GENERAL TERMS AND CONDITIONS
The present General Terms and Conditions (“GC”), collectively with any and all Insertion Order and/or Order Form(s) (“IO“) shall constitute a binding agreement between the Tangoo S.r.l., with registered office in Milan, via Lentasio 9, 20122, VAT number 02143630685, in the person of its legal representative pro tempore (“Tangoo” or the “Company”) and the company indicated in the IO (“Client“) (Client and with Tangoo, the “Parties“). The GC, the related IO, and any further annexes, as well as any amendment and/or annex and/or addendum that is added or may be added to supplement or amend this Agreement, shall hereinafter be referred to as the “Agreement“.
In the event of any discrepancy or conflict between what is set forth in the GC and what is set forth in the IO or the other annexes, the following order of precedence shall apply: (1) IO; (2) GC; (3) the other annexes.
a) Tangoo is a company specialized in digital media, with a specific focus in paid media management, creativity, tech, data and analytics;
b) the Client has declared himself interested in the services offered by the Company, as better specified in the IO and any related attachment;
Considering the above, the Parties
agree and stipulate the following:
1.Object of the Agreement
1.1. With the Agreement, the Client assigns to the Company, which it accepts, the task of performing the services as defined and better described in the IO and the related attachments from time to time (the “Services“). It is in any case understood between the Parties that anything not expressly provided for in the IO, including but not limited to all services related and/or concerning to the Services, shall be deemed excluded from the Agreement and shall be subject to separate quotation as well as to a specific and different agreement to be governed by specific IO.
1.2. The CG shall apply to all IOs entered into between the Parties, without prejudice to Tangoo’s right to amend the CG. In this case, the new GC shall apply exclusively to the Services referred to in the IOs entered into subsequent to the communication of the new GC.
1.3. Each IO shall be agreed by Client and Tangoo and it will contain a detailed description of all Services to be provided from the latter. Any changes, cancellations or additions to the IO shall only be deemed valid if approved in writing by both Parties
2. Representations, warranties and obligations
2.1. For the entire duration of the Agreement, each Party represents and warrants that:
a) it has and will have all necessary rights and authority to enter into, and to perform its obligations under, this Agreement;
b) performance under this Agreement will not violate any applicable law or regulation nor any other agreement or terms of service to which it is a party or by which it is bound.
Without limiting either Party’s obligations under this Agreement, each Party will maintain technical and organizational measures to ensure, appropriate to the nature of its personal data, security of such personal data, including, without limitation, protection against unauthorized or unlawful processing and against accidental loss, destruction or damage.
2.2. For the entire duration of the Agreement, the Company’s undertakes:
a) will provide the Services with due diligence and as set forth in the IO and in the GC;
b) to use qualified and competent personnel with reference to the Services;
2.3. For the entire duration of the Agreement, the Client represents and warrants that:
a) all of the information Client has provided and shall in the future provide to Tangoo is accurate and current;
b) it will ensure full cooperation to Tangoo by making available to it all information that Tangoo deems necessary for each type of Service and, more generally, for the performance of the Agreement;
c) it has all necessary and legal rights, powers, and authority to accept and be bound, and to bound any subject on his behalf, by these Agreement and to perform the acts required of Client hereunder;
d) it is in compliance with all applicable laws and regulations and with Privacy Law (as defined below). For that purpose, the Client shall implement all necessary measures to ensure compliance on its behalf;
e) in the event that the Services relate to the provision of advertising campaigns on behalf, directly and/or indirectly, of the Client, the latter expressly undertakes and declares: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the ads shall not include, and does not give access via hyperlinks to any property containing, materials that are obscene, defamatory or contrary to any applicable law; (iii) the ads shall comply at all times with laws and regulations in all jurisdictions where ads and sites are viewed; (iv) the ads shall not display, reference, link to, or endorse any content that violates this Agreement or any applicable law; (v) the ads shall not infringe or misappropriate the rights of any third party; (vi) the ads shall be compliant to any applicable advertising law, including self-regulation;
f) the Client will comply with all requirements for use of the Services communicated by Tangoo to Client, and acknowledges that absent such compliance, Tangoo may be unable to provide the Services to Client. Depending on the Services Client chooses to receive, technical requirements may include: including tags, pixels, script, or code supplied by Tangoo on Client’s ads. Tangoo will have no liability to Client for such inability to provide the Services, if such inability is a result of Client’s failure to comply with this Section or the applicable laws, including Privacy Law.
3.1. The Agreement shall commence from the date of its signature and shall cease to be effective on the date expressly indicated in the IO and/or in any case upon completion of the activities covered by the IO.
3.2.Each Parties may have the right of withdrawal from the Agreement at any time and for any reason by 30 (thirty) days prior written notice to the other Part. This is without prejudice to Tangoo’s right to obtain, from the Client, the fees agreed in the IO and already accrued and not yet paid, as well as reimbursement for all expenses incurred and commitments from which Tangoo can no longer withdraw at the time of termination of the Agreement.
4.1. The Client shall pay Tangoo the Fee indicated by Tangoo for the Services, accordingly to the prices agreed with each IO.
4.2. For certain payment methods, the issuer of Client’s payment method may charge Client a foreign transaction fee or other charges. The Client should check with the payment method service provider for details. If the Client develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or Tangoo otherwise designates Client as a credit risk, Tangoo reserves the right to require prepayment. The Client agrees to maintain sufficient funds or credit availability in Client’s payment method to satisfy Advertiser’s amounts due and that Tangoo will have no obligation to provide the Services if sufficient funds are not available at the time Client’s payment is submitted, and Tangoo reserves the right to suspend the Service due to failed payments or insufficient balance.
4.3. The Client acknowledges and accepts that Tangoo shall have the right to suspend all Services, including ongoing Services, if the delay in payment by the Client exceeds 30 (thirty) business days from the date stipulated for the same in the IO.
4.4. All payments to Tangoo will be made in Euro, unless otherwise agreed to in an IO. Payments are quoted exclusive of any taxes. The Client is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon Tangoo’s net income.
5. Intellectual property rights
5.1. Exclusively for the purposes and for the duration of the Agreement, each Party authorizes the other Party to use the trademarks and/or any additional material covered by intellectual and industrial property rights owned exclusively by the Party and/or otherwise licensed to the same in connection with the Services, it being understood that such rights shall remain the exclusive property of the Party owning and/or otherwise exclusively licensed to the same.
5.2.The Parties acknowledge the validity of the intellectual and industrial property rights owned exclusively by the other Party and/or licensed to the same and hereby undertake not to file, register or otherwise use any distinctive sign or material that is identical or similar, and not to contest their validity in any way.
5.3. Upon termination of the effectiveness of the Agreement for any reason, the parties agree to deliver to the owning party all materials containing intellectual and industrial property rights owned by such party and/or otherwise licensed by such party in connection with the Services.
6. Privacy and ADV Services Accounts
6.1. Privacy clause. For the purpose of this article, for “Privacy Law” it is intended the EU Regulation 2016/679, dated 27 April 2016 (the “Regulation”), as well as any other regulation concerning the protection of personal data, already in force or which will be in force following the undersigning of this Agreement, including the provisions of the competent data protection authorities issued pursuant to the Regulation.
Pursuant to and for the purposes of the provisions of Article 13 of the Agreement, Tangoo, as Data Controller, informs the Client that all personal data supplied directly by the Client or in the possession of which Tangoo comes for the performance of the Agreement and in any case connected with the Agreement itself, relating to its staff or collaborators or third parties, will be processed, whether automated or not, exclusively for management and administrative purposes relating to the fulfilment of contractual and legislative obligations. The communication of data is necessary for the fulfilment of the aforementioned purposes and in default it will not be possible to realize them in whole or in part. The personal data will be used by Tangoo only through methods and procedures which are necessary to achieve the indicated purposes.
Tangoo informs the Client, in relation to the processing of personal data described in this article 6.1, that the data subjects shall have the right to access, delete, rectify, update, have incomplete data completed, object to the processing of personal data, as well as all the other rights granted by the Regulation, by means of a written request to the Data Controller. To obtain further information in relation to Tangoo’s processing of personal data, please contact the Data Controller at the contact details listed in the heading of this Agreement or consult the privacy notice on the Data Controller’s website: [https://www.tangoomedia.com/website_privacypolicy/]
6.2. ADV Services: privacy obligations and warranties. In case the Services shall require Tangoo to access Client’s already existing accounts on digital marketing platforms, software and services like, by way of example but not limited to, analytics tools and other tools related to programmatic advertising (together, the “ADV Services”) the Client recognizes and accepts that Tangoo shall act, regarding personal data processed via the ADV Services on behalf of the Client, as Data Processor in accordance with article 28 of the Regulation and the Data Processing Agreement (“DPA”) attached to this Agreement shall apply.
6.3. Tangoo shall, during the Term, support and facilitate Client in the activation of an account on new Adv Services needed for the execution of the Services. If requested by Client and agreed between the Parties, Tangoo undertakes to open such new accounts on behalf of Client (the “New Accounts”) acting on the basis of a specific mandate that Client grants to Tangoo by signing this Agreement, it being understood that: (a) where technically feasible, Tangoo shall procure that New Accounts are directly headed to and/or owned by and/or licensed to Client and such New Accounts shall remain headed to and/or owned by and/or licensed to Client upon termination of this Agreement; (b) where not technically feasible, New Accounts shall be headed to and/or owned by and/or licensed to Tangoo and remain segregated from those of other Tangoo’s customers, provided that Tangoo shall use reasonable endeavours to transfer them to Client upon termination of this Agreement; and (c) Tangoo shall manage New Accounts under letter (b) above on Client’s instructions during the Term. Client expressly acknowledges and agrees that: (a) in any case, Tangoo shall act solely as a mere intermediary for any activity and/or the signing/acceptance of any document and/or ancillary agreement or act to be entered into in connection with the New Accounts, including any data processing agreement provided by the ADV Services. Client shall be therefore responsible for autonomously assessing its relationship with any Service in connection with the New Accounts pursuant to, inter alia, the Privacy Law and according to the circumstances of the concrete case, and undertakes to enter into any data processing agreement or similar agreements with the ADV Services, in relation to the New Accounts, possibly provided by Tangoo on Client’s behalf, thanks to Tangoo’s intermediation activity, as well as to accept any general and/or special terms and conditions of such ADV Service; and (b) the provisions of this article 6.3 shall apply, mutatis mutandis, to any insertion order and/or order form to be entered into by Tangoo for Client’s Services upon Client’s request and involving ADV Services that do not require the activation of accounts.
6.4. Client acknowledges and agrees that Tangoo does not autonomously collect and/or process any Personal Data in connection with the activities to be performed under this Agreement. Therefore, Client shall prevent the transfer of any such Personal Data to Tangoo and warrants that: (a) the information shared with Tangoo for the purpose of the Services will not contain any personal data; and (b) Client shall not commit any act or omit to act in a way which places or is likely to place Tangoo in breach of Privacy Law. Without prejudice to the foregoing: (a) Client acknowledges and agrees that the ADV Services may autonomously collect personal data on Client’s digital properties (“Client Properties”) through their respective tracking tools and undertakes to comply with all the provisions of the Privacy Law to allow the correct use of ADV Services’ tracking tools on Client Properties; and (b) should the information shared by the Client include any personal data (e.g., online identifier, IP address, user device ID, customer identification location, etc.), Client is – or shall be regarded as – the Data Controller of such personal data and Tangoo is – or shall be regarded as – the Data Processor of such personal data in accordance with Article 28 of the Regulation and the attached DPA. In this respect, Client shall ensure that the processing operations are performed only in the EEA or in a third country that, according to the European Commission, ensures an adequate level of data protection or, in alternative, shall provide for the processing to be covered by adequate guarantees in this regard (e.g., execution of standard clauses for the transfer of personal data, etc.). The processing activities will take place only for the Term and in connection with the activities to be performed under this Agreement. Tangoo shall comply, to this regard, with the instruction provided by the Client in the DPA and any additional document or mean. Tangoo acknowledges and agrees that the activity under this article 6.4 does not provide for any additional compensation to Tangoo beyond that already agreed in this Agreement. Client by signing this Agreement declares that (a) the processing of Client Personal Data is carried out in accordance with Privacy Law ,(b) that any required consents have been obtained, and any notices served, to data subjects to ensure that Tangoo has all required rights to process personal data via the ADV Services, and that (c) any processing by Tangoo of the personal data processed via the ADV Services as envisaged in this Agreement will comply with Privacy Law.
7.1. As part of the negotiation and execution of the Agreement, the Parties shall become aware of trade secrets and/or confidential information and/or material subject to intellectual and industrial property rights relating to and/or in any case connected to the activities of both Parties, including, but not limited to, information concerning the Tangoo technologies, materials relating to the Services, presentations, business plans and/or marketing plans and information concerning research and development and/or technical information and/or trade secrets described, disclosed and/or provided, verbally and/or by means of presentations and/or in writing, in any type of format regardless of whether or not such information is marked and/or expressly indicated as “Restricted” or “Confidential” (hereinafter, the “Confidential Information”). Without limiting the foregoing, Confidential Information includes the content of the Agreement and any Confidential Information disclosed prior to signing the Agreement.
7.2. Without prejudice to what is elsewhere provided for in this article, with reference to the Agreement, the Parties agree that the full text thereof may not be disclosed and/or shown to any third party, without prejudice to the legal advisors and any auditing firms appointed by each Party during the period prior to the signing of the Agreement.
7.3. Each Part shall not disclose or communicate in any way (or cause to be disclosed or communicated in any way) any Confidential Information to any third party, except to the Parties and persons to whom the owner of the Confidential Information has given prior written consent to disclose the Confidential Information. Without prejudice to this prohibition, where disclosure is authorised, each Part shall at all times and in an appropriate manner communicate that such disclosure is made in strict confidence and that Confidential Information shall be kept as such in accordance with the Agreement. The Part receiving the Confidential Information referred to in this article shall be responsible for any unauthorised disclosure or use of the Confidential Information outside the activities referred to in the Agreement and for purposes and/or objectives other than those referred to in the Agreement.
7.4. Each Part shall take all measures, actions and precautions reasonably necessary to ensure that none of the Confidential Information is disclosed or communicated in any way to third parties other than as provided for in the Agreement and/or necessary for the purposes and/or objectives set forth in the Agreement.
7.5. The commitments referred to in this article shall survive the term and shall remain in force for a minimum period of 5 (five) years and, in any event, for as long as the Confidential Information remains available and under the control of the Part holding it and the possibility of protection remains under applicable law.
7.6. Notwithstanding the foregoing, in case of violation or attempted violation of this Article 4, Tangoo shall be entitled to claim a penalty equal to 3 (three) times the consideration set forth in the IO from the Client, without prejudice to compensation for the greater damages.
8.1. The Client undertakes to indemnify and hold Tangoo and its third-party suppliers of services directly connected to the Services harmless against any damage, charge, costs, expenses (including legal), credit claim, compensation, indemnity and/or sanction deriving from any violation that is directly or indirectly connected to the Agreement. This includes, but is not limited to, breach of the Agreement and/or violations concerning third-party rights and/or any applicable legislation, including legislation on advertising and unfair competition relating to any materials supplied to Tangoo by the Client, the Client’s advertising campaigns connected to the Services, properties, the use of any Tangoo technology connected to the Services that does not comply with the provisions on the Order Form and any breaches of contracts that are identical or similar to the Agreement that conflict with the provisions of the Agreement.
9. Assignment of the Agreement
9.1. Neither Part may assign any rights or obligations under the Agreement without the prior written consent of the other Part.
10.1. Without prejudice to the right to claim damages, the Tangoo may terminate this Agreement pursuant to and for the purposes of Article 1456 of the Italian Civil Code, by notifying the Client via certified email that it wishes to avail itself of this express termination clause, if the Client violates any of the following clauses: 2.3 (“Representations, warranties and obligations” – more specifically, Representations, warranties and obligations of the Client); 4. (“Fees”); 6.2-6.4 (“Privacy and Adv Services” – more specifically, ADV Services: privacy obligations and warranties); 7. (“Confidentiality”); 9.5. (“Intellectual Property Rights”).
10.2. In any case, Tangoo’s right to obtain the payment of the fees set out in the IO and the reimbursement of all expenses already incurred until the actual termination of the Agreement from the Client remains unaffected.
11. General provisions
11.1. This Agreement is the complete and exclusive statement of the agreement between the Parties relating to the subject matter of this Agreement, which supersedes all previous communications, agreements and other arrangements, written or oral. It is expressly agreed that no variation of this Agreement shall be effective unless in writing and signed by both Parties.
11.2. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all previous agreements, negotiations, declarations and proposals, whether written or oral, between the Parties.
11.3. The Parties agree they are independent contractors to each other in performing their respective obligations hereunder. Nothing in this Agreement shall be interpreted for working relationship being established, nor shall it cause, the Parties to be treated as partners, joint ventures, or otherwise as joint associates for profit.
11.4. Except as otherwise provided herein, the failure of either Party to enforce at any time the provisions of this Agreement shall not be constituted to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter.
11.5. If any provision of this Agreement is held invalid or unenforceable at law, such provision shall be deemed stricken from this Agreement and the reminder of this Agreement shall continue in effect and be valid and enforceable to the fullest extent permitted by applicable law.
12. Governing law and jurisdiction
12.1. This Agreement shall be governed by and construed in accordance with the Italian Law.
12.2. Each party irrevocably agreed to submit to the exclusive jurisdiction of the Court of Milan over any claim or matter arising under or in connection with this Agreement.