The Order Form, together with the following Terms and Conditions (hereinafter the “Terms and Conditions”) (hereinafter, collectively, the “Contract”) regulate the relationship between the Publisher and Good Move.
For the purposes of the Contract, the words and expressions hereinafter shall have the following meaning, unless the context requires otherwise:
CUSTOMER: means the subject, natural or legal person, operating his/its business or professional activity, or his/its authorized representative, who buys promotional and advertising services available on the Publisher’s Digital Distribution Environment over time, in order to promote his/its business, his/its products and/or services.
COOKIES: means the text files or information that are stored on the user’s computer or device in order to identify a particular browser when it interacts with the websites.
START DATE: means the initial date of effectiveness of the Contract between the parties, as specified in the Order Form.
INTELLECTUAL PROPERTY RIGHTS: means each and every form of copyright, patents, trademarks, trade names, inventions, design rights, database rights, trade secrets, know-how and all other intellectual and industrial property rights, registered, filed or otherwise protected all over the world.
PUBLISHER: means the subject, natural or legal person, identified in the Order Form, which distributes multimedia contents through the Digital Distribution Environments (including, but not limited to, the bloggers).
CONFIDENTIAL INFORMATION: means any information that is indicated as confidential or that has a clearly confidential content, including all information, of each party or its affiliated companies, related to their commercial activity, business, finances, products, updates, advertising, technology, prices, services, relationships, trade secrets, know-how, employees, customers and suppliers, including the conditions specified in this Contract. Confidential Information does not include information:
(a) which are and can be considered as legitimately known, in possession of or independently developed by the receiving party at the time of disclosure;(b) which are or get into the public domain for reasons other than any improper action or inactivity of the receiving party;(c) which are subsequently communicated to the receiving party by a party entitled to disclose it, or(d) whose distribution and disclosure has been previously approved in writing.
INVENTORY: means the advertising spaces that the Publisher makes available on his/its Digital Distribution Environments, within which it is possible to insert advertisements in graphic, photographic, textual, audio and video formats.
DIGITAL DISTRIBUTION ENVIRONMENT: means the Internet websites and/or applications and/or e-mails or newsletters that are owned or managed or hosted by or on behalf of the Publisher, accessible from personal computers, smartphones, tablets, smart TVs and/or other devices that enable to enjoy multimedia contents through Internet.
GROSS ADVERTISING REVENUE: means the advertising revenue generated by the campaigns provided on the Digital Distribution Environments, counted through the Adserver and/or by the sale of the Aggregated Data.
NET ADVERTISING REVENUE: means the Gross Advertising Revenue after deduction of the cost of the SSP and DMP’s Adserver, discounts, agency fees, discounts due to agreements with specific clients, negotiation rights and any other expenses, and net of losses for any insolvent Customers.
USER: means the person that uses the Digital Distribution Environments of the Publisher.
2.RIGHT AND OBLIGATIONS OF GOOD MOVE
2.1 With the execution of this Contract, the parties agree that Good Move shall, at its own discretion, enter into advertising contracts with its Customers, on the basis of the terms and conditions specified by Good Move. Good Move shall not assume any contracting obligation to enter into purchase and sales contracts and/or to generate a minimum turnover from the sale of the Inventory and/or the Aggregated Data, but it will only promote businesses in a positive way for both parties.
2.2 By performing its activity Good Move shall directly take care of:(i) the relationships with the Customer before, during and after the sale;(ii) the management of the insertion orders and/or the booking of the Inventory;(iii) the determination of all commercial policies, discounts and negotiation rights with Customers, whether they are agencies and/or media centers;(iv) the invoicing and collection, on its own name, of the amounts owed by Customers.
2.3 Notwithstanding the absolute freedom and autonomy of Good Move in managing the relations with its Customers, Good Move undertakes to update the Publisher, upon request, with regard to any new special agreement with the Customers.
2.4 Good Move also undertakes to provide, in sales contracts and/or proposals to Customers, a specific obligation to ensure, under their own responsibility, that the advertising campaigns to be delivered through the purchased Inventory do not contain illicit materials and/or links to illicit contents and/or in violation of the applicable law. Consequently, Good Move cannot be held liable in the event of breach of this obligation.
2.5 The Publisher acknowledges and agrees that Good Move shall have the right to define the commercial policy for the sale of the Inventory and/or Data Aggregated to Customers. This right also includes Good Move’s right to offer Customers combined offers of promotional and advertising services and/or advertising initiatives or special projects.
3.RIGHTS AND OBLIGATIONS OF THE PUBLISHER
3.1 The Publisher grants to Good Move the exclusive right to market the Inventory and/or the Aggregated Data. For this purpose, the Publisher shall integrate the Adserving and/or Data Management technologies selected by Good Move. The Publisher undertakes:
(i) not to allow or assist third parties or attempt to modify, disassemble, decompile the adcalls and/or tags or any part of them
(ii) not to violate any security measure of the Adserver;
(iii) not to tamper with, damage or misuse any function to the Adserver or Data Management Platform.
3.2 If the Contract provides for the sale of Aggregated Data collected through the use of the Publisher’s and/or Good Move’s Cookies, the Publisher undertakes to:
- include within the Digital Distribution Environments a banner addressed to the Users aimed at clarifying that (i) the advertisements displayed on the website are provided by third parties and provided on the basis of the possible interest of the Users supposed on the basis of the information on the browsing behavior of the User himself, collected through cookies; (ii) such information have been collected in an anonymously way and do not include Users’ personal data (such as name, surname, address, etc.); (iii) the User can find additional information on advertisements, cookies and the possibility to express its disagreement by visiting the website www.youronlinechoices.com and the privacy notice of the Publisher.
3.3 It is forbidden for the Publisher to use the advertising campaigns provided by Good Move across Internet websites, applications, e-mails, URLs, databases or mailing-lists other than those listed in section “Digital Distribution Environments” of the Order Form, without Good Move’s prior written consent. In any case, the Publisher will be the sole and exclusive responsible for the dissemination of advertising campaigns within those Internet websites, applications, e-mails, URLs, databases or mailing-lists. It is understood that the Publisher will not be remunerated in case of breach of this clause, reserving Good Move the right to pay the Publisher exclusively for advertising campaigns delivered on the Digital Distribution Environments subject of this Contract and previously approved by Good Move.
3.4 Should the Publisher:
- launch new websites and/or applications, these must be promptly communicated to Good Move, also by e-mail, and if accepted by the latter in writing, they will be considered included in the Digital Distribution Environments;
- replace one or more of the Digital Distribution Environments listed in the Order Form or subject to written approval pursuant to section 3.4 point (i) of this Contract, the Publisher shall give written notice to Good Move, e-mail is accepted, at least 3 (three) months prior to their replacement. Good Move, at its complete discretion, may approve or refuse the replacement of the Digital Distribution Environments referred to in this Contract which, in case of approval, will be subject to the same contractual conditions;
- make substantial changes to the content of their Digital Distribution Environments in order to broaden and/or vary the audience to which they are intended and addressed, the Publisher must give written notice to Good Move at least 3 (three) months before the modification occurs.
In case of non-acceptance of the replacement and/or modifications referred to in points (ii) and (iii) of this section, Good Move, by sending the Publisher a written communication, reserves the right to:
- terminate the Contract;
- request the replacement of the Digital Distribution Environments with others of the same kind as those subject to replacement or modification.
3.5 In order to maximize the monetization of the Inventory, Good Move:
- gives the Publisher a code (hereinafter referred to as “Tag“) for each advertising placement. The Tag allows the Adserver to interact with the Publisher’s Digital Distribution Environments and authorizes Good Move to place the advertising campaigns on the Digital Distribution Environments by means of said Adserver;
- shall deliver through each Tag different advertising campaigns sold at CPM (cost per thousand impressions), CPV (cost per view), CPC (cost per click), CPL (cost per lead) or CPA (cost per acquisition). Any quantification method other than CPM will in any case be translated into CPM, which shall remain the metric unit used in reports between Good Move and the Publisher.
- where provided, will assign to the Publisher additional Tags for the inclusion of Cookies within the Digital Distribution Environments in order to allow Good Move itself to market profiled advertising campaigns based on the type of Cookies implemented. The marketing of the Aggregated Data will be only at CPM (cost per thousand impressions).
3.6 With respect to section 3.5 hereof, the Publisher declares and guarantees that the Digital Distribution Environments are compatible and able to decode Good Move’s Tags and, in any case, undertakes to perform all the necessary and useful actions to ensure the full operation of the aforementioned Tags in order to allow Good Move to include on the Publisher’s Digital Distribution Environments the advertising campaigns conveyed by Good Move in its sole discretion (except as specifically provided for under the section “Black List” of the Order Form), without obligation to communicate in advance to the Publisher the identity of the Customers or the advertising campaigns that will be shown to take into consideration the management in programmatic buying and to simplify the delivery processes of the campaigns.
4.1 For the activities carried out by Good Move pursuant to the Contract hereto, Good Move shall pay to the Publisher the Commissions specified in the Order Form to be calculated on the Net Advertising Revenues actually collected by the Customers and generated on the Digital Distribution Environments during the reference month. These Commissions represent the total amount owed by Good Move to the Publisher pursuant to the Contract; therefore, the Publisher acknowledges that there will be no further amounts or additional costs charged to Good Move.
4.2 For the purpose of determining the Commissions referred to in section 4.1 above, Good Move shall provide the Publisher with a report of the monthly Net Advertising Revenues generated by the advertising campaigns provided on the Publisher’s Digital Distribution Environments, no later than the 20th day of the month following the month of reference. This calculation is provided on the basis of data collected from the Adserver and the other technological platforms used. The Publisher acknowledges and accepts that the statements and the statistical parameters or criteria used by Good Move in order to calculate Net Advertising Revenues and any other data provided by Good Move under the Contract are binding for the parties, they constitute definitive measurements of the Net Advertising Revenues generated by the advertising campaigns and cannot be disputed, except in case of manifest error. In the latter case, the Publisher must give written notice to Good Move within 10 (ten) days from the receipt of the relevant report and must provide Good Move with the supporting documentation that provides proof of the error. After this deadline the report is considered approved. The Publisher cannot, therefore, use its own or third-party statistical parameters or criteria in order to dispute, for any reason whatsoever, Good Move’s reports.
4.3 In the case of special advertising projects that require to incur additional expenses (including but not limited to: content supply, services offered by third parties such as branded content, video makers, staff and event venues, etc.), if these are payed in advance by the Publisher and deducted from the Gross Advertising Revenue, they must be previously authorized by Good Move.
4.4 No later than 10 (ten) days from the date of the report, unless otherwise agreed, the Publisher must issue an invoice to Good Move for the Commissions specified in the report. The parties expressly agree that the payment of the invoice shall be made within 90 (ninety) days from the last day of the invoice’s reference month.
4.5 The Publisher acknowledges and agrees that, due to the possible destruction or alteration of the tracking data (Ad Tracking) of the advertisings, some actions performed by the Users of the Digital Distribution Environments may be untraceable; therefore, Good Move will not be able to collect the remuneration from the Customer and will not be able to credit the corresponding amounts to the Publisher. Good Move will not be held responsible in any case for such destruction or alteration.
4.6 Notwithstanding the foregoing, Good Move will not be required to make any payment relating to fraudulent impressions generated from whomever through automated software or similar devices, or through false clicks made with similar methods on an advertisement. In such cases, Good Move has the right to postpone the payments due until the outcome of the necessary investigations aimed at verifying the use of such fraudulent means. In case of verified breach of this section 4.6 by the Publisher, Good Move will be entitled to (i) withhold payments for the impressions deemed, in its sole discretion, fake or fraudulent; (ii) request a compensation for the damage suffered; and (iii) be indemnified and held harmless in relation to any claims asserted by anyone against Good Move.
4.7 Good Move provides the Publishers with a customized dashboard accessible through the reserved area of the website (“Dashboard“), which allows each Publisher to view his/its advertising revenues and monitor its progress during the reference period. In particular, the Dashboard shows the provisional reporting of the reference parameters and the revenues generated by the advertising campaigns delivered on the Publisher’s Digital Distribution Environments, with the possibility to group these data in various display modes. It is understood among the parties that the data indicated therein may not be constantly updated and therefore reliable, and that the provisional reporting available on the Dashboard is purely indicative. In the light of the above, Good Move makes no warranties, express or implied, regarding the exact functioning of the Dashboard or the accuracy of the related reports and the information and data contained therein. The Publisher therefore acknowledges and accepts that the Commissions of the Publishers referred to in section 4.1 will be quantified and determined solely on the basis of the monthly Net Advertising Revenues report as per section 4.2 above.
5.1. Taxes of any nature related to the payments made under this Contract will be at Publisher’s charge. The Publisher acknowledges and agrees that the Commissions paid by Good Move under the Contract are the total amount due for the services provided by Good Move and, therefore, they are considered already inclusive of any and all sums, taxes and/or withholding tax that, where applicable, would be paid by Good Move.
6.LIMITATION OF LIABILITY AND INDEMNIFICATION
6.1 Except in cases of willful misconduct or gross negligence, the Publisher acknowledges and agrees that Good Move does not provide any guarantee, express or implied, and has no responsibility for the delivery of advertising campaigns on the Publisher’s Digital Distribution Environments, or for the conduct of their Users that interact with them. 6.2 Notwithstanding the provision of section 6.1, the Publisher also accepts that in the event that Good Move is considered liable, on a contractual, non-contractual or other basis, Good Move’s liability cannot in any case exceed the Commissions due under the Contract.
6.2 Notwithstanding the provision of section 6.1, the Publisher also accepts that in the event that Good Move is considered liable, on a contractual, non-contractual or other basis, Good Move’s liability cannot in any case exceed the Commissions due under the Contract.
6.3 The Publisher assumes all responsibility in relation to the contents on the Digital Distribution Environments and/or the Inventory and also agrees to indemnify and hold Good Move harmless from any third-party claims, of any nature, with respect to or connected to such contents, to the Inventory and to the execution of the other obligations of the Publisher pursuant to this Contract.
6.4 To the extent that any third-party claims are asserted against Good Move: (a) Good Move shall promptly send to the Publisher a written communication concerning such claim; (b) Good Move shall communicate to the Publisher all useful information and give, to the latter’s exclusive expenses, the necessary assistance and cooperation; and (c) the Publisher shall have sole control over the defensive activity – of which Good Move shall be promptly informed – and on any settlement agreements and the Publisher shall not act in such a way as to cause prejudice to Good Move. It is understood between the parties that the failure to communicate the claim by Good Move to the Publisher shall not result in the loss of the compensation obligations that fall on the Publisher. If the Publisher does not act promptly and diligently for the resolution of the dispute, Good Move will have the right to directly safeguard its position, without prejudice to the right of indemnity against the Publisher, also for the legal costs incurred.
6.5 Without prejudice to the foregoing, it is understood that each party cannot be held liable towards the other for any direct and/or indirect damage, actual loss and/or loss of profit, arising from the operation or failure in the operation and/or compatibility of the Tags with Publisher’s Digital Distribution Environments, including, for example, damage to hardware equipment, software or databases or damages caused by data loss.
7.1 For the entire Term of the Contract the parties shall maintain secrecy with respect to the terms and conditions of the Contract and to all the provisions of the Contract. Each parties therefore undertakes not to disclose, communicate or indicate to third parties any Confidential Information, knowledge, data or document related to the Contract without the written consent of the other party.
7.2 With specific reference to Confidential Information, each party undertakes not disclose them to any third party without written consent of the other party, with the exception of: (i) their employees, agents and contractors who need to know the Confidential Information for operational reasons; (ii) their professional and financial advisors; and (iii) the case in which each party is required to disclose the information upon request from public authorities, provided that the party requested to do so gives to the other party prompt written notice by registered mail. It is understood that each party shall protect the Confidential Information of the other party from any form of unauthorized disclosure, with the same level of care used to protect and safeguard its similar Confidential Information, provided that this constitutes a level of protection at least reasonable. In the event of termination of this Contract, for whatever reason, each party must destroy all Confidential Information belonging to the other party that are in its possession or under its control.
7.3 In the event that the parties agree to disclose the relationship object of the Contract, the parties shall act jointly, also through specific press release publications mutually agreed.
8.USE OF DATA
(i) used and disclosed for any purpose permitted and compatible with applicable laws;
(ii) shared with Customers, advertisers, business partners, sponsors and other third parties, also in order to promote Good Move’s business.
8.2 The Publisher also grants Good Move the right to perform logins, indexes and caches of the website(s) included among the Digital Distribution Environments or parts thereof, even by automated means such as web spiders or crawlers.
9.INTELLECTUAL PROPERTY RIGHTS
9.1 Each party shall remain the sole and exclusive owner of all Intellectual Property Rights, technologies, know-how, trademarks, logos and all the material of its own property at the time of stipulation of this Contract.
9.2 Without prejudice to section 9.1 above, the Publisher shall have the right to use the advertising campaigns and any other material provided by Good Move limited to the perfomance of the Contract and the obligations contained therein.
9.3 For the entire Term of the Contract, as defined in the Order Form, the Publisher grants Good Move a license, non-exclusive and limited to the Territory, to use the material related to the Inventory, logos and trademarks or other Intellectual Property Rights, within the limits of what is necessary for the performance of the Contract.
10.TERM AND TERMINATION
10.1 This Contract governs the relationship entered into within the parties for the entired term as specified in the Order Form under section “Term”. At the end of the initial term, the Contract shall be considered automatically renewed for further periods of 12 (twelve) months each one, unless terminated by either party with a 3 (three) months prior written notice to be sent via registered letter.
10.2 Each parties shall be entitled to terminate this Contract with immediate effect, without giving prior notice to the other party, for the following reasons:
(i) judicial proceedings against the other party that may compromise or damage its image or commercial reputation;
(ii) breach of the provisions set forth in sections 3 (Rights and Obligations of the Publisher), 4 (Remuneration) and 7 (Confidentiality).
10.3 The orders entered into between Good Move and the Customers with regard to the advertising campaigns conveyed on the Digital Distribution Environments before the expiration of the Contract, shall be fulfilled as agreed with the Customers and will be in any case subject to the terms and conditions of this Contract, in particular with respect to the Commissions specified in section 4, even in the period following the expiration of this Contract.
10.4 In the event of termination of the Contract, for any reason whatsoever, each party shall immediately cease all activities. The following sections shall remain fully in force: 6 (Limitation of Liability and Indemnification), 7 (Confidentiality) and section 10.3 of this Contract.
11.1 With respect to the subject matter hereof, this Contract constitutes the entire agreement between the parties and shall supersede any previous written or oral agreement occurred between the parties on the same object of the Contract.
11.2 Good Move has the right to modify the conditions governing this Contract at any time, with a prior written notice of no less than 10 (ten) days, to be sent to the Publisher by e-mail or by registered mail, . Once this period of notice has elapsed without any answer by the Publisher, the modifications will be considered tacitly accepted. Conversely, the declaration of rejection by the Publisher (to be sent by email or by registered letter) will be equivalent to the exercise of the right to terminate the Contract with immediate effect.
11.3 The Publisher shall neither assign the Contract nor the rights and obligations arising from the same, in whole or in part, without the prior written consent of Good Move
11.4 The parties agree that the Italian version of this Contract shall prevail over the English version in case of ambiguities, inconsistencies or difference.
12.APPLICABLE LAW AND JURISDICTION
12.1 This Contract shall be governed by and construed in accordance with the Italian law
12.2 The Parties hereby agree to submit to the exclusive jurisdiction of the Court of Milan any dispute arising out of or in connection with this Contract, including any non-contractual disputes .