General Terms of Service 9/2024

These General Terms are entered between :

OPTI DIGITAL,

a legal entity existing under the laws of France, with headquarters at 2 rue des vignes, 66160 Le Boulou, France, registered under the number 840147755, RCS Perpignan, represented by Sébastien Moutte, Gérant de la SARL Native Performance Présidente d’OPTI DIGITAL (hereinafter referred to as the “OPTI DIGITAL”), 

And the entity signing the OPTI DIGITAL Order ( “Publisher”), 

hereinafter collectively the “Parties”, and individually a “Party”.

1. DEFINITIONS 

Ad Tech Systems	Publisher’s ad servers and third-party ad management solutions (e.g. Google Ad Manager) which are applicable to the receipt, use of provision of the Services.
Authorised Users	means the Publisher, and/or the Publisher’s individual employees, directors, agents, independent contractors, who are accessing or using the Services.
Confidential information	means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party, as defined in Section 8, considers confidential or proprietary, including any information consisting of or relating to the Disclosing Party’s technology, services, products, trade secrets, know-how, business operations, plans, strategies, customers and pricing, and any information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: (a) the Services are Confidential Information of OPTI DIGITAL; (b) number of advertising impressions of the PUBLISHER, advertising sales date and administrator identifiers to its Ad Tech Systems are Confidential Information of the Publisher; and (c) the financial terms and existence of the Contract are Confidential Information of both Parties.
Contract	means the combination of (i) an Order, (ii) these General Terms, (iii) if applicable the OPTI DIGITAL Data Protection Agreement.
Documentation	means the technical and functional documentation of the Services, accessible at: knowledge-base.optidigital.com/knowledge as may be updated from time to time.
End-users	Means physical persons visiting and using the Publisher’s websites or mobile applications, and which data may be collected by or transmitted to OPTI DIGITAL through the Services.
Open-Source Software	means software with its source code made available pursuant to a licence by which, at a minimum, the copyright holder provides anyone the rights to study, change, and/or distribute the software to anyone and for any purpose.
Order	Refers to the document agreed between the Parties identifying the Parties, describing the Services, and outlining the financial conditions agreed between the Parties, along with any applicable specific conditions.
Publisher’s Data	means any content that is transmitted by Publisher and Authorised Users to OPTI DIGITAL through the Services. Publisher’s Data includes any End-Users’ data, including personal data, collected and processed by OPTI DIGITAL while performing the Services.
Publisher’s Websites and Mobile Applications	means the websites and mobile applications managed by the Publisher and on which OPTI DIGITAL performs the Services or benefiting from the Services.
Service(s)	refers to any ad operations on the advertising codes on the Publisher’s websites and mobile applications, on the Publisher’s ad inventory, on the Publisher’s Ad Tech systems, on the supply-side platforms and/or on the header bidding wrapper technology, provided by OPTI DIGITAL and purchased by Publisher as described in the Order.

 

2. CONTRACTUAL DOCUMENTS

The General Terms shall apply to any purchase of OPTI DIGITAL Services, confirmed in writing (whether online or not). An Order signed with OPTI DIGITAL entails formal acceptance by the Publisher of the General Terms and the applicable specific terms contained in the Order.

In case of conflict or inconsistency between the terms of contractual elements of the Contract, precedence amongst element of contractual documentation shall be, in descending order:

• Order
• OPTI DIGITAL Data Protection Agreement 
• The present OPTI DIGITAL General Terms of Service

Any change to the content of the Contract (including an Order) shall be made by written, mutual agreement between the Parties.

The Contract covers the entirety of the agreement of the Parties. Previous agreements reached by and between the Parties on services similar to the Services shall be voided and replaced by the Contract upon its signature – or entry into force, whichever is earlier.

Respective documentation issued by either Party, including terms and conditions of purchase of the Publisher that are not included in – or expressly referenced by – the Contract shall not apply to the relationship between the Parties.

3. ORDERS AND PAYMENT

Order process. Signature by the Publisher of an Order amounts to a firm and final order. Any modification or cancellation must be expressly accepted by OPTI DIGITAL. 

Prices. Prices are in the currency defined in the Order and exclusive of taxes. 

Payment terms. Any invoice issued under the General terms is payable in full upon the due date specified in the invoice, if not specified in the invoice, within the timelines specified in the Order. Payment shall be made by bank transfer. All prices are net and exclude the VAT applicable at the time.

Late payment. In the event of late payment of any invoice issued under the General terms, late payment penalties calculated on the basis of three (3) times the legal interest rate, will be payable without the need for a reminder, on the day following the applicable payment date. In accordance with Article D. 441-5 of the French Commercial Code, a fixed indemnity of forty (40) euros for collection costs may be required in addition to the aforementioned late payment penalties. 

When a payment is due to OPTI DIGITAL, in the event of a payment delay of more than fifteen (15) days, OPTI DIGITAL reserves the right to stop or discontinue any Service without notice, and shall not be held liable for any consequences resulting from the exercise of such right, nor for any indemnification. The Contract may also be terminated by OPTI DIGITAL, as detailed in the “Termination” section, due to breach of contractual obligations by the Publisher. Any pending invoices will remain due.

OPTI DIGITAL’s banking details. All payments to OPTI DIGITAL shall be done to the following accounts. OPTI DIGITAL must give written notice to the Publisher of any change of banking details.

OPTI DIGITAL Bank Account for payments in EUROS

Bank account holder: Opti Digital SASIBAN: FR76 1660 7000 7078 2214 1306 990 BIC/SWIFT: CCBPFRPPPPG Bank name: Banque Populaire du SudBank domiciliation: BPS PERPIGNAN ENTREPRISE

OPTI DIGITAL Bank Account for payments in US DOLLARS

Bank account holder: Opti Digital SASIBAN:  FR76 3000 4032 5600 0100 0035 570BIC/SWIFT: BNPAFRPPXXXBank name: BNP ParibasBank domiciliation: BNP Paribas Le Boulou

Publisher’s banking details. When payment is due to Publisher, Publisher must provide to OPTI DIGITAL the bank account details to which OPTI DIGITAL sends payments.  Publisher must give notice to OPTI DIGITAL of any changes of bank account.

4. OPTI DIGITAL LICENCE 

Preliminary remark. Each Party holds all the intellectual property rights to its Services (including, for proprietary software, any code, SDK and/or API), websites, mobile applications, trademarks and logos and the other Party has no right of copy or use of these intellectual property except as provided in the Contract or with prior express authorization. The licence granted herein to Publisher is not a sale.

Grant of Rights. OPTI DIGITAL grants Publisher a non-exclusive and non-transferable licence for the duration defined in the Contract, to access and use the Services and underlying technologies and software, and to provide access to the Services to Authorised Users. The grant of the licence is conditioned upon Publisher’s ongoing compliance with its obligations under the Contract.

Restrictions of use. Publisher shall not, and shall use reasonable efforts to ensure that other parties under its control do not:

1. use the Services for any use other than for its own purposes; 
2. reproduce or distribute, in whole or in part, the Services;
3. modify, translate, reverse engineer, decompile, disassemble the Services, or otherwise attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms in the Services or components thereof, including any such mechanism used to restrict or control the functionality of the Services, or to derive the source code or the underlying ideas, algorithms, structure or organisation from the Services or any components thereof;  
4. distribute, rent, loan, lease, transfer, or grant any rights in the Services or modifications thereof in any form to any person except to the extent expressly permitted under this Contract or with the prior written consent of OPTI DIGITAL;
5. file any patent or other applications for intellectual property protection with respect to the Services. 

Auditing and Reporting. OPTI DIGITAL may, from time to time but no more than once every twelve (12) months, at its own discretion, audit Publisher’s usage of the Services. Upon OPTI DIGITAL’s request, Publisher agrees to provide all information reasonably necessary for OPTI DIGITAL to determine its use of the Services and its compliance with the terms and conditions of the Contract.

Evolution. Publisher agrees that OPTI DIGITAL may, at its own discretion, develop and/or evolve the Services, including by adding or adjusting functionalities without incurring significant obligations or restrictions for Publisher.

5. PUBLISHER’S LICENCE AND OBLIGATIONS

Licence to Ad Tech Systems. When necessary to provide the Services, Publisher grants to OPTI DIGITAL a non-exclusive, non-transferable right to access and use the Ad Tech Systems and the Publisher’s Data, for the purposes of the Services and for the duration of the Services only. This right includes the right to customise and parameter the Ad Tech Systems.

Cooperation. The Publisher undertakes to cooperate fully and in good faith with OPTI DIGITAL, by providing without undue delay correct and up-to-date information needed by OPTI DIGITAL to carry out its obligations pursuant to the Contract.

Compliance with the Contract and the Documentation. Publishers shall always comply with OPTI DIGITAL’s Documentation and guidelines (including third-party demand partners guidelines) when using the Services. OPTI DIGITAL will not be liable in case of issues in implementing the Services to the extent it is attributable to actions or omissions of the Publisher in spite of unambiguous, written instruction provided (or otherwise made available) by OPTI DIGITAL to the Publisher. In any case of breach, violation of the Contract or applicable laws, OPTI DIGITAL has the right to stop the cooperation and its services to the PUBLISHER with immediate effect. Despite this, OPTI DIGITAL’s right to financial compensation from its services remains. In case any third party cancels and deducts ad earnings from OPTI DIGITAL on the PUBLISHER’s ad inventory, due to a PUBLISHER’s action, negligence, or failure to act, or due to a lack of security on the Publisher’s Websites and Mobile Applications, OPTI DIGITAL will not pay to the PUBLISHER the cancelled ad earnings during the ongoing month.

Publisher’s Data. The Publisher alone is responsible of the accuracy, quality, integrity, reliability, suitability and intellectual property rights of and in all Publisher’s Data, and neither OPTI DIGITAL nor its suppliers will be responsible for its elimination, correction, destruction, damage, loss or error arising during the storage of the Publisher’s Data. For purposes of maintenance, statistics and for developing, improving and providing OPTI DIGITAL’s products and services, Publisher’s data may be randomly and anonymously recorded and processed by OPTI DIGITAL and its technology suppliers.

Warranties and indemnification. Publisher warrants and represents that Publisher’s websites and mobile applications, the processing of the Publisher’s Data and the use of the Ad Tech Systems do not violate, infringe or misappropriate any third party’s rights nor any applicable laws. Publisher guarantees that the guidelines of OPTI DIGITAL and of its Demand Partners will be strictly followed and that Publisher does not integrate ads or content on the Publisher’s websites and Mobile Applications illegal or offensive content nor does Publisher links to any website or mobile application containing illegal or offensive content. Content falling under illegal or offensive content may be, for instance, pornographic; content considered dangerous to the youths glorifying violence, spreading hate; content published, uploaded, posted, emailed, forwarded or otherwise made available by End-Users who do not have the right to do so; any website or mobile application that supports spam, malware or any other damageable content available for download.

Publisher will defend and indemnify OPTI DIGITAL, at its sole expense, against any third-party action or suit against OPTI DIGITAL alleging that Publisher’s Data infringes a third party’s rights or result in a damage for a third party.

6. OPTI DIGITAL OBLIGATIONS 

Services. OPTI DIGITAL shall provide the Services pursuant to the Contract, with reasonable skill and care and in accordance with good industry practice.

Support. OPTI DIGITAL offers support to PUBLISHER via ticket, e-mail and telephone during business hours from Monday to Friday between 9-17 o’clock CET with the exception of bank holidays. Following an incident report by PUBLISHER, whatever the level of priority of such an incident, OPTI DIGITAL shall make its best efforts to reply in the shortest delays possible and to remedy the incident. OPTI DIGITAL is bound by an obligation of means in terms of service accessibility and is taking the necessary measures to solve incidents. OPTI DIGITAL makes its best efforts to get the PUBLISHER approval for ad operations affecting the user experience prior to any release in production on the Publisher’s website or mobile application.

Restrictions of use. OPTI DIGITAL agrees it will not, will not attempt to, and will not assist or knowingly permit any third party to: (i) use PUBLISHER’s credentials or otherwise access the Ad Tech Systems, other than as expressly authorised in the Contract ; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to reconstitute or discern or duplicate the AdTech Systems; (iii) breach, disable, tamper with, or otherwise damage the Ad Tech Systems, or any security measures undertaken by PUBLISHER or Publisher’s partners in connection with or otherwise contained within the Ad Tech Systems (as applicable).

7.  TERM AND TERMINATION

Term. The General Terms and Order enter into force at the date specified in the Order and remain in force until terminated by a Party (i) at any time with a 30 days’ prior written notice (sent by email) or (ii) as provided in paragraph “Termination” below.  

Termination. An Order or the whole Contract can be terminated:

• By either Party notifying the other Party in writing of the termination thereof due to a material breach of the Order or the Contract (which includes, without limitation, non-payment) which is not curable or has not been remedied or rectified within twenty (20) days after delivery of a written notice to such defaulting Party. If Publisher is the defaulting Party, OPTI DIGITAL may temporarily suspend the Services. In the event of a termination by OPTI DIGITAL, OPTI DIGITAL will not be responsible for any liability or damage suffered by Publisher because of such suspension or termination in accordance with this section.
• If requested by a Party in the event of dissolution or winding-up of the other Party, as per applicable law.

Effects of termination. If the Contract or an Order is terminated or for any reason:

• Each Party shall cease use of the other Party’s Confidential Information in relation to the Contract and destroy or return to the other Party all tangible property, data, Confidential Information and any other information, belonging to the other Party that is in its possession.
• Publisher shall stop using the Services. 
• OPTI DIGITAL shall cease all use and access to Publisher’s Data and/or Ad Tech Systems including any related accounts and credentials. Every configuration done by OPTI DIGITAL in the Publisher Ad Tech Systems must be deleted before removing access of OPTI DIGITAL to the PUBLISHER Ad Tech Systems including reports, key-values and Unified Pricing Rules created by OPTI DIGITAL.
• Termination or expiry of this Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination or expiry.

Survival. The following provisions shall survive termination or expiration of the Contract: Term and Termination, Confidentiality, Data Protection, Intellectual Property Rights, Liabilities, and Miscellaneous.

8. CONFIDENTIALITY

In connection with this Contract each Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Recipient”) Confidential Information. Except as otherwise expressly permitted herein or with the writing consent of the Disclosing Party, in return for the disclosure by the Disclosing Party of Confidential Information, the Recipient shall keep secret, treat as confidential and preserve the confidentiality of all Confidential Information, including without limitation the terms of this Agreement, and shall use the Confidential Information solely for the purposes for which it was disclosed and use the same care and discretion to avoid disclosure, publication, or dissemination of the Disclosing Party’s Confidential Information as the Recipient uses with its own similar information that it does not wish to disclose, publish, or disseminate. 

The Disclosing Party shall ensure that the Confidential Information of the other Party is only provided to employees or contractors on a need-to-know basis and who are bound by an obligation of confidentiality no less restrictive than as set out herein. 

Upon request from the Disclosing Party, the Recipient shall promptly return to the Disclosing Party all its Confidential Information, or any item thereof if such is requested, having come into the Recipient’s possession, including, but not limited to, original documents, drawings, models, samples, disks, data, and any copies thereof which have been received or derived by the Recipient as a part or result of this Agreement.

This Section shall not apply to any information which:

1. is or becomes generally available to the public other than as a result of a breach of this clause;
2. is acquired from a third party owing no obligation of confidence to the Disclosing Party in respect of that information, where the use or disclosure accords with rights lawfully granted by that third party;
3. is independently developed by the Recipient without use of the Disclosing Party’s Confidential Information;
4. is already known by the Recipient at the time of its receipt, as evidenced by its written records;
5. the Recipient is required by any applicable laws to disclose, provided always that the Recipient shall, to the extent reasonably possible whilst complying with the applicable laws, have notified the Disclosing Party of such requirements prior to any such disclosure and provided the Disclosing Party with a reasonable opportunity to contest the requirement to disclose the information or to limit the extent of the disclosure; or
6. is necessary to disclose in the framework of legal proceedings between the Parties.

The Recipient Party shall promptly notify the Disclosing Party if it becomes aware of any unauthorized use or disclosure of any Confidential Information of the other Party.

The current confidentiality obligation shall apply for the duration of the Contract as well as for a period of three (3) years after expiration or termination of the Contract for whatever reason.

9. TRADEMARKS AND LOGOS

OPTI DIGITAL’s. Publisher is not allowed to remove trademarks, logos, copyright notices as well as any intellectual property rights notices, used by OPTI DIGITAL to identify its Services.

Publisher’s. As of the signing of this Contract, Publisher grants OPTI DIGITAL a worldwide non-exclusive, non-transferable, royalty-free licence to use its company name and logo on OPTI DIGITAL’s website (www.optidigital.com) and posts on social networks (such as but not limited to LinkedIn and Instagram), digital and printed marketing materials, solely to promote the partnership between the two parties and in conjunction with the Services.

10. THIRD PARTY CLAIMS

OPTI DIGITAL shall defend and indemnify the Publisher, at its sole expense, against any third-party action or suit against the Publisher alleging that the Services infringes such third party’s intellectual property rights (a “Claim”) provided that the Publisher:

• promptly notifies OPTI DIGITAL in writing upon being served a notice by the third party asserting the infringement; 
• gives OPTI DIGITAL sole control of the defence and settlement of the Claim (for the avoidance of doubt, a settlement may not be directly adverse to the Publisher’s legitimate interests); and
• reasonably cooperates with OPTI DIGITAL requests for assistance with the defence and settlement of the Claim. OPTI DIGITAL will not be bound by any settlement or compromise that the Publisher enters into without OPTI DIGITAL’s prior written consent.

In the event of a third party infringement claim, OPTI DIGITAL will:

1. procure for Publisher the right to continue using the Services free from any liability for such infringement; or
2. modify the Services to avoid the infringement; or
3. if none of the remedies set forth in the above (i) or (ii) is reasonably available, each Party may terminate this Agreement, effective immediately on written notice to the other Party.

OPTI DIGITAL obligations detailed above shall not apply to an infringement claim resulting directly from modifications or combination of the Services by the Publisher or third parties acting on its behalf, that were not expressly authorised.

The foregoing terms state OPTI DIGITAL sole and exclusive liability and the Publisher’s sole and exclusive remedy for any claims of intellectual property infringement or misappropriation.

11. PERSONAL DATA

The conditions under which personal data may be collected and processed in the context of the Services are governed by the Data processing agreement attached to these Terms.

12. LIMITED WARRANTIES

OPTI DIGITAL warrants that the Services will be delivered in compliance with the Contract and agrees to use commercially reasonable efforts to ensure that the Services meet industry standards. If at any time during the Service Term, Publisher discovers one or more material or significant defects or errors in the Services, OPTI DIGITAL shall, as Publisher’s sole and exclusive remedy, use reasonable efforts to correct such defect, error or non-conformity, provided that adequate notice and description of the defect or error is provided to OPTI DIGITAL. 

The limited warranties provided by OPTI DIGITAL in this clause do not cover: (a) parts of the Services that have been subjected to misuse, tampering, experimentation, alteration, or negligence by Publisher or any third party on behalf of Publisher; (b) issues arising from Publisher’s network connections or caused by the Internet; (c) damages that occurs due to act of God, failures due to power surge; (d) any other materials or services provided by anyone other OPTI DIGITAL where applicable; and (e) repairs to the Services by anyone other than OPTI DIGITAL.

The Services may include certain Open-Source Software. Open-Source Software is governed solely by the applicable open-source licensing terms and is provided “AS IS”. OPTI DIGITAL provides no warranty specifically related to any Open-Source Software or any applicable Open-Source Software licensing terms.  

Except as expressly provided herein and to the maximum extent allowed by applicable law, the Services are provided “as is” and OPTI DIGITAL makes no other warranties, either express or implied, regarding their accuracy, reliability, merchantability or satisfactory quality, non-infringement or their fitness for any particular purpose.

13. LIABILITY

In no event will either Party be liable for any indirect damages arising out of the provision of the Services including, without limitation, damages for loss of goodwill, loss of revenue, work stoppage, lost profits, loss of data, computer failure or any and all other commercial damages or losses upon which the claim is based.

OPTI DIGITAL pursues an obligation of means when providing the Services and in no event shall OPTI DIGITAL be held liable for lack of increasement of the Publisher’s ad revenues. 
For all events and circumstances, each Party’s maximum aggregate and cumulative liability arising out of or relating to the Contract shall not exceed the amounts paid by a Party to another under the Contract during the three (3) months preceding the event giving rise to liability. A Party shall not be liable to the other Party to the extent any liability would not have occurred but for the other Party’s breach of the Contract.

14. APPLICABLE LAW AND COMPETENTE COURTS

This Agreement shall be governed by and construed in accordance with the laws of France. Any dispute or disagreement between the Parties that may not be settled amicably, shall be brought to the exclusive jurisdiction of the Commercial Courts of Paris, who shall have exclusive jurisdiction, notwithstanding plurality of defendants or the introduction of third parties, even for summary or conservatory proceedings, by appeal or by petition.

15. MISCELLANEOUS

Outsourcing. OPTI DIGITAL may outsource a part of the Services to third-party suppliers under OPTI DIGITAL’s sole control, authority, and responsibility, without exonerating OPTI DIGITAL of its liability towards the Publisher for the subcontracted Services. In such case, OPTI DIGITAL shall (i) comply with all applicable provisions of French Law governing relationship with subcontractors; (ii) arrange and manage payment of subcontractors without the Publisher needing to be involved or engaged in the relationship between OPTI DIGITAL and appointed sub-contractor; (iii) warrant on-going compliance of its contractual arrangements with its sub-contractor within the terms of this Contract and all Applicable Laws.

Notices. Unless otherwise provided, notices issued by either Party under this Contract shall be deemed to have been validly served on confirmation of receipt of an email. Where the terms of the Contract require a notice to be sent with a formal letter, it shall be deemed to have been served on the date of first delivery attempt by postal services at the address provided by the receiving Party for correspondence.

No Partnership. The Parties declare that the Contract cannot be considered as an incorporation of a legal person or legal entity, and that their relation is deprived of “affectio societatis”. The Parties also declare that nothing in the Contract shall constitute one Party as an employee, agent, joint venture partner or servant of another.

Severability. In the event any provision of this Contract is found invalid or unenforceable due to any law, rule or definitive legal ruling, such provision will be considered void. The terms of the Contract that are not directly affected by a cause of nullification shall remain valid and in full force, as if the void provision were no longer part of the Contract.

Transfer. Publisher is not allowed to assign its rights and obligations under the Contract to a third-party, without prior written authorization from OPTI DIGITAL. However, either Party may assign its rights and obligations under the Contract to a third-party in case of merger, acquisition, or other such operations resulting in a change in control of the company under French law, provided that the transferring Party shall send the other Party a written notice of such assignment.