Terms of Services
These Terms of Service (the “Terms”) constitute an agreement between Bidmatic Inc. (also referred to as “Bidmatic”, “we”, “our” and “us”), an outstanding advertising company located in the United States, Delaware, 16192 Coastal Hwy, City of Lewes, County of Sussex, 19958 and you as a publisher having access to our Header Bidding Service provided at https://bidmatic.io/ (the “HB Service”) whether as an individual user or the entity you represent (referred to here as “you” or the “Publisher”).
If you use the HB Service on behalf of your company, then (i) “you” includes you and your company, and (ii) you represent and warrant that you are an authorized representative of your company.
The following Terms govern your use of the Header Bidding Management Platform, which is provided to you subject to your compliance with these Terms and any other operating rules, policies (including, without limitation, our Privacy Statement and Data Processing Addendum for Publishers ), policies and procedures that may be published from time to time on https://bidmatic.io/.
By accessing and/or using the Header Bidding Management Platform and HB Service, you are agreeing to be bound by these Terms. Since these Terms impose certain legal obligations on you, it is important that you read them carefully. These Terms will be permanently accessible on the Header Bidding Management Platform, so you can access, print, download, and save these Terms at any time. If you do not agree to these Terms, you must not use the Header Bidding Management Platform. Bidmatic legally reserves the right to suspend or deny access, at any time and without prior notice, to those Publishers who do not comply with these Terms.
You must be eighteen (18) years of age or older to use the Header Bidding Management Platform and HB Service. Children under the age of eighteen (18) are not permitted to use the Header Bidding Management Platform and HB Service. You represent and warrant that You meet all of these requirements. As we do not have the intent to process any data of persons under eighteen (18) years of age, please inform us by writing to the email address: firstname.lastname@example.org if You know that such persons may use our Service.
These Terms are subject to change (modification) by Bidmatic at any time, without prior notice. You are responsible for reviewing these Terms on a regular basis. We will make commercially reasonable efforts to include notices regarding any such updates or changes. Any changes that are made to these Terms will not apply retroactively and will not apply to disputes or events occurring before the change is published. It is possible that during the provision of the HB Service included in the Header Bidding Management Platform, the domain name under which such HB Service is provided may be modified with prior notice. Therefore, you know and accept this possibility, while the conditions you accepted by these Terms remain in full force and effect.
The following terms are used in this Terms according to the definitions set below:
“Ad” means advertising content which includes, but is not limited to, video advertisements, display advertisements, advertorials, and sponsorships that are placed on Publisher Properties for marketing purposes.
“Account” means a personal account of the Publisher within the Header Bidding Management Platform registered according to the procedure specified herein in order to gain access to the HB Service.
“Bid” means the process by which a Demand Partner submits an offer to purchase selected Publisher Properties for the placement of the Ad.
“Collected Revenue” represents revenue earned by Publisher based on Publisher Property monetized via the HB Service as determined by Bidmatic.
“Demand Partners” means third-party vendors who purchase advertising inventory on the Publisher Properties through the Ad Marketplace.
“End-User” means a specific natural person who visits the Publisher Properties.
“Fees” means the fees to be paid to Bidmatic for the HB Service.
“Personal Data” shall have the meaning of this term or any similar term (such as “personal information” or “personally identifiable information”) under the relevant applicable privacy or data protection laws, or where no such laws apply, shall mean any information that by itself or when combined with other information (such as name, address, telephone number, e-mail address, precise geo-location, financial account number, and government-issued identification number) can be used to identify a specific natural person.
“Publisher Properties” means digital advertising inventory available through various sites, applications, and other digitally-accessible platforms, materials, or content that is provided by Publishers.
THE HEADER BIDDING MANAGEMENT PLATFORM
Bidmatic offers innovative and transparent monetization solutions that assist Publishers power their business by generating revenue from Ads. To help Publishers serve accurate and relevant Ads, we collect and use a variety of information through the HB Service we offered.
The Header Bidding Management Platform (the “HBMP”) is the platform based on the prebid (https://prebid.org) script through which we provide the self-serve advertising software used by Publishers to gain access to demand and manage their relationship with advertisers, using the following abilities but not limited to:
- Creating banners, videos, and other available Ad placements, launched by our prebid wrapper on the Publisher Properties;
- Access to the reporting on all the bidders you decide to work with, access to bidding analytics;
- Ability to add a new bidder, which supports header auction for display and video or to remove the bidder;
- Automatically creating orders, line items, and creative placements within the Google Ad Manager account connected to the HBMP;
- Ability to connect your Ad server to the HBMP through the API; and
- Other related services as stipulated herein.
Subject to the conditions hereof, Bidmatic hereby grants you a limited, non-exclusive, non-transferable, revocable, fully paid-up right to use the HBMP for your own internal use for the purpose mentioned herein during the term of your use of our services due to these Terms.
THE HB SERVICE
The “HB Service”, as used in these Terms, includes all services that Bidmatic makes available to you, including but not limited to the followings:
- The HBMP as defined in Chapter 2 above;
- Ad Marketplace as defined in Chapter 6 below;
- The services provided by the Bidmatic website and by software made accessible through the website or the HBMP;
- All information, data, text, images, sounds, video, content, programming, and software made available through the website, the HBMP, or HB Service, or developed under the Bidmatic software;
- Any new features added to or augment the HB Service.
Bidmatic reserves the right with or without notice to you at any time to change, modify or discontinue, temporarily or permanently, its HB Service or a portion or attribute thereof, or the offering of any information, good, content, product, or services. Bidmatic will have no liability to you or any third party if Bidmatic modifies or discontinue any service, feature, or aspect thereof.
The use of the HB Service is entirely voluntary and is your exclusive responsibility. You may use the HB Service only in compliance with these Terms and all applicable laws, rules, and regulations. In connection with your use of the HB Service, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.
ACCESS TO THE HB SERVICE AND THE HBMP
In order to access the HBMP and the HB Service, you will have to create a personalized Account. You must provide a valid email address, and accurate and complete information during the registration procedure and you must safeguard your Account with a reliable password.
For registration purposes, we may ask you for the following information: name, surname, and e-mail; we might also need Your billing address, mailing address, job title, company, phone number, skype contact, and card or banking details for payments purpose. This data is requested to verify your identity. This data is transmitted via a secure encrypted server using Transport Layer Security (TLS) encryption, more commonly known as HTTPS, the approved industry standard. We may use your Personal Data to contact You for account purposes. For more information about your Personal Data processing, please visit Our Privacy Statement.
Bidmatic provides two types of Accounts for Publishers:
- “Free” Account that is set by default;
- “Paid” Account that can provide Publishers the ability to use and control additional functions. If the Publisher wishes to set up the “Paid” Account, he has to make a formal request to our Support Team at email@example.com or make it by Upgrading Plan via the HBMP.
By accepting these Terms, you acknowledge that we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the HB Service and your Account, and you may not be able to opt-out from receiving them. By using the HB Service, you are granting Bidmatic official permission to access your Account, profile, and other information (including messages, data, text, graphics, audio, video, or other material posted/uploaded/transmitted to or through the HB Service), solely in connection with the provision of the HB Service to you and for the purpose of granting such HB Service you apply for.
You should never use another person’s Account without permission. You are solely responsible for the activity that occurs on your Account, and you must keep access to your Account secure. You are solely responsible for safeguarding your Account, so use a strong password and limit its use to this Account. Bidmatic assumes that anyone logging into your Account and using your login information is either you or someone logging in with your authorization. If you create the Account and provide third-party access to the HBMP and HB Service, you shall be directly responsible for the security of your data and for the actions of such person. Bidmatic is not responsible for the actions of any third parties who have gained access to the HBMP and the HB Service from our Publishers. If there is any breach of security or unauthorized use of your Account, you must notify us immediately.
Bidmatic will not be liable for any losses caused by any unauthorized use of your Account; however, you may be liable for the losses of Bidmatic or its Demand Partners due to such unauthorized use. Bidmatic may terminate a Publisher’s access to the Service in case of repeated breaches of security or unauthorized use of the Account or the HBMP. We also may refuse any Publisher of access to our Service, at our sole discretion. The Service is not available to the Publisher who has been denied access by Bidmatic.
By accepting these Terms, You agree that Bidmatic may connect to your Google Ad Manager account with the ability to: a) create and/or modify “Advertisers” and/or “Orders” and/or “Line Items” and/or “Creatives” with regards to the HBMP activity (allows HBMP to perform an auction within Google Ad Manager); b) create “Ad Units” (allows you to create the Ad Units from the HBMP); c) access to AdSense, Ad Exchange, Ad Server reporting (allows you to have unified reporting in the HBMP).
You are responsible for providing the necessary resources and development work to enable Your Publisher Properties to access and interact with the HBMP in cooperation with Bidmatic and in accordance with the technical integration specifications made available in the HBMP. Publisher Properties may be sourced through the HBMP in accordance with the configuration settings as made and modified by you using the HBMP.
To display through the HBMP Ads sourced from external ad servers and networks, or to source through the HBMP Publisher Properties from external partners and networks, you must cooperate with Bidmatic so that the HBMP can properly interact with such external systems, including providing any applicable partner keys or codes and other technical requirements or information to allow (a) the external system to properly provide and track the Ads and Publisher Properties, and (b) the HBMP to properly request, receive and track the Ads and Publisher Properties and display the Ads. You acknowledge that Ads will be displayed according to your settings only to the extent made possible by any external ad server or network. You acknowledge that Publisher Properties will be sourced according to your settings only to the extent made possible by any external partner or network. You also acknowledge and agree that Bidmatic will not be responsible or liable for (i) any errors by or any functional inability of an external ad server or network to display Ads; (ii) any third-party payments or collections related to such Ads, and you will transact directly with external ad servers and networks for such payments or collections; (iii) any Ads or the content therein; (iv) any errors by or any functional inability of an external partner or network to deliver Publisher Properties; (v) any third party payments or collections related to such Publisher Property, and you will transact directly with external partners and networks for such payments or collections; (vi) any third party’s website(s) or application(s) or the content therein.
Your Account will be monitored continuously by both the Bidmatic traffic department and various 3rd Party Fraud Track Technologies. In the event Bidmatic deems an Account to be outside the 10% acceptable bounds for traffic quality, Bidmatic will terminate the Account. In the event traffic quality drops below the acceptable average of 5% for only a specific Publisher Property within an Account, Bidmatic will request that the Publisher remove such Publisher Property from their Account. Failure to do so will result in the termination of the Publisher’s access to the “Free” Account without payment or disabling the Ad Marketplace for the “Paid” Account without payment.
By accessing the HBMP you confirm that you are legally authorized to access your Publisher Properties used for Ads and agree to:
- accept and confirm that Ads will be programmed to go live on your Publishers Properties automatically without your involvement (for “Free’’ Accounts only);
- accept Bidmatic’s terms for the release of statistical information (you understand and agree that such statistics are estimates only and are subject to revision for reasons that include but are not limited to processing errors or the discovery of fraudulent actions and that updates of statistics are generally released, but not guaranteed for, several times a day);
- notify us via email if you wish to deactivate your Account;
- accept Bidmatic’s terms of payment, cashouts, and the like, as described in the Account registration process on the HBMP and in these Terms;
- set up Bidmatic’s Ads.txt records and update them timely (mandatory for “Free” Accounts);
- warrant that all the Personal Data would be processed by the Publisher Properties lawfully, meaning with the form of consent required by law, informed by clear and accessible privacy notices and protecting the Personal Data at a level of security corresponding to the risk and security of the Personal Data;
- provide the Publisher Properties’ End-Users with notice regarding their relationship with any third-party advertising networks;
- strictly abide by the Data Processing Addendum for Publishers, being an integral part hereof.
By accessing the HBMP Publisher undertakes not to integrate into the HBMP Publisher Properties:
- traffic that was generated by utilizing any of the following methods: listings on newsgroups, unsolicited bulk commercial e-mailings, instant messenger postings, chat room postings;
- traffic that was generated by any fraudulent method such as robots, spiders, auto-spawning browsers, auto reloading, meta refreshes, or any other form of fraudulent and artificial traffic;
- traffic that contains materials that are deemed offensive or illegal in nature. This includes but is not limited to, websites promoting gambling, mp3, warez, EMU, ROM, or pornographic materials;
- traffic that contains any materials promoting, justifying, or supporting war and/or armed invasion by the Russian Federation and Belarus into Ukraine including a display of war/invasion symbols.
Any method that artificially generates impressions on Publisher Properties is strictly prohibited. These prohibited methods include but are not limited to: (i) repeated manual impressions; (ii) incentives to generate impressions; (iii) robots; (iv) automated impression-generating tools or other deceptive software.
During using the HB Service and the HBMP the Publisher undertakes not to:
- upload, post, email, or otherwise transmit any viruses or other computer code that may interrupt, destroy, or limit the functionality of the HBMP, or interfere with the access of any user of the HBMP;
- circumvent, disable, or otherwise interfere with any security-related features of the HBMP;
- attempt to probe, scan or test the vulnerability of the HBMP or any Bidmatic network or system;
- breach, impair, or circumvent any security or authentication measures relating to the HBMP;
- attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover or determine the source code of the HBMP; or
- encourage or instruct any other individual or organization to do any of the foregoing.
You will ensure that none of your Publisher Properties infringes the intellectual property rights of any third parties. Bidmatic reserves the right to make adjustments to the Publisher’s Collected Revenue in the event of an alleged breach of the intellectual property rights of any third parties by any of the Publisher Properties if any respective claims, including the right of chargeback within 90 (ninety) days after the end of the respective month. Access to the HBMP is subject to prior approval by Bidmatic. Bidmatic reserves the right to refuse HB Service to any new or existing Publisher, at its sole discretion if it deems the violation of these Terms or Data Processing Addendum for Publishers.
Ad Marketplace is a software that allows you to connect with Demand Partners integrated directly into HBMP to place Ads on the Publisher Properties in order to earn Collected Revenue.
Ad Marketplace is a functionality provided by default to all “Free” Account holding Publishers without an option to disable it. “Paid” Accounts have the option to enable and disable it for all or specific Publisher Properties they manage.
By accepting these Terms Publishers agree that in case you use the Ad Marketplace functionality we may provide your data to Demand Partners under no restriction.
PAYMENTS AND TAXES
All payments made in connection with the use of the HBMP are made depending on the type of Account chosen by the Publisher. There are two types of HBMP users and two payment methods:
- “Free” Account
If the Publisher registers a “Free” Account, Collected Revenue will be paid to such Publisher on a Net 60 basis (within sixty (60) days after the end of each calendar month). All the Bids suggested by the Ad Marketplace are made in NET price so the Bidmatic Fees are already included in it.
The Publisher using a “Free” Account can receive payments via PayPal or via the wire transfer. The Publisher must promptly notify Bidmatic of the mode of payment according to the payment settings located on the HBMP. Bidmatic is not responsible for any service interruptions within PayPal or wire transfer when paying the Collected Revenue to the Publishers. When Bidmatic makes the payment using a wire transfer or PayPal, the processing and posting of funds to your account may take a few days.
Due to these Terms, the Publisher within the “Free” Account should add in his Ads.txt file and update it timely. According to our Terms, the Publisher should add in his Ads.txt file all of the vendors listed under the “Marketplace” section of the HBMP. Bidmatic shall not pay the Collected Revenue if its Ads.txt file was not implemented or upgraded according to the requirements hereof. If the Publisher fails to update the information on the Ads.txt file in a timely manner (within two (2) weeks after the corresponding update), Bidmatic has the right to suspend the access of the Publisher’s buyers to Bids.
- “Paid” Account
If the Publisher registers a “Paid” Account, it agrees to pay Fees for the HB Service Bidmatic provides. This payment is made each calendar month, in the amount as counted by Bidmatic using a methodology that is substantially similar to industry standards. The list of HB Service and their respective prices will depend on the scope of HB Service you select and will be indicated in the separate Platform Provider Agreement to be concluded by Publisher in addition to these Terms.
All payments between Bidmatic and the Publisher with a “Paid” Account are made via wire transfer according to the bank details of the Publisher provided in the Platform Provider Agreement. The Publisher is responsible for updating all information provided for payment purposes (such as contact information, payment amounts, credit card numbers and expiry dates, and wire information, if applicable).
All payments are made in U.S. dollars. When the Publisher uses a currency other than the U.S. dollar for each payment period, Bidmatic updates the exchange rate statistics on the payment day. For currency conversion operations please refer to Open Exchange Rates (https://openexchangerates.org/).
Bidmatic assumes no obligation or responsibility for any relationship (financial or other) between you and your Demand Partners (if you are cooperating directly) or any other third parties related to your use of the HBMP.
Publisher agrees to hold Bidmatic liable for payments solely to the extent proceeds have cleared from Demand Partners to Bidmatic for Ads placed in accordance herewith. For sums not cleared to Bidmatic, Publisher agrees not to hold Bidmatic liable. Publisher understands that Bidmatic, as an agent, has no obligations relating to such payments, either joint or several. Bidmatic agrees to make every reasonable effort to collect and clear payment from its Demand Partners on a timely basis. Publisher agrees that Bidmatic may prolong the clearance period to collect payment from the demand partner up to 180 (one hundred eighty) days after the end of the month, for which the payment should be conducted.
It should be noted that Bidmatic makes all and any payments to the Publisher only if the latter has uploaded the relevant document to the system (the Form W-8BEN, or the Form W-9) and has provided correct information about these payments on the HBMP. Once you file your W-9 form or W-8BEN form, the system will activate your eligibility to withdraw earnings. If the required form is not loaded by the Publisher in accordance with these Terms or the information provided by the Publisher is incorrect Bidmatic should not make any payments to such Publisher.
The Form W-8BEN is a form used to confirm you’re not a U.S. taxpayer and that Bidmatic is not required to withhold taxes from your earnings. The Form W-9 is a form used to confirm you are a U.S. taxpayer.
You are responsible for all duties, tariffs, and taxes related to your use of the HB Service, except for taxes on income paid or payable by us. You may charge, and we will pay the appropriate national, state, or local taxes or value-added taxes that you are legally obligated to charge (“Taxes”), provided that such Taxes are stated separately in the original invoice that you provide us and this invoice meets the requirements for a valid tax invoice. We can provide you with a certificate of exemption from the relevant taxes or equivalent information that is acceptable to the relevant tax authority, in which case you will not charge and/or levy the taxes covered by such a certificate. We may deduct (withhold) any Taxes that we may legally withhold from any amounts payable to you under these Terms, and such payment to you as reduced by such deductions or withholdings will constitute full payment to you of amounts payable under these Terms. You agree to provide Bidmatic with any forms, documents, or certifications as may be required to satisfy any information reporting or withholding tax obligations with respect to any payments made under these Terms. Each party of these Terms will be responsible, as required under applicable Laws, for identifying and paying all Taxes and other governmental fees and charges (penalties, interest, and other additions thereto), imposed on that party in connection with the transactions and payments made under these Terms.
SUSPENSION AND TERMINATION OF ACCOUNTS
You can delete your Account at any time by providing Bidmatic with written notice that you wish to do so. Without limiting any other remedies available to Bidmatic, if Bidmatic believes that you are in breach of these Terms or Data Processing Addendum for Publishers
or violate intellectual property rights of third parties, Bidmatic reserves the right to limit, suspend or terminate your access to the HB Services or/and your Account in its sole discretion with the prior notice. Bidmatic has no obligation to provide you with any confirmations of the alleged breach.
You may unsubscribe from any further communication from Bidmatic at any time by delivering a written notice addressed to firstname.lastname@example.org. You will be responsible for ensuring the delivery of the notice to Bidmatic. You may also unsubscribe by clicking the Email Preferences link or the opt-out link in any of the Bidmatic emails. Bidmatic has no obligation to store any data or files being part of your Account for more than one hundred and eighty (180) days after the termination of your access to the HB Services or/and your Account.
PRIVACY STATEMENT AND DATA PROCESSING
Bidmatic agrees to protect your personally identifiable information as described in the Privacy Statement available on the HBMP. Please read our Privacy Statement carefully for information on how Bidmatic collects, uses, processes, and discloses your personally identifiable information.
We are committed to protecting your privacy. Authorized employees within Bidmatic on a need-to-know basis only use any information collected from individuals. We constantly review our systems and data to ensure the best possible service to you. There are specific offenses for unauthorized actions against computer systems and data. We will investigate any such actions with a view to prosecuting and/or taking civil proceedings to recover damages against those responsible
Bidmatic processes Personal Data provided by users and End-Users for the purposes described in its Privacy Statement. The Privacy Statement does not apply to your content. User shall inform its employees, End-Users, and other third parties of such possible processing of their Personal Data by Bidmatic and shall provide them with all information necessary in order to ensure that Bidmatic complies with its notice obligations under applicable data protection and privacy laws. Along with these Terms, you agree to the Data Processing Addendum for Publishers to all and any data transfers resulting from your use of the HBMP and HB Service provided by Bidmatic.
The HBMP and HB Service are protected by copyright, trademark, and treaties around the world. Nothing in these Terms gives you a right to use our name or any of the Bidmatic trademarks, logos, domain names, and other distinctive features. All rights reserved. You should respect the industrial and intellectual property rights of Bidmatic and third parties.
Bidmatic INC logo, www.bidmatic.io, and other marks, graphics, logos, scripts, page headers, and sounds are and remain trademarks of Bidmatic. None of the Bidmatic trademarks may be copied, imitated, used, downloaded, or otherwise reproduced without our prior written permission.
You acknowledge and agree that all right, title, and interest in and to the aforementioned assets, including derivative creations, is the exclusive property of Bidmatic and/or its licensors, and is protected by applicable intellectual property and other laws. It’s prohibited to use any part of the information, the Content, or material on the HBMP for commercial purposes without obtaining a license to do so from Bidmatic or its licensors. If you use, copy, or download any part of the HBMP in breach of these Terms, your right to use the HBMP and HB Service will cease immediately.
Using the HBMP you don’t have, nor will claim any right, title, or interest. You are granted no license to the trademarks, logos, copyrights, patents, trade secrets, or other intellectual property rights which are owned or controlled by Bidmatic and made available to you in any manner. However, you may be granted a license or even you might grant a license if it is a case according to the specific terms.
You should immediately inform Bidmatic, through any of the contact ways referred to in these Terms, of any violation of intellectual or industrial property rights you may be aware of, and fully cooperate in the defense of such rights.
Bidmatic shall have the ability to use your name, trade name, and trademark (if applicable) and describe your business in Bidmatic marketing materials and on our HBMP, but only with prior notice and written agreement from you.
Any feedback, comments, or suggestions you may provide regarding Bidmatic, the HBMP, or the HB Service is entirely voluntary and we will be free to use such feedback, comments, or suggestions as we see fit and without any obligation to you.
NOTICE OF INFRINGEMENT
If you believe that any text, graphics, photos, audio, videos, or other materials or works uploaded, downloaded, or appearing on the HB Service and HBMP have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing: a. identification of the copyrighted work that is claimed to be infringed; b. identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service or HBMP; c. information for our copyright agent to contact you, such as an address, telephone number, and e-mail address; d. a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent, or the law; e. a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and f. the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. Notices of copyright infringement claims should be sent by mail to: 16192 COASTAL HWY, LEWES, Sussex, DE, 19958 United States; or by e-mail to email@example.com. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others. A user of the HB Service who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, at our sole discretion. To file a counter-notification with us, you must provide a written communication (by fax or regular mail, or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others.
DISCLAIMERS AND WARRANTIES
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE HBMP AND HB SERVICE IS AT YOUR SOLE RISK. THE HBMP AND HB SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TO THE MAXIMUM EXTENT PERMITTED BY LAW. BIDMATIC DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH YOUR USE OF THE HBMP AND HB SERVICE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
BIDMATIC MAKES NO WARRANTY OR REPRESENTATION AND DISCLAIMS ALL RESPONSIBILITY FOR: (I) COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY, AND RELIABILITY OF THE HB SERVICE, THE HBMP, OR ANY OF THEIR CONTENT; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM CAUSED BY YOUR ACCESS OR USE OF THE HB SERVICE, THE HBMP, OR ANY CONTENT THEREIN; (III) THE DELETION OF, OR THE FAILURE TO TRANSMIT ANY DATA, CONTENT AND OTHER COMMUNICATIONS SUPPORTED BY THE HB SERVICE OR THROUGH THE HBMP; AND (IV) WHETHER THE HBMP AND HB SERVICE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY BIDMATIC, ITS EMPLOYEES, OR OTHER REPRESENTATIVES CONSTITUTES A WARRANTY.
BY ACCEPTING THESE TERMS, THE USER WARRANTS AND GUARANTEES TO BIDMATIC THAT:
- THE USER IS NOT SUBJECT TO ANY SANCTIONS OF THE EUROPEAN UNION, THE UNITED STATES, OR THE UNITED NATIONS;
- THE USER SHALL COMPLY WITH ALL APPLICABLE TRADE, ECONOMIC, AND FINANCIAL LAWS AND REGULATIONS, INCLUDING THOSE ADMINISTERED AND ENFORCED BY SWITZERLAND, THE UNITED STATES, THE EUROPEAN UNION, AND RELEVANT MEMBER STATES, THE UNITED NATIONS SECURITY COUNCIL, AND ANY OTHER GOVERNMENT BODIES WITH JURISDICTION RELEVANT TO THIS AGREEMENT (COLLECTIVELY, “SANCTIONS“);
- THE USER IS NOT LOCATED IN THE RUSSIAN FEDERATION AND BELORUSSIA NOR ANY ENTITY OF THE USER IS INCORPORATED, REGISTERED, OPERATED, OR FOUNDED BY THE RESIDENTS OR CITIZENS OF THESE COUNTRIES;
- NEITHER THE USER NOR ITS SUBSIDIARIES, NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES IS LOCATED IN, OR IS A RESIDENT OR NATIONAL OF, ANY COUNTRY THAT IS SUBJECT TO AN EXPORT EMBARGO, NOR IS IDENTIFIED ON ANY SANCTIONS LISTS, NOR IS OWNED OR, WHERE RELEVANT UNDER SANCTIONS, CONTROLLED BY THE SAME;
- IT WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY UNAUTHORIZED BUSINESS OR DEALINGS WITH ANY PERSONS UNDER SANCTIONS OR OTHERWISE ENGAGE IN ANY ACTIVITIES PROHIBITED BY SANCTIONS. IT SHALL PROMPTLY NOTIFY BIDMATIC OF THE OCCURRENCE OF ANY FACT OR EVENT THAT WOULD RENDER ANY REPRESENTATION OR WARRANTY IN THIS SECTION INCORRECT OR MISLEADING;
- IN THE EVENT THAT, AFTER ACCEPTING THESE TERMS, THE USER HAS REASONABLE GROUNDS TO BELIEVE THAT ANY OF THE FOREGOING WARRANTIES AND REPRESENTATIONS MAY NO LONGER BE TRUE OR HAVE BEEN BREACHED, THE USER SHALL IMMEDIATELY NOTIFY BIDMATIC IN WRITING.
WE MAY IMMEDIATELY TERMINATE THE PUBLISHER’S ACCOUNT IN CASE OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY IN THIS SECTION OR IF WE REASONABLY DETERMINE THAT IT CAN NOT PERFORM ITS OBLIGATIONS HEREUNDER DUE TO SANCTIONS-RELATED PROHIBITIONS.
LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT BIDMATIC WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF BIDMATIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE HB SERVICE AND/OR THE HBMP; (II) THE COST OF PROCUREMENT OF SUBSTITUTE HB SERVICE RESULTING FROM ANY HB SERVICE OBTAINED THROUGH OR FROM THE HB SERVICE AND THE HBMP; (III) UNAUTHORIZED ACCESS OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE HB SERVICE; (V) INACCURACIES, MISTAKES OR ERRORS OF THE CONTENT; (VI) ANY BUGS VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED THOUGH THE HB SERVICE BY A THIRD PARTY; OR (VII) ANY OTHER MATTERS RELATING TO THE HB SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY.
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NEITHER BIDMATIC NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR AGENTS, WILL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER, INCLUDING YOU.
IF FOR ANY REASON THIS LIMITATION OF LIABILITY IS DEEMED ILLEGAL, UNENFORCEABLE, OR INAPPLICABLE, YOU AGREE THAT THE AGGREGATE LIABILITY OF BIDMATIC WILL NOT EXCEED THE AMOUNT OF ONE HUNDRED UNITED STATES DOLLARS ($100).
In addition to applicable disclaimers stated above, our performance under these Terms is excused in the event of interruption and/or delay due to, or resulting from, causes beyond our reasonable control, including any government, war, or other hostility, civil disorder, fire, flood, earthquake, explosion, embargo, acts of terrorism, power failure, equipment failure, industrial or labor disputes, acts of any third party data provider(s) or other third party information provider(s), third party software, or communication method interruptions.
You hereby agree, at your own expense and by own efforts, to indemnify, defend and hold harmless Bidmatic, its employees, consultants, agents, and representatives from all and any losses, damages, claims, alleged claims, suits, action, or administrative procedures, arising from or related to your use the HB Service or access to them, or your violation of these Terms.
Company agrees to defend, indemnify and hold harmless you, your affiliates, and their respective principals, directors, officers, employees, and agents from and against any and all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred as a result of any claim, judgment or proceeding relating to or arising out of Bidmatic’s breach hereof; breach of any representations, warranties, obligations, and/or covenants made herein by Bidmatic; Bidmatic’s gross negligence, willful misconduct or fraudulent actions.
Indemnified party shall promptly notify the indemnifying party in writing after it becomes aware of any such claims, but failure to give such notice shall not relieve the indemnifying party of its indemnity obligations hereunder unless the Indemnifying party has been materially prejudiced by such failure. The indemnifying party shall have exclusive control over the settlement or defense of such claims or actions, except that indemnified party may appear in the action, at its own expense, through counsel reasonably acceptable to the indemnifying party, only in the event it is mutually determined by the parties that an actual conflict of interest would exist by indemnifying party’s representation of indemnified party and indemnifying party in such action.
The indemnified party will, if requested by the indemnifying party, give reasonable assistance (in a manner consistent with the parties’ respective confidentiality obligations and preservation of attorney/client, work product, and other privileges) to the indemnifying party in defense of any claim. The indemnifying party will reimburse the indemnified party for any reasonable attorney expenses directly incurred from providing such assistance. The indemnifying party shall be entitled to retain all monetary proceeds, attorneys’ fees, costs, and other rewards it receives as a result of defending or settling such claims. The indemnifying party will have the right to consent to the entry of judgment with respect to, or otherwise, settle, an indemnified claim with the prior written consent of the indemnified party unless such judgment materially prejudices or obligates the indemnified party, at which point the indemnified party shall be consulted before the matter is finalized. In the event indemnifying party fails to promptly indemnify and defend such claims and/or pay indemnified party’s expenses, as provided above, the indemnified party shall have the right to defend itself, and in that case, the indemnifying party shall reimburse an indemnified party for all of its reasonable attorneys’ fees, costs, and damages incurred in settling or defending such claims within thirty (30) days of each of indemnified party’s written requests.
These Terms, all the documents incorporated herein by reference, and any disputes that might arise between You and Bidmatic shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its principles of conflicts of law and specifically excluding from application to these Terms the law known as the United Nations Convention on Contracts for the International Sale of Goods.
All disputes related to these Terms and all the documents incorporated herein by reference will be brought and reviewed solely in the federal or state courts located in Delaware, United States.
If you are a federal, state, or local government entity in the United States using the HB Service and/or the HBMP in your official capacity and legally unable to accept the controlling law, jurisdiction, or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any actions related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, by the laws of the State of Delaware (excluding choice of the law).
You agree that regardless of any statute or law to the contrary, any claim or cause of action related to the HB Service or these Terms must be filed within one (1) year after such claim or cause of action arose.
A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
ASSIGNMENT AND SEVERABILITY
Bidmatic may transfer or assign these Terms or any rights, obligations, and licenses granted hereby, in whole or in part, to any person or entity at any time, and is not required to provide you with notice of such assignment. You may not transfer or assign any rights or obligations you have hereunder without Bidmatic’s prior written permission and any unauthorized assignment and delegation by you are null and void.
The invalidity or unenforceability of any provision of these Terms does not affect the validity or enforceability of any other provisions hereof, and any such invalid or unenforceable provision is deemed to be severable. If any provision of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, such provision will be eliminated and the other provisions hereof remain in full force and effect. The parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision.
Bidmatic’s failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
Confidential information will include all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary (“Confidential Information”). Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to HB Service consumption details shall be considered such Discloser’s Confidential Information. The Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, affiliate, or third party 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. The Recipient will not use Discloser’s Confidential Information other than as provided herein.
You agree to keep all communications exchanged between You and Bidmatic and all of its terms, numbers, and information, confidential, and not disclose any of it to any third party, except on a confidential basis to an employee, agent, client, or partner who has a legitimate need to know to enable You to perform hereunder, and who is subject to these non-disclosures and use restrictions. You agree to keep all and any information that is given by Bidmatic confidential, including but not limited to information about keywords, costs, conversions, and any other statistics, that are not publicly available, unless otherwise approved by Bidmatic. You undertake to protect the Confidential Information of Bidmatic in the same manner that You protect Your own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
The foregoing obligations will not restrict You from disclosing Confidential Information of Bidmatic pursuant to a court order from a court of competent jurisdiction, provided You give us reasonable prior written notice so that we may contest such order and in the event that disclosure is required, only disclose the portion of Confidential Information that Your legal counsel advises is legally required.
You acknowledge that Bidmatic may establish general practices and limits concerning use of the Site, including without limitation the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the Site, the maximum number of email messages that may be sent from or received by an account on the Site, the maximum size of any email message that may be sent from or received by an account on the Site, the maximum disk space that will be allotted on Bidmatic’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Site in a given period of time. Your use of this Site constitutes your consent to allow Bidmatic to store electronic communications on its servers. You agree that Bidmatic has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted by the Site. You acknowledge that Bidmatic reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Bidmatic reserves the right to modify these general practices and limits from time to time.
All notices, consents, and approvals required or permitted to be given hereunder shall be delivered in writing to the address provided by the Publisher in its Account either by hand, by courier, by facsimile, or by electronic mail (whichever applies).
Notice will be deemed to have been received and effective: (a) at the time of delivery if delivered personally or by courier, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail, or (d) within three (3) days after deposit with an internationally recognized express delivery service.
You may change the address to which notices, requests, demands, claims, invoices, and other communications hereunder are to be delivered by giving Bidmatic notice in the manner herein set forth.
All the parties hereto are independent contractors. Nothing in these Terms shall be construed to create a joint venture, partnership, or agency relationship between the parties. Neither party has any authority of any kind to bind the other in any respect whatsoever and neither party shall make any contracts, warranties, or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
The prevailing party in any legal action, including arbitration, brought by one party against the other and arising out of these Terms shall be entitled, along with any other rights and remedies it may have, to reimbursement for its expenses, including court fees and reasonable attorney’s fees. Such fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose. Such fees shall be in addition to any other relief that may be awarded.