Hereby, the FOGZY LIMITED, a legal entity established under the law of the Republic of Malta, in this Public Offer hereinafter referred to as the Contactor, declares that it shall be deemed to have concluded the Agreement on the terms described herein, with any individual or legal entity (hereinafter, the Customer) who provided the Acceptance according to the Section 2 hereof. An Agreement concluded as a public offer shall not require bilateral signature, it being valid in electronic format.
1. TERMS AND DEFINITIONS USED HEREIN
For the purpose of this Offer, the terms listed below shall mean the following:
Public Offer – this offer of a procedure for rendering advertising services by the Contractor published on the Website and addressed to the public.
Acceptance – full and unconditioned acceptance of the Offer by taking the actions specified in Section 2 hereof.
Agreement – a contract concluded in the form of a public offer under the terms described in this Offer.
Advertising material (advertisement) – a text, graphical, animation, sound, or video file, or interactive, multimedia, video or any other advertising material, including but not limited to banners, buttons, popups, or popunders containing an advertising message with a hyperlink to an advertised object.
The Contractor’s advertising network resources – any website, application, content, property, or other media owned, controlled, or presented by the Contractor within the Advertising network.
Advertising network, the Contractor’s advertising network, or Media Network – digital advertising network owned by the Contractor, which is the platform for the Customer’s and network partners’ activity, providing all services and functions required for this activity to be performed.
Campaign – the advertising campaign launched using the Contractor’s advertising network resources.
Customer (Advertiser) – an individual or legal entity posting its advertising campaigns within the advertising network.
Advertiser’s (Customer’s) Services – goods and services advertised by the Customer.
Customer Account – a package of services and functions of the Contractor’s advertising network used for payment for and control of advertising Campaigns available for the Customer upon registration and confirmation of registration by the Contractor.
User – a visitor who followed one of the traffic sources provided by the Contractor to go to the Customer’s website/websites.
IO (Insertion order) – an agreement concluded by and between the Contractor and the Customer and containing essential terms of the Parties’ relationship.
Website – the Advertiser’s Platform containing, inter alia, statistics on advertising campaigns available for the Customer.
2.1. In this Offer Agreement, the Acceptance shall be understood to mean the following actions taken by the Customer (Advertiser):
- confirmation of acceptance of the terms of this Offer on the website fogzy.com at the moment of registration of the Customer (Advertiser);
- signing IO by and between the Customer and Contractor.
2.2. Upon completion of Acceptance by the Customer, the Contractor and the Customer shall be deemed to have concluded the Agreement.
3. SCOPE OF THE AGREEMENT
3.1. The Contractor shall provide advertising services and advertising spaces within the Contractor’s advertising network for remuneration, using its Advertising network, while the Customer shall accept and pay for the services provided.
3.2. The Services shall be provided upon acceptance hereof throughout the whole term of this Agreement.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1. THE CONTRACTOR UNDERTAKES THE FOLLOWING:
4.1.1 To provide the Customer with advertising services under the terms of this Agreement. The Contractor shall deliver the services to a standard, and report of any possible defects revealed in the campaigns carried out for the purpose of repair of the same and further compliance of the campaigns with the Customer’s assignment.
4.1.2 To report of the course of delivery of the Services by providing statistical data on the website in the Customer’s account.
4.1.3 To use its best efforts to place the Customer’s Advertisement in compliance with the Customer’s requirements.
4.1.4. The Contractor shall not guarantee the following:
(A) positioning of the advertising materials within the Contractor’s advertising network resources, or
(B) conversions or clicks of any Advertisement on the Contractor’s advertising network resources.
4.2. THE CONTRACTOR SHALL BE ENTITLED TO THE FOLLOWING:
4.2.1 The Contractor shall have a right either to suspend or cancel the Customer’s registration, or to deny the Customer to use the Contractor’s services (or parts thereof, as the Contractor thinks fit) unilaterally, as well as to withdraw from the Agreement unilaterally with no liability for any payments made by the Customer hereunder, for the losses incurred by the Customer, or for further obligations, in the following cases:
- if the Customer breaches the terms hereof;
- if the Customer fails to observe the provisions and/or terms of payment for the services hereunder;
- if the Customer provides false information upon registration in the advertising network;
- if the Customer is caught in fraud, deception, or other tampering that entailed material, moral, or other harmful consequences of any kind or degree, both for the advertising network and users thereof, and for the third-party websites and users thereof, or for any other party including the Customer.
4.2.2 Not to place the advertising materials provided by the Customer inconsistent with the requirements specified on the Contractor’s website (ads requirements)
4.2.3 If the Customer has not sufficient funds on the balance of the account, to suspend providing services until the balance is replenished to the amount required.
4.3. THE CUSTOMER UNDERTAKES THE FOLLOWING:
4.3.1 Not to amend the Advertising materials provided to the Contractor until agreed upon with the latter.
4.3.2 Timely, in the amount and according to the terms as stipulated herein, to pay for the Contractor’s services.
4.4. THE CUSTOMER SHALL BE ENTITLED TO THE FOLLOWING:
4.4.1 To pause, release, launch, or stop advertising campaigns by written application to the Contractor via email subject to paragraph 5.4 hereof.
4.4.2 To replace or extend the list of Advertising Materials used for carrying out the Advertising Campaign provided that the said Advertising Materials comply with the requirements posted on the Advertising network website according to paragraph 4.2.2 and subject to the provisions of paragraph 5.4 hereof.
5. ADVERTISING MATERIALS AND POSITIONING
5.1. The Customer shall provide the Contractor with advertising materials.
5.2. The Contractor shall position Advertisement within the Contractor’s advertising network resources at its own discretion.
5.3. The Customer shall be solely liable for all (a) advertising materials provided by the Customer, or the third parties acting on behalf of the Customer, (b) resources to which the Customer’s advertising materials direct the users (including content of a domain or page visited by users via links (URL) contained in advertising materials); and/or (c) Services offered by the Customer.
5.4 The Contractor shall pause, release, launch, or stop advertising campaigns, or make amendments to the current advertising campaigns if technically possible at the Customer’s written application sent via email within 2 (two) business days following the day of receipt of a corresponding application to the Contractor’s address (business days: Monday through Friday, 10:30 a.m. to 6:30 p.m., UTC +03.00).
6. PAYMENTS AND SETTLEMENT PROCEDURE
6.1 The Customer shall pay for the Services provided by the Contractor under this Agreement by transferring advance payments to the latter’s bank account unless otherwise agreed by the Parties.
6.2 The day of funds receipt to the Contractor’s bank account shall be deemed the day of payment.
6.3 The Customer shall create an account within the Contractor’s website fogzy.com.
6.4 Upon signature of the IO by the Parties as established, the Customer shall create via its account a request for the forming of a deposit for the amount due agreed by the Parties.
Upon receipt of the funds to the Contractor’s bank account, the latter shall accept the Customer’s request for a deposit, and shall credit the Customer’s account with the amount paid.
6.5 The Customer shall effect payments based on the issued proforma invoices. Transfer, banking fees, exchange rate fluctuations, if applicable, shall be paid and covered in full by the Customer.
6.6 The Customer shall agree that the information about any credit cards or the relevant payment information provided by the Customer to the Contractor may be disclosed to the companies acting on behalf of the Contractor (such as payment processing companies, and/or credit agencies) exceptionally for the purpose of verification of the Contractor credits and/or payments and for service of the Customer account.
The Contractor may provide information in response to official requests such as summons, judgements, or requests for establishments of legal rights or defense from legal claims.
The Contractor shall not be liable for any disclosure of the said information by the said third parties.
7. WARRANTIES AND LIABILITY OF THE PARTIES
7.1. Either Party of this Agreement shall represent and warrant that it has no guarantees or obligations to the third parties that can preclude the conclusion and/or performance of this Agreement.
7.2. None of the Parties shall be liable for violation of legal rights of the third parties by another Party, including but not limited to ownership rights, property and non-property rights, trademark, personal, related, civil, contractual, and other rights, which may arise from execution of this Agreement.
7.3. The Contractor shall make the best efforts to provide normal operation of the Website, however, the Contractor shall not be liable for nonperformance or improper performance of obligations under the Agreement, as well as for any possible losses resulted, inter alia, from the following:
- malfunction of the Website and failure in statistics performance on the Website;
- wrongful acts committed by the third parties aimed at the violation of information security or normal operation of the Website;
- failures in the Website operation caused by coding errors, computer viruses, and other external code fragments in the Website software;
- unavailability (impossibility of connection, interruption, etc.) of the Internet-connections between the Customer’s server, and Website server, including the Internet Service Provider performance;
- establishment by state or other authorities of regulation of business activity of business organizations in the Internet and/or establishment by the said authorities of single restrictions impeding or preventing performance of the Agreement or any part thereof;
- other cases associated with acts (omissions) of the third parties aimed at aggravation of use of the Internet and/or computer equipment existing as on the date of signature hereof, as well as with any other actions aimed at the Website and third parties;
- the Contactor’s performance of work on the Website, that is: the Contractor has a right to take preventive measures and maintenance of the software-hardware system of the Website, with temporary suspension of the Website performance, if possible, at night, with a minimum non-operability period. In case of force-majeure, accidents, or failures in software-hardware systems of the third parties cooperating with the Contractor, or acts (omissions) of the third parties aimed at suspension or interruption of the Website performance, the Contractor may suspend the Website performance without giving any notice to the Customer.
7.4. The Contractor shall not be also liable for the following:
(A) any claims concerned with the Customer’s Advertisement, Campaigns, or any Materials;
(B) claims concerned with publication of the said Advertisement, Campaigns, or Materials on any Internet resources.
7.5 The Customer shall be solely liable if the Materials or Campaigns are recognized inconsistent with the applicable law.
7.6 The Customer is well aware of the fact that the file hosting services may include websites inconsistent with the applicable law, thus understanding and undertaking responsibility for any legal claims concerned with the Advertisement placed on the said websites.
7.7 The Customer shall agree upon placement of the Advertisement on streaming or sharing websites but not limited to the same.
7.8 The Customer shall agree to indemnify the Contractor, its partners, affiliates, legal successors for the losses incurred, and hold harmless the said persons against any claims, or court proceedings arising out of or in connection with the Customer’s Campaigns, violation of the terms hereof by the Customer and/or resulted from any statement, warranty, or arrangement according to the provisions hereof.
8.1. Either Party undertakes not to disclose, transfer to the third parties, or use for the purposes other than for the performance of this Agreement, any information obtained under this Agreement from the other Party concerned with business plans, products, clients, technologies, software, computer systems, marketing and promotion techniques, trade margins, cost of goods, cost of materials, capital structure, operational results, or any other business matters, or any other trade or production secrets of the other Party unless permitted in writing by the other Party (for each individual case).
8.2. Either Party shall take adequate measures to secure confidential information, both throughout this Agreement and upon termination hereof for whatever reason, to prevent the third parties from unauthorized access and/or obtaining the said confidential information without permit of the disclosing Party. The information subject to nondisclosure as specified herein may be disclosed by either Party only to those persons who need the same for the purpose of performance of this Agreement. Prior to disclosure, the said persons (including the Party’s directors and employees) shall be informed of confidential nature of this information.
8.3. Upon registration on the Website, the Customer shall authorize the Contractor to send informational messages, including advertisements, to the email address specified upon registration.
8.4. The Contractors shall not be liable for the data distributed by the Customer using the Website in the publicly accessible form.
8.5. Upon agreement with the other Party, either Party may make a statement, including a public statement, that the Parties have concluded this Agreement, and inform about the Contractor’s duties, however, without disclosure of the specific details.
8.6. The Parties undertake not to disclose confidential information that became known to them in the course of performance of this Agreement during the term hereof, as well as within three (3) years upon termination hereof.
9.1. The Parties shall not be liable for violation of the terms of this Agreement provided that the said violation was caused by insurmountable circumstances (force-majeure), including the following: actions of government authorities, fire, flood, earthquake, other acts of God, absence of electric energy and/or malfunctions in the computer network (failure in operation of communication lines, defective equipment, etc.), strikes, civil disorders, disturbances, any other circumstances including but not limited to the listed above, which may affect performance by the Parties of the terms hereof, they being beyond the Parties control.
9.2. The Party that refers to insurmountable circumstances shall inform within 5 (five) business days the other Party hereto of occurrence and termination of the said circumstances in writing, by any means available. In this case, the Parties representatives shall upon discussion approve the measures to be taken by the Parties as soon as practicable.
9.3. Untimely (beyond 5 (five) business days) informing of insurmountable circumstances shall deprive the Party concerned of the right to refer to these circumstances in the future.
9.4. The fact of occurrence of insurmountable circumstances and duration thereof shall be confirmed by the documents issued by relevant authorities or organizations.
9.5. Upon occurrence of insurmountable circumstances, the term of performance of obligations hereunder shall be extended proportionally to the duration of such circumstances and effects thereof.
9.6 Should the insurmountable circumstances exceed one month, the Parties shall have a right to withdraw from this Agreement.
10. SETTLEMENT OF DISPUTES AND SOLE AGREEMENT
10.1. The Parties shall settle all disputes under this Offer by means of negotiations. Should the Parties fail to settle disputable issues by means of negotiations, all disputes shall be submitted for consideration to the relevant court of the Republic of Malta subject to obligatory compliant procedure. Time limit for response to the complaint shall be one (1) month.
10.2. This Agreement shall contain the entire agreement between the Parties as to the subject matter hereof, and shall supersede and render null and void any other warranties and representations that might have been accepted or made by the Parties, whether verbally or in writing, unless otherwise additionally agreed upon by the Parties in the IO.
11. TERM AND TERMINATION OF THE AGREEMENT
11.1 The Contractor shall have a right to terminate this Agreement without giving any reason by notifying the Customer in writing no later than 48 (forty-eight) hours prior to the termination. Should this Agreement be terminated during the term of the Campaign, the Contractor shall return the funds transferred by the Customer and not used by the Contractor to perform its obligations hereunder less the transfer fee.
The Contractor shall have a right to terminate the Customer’s Campaign immediately, or withdraw from this Agreement by notifying the Customer in writing, if (i) the Customer’s use of the Services implies violation of law; (ii) the Customer’s use of the Services makes the Contractor or third parties suffer loss or possible loss, (iii) running Campaign is inconsistent with law; (iv) the Customer fails to pay the amounts agreed within the time limits established; (v) the Customer either fails to adhere to the scope of this Agreement (and such violation is material), or the Customer is adjudged bankrupt.
11.2 The Customer shall have a right to terminate this Agreement by notifying the Contractor in writing no later than 48 (forty-eight) hours prior to the termination, however, the Contractor shall interrupt all advertising campaigns as specified in paragraph 5.4 prior to giving the notice of termination. The Contractor shall return the unused amount out of the funds previously transferred by the Customer less the transfer fee as specified in paragraph 11.3 hereof.
11.3 If this Agreement is terminated on the Customer’s initiative, the Contractor shall return to the Customer the Customer’s funds remaining on the books of the Contractor, within one month upon termination hereof. If terminating this Agreement on its own initiative, the Contractor shall stop all and any advertising campaigns and return the funds within one month, if such termination is not attributable to any breach of contractual obligations. The commission fee for return of funds shall be 60 (sixty) USD. The Contractor shall withdraw the said amount out of the rest of the Customer’s funds on the balance of its account.
11.4. This Agreement shall be invalid automatically after non-use by the Customer of its account longer than 6 (six) months, the rest of the Customer’s funds on the account unclaimed by the Customer within the time limit established, shall be deemed the Contractor’s bonus; these are not subject to return.
12. SUPPLEMENTARY TERMS
12.1. The Contractor shall not accept from the Customer advertising material that contain offensive content, including child pornography, illegal activity (e.g. how to make a bomb, phreaking, computer hacking), inciting hatred (racial, political, ethnical, religious, sexual, personal, etc.), violence, obscene or vulgar language, abusive content, or content that approves doing physical harm, illegal substances, adware, malware, viruses, fishing offers, misleading guidelines for making fortune, or pieces of advice on fraudulent wealth accumulation.
12.2. The Customer understands and agrees that the Contractor has a right to suspend or stop the Customer’s Campaign, or terminate this Agreement should the content specified in paragraph 12.1 be included in the Customer’s website.
12.3. All elements located on the Contractor’s Website shall be the Contractor’s exclusive rights objects. All rights are reserved and used under the applicable law.
12.4. The Contractor shall have a right to alter the terms of this Offer unilaterally at any time, without prior agreement with the Customer, with publishing the relevant amendments on the website fogzy.com. The Customer shall monitor the alterations herein independently. If the Customer does not agree with the alterations, it is entitled not to use the services represented on the Website. If the Customer continues using these service, this shall mean that the Customer accepted all the alterations (revised Offer) unconditionally.
12.5. Should any discrepancy arise, the text of the Offer placed on the Website shall prevail over any other text of the Offer.
12.6. All notices the Parties exchange under this Agreement shall be sent to the recipient’s email address specified in the Contact Details within this Agreement and IO.
12.7. The Contractor shall have a right to transfer its rights and obligations under this Agreement fully or partially to a company, which is, either de-jure or de-facto, a member of the Contactor’s group of companies, without giving a prior notice to the Customer.
12.8. The Customer shall have a right to transfer its rights and obligations under this Agreement only upon receipt of the Contractor’s written consent.
12.9. This Agreement shall not prevent the Contractor from entering into similar agreements with the third parties, including other Customers involved in the same business areas, where the Customer performs, as well independently develop, use, sell, or certify products and/or services similar to those advertised by the Customer.
12.10. The Customer undertakes not to contact with the websites included in the Contractor’s network to purchase advertising spaces or enter into contractual relations that can be regarded as competitive towards the Contractor.
13. LEGAL ADDRESS AND PAYMENT DETAILS
East Gate, School Street, Msida MSD1613, Malta.
Registration No. C 67258, VAT MT22123909
Account No: 10000026015040
Bank of beneficiary: Sparkasse Bank Malta plc
Bank address: 101 Townsquare, Ix-Xatt ta' Qui-si-Sana, Sliema SLM3112, Malta