A. General Terms Applicable to Multi-Campaign Advertising
I. DEFINITIONS
“Ad” means any advertisement provided by or on behalf of the Client pursuant to an IO that is published by or on behalf of Softonic, whether that be via the Softonic Properties or the Softonic Affiliate Network.
“Advertising Materials” means any artwork, copy or URLs provided by or on behalf of the Client and used for Ads.
“Affiliate” means, with respect to an entity, any other entity directly or indirectly controlling, controlled by or under common control with such entity, excluding the Softonic Affiliate Network.
“Agreement” means these Terms and each agreed IO.
“Authorised Agency” means the advertising or media agency listed on the applicable IO and authorised to act on behalf of the Client.
“Business Days” means any day other than Saturday, Sunday or a public holiday in Barcelona.
“Client” means the entity on whose behalf an Ad is published, as set out in the relevant IO.
“IO” or “Insertion Order” means the order agreed in writing and signed by both Softonic and the Client or, as the case may be, an Authorised Agency pursuant to these Terms, in the format provided by Softonic.
“Network Properties” means the websites of Third Parties which are the subject of agreements with Softonic for the publication of Ads, collectively forming the “Softonic Affiliate Network”.
“Policies” means advertising criteria or specifications made available by Softonic to the Client, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Softonic’s public image, community standards regarding obscenity or indecency, other editorial or advertising policies and deadlines for the provision of Advertising Materials, including any such policies available on https://hello.softonic.com/ads-software-policies/ as amended from time to time and, if applicable, communicated to / provided to the Client with the IO.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means the Softonic Properties and/or the Network Properties.
“Softonic” means Softonic International, S.A., a company registered pursuant to the laws of Spain, with its registered office at Edificio MediaTIC, Calle Roc Boronat, 117, 6th floor, 08018 Barcelona, Spain. Otherwise, the Softonic’s Affiliate company set forth in the relevant IO.
“Softonic Properties” means the websites specified on the IO that are owned, operated or controlled by Softonic.
“Terms” means these Terms and Conditions of Multi-Campaign Advertising, including any Specific Terms.
“Third Party” means an entity or person that is not a party to an IO nor an Affiliate nor representative of such party.
“Third Party Ad Server” means a Third Party that will publish and/or track Ads.
II. INSERTION ORDERS
Acceptance of the IO and these Terms will be deemed to have taken place on the date of written approval of the IO by Softonic and the Client, or, as the case may be, an Authorised Agency,as evidenced by an IO in the form provided by Softonic, signed by the authorised Representatives of each of Softonic and the Client or, as the case may be, the Authorised Agency. Softonic will make commercially reasonable efforts to notify Client or the Authorised Agency within two (2) Business Days of receipt of a proposed IO signed by the Client or Authorised Agency if Softonic will be unable to comply with the matters requested in the proposed IO or in cases that Softonic wishes to obtain confirmation pursuant to Section III below. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing and signed by both Softonic and the Client or the Authorised Agency. Client or Authorised Agency may be required to provide information or documentation to, among others, proof its good standing, existence and/or creditworthiness. Softonic may reject any proposed IO (or, where appropriate, cancel or suspend any Ad campaign) within two (2) Business Days upon Softonic request, if Client or Authorised Agency fails to submit a certificate of incorporation or legal existence or a certificate of good standing or any other information or documentation as reasonably required by Softonic to proof the foregoing.
III. PAYMENT AND PAYMENT LIABILITY
a. Invoicing and Payment. Softonic will invoice the Client or, as the case may be, the Authorised Agency monthly, with invoices to be paid within 30 calendar days of receipt. The initial invoice will be sent by Softonic upon completion of the first month’s Ad publications or within 30 calendar days of completion of the IO, whichever is the earlier. Invoices will be sent to the Client’s or Authorised Agency´s billing address as set out on the IO and shall include the IO number, the amount due on the basis of Softonic´s reporting system and including any services or other tax that may be due, the Client´s name, address and local tax reference number, the Authorised Agency´s name, address and local tax reference number (if applicable), the brand name or campaign name and any reference number stated on the IO as being required for invoicing. Upon a Client´s or Authorised Agency’s reasonable request, Softonic may provide proof of performance for the invoiced period on the basis of Softonic´s reporting system. Any wire transaction fees that arise will be borne by the Client. Softonic may apply interest with respect to Softonic invoices not paid following their due date, and in such cases the Client or, as the case may be, the Authorised Agency agrees to pay interest on the total of any unpaid invoices outstanding from time to time, from the due date of payment of the invoice(s) in question to the date of actual payment at the rate of 8% per annum.
b. Payment Liability. In the event of proposed IO´s sent to Softonic by an Authorised Agency on behalf of a Client, Softonic has the right to seek written confirmation of the relationship between the Authorised Agency and the Client and the Client´s confirmation that the Agency is authorised to act on its behalf in connection with the IO and these Terms.
c. Deposit. If during the term of an IO or Ad campaign, the Client or Authorised Agency incurs in payment delays or Softonic becomes aware thanks to a Third Party report or has reasonable and well-founded suspicion that the creditworthiness of the Client or Authorised Agency is deteriorating, Softonic may request full or partial advanced payment of the budget or price agreed in the IO. Softonic may suspend or cancel any IO or Ad campaign, if the Client or Authorised Agency fails to pay the relevant advanced amounts within three (3) Business Days after receipt of Softonic’s written request. In case of suspension, the IO or Ad campaign will be resumed once Softonic receives payment.
d. Credit limit. Notwithstanding the foregoing, if during the term of an IO or Ad campaign, the Client or Authorised Agency incurs in payment delays or Softonic becomes aware thanks to a Third Party report or has reasonable and well-founded suspicion that the creditworthiness of the Client or Authorised Agency is deteriorating, Softonic may impose a credit limit to the Client or Authorised Agency. Softonic shall in all cases promptly notify such credit limit to the Client or Authorised Agency. If the Client or Authorised Agency wished to exceed the credit limit, Softonic may request advanced payment of the relevant amounts. Softonic may suspend or cancel any IO or Ad campaign, if the Client or Authorised Agency fails to pay such amounts within three (3) days after receipt of Softonic’s written request. In case of suspension, the IO or Ad campaign will be resumed once Softonic receives the relevant payment. Softonic may also impose a credit limit before signing any IO if it is justified by the creditworthiness of the Client or Authorised Agency, according to independent Third parties’ Reports or if Softonic has reasonable and well-founded suspicion of the creditworthiness of the Client.
IV. CANCELLATION AND TERMINATION
a. Without Cause. Except for specific conditions appearing within the IO, either party may cancel the entire IO, or any portion thereof, by providing the other party with no less than fourteen (14) days´ written notice. However, in the event of cancellation by the Client or Authorised Agency, the Client or Authorised Agency will remain liable to Softonic for and will be subject to the payment of any custom content or development undertaken by Softonic or its Affiliates as at the date of the notice of cancellation of the IO.
b. For Cause.
(i) Either Softonic or the Client or Authorized Agency may immediately terminate an IO (or any portion thereof) by giving written notice to the other party if such other party is in material breach of its obligations pursuant to these Terms and/or the IO, and the breach is not capable of remedy or, if capable of remedy, if it is not cured within ten (10) Business Days after receipt of written notice from the non-breaching party.
(ii) If the Client or Authorised Agency breaches its obligations by violating the same Policy on three (3) occasions and receives timely notice of each such violation from Softonic, then following the third notification of such violation.
(iii) Softonic may immediately terminate the IO or any portion of it by providing written notice to the Client or Authorised Agency.
c. Consequences of termination. After the expiration or termination of any IO for any reason whatsoever and without prejudice to any other applicable provisions set forth in these Terms or an IO: i) Softonic will immediately stop any Ad campaign and publishing any Ad on Softonic the Sites; (ii) each Party will return or destroy all Confidential Information, as required under Section IX (iii) all provisions of these Terms of any IO which by their nature are intended to continue in effect after the expiration or termination and all rights and remedies of the parties that accrued up to the termination date or by virtue of the termination or expiration will survive the termination date..
V. FORCE MAJEURE
Neither the Client or Authorised Agency nor Softonic will be liable for a delay or default in the performance of its respective obligations under these Terms or an applicable IO if such delay or default is caused by conditions an event which could not have been foreseen or which, being foreseeable, is inevitable, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God or labour disputes not caused by or beyond the control of such party (“Event of Force Majeure”). The affected party shall promptly notify the other party of the occurrence of an Event of Force Majeure and the estimated extent and duration of its inability to perform its obligations. Except if the event of force majeure was known by the other party, the affected party which fails to promptly inform the other party of the occurrence of such event shall be held liable for its failure or delay in performing its obligations under these Terms or an applicable IO. During the existence of the event of force majeure the parties shall cooperate, make their best efforts and adopt all reasonable measures in order to remove or mitigate its effects and comply with the obligations assumed under under these Terms or an applicable IO. If an Event of Force Majeure continues for a period of five (5) Business Days, either party has the right to cancel the IO without penalty by giving written notice to the other party. However, such cancellation will not alter a party´s liability for payments due as at the time that the Event of Force Majeure commenced.
VI. ADVERTISING MATERIALS
a. Submission. Advertising Materials with respect to the Ads must be submitted to Softonic in compliance with the Policies at least three (3) Business Days prior to the agreed IO start date. In the period preceding the Client or Authorised Agency sending a proposed IO to Softonic, or at the time that the Client or Authorised Agency sends a proposed IO to Softonic, the Client or Agency will provide Softonic with an explanation of how the Ads will operate and integrate with user systems.
b. Late Receipt. If Softonic does not receive Advertising Materials that comply with the Policies at least three (3) days prior to of the agreed IO start date, nonetheless Softonic will be entitled to charge the Client or Authorised Agency as from the agreed IO start date. If Softonic receives Advertising Materials late pursuant to the Policies (that is, in breach of Section 6(a) above), Softonic will not be obliged to guarantee full delivery of the IO and publication of the Ad(s) by the IO start date. In the event that a delay in the receipt of the Advertising Materials prevents Softonic from publishing the Ad(s) within a period of two (2) days from the IO start date, Softonic and the Client or Authorised Agency will negotiate a resolution of the matter in good faith.
c. Compliance. Softonic reserves the right, to reject or remove from any of the Softonic Properties or the Network Properties any Ads, hyperlinks, code or software the subject of an IO for which the Advertising Materials, software code associated with the Advertising Materials or the website to which the Ad is linked that: (i) do not comply with its Policies, or are in breach of any of the provisions or specifications of these Terms or an IO, or (ii) do not comply with any applicable laws or regulations, or (iii) are, or may tend to bring, disparagement, ridicule or scorn upon Softonic or any of its Affiliates or damage or undermine (or are likely to damage or undermine) their image or business reputation.
d. Damaged or Unacceptable Materials. If any Advertising Materials provided by the Client or Authorised Agency are: (i) damaged, (ii) not in compliance with Softonic’s Policies, whether that be due to a failure to pass Softonic´s technical testing or otherwise, or (iii) otherwise unacceptable or unfit for publication, then Softonic will use commercially reasonable efforts to notify the Client or Authorised Agency within two (2) Business Days after receipt of such Advertising Materials and will not be obliged to publish the relevant Ad(s) until Client remedies the Advertising Materials.
e. No Modification. Softonic agrees not to edit or modify Advertising Materials or Ads submitted by the Client or Authorised Agency in any way without the Client´s or Authorised Agency prior approval.
VII. INDEMNIFICATION
a. By Softonic. Softonic will defend, indemnify and hold harmless the Client or Authorised Agency from damages, liabilities, costs and expenses (including reasonable attorneys’ feesand judicial and extrajudicial costs) (collectively, “Losses”) resulting from any claim, judgment or proceeding (collectively, “Claims”) brought by a third party and resulting from (i) Softonic’s breach of Section IX (relating to confidential information), or (ii) Softonic’s breach of representations and warranties in Section X, (ii) Softonic’s display or delivery of any Ad in breach of the express terms of the IO, or (iii) any advertising materials or related content created by or behalf of Softonic for an Ad (“Softonic Advertising Materials”) that: (A) violate any applicable laws or regulations or the rights of a third party, or (B) are defamatory or obscene, except in circumstances where the Client or Authorised Agency assumes responsibility for such advertising materials or related content, including where the Client or Authorised Agency has directed the preparation of such advertising materials or related content.
b. By the Client. The Client will defend, indemnify and hold harmless Softonic and each of its Affiliates from Losses resulting from any Claims brought by a third party resulting from (i) the Client´s breach of Section IX (relating to confidential information), or (ii) the Client´s breach of representations and warranties in Section X, or (iii) the Client´s violation of the Policies, these Terms or an IO.
c. By the Authorised Agency. The Authorised Agency represents and warrants that it has full authority to act on behalf of the Client and bind the Client to these Terms and the IO. The Authorised Agency will defend, indemnify and hold harmless Softonic and each of its Affiliates from any Losses resulting from (i) the Authorised Agency’s breach of the foregoing warranty, or (ii) any Claims brought by a third party resulting from (A) the Authorised Agency´s breach of its relationship with the Client (B) and/or the Authorised Agency´s breach of Section IX (relating to confidential information), (C) the Authorised Agency´s breach of representations and warranties in Section X, or (D) the Authorised Agency´s violation of the Policies, these Terms or an IO.
d. Procedure. The indemnified party will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay) and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims, and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims provided. The indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party, without the indemnified party´s prior written consent.
VIII. LIMITATION OF LIABILITY
Except in the case of gross negligence, fraud or gross or willful misconduct, no party will be liable to the other for any, indirect, special, incidental, consequential or punitive damages, however caused, including but not limited to whether caused by the act, breach, omission, default or negligence of either party, its employees, contractors or sub-contractors, which shall include loss of profit, revenue, business or anticipated savings, loss of contract, loss of goodwill or reputation and loss of data or information..
IX: CONFIDENTIALITY
a. Definitions and obligations. “Confidential Information” shall mean and include any all data and information disclosed by a party to the other party during the term of this contract (whether written or oral, regardless of the way in which it has been provided or the medium on which it is stored), information designated as confidential by either party and all other information which relates to the business, affairs, customers, products, developments, trade secrets, know-how and personnel of either party.
The receiving party shall: a) keep the Confidential Information in strict confidence; b) not disclose any of the Confidential Information in any manner to any third party; c) use the Confidential Information solely for the purposes established in this contract; d) adopt the measures necessary to protect the Confidential Information received form the disclosing party against disclosure, which shall be at least the same measures used to protect its own confidential information; e) communicate an allow access to the Confidential Information solely to those employees, individuals and legal entities providing services to the receiving party which may require it for the purposes of this contract. Each party shall be responsible for any breach of the confidentiality obligations by the individuals or legal entities to whom it has communicated the Confidential Information; f) make no copies of any Confidential Information or introduce modifications in it without the disclosing party’s prior consent; g) not assert any claim of title or ownership to the Confidential Information or any portion thereof; h) if Confidential Information consists of computer software disclosed in object code form, not, and not permit any other party, to reverse engineer, reverse compile, or disassemble such object code, or take any other steps to derive a source code equivalent thereof except for that part of the computer software that contains interface information.
b. Exceptions: The confidentiality obligations shall not apply to that information which: a) is or becomes publicly available other than as a result of the breach by the receiving party of the terms of this contract; b) is already in the receiving party’s possession prior to disclosure by the disclosing party or is independently derived by the receiving party without the aid, application or use of the Confidential Information or other than by breach of these confidentiality obligations; c) is lawfully disclosed to the receiving party by a third party on a non-confidential basis; or d) is required to be disclosed by law or at the formal request from a court, an administrative body or any other competent authority. In these cases, the receiving party shall promptly inform the disclosing party of such obligation by providing prior written notice so that the disclosing party may seek a protective order or any other appropriate remedy.
c. Other provisions. Upon the disclosing party’s first written request and, in any event, upon expiration or termination of the contract, the receiving party shall immediately return all Confidential Information (originals, copies, reproductions and any other material) to the disclosing party or, if so requested by the disclosing party, destroy it. In these cases, the receiving party shall confirm in writing that this obligation has been fulfilled. The parties expressly agree that the confidentiality obligations established herein shall remain in force during five (5) years after the expiration or termination of the contract for any reason whatsoever.
d. Infringement. The infringement of the confidentiality obligations set out herein shall constitute a serious breach of these Terms and shall entitle the affected party to immediately terminate any agreed IO with no cost or penalty and without prejudice of its right to take the appropriate actions in order to grant the compensation for the damages derived from the infringement.
X. MISCELLANEOUS
a. Warranties.
(i) Softonic represents and warrants that it has all necessary rights, permits, licenses and clearances to provide the services and publish the Ads as specified in the IO, subject to these Terms.
(ii) The Client or, as the case may be, the Authorised Agency, represents and warrants that it has all necessary rights, permits, licenses and clearances to use the content contained in the Ads and the Advertising Materials as specified in the IO and to Softonic for publication on the Sites, subject to these Terms, including any applicable Policies.
(iii) The Authorised Agency represents and warrants that it is authorised to act on behalf of the Client and bind the Client with respect to the IO and these Terms including any applicable Policies.
(iv) Each of the Client or, where applicable, the Authorised Agency and Softonic agree to post on their respective websites their privacy policies in conformity with the applicable laws and regulations, and abide by such policies and any applicable data protection regulations. A party´s failure to maintain such policy or comply with the policy or with any applicable data protection regulations will be grounds for immediate termination of the IO by the non-defaulting party.
(v) Softonic and the Client or, where applicable, the Authorised Agency each warrant to comply with all local laws, ordinances or regulations that apply to the performance of their respective obligations pursuant to the IO and these Terms.
(vi) The Client or, where applicable, the Authorised Agency shall not, and shall not authorise or encourage any third party to: (A) directly or indirectly generate queries, or impressions of or clicks on any Ad, link, search result or referral button through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the unauthorised use of other search engine optimisation services and/or software; (B) display Softonic´s trademarks or link any of the Softonic Properties or any Network Properties on any web page or any web site that contains any pornographic, hate-related, violent or illegal content; (C) act in any way that violates Policies from time to time or any other agreement between the Client or the Authorised Agency and Softonic; (D) disseminate any form of malware or virus software; or (E) engage in any action or practice that reflects poorly on Softonic or otherwise disparages or devalues Softonic´s reputation or goodwill. The Client or, where applicable, the Authorised Agency acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Terms and that Softonic may pursue any and all applicable legal and equitable remedies against the Client or the Authorised Agency, including an immediate suspension of the Client’s or the Authorised Agency´s account or immediate termination of any agreed IO, and the pursuit of all available civil or criminal remedies.
b. Assignment. Neither the Client nor the Authorised Agency may re-sell, assign or transfer any of its rights or obligations pursuant to these Terms and/or an agreed IO, and any attempt to re-sell, assign or transfer such rights or obligations without Softonic’s prior written consent will be null and void. Softonic has the right to assign or transfer its rights or obligations pursuant to these Terms and/or an agreed IO to any of its Affiliates by providing fifteen (15) days prior written notice to the Client or Authorised Agency.
c. Entire Agreement. These Terms and each agreed IO will constitute the entire understanding and agreement between the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, arrangements and agreements, either oral or written, between the parties with respect to the subject matter thereof. The IO may be executed in counterparts, each of which will be an original and all of which together will constitute one and the same document. No addition to, modification or amendment of any provision of this Agreement shall be effective, valid or binding unless made in writing and signed by duly authorised representatives of each of the parties..
d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of the IO and these Terms, the terms of the IO will prevail. All IOs and these Terms will be governed by the laws of Spain. Softonic and the Client and the Agency (where applicable) agree that any disputes arising out of in connection with the IO or these Terms shall be referred to mediation, and the parties will endeavor in good faith to agree to the location of the mediation and the identity of the mediator. Should no such agreement as to mediation be reached following a period of ten (10) Business Days, then any claims, legal proceedings or litigation arising out of or in connection with these Terms or the IO may be brought in the Courts or Tribunals of Barcelona, Spain, and the parties consent to the exclusive jurisdiction of such courts. No modification of these Terms will be valid or binding unless in writing and signed by both parties. If any provision of these Terms is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Notice. Any notice required to be delivered to a party will be deemed delivered if sent electronically or by fax with a confirmation of receipt or by registered post with a confirmation of receipt, and the relevant notice period will commence on the first Business Day following delivery. All notices to Softonic and the Client or, where applicable, the Authorised Agency will be sent to the contact name and details as noted on the IO.
f. Data protection. (i) For the purposes of this section X.f) of these Terms, the following terms shall have the respective meanings ascribed to them as follows; “Data Controller” means a natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of Personal Data; “Data Protection Laws” means any and all applicable laws and regulations relating to the processing, privacy, and use of Personal Data including, without limitation, (i) prior to 25 May 2018, the Data Protection (Directive 95/46/EC); (ii) on and after 25 May 2018, the GDPR; (iii) the EU e-Privacy Directive (Directive 2002/58/EC), (iv) any corresponding or equivalent national data protection laws or regulations ; and (v) any judicial or administrative interpretation of any of the above, and any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant lawful data protection regulatory authority; “GDPR” means Regulation 2016/679 of the European Parliament and of the Council which shall be fully applicable on 25 May 2018; “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; and “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.
(ii) Each party represents and warrants that its processing of Personal Data does and will comply with the Data Protection Laws.
(iii) The parties acknowledge and agree that each party shall be Data Controller of the Personal Data it collects and shall be responsible for its own obligations as a Data Controller under any agreed IO and these Terms and the Data Protection Laws, including in particular, but without limitation: (a) ensuring that there is a lawful basis on which Personal Data can be processed by it; (b) ensuring that it keeps Personal Data secure at all times, including by implementing and maintaining appropriate technical and organisational measures in relation to its processing of Personal Data so as to ensure a level of security appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
(iv) The parties acknowledge and agree that, insofar as Data Subjects visiting the Softonic Properties or viewing Ads delivered to Softonic Properties give their consent, the Client, or, as the case may be, the Authorised Agency may install cookies in such Data Subjects’ devices. The Client or the Authorised Agency warrants that it will collect and process the Personal Data obtained from the installation and use of cookies for the permitted purposes set forth in the agreed IOs and these Terms only. For the avoidance of doubt, the Client or, as the case may be, the Authorised Agency shall be the Data Controller of the Personal Data collected from the installation and use of cookies in the devices of Data Subjects visiting Softonic Properties or viewing Ads delivered to Softonic Properties.
(v) As the Client or the Authorised Agency does not have a direct relationship with any Data Subject visiting Softonic Properties or viewing Ads delivered to Softonic Properties, and in each case where consent is necessary for the use of cookies, the collection of information from Data Subjects’ devices and the processing of Personal Data pursuant to the Data Protection Laws, Softonic shall obtain the specific, informed, unambiguous and freely given consent of each Data Subject for the use of cookies, the collection of information from Data Subjects’ devices, and the processing of their Personal Data by the Client or the Authorised Agency for the purposes indicated above. Softonic will have, and ensure that all Softonic Properties contain appropriate, clear, concise, easily accessible notifications in accordance with the Data Protection Laws that provide transparency to Data Subjects about the use of cookies, what Personal Data is being collected and processed by the Client or the Authorised Agency, the purposes of such processing, and any other disclosures required by the Data Protection Laws. For these purposes, the Client or the Authorised Agency shall provide Softonic with the necessary information for Softonic to be able to gather valid consent under the Data Protection Laws. The Client or, as the case may be, the Authorised Agency represents and warrants that it will be technically feasible that Data Subjects are able to opt-out through the Network Advertising Initiative (NAI) opt-out mechanism.
The Client or, as the case may be, the Authorised Agency shall defend, indemnify and keep Softonic, its affiliates, directors, agents, employees and Data Protection Officer harmless from, against and in respect of any and all losses, damages, liabilities, costs, sanctions, charges, expenses (including reasonable attorneys’ fees), claims, complaints, lawsuits, extra-judicial proceedings, mediation, arbitration, administrative proceedings, sanction or infringement proceedings whatsoever suffered or incurred by Softonic, or for which Softonic may become liable, as a result of, or arising directly or indirectly out of, or in connection with actions or omissions of or the breach by the Client or the Authorised Agency (or its processors and sub-processors, where applicable) with regard to the obligations under this section X.f) of these Terms or the applicable Data Protection Laws.
(vi) For the sole purpose of maintaining and managing the contractual relationship between the parties and for the proper performance of the agreed IOs and these Terms, each party shall receive Personal Data of the other party’s employees (i.e. employees’ business/commercial contact details). Each party represents and warrants that it has the legal basis required for processing such Personal Data and for sharing it with the other party. This Personal Data received from the other party shall be processed for the purposes of maintaining and managing the contractual relationship between the parties, contacting with the other party for the purposes of this Agreement and for the proper execution of the rights and obligations hereunder. The Personal Data received from the other party may not be used or processed for purposes other than those set out herein. With regard to this Personal Data that each party receives from the other party, the parties undertake to: (i) process it at all times in accordance with the Data Protection Laws, complying with the obligations laid down therein; (ii) provide the Data Subjects with the information set out in Article 14 of the GDPR and in the form and by the deadlines mentioned therein; and (iii) in the event of a Personal Data Breach, notify the other party at the time when it becomes aware of it, indicating the relevant aspects the other party must know and ensuring, in all cases, that the other party can comply with its obligations under the Data Protection Laws, where relevant. Each party shall provide reasonable assistance, information and co-operation as regards data protection matters where requested by the other party in respect of the Personal Data shared between them pursuant to this section paragraph, including: (i) in respect of any claim and/or exercise or purported exercise of rights by a Data Subject under the Data Protection Laws, or any investigation or enforcement activity by the applicable data protection regulator, which relates to or is connected with the other party’s processing of the Personal Data shared pursuant to this Agreement; (ii) providing the other party with such information as required pursuant to the applicable Data Protection Laws; and (iii) in the event of any Personal Data Breach.
(vii) Each party shall not do or permit anything to be done through act or omission that would cause the other party to incur any liability under Data Protection Laws.
(viii) Paragraphs (i) to (vii) of this section X.f) apply where and to the extent Personal Data originates from the European Economic Area (“EEA”) or is otherwise subject to or protected by EU Data Protection Laws. If not applicable, the parties undertake (a) to comply at all times with any and all data protection and privacy laws, regulations and requirements anywhere in the world that may be applicable to them; (b) to keep the personal data or information they process secure and confidential at all times adopting the necessary measures for these purposes; (c) not to do or permit anything to be done through act or omission that would cause the other party to incur any liability under the applicable data protection and privacy laws, regulations and requirements.
g. Intellectual Property. “Intellectual Property Rights” shall mean and include, without limitation, all rights on trade secrets, inventions patents, copyrights, designs, trademarks, service marks, trade names, domain names, logos, know-how, database rights, software, hardware and other proprietary rights (whether registered or unregistered or capable of registration), and all applications and registrations for and extensions and renewals of such rights or any of them, anywhere in the world. Except as expressly provided herein, the parties agree that nothing in Terms of an agreed IO shall be construed as an assignment, transfer, license or right over any Intellectual Property Rights owned by or licensed to the other party. Both parties shall maintain full ownership of any Intellectual Property Rights that may be disclosed to each other by virtue of these Terms of an agreed IO. Except as expressly provided herein, neither of the parties may use the intellectual and industrial property of the other party without its prior written authorization. Each party acknowledges and accepts that it is only permitted to use the intellectual and industrial property of the other party for the purposes of and during the term of this agreement and only as authorized by the other party. Each party agrees not to copy, reproduce, summarize, modify, alter or distribute, without prior express authorisation of other party any text, title, application, software, logo, picture, graphic, brand, information, illustration or any other any intellectual and industrial property of the other party. Any rights of use over any intellectual or industrial property of the parties, where appropriate, shall conclude upon expiration or termination of this agreement for any reason whatsoever. Each party shall defend and hold the other party harmless against any and all claim, action, suit or proceeding brought against that party so far as it is based on any actual or threatened infringement of any Intellectual Property Rights by it, provided that it is given prompt notice in writing of any such claim and is given full authority and such information and assistance as is reasonably necessary for the defence of such claim.
h. Waiver. The failure by either party to exercise or the delay in exercising any right or remedy provided by these Terms or an agreed IO or by law shall not constitute or be construed as a waiver of that right or remedy, a waiver of any other right or remedy or in any way affect the validity of these Terms or an agreed IO. No waiver shall be effective or binding unless given in writing and no waiver of a right or breach of this these Terms or an agreed IO shall constitute a waiver of any preceding or subsequent right or breach.
i. Independent Contractors. For the purposes of this Agreement, the parties will at all times be independent contractors with no right to bind or obligate the other in any manner whatsoever.
B. Specific Terms Applicable to Display Advertising
These terms are incorporated with, and further to, the General Terms Applicable to Multi-Campaign Advertising
I. AD PLACEMENT
a. Changes to Site. Softonic will use commercially reasonable efforts to provide the Client or the Authorised Agency with at least ten (10) Business Days prior written notice of any material changes to the Softonic Properties or Network Properties the subject of the IO that would materially alter the target audience or materially affect the size or placement of the Ad. The Client or Authorised Agency may then notify Softonic in writing of its decision to cancel the IO following receipt of a notice of such change and at least one (1) day prior to the change(s) taking effect. If Softonic has failed to provide any prior written notice of any such material change(s) to the Site, the Client or Authorised Agency may cancel the IO when it becomes aware of the change and it will not be charged for any affected Ads published after such changes to the Site.
b. Technical Specifications. Softonic or Authorised Agency will use commercially reasonable efforts to submit to the Client any final technical specifications for the publication of the Ad(s) within two (2) Business Days after acceptance of the IO.
II. MAKE GOOD PROCEDURE
a. Notification of Under-Delivery. Softonic will monitor the performance of the Ads the subject of the IO and, in the event of Ads for which Softonic has guaranteed a delivery in the IO, will notify the Client or Authorised Agency in writing as soon as possible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 30 days) if it believes that the guarantee will not be met. In such event, the Client or Authorised Agency and Softonic may rely on the “make good” procedure set out below.
b. Make Good Procedure. In the event that a guaranteed delivery agreed by Softonic in the IO is not met, with an under-delivery of greater than 10% based on Softonic´s reports, and/or in the event of an omission of any Ad the subject of the IO, the Client or Authorised Agency and Softonic will use commercially reasonable efforts to agree upon the conditions of a “make good” publication of an Ad, to be agreed in writing as a modification to the IO. If no “make good” publication is agreed upon following a period of five (5) Business Days, the Client or Authorised Agency will be entitled to a credit note equal to the value of the under-delivered portion of the IO.
III. REPORTING
a. Confirmation of Commencement of the Ad Campaign. Softonic will, within two (2) Business Days of the start date agreed on the IO being fulfilled, provide written confirmation of the commencement of the Ad campaign to the Client or the Authorised Agency.
b. Reporting. Softonic will provide a weekly report to the Client or Authorised Agency no later than three (3) Business Days following the end of each week from the IO start date, that summarizes the date, the relevant language page of the Softonic Properties or Network Properties, the content area, the number of impressions, spend/cost and other variables as may be agreed in the IO.
If the Client or Authorised Agency informs Softonic that Softonic has delivered an incomplete or inaccurate report, or no report at all, Softonic will cure such failure within five (5) Business Days of receipt of such notice.
Updated as at May 2018