Sonnenburger Str. 73, 10437 Berlin
Phone: +49 (0)30 555 713-00
Fax: +49 30 6098483-99
Gary Lin, Tim Nilsson
Registry Office: Charlottenburg District Court
Registry Number: HRB 114678 B
VAT ID Number: DE814998388
Voltu Standard Terms and Conditions
These Voltu Standard Terms and Conditions, version one, will apply to the Campaign Specifications agreed on between Glispa GmbH and Subscriber to the Voltu platform. Glispa GmbH and Subscriber agree to be legally bound as follows:
- “Advertiser” means any client of Glispa GmbH.
- “Advertisement” means any or all of the following: individual ads, impressions, clicks, downloads or installs.
- “Campaign Specifications” means all details regarding the campaign that Subscriber agrees to deliver, including any or all of the following: daily cap, Advertisement category, geographical region, and promotional channel.
- “Confidential Information” means all data and information of a confidential nature, disclosed during the term of the agreement by one party to the other party, as well as information of which the receiving party knows or should know that the disclosing party regards such information as confidential, including but not limited to:
- a party’s business plan, strategy, know how, marketing plans, finance, personally identifiable end user information, pricing, technology, personnel matters, trade secrets;
- the terms of the present agreement;
- any information marked or designated by the disclosing party as confidential.
- Information is not Confidential Information if:
- it was already publicly known when received by the receiving party;
- the information was known to the receiving party prior to receiving it from the disclosing party; or
- the receiving party has developed it independently.
- “Creative” means creative included in Advertiser’s advertising material.
- “Glispa” means Glispa GmbH.
- “Irregular Events” means any of the following occurrences or activities, regardless of whether or not they are carried out by, condoned by, or known to Subscriber at whatever given point in time:
- impressions, clicks, installs or actions generated by false representation, duress or force;
- automated means to increase the number of impressions, clicks, installs or actions through tracking links or completion of any required information by use of spyware, use of steal ware or use of cookie-stuffing;
- impression data matches click data;
- more than 70% of installs are received after one hour from the initiated click; or
- the click to install rate amounts to less than 0.25%.
- “Subscriber” means any person who subscribed to the Voltu platform at www.voltu.com and that Glispa accepted as a publisher on that platform.
- Persons interested in becoming a Subscriber may do so by registering an account with the Voltu platform at www.voltu.com.
- All fields in the registration form which are marked “required” must be completed, in particular:
- full name;
- home address;
- date of birth and place of birth;
- nationality or nationalities;
- e-mail address;
- whether Subscriber has a VAT ID; and
- if Subscriber has a VAT ID, the number of the VAT ID.
- Any information submitted during registration must be correct and complete. Subscriber must keep all information up to date. If any of the information submitted is incorrect, Subscriber will bear any fiscal, legal or financial consequences that may result from the incorrect submission.
- By registering, the potential Subscriber submits a binding offer to enter into a contract with Glispa which shall be governed exclusively by the present agreement.
- The agreement between Subscriber and Glispa is concluded when Glispa explicitly notifies Subscriber that Glispa has accepted Subscriber’s offer.
- Subscriber who is a natural person must have reached the age of majority in the jurisdiction where Subscriber’s principal place of residence is located, and must, on no account be younger than 18 years of age. If Subscriber’s principal place of residence is located outside the country or countries of which Subscriber is a national, Subscriber must also have reached the age of majority in the jurisdiction or jurisdictions that correspond to the country of his or her nationality or nationalities.
- Subscriber will deliver Advertisements as provided for in the Campaign Specifications. Subscriber must provide appropriate context in relation to the Advertisement that Subscriber delivers.
- Subscriber warrants and represents that none of the content(s) and/or material(s) posted or uploaded by Subscriber or otherwise used by Subscriber in connection with the present agreement
- are in violation of any applicable legal rules and regulations which may reasonably be considered to apply to the publication and/or dissemination of such materials;
- infringe the intellectual property or personal rights of any third party; or
- contain or link to any material which is harmful, threatening, defamatory, obscene, harassing, that promotes discrimination, promotes illegal activities, or otherwise contains materials that may reasonably considered objectionable.
- Without prejudice to Glispa’s or any other third party’s claims and remedies, if Glispa notifies Subscriber of a violation of the placement specifics indicated in the Campaign Specifications, Subscriber must make a commercially reasonable effort to correct such violation within 24 hours.
4. Warranties and representations
- Subscriber warrants and represents that Subscriber
- will not interfere or attempt to interfere with the proper working of the Voltu platform and the tracking means applied by Glispa; and
- has the right to deliver the Advertisement as provided for in the Campaign Specifications.
- Glispa may review Subscriber’s display of Advertisements and Subscriber’s use of the Voltu platform in general.
- Glispa will grant Subscriber a non-exclusive license to use the Creative solely for the purpose contemplated by the Campaign Specifications.
- Subscriber may reject the Creative if deemed inappropriate.
- Subscriber must use the Creative in strict compliance with any written instructions provided by Glispa. Written instructions may include instructions by e-mail.
- Glispa will compensate Subscriber on a Cost Per Install (CPI) basis. The minimum compensation claim is EUR 100 (or USD 100, if the parties have agreed on USD as the currency for payouts for the specific campaign in question). If and for as long as the accumulated installs, multiplied by the CPI payout amount per install, yield an amount below that threshold, Subscriber does not acquire any claims against Glispa.
- The number of installs is determined by Glispa based on Glispa’s tracking. Glispa will use its own tracking tools or tracking tools of third parties.
- The number of installs is limited to one install per device. Glispa will not pay for several installs that have occurred in relation to the same device.
- Glispa will create a final report and make it available to Subscriber. Glispa will make reports available upon the completion of a campaign but at least on a monthly basis.
- Glispa’s final report is deemed accepted by Subscriber if Subscriber does not object to the report within 15 days after the report is made available to Subscriber. Glispa undertakes to specifically draw the attention of Subscriber to the intended significance of Subscriber’s non-objection; a corresponding alert will be contained in every report.
- Upon Subscriber’s request, Glispa will pay Subscriber. Glispa will automatically request Subscriber to enter its payment details on the Voltu platform after Subscriber requests payment. When prompted to do so, Subscriber must submit its correct and complete payment details.
- Glispa will pay Subscriber within thirty days following Subscriber’s payment request. Glispa will pay Subscriber via Direct Deposit or PayPal, provided that Subscriber’s payment details have been entered correctly.
- In accordance with applicable ISO standards, Glispa will apply SWIFT payment instruction code SHA when making a SWIFT payment to Publisher. Glispa will only pay the outgoing transfer charge. The recipient Publisher will pay the incoming transfer charge.
- Glispa will send Subscriber a credit note stating the payment that Glispa owes Subscriber. The credit note may be issued in electronic form.
- The credit note will display both the payout value and the applicable VAT. The credit note may be subject to reverse charge procedure. Subscriber agrees that he should contact a tax advisor in his home country if Subscriber is unsure about the taxation that applies to his payout in his home country.
- Subscriber will review the credit note and will immediately inform Glispa if the credit note is not accurate.
- Subscriber must comply with all applicable regulations and with standard industry practice, including but not limited to regulations and industry practice regarding:
- child protection;
- gambling; and
- applicable privacy and data protection regulations.
- Subscriber must not:
- send unsolicited e-mail that mention Advertiser;
- to another Subscriber’s detriment, interfere with Glispa’s tracking link;
- incentivize the end user (“incentivization”).
- Section 3 lit. b remains unaffected.
- The so-called “black list” of commercial practices which, under Directive 2005/29/EC, are in all circumstances considered unfair, is included in Schedule 1 hereto. Schedule 1 is by no means an exhaustive representation of unfair or illegal commercial practices which Subscriber must avoid. Subscriber is aware that Directive 2005/29/EC, as well as Member States’ implementing legislation, may be altered or amended, and that it is for Subscriber alone to continuously monitor the regulatory framework that is relevant to Subscriber’s activities, including, without limitation, any potential modifications to Directive 2005/29/EC, as well as Member States’ implementing legislation.
8. Advertisement resulting from Irregular Events
- Subscriber must not provide Advertisements resulting from Irregular Events.
- Glispa will not pay Subscriber for Advertisements resulting from Irregular Events.
9. Confidential Information
- The parties must not disclose any Confidential Information.
- The receiving party must hold all Confidential Information in trust and confidence and, except as may be authorized by the disclosing party, must not use such Confidential Information for any purpose other than as expressly set forth in the present agreement or disclose any Confidential Information to any person,
except to those of its employees and professional advisers who need to know such information in order for the receiving party to perform its obligations hereunder and who have entered into a confidentiality agreement.
- A disclosure is not a prohibited disclosure within the meaning of the present agreement if:
- the disclosing party has expressly consented to the disclosure in writing prior to the disclosure;
- the disclosure is made to external advisors, auditors, attorneys or experts, provided that the respective receiving party is under a professional duty of confidentiality; or
- the disclosure is made in order to comply with a legal requirement or with a decision made by a competent court or arbitral tribunal, or a stock exchange or supervisory authority, or some other government authority, provided that (i) the disclosing party is made aware of the disclosure either prior thereto or as soon as possible subsequent thereto; and (ii) the receiving party has made reasonable efforts to maintain the information’s confidential character.
- Following termination, each party must use reasonable commercial efforts to return or destroy the other party’s Confidential Information.
10. Non circumvention
- Glispa maintains and controls all Advertiser contact and account management. Subscriber must not contact Advertiser without Glispa’s prior consent.
- Subscriber must not circumvent Glispa directly or indirectly under any circumstances for the duration of the campaign as well as the three months that follow the termination of such campaign. In particular, Subscriber warrants and represents that it will not enter into any negotiations and/or contracts with an Advertiser provided it is known to Subscriber that the entity in question is an Advertiser. For the purposes of the interpretation of this article, it is insignificant whether it was the Advertiser or whether it was Subscriber which took the initiative to negotiate and/or contract with Subscriber.
Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.
- Nothing in this Agreement shall limit or exclude the liability of either party, provided that the claims giving rise to liability arise out of:
- infringements of life, body or health; or
- the assumption of a guarantee or of a procurement risk; or
- the German Product Liability Act; or
- intentional or grossly negligent conduct of Glispa or of its statutory agent or other persons which Glispa may from time to time involve in the performance of its obligations towards Subscriber; or
- violations of material contractual duties the fulfillment of which is necessary in order for the contract to be duly performed and in the compliance with which the respective other party typically places reasonable confidence (cardinal duties).
- Unless where Glispa’s liability is unlimited under lit a. above, the liability of Glispa to Subscriber, as well as the liability to Subscriber of any of Glispa’s agents, employees or other persons which Glispa may, from time to time, involve in the performance of its obligations towards Subscriber, shall, whether arising out of contract or statute, be limited to the amount that, taking into account the nature and type of the parties’ contract, in particular its volume, constitutes the damages that are typically foreseeable or, alternatively, 20,000.00 EUR, whichever greater. On no account shall Glispa’s agents, employees or any other person which Glispa may involve in the performance of the parties’ contract or contracts be liable towards Subscriber for actions or omissions for which Glispa’s liability is excluded hereunder or shall quantum-wise be liable in excess of Glispa’s liability.
- For the avoidance of doubt, contractual fulfilment claims to remuneration which Subscriber has against Glispa shall not be capped under the preceding sentence.
Subscriber will indemnify and hold Glispa harmless from and against all claims (including reasonable attorney fees and costs) arising to any third party against Glispa due to infringement of the Subscriber’s warranties and obligations under this contract. Subscriber will be liable for any damage in this connection and the costs incurred by Glispa for legal action. This will not affect any further claims Glispa may have. Subscriber shall – upon first demand by Glispa or any third party nominated by Glispa – make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.
14. Force majeure
Neither party will be responsible for delays caused by accidents, war, act of god, embargoes, or any other circumstances beyond its control.
15. Term and termination
- The present agreement will remain in full force for five years unless otherwise agreed or terminated by the parties.
- Each party has the right to terminate the present agreement at any time with immediate effect.
- The present agreement must be terminated by providing notice to the other party.
If any provision of agreement should be held to be void, invalid or unenforceable, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby. Such provision or part thereof shall be treated as severable and shall be modified so as to be enforceable to the fullest extent allowed by law and shall be replaced by a provision that comes as close as possible in terms of economic and legal effect to the replaced provision. The same shall apply to gaps (if any).
17. Non waiver; Silence; Implied conduct
- Failure of either party to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver of such terms, covenants and conditions.
- Silence on the part of one party does not in and of itself amount to acquiescence. However, reasonable inferences may be drawn from implied conduct in accordance with the applicable law as well as the parties’ prior dealings and commercial customs and practices in general.
For the purposes of the present agreement, the words “he”, “his” or “himself” shall be interpreted to include the masculine, feminine and corporate forms.
The present agreement will apply to any legal successors of the parties. In case of a legal succession, the parties will inform each other of that matter promptly.
20. Entire agreement
The Campaign Specifications and the underlying agreement will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties.
21. Governing law and resolution of disputes
- The legal relationship between Glispa and Subscriber is governed by German law. If the legal relationship with Glispa is, for Subscriber, outside the latter’s trade or profession, then the application of those provisions of the law of the country where Subscriber has his habitual place of residence shall remain unaffected to the extent that such provisions protect Subscriber and cannot be derogated from by agreement by virtue of the law.
- The exclusive venue of jurisdiction shall be Berlin-Pankow/Weissensee, if
- Subscriber is a natural person, has his or her principal place of residence in Germany and is a merchant, a legal person under public law or a special asset under public law; or
- Subscriber has his or her principal place of residence and/or – in the event of a legal person or other entity – its seat in Germany at the point in time when these Standard Terms and Conditions become binding on Subscriber, provided that, subsequent to that point in time, Subscriber relocates his or her principal place of residence or its seat to a country outside the European Economic Area (EEA); or
- Subscriber has his or her principal place of residence or has its seat outside Germany and has entered into the contract with Glispa for a purpose which cannot be regarded as being outside Subscriber’s trade or profession.
- If the Subscriber has his or her principal place of residence or has its seat outside Germany and has entered into the contract with Glispa for a purpose which can be regarded as being outside the Subscriber’s trade or profession, then Berlin-Pankow/Weissensee shall be the concurrent venue of jurisdiction.
ANNEX I TO DIRECTIVE 2005/29/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’)
COMMERCIAL PRACTICES WHICH ARE IN ALL CIRCUMSTANCES CONSIDERED UNFAIR
- Claiming to be a signatory to a code of conduct when the trader is not.
- Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
- Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
- Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
- Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable
grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
- Making an invitation to purchase products at a specified price and then:
- refusing to show the advertised item to consumers; or
- refusing to take orders for it or deliver it within a reasonable time; or
- demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch).
- Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
- Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction.
- Stating or otherwise creating the impression that a product can legally be sold when it cannot.
- Presenting rights given to consumers in law as a distinctive feature of the trader’s offer.
- Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC.
- Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
- Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
- Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.
- Claiming that the trader is about to cease trading or move premises when he is not.
- Claiming that products are able to facilitate winning in games of chance.
- Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
- Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
- Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
- Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
- Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
- Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.
- Creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold.
- Creating the impression that the consumer cannot leave the premises until a contract is formed.
- Conducting personal visits to the consumer’s home ignoring the consumer’s request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation.
- Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (1) and 2002/58/EC.
- Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.
- Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
- Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where the product is a substitute supplied in conformity with Article 7(3) of Directive 97/7/EC (inertia selling).
- Explicitly informing a consumer that if he does not buy the product or service, the trader’s job or livelihood will be in jeopardy.
- Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either: — there is no prize or other equivalent benefit, — taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.