Cleeng Publisher Agreement

IMPORTANT – PLEASE READ CAREFULLY

CLEENG TERMS OF SERVICE

All services provided to our customers (“you“) by Cleeng B.V. (“we” or “us“), a limited liability company duly organised and existing under the laws of the Netherlands with its registered office at Reimersbeek 14 (1082 AG) Amsterdam, chamber of commerce registration number 34392902 are subject to the Agreement.

The Agreement between you and us is comprised of a Service Order Form and this Cleeng Service Agreement including the schedules thereto. Standard fees and rates are included in Schedule 1: Cleeng Rate Card. Specific fees and rates may be included in the Service Order Form. Certain services are also governed by the terms set out in the SLA, available upon request.

We have tried to draft the Agreement in a clear and simple manner. However we completely understand if you have any questions regarding the Agreement or about the way we operate. Please do not hesitate to contact us if should you have any questions. We are happy to answer them.

GENERAL

  1. Definitions
  • In this Agreement the following terms written with a capital letter shall have the meaning as set out below:
    • Agreement, the Service Order Form and this Cleeng Service Agreement including the schedules thereto;
    • Chargebacks, these typically refer to the return of funds to End-User, forcibly initiated by the issuing bank of the payment method used by an End-User for his purchase.
    • Cleeng Account, personal online environment made available to you by us in which you can provide instructions and information, manage settings and review reports in your visual dashboard;
    • Customer Content, any and all content distributed by you or on your behalf either via the Services or otherwise;
    • End-User, registered users, or subscribers, or pay-per-view buyers using a registered account to authenticate and get entitlement to access the Customer Content;
    • Refund, End-users have the opportunity to request refunds if the content bought is not as described, or if the service/content wasn’t delivered according to the SLA
    • Service Order Form, the document executed between you and us to order specific Services under the Agreement;
    • Services, all products and services provided by us;
    • SLA, Service Level Agreement in which key performance indicators for specific services are agreed upon.

 

  1. Services
  • We strive to provide Services to the best of our ability, to offer state of the art Services. We shall at all times provide Services with commercially reasonable efforts. We will respect and protect your privacy, data and personal information. Like us, you run your own business, service your customers, protect your customers’ data, report and pay taxes, and observe all laws, rules, and regulations.
  • In order for the Services to function as intended we are dependent on your good faith cooperation and the provision of all information that is reasonably required in order for us to deliver the Services. You represent and warrant that all information provided is correct and up to date and that you shall promptly update provided information or provide additional information if so reasonably required for the provision of the Services.
  • We may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the term of the Agreement, including to reflect changes in technology, industry practices, patterns of system use, and availability of third party content and software. Changes to the Services will not result in a material reduction in the level of performance, security or availability of Services provided to you for the then current term of the Agreement.
  • You order Services by means of the execution of a Service Order Form. Services are subject to and governed by the Agreement. In case of discrepancies between a Service Order Form and the Cleeng Service Agreement, the contents of the Service Order Form prevail. All Service Orders Forms are subject to our confirmation.

 

  1. Cleeng Account
  • In order to benefit from the Services we shall provide you with access to a Cleeng Account assigned to your company. In this respect you shall be furnished with a username and password required to access your designated Cleeng Account.
  • You understand that End-Users may need to enter into an End-User-Agreement with us in order for them to be able to access their End-User Cleeng Account and Customer Content. The terms of the End-User-Agreement are available via https://cleeng.com/cleeng-user-agreement.
  • You agree to safeguard the confidentiality of the usernames and passwords required for access to the Cleeng Account. Services will be performed based on the settings in the Cleeng Account and you are responsible for all information provided to us via the Cleeng Account.
  • The interfaces of the Cleeng account can be personalized to reflect your own brand look and feel. This also applies to sign up- and login screens, payment processing screens, customer e-mails and online support environment.

 

  1. Managing End-User purchases
  • We shall handle End-User purchases of Customer Content with care and according to the instructions provided by you. You understand that you are responsible for the management of the settings and preferences for purchases using your Cleeng Account.
  • Reports regarding End-User purchases of Customer Content are available via the Cleeng Account.
  • End-User purchases’ management is comprised of authentication and entitlement. Before Customer Content is released to an individual End-User we shall validate whether or not the End-User is a person authorized to access Customer Content and we shall validate whether or not the End User is entitled to access the requested Customer Content.
  • You are solely responsible for any change to the Customer Content conditions, including, price, content availability or membership benefits. Note that any change to Customer Content conditions may impact negatively conversion rates, renewal rates, increase User claims and reduce User loyalty.
  • Payments by credit cards (e.g., Visa, MasterCard, Amex) are always free of charge for the End-User. For specific payment methods chosen by the End-User, we may automatically add transaction fees to the purchase, based on the actual cost paid to payment providers.

 

  1. Fund collection and reimbursement
  • Except if specifically agreed otherwise, we will collect the funds for purchases of Customer Content from End-Users on your behalf. Depending on your Cleeng Account preferences you have set up, fees will be accumulated in the selected currency (e.g., Euros, US Dollars, etc.) .
  • If Customer Content purchases are made by End-Users in a different currency as set up in your Cleeng Account, such funds will be automatically converted into your Cleeng Account currency. The conversion price shall be calculated using the daily exchange rates of the European Central Bank and any direct banking costs or financial fees that we receive.
  • We will – if funds have been received in a given calendar month – send you a monthly electronic invoice containing the funds received on your behalf during a calendar month. Such details are available via the Cleeng Account. The invoice shall include collected funds, the amount of transactions successfully completed, the amount of refunds and chargeback received, and applicable levies or taxes.
  • If you do not dispute the electronic invoice before the 10th of each month, we will make payment to you before or on the 15th, provided you have correctly provided your bank transfer details . Payment shall be made by means of bank transfer to the account indicated by the you or via PayPal if possible. Payment shall be made in Euro or US dollar or British Pound depending on your Cleeng Account preferences. Note, Cleeng will cover the bank transfer fees, yet certain banks may charge extra fees that Cleeng cannot be held liable for.
  • Refunds & chargeback: If the End-User is entitled to a refund of their purchase (see clause 6), or files a successful chargeback, we will retain a fixed 1Euro fee (or $1, or its equivalent in publisher currency) for processing such a refund or 8Euro (or $8, or its equivalent in publisher currency) for the management of a chargeback. The End-User will receive back the entire amount of the payment (including fees), and we will debit your account for the amount of the refund plus the fixed fee for processing the refund or chargeback.
  • We shall not make payment if the sum to be paid is less than 100 Euro’s (or $100, or its equivalent in publisher currency). To cover for claims of abuse and on-going transactions, we shall keep a deposit equivalent of 5% of the average monthly accumulated fees and in no event less than 50 Euro’s (or $50, or its equivalent in publisher currency). Deposit amounts may be adjusted automatically at any time would the risk profile of your Cleeng Account reasonably justifies so. For example, if one or more previous deposits have proved insufficient, and/or if the amount of claims is significantly higher than what is usual in respect of comparable clients, and/or if there is a financial risk linked to the account, and/or if a third party payment processor increases our total deposit, such a reasonable justification is deemed present.
  • Subject to timely payment of fees you are not entitled to interest accrued over the fees we have collected on your behalf.
  • If we have agreed that we do not collect fees on your behalf, our responsibility regarding fee collection is limited to providing compatibility with the standard API’s of providers of payment processing and fee collection services. We do not warrant the Services are or will remain compatible for use with all providers of payment processing and fee collection services. Should you decide to use a third party’s or your own payment processing and fee collection services, you are recommended to consult us prior to such use and the provisions of clause 14 apply.

 

  1. Refund requests
  • End Users are able to file refund requests regarding Customer Content. Such refund requests can be based on various circumstances such as the quality of Customer Content, availability of Customer Content, misleading descriptions of Customer Content etc.
  • You can access the refund request regarding your Customer Content in your Cleeng Account.
  • Based on the Customer Care conditions described in our SLA, we shall determine whether or not a refund request should be considered valid or invalid. If we are of the reasonable opinion that a valid refund request was issued, the fees paid by the End User shall be reimbursed and deducted from the fees we owe you based on purchased Customer Content or otherwise.

 

  1. Chargeback requests
  • End Users are able to file a chargeback through their bank, financial institution or PayPal.
  • You acknowledge that we do not have any control over a chargeback request.
  • We cannot be held financially or operationally responsible for chargebacks. Would the deposit amount not be sufficient to cover your chargeback, you recognize the difference shall be paid back to us.

 

  1. Prices and payment
  • The applicable fees and commercial terms are exclusive of taxes and levies and are listed in the Service Order Form and/or Schedule 1: Cleeng Rate Card. Note, the “$” sign means USD in all our documents.
  • All amounts payable to us are to be paid within 30 days of invoice, or on the due date, whichever is earlier. In this respect we are entitled to deduct the amounts payable to us from amounts that we owe you.
  • All amounts payable to us shall be paid without suspension, set off and free and clear of, and without deduction of, any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation value added tax and withholding tax. If you are at any time required by any applicable law to make any such deduction from any payment due to us under this Agreement, then the amount due to us in respect of such payment shall be increased by such amount as will result, notwithstanding the making of such deduction, in our receipt on the due date for payment of each amount, of a net sum equal to the amount that we would have received if you had not been required to make such deduction.
  • We are entitled to annually adjust fees for Services on a reasonable basis. This shall be done on the basis of relevant price indexes of economies which affect our business and other costs relevant to the industry sector in which we operate – which includes increased transaction costs if you are subject to an unusual amount of chargebacks. We shall notify you of such a change in advance. In the event you do not agree to the amended fees you must notify us within one (1) month after a notification has been issued. In such event we shall continue to provide the Services for the un-amended fees and the Agreement shall terminate upon expiry of the then current term.
  • Travel and living expenses are not covered by our standard commercial terms, and those agreed in advance will be billed at cost in accordance with your travel guidelines and policies. If the expectation is to work at your local site, we will organize travel arrangements and expense related costs.

 

  1. Licenses
  • For the term and purpose of the Agreement we grant you, subject to timely payment of all fees, the non-exclusive, non-transferable and non-sublicensable right to access and use the software provided by us in the context of the Services.
  • You or your licensors retain all ownership and intellectual property rights in and to Customer content. We or our licensors retain all ownership and intellectual property rights to the Services and to anything developed or delivered by or on behalf of us pursuant to the Agreement.
  • In order to enable us to provide Services, you grant us the non-exclusive and non-transferable right to, solely for you and on your behalf, facilitate distribution of Customer Content.
  • You agree to indemnify and hold us harmless against any and all third party claims, actions, liability, demands, damages and/or loss of any nature whatsoever together with all costs, expenses and/or other liabilities incurred in connection with any use of the Services and/or any part thereof in breach of the provisions of the Agreement, contrary to any applicable law, rule, regulation and/or order, and/or in a manner which infringes the rights of a third party.
  • In the context of the Services provided and on our website for reference purposes, we are entitled to use and/or make public your logo, trademarks, tradenames and other information provided for by you. You may withdraw such consent at any time at your own discretion.

 

  1. Content
  • We as Cleeng believes in quality content. Cleeng would like to provide you and your End-User with a service that cannot be deemed, or associated with, offensive or improper behaviour and content. This is of value to you, us and the End-User.
  • We are an intermediary for the distribution of Customer Content and do not exercise control over Customer Content. You are solely responsible for all Customer Content. You represent and warrant that you are fully entitled to distribute and make public the Customer Content you provide via the Cleeng Account.
  • You shall obtain at your own expense any rights and consents from third parties necessary for the publication and distribution of Customer Content. You agree to indemnify us and hold us harmless from all third party claims related to Customer Content, You are responsible for the correct and timely payment of all taxes and levies applicable to the distribution and publication of Customer Content.
  • We strive to provide you with Services that cannot reasonably be deemed offensive or improper. In this respect, you are is not allowed to use our Services in connection with content which may reasonably be considered – in our reasonable discretion – defamatory, discriminating, promoting bigotry, hatred or harm, pornographic, infringing, unnecessary aggrieving, which otherwise violates applicable laws, ordinances or regulations or is otherwise unfit for association with the Services.
  • We – without prejudice to any other rights – reserve the right withhold payment of sums due, and payable to you, in the event you breach the provisions of this clause 10.

 

  1. Warranties
  • We warrant that we will perform Services in material aspects as described in the Agreement and in a professional manner. Due to the nature of the Services we cannot warrant:
    • that, despite  of all of our efforts, Services will be provided for error-free, uninterrupted or that it is able to correct all errors; and
    • that, despite our interest in your business and processes, Services will meet at all times your requirements, specifications or expectations.
  • You recognize that the internet technical infrastructure is highly fragmented and may lead to unpredictable interruption(s) of the Services, beyond anyone’s control. For example, we do not control the transfer of data and content over the internet and as such the Services may be subject to limitations, errors, delays and other issues inherent in the use of communication facilities such as the internet.
  • To the extent not prohibited by mandatory law, the warranties in the Agreement are exclusive and there are no other express or implied warranties or conditions regarding merchantability, quality or fitness for a particular purpose.

 

  1. Security
  • We understand that the security of Customer Content is an important aspect of your business. We provide state of the art consumer e-commerce and user management solutions to make sure that our infrastructure, software and processes are in line with best industry standards. The security measures applicable to the Services are aimed to meet specifications in writing regarding security. In the event the Agreement does not include explicitly defined security methods, the security provided shall meet a standard that is not unreasonable in terms of state of the art, commercial feasibility and sensitivity of Customer Content.
  • A breach of security exists if significant public can access Customer Content due to a fault in the Services. Note that we cannot warrant that the security provided for is effective under all circumstances or in all events. However we will take action to remedy a breach of security as provided in this clause 12.
  • In order to enable us to effectively respond to a breach of security, you shall promptly notify us should you become aware of the occurrence of any (suspected) breach of security, and provide as much details as possible about the nature of the breach. In this respect you acknowledge that the Services are directly or indirectly – as of their nature – not always fully secure.
  • In the event of a breach of security or suspected breach of security, you shall cooperate with us and shall procure that your employees, sub-contractors, suppliers and service providers shall cooperate with us in good faith in all respects in order to remedy a breach of security. You shall adhere to our reasonable instructions in this respect. If you do not implement measures suggested by us within a practicable period, we have no liability in regard to a breach of security.
  • On receipt of a notification, we shall use commercially reasonable endeavours to remedy a breach of security or to the limit the consequences thereof if possible. You understand that any breach of security resulting from any act or default by you shall only be remedied at your expense.
  • We have no obligation for a breach of security other than as stated in this clause. In the event of a breach of security, our liability is subject to clause 17.

 

  1. Privacy
  • We will (on your behalf) receive or otherwise have access to information or data that constitutes personal information concerning an identifiable individual (“Personal Data“). We shall process Personal Data in accordance with the Agreement and our privacy policy available via https://cleeng.com/privacy.
  • If Personal Data is processed the following is taken into account:
    • We both acknowledge that the you are the data controller and we are the data processor (both “data controller” and “data processor” as meant in the EU Data Protection Directive (Directive 95/46/EC) in respect of any Personal Data.
    • We shall process the Personal Data on your behalf only, and only in accordance with the Services and your instructions from time to time. We shall not process the Personal Data for any purpose other than those authorized by you and to the extent permitted by law;
    • we shall keep Personal Data confident;
    • we shall implement adequate technical and organization measures to – taken into account the state of the art and the nature of Personal Data – prevent unauthorized or unlawful data protection or accidental loss, destruction or damage to Personal Data;
    • you warrant that you will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments. Furthermore, you warrant that you are entitled to engage us as data processor;
    • You understand that we are reliant on you for direction as to the extent to which we are entitled to use and process the Personal Data. Consequently, we will not be liable for any claim brought by an identifiable individual arising from any action or omission, to the extent that such action or omission resulted from your instructions.
  • We may:
    • compile statistical and other information related to the performance, operation and use of the Services;
    • use data in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes.

 

  1. Third party suppliers
  • You will – if necessary – enter into agreements with other suppliers or providers of materials, hardware, third party software and services deemed necessary for the operation of the Services. We exclude liability for any goods or services supplied by third party suppliers.
  • Any third party content made accessible by us is provided on an “as-is” and “as-available” basis without any warranty of any kind.
  • You acknowledge that:
    • the nature, type, quality and availability of third party content may change at any time during the period Services are provided for; and
    • features of the Services that interoperate with third parties such as but not limited to Facebook, Google, PayPal, Adyen, Amazon Web Services and Twitter, etc. depend on the continuing availability and proper performance of such third parties’ respective application programming interfaces (APIs) for use with the Services.

 

  1. API Interface
  • You must at all times fully comply with the current specifications and usage practices of the Services as described in API documentation. We have the right to adjust performance or to terminate the Agreement if you are not compliant with the specifications. Notwithstanding the previous sentence, you shall have a right to cure any alleged non-compliance within thirty (30) days of receipt of written notice of any claim of non-compliance.
  • You must ensure that all Personal Data and transaction information requested by Cleeng to validate the authenticity of the user transaction is provided in time and in full. Cleeng has the right to adjust performance or to terminate this Agreement if we do not receive the required data.
  • We may revise from time to time the specifications and/or data requirements needed to use the API, by giving you reasonable written notice. You shall have the right to terminate the Agreement with notice in the event that such modifications are an unreasonable burden for your business.

 

  1. Confidentiality
  • By virtue of the Agreement, we both may have access to information that is of a confidential nature (“Confidential Information“). For the avoidance of doubt, Confidential Information shall include:
    • the terms of the Agreement;
    • all information whether of a technical nature or otherwise relating in any manner to the business or affairs of the disclosing party as may be communicated to the receiving party pursuant to this Agreement;
    • Personal Data; and
    • all know-how, techniques, ideas, principles and concepts which underlie any element of the Services, and which may be apparent by the use, testing or examination thereof.
  • During the term of the Agreement and after its termination or expiration for any reason whatsoever, each party shall:
    • keep the Confidential Information confidential;
    • not disclose the Confidential Information to any other person other than with the prior written consent of the disclosing party, or in accordance with clause 16.4 below; and
    • not use the Confidential Information for any purpose other than the performance of its obligations under the Agreement.
  • A party’s Confidential Information shall not include information that:
    • is or becomes a part of the public domain through no act or omission of the other party;
    • was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
    • is lawfully disclosed to the other party by a third party without restriction on the disclosure; or
    • is independently developed by the other party.
  • Parties may disclose Confidential Information for purposes of the Agreement only to those employees, agents or subcontractors (which for this purpose includes our subcontractors) involved in the Services who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement.
  • The obligations of confidentiality shall not apply to any Confidential Information which:
    • is in the public domain, or which becomes generally available to third parties by publication or through no fault of the receiving Party;
    • the receiving party is able to show to the reasonable satisfaction of the disclosing party was lawfully in its possession prior to such disclosure and was not acquired directly or indirectly from the disclosing party;
    • is lawfully obtained by the receiving party from a third party not similarly bound by such confidentiality obligations; or
    • is required to be disclosed by law or by any regulatory or governmental authority. In this event the receiving party shall notify the disclosing party as promptly as practicable, and if possible prior to making any disclosure, and shall use its reasonable endeavours to seek confidential treatment of such information.

 

  1. Liability
  • We do not exclude, or limit our liability, to the extent our liability may not be excluded or limited pursuant to mandatory law in which events no limitation or exclusion of liability shall apply.
  • Unless performance is permanently impossible, we are liable due to an attributable failure in the performance of the Agreement if you issue a notice of default in writing without delay and grant us a reasonable term to remedy the breach, and we culpably fail to fulfil our obligations after that term has passed.
  • Our total liabiltiy – regardless of the legal ground a claim is based on – is limited to direct damages only and shall not exceed the fees (exclusive of taxes) paid to us by you under the agreement during the six (6) months period immediately preceding the date when such liability arises.
  • Our liability for indirect damages such as: consequential damages, loss of profits, loss of savings, loss of goodwill, loss due to business interruption, loss as a result of claims of your customers, loss arising from use of third parties or third party materails prescribed to us by you is excluded.
  • The provisions of this clause and all other limitations and exclusions of liability also apply for the benefit of all (legal) persons that we engage in the performance of the Agreement.

 

  1. Force Majeure
  • Neither of us shall be responsible for failure or delay of performance outside the reasonable control of the obligated party if caused by: an act of war, hostility, or sabotage; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export, import or other license); or other event outside the reasonable control of the obligated party. We agree to use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 (thirty) days, either of us may cancel unperformed Services and affected orders upon written notice. This clause does not excuse either party’s obligation to take reasonable steps to follow normal disaster recovery procedures or any obligation to pay for Services. In the event of termination, and if applicable, we will refund prepaid fees for terminated Services for the period following the effective date of termination.

 

  1. Term
  • A term of one (1) year shall apply if no term has been included in the Service Order Form. After the initial term the Agreement is constantly renewed for additional 1 year periods unless the Agreement is terminated in accordance with clause 20.
  • In the event the Agreement is a single performance contract the Agreement terminates upon the performance thereof.

 

  1. Termination
  • The Agreement may be terminated by written notice by either of us at the end of its term with adherence of a one (1) months’ notice period. Furthermore you are entitled to terminate the Agreement at any moment, however no refund shall be made in the event of such termination for convenience and all fees due under the Agreement become payable upon termination.
  • The Agreement may be terminated immediately by written notice by either of us if any action or proceedings under any bankruptcy or insolvency law are taken by or against the other party, or if any event similar to any of the foregoing under the law of any jurisdiction has occurred in respect of the defaulting party.
  • The Agreement may be terminated by either of us if the other party commits a material breach of any term of this Agreement which in the case of a breach capable of being remedied, has not been remedied within 30 (thirty) days of a written request to remedy the same.
  • Any termination of the Agreement shall not affect any other rights to which either of us may be entitled hereunder or at law, including any accrued rights or liabilities of either of us. All fees agreed until a given term become payable upon a termination of the Agreement unless the Agreement is terminated by you based on clause 20.2 or clause 20.3.
  • You will have access to your Cleeng Account for a period of 3 months after the termination of the Agreement in order for you to download data from the Cleeng Account. We are not obliged to retain your data after this 3 month period. Furthermore, continued use of your Cleeng Account after termination will be charged against our standard pricing terms. The Agreement continues to govern you for any continued use of the Services after termination.

 

  1. Miscellaneous
  • The Agreement replaces all prior agreements and arrangements between us relating to its subject matter and constitutes the entire understanding relating to the subject matter of this Agreement. No oral representations, warranties or promises shall be implied as terms of this Agreement unless expressly incorporated herein. The applicability of your purchasing or other conditions is excluded.
  • If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of the Agreement.
  • Any variation of or addition to the Agreement shall only be of any force or effect if reflected in writing and signed by both of us and expressed to amend the Agreement.
  • A waiver by either of us of a breach of any term or condition of this Agreement in any one instance shall be in writing and shall not be deemed as a continuing waiver or a waiver of any other or subsequent breach unless the written notice so provides.
  • We are entitled to assign, cede or transfer or otherwise dispose of any of its rights and obligations under the Agreement, provided that we shall give you prompt written notice of such assignment, cession, transfer or disposal.

 

  1. Governing law and forum
  • The Agreement is exclusively governed by and construed in accordance with the laws of the Netherlands, without reference to the choice of law provisions thereof and the applicability of the United Nations Convention on Contracts for the International Sale of Goods 1980 is excluded. Any dispute arising out of or related to this Agreement shall be determined by the competent Amsterdam court, the Netherlands, to whose exclusive jurisdiction we both irrevocably submit.
  • Before resorting to any legal proceedings, we both agree to use our best efforts to negotiate in good faith and settle amicably any dispute that may arise.

 

Schedule 1: Cleeng Rate Card

 

Except if agreed otherwise, your use of the Services will be charged at the price(s) listed here.

Other options may apply based on your exact requirements. See your Order Form.

 

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Thank you for reading Cleeng’s Terms of Service.

 

Version: March 8th, 2017