January 24, 2019
These Terms of Service (the "Terms") apply between you ("You" or the "User"), and 42matters AG, a company registered in Switzerland under the company number CHE-224.961.109 and having its registered office at Rötelstrasse 84, 8057 Zürich, Switzerland ("42matters", "We", or "Us"). Registration on our Website is a prerequisite for using our Services. OUR SERVICES ARE NOT FOR CONSUMERS OR PRIVATE OR HOUSEHOLD PURPOSES, ONLY FOR BUSINESSES AND PROFESSIONAL USERS. YOU MUST NOT ACCESS OR USE OUR SERVICES, UNLESS (A) YOU ARE ACTING IN A BUSINESS OR PROFESSIONAL CAPACITY, (B) YOU ACCEPT THE 42MATTERS TERMS ON BEHALF OF YOURSELF AND, IF APPLICABLE, YOUR ORGANIZATION, AND (C) IF YOU ARE ACTING ON BEHALF OF YOUR ORGANIZATION, YOU ARE AUTHORIZED TO DO SO. IF YOU ACCESS OR USE ANY OF OUR SERVICES, THE 42MATTERS TERMS FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND, IF APPLICABLE, YOUR ORGANIZATION (COLLECTIVELY REFERRED TO AS “YOU” HEREINAFTER) AND 42MATTERS.
1) Terms Used in this Terms
1.1) When these Terms uses the term "Website", We mean the website provided under the URL https://audience.42matters.com
1.2) When we speak of an "Account", We mean the user interface on the Website where You can register. Such registration is a prerequisite to subscribe to Our Services.
1.3) With the term "Commercial Services" We mean any Service provided by Us against the payment of fees, when we speak of "Services" we refer to all services we provide to our Users, irrespective if free of charge or against remuneration.
1.4) With the term "Third Party Content" We refer to any materials, content, software, items, entries or information accessible via the Website which is not developed, created, authored or owned by Us, in particular any mobile apps and information related thereto.
2) How to create an Account, Acceptance of Agreement
2.1) We will provide you one Account, which is prerequisite to access Commercial Services on our Website. You agree to fully and accurately provide the information requested by us when setting up your Account and to regularly update such information.
3) The Use of Our Services
3.1) All intellectual property rights, know-how and trade secrets embodied in the Website and the Services accessible via the Website including, but not limited to, all materials provided or displayed therewith like software, documentation, designs, data, layouts or photographs, are owned by Us or, especially with respect to Third Party Content accessible via the Website or the Services, third parties.
3.2) 42matters hereby grants You, under the intellectual property rights owned by 42matters, a free of charges, limited, revocable, non-transferable, non-perpetual and non-exclusive license to use the Website for your own business purposes in accordance with these Terms. This license does not permit You, and You agree not to: store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Services or otherwise distribute in any way the Services other than as specifically permitted in these Terms, unless permitted by mandatory applicable law. You are aware that 42matters does not grant any rights with respect to any Third Party Content, and You (i) must obtain the respective usage or license rights from the relevant owner of such rights and (ii) use such Third Party Content solely in strict compliance with such third party license or service terms.
3.3) We may modify, replace, or discontinue the Website, partially or entirely, at any time and in our sole discretion. All of these changes shall be effective upon their posting on the Website or by direct communication to you unless otherwise noted.
3.4) We provide you with a technical application which allows you to publish and manage ads on www.facebook.com (“Facebook”) and www.instagram.com (“Instagram”). Therefore, in order to use our Services, you must be a registered Facebook or Instagram user and have an advertising account with Facebook or Instagram.
3.5) Ads Content. You are solely responsible for all Ads Content that you or your Authorized Users upload, publish, display, link to, or otherwise make available via the Services. We have the right but no obligation to review, filter, block, or remove any Ads Content that you publish or make available via our Services. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR ADS CONTENT POSTED ON OR MADE AVAILABLE THROUGH OUR SERVICES BY YOU OR ANY OTHER THIRD PARTY. “Ads Content” includes all information, text, images, photos, videos, audio, documents and other content in any media and format which is provided or made available to us in connection with your use of the Services.
3.6) Subject to payment of the agreed fees, 42matters hereby grants you a limited, revocable, non-transferable and non-exclusive license to use the Services for your own business purposes. This license does not permit You, and You agree not to: persistently store for more than 30 days, copy, reproduce, post or republish on other platforms except Your own website or app, modify, upload, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit or display any Data, or to decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Services, or otherwise make the Services or the Data available to others, unless specifically permitted in this Agreement or by mandatory applicable law.
3.7) You are aware that 42matters does not grant any rights with respect to any Third Party Content, and You (i) must obtain the respective usage rights or licenses from the relevant owner or controller of such rights in case you intend to make use of such Third Party Content and (ii) use such material solely in strict compliance with the terms for such use issued by the relevant owner. You shall indemnify, defend and hold harmless 42matters, its employees, officers, agents and its affiliates from and against any and all liabilities, losses, judgments, settlements, damages, costs and expenses (including attorney’s fees) and the like arising out of or being related to any infringement or misappropriation of third party rights embodied in Third Party Content.
4) Third Party Content and Services
4.1) We are not responsible for any services provided by Facebook, Instagram (the “Social Platforms”), or for any other services, information or content accessed or purchased through 42matters, which you may be able to access, use or connect to with our Services (together, the “Third-Party Services“). If you access a Third-Party Service through us, you do so at your own risk. When accessing Facebook or Instagram services, you are responsible to comply with all of their terms, conditions, policies, and guidelines which they may impose on their users including those published at https://www.facebook.com/terms, and https://www.facebook.com/policies/ads/ (the “Third-Party Terms”). You remain responsible for the payment of the ads purchased through our Services directly to the Social Platforms.
4.2) You understand that we have the right but no obligation to preview, verify, flag, modify Ads Content and that you must bear all risks associated with the publishing of ads on the Social Platforms. You also agree that Services interoperate with Social Platforms, and that our Services are highly dependent on the availability of the Social Platforms. If at any time the Social Platforms cease to make their features or programs available to us on reasonable terms, we may cease to provide access to such features or programs to you. We assume no responsibility or liability related to Ad Content or to any Ad Content not being transferred to or published on the Social Platforms as a result of a malfunction in our Services.
5) Customer’s Obligation
5.1) You agree to all of the following: a) You hereby certify that you are at least 18 years of age; b) You certify that you are acting as a business person and use the Services for your own business purposes, within the limits set out in Section 3.2 above; c) You will ensure the email address provided in your account registration is valid at all times and will keep your contact information accurate and up-to-date; d) You will not use the Services for any unlawful purposes or to conduct any unlawful activity; e) You may not use Your Account to upload, post, email, transmit or otherwise make available or initiate any content that contains viruses, or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Services or that may impact the ability of any 42matters user to access the Services; f) You will not share your password, let anyone else access your Account, or do anything that might jeopardize the security of your Account. 42matters can assume that any activity in your account originates from you and is done with your express consent, and you are responsible and liable for all activities in your account, in particular, the subscription to services via your account; g) You will not attempt to or actually access the Services by any means other than through the interfaces provided by 42matters; h) You will not attempt to or actually override any security component included in or underlying the Materials or Services; i) You verify that your country of residence is the same as your billing address; ii) Data provided by 42matters is just temporary rented to You, and you don’t have the license to share/sell the data to any third-party. iii) You agree to comply with Facebook's Advertising Policies (see https://www.facebook.com/policies/ads/) and especially to its rules on Prohibited and Restricted Content. Moreover, you are not allowed to use our service in order to target sensitive user groups, e.g. by race, ethnic origin, politics, religion, trade union, membership, genetics, biometrics (where used for ID purposes), health, sex life, sexual orientation).
5.2) 42matters may determine in its sole discretion whether or not a user is in violation of any of these policies. Offending users may be permanently restricted from holding an Account or using the Services. If 42matters reasonably determines that your Account is being used for illegal or fraudulent activity then your Account may be immediately terminated and your financial data erased. We may also report you to law enforcement officials in the appropriate jurisdictions.
6) Term and Termination
6.1) Either Party may terminate this contract at any time, simply by deleting the Account, unless you have subscribed to one or more of our Commercial Services, in which the termination rules of the said subscription to the relevant Commercial Service shall apply. Your Account will be deleted at the latest when the termination becomes effective. Revoking Audience Finder’s access to Your Facebook Ad Account is also regarded as a termination.
6.2) The right of either party to terminate for cause remains unaffected. Such right shall apply, in particular: (i) For User if 42matters fails to meet the availability set out in Section 8 below, or if a material defect of the Service impair the agreed use of the Service and such defect is not remedied within five (5) business days, or if 42matters discontinues or materially modifies the Services to the disadvantage of the User; (ii) For 42matters if User is in breach of one or more of its obligations, in particular the obligation to pay Fees (especially any pending fees).
6.3) In case User terminates this Agreement for cause, User’s sole right and remedy, irrespective if based in contract, tort or otherwise, shall be a claim to a pro-rata refund of the fees paid for the ongoing and not used up subscription term.
6.4) Upon Termination, the User is obliged to delete any data exported from Us, including but not limited to data related to Facebook Custom Audiences, Facebook Lookalike Audiences based on the before mentioned Custom Audiences, Google Audiences, or any other form of audience data. Any campaigns targeting these audiences must also be stopped by the User. Upon request, the User will prove the deletion with adequate means.
7.1) 42matters will use reasonable efforts to provide the Services available for at least 99% in the average of a calendar quarter. This means that the Services shall be available for all customers during 99% of a calendar quarter (including day- and night time, Sundays and bank holidays). Temporary downtimes for maintenance reasons, downtimes due to force majeure or reasons beyond 42matters' control, in particular downtimes due to power failure, shall not be taken into consideration when calculating non-availability.
7.2) 42matters will inform Users about the kind, extent, and duration of the discontinuation or restriction of the Service as well as about any scheduled downtime via the Website or Email. The notification requirement regarding the beginning of the discontinuation does not arise if the advance notification (i) is objectively not possible under the circumstances involved or (ii) would delay the removal of interruptions already occurred. In case of discontinuation or restriction of Service, 42matters will use all commercially reasonable efforts to resume or restore the Service as soon as possible.
8) Confidentiality and Data Protection
8.1) Confidentiality. If we share nonpublic information about our Services, you must keep it confidential and use reasonable security measures to prevent disclosure or access by unauthorized persons.
9) Intellectual Property
9.1) You retain all right, title and interest to your Ads Content which you may upload to or with our Services. We will not use your Ads Content except for purposes of providing, supporting and improving our Services and in full compliance with all 42matters Terms.
9.2) You may from time to time provide suggestions, comments or other feedback to 42matters with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for us. Notwithstanding the foregoing, we will not disclose to any third party that you are the source of any Feedback. You shall, and hereby do, grant to us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
9.3) Services. We retain all right, title, and interest in and to the Services.
10) No Warranty, Limitation of Liability
10.1) THE WEBSITE, SERVICES AND MATERIALS ARE PROVIDED "AS IS," AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, 42MATTERS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.2) In case the Service shows a material defect, 42matters will use reasonable efforts to remedy such defect within a reasonable term following the receipt of your written notice. In case 42matters fails to rectify the defect within the said term, Your sole right and remedy are to terminate this Agreement as per Section 6 above.
10.3) Any liability of 42matters for damages of User, irrespective if based on contract, tort or otherwise, require default, i.e. willful misconduct or gross negligence. Any exceeding liability, i.e. any liability resulting from slight negligence of not requiring any default on 42matters’ side shall be excluded, except for cases where 42matters is in breach of an express guarantee (i.e. made by 42matters using the term "guarantee"), cases of strict product liability or other cases where such liability is mandatory at law.
10.4) 42matters’ overall liability shall be, to the maximum extent permitted by applicable law, limited for all damages occurring during a contract term to the amount paid by User for the said term.
11) Confidentiality, Use of Your Company Name, Logos and Trademarks as Customer Reference
11.1) You agree that You shall keep other data disclosed or made accessible (no matter in which form through the Services and any access or login data, software, technical know-how, functionalities of the Service or other confidential information (hereinafter: "Information") confidential and only use such Information for the intended purpose.
11.2) The provisions set forth in Section 11.1 above shall not apply in case and to the extent that such Information (i) is or becomes available without restriction to the general public by acts not attributable to Users, (ii) was rightfully in User’s possession without limitation on disclosure before disclosure hereunder to the User, (iii) is rightfully disclosed to user by a third party without restrictions on disclosure, (iv) was verifiably independently developed by User, (v) has to be made accessible to public authorities by law or (vi) is allowed to be made accessible by Us.
11.3) You agree that we may use your company name, logos, and trademarks in our marketing materials and on Our Website for the sole purpose of referring to You as Our customer.
12) Applicable Law, Jurisdiction
The formation, interpretation, and performance of these Terms and any disputes arising out of it shall be governed by the substantive and procedural laws of the canton of Zürich, Switzerland and, to the extent applicable, the laws of Switzerland, without regard to its rules on conflicts of law. The exclusive jurisdiction and venue for action related to these Terms shall be the courts located in Zürich, Switzerland, and you hereby submit to the personal jurisdiction of such courts. Notwithstanding the foregoing, 42matters may also assert claims at the court at the seat of User. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
13.1) If any portion of these Terms is found to be unenforceable, the remaining portion will remain in full force and effect.
13.2) If 42matters fails to enforce any of these Terms, it will not be considered a waiver.
13.3) Any amendment to or waiver of these Terms must be made in writing and signed by Us.
13.4) All of our rights and obligations under these Terms are freely assignable by 42matters in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.