Advertising Terms & Conditions
By placing an Insertion Order for advertising on a Web site or in an email of FOREXSTREET S.L. or any of its subsidiaries or affiliates (collectively, "FOREXSTREET S.L."), Advertiser ("Advertiser" or its agency as the "Signing Party") agrees to the following terms and conditions with respect to such advertising (collectively, "Terms").
1. Insertion Order; Optimization; Ad Servers. FOREXSTREET S.L. agrees to deliver, and Advertiser agrees to pay for, the services on the applicable Insertion Order ("IO") which IO is incorporated herein by this reference (collectively, "Services"), according to rates specified on the IO and subject to these Terms. VAT, if applicable, is not included in such rates and will be, if necessary, invoiced in addition, at the rate in force. Subject to available inventory and appropriate rate adjustment, positions on the IO may be adjusted ("optimized"); provided that Advertiser's total financial obligations under the IO are not reduced ("Optimization"). Optimizations are subject to FOREXSTREET S.L.' prior approval, with applicable terms documented via email, and Advertiser's confirmation of acceptance via reply email, and such terms shall be binding on Advertiser and made part of the IO as though fully set forth therein. FOREXSTREET S.L. uses their own ad server for its ad serving and reporting functions, which ad servers may vary depending on its Web site and are subject to change in FOREXSTREET S.L.' discretion, and such applicable ad server(s) shall be the official counter(s) for determining impressions delivered, invoices and payment. Advertiser's and/or its agency's third party ad server reporting is not accepted.
2. Cancellation. Advertiser may cancel the IO with thirty (30) days' prior written notice ("Notice Period"); provided that Advertiser shall be financially responsible for impressions delivered and scheduled to run up to and through the end of the Notice Period and any volume discounts shall be reversed and Advertiser will be invoiced based on actual volume run according to FOREXSTREET S.L.' rate card in effect when the IO was placed. Cancellation notices must be sent via e-mail to email@example.com and will be deemed given upon FOREXSTREET S.L.' confirmation of receipt.
3. Ad Materials; Late Creative. Artwork, copy, other content, active URLs and other components of the advertisement (collectively, "Ad Materials") must comply with FOREXSTREET S.L.' criteria and specifications of the Advertising Rate Card (collectively, "ARC") in efect at the moment of signing the IO for its applicable Web site(s) (collectively, the "Policies"), as updated from time-to-time in FOREXSTREET S.L.' discretion. Ad Materials must be received at least three (3) business days prior to the scheduled start date or within the timeframe in the Policies for the applicable ad type if such timeframe is greater. If Ad Materials are not received within such timeframe, or if provided incorrectly or inconsistent with the Policies, then guaranteed impressions and FOREXSTREET S.L.' obligations will be reduced pro-rata for the period of time that reserved space was not filled without affecting Advertiser's financial responsibility for all impressions ordered and inventory reserved.
4. Editorial Approval. All Ad Materials are subject to FOREXSTREET S.L.' approval. FOREXSTREET S.L. reserves the right, at any time and for any reason in its discretion, to reject, cancel or cease publication of any Ad Materials, space reservation, or position commitment, without any liability for the same except as provided below for makegoods.
5. Makegoods. If actual inventory delivered with respect to a particular advertisement placement falls below guaranteed levels on the IO according to FOREXSTREET S.L.' applicable ad server counts, and/or if there is an omission of any advertisement (placement or creative unit), Advertiser and FOREXSTREET S.L. will make an effort to agree upon the conditions of a makegood at the time of shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the underdelivered portion of the IO for which it was invoiced. In the event Advertiser made a cash pre-payment to FOREXSTREET S.L. specifically for the IO for which under-delivery applies, then if Advertiser is current on all amounts owed to FOREXSTREET S.L. under any other advertising agreement, Advertiser may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the IO. Makegoods are not available (a) when under-delivery or omission of an advertisement is attributable to Advertiser's (i) delayed, incorrect or incompatible Ad Materials or (ii) failure to follow applicable Policies, (b) for failure to deliver impressions according to any specific daily or weekly distribution, (c) for impressions marked on the IO as "estimated" or "not guaranteed", (d) for sponsorship, exclusive or similar placements, or (e) for preemptive placements and/or impressions. This section sets forth the sole and exclusive remedy for any failure of FOREXSTREET S.L. to fulfill its obligations under the IO.
6. Payment Terms. If FOREXSTREET S.L. approves credit, Advertiser will be invoiced at the end of each month for amounts on the IO and payment shall be made to FOREXSTREET S.L. within ten (10) days from the date of invoice ("Due Date"). If Advertiser fails to make timely payment, Advertiser will be responsible for all reasonable expenses (including attorneys' fees) incurred by FOREXSTREET S.L. in collecting such amounts. FOREXSTREET S.L. reserves the right to suspend credit and/or performance of its obligations if Advertiser fails to make timely payment.
Advertiser shall be responsible for payment of all charges, duties and others assessed in connection with the transfer of the amount being paid. Likewise, advertiser will be the sole responsible for all taxes eventually due in connection with the operation, and in particular, shall made effective the VAT if needed to be charged.
If agency is the Signing Party placing an IO for the benefit of its client, then agency is responsible for all payments hereunder regardless of whether it has received payment from its client, however FOREXSTREET S.L. reserves the right to hold agency and its client jointly and severally liable for all payments.
FOREXSTREET S.L. agrees to deliver, and Advertiser agrees to pay for, the services on the applicable Insertion Order ("IO") which IO is incorporated herein by this reference (collectively, "Services"), according to rates specified on the IO and subject to these Terms.
Advertiser shall be responsible for payment of all charges, duties and others assessed in connection with the transfer of the amount being paid.
7. Warranties; Indemnity. Advertiser hereby represents and warrants to FOREXSTREET S.L. that Advertiser has the right to publish the Ad Materials in the form delivered and manner published without infringing or violating the rights of any third party or violation of any law, rule or regulation. Advertiser agrees, at its own expense, to indemnify, defend and hold harmless FOREXSTREET S.L., its employees, officers, directors, representatives, agents and affiliates, against any and all claims, demands, suits, actions, proceedings, damages, liabilities, costs, expenses and losses of any kind (including reasonable attorneys' fees and costs) arising out of or related to (a) the publication of any advertisement hereunder, (b) the Ad Materials or any matter or thing contained in any advertisement, and/or (c) any material of Advertiser in which users can link through any advertisement (including but not limited to, claims of trademark or copyright infringement, libel, defamation, breach of confidentiality, privacy or data protection violation, false, deceptive or misleading advertising or sales practices). If agency is the Signing Party placing an IO for the benefit of its client, then client and agency shall each be considered the Advertiser for purposes of this section, and agency, by signing below, represents and warrants that it has the authority, as agent, to bind its client to these Terms and the IO. FOREXSTREET S.L. MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ITS WEB SITES OR SERVICES TO BE DELIVERED HEREUNDER AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. ALL SERVICES ARE PROVIDED ON AN AS IS BASIS WITHOUT GUARANTEE.
8. Limitation of Liability. FOREXSTREET S.L. SHALL NOT BE LIABLE TO ADVERTISER, ITS AGENCY OR ANY THIRD PARTY UNDER OR IN RELATION TO THESE TERMS OR ANY IO FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE, UNDER ANY THEORY OF LAW OR EQUITY, AND WHETHER OR NOT FOREXSTREET S.L. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL FOREXSTREET S.L.' LIABILITY UNDER OR IN RELATION TO THESE TERMS OR ANY IO EXCEED THE FEES ACTUALLY PAID TO FOREXSTREET S.L. FOR THE ADVERTISEMENT GIVING RISE TO SUCH LIABILITY.
9.Arbitration Clause. In the event of any dispute between the parties which arises under this Agreement, such dispute shall be settled by arbitration in accordance with the rules for commercial arbitration of the American Arbitration Association (or a similar organization) in effect at the time such arbitration is initiated. A list of arbitrators shall be presented to the Claimant and Respondent from which one will be chosen using the applicable rules. The hearing shall be conducted in Spain or the country of the Advertiser if this is the US or UK unless both parties consent to a different location. The decision of the arbitrator shall be final and binding upon all Parties.
The prevailing party shall be awarded all of the filing fees and related administrative costs. Administrative and other costs of enforcing an arbitration award, including the costs of subpoenas, depositions, transcripts and the like, witness fees, payment of reasonable attorney's fees, and similar costs related to collecting an arbitrator's award, will be added to, and become a part of, the amount due pursuant to this Agreement. Any questions involving contract interpretation shall use the laws of Spain or the country of origin of the advertiser if this is the US or UK. An arbitrator's decision may be entered in any jurisdiction in which the party has assets in order to collect any amounts due hereunder.
10. Miscellaneous. FOREXSTREET S.L. shall not be liable to Advertiser or its agency for delay or default in the performance of or completion of Services under the IO or these Terms, if caused by conditions beyond its control, including but not limited to, any act of nature, governmental authority, or war, terrorist act, riot, labor stoppage or slowdown, fire, flood, severe weather, earthquake, accident, telecommunications or network failures, failure of the Internet, or electrical outages. These Terms, together with the IO, shall be governed and construed in accordance with the laws of Spain, without regard to its conflicts of law principles. The parties agree to submit to the exclusive jurisdiction of the country and federal courts located in Spain with respect to any legal proceeding arising out of the IO or Terms, waiving all defenses with respect to jurisdiction, forum and venue. These Terms and the IO are the complete and exclusive agreement between the parties with respect to the subject matter and supersede any prior or contemporaneous agreements, negotiations and communications, whether written or oral, between the parties regarding such subject matter.
The Terms and IO (except in the case of Optimizations) may only be modified, or any rights under it waived, by a written document executed by both parties. FOREXSTREET S.L. will not be bound by any terms or conditions, printed or otherwise, appearing on any purchase order, copy instructions, contract or other documents submitted by Advertiser or its agency, or expressed orally. To the extent of any conflict, these Terms shall prevail over the IO and Policies. These Terms and the IO are specifically between and for the benefit of FOREXSTREET S.L. and Advertiser, and no other person or entity whatsoever (including without limitation, Advertiser's agency) shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of these Terms or the IO as a third party beneficiary or otherwise. All obligations and liabilities which by their nature are intended to survive shall survive termination or expiration of these Terms and the IO for any reason. The IO and Terms may be executed in multiple counterparts and by facsimile, each of which, when so executed, shall be deemed to be an original copy hereof, and all such counterparts together shall constitute one single agreement.
Acknowledged and agreed: Agency represents that it has the authority to bind the advertiser to these Terms and the IO.