Standard terms and conditions / Regulamin.
AG- Gallado Polska owns and operates the online classified advertisements platform on the website www.5on6.pl and the mobile application of the platform (collectively, the “Website”).
Unless otherwise stated, the capitalized terms used in this Agreement shall have the meanings given in Annexure A.
1. Provision of the Ad Services Package.
1.1 AG- Gallado Polska will provide the Ad Services Package to Client with reasonable skill and care, subject to:
(a) Client’s compliance with the terms of this Agreement and such reasonable instructions and guidance in relation to the use of the Ad Services Package as may be issued by AG- Gallado Polska from time to time; and
(b) Client’s provision on or before the Start Date of the documents set out in Annexure B to the satisfaction of AG- Gallado Polska.
1.2 AG- Gallado Polska may publish on the Website any information supplied or made available to AG- Gallado Polska by or on behalf of Client. Client acknowledges and agrees that AG- Gallado Polska shall not be regarded as being in breach of any obligation of confidentiality as a result of the publication of such information.
1.3 Client warrants and represents that all information supplied or made available to AG- Gallado Polska by or on behalf of Client is true, accurate and not misleading or deceptive. AG- Gallado Polska has the right, but not the obligation, to remove from the Website without notice any content supplied by or information relating to Client whenever it deems such action necessary in its absolute discretion.
1.4 AG- Gallado Polska may make operational changes to the Ad Services Package and individual Products at any time. AG- Gallado Polska will use reasonable endeavors to provide notification of material changes by posting a message on the Website or by informing Client.
2. Use of the Ad Services Package.
2.1 Client shall, when providing Ads or Creative or other content to AG- Gallado Polska or uploading the same to the Website(www.5on6.pl ):
(b) obtain all necessary rights, licenses and consents from Customers, regulatory authorities and other third parties.
2.2 Client shall ensure that its Personnel comply with all security procedures relevant to the use of the Ad Services Package and interacting with AG- Gallado Polska. Client shall inform AG- Gallado Polska immediately if relevant security credentials are compromised in any way. Client shall indemnify AG- Gallado Polska for any loss to AG- Gallado Polska resulting from the disclosure of any security credentials to a third party and/or failure by Client to keep any security credentials secure, whether such disclosure or failure was committed by an employee of Client or otherwise.
2.3 Client acknowledges that all rights in the 5on6.pl IP are, and shall remain the property of AG- Gallado Polska and/or its licensors and that Client shall not acquire any proprietary rights in such 5on6.pl IP and agrees not to infringe or challenge AG- Gallado Polska’s and/or its licensors’ rights in the 5on6.pl IP nor to do or permit anything to be done which may be detrimental to the 5on6.pl IP or which may be inconsistent with or damage the reputation of AG- Gallado Polska and/or its licensors.
2.4 Client agrees to inform AG- Gallado Polska if it becomes aware of any third party activity which infringes the 5on6.pl IP.
2.5 Client shall indemnify AG- Gallado Polska from and against any losses, damages, costs, charges, expenses and other liabilities (including, without limitation, reasonable legal fees), incurred or awarded against AG- Gallado Polska as a result of, or in connection with, Client’s use of the 5on6.pl IP otherwise than in accordance with this Agreement.
2.6 Notwithstanding any uploading of data and interactive functionality of the Website( 5on6.pl ), Client may not, nor permit others to, modify, decompile, reverse-engineer or disassemble the Website( 5on6.pl ) or the Products or any part of them.
3.1 AG- Gallado Polska shall invoice Client for the Fees and Client shall pay the Fees monthly in advance, unless an alternative payment method has been expressly agreed to by AG- Gallado Polska in writing. The Fee is exclusive of any discount. Any applicable discounts to the Fees must be fully complied with in accordance with the AG- Gallado Polska discount policy in order for the Client to avail itself of such discount. Any failure by Client to adhere to the agreed payment method will also result in the revocation of any applicable discount.
3.2 All payments to AG- Gallado Polska under this Agreement shall be made in Polish zlotys (PLN) in cleared funds to such account as AG- Gallado Polska may notify to Client in writing from time to time.
3.3 The Fees payable by Client under this Agreement are inclusive of any value added tax, sales, purchase, or turnover tax as may be applicable in any relevant jurisdiction, if any. However, AG- Gallado Polska reserves the right to recover separately from Client any other amount in addition to the Fees which is proportional to any government-imposed sales taxes, including value added tax.
4.1 Each party shall:
treat the Confidential Information of the other party as confidential;
use the Confidential Information solely for the purposes for which it was disclosed;
not publish or otherwise disclose to any person the other party’s Confidential Information without that party’s prior written consent, other than its Personnel having a need to know in connection with this Agreement;
advise any Personnel to whom the Confidential Information is to be disclosed of their obligations with respect to the Confidential Information prior to such disclosure and to ensure their compliance with such obligation; and
take all action reasonably necessary to secure the Confidential Information against theft, loss or unauthorised disclosure.
4.2 Notwithstanding clauses 4.1(b) and 4.1(c), Client agrees that AG- Gallado Polska may use and disclose Client Data:
in order to provide the Ad Services Package to Client and enforce its rights under this Agreement;
in order to operate and ensure the security of the Website( 5on6.pl ); or
for analytical purposes as aggregated statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Client or any of its Customers.
4.3 Notwithstanding clauses 4.1(b) and 4.1(c), AG- Gallado Polska may use and disclose the results, data and feedback from any Beta Tests for any business purpose. These results, data and feedback will not include personally identifiable information or information that identifies or would reasonably be expected to identify Client or any of its Customers.
4.4 Each party may disclose Confidential Information which would otherwise be subject to clause 4.1 but only if it can demonstrate that:
the disclosure is required by law or by order of a Court or regulatory body;
the Confidential Information is lawfully in the receiving party’s possession without an obligation restricting disclosure at the time of receipt from the disclosing party;
on a date subsequent to disclosure being made, the Confidential Information becomes part of the public domain, other than through a breach of clause 4.1;
the Confidential Information is already in the receiving party’s possession without an obligation restricting disclosure at the time of receipt from the disclosing party; or
disclosure to the receiving party’s professional advisers is necessary for the purposes of receiving professional advice in relation to this Agreement.
5. Limitation of Liability and Indemnities.
5.1 AG- Gallado Polska hereby excludes liability to Client for any loss of profits, business, revenue, data, goodwill or anticipated savings, or for indirect or consequential loss or damage which may arise out of or in connection with Client’s use of, or inability to use, the Ad Services Package or any Product.
5.2 To the extent permitted by applicable law, AG- Gallado Polska disclaims all warranties, conditions, guarantees, representations and statements with respect to the Ad Services Package and each Product, either express or implied, whether by statute or otherwise.
5.3 Subject to clause 5.4 in no event shall AG- Gallado Polska’s liability, regardless of the cause of action and losses suffered by Client, exceed PLN 5,000.
5.4 Nothing in this Agreement will exclude or limit either party’s liability for:
(a) death or personal injury resulting from its negligence of that of its Personnel;
(b) fraud or fraudulent misrepresentation;
(c) payment of sums properly due and owing to the other party in the course of normal performance of this Agreement;
(d) any other liability that may not otherwise lawfully be excluded or limited; or
(e) any obligation to indemnify the other party under the terms of this Agreement.
5.5 Client acknowledges that the underlying technology relating to the Website( 5on6.pl ) is not error-free and that the provision of any Product may be subject to interruption and/or delay and that the existence of such errors, interruption or delay shall not constitute a breach by AG- Gallado Polska of this Agreement. AG- Gallado Polska shall not be liable for any data transmission errors such as data loss or damage or alteration of any kind or for the security or confidentiality of information transmitted across the internet to or from AG- Gallado Polska.
5.6 AG- Gallado Polska shall not be liable to Client due to any event or cause beyond AG- Gallado Polska’s reasonable control.
5.7 Client shall indemnify AG- Gallado Polska from and against any losses, damages, costs, charges, expenses and other liabilities (including, without limitation, reasonable legal fees), incurred or awarded against AG- Gallado Polska as a result of, or in connection with:
(a) Client’s use of the Ad Services Package, any Product and/or breach of this Agreement; or
(b) claims by any third party that any content uploaded to the Website( 5on6.pl ) by Client or any information supplied or made available to AG- Gallado Polska by or on behalf of Client infringes any intellectual property or proprietary rights of a third party.
6. Termination and Suspension.
6.1 AG- Gallado Polska may immediately terminate this Agreement and/or the provision of any Product by giving written notice to Client if:
(a) Client fails to pay any Fees by the due date and within thirty (30) days of AG- Gallado Polska’s notice of a failure to pay;
(b) Client breaches any term of this Agreement;
(d) Client posts an Ad or content of a Customer without obtaining all necessary rights, licences and consents; or
(e) AG- Gallado Polska ceases to have the right to provide the Ad Services Package or any Product.
6.2 AG- Gallado Polska may suspend or terminate this Agreement and/or the provision of any Product whenever it deems such action necessary or prudent at its sole discretion.
6.3 AG- Gallado Polska shall have no liability towards Client in the event of any losses suffered as a result of any suspension or termination of this Agreement and/or any Product.
6.4 If AG- Gallado Polska suspends or terminates this Agreement or any Product for any reason, without prejudice to any other rights or remedies of AG- Gallado Polska, Client shall be liable to pay the Fees in full up to the effective date of termination.
6.5 Where Client is terminating the Agreement, upon expiry of the one (1) month cancellation notice period, AG- Gallado Polska will deactivate the prepaid listing account and Advertisers will no longer be able to list additionally on the Website( 5on6.pl ). Upon deactivation of a prepaid listing account, AG- Gallado Polska shall be under no obligation to offer any refund in respect of any unexpired time period or unused listings. AG- Gallado Polska agrees to return all remaining cheques and will retain one cheque to cover for the notice period.
6.6 All rights and obligations of the parties in respect of the Ad Services Package shall cease to have effect immediately upon termination of this Agreement, except for any rights or liabilities which have accrued up to the date of termination.
7.1 Notices. All notices under this Agreement, including in respect of termination or breach, must be in the Polish or English language and served by email addressed to email addresses set out in the OF. Notice will be deemed delivered upon receipt, as verified by automated receipt or by electronic log (as applicable).
7.2 Assignment. Client shall not assign, sublicense, transfer or otherwise dispose of any of its rights or subcontract, transfer or otherwise dispose of any of its obligations under this Agreement without the prior written consent of AG- Gallado Polska.
7.3 No Waiver. No failure or delay by either party to enforce, or exercise, or any partial, single or defective exercise of enforcement, of any right, remedy, power or privilege given to that party pursuant to this Agreement shall constitute a waiver or partial waiver of any right, remedy, power or privilege or operate to prevent the exercise or enforcement of any further right, remedy, power or privilege at any subsequent time. Any waiver of any right, remedy, power or privilege will be effective only if made in writing.
7.4 No Agency. Nothing in this Agreement shall be construed as creating any agency, partnership or joint venture between the parties.
7.5 No Third Party Beneficiaries. Nothing in this Agreement shall confer, nor be intended to confer, any right or benefit on any third party.
7.6 Counterparts. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument.
7.7 Amendments. Any amendments to the terms of this Agreement shall be agreed in writing between the AG- Gallado Polska General Manager and an authorized representative of Client. Any amendments to the terms of the OF shall be agreed in writing between the AG- Gallado Polska Account Manager and an authorized representative of Client and recorded.
7.8 Entire Agreement. This Agreement shall constitute the entire agreement between the parties in respect of the Ad Services Package. Each party acknowledges that in entering into this Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement) made by or on behalf of any other party before the Start Date. Each party waives all rights and remedies which, but for this clause 7.8, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
7.9 Severability. If any term of this Agreement is found to be illegal, void, invalid or unenforceable under the laws of any jurisdiction this will not affect the legality, validity and enforceability of the remainder of this Agreement in that jurisdiction, and the legality, validity and enforceability of this Agreement in any other jurisdiction shall not be affected.
7.10 Conflicting Terms. If there is a conflict between the constituent parts of this Agreement, the conflict shall be resolved in the following order of precedence (highest to lowest):
(a) the OF;
(b) the Annexures;
these Standard Terms & Conditions;
the Key Terms & Conditions; and
7.11 Conflicting Languages. If this Agreement is translated into any other language, and there is a discrepancy between the polish / English text and the text of the other language, the polish /English text will govern.
7.12 Governing Law and Jurisdiction. This Agreement is governed by the federal laws of the Republic of poland and applicable Poland. Any dispute which is not settled amicably between the parties shall be finally settled by the Courts of poland.
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“Advertisement” or “Ad” means an advertisement containing Client’s placed on the Website in accordance with this Agreement.
“Ad Services Package” means the bundle of Products which AG- Gallado Polska agrees to provide Client as set out in the OF.
“Beta Feature” means any Product feature which is expressly identified as “Beta”, “Alpha”, “Experimental” or “Pre-release” or that is otherwise expressly identified as unsupported by AG- Gallado Polska.
“Beta Test” means Client’s use of a Beta Feature for the purpose of testing the usability and functionality of that Beta Feature.
“Client” means the client entity on the OF.
“Client Data” means data collected or generated from Client’s use of the Ad Services Package.
“Confidential Information” means any and all information and data, however conveyed or presented and whether technical or commercial, disclosed by one party to the other or obtained or received by a party as a result of entering into or performing its obligations under this Agreement, together with any information relating to the provisions and subject matter of this Agreement and any other information clearly designated by a party as being confidential to it, or which by its nature should be treated as confidential (whether or not marked “confidential”) which may come into the receiving party’s possession or into the possession of any of its Personnel as a result of or in connection with this Agreement and includes Client Data.
“Creative” means any information, material, trademark, logo, artwork, text, graphic, video or other material provided to AG- Gallado Polska by Client for the purpose of creating an Ad or providing the Ad Services Package to Client.
“Customer” means any customer of Client.
“5on6.pl IP” means the know-how, trademarks, patents, copyrights, design rights (whether registered or unregistered), database rights and all other intellectual property rights in the Products and the Website.
“Fees” means the fees payable by Client for consideration of the Ad Services Package as specified in the OF.
“Key Terms & Conditions” means the key user terms and conditions document provided by AG- Gallado Polska, as amended by AG- Gallado Polska from time to time.
“OF” means the order form provided by AG- Gallado Polska and signed by Client to order the Ad Services Package pursuant to these Standard Terms & Conditions.
“Personnel” means a party’s officers, directors, employees, agents, contractors, sub-contractors and representatives.
“Product” means an advertising product or service provided by AG- Gallado Polska.
“Product Start Date” means the start date for each Product as specified in the OF.
“Product Expiry Date” means the expiry date for each Product as specified in the OF.
“Website” means the online classified advertisements platform at the URL www.5on6.pl and the mobile application of the platform.