to third parties, that it does not infringe public order and good morals, the private life of third parties , that it does not contain obscene, racist elements, inciting racial hatred.
As such, the Advertiser or its Agent guarantees Qosmik, its officers and employees against any claim, action or remedy by third parties relating to the Advertising broadcast and its content, without prejudice to Qosmik's other rights. The Advertiser or its Agent undertake to indemnify Qosmik in this regard for all damages, interest, costs, costs or criminal penalties resulting therefrom, including possible legal and attorney fees.
The Customer undertakes to inform Qosmik in writing as soon as he becomes aware of any complaint or claim for any reason whatsoever relating to the Advertising, its content or the good or service promoted by the latter, in order to enable Qosmik to inform its Editors partners concerned and to allow them to exercise their rights.
6.2 Responsibilities on promoted sites
In the event that the Advertising promotes a website, its URL, or redirects (by means of a hypertext link for example) to a website, the Advertiser (or the Agent) undertakes to provide the same guarantees for said website as those mentioned in the previous article concerning Advertisements.
As such, the Advertiser and its Agent guarantee Qosmik, its officers and employees, against any claim, action or recourse by third parties related to the consultation of the website which the Advertising promotes or to which it redirects, without prejudice to other rights of Qosmik. The Advertiser or its Agent will indemnify Qosmik in this regard for all damages, interest, costs, costs or criminal penalties resulting therefrom, including possible legal and attorney fees.
The Customer agrees not to deactivate the "return" function allowing a visitor who has clicked on the Advertisement to return to the Support site page.
6.3 Respect for privacy and data collection
In the event that the Advertiser collects personal data on Internet users exposed to or interacting with the Advertising disseminated within the framework of the IO relating to the present, the Advertiser undertakes to comply with the regulatory provisions and the recommendations of the CNIL concerning the use of data personal and "cookies" or similar techniques, and in particular clearly informing users of this collection and its use.
6.4 Right of cancellation
In the event of non-compliance by the Advertiser or the Agent with the guarantees mentioned in articles 6.1 to 6.3, Qosmik reserves the right to suspend or cancel without delay the delivery of the Advertising on all or part of the Media, all sums due in respect of the IO remaining automatically due by Qosmik, and without the Advertiser or the Agent being able to claim to be entitled to any compensation.
7- Financial conditions
8.1 - Invoicing and payment
The rates indicated in Qosmik's commercial documents and on the I0 are exclusive of tax.
Unless otherwise stipulated in the IO, invoices will be sent by Qosmik at the end of the advertising campaign, and monthly in proportion to the volume of Ads broadcast if the campaign spans several months. An original of the invoices will be sent to the Advertiser and a copy to the Agent if applicable. The invIOces will mention the observed circulation, the total price excluding taxes, increased by VAT and applicable technical costs. No discount or commercial or professional discount is applicable on the technical test costs.
In the event that the Agent has received a mandate to settle payments on behalf of and in the name of the Advertiser, the Agent is primarily responsible for payment and the Advertiser remains responsible for settling the sums due in the event of default of its Representative.
Invoices are payable by check or transfer to the address indicated in the IO, any transfer costs remaining the responsibility of the Advertiser and / or its Agent. Unless otherwise stipulated by written agreement between the Parties, any invoice is payable within 30 (thirty) days of receipt of the invoice, whether the Advertiser has proceeded directly to the purchase of Advertising or through its possible Agent.
Any late payment of an invoice on its due date results in
- the immediate and automatic suspension of the execution of the Advertising Insertion Order and / or any other Insertion Order currently being executed. The sums due for the distribution of Advertisements already carried out remain as of right and immediately payable by Qosmik.
- the application as of right and without formality of a late payment penalty equal to the higher of the 2 rates between 3 times the legal interest rate in force and an annual interest rate of 10%.
8.2 – Assets
In the event that the effective broadcast turns out at the end of the campaign to be less than the broadcast stipulated in the IO, the Advertiser may request, in agreement with Qosmik, an extension of the duration of the campaign or a credit corresponding to the number of 'non-broadcast impressions. Qosmik will only invoice in this case on the basis of the actual distribution during the period.
The credit will be deducted as a priority from any invoice payable by the Advertiser or its Agent on the date of the credit.
In the event that an Advertiser has authorized its Agent to collect assets, the settlement by Qosmik of assets to the Agent releases Qosmik to the Advertiser from any risk of possible default by the Agent in this regard.
8.3 - Special conditions of payment
Qosmik reserves the right to request full payment of the amount of the Advertising campaign as mentioned in the IO before the first Advertising run:
- for Advertisers or Agents whose head office is located outside mainland France;
- for companies with less than 2 (two) years of existence;
- for Advertisers or Agents who have previously had payment difficulties for a Qosmik Insertion Order
Start of the campaign and Qosmik's related obligations will only begin in these cases after receipt of full payment.
9 intellectual property
During the campaign period stipulated in the IO, the Client grants Qosmik a free, non-exclusive license for the territories where the Advertising is distributed concerned of its intellectual property rights over the Advertising, its content and their distinctive signs., for the exclusive purpose of fulfilling its obligations hereunder, in particular to reproduce, represent and distribute the Advertising and its elements, on the Media.
The client acknowledges and accepts that the subscription of the IO confers on Qosmik the right to use the data resulting from the delivery of the Advertising, in particular for the purpose of optimizing the performance of the delivery of the Advertising and for the purposes of '' statistical study and to mention the name of the Advertiser and the Advertising, in particular for the purposes of presenting Qosmik's offer and professional information for Advertisers and agencies according to usage, including on its website www.Qosmik.com.
10 Termination
Without prejudice to the other cases stipulated in the contract, if one of the Parties breaches one of its obligations and this breach, reported by a registered letter with acknowledgment of receipt by the other Party, has no effect within 15 days. from the date of dispatch, the other Party may terminate the relevant Insertion Order as of right and without additional formality, without prejudice to its other rights.
11 Force majeure
A Party may not hold the other Party responsible for a delay, failure or failure to perform its obligations hereunder in the event of force majeure (in the sense of an unforeseeable and irresistible external event) or give right to damages. The Party suffering this case of force majeure will make its best efforts to immediately notify the other Party and reduce the extent or duration of the dysfunction thus caused.
12 Partial non-nullity, no waiver
This contract does not in any way create a de facto company or a joint venture between the Parties.
If any of the clauses stipulated in this contract were declared void, this stipulation would be deemed unwritten and would not alter the validity of the other clauses stipulated in this contract.
The fact for one of the Parties of not asserting one of its rights, of not applying any of the clauses stipulated in this contract, or requiring an obligation incumbent on the other party, cannot be interpreted in no way as a waiver of its rights or obligations under this contract.
13 Domiciliation and attribution of competence
For the execution hereof, Qosmik has taken up residence at 6 passage du Prado 75010 PARIS. The Advertiser and / or the Agent are deemed to have taken up residence at the addresses mentioned in the IO (and, where applicable, the certificate of mandate). Any change of domiciliation must be the subject of written information to the other party and would only be effective from the notification of this change.
These T & Cs are subject to French law. Any dispute over the interpretation, validity, conclusion or performance of all or part of this contract, and which cannot be resolved amicably within 1 (one) month, will be subject to jurisdiction. exclusive to the Paris Court -France.