Terms and Conditions
- 1.1. These terms and conditions (“Terms and Conditions”) apply to the Services (as defined below) provided by Bidmath (as defined below) to its Clients (as defined below).
- 1.2. By signing the Insertion Order (as defined below), the Client declares to agree with and accept the applicability of these Terms and Conditions. The Insertion Order, together with these Terms and Conditions and any other documentation or forms applicable and provided by Bidmath, collectively form the “Agreement”.
- 1.3. Any changes or additions to these Terms and Conditions shall only be valid once agreed upon with Bidmath and confirmed in writing. The applicability of any other terms and conditions, including any terms or conditions which are implied by trade, custom, practice or course of dealing or which the Client may purport to apply, are explicitly excluded.
- 3.1. The Client shall comply with the technical requirements and specifications provided by Bidmath from time to time for the purpose of setting up the Services to enable proper delivery, display, tracking and reporting of Customer Data in connection with the Campaign Ads. These technical specifications may require the Client to include pixels, code(s), cookies or other tracking technologies provided by Bidmath in the Campaign Ads on the Client’s websites and/or (mobile) applications.
- 3.2. Bidmath shall perform the Services on a commercially reasonable-efforts basis, thereby taking into account professional skill and care. Bidmath gives no warranty or guarantee, express or implied, with respect to any matter and, in particular, but without limitation, expressly disclaims any warranties or guarantees as to the quality or fitness for any particular purpose, or the absence of defects of the Services provided under the Agreement.
- 3.3. Bidmath shall be entitled to (temporarily) stop or suspend the provision of (part of) the Services (e.g. for maintenance purposes), at any time, without incurring any liability towards the Client. To the extent reasonably and commercially possible, Bidmath shall limit such interruptions or suspensions as much as possible or procure to execute them out of business hours as much as possible.
4. Price and payment
- 4.1. For providing the Services under the Agreement, Bidmath shall be entitled to receive a remuneration from the Client based upon the Conversion.
- 4.2. Bidmath will calculate the remuneration due on the basis of the Conversion Statistics. The Client acknowledges and accepts that the Conversion Statistics will comprise evidence for the calculation of the remuneration, regardless of the Client’s right to provide evidence of the contrary.
- 4.3. Unless agreed otherwise, Bidmath will invoice the Client for the Services on a monthly basis. All invoices or payments are due within 30 days from the invoice date, unless agreed otherwise. All payments to Bidmath shall be made in the currency of the invoice, and are exclusive of any applicable tax (e.g. VAT) which shall be payable at the time and in the manner required by law.
- 4.4. The Client shall never be permitted to offset or withhold any amounts or payments to Bidmath. Any (requests for) deductions, chargebacks or credits will not be accepted unless with prior written approval of Bidmath. Any fraudulent conversion lead, sale, click, action or install must be sent to (the account manager of) Bidmath including evidence that such lead, sale, click, action or install was invalid, fake or fraudulent.
- 4.5. Any disputes regarding the correctness or completeness of an invoice, must be notified by the Client to Bidmath without delay, but in no event later than within seven (7) days from the invoice date. Any such disputes need to be supported with evidence. If dispute inquiries were not or not timely received by Bidmath, the invoice may automatically be deemed accepted and payable in full by the Client.
- 4.6. In the event, the Client does not or not timely pay the due, Bidmath is entitled to immediately (temporarily) suspend (part of) the Services without incurring any liability towards the Client.
5. Term and termination
- 5.1. The Agreement shall enter into force on the Effective Date and shall continue for the term specified in the Insertion Order or, in the absence thereof, for an indefinite term until the termination in accordance with the provisions of this Clause. After expiry of the initial term as specified in the Insertion Order, the Agreement shall be automatically renewed for subsequent periods of each one (1) year.
- 5.2. Both Bidmath and Client are entitled to terminate the Agreement for convenience, by providing the other party written notice and thereby taking into account at least a thirty (30) days’ notice period
- 5.3. Both Bidmath and Client are entitled to terminate the Agreement in writing, with immediate effect and without incurring any liability towards the other party, in the event the other party: (i) has been declared bankrupt, files for bankruptcy or requests a suspension of payments, or (ii) ceases its business or is in the process of liquidation, or (ii) is in default of one or more of its obligations under the Agreement which default cannot be remedied or which has not been remedied within seven (7) days after having received a notification of such default.
- 5.4. Upon termination of the Agreement, regardless of the reason thereof: (i) Bidmath shall cease providing the Services upon the termination date; (ii) each receiving party shall return or destroy – upon sole discretion of the disclosing party - any Confidential Information, including all copies thereof.
- 5.5. The termination (for any reason) of the Agreement shall not affect any accrued rights or liabilities which either party may then have nor shall it affect any provision which is expressly or by implication intended to survive the termination of the Agreement. This in particular includes clauses 1, 2, 5.5, 6, 7, 8, 9, 10 and 11.
6. Warranties and indemnities
- 6.1. The Client represents and warrants towards Bidmath:
- 6.1.1. that it has the right, power and authority to enter into the Agreement and perform its obligations as set out therein;
- 6.1.2. that all information regarding the Client and/or its business shall be true, accurate and complete and that the Client shall inform Bidmath without delay of any changes or updates in respect thereof;
- 6.1.3. that the Campaign Ads shall be in compliance with any and all Applicable Laws and do not contain false, untrue or misleading information, do not violate the (intellectual property) rights of any third parties, are not discriminating, offensive, inappropriate or prohibited in any way;
- 6.1.4. that it shall act in compliance with any and all Applicable Laws and/or specific industry codes (where applicable);
- 6.1.5. that it shall not provide any data that directly identifies an individual, via a data feed or otherwise, pursuant to Applicable Laws;
- 6.1.6. that – to the extent pursuant to Applicable Laws - it has in place and can evidence, mechanisms for obtaining appropriate consent or other lawful basis to the collection and processing of Customer Data by means of (amongst others) the Services;
- 6.1.7. that it has in place and can evidence the existence of a privacy statement which clearly informs the customer/user of the Client about the collection, use, processing and protection of their personal data, and that informs such customer/user that third party cookies, pixels or other tracking technologies are placed for processing Customer Data in connection with the Services.
- 6.2. The Client shall defend, indemnify, and hold Bidmath, its subsidiaries, and each of their respective officers, directors and employees, harmless from and against any third party claim, damages (direct or indirect), cost and expenses (including court costs and legal fees), resulting from any non-compliance with one or more of the representations and warranties set forth under clause 6.1. In such event, Bidmath also has the right to (temporarily) suspend (part of) the Services with immediate effect, and without incurring any liability towards the Client.
7. Intellectual Property Rights
- 7.1. Bidmath or its licensors own all rights, title and interest in the Intellectual Property Rights connected to Bidmath and the Services.
- 7.2. The Client or its licensors, own all rights, titles and interests in the Intellectual Property Rights in and connected to Campaign Ads.
- 7.3. The Client is prohibited from directly or indirectly (through third parties) including or generating any malware, adware, spyware, P2P application, viruses, Trojan horses, computer worms, time bombs or data erasers, or any other malware which can interfere or disrupt the integrity of the Services.
- 7.4. The Client is furthermore prohibited to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services, or create or attempt to create a substitute or similar service or product through use of or access to the Services or proprietary materials related thereto.
8. Confidentiality and data processing
- 8.1. The receiving party shall keep confidential all Confidential Information from the disclosing party, and the content of any communication between the parties (as the case may be) in connection with the Agreement and/or the Services.
- 8.2. With respect to the Confidential Information, the receiving party: (i) shall not use or disclose such Confidential Information for any purpose except as necessary to fulfil the Services, or other obligations under the Agreement, or as required by law; (ii) shall limit access to the Confidential Information solely to employees, agents or any other person who need to obtain such access to fulfil the Services or any other obligation under the Agreement, and (iii) shall require its employees, agents and other persons who have access to the Confidential Information to abide by confidentiality obligations.
- 8.3. The receiving party shall be liable for any breach of the confidentiality obligations under this Clause by any of its employees, agents or any other person who obtained access to the Confidential Information.
- 8.4. Confidential Information shall not include information that is or has become publicly available through no fault of the receiving party or that was or has been rightfully and independently developed or obtained by the receiving party free from any duty of confidentiality.
- 8.5. Client shall at all times be independently responsible for compliance with Applicable Law, such as the GDPR. The Client acknowledges that it shall act as an independent “controller” within the meaning of the GDPR. The Client shall indemnify and hold Bidmath harmless from and against any and all third party claims, damages, losses, costs or expenses or any damages or costs awards sustained or incurred by Bidmath in connection with any complaint made against Bidmath under Applicable Law as a result of the Client’s failure to comply with such laws or legislation.
- 8.6. The Client acknowledges and agrees that any Customer Data collected shall, in addition to performing the Services
to the Client, be used by Bidmath for the following purposes:
- (i) Service and technology improvement: Bidmath’s technology will collect the raw data from the Client’s Campaign Ads (e.g. no. of clicks, click time, click-through rate, bid price, cost-per-click, conversion rate, etc.) to formulate and improve the predictive algorithm (e.g. the impact of Christmas or other seasonal changes to a Client’s Campaign Ad can be factored into our algorithm for subsequent optimization);
- (ii) Marketing papers and case studies: Bidmath may analyse the aggregated / anonymized Customer Data to use and disclose the findings obtained via the Services (e.g. how the number of clicks varies throughout the year for a particular industry) in marketing papers or press releases.
- 9.1. In no event will Bidmath be liable for lost profits or other indirect, consequential, punitive, special or incidental damages resulting from, arising out of or in connection with the performance or use of, or inability to perform or use the Services, even if Bidmath has been advised of the possibility of such damages, except to the extent that such damages arise directly and solely from wilful misconduct or gross negligence on the part of Bidmath.
- 9.2. Neither Bidmath, nor the Client, shall be liable for any failure or delay resulting from any event, beyond the reasonable control of that party including, without limitation fire, flood, insurrection, war, terrorism, earthquake, power failure, civil unrest, explosion, embargo, or strike (“Force Majeure”).
- 9.3. If and to the extent any exclusion or limitation of liability or disclaimer of warranty set out in this clause shall not be allowed under applicable law, such exclusion, limitation or disclaimer will not apply to the Client, but only to the extent it shall not be allowed. In such case, such exclusion, limitation or disclaimer shall be limited to the extent required by applicable law.
- 9.4. Except to the extent that liability cannot be limited under applicable law, any and all liability of Bidmath is limited to the amount paid out, if any, under its liability insurance coverage in the matter concerned. In the event and to the extent that no monies are paid out under its liability insurance for whatever reason, any and all liability of Bidmath shall be limited to direct damages only and shall not exceed the amount of € 2,000 (two thousand Euros) including VAT.
- 9.5. In any event, a claim on Bidmath shall lapse in case Bidmath did not receive written notice of such a claim no later than within 12 (twelve) months after the earlier of (i) termination date of the Agreement, (ii) the discovery by the Client of an event or circumstance that gives or may give rise to that claim or (iii) the moment that the Client could have reasonably discovered an event or circumstance that gives or may give rise to that claim.
- 10.1. Bidmath reserves the right to unilaterally amend these Terms and Conditions from time to time. Any such amendments shall be effective 30 days after notification to the Client. If the Client rejects the amendments, the Client is required to notify Bidmath hereof within 14 days after the notification date. Such rejection will imply that Bidmath shall terminate the performance of the Services upon the effective date of the amended Terms and Conditions. By continuing to use the Services after receipt of the notification, Client will be deemed to have accepted the amended Terms and Conditions.
- 10.2. If any provision of these Terms and Conditions should to any extent be or become invalid, void or unenforceable, the other provisions shall continue to be applicable and enforceable. With respect to the invalid or void provision, Bidmath shall provide an amended text for such provision which is valid and legitimate thereby respecting the initial objective of the original provision.
- 10.3. The Client may not assign or pledge its rights and/or obligations under the Agreement in whole or in part to any third party without the prior written consent of Bidmath.
- 10.4. The Agreement constitutes the complete and entire agreement between Bidmath and the Client and shall supersede any and all other prior understandings, commitments, representations or agreements, whether written or oral, between them.
- 10.5. Bidmath’s failure to exercise, or delay in exercising any rights under the Agreement or these Terms and Conditions does not constitute a waiver of such rights. Nothing in these Terms and Conditions or in the Agreement shall create or be deemed to create a partnership or relationship of employer and employee between Bidmath and the Client.
11. Applicable Law
- 11.1. These Terms and Conditions and the Agreement shall be exclusively governed by the laws of the Netherlands.
- 11.2. In the event of any dispute relating to or arising from these Terms and Conditions or the Agreement that cannot be resolved amicably between Bidmath and the Client, the dispute shall in first instance be exclusively decided by the competent court in Amsterdam, the Netherlands.