V.03 - 22.01.2018
BILLY is a company that provides mobile advertising-spaces management services via a recommendation intelligence widget, with the aim to generate visits and traffic for its advertisers' and networks' websites.
By means of the execution of the Insertion Order (IO), BILLY engages Publisher for the placement and management of the advertising campaigns (the Services) determined between the Account Managers (as defined below) (the Campaigns).
These Terms and Conditions shall govern the placement and management of advertising campaigns made available by BILLY to Publisher (the Parties), and together with the IO and the Particular Terms (as defined below) agreed by the Account Managers, shall constitute the entire Agreement between the Parties. In case of contradiction between these Terms and Conditions and the IO, the IO shall prevail.
Publisher will have access to (through BILLY’s Platform), or will be provided with (by BILLY’s Account Manager to Publishers’ Account Manager -together, the Account Managers-), certain Campaigns. The Particular Terms applicable to each Campaign, including, (i) Type of campaign (CPA, CPA For Download, CPI, CPM, CPL, CPE, CPS, CPV, or any other type agreed); (ii) Target (including territory and/or carrier); (iii) Traffic restrictions (if applicable); (iv) Pay-out (fix or dynamic, and as the case may be amount or calculation method); (v) Support/OS; (vi) Initial/Termination Date; and (vii) Other specifications; will be available at BILLY’s Platform or will be notified by BILLY’s Account Manager.
The provision of the Services by Publisher (directly or through its own publishers and or affiliates, when permitted), and in particular the management of Campaigns and the placement of Ads shall be carried out in strict compliance of these Terms and Conditions, the IO, and the Particular Terms applicable to each Campaign.
All the amendments during a certain Campaign to the Particular Terms will be notified by BILLY’s Account Manager in writing or notified in BILLY’s Platform. All amendments (including changes in the pay-out amounts or calculation terms) during a determined Campaign will be effective within 24 hours upon notification to Publisher.
Prior to the Initial Date of the Campaign BILLY will provide to Publisher with the links or tags (the Insertion Codes) that shall be used to promote and manage the Campaign, and that will contain the creatives that will be showed to end-users (the Ads). In no event Publisher is entitled to modify, alter or manipulate the Insertion Codes provided by BILLY or the Ads contained therein, or to create new unauthorized ads to promote a Campaign or derivative works from the same, save for if expressly authorized in writing by BILLY. In the event creative materials are not provided by BILLY, or for any other reason, Publisher uses advertising materials different from the ones provided by BILLY (including, but not limited to, buttons, banners, pop-ups and pop-unders) Publisher hereby declares and warrants that such advertising materials: (i) will comply with the applicable regulations in force from time to time and in the relevant jurisdiction; and (ii) will not misleading nor will they cause error or confusion to the end-user.
Publisher hereby acknowledges and accepts that Ads included in the Insertion Code are prepared by, and Campaigns relate to websites and services managed by third parties and that BILLY has no control over the Ads, its content, or over the websites or services they relate to, therefore BILLY assumes no liability arising from the same. Notwithstanding the foregoing, BILLY will require its own advertisers and clients that Ads content, and any website or application or other destination that the Insertion Code directs to, do not (i) contain material which is unlawful, harmful, threatening, defamatory, harassing, discriminatory, libellous or which breaches third-party rights; (ii) contain “spam”, malicious code, adware, spyware or similar programs that might harm data or computer systems; (iii) infringe patents, copyrights, trade secrets or other third-party industrial or intellectual property rights; or (iv) breach any type of law or regulation.
If Publisher becomes aware to any legal restriction concerning the Ads usage and/or distribution it will immediately notify BILLY.
BILLY hereby grants Publisher, only to the extent necessary to provide the Services, and only in relation to the specific Campaigns made available to Publisher (and for the duration of the same), a non-exclusive, royalty-free and revocable license, to use, perform, serve, place and display the Insertion Code (and therefore the Ads contained therein). In all events, upon termination of a specific Campaign and upon termination of the Agreement, this license shall be understood automatically revoked, without need to express notification by BILLY thereof. In no event shall the granted license imply transfer of ownership.
Publisher will insert and/or display the Insertion Code provided by BILLY on the mobile sites owned, managed or controlled by the same (the Sites). Publisher shall comply with all the Sites and Campaign restrictions included in the Agreement or otherwise notified by BILLY.
Publisher shall be the sole responsible for the development, operation, and maintenance of, and all content on or linked to, the Sites. In particular, Publisher will ensure that the relevant Sites do not copy or resemble the look and feel of BILLY or create the impression that the Site is endorsed by BILLY. Moreover, Publisher undertakes (and will ensure) that no Insertion Code will be placed on any unauthorized platforms.
BILLY will have the right to reject the Sites which it considers inappropriate and objectionable for the Campaigns.
In no event shall Publisher make representations, warranties or other statements concerning BILLY, a particular Campaign or any products or services related to the Ads. In no event shall BILLY be responsible for any interruptions or errors which may have occurred in the network, servers, platforms or sites.
In the event that for a particular Campaign Publisher wishes to engage other publishers and/or affiliates to manage the same: (i) Publisher undertakes to notify its own publishers and affiliates the obligations, requirements and restrictions applicable to the Campaign (as included in the Agreement and/or as communicated by BILLY), and to obtain their express written consent and undertaking (through verifiable means) to comply with the same, prior to obtaining access to the Insertion Codes; (ii) all Publishers’ affiliates and/or publishers must be in good standing with Publisher, and Publisher shall impede, or immediately revoke, access to the Insertion Codes to affiliates or publishers who take, or could reasonably be expected to take, any action that is contrary or violates the terms and conditions of the Agreement (in the event that either Party suspects any wrongdoing by an affiliate or publisher with respect to the Ads, the Sites or a Campaign, Publisher shall immediately remove access of such affiliate or publisher to the Insertion Code of all the Campaigns provided by BILLY); (iii) BILLY will be able, at its sole discretion, to forbid access to the Insertion Codes to determined affiliates or publishers; and (iv) notwithstanding all of the foregoing, PUBLISHER WILL BE AND REMAIN FULLY LIABLE IN ALL EVENTS BEFORE BILLY FOR THE FULFILMENT OF THE TERMS, CONDITIONS AND RESTRICTIONS APPLICABLE TO ALL CAMPAIGNS MANAGED UNDER THIS AGREEMENT.
BILLY will be entitled to forbid rebrokering for particular Campaigns or Publishers. Such prohibition will be included in the IO or in the Particular Terms.
Each Party will grant the other Party access to the numbers, statistics, evolution and results regarding the performance of the Campaigns, collected and stored as per its own server reports or third parties’ server reports (as publishers, affiliates, advertisers or networks), as soon as available and in real-time if possible.
Measurement of the Qualified Actions (as defined below) with respect to a particular Campaign’ performance for the purposes of billing and payment will be based on BILLY’s reported numbers. No other measurements or statistics of any kind will be accepted for billing and payment purposes.
Each Party undertakes not engage any Fraudulent Activity. Fraudulent Activity means any of the following: (i) fictitious, automated and/or fraudulent downloads, installations, clicks, impressions or actions of (or in relation to) the Ads; (ii) management and placement of the Insertion Codes (1) in violation of any applicable law or regulation or (2) breaching this Agreement or the particular specifications and restrictions applicable to a Campaign as notified by BILLY.
BILLY will pay Publisher for the Qualified Actions obtained by the performance of the Services.
Qualified Action means a transaction that occurs when a bona fide user fulfils some kind of action (impressions, clicks, installs, conversions, or otherwise agreed in the Particular Terms) in relation to a Campaign managed by Publisher, provided that all information required for such action has been duly and timely completed. In no event transactions due to injection traffic, bot traffic, automatic injections by toolbars, robots, other automated or artificial methods, or other Fraudulent Activity will be considered Qualified Actions.
Qualified Actions will be determined as established in clause 5 above.
BILLY may apply a Budget cap to Publisher’s Services (such Budget cap will be notified by BILLY to Publisher), in which case Publisher shall stop/pause the Campaigns once Publisher’s consideration for all the Services provided to BILLY (in relation to one or more Campaigns) reaches de Budget cap. BILLY will not pay any amount to Publisher for Services above the Budget cap. Once the Budget cap is reached Campaigns will only be relaunched by Publisher upon BILLY’s notification (such relaunching of Campaigns shall be subject to the same Budget cap except if otherwise notified by BILLY).
If no specific terms have been agreed in the relevant IO, Services will be invoiced on a monthly basis (at the end of each calendar month) (such monthly period, or any other period as agreed in the IO, the Invoicing Period).
Payments will be made following BILLY’s auto-billing system. To this effect, Publisher expressly instructs BILLY to generate and issue the Publisher’s invoices on behalf of Publisher. In that regard, prior to making any payment to a Publisher, once BILLY has obtained the numbers and statistics of Qualified Actions for the relevant Invoicing Period, BILLY will generate automatically, the invoice on behalf of such Publisher. Publisher will have seventy-two (72) hours to confirm the invoices provided by BILLY. Once this 72-hour period has elapsed, invoices bill be deemed final to all effects.
Publisher expressly acknowledges that BILLY will generate said invoices based on the data provided by Publisher and therefore warrants that such data is accurate, fully and legally compliant, especially for invoicing and taxation purposes. Publisher will also notify BILLY the reference of its own invoice in case Publisher registers such own invoices in its accounting system. Any Publisher residing in the European Union who has provided a VAT number expressly warrants that such VAT number is, in its own country, valid for the issuance of VAT-exempt invoices to BILLY. Publisher expressly accepts to be solely liable for any error, direct or indirect loss or damage arising from the inaccuracy or non-compliance of such data or the breach of any of the aforementioned warranties and, accordingly, Publisher will hold BILLY totally harmless from any of the said errors, direct or indirect loss or damages. In case there is any claim, administrative proceeding from any authority, dispute or conflict, in any way due to the inaccuracy or non-compliance of such data provided by Publisher, BILLY is expressly authorized to retain any payments due to Publisher until such incident has been resolved and also obtain direct compensation from those amounts retained in case Publisher suffers any loss or damage.
Invoices will be issued including separately the applicable taxes (including without limitation VAT). Each Party shall be liable for the payment of the applicable taxes and any related interest and penalties resulting from any payments made hereunder, as set out by the applicable law.
Except if otherwise agreed on the relevant IO, payments will be made by BILLY within thirty (30) days following the end of the Invoicing Period (Net+30), provided that there are no discrepancies on the number of Qualified Actions and the relevant invoice has been expressly or tacitly confirmed by Publisher (otherwise payments will be made once Qualified Actions have been determined and the invoice has become final).
Services shall not be invoiced until the due consideration to Publisher amounts at least €100. Accounts with a balance of less than €100 will roll over to the next Invoicing Period.
Publisher agrees that non-Qualified Actions shall not be payable by BILLY. Publisher understands and agrees that BILLY acts solely as an intermediate for advertisers and that BILLY shall only be liable to Publisher for Qualified Actions that the relevant advertisers have accepted. BILLY is expressly authorized to retain any payments due to Publisher until the quantification of Qualified Actions or Fraudulent Activity has been resolved.
To the extent that BILLY determines that there have been non-Qualified Actions, in addition to any other remedy available to BILLY, any and all payments previously made by BILLY to Publisher for actions that are subsequently deemed to be non-Qualified Transactions shall be promptly refunded to BILLY. BILLY shall have the right to off-set any amounts owed to it pursuant to this paragraph against any amounts owing to Publisher. Publisher acknowledges and agrees that BILLY may, at its sole discretion, discount, credit back or accrue a credit against revenue already provided to Publisher for transactions which are deemed to be non-Qualified Transactions following payment.
Publisher hereby undertakes to provide BILLY all the information regarding the management of a particular Campaign, it may have (or it may be able to obtain), which BILLY considers necessary or appropriate to evaluate the existence of Fraudulent Activity.
Each Party will make every effort to uphold the highest ethical and commercial standards.
Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into the Agreement, and to perform the acts required of it hereunder; (ii) when executed and delivered (by means of the execution of the relevant IO), this Agreement will constitute a legal, valid and binding obligation for such Party, enforceable against the same in accordance with its terms; and (iii) it will act in accordance with all applicable laws, rules and regulations, and in particular in accordance with the anti-bribery regulations, and money laundering regulations (including EU Directive 2015/849 of the European Parliament and of the Council, of 20 May 2015, on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing).
Additionally, Publisher represents and warrants that (i) all of the information provided by Publisher to BILLY is correct, complete and current; (ii) it is the owner the Sites where Insertion Codes will be placed, or is legally authorized to act on behalf of the owner of such Sites for the purposes of this Agreement, or in any other manner has valid legal title to place the Insertion Codes on the Sites; (iii) the Sites were Insertion Codes will be placed have a clearly labelled and easily accessible privacy policy that provides users with clear and comprehensive information about cookies, device-specific information, location information and other information stored on, accessed on, or collected from users’ devices, including information about users’ options for cookie management; and (iv) it will comply (and will make sure that all Sites comply) with Billy’s Quality and Antifraud Guidelines (http://www.billymob.com/antifraud-guide-lines.html).
Publisher further represents and warrants that the Sites and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances and regulations and do not contain or promote links to another website that contains defamatory, abusive, violent, or illegal content; (ii) do not contain material which is unlawful, harmful, threatening, defamatory, offensive, profane, harassing, discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), incites violence or otherwise is objectionable, libellous or misleading, or which constitutes an invasion of any right to privacy, breaches advertising rights or, in any other manner, breaches third-party rights; (iii) do not contain “spam”, malicious code, adware, spyware or drive-by download applications, viruses, worms, Trojan horses, corrupted files, unauthorized programs or similar programs that might harm data or computer systems, or may damage or render inoperable the corresponding software, hardware or security measures, or that interact with end-users' browsers in any manner, it effects end-users’ web navigation by error page redirections, hijacking, tabs redirection, creation of new tabs, or in any other manner; (iv) do not and will not interact with end-users’ browsers in any manner including without limitation by the installation or offering of any toolbars or toolbar applications, advertising texts, coupons, intext, ad injections, search enhancement and data exchange modules or price comparison applications; (v) do not and will not engage in any Fraudulent Activity, including without limitation any of the following: (1) fictitious downloads or installations; (2) automated and/or fraudulent clicks; (3) malware; or (4) violating any applicable law prohibiting “spam” or other electronic messages; (vi) do not infringe patents, copyrights, trade secrets or other third-party industrial or intellectual property rights; (vii) breach any type of law or regulation, whether international, community, state, regional or municipal, which may be applicable (including regulations on consumer protection, product liability, or tort); or (vii) otherwise contain material which may have an adverse effect on BILLY, its advertisers, network, licensors, agents, or end-users.
PARTICULAR COVENANTS ON ANTI-BRIBERY
BILLY is committed, in accordance with its zero-tolerance policy for bribery and corruption (the Anti Bribery and Corruption Policy), to ensure that all BILLY’s activities and the activities of all of BILLY’s advertisers, publishers, affiliates and business partners comply with all applicable laws and regulations and accord to the highest principles of corporate ethics. Accordingly, Publisher undertakes, in performing its activities under this Agreement, to comply with all applicable laws related to the fight against bribery and corruption and in particular:
BILLY shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of Publisher’s activities do not fully comply with the Anti-Bribery Laws or BILLY’s Anti Bribery and Corruption Policy.
PARTICULAR COVENANTS ON ANTI-MONEY LAUNDERING
Additionally, BILLY is committed, in accordance with its zero-tolerance policy for money laundering and terrorism financing (the Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy), to ensure that funds related to, or derived form, BILLY’ activities are not derived from criminal activity or other non-legal or non-legitimate means. Accordingly, Publisher hereby declares that it is also committed to preventing money laundering by having proportionate and effective anti-money laundering systems and processes in place. BILLY shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of Publisher’s activities do not fully comply with BILLY’s Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy.
SERVICES ARE MADE AVAILABLE TO PUBLISHER ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESSED OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. ALTHOUGH BILLY WILL MAKE REASONABLE COMMERCIAL EFFORTS TO ENSURE THAT THE RELEVANT ADS ARE SERVED TO END-USERS VISITING PUBLISHER’S SITES, PUBLISHER UNDERSTANDS AND AGREES THAT SUCH PROCESS IS BEING AFFECTED BY AUTOMATED MEANS, AND BILLY IS NOT RESPONSIBLE FOR, NOR DOES IT GIVE ANY WARRANTY OR REPRESENTATION AS TO THE OUTCOME OF SUCH PROCESS. BILLY DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE OR THE OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET PUBLISHER’S NEEDS. BILLY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A CLIENT OR THIRD PARTY, OR THEIR PRODUCTS OR SERVICES.
Therefore, to the extent permitted by law, BILLY shall not be liable vis-à-vis Publisher FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE INSERTION CODES, ADS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND.
Additionally (i) BILLY does not represent or warrant that the information on the Insertion Codes, Ads, websites and/or mobile sites they link to are accurate, complete, current or error-free, or comply with all applicable regulations (although BILLY requires its advertisers and clients that Insertion Codes and Ads content, and any website, application or destination they derive to, comply with the terms of clause 3 above); and (ii) Publisher declares and acknowledges that (1) any defects in the operation or functionality of the Insertion Codes, Ads or websites they link to may not be corrected; and (2) Publisher is solely responsible for any losses, damages, expenses, liabilities, etc. (including loss of data) arising from the use of the Insertion Codes.
The Agreement between the Parties shall be indefinite and shall come into force on the date the relevant IO is executed by both Parties. Either Party may terminate the Agreement, or may cancel or suspend a Campaign by giving the other Party two (2) working days’ prior written notice.
Either Party, acting in good faith, may withdraw a specific Campaign without having to provide prior notice to the other Party for legal reasons or in the event of a third-party claim which may cause damages. In addition, BILLY may stop or pause a specific Campaign at any time without any need to provide prior notice to Publisher if the Campaign is not generating expected trade or yield levels, or if it suspects that Fraudulent Activity is carried out regarding the same. Without detriment to the rights of termination and cancellation regulated in the Agreement, the Parties shall comply with their respective obligations regarding Campaigns which were under way up to the moment of their conclusion.
Upon termination or cancellation of a specific Campaign Publisher will immediately cease all use of the Insertion Code, and delete the related Ads. Actions performed after the effective termination or cancellation of a Campaign as per the terms established in this clause, will not be paid.
Clauses 7 (PARTIES REPRESENTATIONS), 8 (NO WARRANTY), 10 (LIMITATION OF LIABILITY) 11 (INDEMNITY FOR DAMAGES), 12 (CONFIDENTIALITY) 13 (DATA PROTECTION) and 14 (MISCELLANEOUS) shall remain in force after the termination of the Agreement.
THE FOREGOING LIMITATIONS ARE FUNDAMENTAL TO THE ENTERING INTO THIS AGREEMENT BY BILLY. PUBLISHER DECLARES, ACKNOWLEDGES AND ACCEPTS THAT IT IS FAIR AND REASONABLE FOR BILLY TO RELY ON THE FOREGOING LIMITATIONS.
Publisher agrees to defend, indemnify and hold harmless BILLY and each of its advertisers and their respective, directors, officers, shareholders, employees and representatives from and against any and all damage, injury, liability, costs and expense (including reasonable attorneys’ fees) or other claim, whether or not involving a third party claim, related to (i) claims arising from Publisher’s activities in relation to the Agreement, including, by way of illustration and not limited to, claims arising from the use by Publisher of third-party rights without the relevant authorization, or use of the Sites for promoting a Campaign; (ii) the management, publication, display or distribution of the Insertion Codes, Ads, Campaigns or other publicity messages or marketing materials on the Sites (including claims for defamation; breach of confidentiality agreements; violation of privacy; false, deceptive or misleading publicity or bad sales practices; non-fulfilling of consumers or end-users rights; or failure to comply with representations made in any Sites or other materials and/or any other content, products or services, linked to, or from, the Sites); (iii) wilful, unlawful, negligent or malicious acts (or omissions) committed by Publisher (or its publishers or affiliates); (iv) Publisher’s (or its publishers and/or affiliates) breach of the terms of the Agreement or the failure to perform any obligation undertaken in the Agreement.
In addition to any other rights and remedies available to BILLY under the Agreement or the applicable law, until full indemnification, BILLY shall have the right to withhold and freeze any unpaid amount for Services.
BILLY reserves the right to disclose Publisher’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Publisher’s actions.
The Parties agree that they shall not disclose to third parties and shall keep strictly confidential (i) any information or material in connection with the Agreement (including information contained in the IO and the Particular Terms agreed, and specifically including pricing terms); (ii) any information or material provided by the other Party, its Account Manager, employees or collaborators during the course of the commercial relationship between the Parties, save for to the extent required in order to execute the Services described herein (i.e. Insertion Codes, Ads, marketing material or other contents regarding a particular Campaign) or in the event such information is required by a competent tribunal or authority. In particular, the Parties shall adopt the necessary safety measures and procedures to protect the confidential nature of said information, in accordance with laws regulating intellectual property and protection of personal data.
These obligations shall remain in force indefinitely even after the commercial relationship between the Parties has terminated.
Each of the Parties hereby represents and warrants it is in compliance with the Data Protection regulations applicable to the same (including EU regulations in force on the protection of natural persons with regard to the processing of personal data and on the free movement of such data), and that it has complied with all the terms, requirements, proceedings and regulations required to collect personal data (by whatever means), taking into account the foreseen use of the same.
Publisher acknowledges and accepts that all personal data contained in the relevant IO or submitted in relation to the Agreement will be incorporated on a file owned by BILLY GROUP, created with the aim to carry out the contractual relationship between the Parties, as well as to provide commercial information to Publisher (by any means available, including by web-based technology), in order to complement the commercialized BILLY’s activity. BILLY informs Publisher of its rights of access, rectification, cancellation and opposition. Publisher is entitled to exercise any of these rights, by means to written notification to the following email address: data@billymob.com.
In the event that BILLY should have access to personal data derived from the provision of the Services by Publisher, it shall do so in its capacity as the “person processing of the personal data” in accordance with the provisions of Section 12 of the Framework Personal Data Protection Act 15/1999, of 13 December 1999, and Sections 20 et seq. of Royal Decree 1720/2007, of 21 December 2007, which passed the regulations implemented under the aforementioned Framework Personal Data Protection Act 15/1999 and other applicable laws. BILLY shall only process the personal data which it has access to in accordance with the instructions given by Publisher, and shall not apply or use such data for any purpose other than that established in the Agreement, and shall not notify other persons of such data, not even for their safekeeping. Publisher shall be the only Party which shall decide on the purpose and use of the data which BILLY has access to.
License. Publisher agrees that BILLY may include Publisher’s name (including any trade name, trademark, service mark and logo) on BILLY’s publishers’ list and in its marketing materials and sales presentations and provide BILLY with the license to use its trade names, trademarks, service marks and logo for the purpose hereof.
Non-Exclusivity. The Parties relationship derived from the Agreement is established on non-exclusive basis.
Assignment. Save for if expressly authorized by BILLY, Publisher will not be entitled to assign all or part of its obligations or services arising from the Agreement. BILLY may assign or subcontract all or part of its obligations arising from the Agreement without need of Publisher’s consent.
Commercial Nature of the Relationship. The relationship which is established between the Parties by virtue of the Agreement, is a commercial relationship to all effects. BILLY and Publisher are independent Parties and they shall act in this capacity at all times, and nothing contained in the Agreement, nor any action taken by any Party in the execution of the same, shall be deemed to constitute either Party (or any of such Party's employees, agents or representatives) an employee, or legal representative of the other Party, nor to create any joint venture, association, syndication or any other type of relationship between them. The Parties shall each be separately liable for any corporate, tax, employment or other type of obligations arising from their commercial and economic activities.
Entire Agreement. The Terms and Conditions, the IO, and the Particular Terms (the Agreement) constitute the Parties’ entire agreement with respect to the subject matter hereof, and replace, annul and supersede any other agreements or documents of the Parties (including Publisher’s general terms and conditions) in relation thereto. In the event of any difference between the stipulations of the Terms and Conditions and those of the IO, the stipulations of the latter shall prevail. In the event of any difference between the stipulations of the Particular Terms and those included in the Terms and Conditions or the IO, the stipulations of these latter shall prevail.
BILLY reserves the right to modify, from time to time and in its sole discretion these Terms and Conditions. In case of modification of these Terms and Conditions, BILLY will communicate said modification to Publisher. The notified modification shall be deemed accepted by Publisher provided that Publisher does not communicate in writing to BILLY its disagreement within a period not exceeding five (5) days. In case Publisher communicates its disagreement, BILLY will be entitled either to terminate the Agreement, or to maintain the unmodified Terms and Conditions for Publisher.
Notices. Any notices or requests related to the Agreement shall be made to the contact persons and addresses indicated in the corresponding IO (as amended as the case may be, by written notification). Notices may be made by any lawful means which allows for the receipt and contents thereof to be recorded (including by email and fax). Any such notice will be deemed to have been received on the same business day if sent by during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day.
Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
Force Majeure. Neither Party shall have any liability for any failures or delays in performance of the Agreement arising from force majeure events beyond their control. Force majeure events include, but are not limited to, natural disasters, governmental actions, regulatory actions or restrictions, sanctions, wars, terrorist acts, etc.
Governing Law and Jurisdiction. The Agreement between the Parties is governed by and interpreted (without giving effect to conflict of laws principles) in accordance with the Spanish law.
The Parties expressly submit any disputes arising in connection with the validity, interpretation or performance of the Agreement, to the jurisdiction of the courts of the city of Barcelona, waiving any other jurisdiction which may correspond to them.