This document governs the terms and conditions under which the user (hereinafter the “User”) may use and access the services offered by KIMIA through its different websites. KIMIA provides digital marketing technology services (hereinafter “Services”) as described in these terms and conditions to various clients, which may include publishers and advertisers. In this sense, the User will also be hereinafter referred to as the “Publisher” or the “Advertiser”, depending on its position.
The User must read this document carefully before using the services. By executing an insertion order that references these terms and conditions and/or otherwise indicating electronic acceptance of these terms and conditions, the User agrees to become bound by this document. If the User does not agree to all the terms and conditions of this document, he will not have any right to use the services offered by KIMIA. In this sense, KIMIA’s acceptance is expressly conditioned upon the User’s assent to all the terms and conditions of this document. In the event of any conflict between this document and any applicable insertion order, the terms of such insertion order shall prevail.
Any form of misuse is prohibited under these terms and conditions.
In particular, Publishers are prohibited from attempting to obtain commissions by procuring business transactions themselves or through a third person using the ads, tracking links and/or other technical aids provided to them in the context of KIMIA network (hereinafter “Kimia Network”) using one or several of the following methods:
Any form of misuse will lead to the blocking of the Users' accounts immediately. In this case, the User may raise an objection via e-mail within a month in order to provide a statement with evidence that the chosen form of advertising has been in accordance with these terms and conditions. If the User cannot confute the breach of these terms and conditions, KIMIA will issue a notice of termination.
Any method used to artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Counts of impressions or clicks will be decided solely on the basis of reports generated by KIMIA's performance network. These prohibited methods include, but are not limited to: framing an ad-banner's click-through destination, auto-spawning of browsers, running 'spiders' against the Publisher's own site, automatic redirecting of users or any other technique of generating automatic or fraudulent (as determined by KIMIA, acting reasonably, or based on industry practices) click-through and/or impressions. Publisher may not require users to click on ads prior to entering a site or any area therein or provide incentives of any nature to encourage or require users to click on ads. Publishers' click-throughs of any link other than KIMIA's ads, or use of any other means of artificially enhancing click results shall be a material breach of these terms and conditions, and upon such occurrence, KIMIA may terminate these terms and conditions without prior notification. Such termination is at the sole discretion of KIMIA and is not in lieu of any other remedy available at law or equity. These prohibited methods include, but are not limited to: (a) clicking or bringing unnecessary or unnatural attention on the campaign ads, (b) users or family members clicking to support the site, (c) using one or several maneuvers that require or oblige an Internet user to click a campaign ad in order to access any element of the site or confirm participation, (d) using one or several maneuvers that encourage Internet users to click on a banner, (e) excessive page refreshes, generated either manually or automatically, (f) third-party programs with user incentives, such as paid-to- surf or auto-surf programs, (g) using one or several maneuvers that give rise to commission, such as double clicks, using fake e-mail address, self-registration, duplicated registration, etc. (h) using automated clicking tools, online robots, or other deceptive software that are programmed to interact with advertisement. Beside artificial activity the User must avoid, among others, the following techniques:
KIMIA's ad server will be the official counter for determining the number of ads delivered and amounts payable under these terms and conditions.
For each case of intentional or negligent violation of the present provisions, the User hereby undertakes to pay KIMIA liquidated damages in each case in an amount to be determined at KIMIA's equitably exercised discretion and, in the event of dispute, in an amount to be reviewed by court. .ion.
KIMIA reserves the right to approve or deny the affiliation of any User at any time.
The Publishers' sites that are not eligible to participate on KIMIA's network include but are not limited to:
Any form of misuse will lead to the blocking of the Publishers' accounts immediately. In this case Publishers may raise an objection via e-mail within a month in order to provide a statement with evidence that the chosen form of advertising has been in accordance with these terms and conditions by the Publisher. If the Publisher cannot confute the breach of these terms and conditions, KIMIA will issue a notice of termination.
KIMIA ad script. Publisher(s) shall place the KIMIA ad script on all appropriate pages within its/their site(s). Publisher(s) shall not alter, sell or disclose the KIMIA ad script in any way without KIMIA's prior and written consent. The KIMIA ad script for ads may not be used on a web page other than one located at an approved site and may not be distributed or submitted to any newsgroup, email distribution list, chat room, guest books, or other location that has not been approved by KIMIA.
Recording of Service Counts. KIMIA has the sole responsibility for calculation of statistics, including impressions, click-through rate, revenues, etc. CET/CEST time shall be the time period for traffic and tracking purposes. Statistics shall be available to the Publisher online in the KIMIA administration panel. The Publisher understands that KIMIA's online statistics may not be 100% accurate and that KIMIA may make adjustments to the Publisher's online statistics. In the event that coding on the Publisher's site(s) generates substantial number of erroneous impressions due to a technical problem such as server malfunction, coding alteration or a mistake in entering code, KIMIA reserves the right to withhold payment on all impressions and clicks delivered by Publisher.
Volume of impressions. KIMIA cannot guarantee any volume of traffic. Impressions can differ from one day to another following the performances of the site targeted.
Platform. Statistics of impressions and revenues will be provided by KIMIA.
KIMIA accepts the following payment methods:
Payments will be charged on the basis of the terms of service specified under the insertion order. Charges are exclusive of taxes. The Customer is responsible for paying all taxes, government charges, and reasonable expenses and attorney's fees KIMIA incurs collecting late amounts. Charges are solely based on KIMIA Ad Serving Platform measurements, unless otherwise agreed to in writing. Nothing in these terms and conditions or an insertion order can obligate KIMIA to do credit to any party.
The Advertiser acknowledges and agrees that any credit card and related billing and payment information that the Advertiser provides to KIMIA may be shared with companies who work on KIMIA's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to KIMIA and servicing the Advertiser's account. KIMIA reserves the right to withhold deposit or charge the Advertiser's account due to any breach of these terms and conditions by the Advertiser.
TPublisher payments are made according to the particular conditions accepted by the parties. To receive a payment, Publishers must reach the minimum payout limit set up in KIMIA's monthly clearing reports. KIMIA shall pay the Publisher for ads actually delivered by Publisher to each of the Publisher's site(s) approved by KIMIA.
TPublisher understands and agrees that KIMIA acts solely as a third party for the Advertisers. KIMIA shall only be liable to Publisher regarding its revenue, based on payments from Advertisers that KIMIA has received as immediately available funds. Publisher agrees that:
TAny form of misuse will lead to the blocking of the Publishers' accounts immediately. In this case Publishers may raise an objection via e-mail within a month in order to provide a statement with evidence that the chosen form of advertising has been in accordance with these terms and conditions by the Publisher. If the Publisher cannot confute the breach of these terms and conditions, KIMIA will issue a notice of termination.
TKIMIA reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein.
TKIMIA assumes no responsibility for paying any income taxes, banking commissions or currency fees on behalf of the Publisher. By participating in the KIMIA Network, the Publisher assumes complete and sole responsibility for any taxes, banking commissions or currency fees owed as a consequence thereof.
KIMIA owns, and shall continue to own, all right, title and interest in and to the KIMIA technology and the Services, including but not limited to all patent, trademark, copyright, trade secret, know-how and all other intellectual property rights therein, including any and all improvements, enhancements or modifications thereto. To the extent the User provides KIMIA with any ideas or other suggestions, whether or not patentable that directly concern enhancements, improvements or other changes to the KIMIA technology or any of KIMIA’s Confidential Information, KIMIA shall have all right, title and interest in and to such ideas or suggestions and the User hereby assigns and agrees to assign to KIMIA all right, title and interest in and to such ideas or suggestions.
KIMIA can use the trade names or trademarks of Publishers, Advertisers or third parties without prior written approval from the party owning such name or mark.
The Publisher may make use of the KIMIA trademarks in marketing and promoting its site or services, subject to KIMIA’s prior written approval of such uses. KIMIA shall have the right, without additional approval, to identify the Publisher by name, and/or using its trademark(s), service marks, trade names and logos, verbally and in its sales and marketing materials, to describe the general scope of its services hereunder and to identify and demonstrate its capabilities and services.
The Publisher(s) represents and warrants to KIMIA that:
The Advertiser(s) represents and warrants to KIMIA that none of the advertising provided contains:
The User agrees to indemnify, defend and hold KIMIA and its officers, directors, shareholders, successors, affiliates, employees, agents and representatives harmless from and against any and all costs, claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any claims and lawsuits or proceeding for libel, fraud, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation on the KIMIA Network, (ii) operation of the Publisher's site(s) submitted to KIMIA for participation on the KIMIA Network or (iii) otherwise arising from a relationship with KIMIA. The User also agrees to indemnify KIMIA for any legal fees incurred by KIMIA, acting reasonably, in investigating or enforcing its rights under these terms and conditions.
Notwithstanding anything to the contrary herein, in no event shall KIMIA or any of its affiliates or their respective officers, directors, employees or agents be liable to the User or any third parties for any special, incidental, indirect or consequential damages, damages from loss of use, data or profits, or cost of procurement of substitute goods or services, arising out of or in connection with these terms and conditions or any agreement between the parties.
In no event shall KIMIA’s total cumulative liability, from all causes of action of any kind, exceed the amounts actually paid to KIMIA in the TWO (2) months period preceding the claim. KIMIA shall have no responsibility for failures due in whole or in part to acts or omissions of Publishers, Advertisers, or other Users, or due to failures of or defects in third party systems.
Each party (“Discloser”) acknowledges that during the performance of its obligations under these terms and conditions, it may be required to disclose to the other party (“Recipient”) certain information that it regards as proprietary or confidential. As used in these terms and conditions, the term "Confidential Information" means information regarding Discloser’s trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now-existing or future non-disclosure agreement between the parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature. Recipient agrees that it will not disclose any Confidential Information to anyone except an employee, agent or advisor (collectively, “Representatives”) who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section, and that it will not use Confidential Information for any purpose not permitted under these terms and conditions. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by Recipient to comply with any requirement of law or order of a court or administrative body (provided that Recipient agrees to notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser’s expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. “Confidential Information” does not include information that:
(1) is known to or in the possession of Recipient prior to its disclosure of information to Recipient hereunder, as evidenced by the Recipient's written records;
(2) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of these terms and conditions;
(3) is made available free of any legal restriction to Recipient by a third party; or
(4) is independently developed by Recipient without use of or reference to Confidential Information.
Notwithstanding anything to the contrary in these terms and conditions, KIMIA may use and disclose any aggregate information (i.e. information that does not identify or relate specifically to User), which it has collected or received in providing the Services, to the extent necessary to perform, enhance or improve its services and/or for KIMIA’s business and marketing purposes. Additionally, KIMIA may disclose any Confidential Information in case of total or partial breach of its obligations by the User.
KIMIA may at any time, in its sole discretion, immediately terminate these terms and conditions, or cancel any ad(s) or service. KIMIA will make commercially reasonable efforts to notify Advertiser(s), Publisher(s) and third parties via email of any such termination or cancellation. The Advertiser(s) may cancel any ads and/or terminate these terms and conditions with or without cause at any time by deactivating a campaign in the Administration Panel.
KIMIA reserves the right to amend these provisions of the present terms and conditions which are minor in scope or nature, and to do so without citing any reasons, provided such modifications do not lead to these terms and conditions being restructured as a whole. KIMIA will communicate, by email, the modified conditions prior to the effective date.
These terms and conditions shall be governed by, and interpreted in accordance with, the laws of Spain.
To the extent permitted by applicable law, for any matter related to the interpretation or execution of these terms and conditions, the parties expressly waive to submit to any courts, which might have jurisdiction over the subject matter, and agree to submit to the sole competence and jurisdiction of the Madrid Courts.
Force Majeure. Except for payment obligations, if either party is prevented from performing or is unable to perform any of its obligations under these terms and conditions due to causes beyond the reasonable control of the party invoking this provision, including, but not limited to, acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each a “Force Majeure Event”), such party's performance shall be excused and the time for performance shall be extended accordingly provided that the party immediately takes all reasonably necessary steps to resume full performance.
Assignment. KIMIA shall have the right to assign or otherwise transfer its rights nor obligations under this Agreement without the prior written consent of the User to any company of KIMIA’s group. The User shall not have the right to assign or otherwise transfer its rights nor obligations under this Agreement. Any prohibited assignment made by the User shall be null and void.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by internationally recognized commercial delivery service), and on the day the notice is sent when sent by verified facsimile, if the time of transmission is during the recipient's business day, or if not on the next business day thereafter, in each case to the respective parties at the addresses provided by them in writing. Either party may change its address by providing the other party with written notice of the change in accordance with this section.
Severability. Should any of the provisions of these terms and conditions be adjudged invalid or unenforceable by the rules and regulations of Spain or a Spanish court, such provisions shall be deemed separate from the remainder of these terms and conditions and not affect the validity or enforceability of the remainder of these terms and conditions. In that case, such provisions shall be changed and interpreted to achieve the purposes of those provisions as much as possible within the extent of relevant laws or judgment of the court.
Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. These terms and conditions will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
Waiver. No delay or failure by either party to exercise any right or remedy under these terms and conditions will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the party waiving its rights. A waiver by any party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
No Third Party Beneficiaries. These terms and conditions shall be binding and inure solely to the benefit of the parties hereto and their permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms and conditions.
Last update: October 13, 2016.
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