GENERAL CONDITIONS OF SALE OF ADVERTISING SPACE
“Advertiser” means any legal or natural person who purchases, directly or indirectly, Advertising Space on LUCKYSIT’s mobile application. Legal entities belonging to the same group within the meaning of Article L.233-3 of the French Commercial Code, which purchase Advertising Space from LUCKYSIT through a single entity providing media functions, are deemed to constitute one and the same Advertiser.
“GCS” refers to these general terms and conditions of sale of Advertising Space.
“Contract” means the GCS, the order form and the special conditions of the Advertising Space Sales Framework Contract accepted in writing by the Parties, all of these documents forming an indivisible and inseparable whole.
“Advertising Space” means any space reserved for Advertising within the LUCKYSIT application.
“Agent” means any professional intermediary purchasing Advertising Space from LUCKYSIT, in the name and on behalf of the Advertiser, pursuant to a written agency agreement complying with the requirements of article 20 of law 93-122 of January 29, 1993, known as the “Sapin Law”. A certificate of mandate must be presented to LUCKYSIT, prior to any purchase of Advertising Space. In the event of modification or termination of the agency contract, the advertiser shall inform LUCKYSIT without delay by registered letter with acknowledgement of receipt, the date of receipt serving as proof.
“Parties” means both LUCKYSIT and the Advertiser, represented by its Agent where applicable.
“Advertising” refers to any message whose purpose is to promote, directly or indirectly, the performance of an action, the supply of a product, a service, a promotional offer, and/or an advertiser.
“Tracers”: refers to any tag, cookie or other tracer.
– Scope of application
In accordance with Article L. 441-1 of the French Commercial Code, these GTC constitute the sole basis of the commercial relationship between the Parties. The GCS define the conditions of sale by LUCKYSIT of Advertising Space within its mobile application.
Any purchase of Advertising Space implies full and unreserved acceptance of the rates and GTC. The GCS take precedence over any other document of the Advertiser and/or its Agent, and in particular over any general conditions of purchase, which the Advertiser and/or its Agent expressly acknowledge.
In accordance with current regulations, these General Terms and Conditions are systematically communicated to any Advertiser and/or Agent who requests them, to enable them to place an order with LUCKYSIT. They are also communicated to any Advertiser and/or Agent prior to the conclusion of a Framework Agreement for the sale of Advertising Space.
LUCKYSIT reserves the right to modify or supplement the GTC at any time.
The GTC shall remain applicable to all contractual relations between LUCKYSIT and the Advertiser and/or its Agent, even if they are not expressly recalled for each order.
Each of the Parties warrants that it is fully authorized to enter into the Contract and to fulfill its obligations thereunder, and that no previous or future commitment on its part is of such a nature as to compromise or thwart the performance of the Contract.
Orders must be expressly confirmed in writing, by means of an order form duly signed by the Advertiser and/or its Agent.
Purchase orders must include the name of the Advertiser and, where applicable, the name of the Agent, the name of the action, product, service, brand name and/or trade name to be promoted, the date of publication and/or the duration of the sale of the Advertising Space, the medium(s), the Advertising Space(s), the selling price of the Advertising Space and the amount of technical costs and postage.
The order form is sent by LUCKYSIT, in response to a reservation request made by the Advertiser or his Agent. By signing the order form, the Advertiser accepts LUCKYSIT’s offer and acknowledges that he/she has read and accepted without reservation the General Terms and Conditions of Sale, and that he/she has received all the information and advice required to conclude the Contract. The signing of the Advertising Space Sales Framework Contract constitutes a firm and definitive commitment by the Advertiser. The order form and the Framework Agreement for the sale of Advertising Space, if signed by a representative of the Advertiser, are accompanied by a certificate of mandate duly completed and signed by the Advertiser. In the event of termination of the mandate, the Advertiser shall inform LUCKYSIT without delay and no later than fifteen (15) days before the end of the mandate.
LUCKYSIT is not obliged to execute purchase orders not signed by the Advertiser or his Agent, nor purchase orders placed by an Agent whose mandate has not been justified.
LUCKYSIT will only accept purchase orders placed by a sub-agent if the Advertiser has expressly authorized the substitution of the mandate in writing, and has justified this to LUCKYSIT in writing.
In order to be taken into account, all purchase orders must be received by LUCKYSIT eight (8) working days before the date of the event.
Failure to receive an order within this period shall automatically result in the Advertising Space concerned by the order being made available, which may be allocated by LUCKYSIT to any other Advertiser.
Modifications can only be accepted after signature by the Advertiser and/or its Agent of a new specific order form including a possible price adjustment.
It is expressly agreed between the Parties that the Advertiser and/or its Agent have no exclusivity.
The Contract takes effect from the date of signature of the order form and the Advertising Space Sales Framework Contract, for the duration stipulated in said Contract.
– Advertising rates
The sale price of the Advertising Space is set at the rates and commercial conditions in force on the day the order is placed, in accordance with the quotation previously drawn up by LUCKYSIT and accepted by the Advertiser and/or its Agent, as indicated in the “Orders” article above.
Prices are in euros and exclusive of tax. These prices are firm and non-revisable during their period of validity, as indicated by LUCKYSIT, notably in the order form.
Technical fees are expressed in euros and exclusive of tax.
An invoice is drawn up by LUCKYSIT and sent to the Advertiser for each provision of services.
Execution of the Contract at an agreed price does not oblige LUCKYSIT to execute any new order under identical commercial and pricing conditions.
Applicable taxes and duties are the responsibility of the Advertiser and/or its Agent.
The Advertiser and/or its Agent may benefit from price reductions, discounts and rebates, depending on the number of orders, or regularity of orders, under the conditions and according to the terms described in LUCKYSIT’s price lists.
Advertisers may, where applicable, benefit from the following degressive discounts (cumulative) on the sale price of Advertising Space or sponsorship, based on the accumulation of mandates: these apply to sales of Advertising Space for which the same Agent has handled at least two brands, products, services, actions or promotional offers and has invested in the medium on behalf of one or more advertisers during a given calendar year.
Non-compliance with the Contract by an Advertiser and/or its Agent excludes the application of any discount.
– Terms of payment
In accordance with the provisions of Law 93-122 of January 29, 1993, known as the “Sapin Law”, if the Advertiser has mandated an intermediary, LUCKYSIT must be in possession of the mandate certificate. The invoice will then be made out in the Advertiser’s name and sent to the Advertiser. Where applicable, a duplicate will be sent to the Agent, it being recalled however that when the Agent is mandated to make the payment, the Advertiser remains liable to LUCKYSIT for payment and undertakes to fully indemnify LUCKYSIT for any prejudice suffered, and in particular for any late payment penalty. These provisions also apply when the Advertiser is established outside France.
The Advertiser and/or the Agent undertake to pay in cash the full price indicated on the order form, on receipt of the invoice, by cheque or bank transfer.
No discount will be applied by LUCKYSIT for payment before the date shown on the invoice or within a period shorter than that mentioned in these GTC.
In the event of late payment by the Advertiser and/or the Agent, late payment penalties calculated at a rate equal to the rate applied by the European Central Bank to its most recent refinancing operation plus 10 points of the amount of the invoiced price, including VAT, will be automatically and by right acquired by LUCKYSIT, without any formality or prior formal notice, and without prejudice to any other action that LUCKYSIT may be entitled to take against the Advertiser and/or its Agent in this respect.
Late payment penalties will be applied from the due date of the principal to the date of full and effective payment. Furthermore, in the event of non-compliance with the above payment conditions, any invoice not yet due will become immediately payable and LUCKYSIT reserves the right to suspend the performance of its obligations and/or to reduce or cancel any discounts granted to the Advertiser and/or the Agent and/or to refuse subsequent orders or make them subject to guarantees or cash payment conditions. In the event of partial payment, payments made will be presumed to relate first to penalties and interest for late payment, and then to the oldest orders.
In accordance with articles L.441-6 and D.441-5 of the French Commercial Code, any delay in payment will automatically entail, in addition to late payment penalties, an obligation for the Advertiser and/or Agent to pay LUCKYSIT a fixed indemnity of 40 euros for collection costs. An additional indemnity may be claimed by LUCKYSIT, upon justification, if the collection costs incurred are higher than the amount of the fixed indemnity.
Unless expressly agreed otherwise in advance and in writing by LUCKYSIT, and provided that reciprocal claims and debts are certain, liquid and due, no compensation may be validly effected by the Advertiser and/or the Agent between the sums invoiced by LUCKYSIT and the claims it may have against LUCKYSIT in any capacity whatsoever.
Without prejudice to LUCKYSIT’s right to payment of the full agreed price, any delay or refusal of payment entitles LUCKYSIT to :
– suspend performance of the Contract without notice until full payment of the sums due ;
– terminate the Contract by operation of law and withdraw all of the Advertiser’s Advertisements.
– Advertiser’s obligations – Guarantees
The Advertiser authorizes LUCKYSIT on a non-exclusive basis and free of charge, on French territory, to use, reproduce, represent, adapt and make available to the public the elements of the Advertisements, and in particular its brand(s).
Advertisements appear under the sole responsibility of the Advertiser.
The Advertiser or his Agent guarantees that he is the sole and exclusive author of the elements contained in the Advertisements (texts, images, drawings, etc.) and/or that he is the holder of all intellectual property rights allowing the publication of the Advertisements. The Advertiser is responsible for obtaining the necessary authorizations for the publication of the Advertisements, particularly with regard to image rights, and guarantees that the elements communicated to LUCKYSIT are free of all rights.
The Advertiser and his Representative undertake to ensure that the Advertisements comply with the laws and regulations in force and with the recommendations of the Autorité de Régulation Professionnelle de la Publicité (ARPP). In particular, the Advertiser and its Representative guarantee that the Advertisements do not contain any false allegation, indication or presentation or one that is likely to mislead the consumer.
In accordance with law no. 94-665 of August 4, 1994, Advertisements must be written in French or, where applicable, be accompanied by a French translation.
In accordance with law n°2016-41 of January 26, 2016, Advertisements featuring a model whose body appearance has been altered must in particular bear the words “retouched photograph”, which the Advertiser guarantees. All Advertising must be clearly presented as advertising by the Advertiser.
The Advertiser also expressly refrains from disseminating Advertisements that are contrary to public order or morality, or Advertisements that would damage the brand image of the media, depending on the audience concerned. The Advertiser also guarantees that the Advertisements are not defamatory and do not infringe the rights of third parties.
A clickable hypertext link in the Advertisement must redirect to the Advertiser’s site. The Advertiser guarantees that the contents of the site are directly related to the Advertising and do not infringe public order, morality or applicable regulations.
More generally, the Advertiser undertakes to comply with the technical requirements communicated by LUCKYSIT.
LUCKYSIT is entitled to request from the Advertiser and/or his Agent any document necessary to assess the compliance of the Advertisements with laws, regulations and customs. The Advertiser and/or his Representative undertake to provide these documents without delay.
The Advertiser undertakes to indemnify and hold LUCKYSIT harmless from any claim or action brought against it and from any judgment that may be rendered against it as a result of a breach by the Advertiser and/or its Agent of the Agreement.
– LUCKYSIT’s liability
LUCKYSIT’s liability is assessed on the basis of an obligation of means and may only be sought in the event of direct prejudice demonstrated by the Advertiser and/or its Agent.
The Advertiser and/or its Agent may only hold LUCKYSIT liable for the execution of the order form or the GTC if the alleged breach is expressly reported to LUCKYSIT by registered letter with acknowledgement of receipt within one month of its discovery, and if the breach has not been remedied within the same time period.
In the event that the complaint relates to an invoice, it must be brought to the attention of LUCKYSIT by registered letter with acknowledgement of receipt sent within fifteen (15) days of the date of issue of said invoice. Failing this, no dispute will be accepted. In any event, the Advertiser and the Agent undertake to pay, without delay, the undisputed part of the invoice.
Any claim relating to the commercial repercussions, the editorial or advertising environment of the sale of Advertising Space, will in no case be taken into account. LUCKYSIT excludes all liability in the absence of compliance by the Advertiser and/or its Agent with the Contract and LUCKYSIT’s technical standards.
LUCKYSIT cannot guarantee that competing Advertisers will not be present on adjacent or contiguous Advertising Spaces. However, LUCKYSIT will do its best not to expose Advertisers to this situation.
LUCKYSIT shall not be held liable in the event of a case of force majeure within the meaning of article 1218 of the French Civil Code, in the event of Internet network malfunction or, more generally, any fortuitous or external event likely to delay or prevent the insertion and/or distribution of Advertisements in accordance with the Contract. The Parties expressly agree that the delay or failure to insert and/or distribute the Advertising may not justify termination of the Contract by the Advertiser and/or its Agent, nor give rise to compensation. LUCKYSIT will use its best efforts to propose to the Advertiser a reprogramming, extend the duration of broadcast and/or propose other Advertising Spaces in compensation.
– SAPIN II
Each of the Parties undertakes to comply with and to ensure that its employees and subcontractors comply with the regulations in force concerning fraud and the fight against corruption, and in particular Law n°2016-1691 known as “Sapin II” of December 9, 2016. In this respect, the Parties undertake not to offer, directly or indirectly, advantages to third parties, not to accept, directly or indirectly, gifts for themselves or for third parties, not to grant or be promised advantages that could be seen as acts of corruption within the meaning of the so-called “Sapin II” law.
Any failure by either Party to comply with this clause shall be considered a serious breach which may result in termination of the Contract, without notice or compensation, and without prejudice to any legal proceedings and/or claim for damages against the defaulting Party.
Right of refusal: LUCKYSIT may, at any time, refuse to broadcast or interrupt any broadcast of an Advertisement contrary to the requirements set forth in article 8 of the GCS.
In the same way, LUCKYSIT reserves the right to refuse any Advertising whose origin would seem dubious, any Advertising contrary to public order and/or morality, or which would be contrary to the rules applicable to the Advertiser’s profession, or any Advertising which would be likely to offend the moral, religious and political convictions of the public.
– Cancellation – Modification
Any request for modification or total or partial cancellation must be notified in writing to LUCKYSIT. If the request is received after the deadlines mentioned in article 3 of the GCS, the total price indicated on the order form will automatically be invoiced by LUCKYSIT to the Advertiser.
In the event of cancellation resulting from a fault on the part of LUCKYSIT, its liability will be limited to the amount of the sums already paid by the Advertiser and/or its Agent for the purchase order concerned.
– Personal data
Each of the Parties undertakes to collect and process any personal data in compliance with the regulations in force, and in particular the amended Law no. 78-17 of January 6, 1978 relating to information technology, files and freedoms and Regulation (EU) 2016/679 (hereinafter, “RGPD”). The Parties also undertake to comply with the recommendations and guidelines of the supervisory authority (CNIL).
The Advertiser and/or its Agent are informed that LUCKYSIT processes personal data for invoicing and payment management purposes. In addition, LUCKYSIT processes personal data relating to unpaid customers. The Advertiser and/or his Agent expressly acknowledge that they are concerned by this type of processing in the event of late or non-payment.
Such data may, where applicable, give rise to a right of access, rectification, deletion, opposition, data portability and processing limitation. Any request concerning the exercise of a right must be made by e-mail to the following address: email@example.com
In addition, Plotters deposited or inserted in Advertisements delivered to LUCKYSIT in order to be inserted on a LUCKYSIT mobile application medium by the Advertiser and/or its Agent, or more generally any collection of data from a natural person (users) consulting the media is subject to the express, prior and written authorization of LUCKYSIT.
The request for authorization must include at least: the technical characteristics of the Tracers, the purposes of data collection, the type of data collected, the period of validity of the Tracers, the means of objecting, the recipients of the data collected, the location of data hosting and storage, and any additional information requested by LUCKYSIT.
The Advertiser and/or its Agent, where applicable, act as data processors for the Tracers they directly or indirectly issue and undertake to comply with the applicable regulations and the deliberations/recommendations of the CNIL.
In addition, in all cases, the Advertiser and/or Agent undertake to :
– not to collect any data on the digital media other than those agreed with LUCKYSIT and not to use the data collected on the digital media for any purpose other than those indicated to LUCKYSIT; it being specified that, unless otherwise authorized in writing by LUCKYSIT, the only data that may be collected through these Trackers is user browsing information that is not directly identifiable concerning the content consulted on the digital media for measurement purposes and/or in order to adapt advertising messages.
– to respect the legal retention period for Trackers, as well as the recommendations of the CNIL;
– not to collect “sensitive” data within the meaning of the RGPD on digital media as well as data from minors under the age of 15 ;
– guarantee the confidentiality of personal data;
– collaborate with LUCKYSIT in order to meet its obligations and comply with the RGPD by, in particular, sharing all documentation at its disposal in order to demonstrate compliance with said obligations;
– keep a register of all categories of processing activities carried out under the Contract;
– implement the technical and organizational measures necessary to ensure the security of personal data in relation to the existing risk (pseudonymization, encryption, guarantees ensuring the confidentiality, availability, resilience of processing systems and services, procedures to test the measures put in place,) ;
– communicate to LUCKYSIT, the name and contact details of its data protection delegate, if it has appointed one, in accordance with Article 30 of the RGPD ;
– ensure that its subcontractors comply with the same requirements;
– to respect the refusal of consent of natural persons (Internet users) concerning all or part of the purpose of the processing, the deposit of Tracers by the Advertiser and/or the Agent. The Advertiser and/or its Agent shall refrain from collecting data from a user who has not given his consent to the collection of his data via the Tracker.
Users are reminded that, in accordance with applicable data protection regulations, they must be able at any time, simply and free of charge, to choose to refuse the recording of Trackers on their terminal, which the Advertiser and/or its Agent expressly acknowledge.
The Advertiser and/or its Agent undertake to provide any information deemed necessary to attest to the conformity of the processing carried out.
LUCKYSIT reserves the right to modify and/or deactivate the Trackers present on the digital media, to stop the Advertising, or to request the modification, the compliance and/or the immediate deletion of the Trackers by the Advertiser and/or the Agent, in particular in case of lack of authorization and/or compliance. Should the Advertiser and/or Agent fail to remove or modify the Tracers, LUCKYSIT may claim damages.
In such a case, the Advertiser and/or his Agent shall remain liable for the sale price of the Advertising Spaces as well as the technical costs.
Any Tracers deposited hereunder shall be deposited under the sole responsibility of the depositor. The Advertiser and/or the Agent undertake to indemnify LUCKYSIT against all losses, damages and costs arising from any breach of this clause. The Advertiser and/or the Agent remain in any case responsible for the payment of the advertising campaign.
In any event, LUCKYSIT shall not be liable for any compensation or indemnity whatsoever to the Advertiser or third parties in the event of malfunctions related to cookies placed by the Advertiser and/or its Agent, or in the event of delay/cancellation of an Advertisement resulting from such malfunction.
– General provisions
In the event that one or more provisions of the GCS are deemed invalid by a competent court, the other clauses shall retain their scope and effect. Neither Party may make any commitment in the name and/or on behalf of the other Party. Furthermore, each Party remains solely responsible for its allegations, commitments, services, products and personnel.
In order to find a joint solution to any dispute arising in the performance of the Contract, the parties agree to meet within 7 days of receipt of a registered letter with acknowledgement of receipt, notified by one of the two parties.
The present amicable settlement procedure constitutes a compulsory prerequisite to the commencement of legal proceedings between the Parties. Any legal action brought in breach of this clause will be declared inadmissible.
However, if at the end of a one-month period, the Parties are unable to agree on a compromise or a solution, the dispute will be submitted to the jurisdiction designated below.
– Jurisdiction and applicable law
The Contract is governed by French law.
Any dispute which may arise in connection with the interpretation or performance of the present contract shall be referred to the courts of Lyon, which shall have exclusive jurisdiction regardless of the terms of payment accepted, even in the event of a warranty claim or multiple defendants, notwithstanding any clauses to the contrary.