TERMS AND CONDITIONS OF ADVERTISEMENT BROADCAST OPTIMIZATION SERVICES BY YIELDBIRD
- The Agreement comes into force and is binding the Parties from the date of acceptance by Yieldbird of the Order placed by the Publisher in the electronic form, via an interactive form available at the Yieldbird website (the "Effective Date"). The technical solutions applied by Yieldbird provide the Publisher with the possibility of detection and correction of errors in the data introduced to the form as well as convenient access to the Terms and Conditions.
- The submission of the Order of any of the Services described herein shall be equivalent to full acceptance of the provisions of these Terms and Conditions by the Publisher, without the necessity to prepare a separate agreement.
- The technical condition necessary to commence the cooperation of the Parties under the Agreement in the optimum scope and quality is the Publisher's unlimited access to the Internet network and to a user's telecommunications device compatible with the latest version of a popular Internet browser.
- Yieldbird performs the provisions specified herein in principle for the benefit of entrepreneurs. In a situation when a consumer wishes to act as the Publisher, he shall inform Yieldbird via e-mail in order to conclude a separate individual Services agreement.
Unless otherwise explicitly reserved, the terms hereinafter have the meaning, as follows:
Ban: Banning the Service from the possibility of Advertisement broadcast under the Agreement.
eCPM: The factor which measures Yieldbird action effectiveness in Placements, i.e. the rate obtained by Yieldbird for the sale of 1000 Advertisement views.
Number of Advertisement Views: The number of single broadcasts of the Advertisement within Placement(s) on the user's devices.
Incorrect Traffic: Each form of Internet traffic within the framework of the Service that is invoked in an artificial manner, such as: (i) performed with any technique, artificial increase in the Number of Advertisement Views including, among others, the use of browsers with automatic respawn, the practice of automatic redirecting of users, the use of blind text links, misleading links, forced clicks, placement of network tags (website designation in the Internet) on blank Internet pages, etc.; or (ii) actions of spam nature, actions contrary to the regulations, and other principles applied by RTB Platform operators.
Settlement Period: A calendar month or another period set by the Parties in the Order.
Publisher's Panel: An online application rendered available by Yieldbird to the Publisher, used for the settlement of Advertisement broadcast on the Website between the Parties.
Partners: Entities other than RTB Platforms that commission Yieldbird to broadcast Advertisements on the Website.
Placements: Advertising areas on the Website which are operated by Yieldbird under the provisions of the Agreement.
RTB Platforms: Technological platforms, managed by third parties, intended for the optimization and automated sale as well as for broadcast Advertisements.
Revenue: Net value of provisions due to the issue of Advertisements within Placements managed by Yieldbird, achieved in the Settlement Period as a result of Yieldbird's management in relation to cooperation with Platform RTB operators or with Partners after deduction of technological costs.
Terms and Conditions: A set of provisions falling under this document, which settle the Parties' rights and obligations in connection with the Agreement.
Advertisements: Any graphic, text, or multimedia units of advertising or promotional nature intended for broadcast on the Website in any format adjusted to technological requirements of Placements.
GDPR or Regulation: Regulation No. 679/2016 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/4/EC (General Data Protection Regulation).
Website: An Internet and/or mobile website (or websites) of the Publisher, run at the URL address (or addresses) indicated in the Order.
Parties: The Publisher and Yieldbird considered jointly as Parties to the Agreement or as entities mutually or jointly obliged under the Terms and Conditions or the Order.
Agreement: Entire of the provisions set forth in the Order, the Terms and Conditions and any additional document defining the rights and obligations of the Parties.
Publisher: the Party to the Agreement who provides the Placement(s).
Yieldbird: "YIELDBIRD" spółka z ograniczoną odpowiedzialnością with its seat in Warsaw, at ul. Czerska 8/10, registered in the Register of Entrepreneurs maintained by the District Court for the capital city of Warsaw in Warsaw, 13th Commercial Division of the National Court Register under the National Court Register No. 0000324436; share capital in the amount of PLN 47,550.00 (forty seven thousand five hundred fifty zloty); Tax ID No. [NIP]: 679 299 6939,
Order: A separate document settling the rights and obligations of the Parties in connection with the Service, which defines, in particular, the Publisher's identification details, the Website details, amount of remuneration and payment terms, constituting an integrated part of the Agreement.
III. SUBJECT OF THE AGREEMENT
- On the terms and conditions set forth in the Agreement, the Publisher undertakes, in exchange for the payment of agreed remuneration, to provide Yieldbird exclusively within the programmatic advertising model – the Placement(s) in order to broadcast and technologically optimize the Advertisements on the Website.
- The sale, settlement and management of Advertisements broadcast on Placements are exclusive competence of Yieldbird.
- The number, type and localization of the Placements provided by the Publisher to Yieldbird will be determined by the Parties in the working mode.
IV. YIELDBIRD OBLIGATIONS
Yieldbird undertakes and agrees to:
- act in accordance with its best knowledge and to the extent of the competences held in order to maximize Revenues obtained on account of Placement's management on the Website;
- provide the Publisher with access to the Publisher's Panel;
- generate in the Publisher's Panel information concerning the Placement(s) managed by Yieldbird, including information:
- on the Number of Advertisement Views;
- on the eCPM amount – collectively and by division into particular Placements;
- on the amount of Revenues for subsequent Settlement Periods by division into particular Placements;
- on the amount of the Revenue verified and authorized by Yieldbird and the remuneration due to the Publisher along with the information necessary to issue an invoice for Yieldbird by the Publisher;
- settle in timely manner with the Publisher for provided Placement(s);
- remove immediately technical errors attributable to Yieldbird precluding the provisions under the Agreement.
The Publisher undertakes and agrees to:
- provide Yieldbird with continued and uninterrupted access to Placement(s) throughout the entire term of the Agreement;
- place on the Website within three working days from the Effective Date Advertisement induction codes that count the Number of Advertisement Views and remain the codes unremoved or unchanged;
- remain Placements unchanged or unremoved, including its specific localization on the Website, its visibility and uncovered by other advertising forms;
- withhold from Incorrect Traffic practices and prevent from such practices on the Website resulting from acts or omissions of third parties;
- withhold from practices which may result in imposing a Ban on the Website and, while operating the Website, comply with the provisions set forth in regulations and principles of RTB Platform functioning, in particular the principles of "Google Policy";
- inform Yieldbird – at least three days in advance – of each change on the Website, which may impact on the performance of the Agreement in particular about the change to the Website layout and technological changes, including the changes implemented to the HTML documents containing Advertisements, and impact on the localization and functionality of Placements;
- inform Yieldbird of undertaking with other entities the cooperation in relation of the Website advertising space management, including broadcast of Advertisements on the Website;
- inform Yieldbird – at least three days in advance – of acts which may impact on significant – i.e. more than 30% – change of the Number of Advertisement Views.
VI. PARTIES COOPERATION
- The Publisher undertakes and agrees to use best endeavours to maintain or increase the starting Number of Advertisement Views made via the RTB Platform, as declared in the Order, throughout the entire term of the Agreement.
- In the event of the report of breach of applicable legal regulations referred to the Advertisement, Yieldbird shall be obliged to take immediate and reasonable measures, upon substantive analysis of the report, in order to block or change the Advertisement.
- The Publisher is entitled to request from Yieldbird via e-mail for termination of broadcast of any Advertisement placed on the Website which is properly identified. In such case Yieldbird shall be obliged to prevent the access of the indicated Advertisement to the Website within three working days after receipt of the request. The request hereinabove may only relate to Advertisements which breach applicable legal regulations or the terms of "Google Policy" or equivalent.
- Yieldbird undertakes and agrees withhold from broadcast Advertisements referring to entities of who the Publisher raised an explicit objection against their Advertisements on the Website. The list of entities shall served upon Yieldbird at the moment of submission the Order by the Publisher. Any amendments to the list of entities hereinabove requires the Yieldbird consent granted in working mode. The provisions of item 3 of this clause shall be applied respectively.
VII. REPORTING AND SETTLEMENTS
- The Order will determine the amount of the remuneration due to the Publisher for the provision of Placement(s) paid by Yieldbird under the Agreement.
- The Revenue shall be settled in accordance with the information related to each Settlement Period that is generated automatically by the Publisher's Panel and further verified and authorized by Yieldbird. The information hereinabove will be presented to the Publisher by Yieldbird within five working days upon the completion of the Settlement Period. Yieldbird shall provide the Publisher with information via Publisher's Panel and – upon the Publisher's request –serve the information upon the Publisher on the e-mail address indicated in the Order. The information hereinabove constitutes the grounds for the issue of the invoice for Yieldbird by the Publisher for the remuneration due for given Settlement Period.
- Yieldbird declares that reported Revenues shall be in compliance with the actual status presented in the information reported to Yieldbird by the RTB Platforms and Partners.
- Yieldbird shall be entitled to make the adjustment of the settlement of the Revenue amount due for the Settlement Period and, as a consequence, the adjustment of the amount of remuneration due to the Publisher, in case of making a relevant adjustment of the settlements between the entity managing and RTB Platform or the Partner with Yieldbird for such a Settlement Period.
- Yieldbird explicit consent for the issue and delivery of invoices via e-mail to the address indicated in the Order or by means of making it available at the Publisher's Panel.
- In case of the Publisher's breach of obligations set forth in Section V.4) or Section V.5) of the Terms and Conditions, the Publisher shall not be entitled to remuneration, in relation to the Advertisements under the breach hereinabove.
- The currency of remuneration and the payment term shall be defined in the Order.
VIII. LIABILITY TERMS AND CONDITIONS
- Yieldbird shall not be held liable for the breach of any third parties' rights and for the breach of applicable legal regulations in connection with the Publisher's activity – including in connection with the content of the Website.
- Yieldbird shall not be held liable for interruptions in broadcast of Advertisements caused by reasons not attributable to Yieldbird, in particular such as: strikes, natural disasters, telecommunications network failures, third parties' deviations having impact on the performance of the Service.
- Yieldbird shall be entitled to suspend temporarily the broadcast of Advertisements for technical reasons. Yieldbird shall use reasonable endeavours to excercise such suspensions at night and for the shortest time possible. Suspensions due to technical reasons shall not impact the provision of the Agreement by Yieldbird.
- In case of questions, suggestions, and possible comments regarding the Service availability or quality, the Publisher may contact the Yieldbird representative via e-mail, sending a complaint to the following e-mail address: [email protected].
- The Parties' liability of statutory warranty and loss of profits shall be excluded.
- In the event of the breach of applicable legal regulations or provisions of the Agreement by the Publisher, the Publisher undertakes and agrees to satisfy, at its own cost, any claims of third parties on account of the breach of such persons' rights as a result of the breach of applicable legal regulations or the provisions of the Agreement, and if as a result of the foregoing, Yieldbird or a third party is obliged to pay a compensation or a financial penalty, under a legally binding judgement or decisions of a competent authority, in the event of satisfaction of such claims by Yieldbird or adjudicating from Yieldbird or imposing a financial penalty on Yieldbird – the Publisher undertakes and agrees to immediately reimburse, on recourse basis, upon the Yieldbird request, the amount of all the claims, penalties, or compensations covered, and any related expenses, including the costs of court, administration, arbitration, or reconciliation proceedings. The Publisher, moreover, undertakes and agrees to enter, at its own cost and at the request of Yieldbird or any competent authority, any court, administration, or out-of-court proceedings pending with the participation of Yieldbird and resulting from circumstances mentioned in the preceding sentence. Furthermore, the Publisher undertakes and agrees to provide Yieldbird with any necessary documents aimed at the defense of Yieldbird rights in negotiations or in court, administration, or out-of-court proceedings pending with the participation of Yieldbird.
- During the term of the Agreement, Yieldbird is entitled to manage exlusively of Placements in the field of advertising in the programmatic model. In relation to the above, the Publisher undertakes, during the term of the Agreement, withhold from granting access the Website advertising space to third parties on the basis of any legal title in order to manage the broadcast of Advertisements on the Website in the programmatic model, unless the Parties agreed otherwise in the working mode.
- In the event of a breach by the Publisher of the obligations set out in Section IX.1 above, the Publisher shall pay Yieldbird liquidated damages of 30 % (in words: thirty percent) Revenue obtained in the Settlement Period preceding the breach. The payment of liquidated damages will not exclude claim for damages exceeding the liquidated damages.
- Each Party undertakes and agrees not to disclose any information rendered available, transferred or obtained otherwise, in connection with negotiations, execution, and implementation of the Agreement, in particular organizational and technological information concerning the other Party as well as commercial conditions on which the Parties concluded the Agreement ("Confidential Information"). The confidentiality obligation remains for a period of 3 years from obtaining given Confidential Information, irrespective of dissolution (i.e. termination, expiration) of the Agreement.
- Each Party undertakes and agrees that any Confidential Information transferred and disclosed by the other Party shall be used exclusively for purposes connected with the implementation of the Agreement and that it shall not be transferred or disclosed to any third party without explicit, prior consent of the other Party expressed in the written form.
- The confidentiality obligation shall not comprise: (i) information which is commonly known; (ii) information which was known to the Party prior to the disclosure thereof by the other Party, whereas the fact of knowing it before disclosure should be demonstrated; or (iii) information obtained from authorized third parties without the confidentiality obligation.
Each Party shall be exempt from the confidentiality obligation relating to Confidential Information in the event if the obligation to disclose thereof results from absolutely applicable legal regulations. In each case the disclosing Party shall be obliged to, if possible due to absolutely applicable legal regulations: (i) immediately inform the other Party about the obligation to disclose Confidential Information to persons with respect to whom the disclosure is to occur or occurred; (ii) disclose only such a part of Confidential Information which is required under the law; and (iii) take up any possible actions in order to ensure that the Confidential Information disclosed is treated in a confidential manner and used only for purposes substantiated with the objective of disclosure.
XI. TERM OF THE AGREEMENT
- The Agreement will be in force for an indefinite period of unless the Parties will determine definite period of time in the Order.
- The Agreement in force for an indefinite period may be terminated by each Party with immediate effect. The statement on termination should be made in the electronic or written form to remain valid.
- Yieldbird shall have the right to terminate the Agreement with immediate effect and without a separate notice in case of material breach of the Agreement's provisions by the Publisher, in particular in case of occurrence of Incorrect Traffic or a Ban at the Website or the failure to comply with the provisions indicated in Section XIII of the Terms and Conditions.
- In the event of occurrence of Incorrect Traffic or a Ban, and the failure to comply with the provisions indicated in Section XIII of the Terms and Conditions, Yieldbird shall have the right to limit or block the broadcast of Advertisements on the Website and such action shall not constitute the grounds for raising any claims against Yieldbird by the Publisher.
- The Agreement may be terminated by either Party with immediate effect in the case of a material or repeated breach of the Agreement, Regulation or other applicable law in the field of personal data protection by other Party, subject to prior notice of non-breaching Party for providing remedy for the breach by the breaching Party within additional period, not shorter than 7 days, and unsuccessful expiration of that period.
XII. NEWSLETTER AND CONTACT FORM
- The "Yieldbird Choice" and "Contact Form" services are free-of-charge services rendered at the order of the https://yieldbird.com/ website user, being the Publisher or advertiser.
- The "Yieldbird Choice" service consists in sending by Yieldbird, daily or once a month, to the e-mail address of the https://yieldbird.com/ website user, being the Publisher or an advertiser, of the newsletter containing the selection of the latest publications in the scope of Digital & Programmatic. The newsletter shall be sent to the address indicated in the registration form used for subscriptions for the aforementioned newsletter.
- The "Contact Form" service enables the users of the https://yieldbird.com/ website to contact Yieldbird via the contact form placed at the Website at the address: https://yieldbird.com/#contact-section
- In connection with rendering the "Yieldbird Choice" service, Yieldbird collects the following personal data: e-mail address, name and surname, workplace, position, and Publisher/advertiser, from the https://yieldbird.com/ website users and processes them.
- In connection with rendering the "Contact Form" service, Yieldbird collects the following personal data: e-mail address, name and surname, workplace, position, Publisher/advertiser, and other information included in the content sent by the message user, from the https://yieldbird.com/ website users and processes them.
- The "Yieldbird's Choice" or "Contact Form" users shall have the right of access to their data and they shall have the right to modify or remove them. Data modification or resignation from the newsletter shall be possible via the registration form available at the https://yieldbird.com/ website or clicking a relevant link available in the newsletter sent to the user.
XIII. PERSONAL DATA
- The Parties undertake and agree to provide their representatives and persons employed by them (irrespective of the legal grounds for employment, e.g. civil law contracts), whose Personal Data will be disclosed to the other Party of the Agreement as the data administrator in connection with the conclusion and implementation of the Agreement, with the information known to the disclosing Party and indicated in Article 14 of GDPR.
- Whereas as part of the Service provided by Yieldbird (who is the processor) is processing of Personal Data entrusted by the Publisher (who is the Personal Data administrator), the Parties hereby regulate issues on entrusting the processing of Personal Data in Section XIII herein.
- SUBJECT MATTER
- Under Section XIII herein, the Publisher entrusts to Yieldbird the processing of Website user's Personal Data ("Personal Data") , in order to perform it's services by redirecting the data gathered by the Publisher via the cookie technology to Partners and RTB Platforms.
- Yieldbird may process the entrusted Personal Data solely within the scope and for the purpose necessary to provide services specified in the Agreement. Yieldbird will process Personal Data only during the term of the Agreement.
- The Personal Data processed in connection with the performance of the Agreement is subject to Regulation. Yieldbird is obligated to process the Personal Data in accordance with the GD PR other applicable laws and provisions of Section XIII herein
- PARTIES OBLIGATIONS:
Yieldbird is obligated to:
- apply all technical and organizational measures adequate to the risk level securing the Personal Data in accordance with the principles specified in Article 32 of the Regulation;
- assist the Controller in fulfilling the obligations set forth in Articles 32–36 of the Regulation, while taking into account the nature of processing and information available to Yieldbird;
- process the Personal Data only on documented instructions from the Publisher, unless required to do so by the applicable EU or local law; in such a case, Yieldbird informs the Publisher of such a legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
- assist the Publisher by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the Regulation;
- ensure that persons authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- after the termination of the Agreement, depending on the Publisher's request – delete or return the Personal Data and remove copies thereof, unless the mandatory provisions of law provide otherwise;
- Yieldbird is entitled to further entrust the processing of Personal Data to sub-processors, that are or will be Partners or RTB Platforms. The list of sub-processors is available at the address https://yieldbird.com/partners/ .Yieldbird will inform the Publisher of any intended change in the list of sub-processors in the manner accepted for communication under the Agreement. The Publisher may object to such a change within the next 7 days. Yieldbird warrants that it will use only sub-processors providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that processing will meet the requirements of the Regulation and ensure the protection of the rights of the data subject. Yieldbird will ensure that the obligations imposed on sub-processors are at least the same obligations that are imposed on Yieldbird in Section 11 herein. The Publisher acknowledges that the lack of consent to change the list of sub-processors may result in Yieldbird's inability to perform the Agreement further, about which Yieldbird will inform the Publisher immediately;
- Yieldbird will provide the Publisher with the information necessary for the performance of its duties related to entrusting the processing of Personal Data. Yieldbird will enable the Publisher to carry out audits, including inspections, of the outsourcing of the processing of Personal Data and will ensure cooperation in this respect. Each Party will incur its own costs of the audit, regardless of its result. The audit may be performed on business hours, prior to minimum 14 days' notice;
- Yieldbird must ensure that the persons performing the audit activities are obliged to keep confidential any information they obtain in connection with the performance of the audit that constitutes Yieldbird's trade secret. The Publisher must ensure that the persons performing audit activities audit are not employed, are not partners, shareholders or members of corporate bodies of entities performing activities competitive to Yieldbird's business activit;
- After the audit, the Publisher's representative will draw up a post-audit report, which will be signed by the representatives of both Parties. Yieldbird undertakes, within a reasonable period of time agreed upon with the Publisher, to comply with the post-audit recommendations contained in the report aimed at resolving deficiencies and improving the security of Personal Data processing. The Publisher, in agreement with Yieldbird, issues any post-audit recommendations regarding necessary security measures to be implemented, taking into consideration all implementation costs;
- Yieldbird may authorize persons acting on its behalf, including sub-processors, to process Personal Data on the Publisher's behalf, which includes issuing Personal Data processing instructions to these entities on the Publisher's behalf
- DATA TRANSFER
Yieldbird may convey (transfer) Personal Data to a third country outside the European Economic Area – in particular to Partners and RTB Platforms (hereinafter referred to as "Sub-Processors"). Such transfer takes place provided that an adequate level of protection of Personal Data is ensured, which will be identified in particular by:
- cooperation with further entities processing Personal Data in countries for which an appropriate decision of the European Commission has been issued;
- Personal Data are entrusted under an agreement based on standard contractual clauses issued by the European Commission by Decision NO 2010/87/EU. In the event that Yieldbird transfers Personal Data on the basis specified above, an agreement based on standard contractual clauses is concluded between the Publisher and the Sub-Processor. The Publisher hereby authorizes Yieldbird to conclude the agreement referred to in the preceding sentence with the Sub-Processor on its behalf.
- in the event of data transfer to the USA – cooperation with entities participating in the Privacy Shield program, approved by the European Commission decision.
- Yieldbird is only liable for damages suffered by the Publisher or data subjects as a result of Yieldbird's processing of the Personal Data in contradiction with the Agreement or the provisions of law directly imposing on Yieldbird in that respect.
- The Publisher shall be obliged to present relevant information and notifications on Personal Data processing to the Website users, in accordance with GDPR and other applicable legal regulations. For this purpose, the Publisher may add to the information published by him a link provided by Yieldbird with a list of Sub-processors at the following address: https://yieldbird.com/partners/.
- The Publisher declares that the Personal Data entrusted to Yieldbird and its trusted Sub-Processors (indicated at https://yieldbird.com/partners/) are legally processed by the Publisher according to the requirements of the Regulation, in particular based on one of the legal grounds legalizing the processing specified in the Regulation, as well as in accordance with the relevant provisions of the Act of 16 July 2004 Telecommunications Law (Journal of Laws 2004 No. 171 item 1800), providing legal preservation of information, or receiving an access to information that is already stored in Website user's telecommunication terminal device.
XIV. RIGHT OF PUBLICITY
Publisher hereby grants to Yieldbird the express right to use Publisher's company name, logo and/or trademark in marketing, sales, and public relations materials solely to identify Publisher as a Yieldbird customer and to present Website as a case study of use of Services. Yieldbird hereby grants to Publisher the express right to use Yieldbird's company name, logo and/or trademark solely to identify Yieldbird as a performer of Services to Publisher.
XV. FINAL PROVISIONS
- In case of the lack of information on the change of the address or other data, any correspondence sent to the address indicated in the Order shall be considered served upon effectively.
- Invalidity or ineffectiveness of any provision of the Contract shall not result in the invalidity or ineffectiveness of the remaining provisions.
- Yieldbird is entitled to amend unilaterally the content of the Terms and Conditions. Any amendments thereto shall be placed at the yieldbird.com website and they shall come into force on the date of publication thereof. In the event of the amendment thereto, Yieldbird shall notify the Publisher about that fact via e-mail used by the Publisher for communication with Yieldbird, and the Publisher shall have the right to raise an objection to the Yieldbird e-mail address used to communicate the amendment thereto, within 10 days from the date of service the information of the amendment thereto. Raising an objection by the Publisher shall result in immediate termination of the Agreement, as of the date of raising the objection. The failure to raise the objection within the time limit set shall mean the Publisher's consent to the amendment thereto.
- Disputes which may arise in connection with the performance of the Agreement shall be settled by common court with territorial jurisdiction over the Yieldbird seat.
The Agreement shall be governed by the Polish law, excluding any no-prejudice clauses which could impose the application of regulations of different law.