Entry into force: 08/07/2021
The company GETFLUENCE (hereinafter: “GETFLUENCE“) operates a platform that can be accessed through the website https://getfluence.com/ (hereinafter “the Platform“) through which:
- advertising agencies (hereinafter “Agencies“),
- editos who own media that publish advertising media
- sales representatives of these editos and;
- intermediaries commissioned by the editors (the persons referred to in (ii), (iii) and (iv) together referred to as “Editors” and the Regies and Publishers together referred to as “Publishers“)
can propose the marketing of media as defined below and, where applicable, brand content offers as defined in Article 6.3 “Brand Content Offer” (hereinafter “Brand Content“) to advertisers (hereinafter “Advertisers“) who wish to diffuse their advertisements (hereinafter “Campaigns“).
One of the purposes of the Platform is to allow Publishers to subcontract advertising media to GETFLUENCE (hereinafter referred to as “Media“).
The purpose of these terms and conditions (hereinafter: “Terms and Conditions“) is to define the terms and conditions of use of the services offered by GETFLUENCE (hereinafter: “Services“) and to define the rights and obligations of the parties in this context.
They can be accessed and printed at any time via a direct link in the footer of the website https://getfluence.com/.
In addition to this, there may be a list of special conditions, including the duration of its contractual commitment, the list of Services as well as their financial conditions (hereafter: the “Special Conditions“), which in case of contradiction, prevail over the General Conditions, and together form the contract (hereafter: the “Contract“).
2. Platform and Service Operator, contact
The Platform and the Services are operated by GETFLUENCE, an SAS company registered with the Toulouse Trade and Companies Register under no. 842 437 865, whose registered office is located at 55 avenue Louis Breguet, La Cité, 31400 TOULOUSE
GETFLUENCE can be contacted at the following address: [email protected]
3. Access to the Platform and Service
3.1 Legal capacity
The Platform and the Services are accessible to any legal entity acting through a natural person who has the legal capacity to contract in the name and on behalf of the legal entity.
3.2 Platform and Services for Professionals
The Platform and the Services are intended exclusively for professionals, which refers to any natural or legal person carrying out a remunerated activity on a non-casual basis in all sectors of industry and commerce
4. Acceptance of the General Conditions
Publishers accept these Terms and Conditions by Publishers by ticking a checkbox in the application form.
This acceptance can only be full and complete. Any membership with reservations shall be considered null and void. Publishers who do not agree to be bound by these Terms and Conditions must not access the Platform or use the Services.
In order to use the Services, the Publisher must register on the Platform by filling in the form provided. In some cases, GETFLUENCE appoints a special contact for the Publisher (the “Publisher Manager“), who can open an account or add/remove certain Media on the Platform upon the request of the Publisher.
The Publisher shall provide all information that is marked as mandatory, in particular the surname and first name of the designated contact person, and the professional email address and password. The Publisher acknowledges and accepts that the email address given on the registration form is their login ID.
Incomplete entries will not be validated.
Registration leads to the opening of an account in the Publisher’s name (hereinafter: the “Account“), giving them access to a personal space (hereinafter: the “Personal Space“) which allows the Publisher to manage their use of the Services in a form and according to the technical means that GETFLUENCE deems most appropriate to render said Services.
5.1 The Publisher guarantees that all information provided is accurate, up-to-date and truthful and is not misleading.
The Publisher undertakes to update this information in the Personal Area in the event of any changes, so that it always corresponds to the aforementioned criteria.
The Publisher is aware and accepts that the information entered for the purpose of creating or updating the Publisher’s Account is used as a proof of their identity. The information entered by the Publisher or Publisher Manager is binding on the Publisher as soon as it is validated.
5.2 The Publisher may access their Personal Space at any time by logging in with their login and password.
The Publisher undertakes to use the Services personally and not to allow any third party to use them in their place or on their behalf, unless they bear full responsibility.
When the Publisher is a commercial representative of the Editor or an intermediary mandated by the Editor, they guarantee to GETFLUENCE that they have all the necessary authorisations to market the Media on behalf of the Editors.
The Publisher is also responsible for maintaining the confidentiality and security of their login and password, and any access to the Platform using these elements is considered to have been made by the Publisher. The Publisher must immediately contact GETFLUENCE if they notice that their Account has been used without their knowledge. They acknowledge GETFLUENCE’s right to take all appropriate measures in such cases.
The Publisher has access to the following Services, in a form and according to the functionalities and technical means that GETFLUENCE deems most appropriate.
6.1 Management of Media, Brand Content offers and Advertisers
The Publisher may freely add and delete Media and Brand Content offers on their Account, provided that they have informed GETFLUENCE in advance, either directly or through the Publisher Manager.
If the Agency, the commercial representative or the intermediary appointed by the Editor is no longer the agency, representative or intermediary of one or more Editors, they undertake to inform GETFLUENCE in advance by any useful written means, in particular by email.
GETFLUENCE offers the Publisher the possibility to modify the Media and Brand Content offers via the Platform. Any changes made shall have no effect on these Terms and Conditions which shall continue to apply to the Media after its modification.
The Publisher has access to all information via their Personal Area, enabling them to monitor the Campaigns in progress and the availability of their profits on a daily basis.
6.2 Advertising sub-agency service
GETFLUENCE performs the following services in its own name and on behalf of the Publisher:
- Prospects Advertisers, promotes and markets the Media transmitted by the Publisher through the Platform, using any presentation material, content, logos, visuals and, in general, promotional documents relating to the Media sent by the Publisher,
- Collects and sends to the Publisher the Campaign orders placed by the Advertisers.
The Publisher has a period of 7 calendar days from the date on which an Advertiser places an order on the Platform to accept or reject the Campaign. They are entirely free to accept or refuse a Campaign. If the Publisher fails to respond within this period, this shall be considered a refusal.
As part of the advertising sub-agency service offered via the Platform, GETFLUENCE undertakes to inform the Publishers of the rates applicable to Advertisers by any means.
6.3 Brand Content Offer
The Publisher may allow Advertisers to benefit from Brand Content services, i.e. mainly sponsored content created by the Publisher in which the Advertiser’s brand, products or services are mentioned spontaneously.
When the Advertiser orders a Brand Content service through the Platform, it is invoiced along with the sale of the Media under the conditions set out in the article “Financial Conditions”.
6.4 Hosting the Platform
GETFLUENCE undertakes to ensure, under the conditions of an obligation of means, that the Account and any content published by the Publisher on their Account is in accordance with the practices of the profession and the latest developments, on its own servers or by a professional hosting service provider, carrying out its activity in accordance with the practices of the profession and the latest developments.
In this context, GETFLUENCE undertakes to provide the Publisher with sufficient storage and processing capacity within the framework of the Services, in accordance with the practices of the profession and the latest developments.
GETFLUENCE undertakes to implement all the technical means, in accordance with the latest developments, necessary to ensure the security of and the access to the Services, including protection and monitoring of the infrastructures, the control of physical and/or intangible access to these infrastructures, and the implementation of detection, prevention and recovery measures to protect the servers from malicious acts.
GETFLUENCE also undertakes to take all necessary precautions, in accordance with the nature of the data and the risks presented by the automated data processing required for the Services, to preserve the security of the data, and in particular to prevent them from being distorted, damaged or accessed by unauthorised third parties.
6.5 Technical assistance
For any question related to the use of the Platform, apart from malfunctions, GETFLUENCE offers the Publisher technical support for assistance and advice.
Technical support can be accessed via the Publisher Account, or by contacting the Publisher Manager, if applicable. According to the need identified, GETFLUENCE will estimate the time needed to respond and the nature of the response.
6.6 Other Services
GETFLUENCE reserves the right to offer any other Service that it deems useful, in the form and according to the functionalities and technical measures that it deems most appropriate to provide said Services.
7. Financial conditions
7.1 Price of Services
The Services identified in the articles entitled “Adding and deleting Media on the Platform”, “Modifying Media on the Platform”, “Identifying Advertisers”, “Hosting the Platform” and “Technical Assistance” of the General Conditions, within the limits specified in this article, are provided to the Publisher free of charge.
For the advertising sub-agency and Brand Content services provided by the Publisher, for each Medium marketed that may include Brand Content, GETFLUENCE will remit to the Publisher all the Net Sales (excluding VAT) received from the Advertisers, minus its own remuneration, the percentage of which based on the Net Sales (excluding VAT) is sent by GETFLUENCE to the Publisher by email (the “Commission“).
“Net Sales” is defined as the turnover generated by the marketing of the Media and associated Brand Content services, where applicable, including the revenue received in respect of the technical costs of advertising insertions, after deduction of any discounts, reductions, rebates and other price deductions that may be granted to Advertisers, as well as the costs relating to the marketing of the Media, particularly including commissions and/or remuneration to be paid to intermediaries or subcontractors, insofar as they are authorised by legal provisions, and advertising and promotion costs.
7.2 Terms of invoicing and payment to the Publisher
GETFLUENCE will invoice, in its own name but on behalf of the Publisher, the sale of the Media and Brand Content services and will collect the corresponding payments from the Advertisers, without being a del credere agent. In this respect, GETFLUENCE shall not be held liable to the Publisher in the event that an Advertiser does not pay an invoice.
In addition, the Publisher expressly acknowledges and accepts that only orders expressly validated by the Publisher and which have been subject to prior control by GETFLUENCE will give rise to invoicing and payment of the corresponding prices by the Advertisers.
On the basis of this statement, the amount due to the Publisher shall be invoiced by the Publisher itself, by any useful written means, and transmitted via their Account.
The invoice for a Campaign can only be issued once the Campaign has been published for more than 30 days.
GETFLUENCE shall pay the amounts due to the Publisher within a maximum of 60 calendar days from the date of issuing the corresponding invoice.
8. Duration of the Services and unsubscription
The Services are subscribed to for an indefinite period.
The Publisher may unsubscribe from the Services at any time, from their Account on the Platform or by sending a request to this effect to GETFLUENCE by email, to the contact details mentioned in the article “Platform and Services Operator, contact”.
The deregistration is effective within a maximum of 7 (seven) days from this request. It will result in the automatic deletion of the Publisher’s Account.
GETFLUENCE also reserves the right to close and delete any Account that remains inactive for a continuous period of 2 (two) years, i.e. when the last connection date is more than 2 (two) years previously. Publishers acknowledge and agree that when their Account is deleted by GETFLUENCE because it has remained inactive for a continuous period of 2 (two) years, they can no longer withdraw their profits, and these are retained by GETFLUENCE.
9. Evidence agreement
The Publisher expressly acknowledges and agrees:
- That the data collected on the Platform and GETFLUENCE’s computer equipment are proof of the reality of the operations carried out under this contract,
- That these data constitute the principal mode of proof admitted between the parties.
10. Publisher’s obligations and liability
Without prejudice to the other obligations set out in these terms and conditions, the Publisher undertakes to comply with the following obligations:
- The Publisher declares that it has received from GETFLUENCE, prior to accepting the General Terms and Conditions, all advice, instructions and details necessary for it to subscribe to them with full knowledge of the facts, that it has sufficient knowledge of the characteristics and features of the Platform, and that it has, prior to the present document, sufficiently exchanged with GETFLUENCE to ensure that the Platform meets its expectations, needs and constraints.
- The Publisher guarantees that the Media do not infringe current laws and regulations, the rights of third parties or public order.
In this respect, the Publisher guarantees that the Media do not infringe current laws and regulations, the rights of third parties or public order.
The Publisher is also responsible for fulfilling all administrative, tax and/or social formalities, authorisations of all kinds, legal and/or administrative, as well as all payments of contributions, taxes or duties of any kind that may be due in relation to its use of the Media and the Platform.
GETFLUENCE cannot be held responsible in any way for this matter.
3. The Publisher undertakes to broadcast the validated Campaigns at the times and days specified by GETFLUENCE.
4. The Publisher undertakes to cooperate actively with GETFLUENCE for the proper performance of the Services.
5. The Publisher is solely responsible for its use of the Platform.
6. The Publisher guarantees that it holds all the rights and authorisations necessary for the exploitation of the Media and, in particular, for the dissemination of the Campaigns on said Media. When the Publisher is a commercial representative or an intermediary mandated by the Editor, it guarantees GETFLUENCE that it has all the necessary authorisations and clearances to offer the Media on the Platform.
The Publisher is solely responsible for the content and operation of the Media.
7. The Publisher guarantees GETFLUENCE the availability and continuity of access to the Media. The Publisher will be solely responsible for any technical difficulties that may affect the distribution of validated Campaigns on its Media.
8. The Publisher must inform GETFLUENCE in writing of any actions or claims concerning one of the Media that could have consequences on the Services or on the image and reputation of GETFLUENCE.
9. The Publisher is responsible for putting the Campaigns online on the Media, which must comply with the technical standards communicated by the Publisher to GETFLUENCE previously.
10. In the context of offering Media through the Platform to Advertisers, the Publisher is subject to tax and social obligations of which it must be aware. The Publisher is therefore responsible for all formalities and payments that are incumbent on him in connection with the use of the Services.
11. The Publisher indemnifies GETFLUENCE against all claims, complaints, actions and/or demands that it may suffer as a result of the Publisher’s breach of any of its obligations under the Terms and Conditions. They undertake to pay GETFLUENCE all costs, charges and/or penalties that they may have to bear as a result.
2. GETFLUENCE’s liability and guarantee
2.1 GETFLUENCE undertakes to provide the Services diligently and in accordance with the rules of the trade, it being specified that it has an obligation of means, to the exclusion of any obligation of result, which the Publisher expressly acknowledges and accepts.
2.2 In particular, GETFLUENCE provides no guarantee or commitment as to the amount of Net Sales likely to be generated by the marketing of the Media and the revenue likely to be paid to the Publisher.
2.3 GETFLUENCE undertakes to use the information, documents, data and, more generally, all elements that the Publisher may communicate to it under these Terms and Conditions only for the purposes of executing these Terms and Conditions.
2.4 GETFLUENCE certifies that it holds an insurance policy guaranteeing its professional civil liability. It undertakes to maintain this insurance policy in force for the duration of the provision of the Services.
2.5 GETFLUENCE undertakes to provide the Services pursuant to the laws and regulations in force, in particular the provisions of Law no. 93-122 of 29th January 1993 on advertising.
2.6 The Publisher expressly acknowledges and accepts that the Campaigns broadcast are created by the Advertisers alone and that GETFLUENCE is not responsible for them.
If the Publisher identifies Campaigns that it considers illegal or inappropriate, it undertakes to inform GETFLUENCE as soon as possible. In this case, GETFLUENCE will actively cooperate with the Publisher and the Advertiser concerned in order to deal with the problem.
The Publisher acknowledges and accepts that they are responsible for the Content created and distributed as part of the Brand Content services it provides via the Platform.
2.7 In the event of disputes or litigation with an Advertiser, the Publisher undertakes to hold GETFLUENCE harmless in any disputes or litigation that may arise with Advertisers, and to take personal responsibility for resolving them.
2.8 GETFLUENCE cannot guarantee the Publisher that the Platform, which is subject to constant testing to improve its performance and progress, will be totally free of errors, defects or faults.
Under any circumstances, GETFLUENCE reserves the right to temporarily interrupt access to the Platform for maintenance purposes.
Similarly, GETFLUENCE cannot be held responsible for temporary difficulties or impossibilities in accessing the Platform due to circumstances beyond its control or due to disruptions in the telecommunication networks.
2.9 GETFLUENCE shall in no case be held responsible for the technical availability of the Publisher’s Media. It accepts no responsibility for the content, products and/or services available on the sites on which the Media appear.
2.10 Under any circumstances, GETFLUENCE shall not be liable to the Publisher for payment of damages of any kind, whether direct, material, commercial, financial or moral, due to the execution of these Terms and Conditions, for an amount greater than the amounts invoiced by GETFLUENCE in this context that have led to its liability, during the 12 months preceding the occurrence of the alleged damage. GETFLUENCE’s liability can only be incurred if the Publisher has made a claim, by registered letter with acknowledgement of receipt, within one month of the said occurrence.
3. Prohibited behaviour
3.1 It is strictly prohibited to use the Services for the following purposes:
Engaging in illegal or fraudulent activities or infringing the rights or safety of any third parties,
Undermining public order or violating existing laws and regulations,
Intruding into a third party’s computer system or any activity that may harm, control, interfere with, or intercept all or part of a third party’s computer system, or violate its integrity or security,
Manipulations intended to improve referencing for a third-party site,
Aiding or abetting, in any form or manner, one or more of the acts and activities described above,
And more generally, any practice that misuses the Services for purposes other than those for which they were designed.
3.2 The Publisher is strictly prohibited from copying and/or misappropriating the design, technologies, data or any other element of the Platform for their own purposes or for those of third parties.
3.3 The following is also strictly prohibited: (i) any behaviour likely to interrupt, suspend, slow or prevent the continuity of the Services, (ii) any intrusions or attempted intrusions into GETFLUENCE’s systems, (iii) any misappropriation of the Platform’s system resources, (iv) any actions likely to impose a disproportionate burden on the Platform’s infrastructures, (v) any infringement of security and authentication measures, (vi) any acts likely to infringe GETFLUENCE’s financial, commercial or moral rights and interests, and finally, more generally, (vii) any breach of these Terms and Conditions.
3.4 It is strictly forbidden to make money from, sell or license all or part of the access to the Services or the Platform, as well as the information hosted and/or shared therein.
4. Penalties for non-compliance
In the event of a breach of any of the provisions of these Terms and Conditions, or more generally, a breach of laws and regulations by the Publisher, GETFLUENCE reserves the right to take any action that may be appropriate and in particular to:
- To suspend, remove or prevent access to the Services by the Publisher who has committed or participated in the breach,
- To take all appropriate measures and initiate any legal action,
- To notify the competent authorities where appropriate, to cooperate with them and to provide them with all information relevant to the investigation and prosecution of illegal or unlawful activities.
The Publisher is hereby informed and accepts that any breach of its obligations may lead, in addition to the consequences set out above, to the immediate termination of the Terms and Conditions by GETFLUENCE, by any written means.
Each party undertakes to keep strictly confidential any documents, elements, data and information regarding the other party of which it is a recipient and which are expressly identified by the other party as being confidential. With regard to GETFLUENCE, the parties expressly agree that this confidentiality obligation covers the personal data that it will process for the Publisher in the context of the Services.
This information as a whole is referred to hereafter as “Confidential Information“.
The party receiving Confidential Information undertakes not to disclose it without the prior consent of the other party for a period of 3 (three) years after the relevant Services have been finalised. It may pass them on to employees, collaborators, trainees or consultants only if they are bound by the same confidentiality obligation set out herein. This obligation does not extend to documents, items, data and information:
- of which the receiving party was already aware;
- that were already public at the time of their communication or which would become public without violation of the Terms and Conditions;
- that were lawfully received from a third party;
- which may be required to be disclosed by the judicial authorities, in application of the laws and regulations or in order to establish the rights of a party under the Terms and Conditions.
6. Intellectual property
Systems, software, structures, infrastructures, databases, codes and content of any kind (texts, images, visuals, logos, trademarks, databases, etc.) used by GETFLUENCE within the Platform are protected by all intellectual property rights or the database producers’ rights in force.
Any disassembly, decompilation, decrypting, extraction, reuse, copying and, more generally, any act of reproduction, representation, distribution and use of any of these elements, in whole or in part, without the authorisation of GETFLUENCE is strictly forbidden and may be subject to legal proceedings.
7. Personal data
- With regard to personal data relating to Advertisers
Each of the parties undertakes to comply, insofar as each is concerned, with all the legal and regulatory obligations incumbent on it in terms of personal data protection, in particular Law 78-17 of 6th January 1978 (known as “Data Files and Civil Liberties Act“) and Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 (known as “General Data Protection Regulation“).
Personal data concerning the contact persons of a party involved in executing the Terms and Conditions are collected and/or processed by the other party in its capacity as data controller within the meaning of the aforementioned regulations.
This data is kept for the time strictly necessary to manage the contractual relationship between the parties. The staff of the party responsible for their processing, its control services (auditors in particular) and its subcontractors may have access to this data. This processing is necessary for the proper execution of these Terms and Conditions.
It may give rise to the persons concerned exercising their right (i) to obtain communication and, where appropriate, correction or deletion of their personal data, (ii) to request erasure or limiting of processing, (iii) to object to processing on legitimate grounds, (iv) to request portability of data concerning them, in order to retrieve and retain them, and (v) to lodge a complaint with a competent supervisory authority.
- With regard to personal data relating to Publisher
8. Authorisation for the dissemination of ratings
For the duration of their use of the Services, Publishers authorise GETFLUENCE to use the 5-star ratings (hereinafter the “Ratings“) that they publish on the Platform, according to the following terms and conditions:
- They agree to their Ratings being published free of charge by GETFLUENCE on the Platform, and on all other French or foreign websites, published by all companies with which GETFLUENCE has agreements,
- They agree that their Ratings may be disseminated by GETFLUENCE by any means and on any medium for the purpose of promoting the Platform
- They waive their right to claim any remuneration, fee, indemnity or financial compensation from GETFLUENCE in this respect.
9. Commercial references
The Publisher expressly authorises GETFLUENCE to quote them and to use, where applicable, the reproduction of its brand or logo as a commercial reference, particularly during events, in its commercial documents, on its Platform, in any form whatsoever, for the duration of the Terms and Conditions and 5 (five) years after its end.
Throughout the duration of this Contract, the Publisher undertakes not to offer Media marketing on platforms that compete with GETFLUENCE, namely automated reservation platforms that allow the Publisher to provide the services described in Article 6 “Services”.
11. Links and third party sites
GETFLUENCE shall in no case be held responsible for the technical availability of websites operated by third parties (including potential partners) to which the Publisher may have access through the Platform.
GETFLUENCE accepts no responsibility for the content, advertising, products and/or services available on such third-party sites, which are governed by their own terms and conditions of use.
GETFLUENCE is also not responsible for transactions between the Publisher and any advertisers, professionals or salespersons (including its possible partners) to which the Publisher may be directed via the Platform and shall not be a party to any disputes with these third parties concerning the purchase of products and/or services, guarantees, declarations and any other obligations to which these third parties are bound.
12. Force majeure
Neither party may be held liable for failure to perform its contractual obligations if this failure is due to an event beyond the control of the parties and constitutes force majeure, as defined in Article 1218 of the Civil Code.
By force majeure, the parties agree to understand, in particular, the occurrence of an event presenting the characteristics of unpredictability and irresistibility usually recognised by French law and courts, as well as strikes, terrorist activities, riots, demonstrations, wars, governmental actions, epidemics, natural disasters or a defect attributable to a third-party telecommunication provider.
The party prevented from performing these obligations must inform the other party as soon as possible, indicating the nature of the case of force majeure. The parties shall approach each other in order to determine together the most appropriate means to mitigate, if possible, the consequences of the event(s) that constitute force majeure.
If the case that force majeure lasts for more than 3 (three) months, either party may terminate the Terms and Conditions, by right, without judicial formality, without notice and without right to compensation of any kind, by sending a registered letter with acknowledgement of receipt with immediate effect.
If, as a result of force majeure, the affected party is unable to fulfil only a part of its contractual obligations, it shall remain responsible for the fulfilment of the obligations which are not affected by the force majeure and for its payment obligations.
As soon as the force majeure ceases, the party prevented from performing must immediately inform the other party and resume performance of the affected obligations within a reasonable period of time.
GETFLUENCE reserves the right to modify these Terms and Conditions at any time.
The Publisher will be informed of these changes by any appropriate means.
Publishers who do not accept the amended General Conditions must unsubscribe from the Services in accordance with the terms and conditions set forth in the article entitled “Duration of Services and Unsubscription”.
Any Publisher who uses the Services after the amended Terms and Conditions have come into force shall be deemed to have accepted these amendments.
In the event that these Terms and Conditions are translated into one or more languages, the language of interpretation shall be French in the event of a contradiction or dispute over the meaning of a term or provision.
15. Applicable law and jurisdiction
These Terms and Conditions are subject to French law and shall be governed and interpreted in accordance with that law.
Any dispute that may arise in terms of its validity, interpretation or execution shall be submitted to the exclusive jurisdiction of the Commercial Court of Paris (France), unless otherwise provided by mandatory procedural rules.