TERMS AND CONDITIONS FOR SERVICE
Date of last revision: 14 April 2011
This website www.qwaya.com (the "Website") is owned and operated by:
Qwaya AB, a company organised under the laws of Sweden
SE-111 44 Stockholm
(hereinafter "Qwaya Co")
The following terms and conditions regulate the access to and use of the Services (as defined below). Please review the terms and conditions carefully.
In order to use the Services you must be a registered user and have an advertising account on www.facebook.com ("Facebook") and you must unconditionally consent to and accept these terms and conditions (including those regulating the processing of personal data) by ticking the "I agree" box by the end of this terms and conditions whereby you are entering into a legally binding agreement with Qwaya Co.
In these terms and conditions, certain definitions (identified with initial capitalization) used shall have the meaning as specified on Facebook. In addition, the following additional definitions shall have the meanings set forth below. Additional definitions are also provided else-where in these terms and conditions.
"Agreement" means these terms and conditions including all policies, procedures and/or guidelines which appear on the Website from time to time as well as all Facebook Terms.
"Ads Content" means any and all information and files that you post on Facebook by the use of the Services.
"Consumer" means as defined in article 2 of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts.
"Directive on electronic commerce" means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
"Facebook Ads Campaign Manager" means the service available at Facebook's online advertising portal, currently available on www.facebook.com/ads/manager.
"Facebook Terms" means any and all terms and conditions including policies, procedures and/or guidelines on Facebook from time to time and currently published on http://www.facebook.com/#!/terms.php.
"Qwaya" means Qwaya Co's Facebook social ads campaign, a technical application, which is used to provide the Services.
"Trial Period" means the subscription service that entitles you to test to use Qwaya as a normal paying user for a total period of 14 days without paying.
"Basic Membership" means the subscription service that entitles you to use Qwaya to publish no more than 50 ads on Facebook each day.
"Premium Membership" means the subscription service that entitles you to use Qwaya to publish no more than 1000 ads on Facebook each day.
"Services" means the web based features and services included in Qwaya that enable you to manage and tailor your production and publication of ads on Facebook through Facebook Ads Campaign Manager and do so at scale.
3 USE OF THE SERVICES
You must have an advertising account on Facebook in order to use the Services.
Only individuals that are 18 years or older are permitted to use the Services that are free of charge. The Website is not intended for children under the age of 18. Qwaya Co does not target its Services or the Website to children under the age of 18. Qwaya Co does not knowingly collect Personal Data (defined in Section 8 below) from children under the age of 18.
The Premium Membership may only be used for purpose of your trade, business or profession and only individuals that are 18 years or older are permitted to subscribe to the Premium Membership.
4 PRICES FOR PREMIUM MEMBERSHIP AND OTHER SERVICES
The fee for the Premium Membership is USD 149 per month (the "Premium Membership Fee"). The Premium Membership Fee shall be paid in advance to Qwaya Co by PayPal Business Account (or any other payment method designated by Qwaya Co from time to time). For more information about PayPal, its current terms and conditions for services and creating a PayPal Business Account visit http://www.paypal.com.
The fee for the Basic Membership is USD 79 per month (the "Basic Membership Fee"). The Basic Membership Fee shall be paid in advance to Qwaya Co by PayPal Business Account (or any other payment method designated by Qwaya Co from time to time). For more information about PayPal, its current terms and conditions for services and creating a PayPal Business Account visit http://www.paypal.com.
All other fees for other Services as well as terms of payment for such fees shall be as quoted in Qwaya Co's current price list, which can be reviewed at qwaya.com/pricing.php.All quotations given by Qwaya Co are (unless otherwise stated) exclusive of VAT and all other taxes and duties.
Qwaya Co reserves the right to modify the Premium Membership Fee and the prices for other Services from time to time in its sole discretion to cover any increase in Qwaya Co's costs for the Services (including but not limited to increased costs of materials, labor, services, currency fluctuations or as a result of government taxes and levies).
You shall not be entitled to make any deduction from the sum due for the Premium Member-ship or other Services in respect of any set-off or counterclaim against Qwaya Co. You are not entitled to withhold payments by reason of any alleged defect in the Premium Member-ship and/or other Service(s).
You are only entitled to reimbursement of fees paid to Qwaya Co if you are a Consumer and you exercise your right to withdrawal pursuant to section 12.1 below. Under no other circumstances are you entitled to refund or reimbursement of fees paid to Qwaya Co.
5 YOUR RESPONSIBILITY OF ADS CONTENT
You warrant that any Ads Content submitted by you by the use of Qwaya complies with this Agreement and all applicable laws, codes and good advertising practices, including but not limited to that the Ads Content does not:
(i) constitute inciting rebellion, agitation against an ethical group, child pornography crime or unlawful depiction of violence;
(ii) infringe in any third party IPR or trade secret; or
(iii) invade the privacy or publicity of any living person.
Qwaya Co advises you to periodically review Facebook Terms and especially Facebook Advertising Guidelines (currently available on http://www.facebook.com/#!/ad_guidelines.php) in order for you, at all times, to comply with Facebook Terms when publishing Ads Content on Facebook.
6 DISCLAIMER AND LIMITATION OF LIABILITY
(A) Qwaya Co's Services merely provides you with a technical application for publishing ads on Facebook. You agree and acknowledge that you must evaluate and bear all risks associated with the publishing of ads on Facebook. You further agree and acknowledge that Qwaya Co does not prescreen the Ads Content, but that Qwaya Co shall have the right, in its sole discretion, to review, reject or remove any Ads Content transmitted by the use of Qwaya.
Qwaya Co assumes no responsibility or liability for any errors, costs, loss, disclosure of or related to Ads Content or other information or data not being transferred to or published on Facebook or caused by malfunction in a transfer facility.
QWAYA CO DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES APPLICABLE TO THE WEBSITE OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF CONDUCT OR TRADE PRACTICES.
(B) Qwaya Co is not liable for any delay in performance of its obligations under this Agreement caused by circumstances that were not reasonably foreseeable by Qwaya Co at the time of entering into this Agreement and the effects of which could not reasonably be avoided or overcome, including but not limited to reduced or disrupted access to Facebook, disruption or delay in external networks or telephony connections or shortage in power sup-ply. Qwaya Co shall not in any case be liable to you for any lost profits or other con-sequential, special, indirect, or incidental damages arising out of or in connection with this Agreement or use of Qwaya, even if we have been advised of the possibility of such damages, and regardless of the legal theory on which any such damages may be based.
Qwaya Co's aggregate liability arising out of this Agreement, the use of Qwaya and/or the Services will not exceed the greater of one hundred dollars ($100) or the amount you have paid to Qwaya Co in the past twelve (12) months. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, Qwaya Co's liability will be limited to the fullest extent permitted by applicable law.
7 INTELLECTUAL PROPERTY RIGHTS
All copyright, designs, patent, trademarks, trade names and other intellectual property rights (“IPR”) in and to Qwaya or displayed on the Website are and shall remain the exclusive property of Qwaya Co (or Facebook, PayPal or any third party as the case may be). You do not acquire any IPR to Qwaya apart from the right of use under this Agreement. Any unauthorized reproduction, redistribution, publishing, transmission, modification, sale and any other usage of the IPR of Qwaya is prohibited and may result in civil and criminal penalties.
By transmitting, sending or posting any Ads Content by the use of the Services you grant Qwaya Co the nonexclusive, sub licensee and perpetual license to use, copy, display, modify or otherwise dispose of any such Content for any purpose.
Qwaya Co has designated an agent to receive notices of claimed infringement of copyright and other intellectual property rights as well as general complaints about Ads Content. If you believe in good faith that your work has been copied in a way that constitutes infringement, please provide Qwaya Co’s Agent the following information:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property right;
2. A description of the work that you claim has been infringed;
3. A description of where the material that you claim is infringing is located on the Website;
4. Your address, telephone number, and e-mail address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the owner of the content, its agent, or the law; and
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner or authorized to act on the owner’s behalf.
Qwaya Co’s Agent for Notice of claims of infringement can be reached as follows: by e-mail at firstname.lastname@example.org or by mail at:
ATTN: Copyright Agent
SE-111 44 Stockholm
Upon receipt of the written notification containing the information as outlined in 1 through 6 above:
1. Qwaya Co may remove or disable access to the material that is alleged to be infringing;
2. Qwaya Co may forward the written notification to such alleged infringer; and
3. Qwaya Co may take reasonable steps to promptly notify the alleged infringer that it has removed or disabled access to the material.
If the alleged infringer believes that a notice of infringement has been wrongly filed against it and it would like to submit a counter-notification, it may file a Counter-Notification in Response to Claim of Infringement with Qwaya Co’s Agent.
To be effective, a Counter-Notification must be a written communication provided to the Qwaya Co’s Agent for Notice that includes the following information:
1. A physical or electronic signature of the alleged infringer;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. The alleged infringer’s name, address, and telephone number, and a state-ment that the alleged infringer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the alleged infringer’s address is outside of the United States, for any judicial district in which Qwaya Co may be found, and that the alleged infringer will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a Counter-Notification containing the information as outlined in 1 through 4 above:
1. Qwaya Co may promptly provide you with a copy of the Counter-Notification;
2. Qwaya Co may inform you that it will replace the removed material or cease disabling access to it within ten (10) business days; and
3. Qwaya Co may replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter-Notification, provided Qwaya Co’s Agent for Notice has not received notice from you that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on Qwaya Co’s network or system.
YOU MAY WANT TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL BEFORE FILING A NOTIFICATION OR COUNTER-NOTIFICATION.
When you visit the Website and/or use Qwaya you provide Qwaya Co with information as may be collected as you interact with the Website and/or Qwaya. Qwaya Co is entitled, in its sole discretion, to save and freely dispose over any such information (including but not limited to all Ads Content).
Submitting your name and e-mail address as well as other requested personal data (as defined in the Data Protection Directive 95/46/EC) or any other personally identifiable information (collectively, "Personal Data") is a condition to using the Services. The Personal Data that you provide will allow Qwaya Co to inform you of the Services as well as other services and products of interest. Qwaya Co, its affiliates and partners, may use your Personal Data for processing, managing and providing you with personalized news, advertisement and other information. You may at all times opt-out from any further advertisement to your e-mail address by sending a notice to Qwaya Co at the address as first set out in these terms and conditions. Qwaya Co is the controller of the Personal Data expressly requested by Qwaya Co and such Personal Data may be transferred and processed in a country outside the EC. Data subjects (as defined in the Data Protection Directive 95/46/EC) are entitled to request information from Qwaya Co of the Personal Data relating to him which are being processed by Qwaya Co and request that such personal data is rectified by sending a notice to Qwaya Co at the address as first set out in these terms and conditions.
Cookies may be used in order to make your visit to the Website easier, to enhance your experience, keep track of the number of visitors to and the general use of this Website as well as to keep track of advertisement. A cookie is a small text file stored on your hard drive which tracks your movements within the Website. Cookies is never used to store Personal Data. The information collected from you on the Website helps us evaluate what types of information might be of interest to other visitors.
You unconditionally consent to Qwaya Co's collection and processing of your Personal Data as specified in this Agreement by ticking the "I agree" box when you sign up.
9 LINKS FROM THE WEBSITE
10 RELATIONSHIP OF PARTIES
Nothing in this Agreement or your use of the Services shall in any way constitute any agency, association, partnership, joint venture or employee-employer relationship between you and Qwaya Co. You shall not have any right, power or authority to make any representation or to assume or create any obligation, whether express or implied, on behalf of the other, or to bind Qwaya Co in any manner.
11 YOUR INDEMNITY
You agree to indemnify and hold Qwaya Co and its affiliates harmless, to the extent permit-ted by applicable law, from all loss and expenses, including reasonable attorney's fees, which are based on or arise from you violation of any of the provisions of this Agreement or otherwise is related to your Ads Content and/or use of Qwaya.
These terms and conditions shall be valid until terminated by you or Qwaya Co as provided below:
12.1 Cooling-off period
Qwaya Co entitles Consumers within the EC to withdraw from the Premium Membership within fourteen (14) days from the day of subscription of the Premium Membership (the "Cooling-off Period"). The right for Consumers to withdraw from the Premium Membership may be exercised within the Cooling-off Period by notice to Qwaya Co at the address as first set out in these terms and conditions. If the Consumer exercises its right of withdrawal pursuant to this section, Qwaya Co will reimburse the sums paid by the Consumer free of charge.
You hereby explicitly consent to that your right to withdrawal from the Premium Membership will expire if you start using the Premium Membership Services before the end of the Cooling-off Period.
12.2 Termination of Services
The Services that are free of charge may be terminated by you at any time and without cause simply by removing the Qwaya application.
You may at any time and without cause terminate your Basic and Premium Membership by giving Qwaya Co fifteen (15) days written notice prior to the end of each month. You acknowledge and agree that you shall fulfill your obligations pursuant to this Agreement until termination. The Basic and Premium Membership Fee will always be calculated on full calendar month basis.
12.3 Qwaya Co's termination
Qwaya Co is entitled to, in its sole discretion, to terminate this Agreement if you violate any of the terms and conditions in this Agreement or any applicable law. Any such termination of your access to the Services may be affected without prior notice and you acknowledge and agree that Qwaya Co may immediately delete any information or files in you account (if any) and revoke any further access to Qwaya without being liable to you or any third party.
13 OPERATION OF SERVICE
Qwaya Co reserves the right to modify, suspend, discontinue or restrict access to any portion of Qwaya and/or its Services at any time without notice and for any reason and will not be liable to you in any way for possible consequences of the aforesaid.
14 AMENDMENTS OF TERMS AND CONDITIONS
Qwaya Co may change, amend or modify any of these terms or conditions, at any time and in Qwaya Co's sole discretion. Changes will be notified by posting a change notice on the Website that is visible when users log-on for the first time after a change has been made and by e-mail to you. All such modifications shall have effect thirty (30) days after notice, unless indicated otherwise. If you do not consent to any changes in these terms and conditions you must terminate this Agreement pursuant to section 12. Your continued use of the Website and Services will be subject to the then current terms applicable to the Website.
Qwaya Co advises you to periodically review Facebook Terms in order to be informed of any changes in the Facebook Terms.
Qwaya Co may assign its rights and obligations under this Agreement to affiliates and other companies within the same corporate group.
In the event that any provision of these terms and conditions is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the parties, or if incapable of such enforcement shall be deemed to be deleted from these terms and conditions, while the remainder of this these terms and conditions shall continue in full force and remain in effect.
17 GOVERNING LAW AND DISPUTES
These terms and conditions are governed by and construed in accordance with the laws of Sweden, without regard to any conflict of law principles. Any dispute arising out of or in connection with these terms and conditions or the use of Qwaya shall be settled by the courts of Sweden and with Stockholm's district court as court of first instance.