Terms of service
Bannerflow AB, corporate id no 556817-1242, with offices at S:t Eriksgatan 46, 112 34 Stockholm, Sweden (“Bannerflow”) has developed and is the owner of a cloud platform available on www.bannerflow.com, which can be used for the creation and handling of on-line advertisements (the “Cloud Platform”). In sum, the Cloud Platform enables an individual user to create interactive on-line advertisements (i.e., banners) on the web site and has an advanced text-editing feature that enables a quick creation of advertisements in several languages.
These terms of service (“Terms”) apply to the use of the Cloud Platform and the electronic service for the creation and handling of on-line advertisements available on the site (the “Service”). The Terms are an agreement between you (“You” or the “User”) and Bannerflow. By entering into an agreement with Bannerflow with reference to these Terms, or otherwise by using, creating an account and/or by logging onto the Cloud Platform, You accept the Terms.
1. Provision of Services.
1.1 Bannerflow hereby grants to the User – during the agreed term – a non-exclusive right to use the Cloud Platform and to use the Service for agreed number of brand accounts. In addition, Bannerflow agrees to provide support services if so request by the User.
1.2 The Cloud Platform and the Service may only be used for the agreed permitted use, i.e., unless otherwise is agreed and in addition to what follows from the general specification of the Cloud Platform, the creation, hosting and publishing of advertisements in the form of so called banners with a specific text or any other sort of advertisement the User can create using the Cloud Platform and the Service and the associated HTML5 or GIF file. In addition, the Cloud Platform and the Service may not be used for illegal purposes or purposes that violate any applicable laws and regulations or for any other purposes that are or may be perceived as illegal, obscene, abusive, libellous, threatening, vulgar or otherwise can be regarded reprehensible.
2. Fees and service charges
2.1 Bannerflow is entitled to a set-up fee, a monthly license fees, a variable fee and, to the extent applicable, service charges, unless otherwise is agreed, according to Bannerflow’s price list applicable from time to time.
2.2 The set-up fee is payable to Bannerflow on agreed delivery date or otherwise when the User started to use the Cloud Platform and the Service. The monthly license fee shall be paid annually in advance against invoice during the agreed term with effect from the agreed delivery date (or otherwise when the User started to use the Service) and shall be payable by the User within 20 days of receipt by the User of the invoice. The variable fee and the service charges, if applicable, shall be invoiced by Bannerflow on a monthly basis the calendar month after the relevant advertisements have been published and/or the support services have been performed and shall be payable by the User within 20 days of receipt by the User of such invoice. Bannerflow reserves the right to charge the User a penalty interest of 12 per cent per annum or the highest rate permitted under applicable law (if higher) in respect of the late payment of any sum due from the due date until payment is made.
2.3 Unless otherwise stated, all amounts stated are expressed exclusive of value added tax. Value added tax and other charges levied on the fees payable by the User to Bannerflow shall, if applicable, be paid by the User.
3. Service levels
Bannerflow warrants that the Cloud Platform and the Services in all material respects will conform to the specifications and service levels from time to time undertaken by Bannerflow or as separately agreed upon.
4. Proprietary rights
4.1 Bannerflow warrants its title to and ownership of the Cloud Platform and that Bannerflow has the right, power and authority to assign or license the same upon agreed terms and conditions. Nothing in these Terms gives the User the right to use any of Bannerflow’s trade names, trademarks, logos, domain names or other distinguishing marks.
4.2 The User (or its licensors) owns all property rights to the advertisements uploaded to or created using the Cloud Platform and the Service. Bannerflow obtains no right, title or interest from the User (or its licensors) in or to any content the User submit, post, transmit or display on or through the Cloud Platform and the Service.
5. Infringement and indemnity
5.1 Bannerflow will indemnify the User for any damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) that may be awarded to any third party based on the grounds that the Cloud Platform and the Service infringe or otherwise violate the intellectual property rights of a third party, except to the extent arising from the User’s use thereof in violation of agreed terms. Bannerflow shall have sole control over the defence and settlement of any indemnified claim and the User shall provide reasonable cooperation in connection therewith. The User may participate in the defence at its own expense, and all settlements require its consent (not to be unreasonably withheld).
5.2 It is the User’s responsibility to ensure that advertisements uploaded to the Cloud Platform are legal, virus free and that they are in agreed format in order to be able to use the Service.
6. Limitation of liability
6.1 The Parties’ liability to each other for any damage and/or cost resulting from breach of the contractual obligations and negligent actions or omissions shall be subject to the below limitations.
6.2 Each party’s entire liability shall in any case not exceed an amount equal to two times the aggregate of the total fees paid or payable by the User underthe agreed term. The Parties shall not be liable to each other hereunder for any lost profits, loss of anticipated savings nor any other type of indirect or consequential loss of any act or omission of the other party regardless of whether such losses were foreseeable or not.
6.3 The aforementioned limitations shall not apply in case of (i) fraudulent misrepresentation (ii) breaches of confidentiality obligations (Section 7) and (iii) breach of undertakings in Section 5, in which case the liability thus shall not be limited per above.
6.4 The aforementioned limitations shall further not apply to the User with regard to unpaid fees.
6.5 Except for the warranties expressly set forth in this agreement, Bannerflow expressly disclaims all other all warranties with respect to the services, including all statutory and implied warranties, all warranties of merchantability and fitness for a particular purpose or use (even if Bannerflow has been made aware of such purpose or use), all warranties that the services shall be uninterrupted or error free, all warranties of title and non-infringement, and all warranties arising from course of performance, course of dealing, or usage of trade, or their equivalents under the laws of any jurisdiction. Because some jurisdictions do not allow the exclusion of implied warranties, the above exclusion of implied warranties may not apply to you.
Each of the Parties hereto undertakes to the other to keep confidential all information (written or oral), concerning the business and affairs of the other party that it has obtained or received as a result of the discussions leading up to, entrance into or performance of this agreement. The obligation to maintain the confidentiality of information obtained or received does not extend nor apply to information which at the time of the party’s disclosure is in the public domain or after such disclosure, becomes in the public domain otherwise than through an unauthorized disclosure by such party.
8. Term and termination
8.1 The right to use the Cloud Platform and the Service is – unless otherwise is agreed separately – valid for an initial period of one year from agreed delivery date or otherwise from the date the User started to use the Service. Unless terminated in writing at least three months prior to the expiry date, the agreement will thereafter be automatically extended for an indefinite period with a mutual right to terminate the agreement by giving six months’ prior notice in writing.
8.2 In addition to the above, the agreement may immediately be terminated:
(a) by Bannerflow if the User fails to pay any sum due hereunder within 45 days of the due date of such payment;
(b) by either party if the other party commits a material breach, which (in the case of a breach capable of being remedied) shall not have been remedied within seven days following receipt of a written request to remedy the same from the non- breaching party; and
(c) by either party if the other party enters into liquidation or becomes bankrupt or insolvent or makes a composition with its creditors or generally fails to pay its debts as they become due.
8.3 At the written request of the User, at any time up until three months after termination of the agreement, Bannerflow shall return to the User, without further charges and in the format reasonably stipulated by the User, a copy of the User’s content uploaded on the Cloud Platform.
9. Force majeure
9.1 If a Force Majeure Event occurs, the party that is prevented by that Force Majeure event from performing any one or more obligations under this agreement (the “Nonperforming Party”) will be excused from performing those obligations, on condition that it complies with its obligations under section 9.3.
9.2 For purposes of this agreement, “Force Majeure Event” means, with respect to the Nonperforming Party, any event or circumstance, regardless of whether it was foreseeable or not, that was not caused by the Nonperforming Party and that prevents the Nonperforming Party from complying with any of its obligations under this agreement, provided that such Nonperforming Party uses reasonable efforts to do so.
9.3 Upon occurrence of a Force Majeure Event, the Nonperforming Party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long that the Nonperforming Party expects it to last. Thereafter the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure Event, the Nonperforming Party shall use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.
10. Applicable law and jurisdiction
10.1 These Terms shall be governed by and construed in accordance with Swedish law.
10.2 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be English.