1. SCOPE
1.1
These General Terms & Conditions (hereinafter referred to as "T&C") shall apply to all business relations between we are era AB, 556921-4330 (hereinafter referred to as "We Are Era") and its customers (hereinafter referred to as “Client”) (We Are Era and Client hereinafter jointly referred to as “Parties” and each a “Party”) for the provision of online advertising services by We Are Era. These T&C shall be appliable on all online advertising services provided by We Are Era to the Client as described in the applicable order form signed by both Parties (T&C together with the order form shall hereinafter be referred to as an “Agreement”)
1.2
All online advertising services of We Are Era are provided exclusively under the terms of these T&C. These T&C shall constitute an integral part of the Agreement between We Are Era and the Client. If any provisions in these T&C are in conflict with an applicable order form, the provisions in the order form shall have precedence with regard to the interpretation.
1.3
In any event, individual agreements made with the Client shall have priority over these T&C so far as the content of the individual agreements was set out in writing or confirmed by We Are Era in written or text form (e.g. via e-mail).
2. SERVICES RENDERED BY We Are Era
2.1
We Are Era operates and markets, inter alia, channels produced by itself or third parties containing audio-visual and other content (hereinafter the “Channel(s)”) on third party online platforms and websites such as YouTube, Facebook or alike as well as on its own online platforms and websites and online services, mobile services and apps connected with these platforms (hereinafter jointly referred to as the “We Are Era Network”).
2.2
We Are Era offers Client’s media solutions (such media solutions hereinafter referred to as “Advertising Material”) on online platforms, websites, apps, in online-services and mobile services of the operators within and outside the We Are Era Network by using two types of Ad Servers (Google Ad Manager and Google Ads) for the purpose of advertising and marketing the Advertising Material. The operators of the respective platforms, websites, apps, services and offers on the internet and in mobile networks within and outside the We Are Eras Network shall hereinafter be referred to as “Providers”.
3. SPECIAL PROVISIONS FOR MEDIA AGENCIES
In the case of orders from agencies, acting on the basis of an assignment of an advertising customer, precise details of such advertising customer must be provided (name, full address and contact details, VAT ID). We Are Era has the right to request proof of mandate from the agency for its assignment for the advertising customer. In this case, the agency remains the contractual party and all invoices shall be sent to the agency.
4. PROVISION OF THE ADVERTISING MATERIAL AND OTHER FORMS OF COOPERATION BY THE CLIENT
4.1
The Client shall provide We Are Era with all Advertising Material, the tracking codes for the Advertising Material as well as all other information, content, documents and explanations, which We Are Era requires from the Client for the provision of its services and/or whose provision was agreed as part of the order and according to the obligations set forth in the We Are Era Tech-Specs: "https://www.weareera.com/tech-specs". Unless otherwise agreed, the Client shall provide We Are Era electronically at least five (5) business days before the agreed campaign launch with the Advertising Material, the target URLs and any other information required for the integration of the Advertising Material and for making them available to the public.
4.2
In the event that the Client fails to meet its obligations or its duty to cooperate under this clause, especially within the agreed timings, We Are Era shall not be responsible for any resulting delays or defective performance of the inability to render its services as a result of the Client’s actions. We Are Era shall be entitled to refuse performance of the affected services until the Client cooperates as required. Any failure of obligations or untimely behavior by the Client shall not affect We Are Era right to remuneration under an Agreement.
5. RESPONSIBILITIES OF THE CLIENT
5.1
The Client shall ensure that all Advertising Material comply not only with the requirements specified by We Are Era, but also with all currently applicable advertising guidelines of the Providers of the Advertising Material booked by the Client, e.g. the advertising guidelines of YouTube, Facebook or other platforms.
5.2
The Client shall also ensure the lawfulness and compatibility with legal regulations of the Advertising Material (including the content and advertising messages comprised therein) provided by it for the services to be rendered as well as the content presented on the target URLs. . The responsibility for the Advertising Material’s lawfulness and compatibility with legal regulations shall rest entirely with the Client.. Verification of the Advertising Material’s lawfulness, compatibility with legal regulations and compatibility with the Providers’ advertising guidelines is not covered by the scope of services provided by We Are Era.
5.3
The Client shall assure We Are Era that all Advertising Material and its contractual use by We Are Era and the Providers is not illegal or contrary to legal regulations and/or in violation of third-party rights. In this respect, the Client shall indemnify We Are Era against any third-party liability claims.
5.4
Within the scope of the campaign, the Client may only gather and use user data in accordance with the currently applicable data protection regulations.
6. REJECTION OF ADVERTISING MATERIAL, INTERRUPTION OF ADVERTISING PLACEMENT
6.1
We Are Era shall be entitled to refuse the placement of Advertising Material if Client’s Advertising Material does not meet the agreed requirements and specifications specified by We Are Era and all currently applicable advertising guidelines of the Providers. In this case, the Client shall as soon as possible, and not later than within two (2) days, provide new Advertising Material that meets the respective requirements and specifications.
6.2
In case of We Are Eras reasonable suspicion that the Advertising Material provided by the Client includes content which is illegal or contrary to legal regulations and which in particular violates third party rights, We Are Era shall be entitled to reject such Advertising Material or interrupt the respective campaign until the Client has resolved the matter conclusively or the Client has been able to dispel such suspicions to the satisfaction of We Are Era.
6.3
We Are Era would also like to point out that individual Providers, e.g. YouTube or alike, reserves the right to reject Advertising Material and campaigns at their own discretion. We Are Era has no influence on such decisions. In case of such a rejection, of a campaign or Advertising Material, for which neither We Are Era nor the Client are responsible, both the Client and We Are Era shall be entitled to withdraw from the part of the Agreement for which the specific Provider was booked in regard to the Advertising Material. In respect of the remainder of an already started campaign, the order shall only be upheld if the Client corrects the Advertising Material in such way that it can be accepted by the Provider.
7. PLACEMENT AND SUPPLY OF ADVERTISING MATERIAL
7.1
We Are Era shall supply the Client’s agreed Advertising Material to be integrated in the Providers’ platform or if agreed between the Parties the Advertising Material shall be provided by the Client directly to the Provider. The Advertising Material shall be published by the Providers in the agreed platform for the agreed campaign period and made accessible to the users of the agreed platform upon individual demand. In the event that no end of a campaign period has been agreed, the Advertising Material shall be supplied until the agreed target volume of the campaign has been reached. Deadlines and dates for the campaigns shall only be binding if they have explicitly been agreed as binding.
7.2
Unless a restriction of the campaign to certain Channels or certain Advertising Material has been agreed between the Parties, We Are Era shall select the Channels and the Advertising Material at their equitable discretion, taking into account the Client’s specified campaign objective. We Are Era shall be entitled, but not obliged, to also advertise outside the We Are Era network, taking into account the campaign objective specified by the Client. Unless otherwise agreed in the order, We Are Era shall not owe the Client any specific placements of the Advertising Material or the delivery of a specific target volumes on a specific placement of the Advertising Material.
7.3
The Client shall be obliged to discernibly label the Advertising Material as advertisement in a suitable format complying with the currently applicable statutory requirements.
8. TARGET VOLUMES
8.1
The target volume, e.g. impressions and/or views, specified in the order for a defined campaign period, shall be considered intended, non-binding targets, unless otherwise expressly defined as binding. The respective target volume for Google Ad Manager in a defined period shall be forecasted by We Are Era based on empirical values for the booked Channels, the booked Provider’s platform, the Advertising Material and the campaign period. For the avoidance of doubt, in Google Ads target volumes cannot be forecasted.
8.2
As We Are Era has no influence on the technical provision of the platforms, websites, apps, services and offers on the internet and in mobile networks of the Providers’ platform, the respective Channel content, and user activity, the target volume may be reached ahead of time or not fully reached within the respective campaign period.
8.3
In the event that the target volume is not reached within the agreed campaign period, We Are Era shall notify the Client accordingly. At the discretion of the Client, We Are Era can - always taking into account availability at the time - (a) continue to deliver the campaign in the agreed Channel(s) and platforms within an appropriate period until the target volume has been reached or (b) deliver the campaign (alternatively or additionally) on one (or more) other Channel(s) and/or platforms within an appropriate period until the target volume has been reached. In cases where such a subsequent delivery is unreasonable for the Client due to his campaign objective or for other objective reasons, the Client and We Are Era shall find an amicable solution. The Client shall not be entitled to any other claims in case of not reaching the target volume. If the target volume is reached before the end of the agreed campaign period, We Are Era shall have the right to end the campaign and only be obliged to continue the delivery of the campaign until the end of the campaign period if the Parties have agreed an increase in the target volume and additional remuneration to We Are Era.
8.4
Even in cases where a certain target volume was agreed as binding, We Are Era shall initially be entitled, if this target volume has not been reached during the campaign period, to subsequently deliver the outstanding target volume in the manner described above within an appropriate period, which shall not be more than one (1) week. If this subsequent delivery fails or is unreasonable for the Client due to his campaign objective or for other objective reasons, clause 12.2 shall apply instead.
9. TRACKING OF DELIVERED TARGET VOLUMES
9.1
The delivery and tracking of target volumesis performed at the discretion of We Are Era via the two types of AdServer (Google Ad Manager or Google Ads).
9.2
Only We Are Eras reporting shall be authoritative for counting and billing of the target volume delivered to the Client. Any deviating numbers of impressions and/or views, which the Client may have counted with a different Ad Server, shall only be taken into account if the Client’s numbers and We Are Era’ numbers differ by more than ten percent (10 %). In such a case, the Parties shall agree upon the authoritative quantity for the campaign.
10. POSTPONEMENT OR CANCELLATION OF CAMPAIGNS
10.1
In cases where placement of the campaign is not possible for the agreed period due to reasons for which We Are Era is not responsible, e.g. reasons for which third parties are responsible or situations of force majeure, We Are Era shall either bring forward the campaign to the next possible period or deliver it subsequently in the next possible period. We Are Era shall notify the Client immediately about any deviations required and Client and We Are Era shall find an amicable solution. In the event that the campaign cannot be brought forward or delivered subsequently within four (4) weeks before or after the agreed campaign period, the Client may either alter the booking to another platform suggested by We Are Era (subject to availability) or withdraw from the affected Agreement with immediate reimbursement of any remuneration already paid.
10.2
In the event that the preponement or postponement of the campaign is not possible within four (4) weeks before or after the agreed campaign period, We Are Era shall have the right to cancel the order and to immediately reimburse the Client any payments already made. In this case, the Client shall have no further claims.
11. MINOR CHANGES
In other respects, minor changes of the booked Advertising Material and the campaign period shall be permissible provided they do not exceed the customary extent and do not unreasonably impair the Client’s interests, e.g. by impairing the advertising impact or the campaign objective. We Are Era shall notify the Client immediately of any changes.
12. DEFECTIVE PERFORMANCE
12.1
The Client shall be obliged to check the advertising campaign immediately after the campaign launch and to notify We Are Era immediately in writing or via e-mail, at the latest seven (7) days after campaign launch, of any defects found during such a check. In the event that the Client does not notify We Are Era accordingly, the performance with respect to such discernible defect shall be deemed to have been approved by the Client. The Client must notify We Are Era immediately after discovery (at the latest within two (2) business days after discovery) in writing or via e-mail of any defects not discernible during such a check (so-called hidden defects). In the event that the Client does not notify We Are Era, performance in respect of such hidden defects shall also be deemed to have been approved by the Client. Dispatch of the notification within the prescribed period shall be sufficient.
In case third party tags have been added to the advertising campaign upon Client’s request, We Are Era is not responsible for any defective performance caused by such third-party tags.
12.2
In the event of defective performance in accordance with 12.1 above, Client shall initially be entitled to demand cure in the form of a subsequent delivery within an appropriate period of the campaign or campaign part affected by the defect. In case non-defective subsequent delivery within an appropriate period fails, the Client and We Are Era shall find an amicable solution.
12.3
Irrespective of the aforementioned provisions of this clause 12, the following shall apply to the Client’s claims on the grounds of defects or other defective performance or non-performance of agreed services, which are not rendered by We Are Era itself but third parties (in particular the delivery of the Advertising Material by the Providers): We Are Era may assign its claim vis-à-vis third parties for any defective performance – where existent – to the Client, provide it with all associated information and request that the Client initially asserts all claims directly vis-à-vis the third party. This shall also include recourse to the courts for claims against the third party, unless related to work performed deficiently or where such a procedure is not reasonable because a recourse to the courts for such a claim has no chances of success due to the circumstances of the respective case (e.g. in case of insolvency of the third party). In cases where recourse to the third party fails for reasons the Client is not responsible for, the Client may assert its claims directly vis-à-vis We Are Era, in accordance with the statutory provisions and taking into account these T&C and always concurrent with the reassignment of the claims vis-à-vis the third party.
12.4
Any claims arising from defects and other claims arising from defective performance or non-performance shall become statute-barred within one (1) year from We Are Era provision of services under an Agreement.
12.5
The Client shall have no claims arising from defects and other defective performance or non-performance, if and to the extent to which these defects, defective performance or non-performance are due to the Client’s infringement of its duty of cooperation, express instructions or requests by the Client, deficient provisions by the Client or a use of the services by the Client contrary to the Providers’ advertising guidelines.
13. GRANT OF RIGHTS AND LEGAL GUARANTEE
13.1
The Client hereby grants We Are Era – for the agreed campaign period (as well as periods for subsequent delivery and making good) - the non-exclusive, non-transferable and worldwide right to integrate the Advertising Material provided by it to We Are Era for rendering the agreed services in the agreed Channels and platforms, to publish it there and to make it accessible to members of the public and closed user groups via fixed and mobile communication networks at locations and times of their choice for simultaneous or consecutive use – on demand or as a push service –, to transmit, to send and to duplicate for the aforementioned purposes. For this purpose, We Are Era shall be entitled to grant the Providers of the platform sublicenses for the rights of use granted in this clause 13 to the extent necessary.
13.2
The aforementioned grant of rights includes in particular also the right to use the Advertising Material:
(a)
including all digital and analogue transmission and retrieval methods, in particular via cable, radiocommunication, fixed and mobile satellite networks, terrestrial methods and microwaves including all processes (such as HSDPA, GPRS, UMTS, LTE, WLAN, WiMAX, ISDN, DSL, TV cable);
(b)
including playback, downloading and storage on any of the users’ receivers (such as PCs, tablets, TVs, set-top-boxes, (hard disk) video recorders, mobile phones and smart phones); as well as
(c)
in electronic databases of We Are Era and its sublicensees (i.e. the right to capture the provided Advertising Material in machine readable format, to store it electronically in the databases and to make it accessible to the users there).
13. 3The aforementioned grant of rights relates in particular also to the copyright and ancillary copyright in the Advertising Material, to the rights in one’s own image as well as the rights to a name, title rights, trademark rights, commercial designations and other names, indications or signs protected as indications of geographical origin.
13.4
In addition, the Client grants We Are Era and the companies affiliated with We Are Era the simple, temporary and regionally restricted right to:
(a)
use the Client’s campaign data logged and anonymized by We Are Era for its own business purposes to store, process and link such data with the data of customers and use it, in particular for creating performance statistics of the We Are Era network, for analysis, control and improvements of its performance, for the prevention and detection of abuse as well as to market We Are Eras services, We Are Era and the marketed Channels vis-à-vis third parties;
(b)
to integrate the Advertising Material and campaign data into marketing material of We Are Era and its affiliated companies (e.g. as screenshots in presentations, promotional videos etc.) and to use this as part of this marketing material for marketing the services of We Are Era and its affiliated companies.
13.5
The Client guarantees We Are Era that
(a)
it is the owner of the rights granted in this clause 13 and is entitled to grant these rights to We Are Era;
(b)
the rights of use granted are not encumbered with third-party rights, which would impair the contractual exercise of these rights, and that the contractual exercise of these rights of use shall not violate third-party rights;
(c)
it is the owner of the domain rights for the target URLs and/or is entitled to market the target URLs.
14. INDEMNITY
The Client hereby indemnifies We Are Era, the Channel producers and the Providers of the platform upon first demand of We Are Era against all third-party claims, to the extent permitted by law, , which these third parties make on the grounds of a culpable breach of the Client’s obligations or breach of the Client’s warranties. This right of indemnity shall also cover the costs of any legal defense required by the parties to be indemnified against such claims, including lawyer’s fees. We Are Era shall notify the Client immediately of any such third-party claims against them.
15. REMUNERATION, BILLING, TAXES
15.1
The remuneration to be paid by the Client, including any (cash) discount granted, shall be determined in the respective order between We Are Era and the Client. The agreed remuneration shall not include the license fee which may be payable to performing rights societies, e.g. STIM (sw. Svenska Tonsättares Internationella Musikbyrå) or other collective societies, for making the Advertising Material accessible online in case of using works and performances subject to copyright.
15.2
Unless otherwise agreed in the Agreement, the agreed remuneration shall be payable by the Client immediately upon completion after receipt of a proper invoice. The invoice shall be issued immediately upon end of campaign period. In case the services under the Agreement are provided via Google Programmatic Advertising, the Client agrees that the invoice will be issued directly by Google.
15.3
We Are Era shall send the Client a report within two months of the end of each campaign, which also shows the target volumes.
15.4
All prices agreed are net of VAT and shall be payable plus value added tax at the applicable statutory amount where due in accordance with the applicable regulations.
15.5
We Are Era will conduct a credit check via UC if the client is new to We Are Era or if the Client hasn't been active for a period of time. Based on the information from the credit check We Are Era will make a decision regarding the next steps.
15.6
Standard payment terms for We Are Era Invoice are 20 days.
16. OFFSETTING
The Client shall only be entitled to offset claims of its own against payment requests by We Are Era or withhold payments to We Are Era if its counterclaims have been adjudicated as final and absolute by a court, undisputed by We Are Era or accepted.
17. LIABILITY
We Are Era shall only be liable for damage arising from its willful or grossly negligent breach under the Agreement.
18. CUSTOMER REFERENCE
We Are Era shall be entitled to name the Client as its customer vis-à-vis third parties. In cases where the Client is a media agency, We Are Era shall also be entitled to name the respective advertising customer who has commissioned the agency, as a customer vis-à-vis third parties.
19. TERM AND TERMINATION OF AGREEMENT
19.1
The Agreement shall enter into force on the date when signed by both Parties and shall continue in force until all agreed services have been performed under a campaign. Notwithstanding anything herein, each Party can terminate an Agreement fully or partially up to fourteen (14) days before the agreed campaign launch.
19.2
Each Party shall have the right to terminate an Agreement with immediate effect if
(a)
the Client has failed to make overdue payments within two weeks of receiving a payment reminder, or
(b)
the Advertising Material provided by the Client is unlawful, contrary to public policy or violates the rights of third party and the Client does not provide We Are Era immediately after a corresponding request with unobjectionable Advertising Material; or
(c)
the other Party enters into bankruptcy, receivership, liquidation or any kind of composition between the debtor and the creditors, becomes insolvent or in case of any circumstances arises that are likely to substantially affect the other party’s ability to carry out his obligations under this Agreementt; or
(d)
in case of a material breach by the other party of the obligations arising out of this Agreement, or in case of exceptional circumstances justifying the earlier termination.
19.3
Provisions contained in this Agreement which are expressed or by their nature and context are intended to survive the termination of the Agreement, including but not limited to, clauses 15 and 22 shall so survive such termination.
20. RESERVATION OF RIGHT OF MODIFICATION
We Are Era shall have the right to modify these T&C at any time with effect for the future. As far as Agreements already concluded, and still current, are affected by these modifications, We Are Era shall send the Client the modified T&C via e-mail at least two weeks before coming into effect. If the Client object to the modified T&C within two weeks of their receipt, the old T&C shall apply for the remaining period of the Agreement
21. DATA PROTECTION
Insofar as the Parties come into contact with personal data in the course of fulfillment of obligations under the Agreement, or such data comes to their knowledge or is otherwise transferred or made accessible, they are obliged to treat personal data confidentially, not to process such data in an unauthorized or unlawful manner and to take precautions for appropriate security as well as accidental loss. In the event a Party process personal data on behalf of the other Party under the Agreement, the Parties shall enter into a separate data processing agreement to exclusively govern such personal data processing. Personal data may only be processed if a legal regulation permits the processing or if processing of such data is mandatory. In particular, the Parties shall observe the principles according to Art. 5 GDPR and, taking into account the technical and practical possibilities, also the principles for data security according to Art. 32 GDPR, when processing personal data, if any. This obligation shall continue to exist after termination of the Agreement. After the end of the term, the Parties will delete all personal data that became accessible to them or store it in a way that no longer allows identification.
22. MISCELLANEOUS
22.1
In the event that one or more provisions of an order (including these T&C and/or any special terms and conditions) shall be or become invalid, this shall not affect the validity of the remaining provisions. The Parties undertake to replace such an invalid provision by a valid provision that corresponds with what the Parties would have agreed in good faith, taking into account the objective of the Agreement, had they been aware of the invalidity of this provision at the time of concluding the Agreement. This shall also apply to gaps and omissions in the provisions.
22.2
Any amendments, supplements and terminations of the Agreements must be made in writing to be legally effective. A waiver of the written form by the Parties must also be made in writing.
22.3
The sole place of jurisdiction for any disputes arising from or in connection with the orders (including these T&C and/or any special terms and conditions), including their effectiveness, termination and end, shall be the exclusive jurisdiction of Swedish courts, with the Stockholm District Court as the court of first instance.
22.4
All orders (including these T&C and any special terms and conditions) shall only be subject to the local laws of Sweden. The application of the Convention on the International Sale of Goods (CISG) is hereby excluded.
