Terms and Conditions Advertiser

The following terms and conditions are entered into and between . (hereinafter “”) and the advertising company (hereinafter “Advertiser”), referred to individually as “Party” or collectively as “Parties”.

operates and manages the website https://www.bigbasketshop.com containing a platform for different offers (hereinafter “www.bigbasketshop.com”) an Advertiser may participate in.

The Advertiser wants its concrete advertising of its goods and services (hereinafter “Advertising Material”) to be shown through different ways of advertisements, including but not limited to banners, emails, iFrames and/or videos (hereinafter “Advertising Channel”) on the aforementioned website.

By using www.bigbasketshop.com the Advertiser can place his Advertising Material combined with the respective Advertising Channel (hereinafter “Advertising Campaign”) in order to be picked and performed by . Such an Advertising Campaign may be governed – beside this Agreement – by further specific conditions issued by (hereinafter “Campaign Terms”) which have to be observed when performing the concrete Advertising Campaign.

Picking and performing the Advertiser Campaign, may publish the Advertising Material through banners and/or iFrames and/or videos that will be shown on www.bigbasketshop.com and/or emails that may be sent by or by third parties delegated by the and/or other networks operated by by adhering any restriction stated in the Campaign Terms.

Current as of: 2024-11-17

I. Participation, Advertising Campaign, Campaign Terms and Insertion Order

For offering an Advertising Campaign in order to be picked and performed by the Advertiser has to contact its contact person of www.bigbasketshop.com and to submit the Advertising Material and the Advertising Channel. The Parties will then conclude the Campaign Terms. In the Campaign Terms specific regulation can be agreed, e.g. payment model/financial conditions, forbidden forms of publishing the advertisement etc. According to this an insertion order (hereinafter “IO”) shall be issued. An example is attached as Annex 1 to this Agreement. Such an IO needs to be signed from both and the Advertiser. After conclusion of the IO the offer will be placed on the www.bigbasketshop.com website. For each Advertising Campaign a separate IO has to be issued.

II. Obligations of the Advertiser

1. The Advertiser ensures that all Advertiser Material (i) are up to-date (ii) are not illegal, (iii) do not infringe upon the intellectual property of third parties, including without limitation trademarks and/or copyrights, and/or further third party rights and/or personal rights of any third party and (iv) do not contain or link to any material which is – including without limitation – harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), promotes advertising for articles the distribution of which is entirely prohibited or the distribution of which is subject to restrictions that were disregarded when publishing, contains profanity or otherwise contains materials that informs you that it considers objectionable.

2. In addition the Advertiser ensures not to place any of the following forbidden forms of advertising: mass subscription (automatic entry websites and/or scripts), forced clicks, webhosting, image hosting, file sharing, user generated content without editorial control, misleading user flows (e.g. violating any applicable law, rules or regulations, including without limitation the causing of false impression regarding the use of incentives) and interstitial pages.

3. Expressly it is not permitted to especially use and/or distribute viruses, ransom ware worms, trojan horses, rootkits, key loggers, dialers, spyware, illegal adware, malicious BHOs, rogue security software and other malicious programs.

4. Any ad serving software used by the Advertiser shall only been used installed on an end-user’s computer in a legally admissible manner, including without limitation that the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and understandable end user license agreement and the software can be easily removed according to generally accepted methods pursuant to the applicable law. Ad serving software may be allowed in the respective Campaign Terms.

5. The Advertiser ensures not to make any representations, warranties or other statements concerning www.bigbasketshop.com and/or .

6. According to point VI. of this Agreement the Advertiser ensures not to place the brand of and/or the brand www.bigbasketshop.com on any platform and/or online platform, website and/or any other place without prior written form consent of the respective trademark owner. Written form means and includes letter, fax, email and/or Skype. In general the Advertiser ensures to not infringe any intellectual property rights of , including without limitation trademarks and/or copyrights. The Advertiser ensures to not copy or resemble the look and feel of ’s website and/or create the impression that the Advertiser Material is in any way associated to www.bigbasketshop.com and/or , without prior written form permission from .

7. The Advertising Material must refer to the Advertiser itself, respectively the Advertiser’s goods and services. It is strictly forbidden to use any content referring to a third person different from the Advertiser. Furthermore it is strictly forbidden to use Advertising Material that masks the Advertiser’s true identity and/or that may mislead the end-user in any way. No Advertising Material shall appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed in written form form.

8. The Advertiser will comply with all (i) obligations, requirements and restrictions under this Agreement, and (ii) laws, rules and regulations as they relate to the business of the Advertiser and/or the Advertiser Material.

9. Where required the Advertiser will always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information with regard to collection, use and sharing practices. Furthermore and in general Advertiser guarantees to act in compliance with all applicable privacy/data protection regulations.

10. With regard to the Advertising Material the Advertiser is not permitted to use any kind of advertising, whether directly or indirectly, connected with www.bigbasketshop.com and/or . Furthermore it is not permitted to create the impression that any Advertising Material has been initiated by or are in any way associated with www.bigbasketshop.com and/or .

11. The Advertiser accepts the obligation to pay to a contract penalty of – depending on the severity of the offence and the degree of culpability of the Advertiser - up to EUR 10.000,00 for each culpable offence against this provision III. The amount of the contractual penalty is at the discretion of . This provision does not impair the right to assert a further claim to damage compensation.

12. If a third party seeks to enforce a claim against due to any Advertising Campaigns including any Advertiser Material, and/or any offence against the provision III, the Advertiser shall indemnify against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.

III. Obligations of

1. operates www.bigbasketshop.com and conducts its business with due care and diligence of a prudent and conscientious business man.

2. shall use the Advertising Campaigns on www.bigbasketshop.com as provided by the Advertiser itself. does not assess the advertisement provided by the Advertiser, including without limitation any legal assessment of the Advertising Material.

3. In cases of any short-dated changes of the Advertising Material shall communicate those changes in www.bigbasketshop.com as soon as possible and with undue delay.

4. shall ensure that the Advertising Campaign is shown in a correct manner.

5. will attempt to make www.bigbasketshop.com available. In cases of any system failure of www.bigbasketshop.com, attempts to restore the functionality of the system as far as possible. No enforceable right derives from any system failure and/or system interruption.

6. does not guarantee the constantly availability of www.bigbasketshop.com and all actions connected with this availability, including without limitation the availability of the Advertising Material, the Advertiser’s landing page and the accounting system. In exceptional cases it might happen that some transactions might not be counted and/or recorded. No right could be derived against due to such interruptions.

7. Advertiser provides the Advertising Material for www.bigbasketshop.com and entitles it to use the Advertising Material during the time of the specific campaign. has no influence regarding the transmission of rights of use.

8. shall handle billing, payment and tracking according to point V of this Agreement.

IV. Billing, payment and tracking

1. will perform the invoicing process towards the Advertiser.

1. The level of payment (hereinafter collectively “Commission”) depends on the specific action, behavior and/or business transaction agreed in the Campaigns Terms and/or the Advertising Campaigns, for example whether a payment shall be done in cases of generated traffic and shall be paid on CPA basis. Advertiser has no right of refund for any costs and expenses in any way associated with the Advertising Campaign. A Commission has to be paid if (i) a specific action, behavior and/or business transaction – depending on the Campaign Terms and the IO – has come out attributable ’s/leadsfor.life’s promotional activity, (ii) the specific action, behavior and/or business transaction has been tracked and recorded by and has been validated according to point IV. 4.

2. Any Commissions have to be paid according to the regulations stated in the IO, e.g. monthly, bimonthly or weekly, depending also on the specific Advertising Campaign and the Campaign Terms if any. Any Commission has to be paid within the payment period stated in the corresponding invoice. If the Advertiser does not pay within the payment period stated in the invoice, he will be in default without any further reminder, which will result in default interest amounting to 9 percentage points above the respective base interest rate. Any threshold may be agreed in the IO too.

3. For tracking the Parties will rely on the setup of S2S pixel implemented by . Only if for any reasons this should not be possible, the tracking shall be made through the Advertiser’s tracking system, if any, to which may be granted access. Generally all tracked data sets have to be paid, as agreed in the IO.

In the event that the Advertiser disputes in good faith any portion of a credit advice, the Advertiser must submit that dispute to in written form form and in sufficient detail within seventy-two (72) hours of the date stated in the invoice. If Advertiser does not dispute the accounting data as set forth in the invoice, Advertiser agrees that it irrevocably waives any claims based upon that accounting data. Furthermore in order to receive any Commission the specific action, behavior and/or business transaction must be validated. Such validation will be done by the Advertiser and the Advertiser has to provide a proper cancellation reason for each cancelled transaction.

The Advertiser may only cancel a sale action within 72 hours of the receipt of the traffic. The notification must contain a detailed description of the reasons for such. Otherwise the complaint will per se not be accepted.

V. Misuse

1. In addition to point II. of this Agreement any kind of misuse that means any dishonest and/or forbidden practices infringing applicable law, this Agreement, Campaign Terms and/or the honest principle of www.bigbasketshop.com is strictly forbidden. This includes without limitation (i) any tracking manipulation, (ii) using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with the generation of Commissions and/or (iii) exceeding Advertiser´s access to www.bigbasketshop.com. 

2. In cases of misuse, is entitled to an extraordinary termination without any notice period and with immediate effect. 

1. The Advertiser accepts the obligation to pay to a contract penalty of – depending on the severity of the offence and the degree of culpability of the Advertiser - up to EUR 10.000,00 for each culpable offence against this provision VI. The amount of the contractual penalty is at the discretion of . This provision does not impair the right to assert a further claim to damage compensation.

2. If a third party seeks to enforce a claim against due to any misuse and/or any offence against the provision VI, the Advertiser shall indemnify against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.

VI. Blocking and deactivation

In cases of suspicion of any Advertiser´s offence against this Agreement at its sole direction is entitled to block and/or deactivate Advertiser’s account for the duration of any review or irrevocably with immediate effect. In such cases Advertiser will be informed without undue delay and the possibility of a Advertiser’s statement will be given.

VII. Confidentiality

Except as otherwise provided in this Agreement or with the consent of , the Advertiser agrees that all information, including without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning and/or www.bigbasketshop.com shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Advertiser for any purpose other than Advertiser’s participation in www.bigbasketshop.com, except and solely to the extent that any such information is generally known or available to the public through a source other than the Advertiser. The Advertiser shall not use any information obtained from www.bigbasketshop.com to develop, enhance or operate a service that competes with www.bigbasketshop.com, or assist another party to do the same.

VIII. Limited License and Intellectual Property

1. grants to Advertiser a nonexclusive, nontransferable, revocable right to use and to access www.bigbasketshop.com solely in accordance with the terms of this Agreement.

2. Furthermore and hereby a respective nonexclusive, nontransferable and revocable right to use the Advertising Material for purposes of performing the Advertising Campaign is also granted by the Advertiser to and www.bigbasketshop.com. is only entitled to use the Advertising Material to the extent necessary to perform its work and obligations under this Agreement on the www.bigbasketshop.com platform.

3. Advertiser may not alter, modify, manipulate or create derivative works of any www.bigbasketshop.com graphics, creative, copy or other materials owned by, or licensed to, in any way.

4. The licenses may be revoked at any time by giving the Advertiser notice. Except as expressly stated herein, nothing in this Agreement is intended to grant Advertiser any rights to any of ’s trademarks, service marks, copyrights, patents or trade secrets. All rights not expressly granted in this Agreement are reserved by .

IX. Termination

This Agreement shall commence on the date of the conclusion of an Insertion Order and shall continue thereafter until terminated by either Party as provided herein. Any concrete Advertising Campaign can be terminated with a notice period of seventy-two (72) hours in written form form. The definition of written form form according to point III.6 applies. may terminate the Advertiser’s participation in one or more Advertising Campaigns and/or this Agreement at any time and for any reason, which deems to be reasonably appropriate with or – depending on the circumstances – without prior notice to Advertiser. Upon termination of Advertiser’s participation in one or more Advertising Campaigns and/or this Agreement for any reason, Advertiser will immediately cease all use of and delete all Advertising Material and connected links, plus all www.bigbasketshop.com and/or intellectual property, and will cease representing itself as a www.bigbasketshop.com member.

X. Data Protection

1. collects, processes and uses personal data in compliance with the applicable data protection law.

2. Where required will collect, store and use personal data in order to enable Advertisers access to www.bigbasketshop.com and to perform the respective services.

3. In particular, collects, stores and uses those personal data (gender, first name, last name, telephone number, e-mail address, address etc.) indicated by the Advertiser during the participation process for the performance of the present contract based on Art. 6 (1)(b) GDPR. Furthermore the data will be used in order to get in contact with the Advertiser. Any other processing and/or use of data only ensues according to an explicit consent of the Advertiser or in cases is entitled to do so according to statutory regulations. The aforementioned data processing acts will be governed by the respective purposes disclosed in such cases. The data is stored within the European Economic Area. Unless the data is erased or blocked pursuant to the Advertiser’s exercise of the rights specified under provision XI. 4., its data will be stored permanently for the purposes mentioned above.

4. The Advertiser has the right to obtain information regarding the personal data stored about it, including the origin and recipients of its data and the purpose of data processing, at any time pursuant to Article 15 GDPR.

The Advertiser also has the right to demand, at any time, that corrects inaccurate personal information concerning it (Article 16 GDPR). The Advertiser can restrict the processing of data if any of the prerequisites mentioned in Article 18(1) GDPR are met, e.g. in the event of a dispute concerning the accuracy of its personal data.

Moreover, the Advertiser has the right to revoke any declaration(s) of consent to the processing of its personal data that may have been issued, with effect for the future (Article 7 GDPR). Such a revocation does not, however, affect the legality of the processing that has taken place up until then.

In addition, the Advertiser is entitled to demand that provides the personal data transferred to it in a format that permits the transfer thereof to another body (Art. 20 GDPR).

Subject to the prerequisites set out in Article 21(1), (2), and (3) GDPR, the Advertiser can object to the processing of data for reasons that arise from its particular personal situation.

Furthermore, the Advertiser has the right to demand the erasure of its data and assert its right to be forgotten pursuant to Article 17 GDPR. If the statutory prerequisites are met, will proceed in this regard even without such a request having been issued on the Advertiser’s part and will erase its personal data.

To assert the rights as enumerated above in this section, the Advertiser may contact at , c/o Talk2 GmbH, Rheinstrasse 22, 64293 Darmstadt, Germany, or write to us by e-mail at [email protected].

Finally, the Advertiser can lodge a complaint with any supervisory data protection authority responsible for it or any other supervisory data protection authority.

1. The Advertiser ensures to collect, process and use personal data in compliance with the applicable data protection law.

2. By accepting these Terms and Conditions, the Advertiser consents and allows the use of his and/or his company’s non-personal information, including sharing with a third party, to assess, detect, prevent or otherwise enable detection and prevent of malicious, invalid or unlawful activity and/or general fraud prevention.

XI. Remedies

In addition to any other rights and remedies available to under this Agreement reserves the right to initiate appropriate legal steps if (i) determines that Advertiser has violated this Agreement, including without limitation any violation of the Advertiser obligations according to point III. of this Agreement, any violation of any payment requirement according to point V of this Agreement and/or any violation of the misuse conditions stated in point VI of this Agreement, (ii) receives any complaints about Advertiser’s participation in www.bigbasketshop.com which reasonably believes to violate this Agreement or (iii) any specific action, behavior and/or business transaction is later determined to have not met the requirements set forth in this Agreement. In the event of a material breach of this Agreement, reserves the right to disclose Advertiser’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Advertiser’s actions.

XII. Representations and Warranties, Limitation of Liability

1. The Parties guarantee that they are entitled to conclude this Agreement.

2. IN NO EVENT SHALL BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF www.bigbasketshop.com, ADVERTISING MATERIAL, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF .

3. IN CASES OF ANY MATERIAL AND FINANCIAL DAMAGE CAUSED BY NEGLIGENCE ’s LIABILITY AND THOSE OF ITS AGENTS IS LIMITED TO THE VIOLATION OF ESSENTIAL CONTRACTUAL OBLIGATIONS, HOWEVER, LIMITED TO THE REASONABLY FORESEEABLE DAMAGES TYPICALLY ASSOCIATED WITH THIS KIND OF CONTRACT AT THE TIME OF CONCLUSION OF THE CONTRACT. ESSENTIAL CONTRACTUAL OBLIGATIONS ARE OBLIGATIONS THE PERFORMANCE OF WHICH SHAPES THE CONTRACT AND IN WHICH THE Advertiser MAY REASONABLY TRUST. THIS LIMITATION OF LIABILITY ALSO APPLIES IN CASES OF INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGE INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES AND GOODWILL.

XIII. Indemnification and Penalty

1. Besides any indemnification stated in this Agreement Advertiser hereby agrees to indemnify, defend and hold harmless and its respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Advertiser herein, (ii) any misuse by Advertiser, or by a party under the reasonable control of Advertiser or by a party obtaining access of the Advertising Material, Advertiser Campaign or www.bigbasketshop.com or ’s intellectual property through Advertiser, or (iii) any claim related to the Advertising Campaign, including but not limited to the content contained in a campaign, such as Advertising Material and/or the Campaigns Terms.

2. Besides any penalty stated in this Agreement the Advertiser hereby accepts to pay to a contract penalty of EUR 5.000,00 for each culpable offence against this Agreement.

XIV. Modifications

In addition to any notice permitted to be given under this Agreement, may modify any of the terms and conditions of this Agreement at any time by providing Advertiser with a notification by E-mail. The changes will become effective within fourteen (14) business days after such notice. If the modifications are unacceptable to Advertiser, Advertiser may terminate this Agreement within a fourteen (14) business day period. Advertiser’s continued participation in www.bigbasketshop.com fourteen (14) business days after a change notice has been posted will constitute Advertiser’s acceptance of such change. In addition, may change, suspend or discontinue any aspect of Advertising Material or remove, alter, or modify any tags, text, graphic or banner ad in connection with Advertising Material. Advertiser agrees to promptly implement any request from to remove, alter or modify any link, graphic or banner ad that is being used by Advertiser as part of www.bigbasketshop.com.

XV. Independent Investigation

The Advertiser acknowledges that the Advertiser has read this Agreement and agrees to all its terms and conditions. The Advertiser has independently evaluated the desirability of participating in www.bigbasketshop.com and is not relying on any representation, guarantee or statement other than set forth in this Agreement.

XVI. Governing Law and Miscellaneous

1. This Agreement is governed by the laws of Brazil. Belo Horizonte, state of Minas Gerais (Brazil) is the place of jurisdiction.

2. Advertiser may not assign all or any part of this Agreement without ’s prior written form form consent. The definition of written form according to point III.6 applies. may assign this Agreement at any time with notice to Advertiser. Subject to that restriction, this Agreement will be binding on and enforceable against the Parties and their respective successors and assigns. ’s failure to enforce Advertiser’s strict performance of any provision of this Agreement will not constitute a waiver of ’s right to subsequently enforce such provision or any other provision of this Agreement. The Advertiser shall be responsible for the payment of all attorney’s fees and expenses incurred by to enforce the terms of this Agreement.

3. This Agreement contains the entire agreement between and the Advertiser with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written form or oral. The definition of written form according to point III.6 applies.

4. The Advertiser agrees that shall not be subject to or bound by any Advertiser insertion order and/or online terms and conditions that amend and/or conflict with and/or supplement this Agreement, regardless of whether “clicks through” or otherwise indicates its acceptance thereof. Expressly any general terms and conditions of the Advertiser do not apply.

5. This Agreement may not be modified without the prior written form consent of both Parties. The definition of written form according to point III.6 applies.

6. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the Parties.

7. Each Party to this Agreement is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties.