ADVERTISING SERVICES REGULATIONS/AGREEMENT

Transcription

1 ADVERTISING SERVICES REGULATIONS/AGREEMENT 1. DEFINITIONS Contractor's Identifier New User an individual number given to each Contractor by the Orderer, which allows to identify the Contractor in the Oktawave system for the purposes of Agreement performance, including in particular to assign the New Users to the Contractor; a natural person fully capable to conclude the legal transactions, a legal person or organisational entity that is given the legal capacity under the Act, who at the moment of accepting the Invitation to Oktawave and within the period of 1 month earlier, had not entered into any Oktawave Services Agreement (was not Oktawave's customer). Subject to the provisions of this Agreement, acceptance of the Invitation to Oktawave shall be understood as accessing the Website by the New User via the link/hyperlink provided in the Invitation to Oktawave or filling in the form of entering into the Oktawave Services Agreement via the Website together with specifying the Contractor 's Identifier; Oktawave/ Orderer Oktawave Sp. z o.o., registered office in Warsaw (02-672), ul. Domaniewska 44a, registered with the register of entrepreneurs of the National Court Register by the District Court for the capital city Warsaw, XIII Commercial Division of the National Court Register under the entry no. KRS: , NIP [taxpayer ID]: , REGON [enterprise ID] , share capital PLN zł; Contractor's Panel user s account within the meaning of the Oktawave Website and User Account Terms and Conditions, available at Regulations/Agreement this agreement on the regular provision of the advertising services by the Contractor for Oktawave, whose valid version is available on the website also in the PDF format; Website Oktawave website available at including appropriately all its tabs or individual elements; Parties Contractor and Orderer; Minimum Value Net USD 1600 or EUR 1200; Remuneration remuneration due to the Contractor pursuant to the terms and conditions of these Regulations, for provision of the services under the Agreement, equivalent to 5% of each net price for every purchase of the Oktawave services actually paid by the New Users, in particular subject to the provisions concerning the Minimum Value; Invitation to Oktawave referring the New User to the Website by the Contractor, via the link assigned and provided to a specific Contractor (including with the use of for example a banner or hyperlink) or providing the Contractor's Identifier by the Contractor to the New User and filling in the Oktawave Services Agreement form via the Website together with providing the Contractor's Identifier; Contractor an entrepreneur, including a legal person, organisational entity that has no legal personality, which is given the legal capacity under the Act or a natural person running business or professional activity on its own behalf, who pursuant to the terms and conditions of these Regulations and against the Remuneration specified herein,

2 undertakes to acquire at least 1 or more New Users for Oktawave, who will purchase and pay for the Oktawave services having the value specified in the Regulations, by means of preforming the advertising services for the benefit of Oktawave. 2. SUBJECT MATTER OF THE AGREEMENT 2.1 The Contractor - by performing the advertising services for the benefit of Oktawave, including to promote the Oktawave brand and advertise the Oktawave services to the New Users pursuant to the terms and conditions of these Regulations - undertakes to acquire at least 1 or more New Users for Oktawave, who will purchase and pay for the Oktawave services having the value equal to at least the Minimum Value,. 2.2 Oktawave undertakes to pay the Contractor the Remuneration pursuant to the terms and conditions of these Regulations. 2.3 For the avoidance of any doubt, the Parties represent that the Contractor is neither an attorney nor a business agent or any other representative of Oktawave, in particular the Contractor is not authorised to conclude any agreements with the New Users for or on behalf of Oktawave, nor to mediate conclusion of such agreements, nor it is authorised to incur any expenses for or on behalf of the Orderer without prior consent of the Orderer given in writing, otherwise null and void. All and any costs of Agreement performance are included in the Remuneration, the Orderer shall not be obliged to reimburse any costs possibly incurred by the Contractor in connection with Agreement performance. Under this Agreement, the Contractor is only obliged and authorised to promote the Oktawave brand and to advertise the Oktawave services in the manner aimed at acquiring the New Users. 2.4 Capitalized terms in these Regulations shall have the meanings given them in Section 1 hereinabove and further (provided they have not been defined otherwise in these Regulations), in the Oktawave Website and User Account Terms and Conditions (available on the Website) unless the content or the context of a given provision clearly requires otherwise. 3. OBLIGATIONS OF THE CONTRACTOR 3.1. The Contractor represents as follows: (1) it shall provide the services under this Agreement as an entrepreneur running the business; the Contractor represents that as at the effective day of this Agreement, it has neither suspended nor deregistered its business and shall not do it during the term of this Agreement. In order to confirm the above, upon every request of the Orderer, the Contractor shall provide immediately, not later than within 7 days, the required certificates and valid copies from the relevant registers; (2) it shall provide the services under this Agreement on its own and with highest degree of diligence resulting from the professional nature of its business; (3) it has the skills, knowledge, resources and experience necessary to perform this Agreement;

3 (4) it shall perform this Agreement on his own account and on behalf of itself and shall be solely responsible, including towards third parties, for correct provision of the services under this Agreement pursuant to the terms and conditions of these Regulations; (5) in the event of issuing the VAT invoices it is a registered and active VAT tax payer Pursuant to the terms and conditions of these Regulations, the Contractor undertakes to render the advertising services for the benefit of Oktawave, which consist in recommending the Oktawave services to New Users via: (1) any means of communication, compliant with these Regulations and the legal regulations in force, joined with providing its Contractor's Identifier to the New User in order to fill in the Oktawave Services Agreement form by this New User via the Website accompanied by specifying the Contractor's Identifier, or; (2) sending/making available the Invitation to Oktawave to the New User, including making the Invitation to Oktawave available in such a manner that everyone has access to it in the place and time chosen by themselves; 3.3. The use of the advertising banner or other Oktawave materials by the Contractor that may be rendered available to the Contractor on a relevant subsite of the ( Website for the purposes of Agreement performance, shall require prior consent of Oktawave given in the form of an , otherwise null and void, for the planned way and context of using these materials, unless otherwise is clearly specified in the information placed by Oktawave along with these materials. The Contractor shall be neither authorised to create any new materials containing Oktawave's protected content (in particular its trademark) on its own nor to modify the existing Oktawave's materials The Contractor is forbidden to place the Invitation to Oktawave under or near the unlawful content or the content discordant with the rules of the social intercourse, in particular on the websites propagating hatred based on race, ethnic or religious background or on the pornographic websites. Notwithstanding the foregoing, if in the unilateral judgement of the Orderer, the manner or context of presenting the Invitation to Oktawave by the Contractor is against the interest of the Orderer, upon Orderer's request, the Contractor shall immediately, not later than within 24 hours, change the manner/place/context of presenting the Invitation to Oktawave in the manner specified by the Orderer The Contractor is forbidden to place the Invitation to Oktawave in the bulk that constitutes the unsolicited commercial information within the meaning of the Act on Rendering Electronic Services (spam). If the Contractor infringes this obligation, it shall pay Oktawave the contractual penalty of USD 1600 or EUR 1200 for each case of infringement (for each SPAM ). The contractual penalty will be payable immediately, not later than within 7 days from the day Oktawave requires it. Payment of the contractual penalty is without prejudice to the Orderer's right to seek damages exceeding the amount of the contractual penalty under general conditions The persons, who use the Oktawave services as a result of infringing the provisions of the Sections 3.4 or 3.5 hereinabove by the Contractor, shall not be considered New Users within the meaning of these Regulations and shall not be taken into account when determining the Remuneration. If the Contractor is paid Remuneration within the scope undue to it, in particular, Oktawave shall retain the right to request return of undue benefits paid to the Contractor, deduce the funds due to Oktawave from subsequent Remunerations of the Contractor without the need to make any additional statements in

4 this area as well as the right to request compensation for the damage inflicted to Oktawave Infringement of the prohibitions specified in Sections 3.3, 3.4 or 3.5 hereinabove, shall give Oktawave the right to terminate this Agreement with immediate effect. The Contractor, with whom Oktawave terminates the Agreement with immediate effect, shall not be entitled to conclude the next Agreement with Oktawave without obtaining prior written consent, otherwise null and void. 4. OBLIGATIONS OF THE ORDERER 4.1. In return for due performance of the Agreement by the Contractor, the Orderer undertakes to pay the Contractor Remuneration pursuant to the terms and conditions of these Regulations Solely in order to enable proper provision of the services by the Contractor, the Orderer will provide the Contractor with a link/reference mark to the Website dedicated to the Contractor, which the Contractor can use as the Invitation to Oktawave Pursuant to the terms and conditions of the Agreement, solely in order to provide the services for Oktawave in accordance with the Agreement, the Contractor may use free of charge the tools made available to it by Oktawave, to which the rights are held by Oktawave, including the link, reference marks, banners and the Contractor's account Subject to Section 3.3. hereinabove, solely for the purpose of Agreement performance and provision of the advertising services for Oktawave by the Contractor, Oktawave authorises the Contractor to use free of charge the works within the meaning of the Copyright Act, to which the copyright is held by Oktawave, and which are explicitly made available to the Contractor on the website for the purposes of Agreement performance. The User is authorised to use the elements specified hereinabove solely for the purpose of Agreement performance, within the necessary scope and solely during the term of the Agreement. The Contractor shall not be authorised to make any changes or modifications in the materials rendered available to it. 5. REMUNERATION 5.1. Each time, in case of acquiring at least 1 or more New Users by the Contractor for Oktawave, if the New Users purchase and pay for the Oktawave services with the total value equivalent to at least the Minimum Value pursuant to the terms and conditions of these Regulations, the Parties unanimously agree that the Orderer shall pay the Contractor the Remuneration, with the reservation as follows (the following conditions must be met jointly): (1) During the term of the Agreement, the Contractor shall engage in the advertising/marketing activities and as a result it shall recommend the Oktawave services to the New User, and: it shall provide the New User with its Contractor's Identifier; or it shall send/make available the Invitation to Oktawave to the New User; (2) During the term of the Agreement, the New User: while registering in the Oktawave website (while entering into the Oktawave Services Agreement), shall provide the Contractor's Identifier received from

5 the Contractor, who encouraged the New User to use the Oktawave services, by means of filling in a relevant field in the registration form; or shall register in the Oktawave website (shall enter into the Oktawave Services Agreement) within the period of 30 days from accepting the Invitation to Oktawave, i.e. from accessing the Website via the link/hyperlink provided in the Invitation to Oktawave, on condition that the registration will be from the same end device, from which the Invitation to Oktawave had been accepted earlier and that the Invitation to Oktawave from the Contractor was the last, chronologically (the newest) Invitation to Oktawave (including any analogous mechanism), which was used by the New User; (3) During the term of the Agreement, the New User(s) shall actually purchase the Oktawave services and actually pay the Orderer for purchase of these services in the amount equal to or higher than the Minimum Value and the Orderer receives such a payment For the avoidance of doubt, the Orderer represents and the Contractor hereby agrees that the acceptance of the Invitation to Oktawave results in the fact that the Website places cookies on the end device of the New User and the cookies are active for the period of 30 days, solely on a given end device (e.g. a computer) on which the Invitation to Oktawave had been accepted, subject to the provisions of the following sentences. If during the period of cookies validity referred to hereinabove, the New User returns to the Website using the same end device, its registration on the Website (entering into the Oktawave Services Agreement) is attributed to the Contractor, whose Invitation to Oktawave (or analogous mechanism) the New User accepted as the last one. If during the period specified in the preceding sentence, the New User removes the cookies from its end device or storage of cookies in the memory of a given end device is impossible for other reasons (e.g. the New User turns off handling of cookies in the settings of its Internet browser), then in order to assign the New User's registration to the Contractor, the New User must manually enter the Contractor's Identifier in the registration form, when it enters into the Oktawave Services Agreement. In case of doubt, the manually entered Contractor's Identifier (or analogous identifier used as part of other Oktawave operations) pursuant to the preceding sentence, shall be decisive for possibly recognizing the New User as assigned to the Contractor In particular, due to the costs of handling the Agreement, as incurred by Oktawave (including the costs of keeping the Contractor's Panel) and the fixed costs of service provision to the New Users, the Parties unanimously represent that the Agreement is performed by the Contractor each time, solely in the case when the New Users assigned to the Contractor pursuant to the Agreement, actually pay Oktawave the amount at least equal to the Minimum Value as the remuneration for the services provided for them by Oktawave. Up to the moment the services are provided by the Contractor pursuant to the Agreement, including up to the moment the condition referred to in the preceding sentence is actually fulfilled, the Parties unanimously represent that the Contractor is not entitled to the Remuneration and its services are deemed not provided neither in whole nor in part The Parties define the following procedure of determining the Remuneration and the time when it becomes due to the Contractor, which shall be binding upon both Parties: (1) At least every 1 working day, Oktawave updates the information about the degree of reaching the Minimum Amount and presents this information in the Contractor's Panel; (2) At the moment of reaching the Minimum Amount, Oktawave shall:

6 a. place in the Contractor's Panel the information about accepting the services provided by the Contractor together with the information about the amount of Remuneration due to the Contractor; and b. send to the Contractor by , otherwise null and void, the relevant information about the determined Remuneration, at the Contractor 's address specified in the Contractor 's Panel; (3) In the Contractor 's Panel, the Contractor immediately accepts the amount of the Remuneration due to it and confirms correct provision of the services ordered to it under this Agreement. The amount of Remuneration determined by Oktawave shall be binding for the Parties. (4) By the date compliant with the legal regulations, the Contractor issues a VAT invoice or a bill pursuant to the terms and conditions specified in particular in Section 5.6 hereinbelow. The Remuneration is due to the Contractor at the moment Oktawave receives a correctly issued VAT invoice or bill pursuant to the terms and conditions of these Regulations The Remuneration due to the Contractor shall be increased by the amount of the VAT tax, at the rate pursuant to the legal provisions currently in force The VAT invoice or bill shall be issued pursuant to the provisions of the Agreement and the legal regulations in force and delivered in the electronic form, for which Oktawave hereby gives its consent. The Contractor shall ensure integrity and authenticity of the VAT invoice in particular via the proper form Within 30 days from receiving a correctly issued VAT invoice or bill, the Orderer shall transfer the amount of the Remuneration due to the Contractor to the bank account specified by the Contractor in the Contractor 's Panel. The payment day shall be considered the day the Orderer s bank account is debited If the registered office of the Contractor is outside the territory of the Republic of Poland, the Remuneration due to the Contractor shall be reduced by the amount of the withholding tax calculated and deduced by the Orderer in accordance with the legal regulations in force, subject to the provisions of Section 5.9 hereinbelow If pursuant to the double taxation treaty concluded between the Republic of Poland and the country of the Contractor 's registered office, it is allowed not to deduce or deduce reduced withholding tax, at its own discretion, the Orderer may also not deduce or deduce reduced withholding tax (depending on the provisions of the relevant double taxation treaty) - provided the Contractor, prior to the date of payment of the Remuneration referred to in Section 5.7 hereinabove, provides the Orderer the certificate of residence issued by the competent tax authority in the country of Contractor s registered office, which shall be accepted by the Orderer. 6. DEDUCTION 6.1. Notwithstanding Agreement performance, if the Contractor is simultaneously the customer, who is provided the Oktawave Services, the Contractor may use the amount of Remuneration for purchase of Oktawave services for the entire term of the Agreement, using the functionality of the Contractor 's Panel. For this purpose, and each time provided the Minimum Amount is reached, the Contractor shall issue a relevant VAT invoice or bill pursuant to the provisions of this Agreement. Notwithstanding the foregoing, Oktawave shall issue a VAT invoice to the Contractor equivalent to the value

7 of services purchased by the Contractor under a separate agreement. The Parties shall mutually set off any amounts due referred to in this Section, to the amount of lower amount due, on the day specified in the Contractor 's Panel that shall be not later than on the day when these amounts due are payable, without the obligation of making any additional representations by any Party If the amount of the Remuneration/advance payment towards the remuneration is lower than the amount due in connection with payment for the Oktawave service chosen by the Contractor /User, the Contractor /User pays the lacking amount choosing the payment method preferred by it in the Contractor 's Panel. 7. TERM AND TERMINATION OF THE AGREEMENT 7.1. This Agreement has been concluded for an indefinite period Either Party may terminate this Agreement with a one-month notice period at the end of the calendar month and in such a case is not liable to the other Party for any damage that might be possibly suffered by the other Party in connection with Agreement termination For important reasons, including in case of gross violation of the provisions of these Regulations by the Contractor, in particular the violation of the prohibitions specified in Sections 3.3, 3.4. or 3.5 of these Regulations, the Orderer shall be entitled to terminate this Agreement with immediate effect and shall not be liable to the Contractor for any damage that might be possibly suffered by the Contractor in connection with such a termination In case of Agreement termination, the Remuneration is payable to the Contractor proportionally to the services provided so far. In such a case, the amount of Remuneration is determined by the Orderer and indicated in the Contractor 's Panel - Sections 5.4 to 5.9 of the Agreement shall apply accordingly. 8. OTHER PROVISIONS 8.1. These Regulations shall be governed by the laws of Poland, and subject to the exceptions envisaged in these Regulations, shall regulate the whole of relations between the Contractor and Oktawave with regard to the provision of the advertising services by the Contractor for Oktawave All and any disputes related to this Agreement shall be settled by the competent court proper for the registered office of Oktawave These Regulations shall constitute a contract template of Oktawave within the meaning of Article 384 and the following ones of the Act dated 23 April 1964 The Civil Code. All and any changes of these Regulations shall be announced by Oktawave via the Website and shall be effective within 7 days from announcing the uniform text of the Regulations If one or more provisions of this Agreement shall be or become invalid or unenforceable, this shall not affect the validity or enforceability of the other provisions hereof. The invalid or unenforceable provision shall be replaced with a provision that is most close to reaching the purpose assumed by the Parties To the matters not regulated under the Agreement, the provisions of the Civil Code shall apply (in particular Article of the Act dated 23 April 1964 The Civil Code).