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These Advertising Terms and Conditions (the "Terms") govern any insertion order (an "IO") which contains a direct reference to them and entered into by the persons listed in the IO as "Customer" and "Provider" (each IO, together with these Terms, the "Agreement").For the purposes of the Terms, a person or legal entity that is not a party to an IO but is controlling, controlled by or under common control with, or otherwise affiliated with the Customer, shall have the same rights under the Agreement as the Customer.The Data Processing Agreement (as defined below) shall be considered fully incorporated hereto as an Appendix.
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1.1. In this Agreement terms shall be interpreted in the following way:
1.1.1. "Ads" mean an advertisement or series of advertisements for products and services specified by the Customer.
1.1.2. "Ad Materials" means websites, landings, webpages, banners, buttons, texts, URLs, graphic files and/or other online media, including methods of their delivery and/or display.
1.1.3. "Affiliate" means each of Provider's affiliates, sub-affiliates, sub-publishers and advertising syndication partners, as well as persons to whom any of the Provider or the Provider's Affiliate(s) pays (directly or indirectly), provides other consideration, engages or induces, in each case to procure the generation of Units (as defined below).
1.1.4. "Campaign" means distribution of the Ads by the Provider in accordance with the specifications described in an IO.
1.1.5. "Data Processing Agreement" means an Appendix to this Agreement that provides requirements for processing of personal data by the Provider conducted by the Provider in course of fulfilment of the Agreement as defined in accordance with the Relevant Laws and Regulations.
1.1.6. "Relevant Laws and Regulations" means laws and regulations of any jurisdictions/states, where the Parties conduct their business activities or have any kind of corporate presence, as well as those that are included into targeting geography of the Campaign.
1.1.7. "Units" means all tracked inventories delivered by the Provider throughout the Campaign (e.g., leads, clicks, impressions, or other desired actions).
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2.1. Pursuant to the Agreement, the Provider agrees to distribute the Ads in course of the Campaign.
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2.2. The Customer agrees to pay the Provider for the Units according to the billing schedule, payment and other terms of the Campaign outlined in an IO.
Unless otherwise specified in the IO, the Customer agrees to pay for the lead in form of completion of registration or other action agreed by the Parties, taken by a unique male human Internet user aged 35+ or of other age agreed by the Parties located in the targeted geography specified in an IO on a web-site designated by the Customer after such user has clicked on an Ad Material placed by the Provider or its Affiliate.
2.3. The Customer shall provide the unique link for generating and tracking of Units under this Agreement (the "Unique Link") to the Provider.
2.4. The Provider agrees not to provide the Unique Link to any person, unless otherwise provided by these Terms. The Provider shall not promote or procure the promotion of any Ad Materials that contain both the Unique Link and advertisement of any third party. For the avoidance of doubt, this shall not limit the right of the Provider to promote or procure the Ads using any other links along with the Unique Link.
2.5. The reporting of the Campaign is based on the number of Units as shown by the tracking system specified in an IO.
2.6. The Customer may establish the key performance indicators (the "KPI") for the Campaign held by Provider as a pre-condition for payment in accordance with the terms specified in an IO.
2.7. If in the course of monthly business, the fee due to the Provider by the Customer is USD 1,000 or less, the Customer may pay the accrued amount in the period when the amount due exceeds USD 1,000.
3.1. The Provider shall adhere to and ensure that its Affiliates adhere to the Campaign limitations listed in Schedule A to this Agreement throughout the Campaign.
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3.2. The Customer shall communicate to the Provider about any Unit generated in violation of the Campaign limitations and provide relevant supporting details upon their detection, otherwise, such Unit shall be payable.
4.1. The Customer may provide to the Provider its own Ad Materials required for the Campaign.
4.2. Unless otherwise specified in an IO, the Provider or any Affiliate may develop the Ad Materials for the Customer. The form and content of the Provider's Materials must always be expressly approved by the Customer before their placement, display or delivery.
4.3. The Provider hereby agrees to adhere to, and procure in writing adherence by the Affiliates to, the Customer`s compliance policies and programs. The Customer`s compliance policies and programs shall be considered fully incorporated part hereof as Appendices.
The Ad Materials developed by the Provider or any Affiliate shall comply with the requirements listed in Schedules B and C to this Agreement, as well as the Customer`s compliance policies and programs.
4.4. The Provider and its Affiliates shall not modify the Customer's or the Provider's Ad Materials without the Customer's approval.
4.5. The Provider and its Affiliates shall include the HTTP referrer into hyperlinks contained within the Ad Materials.
4.6. Unless otherwise separately agreed, the Provider acknowledges and agrees, and shall procure the same with regard to the Affiliates, that the Provider's Ad Materials approved by the Customer (and all rights therein, including, without limitation, copyright) belong to and shall be the sole and exclusive property of the Customer since their creation.
4.7. The Customer hereby grants to the Provider and its Affiliates a nonexclusive, limited, revocable license to display, perform, distribute, transmit and copy the Ad Materials. Any advertising and marketing rights in and to the Ad Materials not specifically granted to the Provider pursuant to the Agreement are specifically reserved by the Customer.
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5.1. "Confidential Information" shall include:
(i) this Agreement, including the fact of its existence, its terms and the amounts paid or payable hereunder;
(ii) information regarding or related to the Party, its business and partners, including information disclosed by the Party`s employee, officer or consultant (whether before or after the date of an IO);
(iii) information received, developed, created or modified by the Parties during the Campaign, including Personal Data as defined in the Data Processing Agreement;
(iv) information that may give the Parties a competitive advantage over others who do not have access to this information; and
(v) information marked as confidential or would normally under the circumstances be considered confidential information.
5.2. The Parties shall not make use of, disclose or divulge any Confidential Information to any person, or make any Confidential Information public or available or accessible to any person for any purpose other than those provided for under the Agreement.
5.3. Upon request by the Party, the other Party shall:
(i) return to the requesting Party all Confidential Information, in any form or media, and all copies thereof; and
(ii) delete all Confidential Information from any computers, electronic memory devices, and all other storage, including portable USB storage devices and cell phones that may be used by that Party.
5.4. The Provider shall not and shall ensure that its employees, agents, affiliates and any other related parties shall not, without the Customer's prior written consent, use any name, trademarks or any variation, adaptation, or abbreviation thereof (alone or as part of another name) or any logos, seals, insignia or other words, names, symbols or devices that identify the Provider, services and/or websites included into the Campaign for any purpose except with the prior written approval of, and in accordance with restrictions required by, the Customer.
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6.1. Each Party represents and warrants to the other that:
(i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction/state in which the business is organized;
(ii) it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including the lists maintained by the United Nations Security Council and national authorities in the jurisdictions/states, where the Parties conduct their business activities or have any kind of corporate presence, as well as those that are included into targeting geography of the Campaign;
(iii) it has the right, power, and authority (corporate or otherwise) to execute, deliver, perform, and carry out all its actions contemplated by this Agreement; and
(iv) its obligations will be performed in compliance with the Relevant Laws and Regulations.
6.2. The Customer further represents, warrants and covenants to the Provider that:
(i) the information about the Provider`s company and its Affiliates collected by the Customer shall be used only for compliance issues of the Customer and not disclosed to any third parties, unless otherwise required by the Relevant Laws and Regulations;
(ii) the Customer shall provide all necessary information about tracking and reporting of the Campaign in due and timely manner to the Provider;
(iii) the Customer shall provide all due payments to the Provider, except for the occasions listed in Section 9;
(iv) the Customer`s compliance policies and programs adopted in accordance with this Agreement, as well as the Customer`s List of Prohibited Networks and Distributors shall be available to the Provider anytime or upon request; and
(v) the Customer shall not introduce any changes into the respective compliance policies and programs, as well as the Customer`s List of Prohibited Networks and Distributors without prior notification to the Provider within reasonable time, taking into account details of the Campaign, type of traffic used for generation of Units and other factors that may affect the Provider`s performance under this Agreement.
6.3. The Provider further represents, warrants and covenants to the Customer that:
(i) Units generated by the Provider and the Affiliates comply with the Campaign limitations listed in Schedule A to this Agreement;
(ii) the Ad Materials displayed by the Provider or the Affiliates comply with the requirements listed in Schedules B and C to this Agreement, as well as the Customer`s compliance policies and programs;
(iii) the Provider shall provide a reasonable confirmation of compliance with the Relevant Laws and Regulations and the requirements listed in Schedules B and C to this Agreement, as well as the Customer`s compliance policies and programs upon the Customer's request;
(iv) the Provider shall contractually procure compliance of the Affiliates with the Relevant Laws and Regulations;
(v) neither the Provider nor the Affiliates shall remarket, resell, or otherwise distribute any suppression list accessed under this Agreement to any other party for any purpose other than to permit suppression against existing email lists;
(vi) there shall be no involvement (or, as the case may be, there shall be immediate termination of such involvement) in the Campaign of any Affiliate that is already blocked or anyhow restrained from the Campaign by the Customer and/or mentioned in the Customer's List of Prohibited Networks and Distributors; and
(vii) the Provider shall immediately notify the Customer if it has any reason to believe that any violation of the requirements set out in Schedules A-C to this Agreement, as well as the Customer`s compliance policies and programs, or if any particular Affiliate is involved in the Campaign under several IDs or if ID of any particular Affiliate is changed during the Campaign(s).
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7.1. The Customer shall defend, indemnify and hold the Provider harmless from any and all liability, loss, damage, fees, costs, expenses, claim, or cause of action, threatened or adjudicated, including, without limitation reasonable legal fees and expenses, settlement costs and disbursements arising out of or related to any breach by the Customer of any obligations contained in this Agreement. The indemnity in this Section 7.1 shall be conditional upon the Provider duly discharging its obligations under the Agreement, unless otherwise agreed between the Parties.
7.2. The Provider shall defend, indemnify and hold the Customer harmless from any and all liability, loss, damage, fees, costs, expenses, claim, or cause of action, threatened or adjudicated, including, without limitation reasonable legal fees and expenses, settlement costs and disbursements arising out of or related to any breach by the Provider, or its Affiliates, of any obligations contained in this Agreement. The indemnity in this Section 7.2 shall not be conditional upon fault of the Provider with regard to the respective violation, as well as on prior or subsequent approval by the Customer of the Campaign.
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8.1. Nothing in the Agreement shall exclude or limit either party's liability: (i) for death or personal injury resulting from the negligence of either party or their servants, agents or employees; (ii) for fraud or fraudulent misrepresentation; (iii) for payment of sums properly due and owing to the other in the course of normal performance of the Agreement without any violations by the Parties; or (iv) for any other liability that may not otherwise lawfully be excluded or limited.
8.2. Subject to Section 8.1 above, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise)) for any: (i) loss of profit; (ii) loss of anticipated savings; (iii) loss of business opportunity; or (iv) indirect or consequential losses, suffered or incurred by the other party (even if the Party is aware or should know that such other types of damages are possible and even if direct damages do not satisfy a remedy).
8.3. The Customer's liability under the Agreement shall not exceed the aggregate fees paid to the Provider by the Customer under the Agreement for the six (6) month period preceding the date the first liability arose.
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9.1. The Provider hereby agrees to provide necessary information to the Customer to verify the identity, suitability, and risks involved with maintaining a business relationship with the Provider, including collection of copies of official or corporate documents and other details about the Party`s company.
9.2. The Provider hereby agrees to provide any kind of information regarding onboarding procedures, cooperation terms and other issues regarding cooperation between the Provider and its Affiliates upon request of the Customer no later than within 48 (forty-eight) hours from the respective request.
9.3. If the Customer has reasonable grounds to believe that the Provider and/or the Affiliates do not comply the Relevant Laws and Regulations or the Agreement the Provider shall take the following measures outlined below within forty-eight (48) hours from the respective Customer`s request:
(i) provide information, explanations or any other evidence about the alleged violation;
(ii) take measures towards its Affiliates that are necessary to remedy the alleged violation, including but not limited to introduction of necessary changes into the Ad Materials, termination of its participation in the Campaign, forfeiture of payments due;
(iii) take any other necessary measures to remedy the violation.
The Provider hereby agrees to remedy (or, in case of its Affiliates, to procure remedy) of the alleged violation, and such remediation shall not be unreasonably withheld.
9.4. The information from the Provider provided to the Customer under this Section 9 shall be used only for compliance issues of the Customer and not disclosed to any third parties, unless otherwise required by the Relevant Laws and Regulations.
9.5. The Provider agrees and acknowledges that any failure by the Provider or the Affiliates to comply with the Relevant Laws and Regulations or the Agreement that is not duly remedied under this Agreement may result in immediate unilateral termination of this Agreement in Customer's sole discretion in whole or in relation to infringing Affiliates in form of disabling of the Unique Link.
9.6. In the event of termination of this Agreement subject to Section 9.5, the Provider shall ensure that such infringing Affiliates do not have access to the Unique Link and/or are no longer involved in the Campaign, including, without limitation, under different ID numbers. The Customer reserves the right to terminate involvement of infringing Provider and Affiliates into the Campaign in case of non-compliance with this Section by the Provider.
9.7. The Provider agrees and acknowledges that any generation of the Units in violation of limitations and requirements listed in Schedules B and C to this Agreement, as well as the Customer`s compliance policies and programs with no regard to fault of the Provider to prevent generation or promotion of such Units by itself or any of its Affiliates, may result in the forfeiture of any and all rights to any payments otherwise owed to the Provider by the Customer or deduction of funds (in whole or in part, depending on the amount in question, and such deduction shall at all times be substantiated with reasonable evidence presented by the Customer to the Provider prior to deduction) from the amounts owed by the Customer to the Provider (or, as the case may be, the obligation of the Provider to refund respective prepaid funds). This provision shall be applicable with no regard to date of detection of any respective Unit.
9.8. Calculation of losses and subsequent forfeiture or deduction of fees shall at all times be proportionate to the gravity of violations. Gravity of violation shall be defined in a view of the risk assessment scale provided in Schedule C to this Agreement and requirements of the Relevant Laws and Regulations.
9.9. Without limitation to Section 9, the Customer reserves the right to apply range of compliance sanctions provided in Schedule Π‘ to this Agreement against the Provider and the Affiliates for the respective violations of the Relevant Laws and Regulations, the Agreement and the Customer`s compliance policies and programs.
9.10. Nothing in this Agreement precludes the Provider from seeking redress of monetary compensation for fees forfeited by the Customer from the respective infringing Affiliates.
9.11. Upon its discretion, the Customer may withhold application of the respective measures under Sections 9.5 and 9.7 to the Provider if the violation alleged is removed within reasonable time, and the Provider presents to the Customer reasonable evidence of such removal.
9.12. The Provider hereby agrees to cooperate to the fullest extent reasonably possible in case any claims are brought against the Customer regarding violation of marketing compliance rules (regardless of jurisdiction, where such claims may be brought).
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