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This General Terms and Conditions (collectively with any and all Insertion Order, addendums, exhibits, premises, schedules, and/or appendixes hereto, and as each of the same may be amended, supplemented or otherwise modified from time to time, this “Agreement”), are made by and entered into between Beintoo S.p.A, with offices located at Largo Richini 2, Milan (“Beintoo”), and the other entity as indicated in the Insertion Order (“Advertiser”). Beintoo and Advertiser may be referred to herein together as the “Parties”, and each may be referred to herein as a “Party”.
WHEREAS Beintoo is a company specialized in the provision of technologies for the execution and tracking of online advertising campaigns, as well as the activation of data for the optimization of advertising campaigns and online properties, among other things;
WHEREAS Beintoo operates a location intelligence platform that collect location data obtained from signals received by mobile application in order to segment users based on geo-behaviour and it is expert in display and mobile advertising;
WHEREAS the Advertiser wants to use the Services as provided in this Agreement, as better specified in the Insertion Order;
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, the Parties, intending to be legally bound, agree as follows
“Ad” means any Advertiser’s advertising that is delivered online through the Services.
“Advertiser’s Properties” means a website, mobile application or other digital property through which Beintoo might provide the Services according to what is established in the Insertion Order, owned or legitimately managed by Advertiser and/or Advertiser’s Affiliate.
“Affiliate” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with such Party.
“Data Protection Laws” means the EU General Data Protection Regulation 2016/679 (“GDPR”), the Legislative Decree No. 196/2003 as subsequently amended, as well as any other personal data protection legislation applicable, already in force or that will enter into force after this Agreement enters into force, including the provisions of any Data Protection Authority.
“Effective Date” means the execution date of an Insertion Order and/or any date otherwise indicated by the Parties in writing, and/or in absence of the above, the starting date of the provision of the Services.
“Fees” means the amount that the Advertiser shall pay to Beintoo for the Services, as stated under Section 4.
“Inventory” means Publisher’s advertising spaces on the Sites.
“Insertion Order” means a document executed by both Parties that specifies the type of Services to be provided to Advertiser by Beintoo, the duration of the Services, a budget, Fees, and other specific details for the Services.
“Publisher” means the owners of the Sites where the Ad will be displayed with the Services.
“Rules” means, collectively, all now existing or hereinafter enacted or amended laws, rules, regulations, self-regulations, declarations, decrees, directives, statutes, and/or other enactments, orders, mandates or resolutions issued or enacted by any governmental or regulatory entity (including, without limitation, any domestic or European), which includes, to the extent applicable and without limitation, Data Protection Laws, Directive 2002/58/EC, European Commission and/or Data Protection Authority’s decisions and guidance, each as may be transposed into domestic legislation and as amended, replaced or superseded from time to time, including, without limitation, any and all applicable self-regulatory codes and principles related to privacy, the processing or protection of personal data, advertising, marketing or the interception, recording or monitoring of communications.
“Services” means any service that Beintoo offers to Advertiser, that Advertiser agrees to receive, subject to this Agreement, as provided for in the Insertion Order(s).
“Site” means a website, mobile application or other digital property through which Beintoo might provide the Services according to what is established in the Insertion Order, owned or legitimately managed by Publishers.
2. Scope and Structure of Agreement
2.1 Scope of the Services. With the subscription of the Agreement, Beintoo undertakes to display Ad through online advertising campaigns within Beintoo’s network, which will include multiple Sites and/or undertakes to deliver the Services as better described in the Insertion Order(s) agreed with the Advertiser. For the execution of the Services, Advertiser grants Beintoo (i) the right to display Ad within the Site as well as, if agreed, within the Advertiser’s Properties; and (ii) to monitor and track the delivery of the Ad and to analyse any relevant information collected on the Advertiser’s Properties, as well as (iii) to do any ancillary and additional activity of the above. Subject to the terms and conditions of this Agreement and, in particular, to the correct payment of the Fee, Advertiser shall have the right to use the Services during the Term. Unless otherwise agreed in writing by the Parties, when the Insertion Order establishes a duration for the delivery of campaigns, subject to Advertiser’s budget, Beintoo undertakes to deliver the campaigns through the whole Term, spending the Advertiser’s budget in a proportional way during the said Term.
2.2 Agreement Structure. This Agreement applies to and governs each Party’s participation in, and respective rights and obligations with respect to, the provision of the Services. The obligations of the Parties set forth in this Agreement are minimum obligations and are not intended to replace or limit any other obligations to which a Party may otherwise be subject, including, without limitation, obligations under applicable Rules. These General Terms and Conditions shall be read and construed in conjunction with the Insertion Order agreed between the Parties and without prejudice to any subsequent amendment or modification of any particular provision contained herein, shall become effective and binding as from date of signature of the Insertion Order. In the event of any conflict with any specific term or agreement reached between the Parties on the Insertion Order, the terms or agreement specified in the Insertion Order shall prevail.
2.3 Unilateral Amendments. Notwithstanding anything to the contrary in this Agreement, but subject to Advertiser’s rights under Section 5.4 hereof, Beintoo may supplement, amend, or otherwise modify the terms and conditions of this Agreement (i) due to a change in (including, without limitation, addition of) Rule(s) and/or (ii) in order to optimize the adoption, implementation, and/or operation of the Services, as determined by Beintoo in its reasonable discretion (each, a “Unilateral Amendment”), in each case upon notice to Advertiser.
3. Representations, Warranties, and Obligations.
3.1 General Representation and Warranties. Each Party represents and warrants that: (i) it has and will have all necessary rights and authority to enter into, and to perform its obligations under, this Agreement; and (ii) its performance under this Agreement will not violate any applicable Rule(s) or any other agreement or terms of service to which it is a party or by which it is bound.
3.2 Advertiser Representations, Warranties, and Obligations. Without limiting the generality of Section 3.1 hereof and without limiting any of Advertiser’s obligations under this Agreement, Advertiser represents and warrants that: (i) all the information Advertiser has provided and shall in the future provide to Beintoo is accurate and current; (ii) it has all necessary and legal rights, powers, and authority to accept and be bound, and to bound any subject on his behalf, by this Agreement and to perform the acts required of Advertiser hereunder; (iii) it is in compliance with all applicable Rules; (iv) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (v) the Ads do not include, and do not give access via hyperlinks to any property containing, materials that are obscene, defamatory or contrary to any Rules; (vi) Ads comply at all times with Rules in all jurisdictions where Ads are delivered and Sites are accessed; (vii) Ads do not display, reference, link to, or endorse any content that violates this Agreement and/or the Rules; (viii) Ads do not infringe or misappropriate the rights of any third party; (ix) Advertiser’s Properties comply at all times with Rules in all jurisdictions where Advertiser’s Properties are available; (x) Advertiser’s Properties do not infringe or misappropriate the rights of any third party. Without prejudice to all other obligations set out by this Agreement, if applicable in relation to the Service provided by Beintoo to Advertiser according to the Insertion Order, Advertiser undertakes to: (i) manage Advertiser’s Properties to the best of its abilities, and in particular keep them adequately updated and maintained with an adequate standard of quality; (ii) provide read access to traffic data, access to the analytics account linked to the Advertiser’s Properties and other data that are reasonably necessary for proper performance analysis required in order to provide the Service agreed with Advertiser.
3.3 Authority, Liability, and Direct Relationship in case the Advertiser is an Agency. Where Advertiser is an agency entering into this Agreement on behalf of its clients (hereinafter, “Agency”): (i) Agency represents that it has the authority to act on behalf of such clients with respect to all obligations and representations set forth in this Agreement; (ii) upon request, Agency will provide Beintoo with written confirmation of the relationship between Agency and its clients (this confirmation should include their clients’ acknowledgement that Agency is indeed its agent and is authorized to act on its behalf in connection with the Agreement); (iii) upon the request of Beintoo, Agency will provide Beintoo with written confirmation that Agency’s client has paid to Agency funds sufficient to make payments pursuant to the Agreement; (iv) Agency accepts responsibility for the actions of its clients and liability for all expenses incurred through the provision of Services to its clients, and assumes responsibility for ensuring compliance with and breach of this Agreement by its clients; (v) except as otherwise set forth hereunder, Agencies will ensure the performance of their respective clients’ obligations under this Agreement and will have joint and several liability in respect of clients’ breach of this Agreement; (vi) nothing in this Agreement will prevent Beintoo and a client of the Agency from entering into a direct relationship; (vii) Beintoo reserves the right to reasonably object to any client at Beintoo’s sole discretion.
3.4 Beintoo Representations. Beintoo provides the Services “as is” and “as available” and hereby disclaims all warranties with respect to the Services, whether express or implied, including warranties of merchantability, and fitness for any particular purpose. Beintoo does not warrant that the Services will operate uninterrupted or error-free and it is possible that the Services may be inaccessible, unavailable, or inoperable from time to time. Beintoo makes no representation or warranty about the result Advertiser will obtain through using the Services including the level of Ad unit impressions or clicks on any Ad unit or the timing of delivery of such impressions and/or clicks under this Agreement. Beintoo is not responsible for the receipt of queries from end users to whom the Ads where displayed.
3.6 Non-solicit. Except in the case of a specific request from Beintoo, the Company for a period of 2 (two) years shall not solicit or have any direct contractual relationship with Publishers introduced by Beintoo under this Agreement with respect to similar services and/or services competing with the Services of Beintoo which are the subject of the Agreement.
3.7 Contents Representations. Beintoo’s Actions and Campaign Optimizations. Advertiser acknowledges that Beintoo has limited control where and how often Ads will be displayed within the network of Publishers. Beintoo is committed to provide quality Inventory, however, at times Ads may be displayed next to ads of Advertiser’s competitors, or on Sites that are undesirable to Advertiser. If the Advertiser raises written concern about a Site that Ads are being served on, Beintoo will to the best of efforts remove the Advertiser’s Ads from serving on this Inventory. Beintoo will use commercially reasonable efforts not to display Ads on Sites that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Advertiser notifies Beintoo in writing that Ads are being displayed in this manner, Beintoo will use commercially reasonable efforts to prevent Ads from continuing to display on such Inventory sources. Beintoo retains the authority to remove any Advertiser’s Ads that it deems to be in violation of this Agreement or Rules, in its sole discretion. Beintoo reserves the right to pause or terminate campaigns at any time that are no longer eligible to run in accordance with this Agreement and/or Rules. Beintoo may optimize the campaigns towards Advertiser’s performance or goals as well as change or pause campaigns on the Advertiser’s behalf, subject to Advertiser’s budget. Beintoo will subsequently notify Advertiser if Beintoo makes material changes to Ads.
4.1 Fee Determination. Advertiser shall pay Beintoo the Fee indicated by Beintoo for the Services, accordingly to the prices agreed with each Insertion Order.
4.2 General Payment Terms. The Advertiser will pay the relevant amounts to Beintoo according to the methods and timeframe indicated by the latter in the Insertion Order.
4.3 Right to suspend the provision of the Services. The Advertiser acknowledge and expressly agree that Beintoo will have the right to suspend all the Services, including those ongoing, if the Advertiser’s delay in payment exceeds 30 (thirty) days compared to the planned date as established by the relevant Insertion Order. If Beintoo has suspended the Services pursuant to this Section, and the Advertiser – after having paid all the Fees due to Beintoo – requests their reactivation, the Advertiser acknowledges and expressly accepts that any reactivation cost will be at its own exclusive responsibility and cannot be considered included in the amount referred to in the Insertion Order.
4.4 Campaign Measurement and Tracking – Claims. Unless expressly agreed to in writing by Beintoo, the Fees will be based on Beintoo’s measurements and tracking through its own servers using the number of impressions, clicks, and other indicators necessary for calculating the Fees payable by Advertiser. Claims relating to invoices must be raised by Advertiser within 30 (thirty) days of receipt.
5.1 Term. This Agreement shall commence upon the Effective Date and end upon the achievement of the objectives indicated in the relevant Insertion Order (such period, the “Term”).
5.2 Termination for Convenience. Either Party may terminate this Agreement, for any reason or no reason, by providing at least thirty (30) days’ notice to the other Party.
5.3 Termination for Cause. Beintoo may terminate this Agreement immediately upon written notice to Advertiser in the event that Advertiser materially breaches this Agreement; provided, however, that if such breach is capable of cure, Advertiser will have fifteen (15) days from the date of such notice to cure such breach (during which time such Advertiser’s use of the Service may be (but is not obligated to be) suspended.
5.4 Termination due to Unilateral Amendment. Advertiser may terminate this Agreement within thirty (30) days after receiving notice of a Unilateral Amendment in the event that Advertiser reasonably believes that it will not be able to comply with the terms and conditions of this Agreement as amended by such Unilateral Amendment.
6. Data Protection
6.1 Data Protection Agreement. Only if the performance of the Services requests it, the Advertiser undertakes to appoint Beintoo as data processor pursuant to art. 28 GDPR. In this case, Beintoo will act only and exclusively based on the Advertiser’s guidelines and requirements contained in the data processing agreement agreed between the Parties.
7. Intellectual Property Rights.
7.1 Mutual Obligations. As between the Parties: (i) Beintoo owns and will retain all right, title, and interest in and to its intellectual property, including, without limitation, to the Services (in each case, including, without limitation, all software, technologies, concepts, methodologies, techniques, models, templates, algorithms, trade secrets, processes, information, materials, source codes and know-how contained therein or related thereto, all modifications, updates, enhancements and derivative works thereof, all documentation and manuals related thereto and all other aspects of such technology), and all intellectual property and proprietary rights in and to all of the foregoing; and (ii) Advertiser owns and will retain all right, title and interest in and to its intellectual property, including all software and technologies related thereto, and any modifications, updates, enhancements and derivative works thereof, and all intellectual property and proprietary rights in and to all of the foregoing. Each Party reserves any and all rights not expressly granted in this Agreement and disclaims all implied licenses, including, without limitation, implied licenses to software, technology, trademarks, copyrights, trade secrets, patents and other intellectual property. Advertiser guarantees that no (intellectual and/or industrial property) rights of any third party are infringed by the Ad. Advertiser indemnifies Beintoo against all claims of third parties in this regard and shall compensate Beintoo on demand for damages suffered by Beintoo as a consequence and in connection with such an infringement.
8.1 Advertiser Indemnification. Advertiser will defend, indemnify, and hold harmless Beintoo, and its officers, directors, employees, subsidiaries and third-party suppliers directly connected to the Services, from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Advertiser’s breach of this Agreement; and (ii) any breach, violation, infringement or misappropriation, by Ads, by Advertiser’s Properties and/or by Advertiser, of any law (including, but not limited to, legislation on advertising and unfair competition relating to any Ads, any tracking technologies used on the Advertiser’s Properties and/or relating to any point of interests (so-called POI), targets and/or geographical location chosen by the Advertiser in order to deliver the campaigns under the Agreement, as well as any other legislation applicable to any campaigns connected to the Services and/or applying to the Advertiser’s Properties), of any third-party right (including intellectual property, property, privacy or publicity rights) and of any contract that is identical or similar to the Agreement that conflicts with the provisions of the Agreement (by way of example, with regard to any exclusive obligations and non-competition agreements).
9. Limitation of Liability.
9.1 Disclaimer of indirect damages. Beintoo will not, under any circumstances, be liable to Advertiser for any loss of profits, loss of business (whether direct or indirect) or any indirect, consequential, incidental, punitive, special, or exemplary damages related to this Agreement, even if Beintoo is apprised of the likelihood of such damages occurring.
9.2 Cap on liability. Under no circumstances will Beintoo’s collective total liability arising out under this Agreement exceed the total amount paid by Advertiser to Beintoo under this Agreement in the six (6) months immediately preceding the first event giving rise to the claim (determined as of the date of any final judgment in an action).
9.3 Exclusions. Nothing in this Agreement shall exclude or limit either Party’s liability for: (i) fraud or fraudulent misrepresentation; (ii) intentional misconduct; (iii) payment of sums properly due and owing to the other in the course of normal performance hereof (if any); (iv) death or personal injury caused by negligence; or (v) matters that cannot be excluded or limited by applicable rules.
10.1 General. In the context of this Agreement “Confidential Information” means any information whether oral or written disclosed by a Party to the other Party under this Agreement that is marked or addressed as confidential or should reasonably be considered confidential or proprietary under the circumstances, including, without limitation, know-how and trade secrets, processes, information regarding products, costs, technology, software, personnel, customers, research, development, know-how, financial information, customer and supplier lists, forecasts, and projections, marketing and business plans and opportunities; and existence of any business discussions or negotiations, even if any such information is aggregated or anonymised. Confidential Information also includes the terms of this Agreement. Each Party undertakes not to disclose to third parties any Confidential Information received from the other Party in connection with the Agreement. Consequently, the Party that has received such Confidential Information shall operate so as not to reveal it to third parties or use such Confidential Information for any purposes other than the exercise of its rights or performance of its obligations under the Agreement and/or except as permitted by this Clause 10.
10.2 Exclusions. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available at the time disclosed; (ii) is or becomes publicly available through no fault of the receiving Party; (iii) is rightfully communicated to the receiving Party by a person(s) or entity(ies) not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto; (v) is independently developed by a Party without use of any Confidential Information of the other Party; or (vi) is approved for release or disclosure by the disclosing Party without restriction.
10.3 Obligations. Except as expressly permitted in this Agreement, each Party shall maintain the Confidential Information of the other Party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information except as required to perform authorised obligations under this Agreement. Each Party shall take all necessary precautions in handling the Confidential Information of the other Party and agrees not to disclose any Confidential Information of the disclosing Party to third parties or to such Party’s employees or contractors, and to limit disclosures on a strict need-to-know basis; provided that each Party shall be liable for the acts or omissions of any party that obtains Confidential Information through such Party. However, a Party may disclose Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that, if permitted, such Party gives reasonable notice to the disclosing Party and uses reasonable endeavours to provide the disclosing Party with the opportunity to seek a protective order or the equivalent (at the disclosing Party’s expense). Upon the expiration or termination of this Agreement, each Party will promptly return or destroy all Confidential Information of the other Party in its possession or control.
11.1 Independent Contractors. Each Party is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties.
11.2 Severability. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the Parties.
11.3 Waivers. The failure of either Party to partially or fully exercise any rights or the waiver of either Party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
11.4 Remedies. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement and/or in the applicable Rules.
11.5 Assignment. Neither Party may assign this Agreement, whether by operation of law or otherwise, to any other person or entity without the prior written consent of the other Party; provided that, without the prior written consent of the other Party, Beintoo may assign this Agreement to an Affiliate or otherwise pursuant to a change of control.
11.6 Survival. Notwithstanding termination hereof, any provisions of this Agreement that by their nature are intended to survive will survive termination.
11.7 Notice. All notices under this Agreement must be in writing (including, without limitation, email) and sent to the attention of the other Party’s. As for Beintoo to the attention of Mr. Andrea Campana – Beintoo’s CEO, Largo Richini 2, milano, PEC firstname.lastname@example.org . Notices to Advertiser shall be sent to the address specified in the Insertion Order.
11.8 Choice of Law – Jurisdiction. This Agreement is governed by Italian Law and the Parties acknowledges and expressly agree that the court of Milan shall have exclusive jurisdiction over any dispute concerning the interpretation or execution of the Agreement.
11.9 Authority. The person executing this Agreement for and on behalf of each Party represents and warrants to each other that he/she has been, and is on the Effective Date, duly authorised by all necessary and appropriate action to execute this Agreement.
11.10 Entire Agreement. This Agreement sets forth the entire agreement between the Parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the Parties concerning this subject matter. Except as expressly set forth herein (including, without limitation, with regard to Unilateral Amendments, as set forth in Section 2.3 hereof), no amendment or modification of this Agreement shall be made except by a writing signed by both Parties.GDPR INFORMATIVA FORNITORI - CLIENTI