Advertising Terms & Conditions for Advertising via swhales.eu

Advertising Terms & Conditions for Advertising via swhales.eu of S’whales B.V. If there are discrepancies, the Dutch version of this page shall prevail.

Version of December 27, 2023

We kindly request that you carefully read these terms and conditions. By advertising your brand and products via swhales.eu, you are agreeing to accept and comply with these terms and conditions.

Article 1 - Definitions

The following definitions apply to these general advertising conditions:

S’whales: the private company S’whales b.v. located in (4901HW) Oosterhout, Zandheuvel 52-B. Operating in the Netherlands, Belgium and France under VAT number: NL865720812B01 and, Chamber of Commerce from The Netherlands number 91638992.
Advertiser: the natural or legal person who concludes a contract with S’whales;
Website(s): the S’whales websites, namely: www.swhales.eu, as well as the S’whales applications and/or any other digital media owned and/or operated by S’whales;
On-site advertising space: the space offered by S’whales on its websites for certain advertisements;
Display Advertising – Onsite: an advertisement prepared by S’whales, in cooperation with the advertiser, in the form of a banner displayed in the Onsite advertising space;
Display Advertising – Offsite: an advertisement developed by S’whales, in cooperation with the advertiser, in the form of a banner displayed outside the websites, that leads to products offered on www.swhales.eu;
Display Advertising: on-site display advertising and off-site display advertising;
Sponsored Products: an advertisement created by S’whales based on one or more products specified by the advertiser and which is displayed in the on-site advertising space;
Social Advertising: an advertisement developed by S’whales, in the S’whales style, which is shown on social media channels (Facebook/Instagram/YouTube and other similar social media) to relevant audiences;
Dedicated Article: a blog article or a landing page dedicated to the brand and/or products of the advertiser and which is displayed on the Website.
Advertisement(s): an advertisement which may consist of display advertising, sponsored products, dedicated articles and/or social advertising.
Services: the services provided by S’whales consisting of the provision of advertisements;
Conditions: these advertising conditions for advertising via S’whales (including the conditions included in the Support pages for Business Sellers);
Quotes: all quotes and offers from S’whales relating to the services;
Agreement: any agreement between S’whales and the advertiser relating to the delivery of services by S’whales;
Commercial Agreement: the written agreement concluded between S’whales and the Advertiser under which the Advertiser delivers goods, i.e. material objects and property rights capable of being controlled by a person, to S’whales against payment;
Parties: the advertiser and S’whales jointly;
Advertising material: material used to develop the ad;
Delivery Terms: Terms that ads must comply with, as listed on the Support pages for Business Sellers;
Environment: the environment in which the Advertiser (or S’whales on behalf of the Advertiser) can deploy and manage the Sponsored Products;
Account: a personal account in the name of the advertiser to access the environment;
Cost per Click (CPC): the amount that the advertiser is willing to pay if a visitor to www.swhales.eu clicks on the sponsored product and the amount of which is defined in the environment;
Cost per Sale (CPS): the advertising cost per product sold. It is calculated by dividing the total advertising spend by the sales attributed to the respective Sponsored Products campaign.
Cookie(s): cookies, web beacons or any other technology allowing access, via electronic communication networks, to data stored on the devices of website visitors;

Article 2 - Scope

These conditions apply to any request for the provision of services by the advertiser, to all offers as well as to all agreements and all services to be provided by S’whales.
If one or more provisions of these conditions are totally or partially void or voidable, the remainder of these conditions continue to apply in their entirety. In this case, the parties will consult each other to agree on new provisions to replace the void or cancelled provisions, taking into account, as far as possible, the objective of the original provisions.
S’whales has the right to modify these conditions at any time. The modified conditions will come into force as soon as S’whales has informed the advertiser. If the Advertiser subsequently continues to use the Services, the Advertiser thereby accepts the applicability of the modified terms. If the changed conditions are not acceptable to the advertiser, the latter has the right to terminate the contract within 14 days of the above-mentioned notification. If the contract is terminated, S’whales will close the account.
The advertiser acknowledges that the applicability of its own conditions is explicitly excluded, even if they are mentioned in offers, invoices or other documents issued by the advertiser. The advertiser expressly and exclusively accepts the provisions of these conditions.
In the event of a conflict between the provisions of these Terms and the provisions of the Contract, the provisions of the Contract will prevail.

Article 3 - Quote

All offers are non-binding and subject to changes and variations in availability. Obvious errors in the (accepted) offer are not binding on S’whales.
If S’whales modifies an offer at any time by issuing a new quote, the previous offer becomes void.

Article 4 - Display Advertising (applicable to the purchase of display advertising)

The parties will agree before each Display Advertising on the duration, location and/or target group, form (display advertising – on site and/or display advertising – offsite) and possibly the number of displays of the Display Advertising.
If the parties have agreed on a number of display advertising impressions and this number is not reached within the agreed duration, S’whales will extend the duration until the number of impressions is reached, unless the parties have agreed otherwise.
The advertiser must provide the advertising material allowing S’whales to develop the advertisement. Delivery of advertising material will be made in accordance with the delivery conditions.
If the Advertiser fails to comply with Section 4.3, S’whales has the right to cancel, postpone and/or charge the Advertiser the agreed amount for the Services.
S’whales will endeavour to provide a final report to the advertiser within 20 business days of the last display of the Display Advertising:

a. total diffusion;
b. clicks;
c. click-through rate; and
d. the visibility.

Article 5 - Sponsored Products (applicable to the purchase of sponsored products)

S’whales grants the Advertiser access to the Environment for the purpose of purchasing Sponsored Products. The use of the Environment is subject to the S’whales General Terms and Conditions.
Advertiser is at all times fully responsible for the use of his Account. Advertiser may instruct himself, S’whales – within the framework of advertising services – or third parties authorised by Advertiser to do so, to place bids in the Account. Advertiser is fully responsible and liable for the bids placed by authorised third parties through the Account. S’whales is not liable for (manifest) errors made by the Advertiser when using its Account, such as when placing bids or setting (spending) limits.
If the Parties have agreed that S’whales shall make bids in the Environment on behalf of Advertiser, this shall be deemed to be a power of attorney ex. art. 3:60 of the Civil Code and the Advertiser hereby instructs S’whales to make bids in its Environment for the Advertiser’s account and risk, which instruction is hereby accepted by S’whales. The Advertiser has insight into the actions of S’whales by logging into his Account.
Advertiser shall inform S’whales immediately if Advertiser suspects that a third party has gained unlawful access to his Account.
Misuse of his Account shall in all cases be entirely at the Advertiser’s expense and risk. S’whales shall not be liable for misuse of the Account, unless misuse of the Account is attributable to S’whales.
The Advertiser must request a budget from S’whales itself and/or set spending limits in the Account for placing bids. Insofar as the Advertiser’s Account has this functionality, the Advertiser can choose to automatically top up his balance for bids when the spending limit is reached. The Advertiser is solely responsible for monitoring and disabling automatic top-ups in a timely manner.
When the Advertiser requests a budget from S’whales for bidding, S’whales makes the budget available in the Environment. This concerns a budget that is deployed for Sponsored Products. The budget must ultimately be fully deployed for the benefit of Sponsored Products or other types of Advertisements. If Advertiser does not deploy the entire budget, S’whales can invoice the entire budget as if it had been deployed entirely for Sponsored Products or, in consultation with the Advertiser, deploy the budget for other Advertisements.
S’whales can grant the Advertiser budget for Sponsored Products without the Advertiser owing a fee (so-called Free Credits). These Free Credits are valid up to 12 months after issue. If the Advertiser has not fully deployed the Free Credits after the expiry of the validity period, S’whales may withdraw the remaining Free Credits or set off their value in accordance with Article 11.7.
The Environment automatically determines who submitted the winning bid.
If the winning bid is awarded to the Advertiser, the Sponsored Products will be displayed on www.swhales.eu.
S’whales is free to determine the position of the Sponsored Products on www.swhales.eu. The Advertiser can indicate the preferred position in the Environment through Cost Per Click, but cannot derive any rights from this.
The duration for which the Advertiser’s Sponsored Products are shown depends on the spending limit(s) set by the Advertiser and/or the Advertiser’s available budget, and also depends on other factors such as the amount of the bid, whether the product is available and whether, if the Sponsored Products are on www.swhales.eu, a better bid is made.
S’whales gives the Advertiser insight into the CPS through the Environment. The actual CPS may differ from the displayed CPS due to matters beyond the control of S’whales, such as software errors. S’whales makes every effort to display the CPS correctly.
S’whales is entitled at any time, without giving reasons, to refuse an Account, to impose additional requirements for the granting of an Account or to block an Account already created. This will be the case, for example, if S’whales suspects a breach of one or more of the applicable conditions, fraud, the use of the Account disrupts the proper functioning of the Environment or, in the opinion of S’whales, may be harmful to the good name of S’whales or third parties.
S’whales shall at all times be entitled to cease making the Environment available or to make the Environment available through another supplier.
S’whales is at all times entitled, for whatever reason, not to carry out the order on behalf of the Advertiser referred to in Articles 5.2 and 5.3. If S’whales decides not to carry out the order, it shall inform the Advertiser accordingly.
The Advertiser may decide at any time to pause the Sponsored Products and/or stop using the Environment and Account.

Article 6 - Social Advertising (applicable to the purchase of Social Advertising)

The parties will agree on the fee as well as the location of Social Advertising prior to the placement of each Social Advertising.
The Advertiser provides Advertising Material with which S’whales can format Social Advertising. Delivery of the Advertising Material shall take place as stipulated in the Terms of Delivery.
S’whales will endeavour to deliver a final report to the Advertiser within 20 working days of the end of a Social Advertising campaign which will report on (per advertising flight):
- Impressions;
- Campaign target groups used;
- Clicks;
- CTR per source of origin as campaign results;
- Instant Experience opening rate;
- Instant Experience view time;
- Outbound clicks to S’whales;
- Products sold from the campaign filtered by the relevant advertiser; and
- Instant campaign sales filtered by the relevant Advertiser.
If Social Advertising consists of a winning campaign, the Advertiser is responsible for remitting any (gaming) tax due as well as complying with the applicable Promotional Games of Chance Code of Conduct.

Article 7 - Dedicated Article on swhales.eu (applicable to the purchase of Enterprise Packs Ultimate)

The parties will agree before each Dedicated Article on the duration, location and/or target group, form (blog article or landing page) and possibly the number of views of the Dedicated Article.
If the parties have agreed on the number of views of the Dedicated Article and this number is not reached within the agreed duration, S’whales will extend the duration of the article promotion until the number of views is reached, unless the parties have agreed otherwise.
The Advertiser must provide the Advertising Material allowing S’whales to develop the Advertisement. Delivery of Advertising Material will be made in accordance with the delivery conditions.
If the Advertiser fails to comply with article 7.3, S’whales has the right to cancel, postpone and/or charge the Advertiser the agreed amount for the Services.
S’whales will endeavour to provide a final report to the advertiser within 30 business days of the last Dedicated Article Promotion:
- total diffusion;
- clicks;
- click-through rate; and
- the visibility.

Article 8 - Products Excluded for Advertisements

The purchase of Services is excluded for certain product categories or products. The Advertiser can consult the list of excluded products, the so-called “Marketing Blacklist”, by contacting our Customer Support.
S’whales is at all times entitled to modify the list referred to in Article 8.1.
The Advertiser should consult this list regularly to be aware of any changes.

Article 9 - Advertiser's obligations

The Advertiser guarantees that, in the execution of the Agreement, they will comply with all agreements between the Parties (including those stipulated in the Agreement and these Terms), the Dutch Advertising Code, and all other applicable laws and regulations.
The Advertiser guarantees that they are authorised to accept the Agreement and Terms and to grant the rights hereby conferred.
The Advertiser guarantees compliance at all times with S’whales’ guidelines and instructions regarding the use of the Services.
The Advertiser is responsible for the accuracy and completeness of the data provided to S’whales, including the Advertising Material and the references contained therein, ensuring compliance with applicable laws and regulations.
The Advertiser guarantees that the delivered Advertising Material does not contain or could contain viruses or similar software programs (whether or not added without the Advertiser’s knowledge by a third party) that could harm the operation of the Services, the Websites, the Environment, the internet, or the computers and/or software of third parties.
S’whales has the right to refuse Services (including placing Advertisements) that do not comply with applicable laws and regulations. In such cases, the Advertiser remains obligated to pay the agreed-upon compensation to S’whales.
The Advertiser is obliged to continuously review the delivered Services and promptly report any deficiencies in writing to S’whales after the delivery of the Services, failing which the Advertiser is deemed to have unconditionally accepted the Services. If the Advertiser reports a defect in the Services to S’whales, S’whales will make reasonable efforts to remedy the defect as soon as possible.
The Advertiser is required to report complaints about the delivered Services in writing to S’whales within 14 days of receiving the invoice (related to the Services for which the Advertiser has complaints). The Advertiser must also report inaccuracies in invoices in writing to S’whales within 14 days of receiving the invoice. In the absence of a timely complaint, all rights of the Advertiser (including but not limited to the right to performance, dissolution, set-off, suspension, and damages) are forfeited.
If the Advertiser acts on behalf of a third party, the Advertiser is jointly liable for the fulfillment of the obligations set out in the Agreement and the Terms by this third party.
The Advertiser guarantees that they will implement adequate technical and organisational measures to secure the systems used in the context of the Agreement (such as an ad server and demand-side platform) originating from the Advertiser. These measures will ensure an appropriate level of security, taking into account the state of the art and the costs of implementation.

Article 10 - Obligations of S'whales

S’whales shall observe the care of a good contractor in performing the work.
S’whales cannot guarantee the (uninterrupted) availability, security, and suitability of the Services.
S’whales aims to represent the provided Advertising Material as accurately as possible, but cannot guarantee an exact reproduction when displaying the Advertising Material on the Websites.
S’whales is not responsible for ensuring the availability and maintenance of sufficient stock of the products mentioned in an Advertisement.

Article 11 - Billing and payment

The fees stated in the Agreement and in the Environment are exclusive of VAT and any other government levies.
If the Advertiser purchases Sponsored Products, the fee payable is calculated based on the number of clicks multiplied by the Cost Per Click.
Advertiser shall not be entitled to set off or suspend its obligations under the Agreement or these Terms.
If under the Agreement the Advertiser consists of several natural persons and/or legal entities, each of these (legal) entities shall be jointly and severally liable to S’whales for compliance with the Agreement and these Conditions.
The parties will determine in consultation whether an incorrect invoice will be credited or whether S’whales will compensate for it by correcting and/or re-performing the Services.
To determine the remuneration owed by the Advertiser for the Services provided, if applicable, S’whales’ measurement systems are leading. Only when the difference between measured ad impressions exceeds 15%, S’whales and Advertiser will investigate the cause of these differences. Until it has been established what the cause of the measurement differences is, the measurement results of S’whales remain leading in determining the compensation.
Unless otherwise provided in the Commercial Agreement, S’whales may set off the fees payable for the Services against any amounts owed at any time by S’whales to the Advertiser under any other agreement. In such case, the fees due for the Services shall be immediately due and payable after the delivery of the Services. If S’whales does not opt for set-off, the parties have agreed otherwise or if the Advertiser does not owe S’whales any amounts at any time, the provisions of Article 11.8 and Article 11.9 shall apply.
Advertiser shall pay invoices for the Services provided within the following period: (a) the payment period applicable to the Advertiser according to the Commercial Agreement; or (b) if no such agreement exists (or no longer exists) a payment period of 14 calendar days after the invoice date.
If the Advertiser fails to pay the fee due or fails to pay it on time, the Advertiser shall, without the need for a reminder or notice of default, owe statutory commercial interest on the outstanding amount. If the Advertiser remains negligent after a reminder or notice of default, S’whales may pass on the claim for collection, in which case the Advertiser shall also be liable to pay all judicial and extrajudicial costs. This shall not affect the other rights of S’whales.

Article 12 - Intellectual property

The Advertiser acknowledges that all (intellectual property) rights relating to the Services, the Environment, the Advertisement and all S’whales trademarks and logos are and remain the property of S’whales and/or its licensors and may not be used in any way by the Advertiser without S’whales’ prior written consent (which should be understood to include by e-mail).
The intellectual property rights to the Advertising Material provided by the Advertiser to S’whales shall remain vested in the Advertiser and/or its licensors. To the extent necessary for the provision of the Services, the Advertiser grants S’whales a limited, non-exclusive, transferable right to use the Advertiser’s IP rights on and off the Websites for the duration of the Agreement and, after the termination of the Agreement, to the extent that S’whales continues to provide Services to the Advertiser.

Article 13 - Cookies

The use of Cookies by the Advertiser in Advertisements and on the Websites, is only permitted with the prior consent of S’whales. If S’whales grants permission, the Parties shall agree between themselves in advance which Cookies the Advertiser may use.
S’whales will add Cookies to the Advertisements that are necessary for measuring the impressions, clicks and visibility of the Advertisements.
S’whales shall have the right to audit the Advertiser’s compliance with the obligation agreed in Article 13.1. Advertiser is obliged to cooperate with the audit at its own expense.
S’whales will specify in writing when it wishes to have an audit carried out and whether it will carry out that audit itself or by an independent consultancy firm and, in the latter case, by which firm.
The conduct and results of an audit shall be subject to the confidentiality obligation set out in Article 16.4, unless such information is to be used in legal proceedings.

Article 14 - Suspension, duration and termination

The Agreement will commence on the date of signature of the Agreement by the Advertiser or, in the absence of a signed Agreement by the Advertiser, the date on which S’whales starts performing the Services.
Agreed dates for delivery of the Services do not constitute deadlines.
Each of the Parties has the right to terminate the Agreement by written notice with immediate effect, without being obliged to pay damages, if:

a. one of the Parties is irrevocably declared bankrupt;
b. one of the Parties applies for or is granted suspension of payment;
c. one of the Parties is put under administration;
d. a Party’s business is liquidated or terminated;
e. the intended purpose of the Agreement becomes unattainable due to regulations or government rules and regulations included;
f. there is force majeure and the force majeure situation has lasted longer than 14 days.

4. With the exception of the provisions of Article 14.3, the Agreement may be terminated in full or in part by either Party with immediate effect by means of a written notice, in the event that the other Party fails to fulfil its obligations arising from the Agreement, or fails to do so on time or properly, and that Party fails to fulfil its obligations in full within 14 days of being notified of its conflicting conduct by registered letter. Such termination shall not imply a waiver of any claims for damages and reimbursement of costs already incurred.
5. S’whales shall be entitled to suspend the provision of the Services to the Advertiser in whole or in part in the event that the Advertiser fails to comply with any obligation under the Agreement, including failure to comply with any obligation set out in these Terms and Conditions. S’whales is entitled to charge the Advertiser any costs incurred in connection with the suspension of the provision of its Services.
6. S’whales is always entitled to refuse or cancel the provision of a Service for reasons of its own. If S’whales does not deliver a Service, the Advertiser is relieved of his payment obligation for that Service.
7. If S’whales terminates the Agreement, it shall never be obliged to refund invoices paid or liable for damage suffered by the Advertiser.
8. If the Agreement is terminated, S’whales shall close the Account.
9. Obligations under these Terms which by their nature are intended to continue even after termination of the Agreement shall continue after its termination. These obligations include: provisions on warranties, liability, intellectual property rights, confidentiality, dispute resolution and applicable law.

Article 15 - Liability

S’whales is not liable for the use of Advertising Material provided by the Advertiser.
S’whales is not liable for any damage and/or costs incurred by the Advertiser as a result of or pursuant to the Agreement or the Services provided, unless there is intent, gross negligence or wilful recklessness on the part of S’whales.
In the event that the exclusion of liability as referred to in Article 15.2 is wholly or partially annulled or set aside by a competent court, the Parties hereby agree that S’whales shall in that case only be liable for direct demonstrable damage/costs (excluding consequential/indirect damage/costs) and that this liability for direct damage/costs shall be limited in total to an amount of € 500 per year.
Advertiser shall be liable for any damage suffered by S’whales in the performance of the Agreement as a result of:
- the Advertiser’s failure to comply with any obligation under this Agreement;
- the use by S’whales of the Advertising Material provided by the Advertiser;
- an attributable failure on the part of the Advertiser, which shall also include failure to comply with the guarantees in these Terms and Conditions;
- an objectively determinable wrongful act by the Advertiser;
- acts by the Advertiser which exceed the powers granted to the Advertiser under this Agreement.
The Advertiser shall indemnify S’whales against all damages (including third-party claims) and/or costs of whatever nature resulting from:
- Advertiser’s failure to comply with any obligation under this Agreement;
- the use by S’whales of the Advertising Material provided by the Advertiser;
- an attributable failure on the part of the Advertiser, which should also be understood to include failure to comply with the guarantees in these Terms and Conditions;
- an objectively determinable wrongful act by the Advertiser;
- acts by the Advertiser which exceed the powers granted to the Advertiser under this Agreement.

Article 16 - Miscellaneous

The Advertiser shall never pretend to be an agent or representative of S’whales and, in particular, shall not make any commitments or assume any obligations for or on behalf of S’whales.
The Advertiser shall not be entitled to assign all or part of its rights and/or obligations under the Agreement. This provision has a property law effect.
S’whales is entitled to subcontract or otherwise transfer its rights and/or obligations in respect of the Agreement to another party.
The parties are obliged towards each other to maintain mutual secrecy regarding confidential business matters of which they become aware in the performance of the Agreement.
The Advertiser shall not mention the content of the Agreement in publications, press releases or advertisements and shall not use the name of S’whales as a reference, unless S’whales has given prior express written consent.

Article 17 - Applicable law and jurisdiction

The Agreement and all related legal relationships between the Parties are exclusively governed by Dutch law and disputes will be submitted to the competent Dutch court in Midden-Nederland, location Utrecht.

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