Advertising Terms & Conditions
These Advertising Terms & Conditions (hereinafter, the “T&C”), are entered by and between FOREXSTREET S.L. or any of its subsidiaries or affiliates, on the one hand, and the client, herein referred to as the Advertiser or the Signing Party, identified in the Insertion Order (hereinafter, the “IO”), on the other hand. Any reference made to the Advertiser shall be deemed to be made to the Advertiser or, if applicable, to its Agency as the Signing Party. By entering the present T&C, the Agency represents and warrants that it has the authority to act on behalf of and bind its client to these T&C, the IO, and any other related documents. The present Advertising Terms & Conditions apply to the purchase from the Advertiser or the Signing Party of all advertising services provided by FOREXSTREET S.L. detailed in the IO to which the present T&Cs are hereby attached and incorporated.
On the terms and subject to the conditions set forth in these T&C, FOREXSTREET S.L. agrees to deliver and the Advertiser agrees to pay for all advertising services detailed in the IO to which the present Terms & Conditions are incorporated, according to rates specified in the IO. 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"), in no case will Advertiser's total financial obligations under the IO be reduced ("Optimization"). Optimizations are subject to FOREXSTREET S.L.'s prior approval, with applicable terms documented via email, and Advertiser's confirmation of acceptance via reply email, and such terms shall be binding for the Advertiser and made part of the IO as though fully set forth therein.
FOREXSTREET S.L. uses its own ad server for ad serving and reporting functions. Ad servers may vary depending on its Web site and are subject to change at FOREXSTREET S.L.'s 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.
The advertiser may cancel the IO within thirty (30) days prior written notice ("Notice Period"). The Notice Period in
ADVERTISING MATERIALS; LATE CREATIVE
Artwork, copy, other content, active URLs and any other components of the advertisement (collectively, "Ad Materials") must comply with FOREXSTREET S.L.'s criteria and specifications according to the Advertising Rate Card (collectively, "ARC") in effect at the moment of signing the IO for its applicable Website(s) (collectively, the "Policies"), as updated from time-to-time at FOREXSTREET S.L.'s discretion. Ad Materials must be received at least three (3) business days prior to the scheduled start date or within the timeframe determined in the Policies for the applicable ad type if such timeframe is greater. If Ad Materials are not received within the abovementioned timeframe, or if provided incorrectly or inconsistent with the Policies, guaranteed impressions and FOREXSTREET S.L.'s 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.
If the ADVERTISER fails to deliver a campaign (
All Ad Materials are subject to FOREXSTREET S.L.'s approval. FOREXSTREET S.L. reserves the right, at any time and for any reason at its discretion, to reject, cancel or cease publication of any Ad Materials, space reservation, or position commitment, without any liability for the same, except to what foreseen below for make-goods.
If actual inventory delivered with respect to a particular advertising placement falls below guaranteed levels in the IO according to FOREXSTREET S.L.'s applicable ad server counts, and/or if there is an omission of any advertisement (placement or creative unit), the 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 under-delivered 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, and 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; (e) for preemptive placements and/or impressions; or (f) when under-delivery or omission of an advertisement is due to conditions beyond FOREXSTREET S.L.’s control, among others, the ones detailed in Clause 9. This section sets forth the sole and exclusive remedy for any failure of FOREXSTREET S.L. to
FOREXSTREET S.L. agrees to deliver, and Advertiser agrees to pay for, the services detailed in the applicable IO, under the conditions specified in the present T&C.
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 (hereinafter, the "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.
Moreover, 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
If an agency is the Signing Party placing an IO for the benefit of its client,
Advertiser hereby represents and warrants to FOREXSTREET S.L. that it 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 of any law, rule or regulation, among others. Advertiser agrees, at its own expense, to indemnify, defend and hold harmless, among others, 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 the Advertiser in which users can link to any advertisement (including but not limited to, claims of intellectual property, 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,
FOREXSTREET S.L. makes no warranty of any kind with respect to its websites or services to be delivered hereunder and hereby disclaims any and all warranties, expressed or implied, including without limitation, all warranties of merchantability, fitness for a particular purpose, and non-infringement. All services are provided on an “as is” basis without guarantee.
LIMITATION OF LIABILITY
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, labour stoppage or slow-down, fire, flood, severe weather, earthquake, accident, telecommunications or network failures, failure of the Internet, or electrical outages.
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, FOREXSTREET S.L.'s liability under or in relation to these T&C or any IO will exceed the fees actually paid to FOREXSTREET S.L. for the advertisement giving rise to such liability.
DISPUTE RESOLUTION: GOVERNING LAW AND ARBITRATION
These Terms and Conditions, the Insertion Order and any related documents, shall be governed and construed in accordance with the laws of Spain.
Any controversy or claim arising out of or relating to these Terms and Conditions and/or the Insertion Order, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Barcelona (Spain) and the language of the arbitration shall be Spanish.
PERSONAL DATA PROTECTION
The personal data provided by the Advertiser or the Signing Party in the present T&C or in the IO will be incorporated to the automated file of FOREXSTREET S.L. accordingly to the current legal framework and specifically to the Spanish Personal Data Protection Act. The responsible of the automated file is FOREXSTREET S.L. The use of personal data will be confidential and used in order to provide the advertising services agreed by the Parties. By signing the present T&C the Advertiser or the Signing Party gives express consent to the referred treatment of the data provided. In order to exercise the rights of access, rectification or erasure, it is necessary to send a message to the following email address: [email protected]
Entire Agreement. 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 representations or agreements, negotiations and/or communications, whether written or oral, between the parties regarding such subject matter.
The T&C 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.
Assignment. The Advertiser or its agency, may not assign the T&C or the IO, without the prior written consent of FOREXSTREET S.L.
Conflicts. To the extent of any conflict, the present Terms & Conditions shall prevail over the IO and Policies.
Severability. If for any reason a court or arbitrator of competent jurisdiction finds any provision of these T&C or IO to be unenforceable, the remainder of the above-mentioned documents will continue in full force and effect.
No Third Party Beneficiaries. 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.
Survival. Any provisions, obligations or liabilities, which by their nature are intended to survive, shall survive termination or expiration of these Terms and the IO for any reason.
Counterparts. 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.