These Internet Advertising Terms and Conditions ("Terms") shall be incorporated in any insertion order ("IO") entered into from time to time by Customer and Provider as listed in the IO (each IO, together with these Terms, the "Agreement").
By submitting and/or executing any IO, you signify that you have read and agreed to be bound by the terms and conditions of this Agreement and that you have the full authority to enter into and bind the Provider to this Agreement.
The Customer may modify this Agreement from time to time as described herein. Your continued services provision to the Customer following such modifications shall constitute your consent to the modified Agreement.
Background
The Provider is in the business of digital marketing carrying on its activities either through its own direct efforts, or operating an affiliate network comprised of third-party marketers by and through which the Provider has the contractual right to display or deliver advertisement.
The Customer is in the social discovery business, wishes to place advertisements on the Internet and to engage the Provider for this purpose.
NOW, THEREFORE, as and for a good and adequate consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree to be legally bound as follows:
1. Definitions and interpretation
In this Agreement:
"Ad" means any advertisement provided by the Provider.
“Advertising Materials” means artwork, copy, or active URLs for Ads.
"Adware" means any application that (i) causes advertising to pop-up as a new window (over or under the active window) on the user's computer either randomly or based on the user's online activity (other than advertisements a web site serves to users to such site's own domain while those users are visiting or exiting such domain), or (ii) is used to distribute Spyware, in each case regardless of whether the user consented to install such application.
"Affiliate" means as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Campaign” means advertising campaign as agreed in the IO.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPC Deliverables” means Deliverables sold on a cost per click basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
"Drive-by Download" means any software installation process or procedure initiated as the direct or indirect result of a page or Advertising Materials view unless the user receiving the download requested it by voluntarily clicking on a button containing words such as "download now" (or words of similar meaning) immediately prior to the initiation of such process or procedure (the user's consent must be given in response to a clear download offer; agreement by the user to proceed past a security warning, alone, is not sufficient).
"Malware" means the introduction through data transmission via modem or any other medium, any virus, worm, trap door, back door, or any other contaminant, or disabling devices including, but not limited to, timer, clock, counter, or other limiting routines, codes, commands, or instructions that may have the effect or be used to access, alter, delete, damage, or disable the sites, systems, other software, information, or other property of a Party, service provider, affiliate, or of the recipients of any advertisement hereunder.
“Network Properties” means websites that are not owned, operated, or controlled by Provider, but on which the Provider has a contractual right to serve Ads within the Campaign.
“Provider Properties” means websites that are owned, operated and/or controlled by Provider and that are used by the Provider to serve Ads within the Campaign.
"Spyware" means any application that covertly gathers user data and transmits it through the user's Internet connection other than information (i) reasonably gathered in connection with services or information overtly provided by the application provider to such users, or (ii) that is not associated with personally identifiable information.
"Third Party" means an entity or person that is not a party to an IO; for purposes of clarity, the Provider, the Affiliates, the Customer and any of their representatives are not Third Parties.
2. Campaign and advertising materials
The Provider agrees to distribute the Ads in accordance with the conditions set out in the IO and mandatory requirements outlined in the Marketing Compliance Policy for Partners.
Unless otherwise specified in the IO, the Provider will provide the Advertising Materials.
The Provider acknowledges and agrees and shall procure the same with regard to the Affiliates that the Advertising Materials created by the Provider (and all rights therein, including, without limitation, copyright) belong to and shall be the sole and exclusive property of the Customer since their creation.
The Advertising Materials created by the Provider shall not infringe any third parties' rights, including, but not limited to intellectual property rights, personal non-property rights, right of publicity. In case of such infringement, the Provider shall fully indemnify and hold harmless the Customer from and against any such infringement.
If the Advertising Materials are provided by the Customer, the Customer grants to the Provider and its Affiliates a non-exclusive, non-transferable, worldwide, royalty free, during the term of an IO only, revocable license and right to display the Advertising Materials provided by the Customer, including all content, trademarks, images, trade-name and brand features of the Customer in accordance with the IO.
The Provider shall not modify the Advertising Materials provided by the Customer without the Customer's approval.
3. Campaign limitations
The Provider shall ensure that the following limitations are adhered to within the Campaign:
No chat room traffic, no torrent traffic, no SMS traffic, no email traffic, no click-under and pop advertising, no push and toolbar advertising.
No rebrokering offers.
No juvenile audience allowed. Targeted audience must be 18+.
No brand bidding allowed.
No virus or fraud traffic allowed.
No co-registrations.
No viral traffic.
The Provider shall not, and shall ensure that each of Affiliates does not, display or deliver Advertising Materials on or through Adware, Spyware, Malware or Drive-by Download applications.
The Provider shall obtain a prior written approval of the Customer for distributing the Ads in case of:
Material changes in the list of Provider Properties and/or Network Properties that are used to serve the Ads within the Campaign. Unless otherwise agreed by the parties via email, for the purpose of this clause, the changes shall be deemed material every time when the Provider starts using at least one new Provider Property and/or Network Property for serving the Ads within the Campaign;
Any excess of the total budget of the Campaign (applicable if the total budget has been agreed by the Parties);
Campaign placements that, in Provider’s reasonable opinion, will result in doubling or greater increase in Deliverables’ daily number in comparison with the Deliverables’ average daily number for the prior two weeks (applicable if the total budget of the Campaign has not been agreed by the Parties).
4. Payment and payment liability
The Customer agrees to pay the Provider for all valid Deliverables legitimately caused by Campaign placements.
The reporting of the Campaign will be based on the number of Deliverables as shown by the tracking system specified in the IO.
The Customer reserves the right not to pay for any of the following Deliverables (collectively, "Fraudulent Deliverables"):
That is fraudulent, including without limitation for any Deliverable that is: (i) generated by means of any device, program, or robot; (ii) generated using stolen credit cards; or (iii) manually created in bad faith by the Provider or an Affiliate with the direct intent to artificially inflate amounts payable by the Customer.
Generated through or as a result of (i) any Adware, Spyware or Drive-by Download applications or (ii) the material modification in any manner of the Advertising Materials without Customer’s approval.
Generated as the result of any incentive, reward or similar program offered by or through the Provider in exchange for such Deliverable ("Incentivized Deliverables").
Reasonably believed by the Customer (i) to be located outside of the targeting geography specified in an IO or (ii) to be taken by persons outside of the targeting audience agreed by the Parties (e.g. juveniles).
Rejected by the anti-fraud system specified in the IO including, but not limited to, due to the fact that email provided by the user does not exist.
Generated by or in connection with any advertisement, web site or application which infringes upon the intellectual property rights of any Third Party.
Which the Customer reasonably deems to have occurred in connection with a breach of the terms of this Agreement (in particular, with a breach of Campaign limitations set forth in Article 3 above).
Which the Customer reasonably deems to have occurred in connection with a breach of the mandatory requirements of the Marketing Compliance Policy for Partners.
The Customer (basing on the data from the anti-fraud system specified in an IO, among other things) shall communicate to the Provider about any Deliverable set forth in Section 4.3 above and provide relevant supporting details (at the discretion of the Customer) within 7 days after its generation, otherwise such Deliverable shall be payable.
The necessity of proof that any Deliverable does not fall within the scope of Section 4.3 above shall lie with the Provider.
The billing schedule and other payment terms shall be specified in an IO.
The Parties agree that any wire transfer fees (if any) or taxes imposed on a party by any governmental authority in connection with the execution and performance of this Agreement shall be paid by that party.
5. Representations and warranties
Each party represents and warrants to the other that (i) 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 (ii) its obligations will be performed in compliance with all applicable laws, regulations, and rules.
The Provider represents and warrants to the Customer that (i) it restricts its Affiliates, systems, employees, agents or contractors from generating Fraudulent Deliverables or Incentivized Deliverables, has safeguards in place and shall immediately notify the Customer if it has any reason to believe that Fraudulent Deliverables or Incentivized Deliverables might be occurring; (ii) Provider Properties and Network Properties on which the Advertising Materials are or will be displayed by the Provider or the Affiliates, the material or content posted thereon (and/or included therein), and the method of delivering of Ads hereunder do not violate any law or any intellectual property, other proprietary right, or right of privacy of any Third Party and do not contain any content which may reasonably be considered unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent, fraudulent or tortuous; (iii) its Affiliates shall fully comply with the terms of this Agreement; and (iv) it shall cooperate fully with the Customer in the event the Customer alerts the Provider that it has a belief that an Affiliate is violating the terms of this Agreement, such cooperation to include, without limitation, providing the Customer with a means of identifying and/or contacting any suspect Affiliates, providing Customer with an audit of any bounties or other payments made or owing to such suspect Affiliates, and maintaining any suspicion or investigation by the Customer of an Affiliate confidential; (v) neither the Provider nor any of its subsidiaries or any director, officer, employee, agent, affiliate or representative, is a government, individual, or entity that is, or is owned or controlled by a person holding the Russian Federation or the Republic of Belarus citizenship or entity incorporated or existing under the laws of the Russian Federation or the Republic of Belarus; (vi) neither the Provider nor any of its affiliated persons will use this IO to the benefit of the government of, any person residing or any entity incorporated in the Russian Federation or the Republic of Belarus.
The Provider represents and warrants to the Customer and shall procure the same with regard to the Affiliates that it possesses all necessary rights to the Advertising Materials and that none of the Advertising Materials will (i) violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or (ii) contain false, intentionally misleading, libellous, defamatory or otherwise unlawful statements; or (iii) contain information that is antisocial, disruptive, or destructive; or (iv) make claim about the Customer or Customer’s products that would require proof which the Provider does not have.
6. Indemnity
The Provider shall indemnify and hold the Customer, the Third Parties and their affiliates and each of their employees, officers, directors, shareholders, contractors and agents harmless from any and all liability, loss, damage, expense, claim, or cause of action, including, without limitation reasonable legal fees and expenses, arising out of or related to: (i) Provider's products or services; (ii) any infringement of third-party rights by the Advertising Materials; (ii) any breach by the Provider, or its Affiliates, of any of the Provider's representations, warranties or obligations contained in this Agreement.
The Customer shall indemnify and hold the Provider and its affiliates and each of their employees, officers, directors, shareholders, contractors and agents harmless from any and all liability, loss, damage, expense, claim, or cause of action, including, without limitation reasonable legal fees and expenses, arising out of or related to any breach by the Customer of any obligations contained in this Agreement.
7. Limitation of liability
Subject to Section 7.1, 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; (iv) loss of or corruption of data; or (v) indirect or consequential losses; suffered or incurred by the other party (whether or not those losses were within the contemplation of the parties at the date of the Agreement).
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.
8. Non-disclosure; data protection
“Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or Third Party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court of law or other regulatory body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under this Agreement; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
As in the course of fulfilment of obligations under the Agreement the Parties may process data that is considered personal data or personally identifiable data under any applicable law, regulation, or rules. To the extent that the Parties process the personal data under joint controllers’ relationship, the Parties shall comply with the joint controller arrangement in Section 16 of the Data Processing Addendum (“DPA”) available via the following link: https://bit.ly/4dXCugL
If in relation to/under the Agreement and on behalf of the Customer certain personal data of Customer’s data subjects would be processed by the Provider on behalf of the Customer , the Parties agree to comply with Section 2-15 of the DPA.
9. Miscellaneous
The Provider shall not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Customer's prior written approval will be null and void. All terms and provisions of these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
Each IO and these Terms constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement. The Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
In the event of any inconsistency between the terms of an IO and these Terms, the terms of an IO shall prevail. If the Provider supplies advertising services which are not specified in an IO these Terms still apply.
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The International Expedited Procedures of the International Centre for Dispute Resolution shall apply regardless of the amount in dispute. The place of arbitration shall be Nicosia, Cyprus, however the Parties agree that in case an oral hearing is necessary, it shall be conducted via video, audio, or other electronic means. The language of the arbitration shall be English. The number of arbitrators shall be one. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
The Customer reserves the right to modify this Agreement from time to time; provided that any such revised Agreement will only apply upon 10 (ten) days from the date the notice of such change was posted on this page or otherwise provided to you, including, notified via email.
The Customer retains the right to promptly terminate this Agreement and/or any IO in the event of a breach of any terms outlined in this Agreement or the requirement specified in the Marketing Compliance Policy for Partners.
If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
All notices, requests, demands, and other communications hereunder will be in writing and will be deemed given at the time such communication is sent by registered or certified mail, or recognized national overnight courier service, or delivered personally, or received via email or confirmed facsimile to the addresses of the parties indicated in an IO.
The provisions of this Agreement which expressly or by their nature survive expiration or termination of this Agreement will remain in effect after the expiration or termination of this Agreement.