Terms and Conditions 8Seconds bvba (the “Service Agreement”)
This Agreement (as defined below) is entered into by you, being either: (i) the party which accepts this Agreement online and is listed on the account you create; or (ii) being the entity identified as the “Company (CLIENT)” on the Front Page (if any) of this Agreement which signs this Agreement (“Customer” / “You”) and 8 Seconds bvba (registered number: I.O. with its registered office located at Derbystraat 385, B- 9051 Gent, Belgium (“8Seconds”).
“Acceptance Date” means either: (i) the date on which Customer accepts this Agreement online; or (ii) the acceptance date listed on the signatory page (if any) of this Agreement;
“Customer” means the entity whose website or email content (whether created by itself or by a third party on its behalf) is optimized by 8Seconds in accordance with this Agreement, which entity may be more particularly detailed on the Front Page (if any) of this Agreement;
“Optimizer” means 8Seconds online optimizing tool;
“Agreement” means these terms and conditions (including the Front Page and the signatory page if any);
“Content ” means all web or email content (including without limitation any URLs, all contact information and/or other data in the email or website);
“Campaign” means every active, paused or draft campaign set up in the Optimizer by the customer, partner or by 8Seconds on behalf of the customer or the partner;
“Parent campaign and sub campaigns” mean a campaign that renders specific content to specific groups in the database of recipients and is therefore split up into different campaigns. Such a campaign is considered as one campaign by 8Seconds, although it consists of a parent campaign and multiple sub campaigns. The parent campaign and sub campaigns are identical campaigns, but specific elements can slightly differ (for instance, the language or an image).
“End Date” means the date (if any) on which the parties agree this Agreement will terminate and Optimizer will cease to be made available;
“Partner” means the third party owner and/or operator of a Partner Property;
“Partner Property” means any website, application, property or any other media owned, operated, or provided by a Partner of which 8Seconds optimizes the content pursuant to a contractual agreement;
“8Seconds reseller” means every third party that is authorized by means of an agreement with 8Seconds, to resell the 8Seconds services;
“Programme” means the different types of 8Seconds services each as may be more particularly detailed in the online system (including without limitation Optimizer or optimizing tool) and which are made available by 8Seconds in accordance with this Agreement;
2. Placement and targeting.
Unless expressly provided otherwise, Customer acknowledges that 8Seconds does not and cannot guarantee: the number (if any) of conversions or clicks on any Partner Property or 8Seconds Property or content pages or sections of such properties.
3. Content and positioning
3.1 Customer shall: if requested, submit Content for the Programme to 8Seconds at least three (3) business days prior to the applicable Start Date;
3.2 Customer is solely responsible for all: (i) Targets and (ii) Content on the domain or landing page.
3.3 Unless otherwise specified, 8Seconds and/or any Partner shall have the right at any time to reject any Programme request for any or no reason.
3.4 Customer grants 8Seconds permission to utilize an automated software programme to retrieve and analyze websites and emails to evaluate content quality and serving purposes.
4. Partner Properties
In addition, if Customer’s web or email content are placed on Partner Properties, Customer acknowledges and agrees that the placement of such content shall provide Partner(s) with access to the content, including (without limitation) any images and any URL(s), any contact or other information that can be obtained through such URL(s), as well as data regarding queries or clicks.
5. Prohibited uses
Customer shall not, and shall not allow any third party to: (i)fraudulently use the Optimizer Programme;(ii) to use data extraction methods to access, query or otherwise collect and use 8Seconds information from any 8Seconds Property unless expressly permitted by 8Seconds in writing;; (iii) violate any technical specifications, (iv) engage in any other illegal or fraudulent business practice under the laws of any state or country where the Optimizer Optimizing tool is made available.
6. Payment, pricing and reporting
8seconds service pricing is based on a fixed pricing per campaign or on a monthly license basis. This is specified by Customer online or in the License Agreement. Customer is and shall remain solely liable to pay sums agreed in the License Agreement or/and requested online (via an order form or via one of the billing systems). Customer shall pay (or procure that the applicable third party pays) 8Seconds or the 8Seconds reseller in accordance with the pricing model applicable to the type of Programme selected by Customer using the online system. 8Seconds and Customer shall mutually agree the method of payment and record their agreement either on the 8Seconds Licence Agreement (if any), the 8Seconds Agreement Front Page (if any) or in the online system. All sums stated in this Agreement are exclusive of VAT unless stated otherwise. Customer shall pay the sums (including (if applicable) VAT and any other applicable taxes or charges imposed by any government entity) in the manner dictated by the method of payment agreed between the parties. Invoices shall be sent on a monthly basis. If payment is not made when due, 8Seconds or the 8Seconds reseller may charge interest at the rate of 2% per annum above the prevailing base rate of any dunning agency from the due date until the date of actual payment, whether before or after judgment. 8Seconds may change its pricing at any time. Charges shall be calculated solely based on records maintained by 8Seconds. 8Seconds shall provide Customer with password-protected access to 24/7 online reporting information so that Customer may monitor its campaign. Refunds (if any) are at the discretion of 8Seconds and only in the form of advertising credit for 8Seconds Properties.
7. Representations and warranties
Customer represents and warrants that (i) all of the information provided by Customer to 8Seconds is complete, correct and current; (ii) it has all necessary rights to permit and hereby grants 8Seconds and any Partners all such rights which are necessary for 8Seconds and any Partner(s) to optimize Customer’s web or mail content (“Use”); and (iii) such Use in accordance with this Agreement, the websites and/or landing pages shall not: (a) violate or encourage violation of any law or applicable regulation or code of practice (including without limitations the CAP Code in the UK and any equivalent advertising standards code of practice in any other jurisdiction); (b) infringe any intellectual property rights of any third party or contain any material which may be harmful, abusive, obscene, threatening or defamatory. Each party waives its rights against the other in respect of warranties and representations (whether written or oral) not expressly set out or referred to in this Agreement. Nothing in this clause limits or excludes either party’s liability for fraud.
Customer shall indemnify and defend 8Seconds, its agents, affiliates, directors, officers, employees and Partners (“8Seconds Indemnified Persons”) from and against any claims, losses, liabilities, expenses, damages and settlement amounts (including legal fees and costs) incurred by any 8Seconds Indemnified Person(s) arising out of Customer’s breach of clauses 5 and/or 7 of these terms and conditions. These indemnification obligations shall exist only if 8Seconds: (a) promptly notifies the Customer of any claim; (b) provides Customer with reasonable information and cooperation in defending the claim; and (c) gives Customer full control and sole authority over the defense and settlement of such claim. The 8Seconds Indemnified Persons may join in the defense with counsel of its choice at its or their own expense.
8Seconds shall defend, indemnify, and hold harmless Customer and its affiliates and their respective directors, officers, employees and agents from and against any and all claims, demands, damages, losses, judgments, liens, costs and/or expenses (including reasonable attorneys fees) arising out of or relating to a claim that Customer’s use of a Programme, the Optimizer and/or any other service provided by 8Seconds infringes a third party’s patent, copyright, trademark or other intellectual property right.
9. Limitation of liability
9.1 Nothing in this clause 9 shall limit liability for death or personal injury caused by a party’s negligence.
9.2 Other than the payment obligations set forth in clause 6, indemnity obligations set forth in clause 8 and/or a breach of clause 10 (Confidentiality): (i) each party’s liability to the other shall be limited to the amount paid or payable by Customer to 8Seconds under this Agreement; (ii) neither party shall be liable in contract, tort (including, without limitation, negligence), for pre-contract or other representations (other than fraudulent misrepresentations) or otherwise arising out of or in connection with this Agreement for any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings); any loss of goodwill or reputation; or any special, indirect or consequential losses in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, suffered or incurred by that party arising out of or in connection with the provisions of, or any matter under, this Agreement.
8Seconds guarantees 99.5% of uptime. The 0.5% 8Seconds cannot guarantee lies on the fact that the Internet may be unavailable itself, or unexpected technical issues may occur and such issues may be outside of our control. In case such downtime occurs, no financial compensation may be granted, in any form. 8Seconds is subscribed to a server monitoring service. As a result, the 8Seconds servers are pinged every 15 minutes. If a server does not respond, 8Seconds staff is immediately notified and will do everything in their power to fix the problem as soon as possible.
10.1 Subject to clauses 10.2 and 10.3 below, during the term of this Agreement and for a period of two years following the termination of this Agreement, neither party shall disclose Confidential Information of the other party to any third party without prior written (including in an email) consent except as provided herein. Any Customer passwords shall be treated as Confidential Information of the Customer and Customer is solely responsible for protecting the secrecy of such passwords use and/or a third party’s use of any Customer online accounts. “Confidential Information” includes (i) Web or Email Content, prior to publication; (ii) the terms of this Agreement; and (iii) any other Programme information or access to technology prior to public disclosure provided by 8Seconds to Customer and identified at the time of disclosure in writing as confidential and/or proprietary. It does not include information that has become publicly known through no breach by a party, or has been (a) independently developed without access to the other party’s Confidential Information; (b) rightfully received from a third party; or (c) required to be disclosed by law or by a governmental authority.
10.2 If the Customer is an advertising third party, Customer authorizes 8Seconds to grant any Advertiser which is a client of Customer or any subsequent advertising third party appointed by the Advertiser access to and a right to use the online account.
10.3 Customer acknowledges and agrees that any credit card and related billing and payment information which Customer provides to 8Seconds may be shared by 8Seconds with companies who work on 8Seconds’s behalf solely for the purpose of performing credit checks, effecting payment to 8Seconds and/or servicing Customer’s account.
11. Term Termination
11.1 Subject to clause 11.3 below, this Agreement shall commence on the Acceptance Date and shall continue either until terminated or until the End Date is reached.
11.2 This Agreement may be terminated: (a) by 8Seconds, which shall be entitled to suspend or terminate the Programme (or part of it) and/or terminate this Agreement, with immediate effect at any time upon email notice to Customer; (b) by Customer: (i) using, if available, the online system to cancel any optimizing campaign; or (ii) providing written notice (including without limitation email notice) to 8Seconds requesting termination of this Agreement (or part of it). Optimizing campaigns forming part of the Programme cancelled online will stop serving shortly after cancellation. All other Optimizing campaigns may be subject to 8Seconds’s ability to re-schedule or replace reserved inventory or cancel Optimizing campaigns already in production. Customer understands that cancelled Optimizing Campaigns may be published despite cancellation if cancellation of those Optimizing campaigns occurs after any applicable commitment date as notified in advance to Customer by the Partner or 8Seconds and Customer shall pay 8Seconds for such Optimizing campaigns. Upon expiration or termination of this Agreement for any reason (i) Customer shall remain liable for any outstanding amounts; (ii) each party shall upon request return Confidential Information of the other; and (iii) clauses 1 (Definitions), 6 (Payment), 8 (Indemnity), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Term and Termination), 15 (Miscellaneous) and 16 (Law and Jurisdiction) shall survive.
11.3 If an End Date has been specified, Customer may, subject to 8Seconds’s prior email approval, extend this Agreement by email for additional periods of 90 days or such other period as agreed by 8Seconds in writing.
The parties shall only be entitled to assign, delegate or otherwise transfer their rights and/or obligations under this Agreement with the written consent of the other (such consent not to be unreasonably withheld or delayed) except that 8Seconds shall be entitled to assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without consent to a subsidiary or holding company of 8Seconds or a purchaser of all or a substantial part of the assets of 8Seconds.
13. Rights of third parties
Nothing in this Agreement shall create or confer any rights or other benefits whether pursuant to the Contracts or otherwise in favor of any person other than the parties to this Agreement.
14. Force majeure
Other than in respect of payment obligations, neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, terrorism, civil commotion or industrial dispute.
This Agreement represents the entire terms agreed between the parties in relation to its subject matter and supersedes all previous contracts, representations or arrangements of any kind between the parties relating to its subject matter. The terms and conditions may be modified by 8Seconds at any time to reflect changes in how 8Seconds makes the Programme generally commercially available. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement. Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose. Unless otherwise expressly provided, any notices shall be sent to the addresses set forth in this Agreement (or detailed in the online advertising system) with a copy to the legal department via (a) confirmed facsimile, with a copy sent via first class or air mail; or (b) courier services, and shall be deemed given upon receipt. Any translation of the English language and the Agreement (the “Original Agreement”) is provided for convenience only and Customer agrees that in the event of a conflict between the translated version and the Original Agreement, the Original Agreement prevails.
16. Law and jurisdiction
This Agreement shall be governed by and construed in accordance with Belgian law and the parties hereby submit to the exclusive jurisdiction of the Belgian courts in respect of any dispute or matter arising out of or connected with this Agreement.