Term & Conditions

These General Terms and Conditions of Service (hereinafter GTC) regulate the modalities and terms of delivery of the services offered by "Gitberry AS" to the "Partners". In the cases set forth by the GTC, the services offered by Gitberry AS are also governed by the Specific Terms of Service (hereinafter STS). In such cases, the GTC constitute, together with the STS and any attachments, the entire Agreement between the parties. In the event of any inconsistency between the provisions of the GTC and those of the STS, the latter shall prevail over the former. The GTC must be accepted by the Partners at the time of registration on the Site, or at the time of the subscription of the STS. Gitberry AS reserves the right to modify or integrate in any time, in whole or in part, these GTC , through publication on the site.

Definitions

For the purposes of GTC and STS, in addition to any additional definitions contained in any other section of the GTC and STS, the following terms have the meaning specified below. If they are indicated in the singular form, they are also valid for the plural form, and vice versa.

Advertiser: Indicates all natural or legal persons who market and advertise their goods and/or services and/or products through the Platform, and/or all natural or legal persons performing brokerage activities in online advertising (e.g., Media Agencies, SSP, DSP, and Ad Networks).

Video Campaigns: Indicate the advertising activity planned by the Advertiser and/or the Media Partner and distributed through the Platform on the Gitberry Network.

Prohibited Content: Indicates any content that is and/or results in promoting and/or distributing messages, that are for example, but not limited to, (i) defamatory, offensive, pornographic, child abuse material, violent, related to gambling (or otherwise prohibited to children under the age of 18 or suitable for adults only); (ii) harmful of the rights and liberties of others; (iii) harmful of intellectual property rights; (iv) of a discriminatory and offensive nature; (v) in any case prohibited by the applicable laws.

Video Content: Indicates the result of the creative work of the Creator expressed in the form of video, uploaded on the Platform with the Creator Service, which is not about and/or its principal purpose is not the advertising of goods and/or services and/or products.

CPM: Specifies how the payment will be made to the Media Partner and/or to Gitberry, unless otherwise agreed between the parties. The calculation of the CPM can derive from paying events other than Impressions (for example, full views of an Advertising Message).

Registration Credentials: Indicates the email address and password chosen by the Media Partners at the time of registration, or the other credentials communicated by the Gitberry staff to the Partners.

Creator: Indicates the natural or legal person who has the ownership and/or the availability of one or more Video Content.

Intellectual Property Rights: Indicate the copyright, the trade secrets and confidential information, the know-how, the patents, registered and unregistered trademarks, the design rights, the domain names, the distinctive signs, any other right of intellectual property or other equivalent or similar right, including the applications for registration, renewal or extension of the aforementioned rights, wherever they are protected in any part of the world and in accordance with any legislation.

Impressions: Indicates the number of times that the Advertising Message is received by the User, according to the calculation made exclusively by the Platform.

Confidential Information: Indicates all company information, technical and commercial experiences, business and marketing strategies, financial data, intellectual property rights, all analyses, studies, materials that contain or are based on confidential information, any other information that is or will be subject to a non-disclosure agreement between the Parties, any other information which is not publicly disclosed and information that is expressly considered and/or classified as confidential and/or classified, as well as information that by its nature, content or circumstance in which it is revealed, is reasonable to consider confidential and/or classified, which is communicated in any form or modality by the Disclosing Party to the Receiving Party, or which is by the latter otherwise known, as a consequence or result of these GTC.

Territorial restrictions: Indicates the territorial restrictions related to the distribution and to the publication of the Video Content and/or the Advertising Messages and/or the Video Campaigns, which are provided and specified in STS.

Digital Media: Indicates any website or mobile, blog, app, and/or profile in the main social networks and/or fan pages of which the Publisher and/or the Third Party Publisher have ownership and/or availability.

Media Partner: Indicates the Publisher and/or the Creator.

Advertising Messages: Indicates the advertising content provided by the Advertiser and supplied in the form of video, stand-alone or inside the Video Content.

Gitberry Network: Indicates all Digital Media owned and/or available to all Publishers who have an agreement with Gitberry.

Panel: Indicates the control panel made available to the Partner and usable through the Site, through which the Partner may, for example, monitor in real time the performance of Advertising Messages inside the Digital Media, track all interactions between Digital Media visitors and the Gitberry Video Player, and monitor his/her earnings, as best indicated on the Site.

Platform: Indicates the automated Platform accessible on the site gitberry.com that allows you to use the Publisher Service, the Creator Service and the Software as a Service (SaaS).

Partner: Indicates any natural and/or legal person who uses at least one of the Services offered by Gitberry.

Publisher: Indicates the natural or legal person who has the ownership and/or availability of one or more pieces of Digital Media.

Site: Indicates the site gitberry.com

Third Party Publisher: Indicates all the Publishers that are not Partners of Gitberry.

Unit: Indicates the software owned by Gitberry and used to distribute Video Content and/or Advertising Messages according to the formats available through access to the Platform. The Unit is called "Content Unit" when it is used to distribute Video Content and the Advertising Messages, or "Ad Unit" when it is used to distribute only Advertising Messages.

User: Indicates the Digital Media User

Acceptance of the contract, duration and renewal

The contract is deemed accepted by the Publisher at the time of acceptance of these GTC when registering the account on the Site. In cases where the Publisher subscribes to the STS, the contract is deemed accepted at the time of subscription of the STS.

For the Media Partner who wants to use the Software as a Service (SaaS), the contract is considered accepted at the time of the subscription of the STS and the simultaneous acceptance of these GTC.

These GTC have the duration of one year (twelve months), starting from the moment of their acceptance, and are tacitly renewed from year to year unless a notice of termination of one of the parties is sent in writing, or by e-mail, at least 30 (thirty) days before any annual deadline.

The STS may establish duration and renewal conditions that are different from those referred to in the previous article 2.3.

The changes or additions made by Gitberry to these GTC , in whole or in part, are published on the Site and are deemed accepted by the Partner at the time of publication, and from that time effective and binding for the same Partner. They may involve changes in the mode of use of the services offered. To this end, the Partner must periodically consult the Site, in order to be informed about the conditions applied.

Registration

To activate the Publisher Service and the Creator Service, the Media Partner must register an account on the Site.

To complete the registration and create an Account, the Media Partner must provide to Gitberry the required information, which must be complete and truthful.

In particular, the Media Partners will have to provide an email and password, which serve as Registration Credentials and allow the Media Partner to access the chosen Service and use the Panel features. The Registration Credentials may also be supplied directly by the Gitberry Staff.

The Media Partner will be able to use the Services from the date of registration. Gitberry reserves the right to subordinate the registration to its prior and discretionary approval. In this case, the registration request will be examined by the staff of Gitberry, who shall notify the Media Partners of the approval or refusal of the registration request. Gitberry reserves the right to refuse the registration for any reason whatsoever. In any case, the registration is subject to the acceptance by the Media Partner of these GTC.

The Media Partner guarantees that the information provided during the registration process, or thereafter, is complete and truthful. The Media Partner agrees to treat his Registration Credentials as Confidential Information between the Parties, and to promptly notify Gitberry about any unauthorized use of the same. The Media Partner is solely responsible for all acts or activities, whether authorized or not, performed when using his/her Registration Credentials.

Publisher Service

The Publisher Service allows the Publisher to publish Digital Media, Advertising Messages and/or Third Party Video Content using the Platform, without Territorial Restrictions. To this end, the Publisher uses the functionalities of the Panel and the Units in compliance with these GTC and with the STS, if the Publisher subscribes to them. The Publisher is entitled to the remuneration provided for in article 8. The specific features and methods of use of the Publisher Service are indicated on the Site. It is understood that Gitberry is authorized to sell the spaces that are present in the Digital Media to Advertisers, including Real Time Bidding platforms.

Notwithstanding the provisions of article 11, Gitberry reserves the right to approve the Digital Media and the contents of the Digital Media, and the right to revoke at any time, and without any advance notice, the approval granted. The Publisher is committed to ensuring that the Digital Media of which he/she is the owner or which is available to him/her, is perfectly functional, and also agrees to manage the same Digital Media autonomously, without any restriction to time or location and without subordination and/or coordination with Gitberry.

The Publisher agrees not to contact the Advertisers who through Gitberry transmit their Video Campaigns on Digital Media, with the direct or indirect goal of offering promotional advertising services that are similar to those supplied by Gitberry.

With the activation of the Publisher Service, the Publisher acknowledges that the property rights or any other rights relating to the Video Content and/or Advertising Messages are not, in any way, transferred or granted to the Publisher. In particular, the Publisher agrees to use the Video Content and/or the Advertising Messages within the limits allowed by these GTC and STS, respecting the property rights of third parties, and to not perform acts of disposal thereof, to not exploit, copy, reproduce, disclose, modify, and to not use them in any forbidden way.

With the activation of the Publisher Service, Gitberry grants the Publisher a non-exclusive, revocable, non-licensable and non-transferable right to publish the Units on Digital Media for the duration of these GTC.

The non-exclusive, revocable, non-licensable and non-transferable right, granted in accordance with the previous Article 4.5, shall be subject to the following conditions:

1. The Publisher agrees to not sell, transfer, sublicense, or sell the Units to third parties
2. The Publisher agrees to not modify, alter, block, or disable any of the components and/or functionalities of the Unit.
3. The Publisher, in particular, agrees to not interfere and/or prevent in any way the operation of the units and to respect the agreements with Gitberry concerning the positioning of the Units inside the Digital Media.
4. Furthermore, the Publisher agrees to not use or operate, directly or indirectly, any automated, deceptive, fraudulent, or otherwise illegal system, for example, but not limited to, robot, bot net, or spider, that can generate impressions or clicks on Advertising Messages; to not distribute any software containing viruses, and to not allow any third parties to perform such activities.
5. The Publisher agrees to not use the Units in Digital Media that have not been approved by Gitberry via communication in the Panel.
6. The Publisher agrees to allow the display of Advertising Messages following the indications provided by Gitberry about the correct distribution, publishing, control, and technical characteristics thereof, and to not create confusion with other Advertising Messages that may be present on Digital Media; to not edit, modify, filter or change the order of the information contained in any Advertising Message and to not redirect the User to another site, different from the page of the Advertiser or the search results page, and to not insert any content between the Advertising Message and the page of the Advertiser.
7. The Publisher also agrees to not copy, reproduce, transfer, duplicate, sell, give to third parties, modify, distribute, commercially exploit and to not use, for purposes other than those expressly stated in these GTC and STS, in whole or in part, the Video Content and the Advertising Messages, without the prior written permission of the owner and/or Gitberry.
8. The Publisher agrees to add Gitberry to Publisher's ads.txt, upon signature of this agreement, according to IAB guidelines and Gitberry instructions, which, can be consulted at iabtechlab.com/ads-txt, if the Publisher currently utilizes ads.txt. The ads.txt file must be integrated according to the instructions provided by Gitberry, in order to allow Gitberry, the resale of the Publisher's advertising spaces. If the Publisher doesn't currently have an ads.txt listing, as soon as it is implemented and/or upon necessity to receive Gitberry advertisements, the Publisher agrees to efficiently work with Gitberry to list Gitberry on it's ads.txt listing.

Creator Service

The Creator Service allows the Creator to distribute and monetize Video Content using the Platform. In particular, the Creator Service allows the Creator to monetize his/her Video Content, receiving payment as described in article 8, following the User’s view of Advertising Messages distributed in the Platform and inserted in the Video Content of the Creator. To this end, the Creator uses the functionality of the Panel in compliance with these GTC and STS. In particular, the Creator can directly upload his/her Video Content on the Platform and remove it at any time. The specific features and methods of use of the Creator Service are indicated on the Site.

With the activation of the Creator Service, the Creator grants Gitberry the non-exclusive right (i) to insert the Video Content in the Units, in whole or in part, (ii) to use, reproduce, adapt, modify, publish, edit, translate, perform, transmit, distribute, and view the Video Content, in whole or in part, in any form, mean or technology known or developed, without any Territorial Restriction, if not otherwise indicated in the STS, on the Gitberry Network in the Platform.

Gitberry reserves the right to approve the Video Content, and to modify it (or ask the Creator for the modification) at any time and for any reason, including reducing the quality, and/or by deleting it from the Platform.

The removal of Video Content by the Creator can be done at any time after sending notice to Gitberry at least forty-eight hours prior to removal, via email to the address legal@gitberry.com.

Software as a Service (SaaS)

The Software as a Service (SaaS) allows the Media Partner to use the Platform to sell its Video Campaigns that will be displayed in Digital Media and/or in connection with its Video Content. The activation of the Software as a Service (SaaS) occurs at the time of the subscription of the STS, in accordance with the modalities therein, and the simultaneous acceptance of these GTC. Gitberry is entitled to the fees described in article 8. With the activation of the Software as a Service (SaaS) Gitberry grants the Media Partner the non-exclusive, non-licensable and non-transferable right, without Territorial Restrictions, unless otherwise stated in the STS, to use the Platform. Notwithstanding the provisions of article 7 below, the Media Partner acknowledges the following conditions:

1. Gitberry grants access to the Platform for the duration of these GTC, or the different duration indicated in the STS. To this end, the Media Partner agrees to protect the Platform's login data and treat it as Confidential Information in accordance with and for the effects of article 12. Gitberry agrees to provide support in the use of the Platform and guarantees its uptime, in accordance with procedures provided in the STS.
2. In order to offer its own Video Campaign sales service, the Media Partner can upload to the Platform and use the Video Content and Advertising Messages owned or available. The Media Partner can also use third party Video Content and Advertising Messages that are made available by Gitberry. To this end, the Media Partner: (i) guarantees the ownership and/or availability of its Video Content and the rights that are necessary for its distribution; (ii) uses the Units in accordance with the conditions described in Article 4.6; (iii) assumes any and all responsibility for the Video Campaigns distributed using the platform, exonerating, as of now, Gitberry from all related responsibilities. In particular, the Media Partner assumes all responsibilities related to the content of its Digital Media and Video Campaigns, subject to the provisions outlined in article 11.
3. The Media Partner is also the unique responsible for all the legal requirements related to its Digital Media, including the privacy policy, the terms and conditions of service and any other fulfillment that may be necessary for the distribution of its Video Campaign.

Platform, Site and Unit

The Partner acknowledges that Gitberry is fully and exclusively the owner of the Platform and he/she agrees to support that ownership against any third party

Gitberry grants the Partner for the duration of the GTC and of the STS, if applicable, the non-exclusive, non-licensable and non-transferable license, without Territorial Restrictions, unless otherwise provided for in the STS, to use the Platform. This use can only be carried out for the activities permitted by GTC and STS. In particular, except as otherwise provided in the STS, the Partner will be able to access and use the Platform to publish the Units on Digital Media, upload Video Content, activate and manage a Video Campaign sales service, and have access to Panel features. The partner must use the Platform in accordance with the instructions provided by Gitberry, available on the Site or otherwise communicated to the Partner, by email or by telephone. All other rights not expressly provided for are reserved for Gitberry.

Gitberry agrees to make the Platform and the Units available to the Partners for the use of the services and in accordance with the provisions of these GTC and the STS, without prejudice to the right of suspending the access referred to in article 9.4.

Gitberry agrees to maintain and manage the Platform and the Site using the best experience available to ensure its efficiency. In particular, Gitberry agrees to monitor the normal and continuous operation of all the technical supports that are necessary for the delivery of the Services offered by Gitberry, limiting the interruptions, the suspensions, the malfunctions and any technical problem that may result from the use of the Platform, provided that the Platform and the Site are granted in use "as is" and without warranties of any kind. In this regard, Gitberry cannot be considered liable for any damage including, but not limited to, direct, indirect, consequential, special or incidental damages, or for any damage and/or anomalies that may occur and which are outside the technical control of Gitberry, such as, but not limited to, the management of telecommunication networks or malfunctions to the means that are necessary for the access to the Platform and the Site, or due to an improper use of them.

Furthermore, Gitberry will not be liable for damages that may result from using and/or not using the Site and/or the Platform and/or the Units and/or their proper operation, such as, but without limitation to, errors in the publication of the Video Content and/or of the Advertising Messages and/or errors related to the Unit's video player, computer viruses, omissions, disruption of the Services offered by Gitberry, and software failures, also damage to the Partner's computer equipment, which may prevent or delay the provision of the Services offered by Gitberry, if these are due to external causes, force majeure, and/or third parties.

Termination and express termination clause

The Parties may terminate this agreement at any time and for any reason, by giving written notice to the other party, via email, with an advance notice of at least 30 days.

The contract will be terminated immediately, when one of the following situations occurs:

1. If the Partner is declared bankrupt or if he/she requests to be eligible for a composition with creditors or receivership;
2. Dissolution, liquidation, sale, merger, transformation of the Partner;
3. Legal proceedings against the Partner that may compromise or damage the image or the commercial reputation of Gitberry;
4. If Gitberry has reason to believe that the Partner is using the Services in such a way to cause or be able to cause damage of any nature, including to the image and reputation, to Gitberry itself, without prejudice to the compensation for damages.

Limitations and exclusions of liability

Gitberry, in accordance with the current legislation, is only responsible for the damages of a contractual nature when they constitute an exclusive, immediate and direct consequence of behaviors determined by malicious intent or gross negligence in the context of the performance of the Services covered by these GTC.

In no event shall Gitberry or any other person be responsible for the creation or maintenance of the Services, be considered liable for any loss of profits to partners or third parties, that are caused by the use or by the inability to use the Services. The exclusion of liability provided herein will not be valid in the event of malicious intent or gross negligence by Gitberry.

Gitberry makes no guarantee to the accuracy, truthfulness, and completeness of the Advertising Messages by Advertisers and has no control over them, therefore it is intended that the Advertiser will be the only one responsible for the contents of the Advertising Message.

Furthermore, Gitberry does not offer any guarantee concerning the identity, legal capacity, seriousness of intent, or other characteristics of Advertisers; the quality, lawfulness and safety of the products and/or services in the Advertising Messages; the truthfulness and accuracy of the descriptions provided.

Gitberry does not offer any guarantee regarding results obtained through the use of the Services, and in particular, regarding the level of Impressions or clicks or views that will be generated by the Advertising Messages and the level of monetization of the Video Content.

Declarations and Warranties

The Partner declares to assume all responsibility for Digital Media and/or Video Content transmitted through the Platform.

The Partner hereby declares and guarantees:

1. that the Digital Media and/or Video Content will not have as the subject nor contain links to Prohibited Content, or otherwise messages that promote such Prohibited Content;
2. to not transmit through the Digital Media and/or the Video Content any virus, worms, trojans, malware or other cyber threat;
3. to be the exclusive owner, and/or to have valid consent or authorization from the owner, of the rights (including Intellectual Property Rights) of the Digital Media, Video Content and Advertising Messages;
4. to use the Services within the limits allowed by these GTC and STS, where applicable, in respect to the rights of others (including Intellectual Property Rights) and to the applicable law.

The Partner agrees to indemnify and release Gitberry from any liability (and its directors, representatives, agents, and employees) at any time and also after the termination of the contract, against any damages. This includes any legal fees or expenses of any other kind, and against any penalties that Gitberry was obliged to pay to third parties or to the competent Authorities and caused by the non-compliance, even partial, of the declarations in article 11.2 above, and to any other damages and expenses resulting from any other assumptions of responsibility related to Digital Media and/or Video Content transmitted through the Platform.

Gitberry may collect, use, and share anonymous information about Users who browse Digital Media and/or consume Video Content, with Advertisers or other third parties in order to create profiles and personalize Advertising Messages based on User preferences. The Partner acknowledges and accepts these aforementioned conditions.

The Partner acknowledges that the non-compliance with the foregoing Article 11.2, even if it refers to only one of the assumptions, constitutes a contractual breach and allows Gitberry to immediately terminate the contract according to article 9.2, without prejudice to compensation for damages.

Confidential information

The parties acknowledge that, as a result or for the effect of these GTC, each Party (Receiving Party) may receive from the other Party (Disclosing Party), or otherwise learn, in any form, confidential information.

In such cases, the Receiving Party will be obliged to (a) ensure the confidentiality of Confidential Information, (b) not publish, reveal and disclose Confidential Information to third parties, without the prior written consent of the Disclosing Party, (c) use the Confidential Information solely to fulfill the duties provided by these GTC.

The Partner also agrees to keep confidential and to not disclose to third parties (a) the identity of the Advertisers, (b) the performance and payments related to the Video Campaigns published on the Property and (c) his/her Account and Registration Credentials.

Confidential Information is not subject to the obligations provided for by this article if: (a) already in the Receiving Party's possession at the time the same information from the Disclosing Party was received, without any restriction for its use or disclosure, (b) if it is or becomes public domain as long as not resulting from a violation of the obligations provided in this article, (c) received by the Receiving Party from a third party other than the Disclosing Party, which is not bound by obligations of confidentiality and non-disclosure, (d) produced by the Receiving Party without any use of the Confidential Information of the Disclosing Party, (e) whose disclosure is imposed by the observance of provisions of law or regulations, or for the realization of a measure taken by public authority.

Each Party agrees to take all appropriate measures and precautions suitable to ensure the confidentiality of the Confidential Information, and to ensure that its employees, agents, representatives, and collaborators will follow the obligations provided for in this article.

Privacy

The Parties agree to operate in compliance with the applicable laws regarding the processing of personal data. Gitberry will make the Privacy and Cookie Policies available to the Partner, in the appropriate section of the Site, which constitute an integral and substantial part of these GTC. The Partner declares that he/she has read and accepted the above-mentioned policies.

The Partner agrees to insert its privacy policy and cookie policy in the Digital Media, with which it will inform the User about the use of profiling cookies installed by Gitberry and/or by the Advertisers and/or third parties.

During the Registration, the Media Partner may be required to give consent to receive commercial information, for example via newsletters, and to communicate data to third parties for their commercial information. In such cases, the Media Partner will be free to give consent or not.

Intellectual property rights

The Partner recognizes Gitberry’s intellectual property rights in its Services, the Platform and the Site and agrees to not modify, adapt, translate, decompile, decode, disassemble the Services, or otherwise attempt to extract the source code, or to not create or attempt to create a substitute or similar service or product through the use of or the access to the Services or proprietary and/or confidential information related to them.

Gitberry maintains the exclusive ownership of the name, logo, trademarks and distinctive brand elements of which it is the owner or licensee. The use by the Partner of these distinctive elements is permitted only after written permission granted by Gitberry to the Partner. Such authorization may in no way be considered as a trademark license or give any right to the Partner of the aforementioned brand elements. No provision in these GTC and STS will transfer the intellectual property rights of Gitberry to the Partner, nor can it be interpreted in this way. The Partner guarantees and agrees to not file, anywhere in the world, any application for the registration of intellectual property rights that are identical or similar or may be confused with the intellectual property rights of Gitberry. If the Partner becomes aware of acts of unfair competition and infringements of intellectual property rights made by third parties and damaging Gitberry, he/she must promptly inform Gitberry.

The Partner approves the use by Gitberry of his/her name, brand and logo in presentations, marketing materials, customer lists, financial reports, lists of customer websites, search results pages.

Each Party agrees to act, for the duration of these GTC and of the STS, in accordance with the applicable law related to copyright, and in particular, to not transmit, disclose, distribute, facilitate the distribution and circulation of copyrighted works, and to not promote the distribution of the same works, if not in possession of regular authorization. Each Party agrees to take all appropriate measures and precautions to ensure the safeguarding of trademarks and distinctive brand elements, agreeing to communicate to the other party any facts or information that he/she has learned that could tied to or considered at risk of possible trademark and/or brand infringement.

Information requirements

The Partner declares and acknowledges that Gitberry has complied with the information requirements of the Legislative Decree 70/2003. In particular, Gitberry makes available to the Partner the information required by the Legislative Decree 70/2003 on the Site and in the GTC. Gitberry also makes available to the Partner the present GTC on the Site, so that it is allowed to reproduce and save them.

Communications between the Parties

The parties agree that any communication between them will be via email, at legal@gitberry.com. unless otherwise agreed.

Miscellaneous provisions

These GTC, the STS, the introduction and the annexes constitute the entire Agreement between the Parties and supersede any prior agreements, whether written or oral, express or implied, unless otherwise desired. No modification or integration of these GTC and/or STS agreed between the parties will be effective and binding between them if not resulting from a written and signed agreement by the representatives of Gitberry and the Partners duly authorized for this.

The Partner may assign or transfer its rights or obligations resulting from the GTC only with the prior written permission of Gitberry.

If any provision of these GTC becomes illegal, invalid or otherwise unenforceable according to the law of any jurisdiction, this shall not affect the legality, validity or enforceability of any other provision of these GTC.

In no event shall these GTC provide for the creation of partnerships or fiduciary or agency relationships between the Parties. Nothing in these GTC may constitute or confer any right or other benefit in favor of third parties.

Clauses of specific approval pursuant to art. 1798 of the Civil Code

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