TERMS AND CONDITIONS FOR SERVICE
Date of last revision: 30 April 2020
This website www.qwaya.com (the "Website") is owned and operated by:
Funnel AB, a company organised under the laws of Sweden
SE-111 21 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"). By signing up for the Service, you are considered to have accepted these terms and conditions (including those regulating the processing of personal data) 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 elsewhere 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 Manager" means the service available at Facebook's online advertising portal, currently available on business.facebook.com/adsmanager.
"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 facebook.com/legal/terms and facebook.com/policies/ads.
"Qwaya" means Qwaya Co's Facebook ads manager, 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.
"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 Manager and do so at scale.
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.
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 card payment (or any other payment method designated by Qwaya Co from time to time).
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. 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 Membership 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 Membership and/or other Service(s). Under no circumstances are you entitled to refund or reimbursement of fees paid to Qwaya Co.
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 facebook.com/policies/ads) in order for you, at all times, to comply with Facebook Terms when publishing Ads Content on Facebook.
Qwaya takes adherence to Facebook’s advertising policies very seriously and is working with Facebook on reducing abuse. If one or more of your Facebook ad accounts are banned for violating Facebook’s advertising policy, your Qwaya subscription may be terminated and/or your Facebook user will be banned. If this happens, you will not be entitled to a refund.
(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 supply. Qwaya Co shall not in any case be liable to you for any lost profits or other consequential, 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.
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, 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:
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:
c/o Funnel AB
ATTN: Copyright Agent
SE-111 21 Stockholm
Upon receipt of the written notification containing the information as outlined in 1 through 6 above:
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:
Upon receipt of a Counter-Notification containing the information as outlined in 1 through 4 above:
YOU MAY WANT TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL BEFORE FILING A NOTIFICATION OR COUNTER-NOTIFICATION.
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.
You agree to indemnify and hold Qwaya Co and its affiliates harmless, to the extent permitted 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:
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. 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. We do not refund payments that aren't cancelled in time.
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 Premium Membership by giving Qwaya Co notice by clicking the “cancel” button in the Service. You acknowledge and agree that you shall fulfill your obligations pursuant to this Agreement until termination. The Premium Membership Fee will always be calculated on full calendar month basis.
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.
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.
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 logon 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.
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.
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