1. General Provisions
2. Terms and conditions regarding the provision of Product Listing Services
3. Terms and Conditions regarding the provision of Ad Services
4. Liability of Stylight
5. Set-Off, Right of Retention, Assignment
6. Confidentiality; Press Releases
7. Stylight Intellectual Property
1. General Provisions
1.1. Stylight Inc., a Delaware corporation and subsidiary of Stylight GmbH, a German company, together with its parents, subsidiaries, affiliates, successors, and assigns (“Stylight”) owns and operates an online fashion and lifestyle platform located at www.stylight.com and including www.stylight.ca and www.stylight.com.mx, and related mobile applications (the “Site).
1.2. Stylight provides consumers (the “Users”) with free information relating to the products and services provided for purchase from third-party merchants (the “Product Listing Partner”) on the Site — as the Product Listing Partners does with its own shop website (the “Partner Shop”). Each Product Listing Partner submits to Stylight certain product information and data, including, but not limited to, links, product titles and descriptions, product photos, category terms, and other product-related text andd images (the “Partner Data”), in order to present its products on the Site and to generate User engagement on the Site, which results in the referral of Users to the Partner Shop (the “Product Listing Services”). In addition, Stylight provides Advertising Media, as defined in Section 3.1.3, on the Site (the “Ad Services” and, collectively with Product Listing Services, the “Services”) to Ad Services Partners, as defined in Section 3.1.4. Product Listing Partners and Ad Services Partners are hereinafter referred to collectively as “Partner” or “Partners” – however, these terms do not imply a legal partnership between the entities which remain independent contractors.
1.4. Stylight reserves the right to amend this Agreement, except for (a) changes to essential terms of this Agreement, such as the agreed compensation or the scope of the Services, which can only be amended to the extent described under Section 1.7 below, and (b) retroactive changes to terms and conditions unless they are mandatory for compliance with legal or regulatory obligations or are not beneficial for the Partner.
1.5. Stylight shall provide written notice to the Partner of any proposed changes (“Notice”) and the medium therefor may be electronic. The proposed changes shall not be implemented before the expiration of a notice period of a minimum of 15 days from the Notice (“Notice Period”). The Partner may terminate this Agreement before the expiration of the Notice Period. Such termination shall take effect within 15 days from the receipt of the Notice, unless a shorter period applies to this Agreement.
1.6. The Partner may, either by means of a written statement or a clear affirmative action, waive the Notice Period at any moment from the receipt of the Notice. During the Notice Period, actively submitting new goods or services to the online intermediation services shall be considered clear affirmative action to waive the Notice Period, except in cases where the reasonable and proportionate Notice Period is longer than 15 days because the changes to the Terms require the Partner to make significant technical adjustments to the goods or services. In such cases, the Notice Period shall not be considered automatically waived when the Partner submits new goods and services.
1.7. Stylight reserves the right to reasonably expand, improve, or otherwise modify the Services where necessary for justified and legitimate business interests, in particular to add additional portals or categories for product presentations, to change the existing Services or to make improvements if and to the extent that this is necessary for a valid reason which could not be foreseen at the time of conclusion of this Agreement and provided that this change does not shift the relationship between performance and consideration to the disadvantage of the Partner. Such valid reasons shall include new technical developments that make a change in performance necessary or newly enacted or amended law, whether it be by statute or judicial judgment, that requires a change of the Services. Stylight shall notify the Partner in writing of any changes to the contractually agreed services at least four (4) weeks before they are scheduled to take effect (“Notification of Changes”). In the case of changes which are not exclusively in the Partner’s favor, the Partner may terminate this Agreement in writing, including by electronic means, without observing a period of notice at the time the changes take effect. Changes to the Services shall be deemed to have been approved if the Partner does not object to them by the time they take effect. Stylight shall inform the Partner about this legal consequence in the Notification of Changes.
2. Terms and conditions regarding the provision of Product Listing Services
2.1. Scope of Product Listing Services
2.1.1. Stylight provides the Product Listing Services to facilitate the integration of Partner Data into the Site database in order to allow Users to access the Partner Data under the market categories agreed to by the Product Listing Partner in the Insertion Order (the “Vertical”). The current Verticals offered by Stylight are “Fashion” (e.g., men and women’s clothes, shoes, accessories), “Home & Living” (e.g., furniture, lamps, living accessories), and “Beauty” (e.g., cosmetics, cosmetic products). Stylight may create other and/or new Verticals at its sole discretion. Where a User clicks on any Partner Data displayed on the Site, such click will result in a transfer of the User to the respective Partner Shop (hereinafter the “Click”).
2.1.2. Stylight may provide marketing services or may commission third parties in order to fulfill the marketing objectives of the Product Listing Partner. These marketing services may be placed on the Site or provided in other online and offline formats. Such formats include editorial magazines and blogs, social media platforms (e.g., Instagram and Facebook), on the websites of cooperation partners and affiliate partners, or by integration in search engines (e.g., Google Shopping) and keyword advertising programs through deep links.
2.1.3. Stylight, in its sole discretion, shall be free to determine the scope, form, and manner in which any Partner Data will be presented on the Site, and is under no obligation to ensure that Partner Data will be presented on the Site in any particular form or manner. The Product Listing Partner hereby acknowledges and agrees that Stylight shall have no liability whatsoever in connection with any Partner Data, including, but not limited to, in the event the presentation of the Partner Data on the Site does not meet the Product Listing Partner’s expectation. Unless otherwise specified in this Agreement, Stylight agrees not to change, alter, or create derivative works of Partner Data without the Product Listing Partner’s prior written consent, unless this is necessary for Stylight to provide the Product Listing Services pursuant to this Agreement.
2.1.4. Stylight reserves the right to impose certain restrictions that will be communicated to the Product Listing Partner upon the conclusion of this Agreement, in particular with regard to file formats, file sizes and quality, product categories, product details (including, but not limited to, brand, title, description, prices, deep link, item group ID, color and other technical requirements), and is not obligated to integrate and present Partner Data on the Site if the products or their presentation do not fit into the product portfolio supported by Stylight and/or Stylight’s consumer group.
2.1.5. Stylight is under no obligation to provide an uninterrupted or error-free availability of the Site. However, Stylight endeavors to provide the Product Listing Services with only limited downtimes to generally achieve an overall availability of the Product Listing Services of no less than 99.9% of time per calendar month (the “Uptime Availability”). Any interruptions of the Product Listing Services due to reasons beyond the reasonable control of Stylight (e.g., government intervention, Acts of God or events of force majeure) shall not be considered a downtime that will reduce the overall Uptime Availability of the Product Listing Services. In the event Stylight fails in its reasonable endeavors to provide the Product Listing Services with the intended Uptime Availability during a given calendar month, and where, as a result of such failure, the Product Listing Partner will be under an obligation to pay a Minimum Spend (as defined in Section 2.3.2) for such month (for illustration, when the number of Clicks generated during a particular month does not amount to the agreed thresholds), the Product Listing Partner shall be entitled to reduce the Minimum Spend on a pro-rata basis in relation to the respective deviation from the intended Uptime Availability of the Product Listing Services during such month.
2.1.6. In addition to the Products Listing Services, Stylight may, at its sole discretion, provide the Product Listing Partner with access to the Stylight Tool, as defined and further set out in Sections 2.3.5 to 2.3.7.
2.2. Obligations of the Product Listing Partner
2.2.1. The Product Listing Partner is solely liable for the offer, selling, and processing of orders in relation to users of its Partner Shop. With regard to orders placed on or via the Partner Shop, and any related website, the contractual relationship is exclusively concluded between the user and the Product Listing Partner. Stylight is not, and shall not be deemed, party to any such contractual relationship.
2.2.2. The Product Listing Partner shall provide Stylight with accurate Partner Data relating to all products available on or via its Partner Shop, provided such products can be integrated into the agreed Verticals of the Site. Notwithstanding the foregoing, the parties may mutually agree that the Product Listing Partner shall only provide an agreed selection of the available Partner Data. Unless otherwise specified in this Agreement, Product Listing Partner shall provide the Partner Data to Stylight within five (5) working days after Stylight’s request. In the event the Product Listing Partner updates its Partner Data, the Product Listing Partner shall immediately provide Stylight with such updated Partner Data. For clarification purposes, Stylight assumes no liability for any improper implementation of Partner Data that results from or is related to inaccurate, delayed provided and/or outdated Partner Data.
2.2.3. The Product Listing Partner hereby represents, warrants, and covenants to Stylight that:
18.104.22.168. The Product Listing Partner shall at all times operate its Partner Shop and respective website in accordance with all federal, state, local, and international laws, rules, regulations, ordinances, court orders, and other legal processes applicable to Stylight and its business, including, but not limited to, the Site and Services (the “Applicable Laws”); and
22.214.171.124. the Product Listing Partner shall further ensure that that the Partner Shop and all Partner Data submitted to Stylight do not violate applicable law or any rights of third parties (e.g., personality, privacy or moral rights, rights to names and characters, copyrights and neighboring rights, trademarks, trade secrets, design and patent rights).
2.2.4. The Product Listing Partner represents, warrants, and covenants to Stylight that its Partner Shop and/or Product Data does not contain false, misleading or objectionable content, including, but not limited to, content that is obscene; contains excessive advertisements; is defamatory, libelous, threatening, violent, hate-oriented, or illegal; promotes illegal activities or goods; and does not contain viruses, worms, spyware, malware, Trojan horses, backdoors, or other harmful, malicious or destructive code.
2.2.5. In the event of a suspected or actual violation of Applicable Laws or third-party rights resulting from Stylight’s contractual use of the Partner Data for the purpose of providing the Product Listing Services, the Product Listing Partner must notify Stylight immediately and ensure that the respective Partner Data will no longer be submitted to Stylight. This notification shall not affect any rights or potential claims Stylight may have against the Product Listing Partner as a result of such violation of law or third-party rights arising from Stylight’s contractual use of the Partner Data for the purpose of providing the Product Listing Services. The Product Listing Partner agrees to indemnify, defend, and hold harmless Stylight from any costs, claims, or damages (including reasonable costs of legal defense) resulting from any such violation of Applicable Laws or third-party rights.
2.2.6. In the event that Stylight receives knowledge that the Partner Shop, any related website, or the Partner Data violates Applicable Laws or any third-party rights, or in the event there is a reasonable suspicion of such violation, Stylight reserves the right to remove the respective Partner Data from the Site and to block access to it. The Product Listing Partner acknowledges and agrees that the blocking of access may apply to the Product Listing Partner’s entire range of products (as presented on the Site) if the violating Partner Data detail cannot be identified and isolated with absolute certainty. In the event of a reasonable fear of potential harm to Users, Stylight may take such action without prior notification of Partner.
2.2.7. The Product Listing Partner will be afforded by Stylight the opportunity to clarify the facts leading to such action and may demonstrate to Stylight that the Partner Data provided is legally unobjectionable and contractually compliant. As soon as these criteria have been established, Stylight will reverse its action in order to afford full access to the compliant products on the Site whereupon Stylight shall be relieved of any further obligation and liability resulting from, or related to, such action, and Partner is deemed to have fully released Stylight from any conceivable obligation and liability resulting from, or related to, such action.
2.2.8 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE PRODUCT LISTING PARTNER HEREBY ACKNOWLEDGES AND AGREES THAT THE PRODUCT LISTING PARTNER IS SOLELY LIABLE FOR THE OFFER, SELLING, AND PROCESSING OF ORDERS WITH REGARD TO USERS OF ITS PARTNER SHOP THAT ORIGINATE FROM THE STYLIGHT SITE OR SERVICES. WITH REGARD TO ORDERS PLACED ON OR VIA THE PARTNER SHOP, AND ANY RELATED WEBSITE BY USERS FROM THE STYLIGHT SITE, THE CONTRACTUAL RELATIONSHIP IS EXCLUSIVELY BETWEEN THE USER AND THE PRODUCT LISTING PARTNER, AND STYLIGHT SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY SUCH CONTRACTUAL RELATIONSHIP BETWEEN THE PRODUCT LISTING PARTNER AND THE USER.
2.3. Compensation and Billing
2.3.1. The compensation to be paid by the Product Listing Partner for the Product Listing Services is set out in Section I. of the Insertion Order. In addition to compensation for the Services, the Product Listing Partner shall also be responsible for any and all taxes, including, but not limited to, federal, state, and local taxes that are applicable to Stylight (with the exception of those taxes solely pertaining to Stylight’s revenue).
2.3.2. Stylight shall invoice the Product Listing Partner monthly. The Product Listing Services will be invoiced on the basis of the number of actual Clicks generated during the respective invoice period in accordance with the amounts agreed in the Insertion Order for the selected Vertical(s), Site(s) and device categories. Where the parties have agreed on a minimum spending and where the number of Clicks generated does not amount to the agreed thresholds (the “Minimum Spend”), the Product Listing Partner shall pay Stylight at least the agreed Minimum Spend.
2.3.3. The Product Listing Partner need not pay the Minimum Spend where it can prove that the agreed thresholds have not been achieved due to Stylight’s failure or unjustified refusal to appropriately integrate and present the Partner Data into the agreed Verticals of the Site in accordance with this Agreement. For the avoidance of doubt: This exception does not affect Stylight’s rights in the event of Product Listing Partner’s failure to comply with the standards stated in Section 2.1.4.
2.3.4. Stylight will issue invoices to Product Listing Partner setting forth the number of Clicks generated during the relevant invoice period. The compensation is due and payable after receipt of the invoice and to be paid within thirty (30) days from receipt of the invoice.
2.3.5. Stylight will ascertain the invoiced number of Clicks for the invoices, in accordance with Sections 2.3.2 to 2.3.4 above, solely by means of its analysis and reporting tool (the “Stylight Tool”), which receives the relevant data from the Site database. Stylight does not take into account the results of other web analysis tools such as Google Analytics or tools from other affiliate networks, such as Rakuten, because the calculation parameters may vary among different tools.
2.3.6. Once the Product Listing Services for the Product Listing Partner are set up and active, the Product Listing Partner shall receive access to the Stylight Tool and may view the number of Clicks established by this tool at any time. Unless Stylight receives an objection from the Product Listing Partner after publication of the relevant numbers by the Stylight Tool, such objection being raised no later than two (2) weeks after receipt of the corresponding invoice, the number of Clicks listed in the Stylight Tool shall be deemed accepted.
2.3.7. If the Product Listing Partner raises a valid objection in accordance with Section 2.3.6 above, Stylight may obtain an expert opinion by an acknowledged and independent expert selected by Stylight. Such opinion will be binding on both parties. Stylight may suspend the provision of the Product Listing Services from the point in time of the objection until its prompt evaluation after the receipt of the expert opinion.
2.3.8. Payments must be made to the following bank account (or to the account details indicated on the invoice):
SILICON VALLEY BANK
Account Number: 3301241921
Routing/ABA Number: 121140399
SWIFT ID: SVBKUS6S
FOR CREDIT TO:
1900 Market Street, 8th Floor
Philadelphia, PA 19103
2.4. Grant of License and Rights of Use, Indemnification
2.4.1. With regard to the Partner Data provided to Stylight under this Agreement, the Product Listing Partner grants to Stylight for the duration of this Agreement the non-exclusive, world-wide, royalty-free, unrestricted, transferable, terminable and sublicenseable license and rights to use the Partner Data—in whole or in part at Stylight’s discretion—for all known and unknown forms of use for the following purposes:
126.96.36.199. to perform the Product Listing Services under this Agreement; in particular, Stylight shall be entitled to modify, copy, distribute, make publicly available, broadcast, and publicly communicate the Partner Data for performing the Product Listing Services under this Agreement, including as necessary to integrate, display, and publish the Partner Data on the Site, other websites of Stylight, and other online advertising platforms used by Stylight;
188.8.131.52. at Stylight’s sole expense and discretion, to advertise Stylight’s Product Listing Services, the Site, and the Partner Data; in particular, Stylight may use the Partner Data and the content comprised in the data for any form of advertising for Stylight’s Product Listing Services, the Site and/or the Partner Data, in unchanged or modified form (without changing the content of the Partner Data), in own and third party online platforms, at paid placement providers (e.g., Google, Yahoo), on social media platforms (e.g., Facebook, Twitter), on posters, in brochures, advertisements, in picture/film or sound carriers, advertising spots, advertising banners, online advertisements, demo versions, multimedia shows, test versions or other media ad services for advertising purposes. Only Stylight and its affiliated companies shall be entitled to any receipts of compensation resulting from such advertising. Prospective customers generated by the advertising may be directed to the Stylight Product Listing Services on the Site or immediately to the product URL provided as part of the Partner Data;
184.108.40.206. to use the Partner Data and its elements for market research purposes; in particular, Stylight shall be entitled to modify, copy, distribute, make publicly available, or otherwise use the Partner Data, and to provide it to market research studies for their purposes.
2.4.2. To the extent necessary for the purposes outlined in Section 2.4.1, Stylight may adapt, alter and otherwise modify the Partner Data (without changing the content of the Partner Data) and archive, copy and store anywhere the Partner Data on any medium or database.
2.4.3. This license and grant of rights according to Section 2.4.1 authorizes Stylight to exercise the rights by itself or have the rights exercised by third-party contractors acting on behalf of Stylight.
2.4.4. The license and grant of rights under this Section 2.4 does not affect the right of the Product Listing Partner to continue to freely dispose of the Partner Data, provided that the rights granted to Stylight under this Section 2.4 remain unaffected. In particular, the Product Listing Partner remains entitled to grant non-exclusive licenses to the Partner Data to any other business partners.
2.4.5. In case of a violation of (i) any of the terms of this Agreement, including any violation of Partner’s representations, warranties, covenants, or obligations hereunder; (ii) any Applicable Laws; or (iii) any third-party rights resulting from Stylight’s use of the Partner Data provided to Stylight in accordance with this Agreement, the Product Listing Partner shall be fully liable towards Stylight and agrees to indemnify, defend, and hold harmless Stylight from and against all claims, liabilities, loses, costs, or damages, including reasonable costs of legal defense, in relation to any such violation of law or third-party rights.
2.5. Term and Termination
2.5.1. Except as otherwise specified in these Terms or as agreed to by the parties in the Insertion Order, this Agreement shall run for an indefinite term and continue until terminated by either party giving four (4) weeks prior written notice, by electronic or other means, to terminate to the other party. The notice period shall commence on the date of receipt of such written notice.
2.5.2. In the event the Product Listing Partner has terminated this Agreement pursuant to Section 2.5.1, the Product Listing Partner will not reduce product count or change its product spending during the remaining duration of this Agreement.
2.5.3. Either of the parties to this Agreement may terminate this Agreement in writing, by electronic or other means, with immediate effect for cause. Cause shall constitute, in particular:
220.127.116.11. the Product Listing Partner’s behavior that materially jeopardizes existing contractual relationships with other Product Listing Partners of Stylight;
18.104.22.168. the Product Listing Partner’s default of payment of the compensation under this Agreement for two (2) consecutive invoice periods, provided that Stylight will allow the Product Listing Partner an opportunity to cure the payment default within 5 (five) business days during which period in its sole discretion Stylight may take any and all Product Listing Partner’s material offline and make it unavailable to third parties; or
22.214.171.124. the Partner Data materially violates any terms of this Agreement, Applicable Laws or third-party rights.
2.6.1. Stylight’s Product Listing Services may be ranked according to various factors and may be subject to User settings during a User’s search. Ranking criteria may include the amount of compensation paid by the Product Listing Partners, the popularity of the product among users, quality and completeness of the product information provided by the Product Listing Partner, anticipated click-out generated sales, and budget goals.
126.96.36.199. The weighing of these criteria is carried out in the order in which they are listed above in Section 2.6.1, whereby the criteria for compensation paid by the Product Listing Partner and popularity of the product with Users are of particular importance for the placement of the Partner Data in the ranking.
3. Terms and Conditions regarding the provision of Ad Services
3.1. Definitions and contractual conditions
3.1.1. “Advertising objective,” within the meaning of these Ad Services Terms, is the agreement between the parties about the placement of one or more advertising objectives in information and communication services, especially the Internet, with the aim of distribution via Stylight.
3.1.2. “Advertising Efforts” are all services offered by Stylight concerning “Advertising Media” as well as any other services.
3.1.3. “Advertising Media” may be one or more of the following elements: a picture and/or text; tone sequences and/or moving images (e.g. banner, video) a sensitive screen, which, after a click on it, creates the connection to further data, which have been provided by the Ad Services Partner via an online address. These data are within the sphere of the Ad Services Partner (e.g., a link). Advertising Media will be clearly indicated as advertisement.
188.8.131.52. “Ad Services Partner” of Stylight is the immediate contract partner, i.e. either an Agency or an advertiser who concludes advertising contracts directly with Stylight.
184.108.40.206. “Agency or Agencies” are placement agencies, which conclude advertising contracts in their own name and on their own expense. The Agency is responsible for the contractual relationship with the advertiser, especially regarding pricing, invoicing and other conditions. There is no contractual relationship between the advertiser and Stylight.
3.1.4. Should the Agency act as representative for the advertiser, the Agency must inform Stylight of the representation in writing when it places advertising objects, by naming the advertising Ad Services Partner. If this information is withheld, the contract shall be deemed concluded on the Agency’s own behalf which shall be liable to Stylight for its performance.
3.2. Conclusion of Contract
3.2.1. Once Stylight confirms a Partner’s Advertising Insertion Order, the contract becomes effective and binding. Stylight shall issue its confirmation in writing, which may be electronic or by other means. The terms of these Terms shall be incorporated in that contract by reference.
3.2.2. A campaign is deemed performed by Stylight when the booked Ad Impressions, as specified in the Advertising Insertion Order, have been reached at all placements. The booked Ad Impressions must be delivered within the time frame of the campaign. A daily and regular delivery will not be guaranteed.
3.2.3. If the Insertion Order is not implemented due to reasons for which Stylight is not responsible, such as reasons beyond Stylight’s ordinary control, the Product Listing Partner must pay the cost difference between the promised and the actual amount, notwithstanding further statutory duties.
3.2.4. In the event nothing deviating is agreed upon, the Product Listing Partner may claim a reduction in compensation which matches the actual approval of Advertising Media within one (1) calendar year, if it has concluded a contract at the beginning of the deadline, and which contract grants it a reduction based on a price list. The claim for reduction expires if it is not claimed within three (3) months after the end of the one year period.
3.3. Delivery and storage of advertising media
3.3.1. The Ad Services Partner must deliver to Stylight complete and suitable Advertising Media free of defects not later than three (3) business days before placement. In case of special formats and rich media formats, the minimum period for delivery is five (5) working days before placement. Deviations must be negotiated with Stylight immediately after their discovery and shall be notified in writing, which may be electronic or by other means.
3.3.2. Costs arising from a change of the Advertising Media which has been requested by Ad Services Partner or for which Ad Services Partner is responsible must be borne by Ad Services Partner. Stylight shall not be responsible for any costs in connection with any changes to the Ad Services Partner’s Advertising Media unless such costs are exclusively due to Stylight’s violation of the terms of this Agreement.
3.3.3. Stylight’s obligation to store and retain the Advertising Media ends three (3) months after the last delivery or shipment.
3.4. Refusal of certain material
3.4.1. Stylight reserves the right to reject or block advertising orders, including individual orders or tasks already contracted for in the event that their content, according to Stylight’s industry-standard judgment, violates any Applicable Laws or regulatory provisions, third-party rights, or if the publication is for factually justified reasons unacceptable to Stylight due to the content, the origin, or the technical form.
3.4.2. Furthermore, Stylight may recall already published Advertising Media for the reasons stated above or if Ad Services Partner changes content or data of the Advertising Media retroactively.
3.4.3. Stylight will promptly alert the Ad Services Partner to a rejection, block or recall of the Advertising Media.
3.5. Warranty of Ad Services Partner
3.5.1. Partner hereby represents, warrants and covenants to Stylight that Partner has all the necessary rights for the placement of the Advertising Media in accordance with the terms of this Agreement and that the Advertising Media do not violate or infringe upon Applicable Laws, third party rights or the terms of this Agreement. Furthermore, Advertising Media shall not contain pornographic contents, or contents which glorify violence or war or contents which infringe personal rights. Partner hereby agrees to indemnify, hold harmless and defend Stylight from any and all claims, losses, costs and/or damages (including, but not limited to, reasonable attorneys fees and costs of legal defense) which may arise as the result of any breach or alleged breach of this Agreement (including, but not limited to this Section 3.5.1) by Partner or any third parties acting on behalf of Partner. Partner is obliged to support Stylight in good faith with information and documentation by legal defense against third parties, promptly upon Stylight’s request and at Partner’s sole cost and expense.
3.5.2. Partner hereby transfers to Stylight for the duration of this Agreement all usage, ancillary copyrights and any/all other rights and licenses (which licenses shall be non-exclusive, world-wide, royalty-free, unrestricted, transferable, and sub-licensable), necessary for the reproduction, distribution, transmission, broadcast, accessibility, adaptation, extraction from a data bank and for demand, at times and places with any contents necessary for performing the order. These rights and licenses will be transferred in all cases granting the rights for placement with all known technical means as well as all known forms of online media.
3.5.3. Partner represents, warrants and covenants that Partner will comply with all Applicable Laws when collecting, distributing and using personal data, if Partner uses special technology, such as cookies or counting pixel for generating or collecting data from the placement of Advertising Media on the online offers of Stylight.
3.5.4. Should Partner gather anonymous or pseudonymised data and thus data leading to persons when his Advertising Media delivered to Stylight for online offers are used, Partner may evaluate these data within the framework of each campaign for the concrete advertiser who has been administered with the placement of the relevant campaign, provided that such evaluation is conducted at all times in accordance with all Applicable Laws. This evaluation may only be made with the anonymized and pseudonymised data which have been gathered by advertising placement on the online offers of Stylight.
3.5.5. Notwithstanding anything to the contrary contained in this Agreement, Partner hereby represents warrants and covenants that Partner shall not process, use or distribute personal data and data leading to persons gathered from access to online offers which contain the Advertising Media provided by Partner to Stylight. Moreover, Partner hereby agrees not store, exploit or use in any other way data from advertising in online offers of Stylight, or share them with third parties. This prohibition also includes the creation of profiles of the usage behavior of users on the online offers of Stylight and their consequent usage.
3.5.6. If Partner uses a system of a third party for the placement of Advertising Media in the online offers of Stylight, Partner hereby agrees to ensure that the third party system operator will comply with the terms of this Agreement and Partner hereby agrees to indemnify, hold harmless and defend Stylight from any and all claims, losses, costs and/or damages (including, but not limited to, reasonable attorneys fees and costs of legal defense) which may arise as the result of any breach or alleged breach of this Agreement by any third parties acting on behalf of Partner.
3.5.7. Partner hereby agrees to use software of the highest technical standard, and further represents, warrants and covenants to Stylight that the transmitted or installed Advertising Media is free from harmful code, such as viruses, trojans etc. Section 2.2.1 of this Agreement shall additionally apply to the delivery of Ad-Materials.
3.5.8. Partner must be at least 18 years of age in order to register to use the Stylight Services and to create an account. Partner hereby represents and warrants to Stylight that Partner (and all individuals acting on behalf of Partner) are at least 18 years of age and possess the legal right and ability to enter into and perform this Agreement.
3.5.9. The grant of rights under Section 3.5.2 does not affect the right of Ad Services Partner to continue to freely dispose of the Advertising Media, provided that the rights granted to Stylight under Section 3.5.2 remain in effect. In particular, the Ad Services Partner remains entitled to grant non-exclusive rights to the Advertising Media to any of its other business partners.
3.6. Warranty of Stylight
3.6.1. Subject to Stylight’s disclaimer of warranties in Section 4.1 and the terms of this Agreement, Stylight warrants, within the framework of the intended requirements, to use its reasonable efforts to deliver a rendition of the Advertising Media, as best as possible, which is reasonably comparable to the applicable then-current technical standard. Notwithstanding anything to the contrary contained in this Agreement, the Ad Services Partner acknowledges that, due to current technical standards, it is not reasonably possible to create a faultless, error-free program for any and all technical platforms and standards. Stylight does not warrant that the program shall be error-free. In no event shall Stylight be held liable in connection with any fault or error in the presentation of the Advertising Media if the impairment is caused by using an unsuitable presentation software or hardware, such as a browser or app, by a disturbance within the communication network of other operators, by proxies such as buffer stores, or by failure of the AdServer for longer than 24 hours, measured in total or consecutively, within 30 days after the start of the agreed upon placement. If the failure of the AdServer lasts for an extended period of time, and if the booking is time-sensitive, the following will be the Ad Service’s sole and exclusive remedy in connection with the terms of this Agreement: the Ad Services Partner’s payment obligation for then-accruing compensation shall be suspended for the duration of the failure. The Ad Services Partner hereby acknowledges and agrees that it waives any other claims or claims in addition to the warranted claims against Stylight.
3.7. Rights and obligations of Ad Services Partner
3.7.1. If the rendition quality of the Advertising Media does not match the agreed-upon performance or quality stated in this Agreement, the Ad Services Partner, as its sole and exclusive remedy, shall have the right of an equivalent substitute advertisement which complies with the performance or quality terms of this Agreement by an extension of the publishing period, or an immediate substitute placement in a comparative environment, but only to such extent as the purpose of the Advertising Media was diminished. The Ad Services Partner must set a reasonable time limit for Stylight to arrange for such substitute placement.
3.7.2. If latent defects exist in the Advertising Media provided by the Ad Services Partner to Stylight that are not obvious or evident as determined by Stylight in its sole and reasonable discretion, or if there are flaws in repeated advertisement orders which the Ad Services Partner does not identify, the Ad Services Partner may not claim a remedy in case of a distribution of such flawed Advertising Media or flawed distribution.
3.7.3. The Ad Services Partner must examine the advertising measures immediately after their first release for defaults or defects and immediately notify Stylight in writing, which may be by electronic or other means, of any defects or faults. In the event of patent defects or faults, this notice must be made within five (5) business days after first placement. In the event of latent or hidden defects or faults, the notice must be made within five (5) business days after after discovery of the fault.
3.7.4. Notwithstanding anything to the contrary contained in this Agreement, the Ad Services Partner hereby acknowledges and agrees that claims for remedies in connection with Stylight’s limited warranty shall become time-barred as of the earlier of: (i) the time period specified within this Agreement; or (ii) six (6) months from the effective date of this Agreement.
3.8. Default through Stylight
3.8.1. If Stylight’s performance of an order fails due to reasons for which Stylight cannot be held responsible, including, but not limited to, instances of a computer down-time, force majeure, strike, government action, court action, changes in the law, disturbances for which third-parties are solely responsible (i.e. other providers), the failure of network operators or service providers, Acts of God, Force Majeure, or similar reasons, Stylight shall have the right to perform the order at a later date, if possible and as determined by Stylight, in its sole and reasonable discretion. In the event Stylight elects to implement the order within a moderate or reasonable period of time after the end of the disturbance, the Ad Services Partner shall be responsible to pay Stylight any and all amounts owed pursuant to this Agreement without offset or delay as if no such failure occurred.
3.9. Payment terms
220.127.116.11. The Ad Services Partner shall pay Stylight the compensation stated in the Advertising Insertion Order.
18.104.22.168. Stylight’s invoices shall be based on the reports from the ad server used by Stylight at the time. The reports state the Ad Impressions for billing purposes.
22.214.171.124. Stylight will issue invoices on the publishing date of the advertisement. Invoices are due and payable after receipt and must paid within thirty (30) days from receipt. Payments have to be made to the following bank account, unless the invoice should indicate other account details:
SILICON VALLEY BANK
Account Number: 3301241921
Routing/ABA Number: 121140399
SWIFT ID: SVBKUS6S
FOR CREDIT TO:
1900 Market Street, 8th Floor
Philadelphia, PA 19103
3.10. Termination of Ad Services
3.10.1. Notices of termination must be provided in written form, electronically or otherwise. Advertising Insertion Orders may be cancelled up to two (2) weeks prior to the commencement of the booking. Ongoing bookings may be cancelled up to two (2) weeks prior to the end of the month.
3.10.2. Stylight may charge an Ad Services Partner liquidated damages, not as a penalty but to reasonably compensate for its damages and third-party damages, in the following events and amounts: If the Ad Services Partner cancels up to one (1) week prior to the campaign’s commencement, Stylight may charge it fifty percent (50%) of the campaign value as specified in the Advertising Insertion Order. If the order is canceled up to three (3) days before the campaign’s commencement, Stylight may charge cancellation fees of eighty percent (80%) of the campaign value as specified in the Advertising Insertion Order. If the order is canceled three (3) days or less before the campaign’s commencement, Stylight may charge one hundred percent (100%) of the campaign value as specified in the Advertising Insertion Order.
4. Liability of Stylight
4.1. PARTNER HEREBY ACKNOWLEDGES AND AGREES THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PARTNER’S USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO THE SITE, THE PRODUCT LISTING SERVICES, AND/OR THE AD SERVICES IS SOLELY AT PARTNER’S OWN RISK AND THAT PARTNER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT MAY RESULT FROM SUCH USAGE. PARTNER HEREBY AGREES THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PRODUCT LISTING SERVICES AND THE AD SERVICES) ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. STYLIGHT HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE PARTNER DATA, ADVERTISING MATERIALS AND OTHER CONTENT SUBMITTED, RECEIVED, POSTED OR TRANSMITTED THROUGH OR INTERMEDIATELY, TEMPORARILY OR PERMANENTLY STORED ON STYLIGHT’S NETWORK, THE SITE, OR ANY SERVER OWNED OR CONTROLLED BY STYLIGHT, AND FOR THE ACTIONS OR OMISSION OF OTHER USERS, OTHER PARTNERS OR PROVIDERS OF THIRD-PARTY PRODUCTS AND/OR SERVICES. PARTNER HEREBY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE LIMITED REMEDIES EXPRESSLY STATED IN THIS AGREEMENT, STYLIGHT SHALL HAVE NO LIABILITY TO PARTNER, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISRUPTION, DISCONTINUATION OR TERMINATION OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PRODUCT LISTING SERVICES AND/OR THE AD SERVICES), THE SITE OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION, ANY SERVICE DOWNTIMES OR DISRUPTIONS. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, STYLIGHT EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AUTHENTICITY, COMPLETENESS, AND NON-INFRINGEMENT. STYLIGHT MAKES NO WARRANTIES THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PRODUCT LISTING SERVICES AND/OR THE AD SERVICES) WILL MEET PARTNER’S REQUIREMENTS, OR THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PRODUCT LISTING SERVICES AND/OR THE AD SERVICES) OR THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PARTNER, PROVIDED THAT IN SUCH INSTANCES, STYLIGHT’S WARRANTIES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY SUCH JURISDICTION’S LAWS.
4.2. PARTNER HEREBY EXPRESSLY AGREES THAT STYLIGHT’S TOTAL AGGREGATE LIABILITY TO PARTNER OR ANY THIRD PERSON, AND PARTNER’S AND ANY THIRD PERSON’S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE PRODUCT LISTING SERVICES AND/OR THE AD SERVICES), AND THE SITE PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO RECOVERY OF AN AGGREGATE AMOUNT NOT TO EXCEED THE ACTUAL AMOUNT WHICH STYLIGHT ACTUALLY RECEIVED FROM PARTNER AS A NET FEE (IF ANY) FOR SERVICES PROVIDED DURING THE THIRTY (30) DAYS PRIOR TO THE DATE UPON WHICH THE CLAIM OR LIABILITY ACTUALLY AROSE. STYLIGHT, ITS SUBSIDIARIES, PARENT, AFFILIATES, LICENSORS (OTHER THAN PARTNER) AND CONTRACTORS AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS AND ASSIGNS (HEREINAFTER COLLECTIVELY THE “STYLIGHT GROUP”) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF REVENUE OR LOSS OF PROFITS RESULTING FROM THE SERVICES EVEN IF ANY STYLIGHT GROUP PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE OR COUNTRY DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, THE STYLIGHT GROUP’S LIABILITY IS HEREBY LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES OR COUNTRIES.
5. Set-Off, Right of Retention, Assignment
5.1. The parties may only set-off claims against counterclaims that are uncontested or have resulted in a final judgment on the merits.
5.2. The parties may exercise a right of retention only if the counterclaims are based on the same contractual relationship.
5.3. The Partner may not assign and transfer the rights and obligations under this Agreement in full or in part without the prior written consent of Stylight, such consent not be unreasonably withheld.
5.4. Stylight may assign and transfer the rights and obligations under this Agreement in full or in part to any third party.
6. Confidentiality; Press Releases
6.1. Except as provided in Section 6.3, each party shall treat this Agreement as confidential.
6.2. Except as provided in Section 6.3, the parties shall treat as confidential all information, particularly technical and business information, whether written or oral, of the other party they received in the course of this Agreement, or which they otherwise obtained in the course of the cooperation under this Agreement (the “Confidential Information”) and shall use such Confidential Information only for the purpose of this Agreement, shall give access only to its employees who need to have access, and shall not pass it on to third parties, except that the Confidential Information may be disclosed by the parties to their affiliates, provided that such affiliates will enter into or are already subject to similar confidentiality obligations, and shall protect it against unauthorized use by third parties, or as otherwise required by law in connection with any legal proceeding.
6.3. No confidentiality obligation shall apply to information and documents:
6.3.1. which are already known to, or in the possession of the receiving party prior to receipt of any Confidential Information;
6.3.2. which are legally received by a party from a third party without any confidentiality obligation;
6.3.3. which are in the public domain or enter the public domain through no wrongful act of the receiving party; or
6.3.4. which can be proven by the receiving party to have been developed independently of Confidential Information received from the other party.
6.4. The parties shall impose the same obligations on their affiliates and their affiliates’ employees, who obtain knowledge of Confidential Information, unless those employees are already bound to the same degree by their contracts of employment to maintain confidentiality.
6.5. The party providing Confidential Information shall remain the vested holder of such information. Nothing contained in this Agreement shall be construed as granting or conferring any patent rights or licenses, either expressly or by implication, unless otherwise provided in this Agreement.
6.6. Neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written approval.
7. Stylight Intellectual Property
7.1. Stylight and its licensors own all right, title, and interest to the Site, the Services, all content included therein, all derivatives thereof, and intellectual property rights related thereof. Stylight shall also have sole ownership or control of all IP addresses and Internet addresses provided by Stylight to access the Services, and all modifications, ideas, concepts, enhancements, or recommendations provided by Users and Partners to Stylight concerning the Site, the Services, or the Stylight business by any means of communication. Partner hereby acknowledges and agrees that this Agreement does not transfer any ownership rights in the Site, the Services, or any content included therein to User, Partners, or any third parties. The Stylight name, logo, and any other trade names are trademarks of Stylight and no right is granted to use them except as otherwise expressly granted herein.
7.2. Partner hereby agrees that Partner will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or the Site.
8.2. This Agreement is subject to the laws of the State of New York, United States of America, excluding its conflict of laws rules. Partner and Stylight each hereby submit to the exclusive subject matter jurisdiction, exclusive personal jurisdiction and exclusive venue of the United States District Court for the Eastern District of Pennsylvania, specifically located in Philadelphia, Pennsylvania, for any disputes between Partner and Stylight under or arising out of this Agreement. If there is no jurisdiction in the United States District Court for the Eastern District of Pennsylvania, specifically located in Philadelphia, Pennsylvania, for any disputes between Partner and Stylight under or arising out of this Agreement, then Partner and Stylight hereby expressly agree that jurisdiction shall be in the state courts of Philadelphia County, Pennsylvania. The application of the United Nations Convention of Contracts for the International Sale of Good is expressly excluded. THE PARTIES HEREBY WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT.
8.3. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
8.4. This Agreement does not confer any benefits on any third party unless this Agreement expressly states that it does.
8.5. Products available on the Site may be subject to export controls or restrictions by the United States or other countries or territories. You agree to comply with all Applicable Laws and international export laws and regulations. These laws include restrictions on destinations, end users, and end use.
8.6. This Agreement does not create any agency, partnership, or joint venture between the parties.
8.7. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect such section.
8.8. Subject to Section 1.4 to 1.7, any amendments or additions to this Agreement must be made in writing which may be electronic or otherwise, to be effective. This requirement shall also apply to any waiver of this form requirement.
8.9. Should any provision of this Agreement be or become invalid or unenforceable in whole or in part, the remaining provisions of this Agreement shall remain unaffected. The parties will agree on a provision to replace the invalid or unenforceable provision that from a legal and factual point of view comes as close as possible to the economic purpose of the invalid or unenforceable provision. The above shall apply in the same manner to any gaps in this Agreement.
8.10. In the event this Agreement terminates or expires for any reason, Sections 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 2.1.3, 2.21, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.6, 2.2.7, 2.3.4, 2.3.5, 2.3.6, 2.3.7, 2.4 (all subparts), 2.5 (all subparts), 3.1.5., 3.2.1, 3.2.3, 3.4.1, 3.5 (all subparts), 3.6.1, 3.7.1, 3.7.2, 3.8, 4 (all subparts), 5.4, 6 (all subparts), and 7 (all subparts), and 8 (all subparts) of this Agreement shall survive such expiration or termination.
8.11. Except as expressly provided otherwise in this Agreement, all notices to Stylight, including, but not limited to, any notices concerning Stylight’s compliance with the Digital Millennium Copyright Act of 1998, 17 U.S. C. § 512, shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
1900 Market Street, 8th Floor
Philadelphia, PA 19103
Stylight shall serve notices related to this Agreement by sending them to Partner at the postal address or e-mail address given to Stylight upon registration or submission of Partner Data or Advertising Materials in accordance with the terms of these T&C. Notices sent by mail shall be deemed received five business days after they were sent. Notices sent by e-mail or as a text message shall be deemed received on the business day following the day when they were posted or sent, provided sender does not receive a “failure to deliver” notice.