Effective Date: Jun 11, 2024
THIS TERMS AND CONDITIONS (hereinafter, the "Agreement") is made and entered into by between
NEXTERS GLOBAL LTD, hereinafter referred to as the “Advertiser”, Company Reg. No. ΗΕ257099, Address: 107 Faneromenis Ave. 6031 Larnaca, Cyprus, and you (a legal entity only) hereinafter referred to as “Media Company” collectively referred to as the “Parties” and each individually, a “Party”,
NOW, THEREFORE, in consideration of the mutual agreements hereinafter contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending legally to be bound hereby, agree as follows:
1. DEFINITIONS AND ENGAGEMENT
1.1. Definitions.
“Ad” means any advertisement provided by the Advertiser and delivered by Media Company on the Sites in form of advertising campaigns for the benefit of the Advertiser.
“Advertising Materials” means artwork, copy, 2D or 3D audio and visual elements, assets, creatives and text or active web address for Ads (i) supplied by the Advertiser to the Media Company to be displayed for the purposes of this Agreement; or (ii) developed by the Media Company for the purposes of and under this Agreement when agreed with and requested by the Advertiser.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Bot Traffic” means the traffic coming from automated software that is designed to perform the activity or a combination of activities.
“Cookie Stuffing” means an illegitimate technique where a third-party drops multiple affiliate cookies on a user’s browser, in order to claim the commission out of sales happening from that browser.
“copyrights” mean the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under the laws of the Republic of Cyprus and all analogous rights in all other jurisdictions.
“CPA” means (i) a cost per acquisition that is a specific type of Deliverables which is achieved by a user taking an action that leads to a conversion; (ii) or cost per action that is a specific type of Deliverables which is achieved by a user performing an action pre-determined by the Parties.
“CPC” means a cost per click that is a specific type of Deliverables which is achieved by a user clicking on a given Advertising Materials and thereby being directed to a selected webpage or application.
“CPL” means a cost per lead that is a specific type of Deliverables which is achieved by an explicit sign-up from end user.
“CPM” means a cost per thousand (mille) that is a specific type of Deliverables which is achieved by one thousand displays of selected Advertising Materials.
“CPP” means a cost per player (end-user) that is a specific type of Deliverables which is achieved by a player making specific in-game event defined in the applicable IO.
“Deliverables” mean the services and work product specified by the Advertiser and to be delivered by the Media Company to the Advertiser, in the form and media agreed by the Parties. Any extra characteristics of the services and any work product (if applicable) can be agreed by the Parties in the applicable IO or e-mail instructions.
“Enrollment Form” – a form to be filled by the Media Company to provide Services under the Agreement
“Fraudulent Traffic” means the activity or a combination of activities performed by end user or machine which satisfies the criteria to form Deliverables to generate false commission.
“Flat Fee” means a payment model, where Advertiser pays a fixed amount of Service Fee for the whole volume of the Services provided under a particular IO per Reported period or during the whole period the IO is effective.
“Iframe” means an HTML element that loads another HTML element inside of a web page.
“Incentivized-“ and/or “Rewarded Activities” mean the traffic generated by end users who receive different types of rewards such as cash, gift, discount, whitepaper, free eBook, or game tokens for performing the activity or a combination of activities.
“IO” means an offer made by Advertiser through Affise system and accepted by Media Company by using Tracking link of the particular offer that incorporates terms and conditions of this Agreement, under which Media Company will deliver Ads on Sites or other agreed traffic sources in form of advertising campaigns for the benefit of the Advertiser. Parties shall sign an additional IO made in written and signed by borh Parties and that will be an integral part of this T&C under circumstances stipulated in the specific offer.
“Media Company” means the Media Company or its agency listed above and on the applicable IO.
“Media Company Platform” means websites, SaaS, platform or infrastructure specified in the applicable IO that are owned, operated, or controlled by the Media Company.
“Misleading Geo” means the traffic from geo, which is not included in the offer.
“Third Party Platform” means websites, SaaS, platform or infrastructure specified in the applicable IO that are not owned, operated, or controlled by the Media Company, but on which Media Company has a contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear) , other editorial or advertising policies, and Advertising Materials due dates.
“Product” means any tangible or intangible materials (including hardware, software, source code, assets, documentation, methodologies, multimedia, know how, processes, techniques, ideas, concepts, technologies, and data) of the Advertiser to the Media Company to perform the Services and are intended for distribution or other use by the Advertiser. Product includes any modifications to, or derivative works of, the foregoing materials, the trademarks.
“Services” mean all services and the work product to be provided to the Advertiser by the Media Company in form of Deliverables as specified in the applicable IO and under this Agreement.
“Site(s)” means Media Company Platform and (or) Third Party Platform.
“Third Party Attribution Tracking Partner“ means a third party service (e.g. Affise, Voluum, Tune, Appsflyer, Adjust, Kochava, etc.) that may track required attributions or other statistics for the Advertiser.
“Third Party Materials” mean proprietary third party materials (if any) which may be incorporated into the Ads, including without limitation stock photography or illustration.
“Trademarks” mean trade names, words, symbols, designs, logos or other devices or designs used in the Ads to designate the origin or source of the goods or services of the Advertiser.
“Working Files” mean all underlying work product and digital files provided by the Advertiser and utilized by the Media Company for the purposes of Services.
For the purposes of this Agreement, the term "business day" means a day (other than a Saturday or Sunday or a public holiday) when commercial banks are open for ordinary banking business in Nicosia (Cyprus); the term “written”, or “writing” shall include any electronic communications from a Party, such as email, facsimile, and any messenger or other electronic communication tool.
1.2. Engagement.
(a) Enrollment
(a).1. In order to enroll as a Media Company under this Agreement, a potential Media Company shall first complete and submit at Enrollment Form available at Advertiser’s website: https://affiliate.nexters.com/en/. The Enrollment Form may be changed by the Advertiser at his own choice from time to time. By submitting the Enrollment Form, a potential Media Company provides Advertiser with acceptance of Privacy Policy.
a).2. Upon reviewing Enrollment Form, Advertiser notifies a potential Media Company of acceptance or rejection of Enrollment Form, within reasonable time since the Enrollment Form is submitted. In case of acceptance Media Company shall provide an Advertiser with an acceptance of this Agreement. Advertiser may accept The Enrollment Form by providing a potential Media Company with a guest access to statistics public service of Media Company’s website.
(a).3. Advertiser may accept or reject Enrollment Form at its sole discretion for any reason, including without limitations due to the following circumstances:
(a).3.1. infringes or might infringe Advertiser or third parties’ rights including but not limited to intellectual property rights;
(a).3.2. contains obscene, erotic, pornographic or other explicit content;
(a).3.3. encourages, describes or promotes consumption of illegal drugs;
(a).3.4. contains hate, violence, discriminatory, racist or offensive content;
(a).3.5. promotes illegal activities or otherwise violates any applicable laws;
(a).3.6. contains any malware, fraudulent or deceptive code;
(a).3.7. uses misleading or fraudulent means to motivate User to click (CPC), make an event (CPE) or take an Action (CPA) or to achieve a thousand impressions of Advertising Materials (CPM);
(a).3.8. includes an Advertiser and/or its affilliates’ registered trademark in its domain name or title;
(a).3.9. includes other inappropriate elements that are determined as inappropriate at Advertiser’s sole discretion;
(a).3.10. participates in any traffic exchange platforms, system of automatic website promotion (CAP) and other services of false click and events generation;
(a).3.11. requires User’s payment for impression and/or redirection through advertisements on Media Company’s website (banners. links, etc.);
(a).3.12. is domain parking;
(a) 3.13 promotional method is not supported;
(a) 3.14 not consistent with branding;
(a) 3.15 not enough traffic;
(a) 315 quality issue with website (or traffic source);
(a) 3.16 contact is not verified;
(a) 3.17 existence of traffic source is too short.
(a).4. Procedure of account granting, process of transfer of password and login
On accepting Media Company’s Enrollment Form, Media Company is issued a unique username and password to access its account on Affiliate Program Platform (the “Publisher’s account”), neither of which may be used by any person other than the Media Company. Media Company agrees to treat the username and password confidential and not to disclose them to third parties. Media Company is fully liable for any leaking or disclosure of such password and username that will consist material breach of this Agreement. In this case Media Company shall immediately notify Advertiser about such leaking or disclosure.
(a).5. Media Company undertakes not to access and not to try to gain access to the accounts created for other Media Companys. Such actions will consist material breach of this Agreement.
(a).6. Advertiser is not liable for any disclosure of Media Company’s information caused by failures in operation of third parties’ services, programs, etc. and/or any losses and damages caused thereby, unless otherwise expressly required by applicable laws.
(a).7. Media Company agrees to verify and update from time to time all its details entered by the Media Company in the Enrollment Form or in Media Company’s account to keep them up-to-date. Media Company is fully liable for accuracy and correctness of such details and shall bear any charges that may be caused by Media Company’s failure to comply with this provision.
2.8. Media Company undertakes not to generate Artificial traffic that includes Deliverables including but not limited to the following:
– Deliverables which are not generated by a browser,
– Deliverables which are not preceded by an intended active action of a User at the Media Company’s website upon seeing the Advertising Material,
– Deliverables which were collected through use of the following methods or sources (the “Restricted Methods and Sources”):
• search engines (Google Adwords, Yahoo! Search Marketing, Microsoft adCenter etc.);
• paid social traffic unless otherwise is expressly agreed by Advertiser;
• redirects without User’s confirmation;
• doorways without intermediate page;
• substituted SERP;
• spam (e-mail, web, IM etc.);
• misleading ads or creatives;
• pop-ups or pop-unders (unless otherwise is expressly agreed by Advertiser);
• automatic openings function, spiders, robots, requests in email or chat rooms, script generators, links placed on websites other than Media Company’s website stipulated in Enrollment Form as well as equivalent techniques and technical means solely used by the Media Company to unlawfully maximize its Service Fee;
• sources blacklisted by Advertiser as notified to the Media Company from time to time.
Advertiser may state in the IO that one of the above restrictions does not apply to such IO. In the latter case, the IO shall prevail, and such restriction shall not apply.
(a).9. Media Company undertakes not to use Restricted Methods and Sources (as defined above) in provision of Services.
(b) The Advertiser hereby engages the Media Company to perform the Services pursuant to the Agreement the IOs.
(c) All Services to be provided by the Media Company shall be performed in a workmanlike manner, and at a level of proficiency to be expected subject to the background and experience that the Media Company has represented it has.
(d) The Media Company shall not perform the Services in connection with or place any Ads and (or) Advertising Materials on the following Sites (i.e., Prohibited Sites):
(i) Sites blacklisted by the Advertiser as to be notified to the Media Company from time to time;
(ii) Sites, which contain materials infringing third-party intellectual property rights;
(iii) Sites the content of which is of an adult or explicit nature, offensive, indecent or otherwise unlawful under applicable laws and regulations;
(iv) Sites the content of which is likely to, or could reasonably be viewed as likely to incite violence, crime, or racial or ethnic hatred, including sources which promote or sell firearms;
(v) Sites the content of which is drug, tobacco or alcohol related, including pharmaceutical or prescription drugs;
(vi) Sites the placement of any Ads and (or) Advertising Materials on which is likely, or could reasonably be viewed as likely, to tarnish or damage the reputation of the Advertiser;
(vii) Sites that mislead or force users to perform any action for generation CPC, CPA, CPM or any other form of Deliverables;
(viii) Sites that contain malicious software or code designed to scam or deceive users.
(ix) Other Sites or other traffic sources banned by the Advertiser in the particular IO.
(e) Subject to the applicable billing model under the respective IO, the Parties hereby agree that where the actual number of in-game events or other actions is less than 2% of total number of Deliverables generated under that IO, the Advertiser is entitled not pay for the Services under the respective IO. All such Deliverables brought under the IO shall be deemed as ‘Fraudulent Traffic’ hereunder, unless otherwise has been expressly agreed between the Parties. In case of discrepancies between this paragraph and any of the Media Company’s Policies, this paragraph shall prevail.
(f) The Media Company agrees that all Services will be rendered by it as an independent contractor and that this Agreement does not create a franchisor-franchisee, co-owners, partnership, joint venture or agency relationship between the Media Company and the Advertiser.
2. FEE PAYMENT AND ATTRIBUTION CALCULATION.
2.1. Fee
(a) In consideration for the Media Company’s performance of its Services hereunder, and subject to the terms and conditions of this Agreement and applicable IO, the Media Company will be paid a fee based on the Actual Advertising Cost. The Actual Advertising Cost shall be calculated as the total amount of Deliverables achieved and approved by Advertiser multiplied by the price per Deliverable specified in the correspondent IO. Flat-Fee basis is allowed, if directly provided for in the correspondent IO agreed and signed by both Parties (if applicable).
(b) For every click on an Ad delivered by the Media Company pursuant to this Agreement, the user has thirty (30) days to take an action for achievement required by a specific type of Deliverables (e.g. in-game register, account register, application install etc.) (“Claim Window”).
(с) Unilateral change by the Media Company of the fee shall not be allowed. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless otherwise directly specified in the corresponded IO. Unless otherwise agreed by the Parties in writing, the Advertiser shall not be charged by Media Company for any additional Deliverables above any level guaranteed or capped in the corresponded IO.
2.2. Payment
(a) Unless the IO provides otherwise, the initial invoice shall be sent by the Media Company upon completion of the first month’s delivery, and the Advertiser will pay the invoice within thirty (30) days after its receipt and confirmation. Invoices shall be sent by the Media Company to the Advertiser’s billing address as specified in the correspondent IO and must include information reasonably specified by Advertiser as required for invoicing in the correspondent IO.
(b) All payments pursuant to this Agreement shall be made in [US dollars], unless otherwise is agreed by the Parties and all payments due to the Media Company shall be made by the Advertiser under invoices issued by the Media Company to a bank account provided within scope of documents provided under Enrollment Form , or as otherwise agreed by the Parties in the correspondent IO. The Media Company will submit invoices to the Advertiser for payment for Services approved by the Advertiser on the basis of the report for the advertising period (1 month) or other period approved by both Parties at such time or times as payment becomes due hereunder. The Advertiser shall confirm the invoice amount according to the data provided by the Media Company within seven (7) business days after the receipt of the invoice. The confirmation of invoice amount would be deemed valid by both Parties through emails. The Media Company acknowledges that failure by the Media Company to send an invoice within such period may cause the Advertiser to be unable to pay hereunder in due time. In case the total amount of Services provided under advertising period (1 month) consists less than 50 USD such amount shall be transferred to the next period for payment.
(c) Each Party is responsible for complying with the collection, payment, and reporting of all taxes imposed by any governmental authority applicable to its activities in connection with this Agreement. The Fee includes all direct, indirect taxes (VAT, sales tax, etc.), commissions, duties, charges and other similar levies and expenses that may arise in case of the requirement by applicable law. All such legally required deductions and withholdings charged on the Fee to be remitted to the Media Company, if applicable, shall reduce the Fee respectively. The Advertiser shall be required to make payment of only those taxes which are clearly stated and separately indicated and identified in each invoice.
2.3. Attribution Calculation
(a) For the purposes of this Agreement, the total amount of Deliverables achieved for each relevant reporting period shall be determined by the Advertiser in accordance with data provided by its automated attribution tracking system or the Third Party Attribution Tracking Partner used by the Advertiser, from time to time.
(b) In case of any discrepancy between the Advertiser’s data report and the Media Company’s data report, the Parties shall work in good faith to resolve.
(c) In case of any discrepancy greater than ten percent (10%) between the Advertiser’s data report and the Media Company’s data report, the Advertiser’s data report shall prevail, unless the Media Company can provide proofs of significant inconsistencies in the Advertiser’s data report due to technical difficulty, bugs, service outages, or other malfunction.
(d) Upon request from the Advertiser, the Media Company shall provide proof of performance for the invoiced period, which may include access to its online or electronic reporting system.
3. INTELLECTUAL PROPERTY.
3.1. The Media Company acknowledges that all rights, including intellectual property rights, attached to the elements including Advertising Materials provided by the Advertiser, belong exclusively to the Advertiser, and the Media Company undertakes not to question or contest these rights, either directly or indirectly, either during or after the Term of this Agreement. The Media Company undertakes to use elements that may be provided by the Advertiser solely within the context of this Agreement and in accordance with instructions provided by the Advertiser, only for the purposes of providing the Services.
3.2. The Media Company hereby agrees and undertakes not to exploit in any manner whatsoever the Advertising Materials during and after the term of this Agreement.
3.3. The Advertiser may take such action as the Advertiser deems necessary or desirable against any party to protect any intellectual property rights and interests of the Advertiser hereunder. The Media Company shall, at the Advertiser’s request, cooperate fully with the Advertiser in any controversy which may arise or litigation which may be brought concerning Advertiser’s intellectual property rights and interests.
3.4. The Media Company acknowledges that all intellectual property rights pertaining to all versions of the Product, including, for the avoidance of doubt, the ‘non-marketable’ versions of the Product (if any), belong exclusively to Advertiser, and the Media Company undertakes not to question or contest these rights.
3.5. Without the Advertiser’s prior written permission, the Media Company shall not retain the right to use any sample of the Advertising Materials including working files, final works and preliminary works for the purpose of any competitions, future media publications, educational purposes, marketing materials, and artist portfolios. Where the Advertiser has given its written permission, the Media Company must redact and remove any trade-sensitive information, including any product pricing or Advertiser’s data.
3.6. For the avoidance of any doubts, the Media Company shall not be granted any license or exclusive rights or copyrights whatsoever on intellectual property of the Advertiser (such as trademarks, models, designs, patents, arts and software or software code etc.) under this Agreement. To the extent necessary for the Media Company’s performance under this Agreement, the Advertiser may grant to the Media Company a non-exclusive, non-transferable, limited license to use some of the Advertiser’s intellectual property solely in connection with such performance under this Agreement and during the development period of the correspondent Advertising Materials including any creative assets. The Media Company the Advertising Materials solely on the Media Company Platform or Third Party Platform solely in connection with the Services.
3.7. The Media Company owns all right, title and interest in and to its intellectual property that may be used in connection with the Services and for the development of the Advertising Materials (if any). The Media Company grants to the Advertiser a worldwide, royalty-free, non-exclusive, and non-transferable license to reproduce, distribute, display and perform such Advertising Materials solely in connection with the Services hereunder. For the avoidance of doubt, no further consent and/or payments of any kind are required from any other party for the Advertiser to use such Advertising Materials hereunder.
4. GOVERNING LAW AND DISPUTE RESOLUTION.
4.1. These Agreement and all the attachments, schedules, annexes and amendments thereto are subject to the laws of the Republic of Cyprus and shall be interpreted accordingly.
4.2. All disputes, controversies or claims, which may arise from or in connection with this Agreement, including execution, breach, termination or invalidity, shall be settled through negotiations between the Parties. In case of a dispute, controversy or claim, which cannot be settled though negotiations, such dispute, controversy or claim shall be transferred to the competent courts of the Republic of Cyprus, which shall possess exclusive competence to resolve such matter.
4.3. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, it shall be deemed to be severed from this Agreement. The remaining provisions will remain in full force in that jurisdiction and all provisions will continue in full force in any other jurisdiction.
5. FORCE MAJEURE
5.1. The Party shall be released from liability if non-fulfillment or improper fulfillment of the obligations is related to circumstances of insuperable force (force-majeure circumstances), i.e. the circumstances unforeseeable, extraordinary and inevitable under the given conditions which the Parties could neither foresee, nor prevent using reasonable measures. Such circumstances shall include in particular: natural disasters, fires, earthquakes, floods, wars, war action of any kind, strikes, blockades, embargo, prohibition or limitation of export or import, political unrest, riots and their consequences, regulations and decisions of state authorities changing the legal status of the Parties to the Agreement, restricting and/or prohibiting fulfillment of obligations hereunder or in any other way influencing the ability to fulfill the conditions hereof and other circumstances beyond the reasonable control of the Party.
5.2. The Party referring to circumstances of insuperable force shall immediately inform the other Party hereunder of occurrence and termination of such circumstances in writing within 10 (ten) calendar days. In such case, representatives of the Parties shall consult each other as soon as possible and agree on the measures to be taken by the Parties.
5.3. Untimely notification on the circumstances of insuperable force sent upon expiration of 10 (ten) calendar days shall deprive the respective Party of the right to refer to such circumstances in the future.
5.4. Parties agreed that any acts of authorities and circumstances (on their own) related to the coronovirus infection pandemic (2019-nCov), by themselves, shall not be any ground for the Parties to apply the provisions of this section hereof.
5.5. Occurrence of the circumstances of insuperable force and their duration shall be confirmed by the documents issued by the respective competent bodies or entities.
5.6. If Advertiser’s ability to transfer funds hereunder has been materially negatively impacted by an event beyond the Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then the Advertiser shall make every reasonable effort to make payments on a timely basis to the Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not relieve the Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
5.7. If force-majeure circumstances have continued for thirty (30) days, the Advertiser is entitled to cancel the remainder of the IO without any penalty or charge whatsoever.
6. WARRANTIES, INDEMNITY AND LIMITATION OF LIABILITY
6.1. Warranties and Undertakings
(a) The Media Company hereby undertakes and warrants that:
(i) it has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with its undertaking a relationship with Advertiser; its performance of all of the terms of this Agreement does not and will not breach any agreement or obligation of any kind made prior to entering into this Agreement, including agreements or obligations it may have with entities for which it has provided services;
(ii) the performance of the Services called for by this Agreement do not and will not violate any applicable law, rule, or regulation, including but not limited to any relevant secrecy law, privacy rights, anti-spam regulations, embargo and export law, or any proprietary or other rights of any third party;
(iii) it has not entered into or will not enter into any agreement (whether oral or written) in conflict with this Agreement;
(iv) it shall keep and maintain accurate books, records, reports, and Advertiser data relating to the Services and Deliverables;
(v) the Media Company will take all necessary steps to ensure compliance by its employees, Media Company’s agents, and/or its other representatives with the Media Company’s obligations under this Agreement;
(vi) it shall represent the Services and any information relating to the Services and Deliverables accurately and fairly and shall avoid any misleading or unethical business practices.
(b) The Advertiser shall be entitled to warranty claims to the full extent of the law. The Advertiser explicitly reserves the right to compensation for damages, in particular damages due to non-performance.
(c) The Media Company warrants that it has the right and authority to enter into this Agreement, to fully perform all of its obligations hereunder, and to transfer all rights hereunder and that it has the technical means to enable it to provide the Service.
(d) The Media Company undertakes and warrants to ensure that no element taken from any pre-existing intellectual creation or work is incorporated into the Service.
(e) The Media Company undertakes and warrants not to generate any artificial traffic for the purposes of this Agreement or any applicable IO hereunder. The Media Company further undertakes and warrants that the Services and respective Deliverables hereunder will not contain any traffic generated by or received from any of the following methods and resources:
(i) search engines (Google Ads, Yahoo! Search Marketing, Microsoft adCenter etc.):
• brand search;
• search with redirect to the Advertiser’s official domains;
(ii) social networks (Facebook, Twitter, etc.), unless otherwise expressly agreed by the Advertiser;
(iii) redirects without end user’s confirmation;
(iv) spam (e-mail, web, IM etc.);
(v) doorways without intermediate page;
(vi) Cookie Stuffing;
(vii) Iframe;
(viii) Incentivized- and/or Rewarded Activities (i.e. motivated traffic);
(ix) pop-ups or pop-unders, unless otherwise expressly agreed by the Advertiser;
(x) extensions for browser;
(xi) illegal third-party software;
(xii) Misleading Geo;
(xiii) automatic openings function, spiders, robots, requests in email or chat rooms, script generators, as well as other similar techniques solely used by the Media Company to unlawfully increase actual amount of the Deliverables hereunder;
(xiv) generation outside browser;
(xv) Bot Traffic.
(f) The Media Company acknowledges that the Advertiser may not want the Ads and (or) Advertising Materials placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the applicable guidelines of the platforms used by the Media Company (hereinafter, the “Guidelines”).
Hence, the Media Company undertakes and warrants that it will use commercially reasonable efforts to comply with the Guidelines with respect to the Ads and (or) Advertising Materials that appear on the Sites involved, although Media Company will at all times retain editorial control over its own Sites. Should the Ads and (or) Advertising Materials appear in violation of the Guidelines, the Advertiser may request in writing that the Media Company remove the Ads and (or) Advertising Materials and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads and (or) Advertising Materials, or not bill Advertiser for such Ads and (or) Advertising Materials.
In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, the Media Company will negotiate an alternate solution. After the Advertiser notifies the Media Company that specific Ads and (or) Advertising Materials are in violation of the applicable Guidelines, the Media Company undertakes and warrants that it will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts the applicable IO, the Parties will negotiate in good faith mutually agreed changes to such IO to address such impacts.
(g) The Parties warrant and represent that they have meet the requisite regulatory and legal requirements to enter into, perform and be bound by this Agreement in accordance with all applicable laws and regulations.
(h) The Media Company undertakes and warrants that it does not receive any “personal information,” as defined under the California Consumer Privacy Act of 2018 (“CCPA”) or other applicable law, as consideration for any services or other items provided to the Advertiser hereunder. Neither Party shall collect, share, or use any personal information exchanged pursuant to this Agreement except as necessary to perform or receive Services hereunder. With respect to any personal information exchange pursuant to this Agreement, each Party agrees not to sell such personal information or take action that would cause any transfers of such personal information to qualify as “selling” personal information under the CCPA. Notwithstanding the foregoing, the Parties agree that the foregoing shall not apply to any data or information, including personal information, which is already known, accessible, discernible, or otherwise collected or processed by such Party independently of providing or receiving the advertising services hereunder.
(i) In connection with this Agreement and any related agreement or activity, the Media Company agrees that it has complied and it will continue to comply with applicable Anti-Corruption Laws, and represents and covenants that it has not offered, paid, promised, authorized, accepted, or received, and will not offer, pay, promise, authorize, accept or receive, directly or indirectly, any bribe, kickback, or other improper or illegal payment to or from any person or entity, including any Public Official or government authority, in connection with this Agreement, the Media Company or any related agreement or activity. Public Official shall mean an officer or employee of a government authority or agency of any level, whether by appointment, by election or by agreement; an officer or employee of a body corporate that provides a service to the public; exercising a public function or acting in an official capacity on behalf of a government; a party official or candidate for political office; an officer or an employee of a public international organization, such as the World Trade Organization and the United Nations; or an employee, officer, or director of a state-owned or state-controlled enterprise. Anti-Corruption Laws shall mean the U.S. Foreign Corrupt Practices Act, the UK Bribery Act of 2010, any substitute or analogous laws of the places of trademark registration, and all other applicable laws and regulations prohibiting bribery, corruption, kickbacks, or similar unlawful or unethical conduct.
6.2. Indemnities
(a) Infringement of the licensing rights of third parties or of the Advertiser shall lead to claims for damages against the Media Company, which hereby indemnifies and holds the Advertiser harmless from any and all such third-party claims. The same shall apply for inappropriate use of the Advertising Materials by the Media Company. Upon completion of the Services, the Advertising Materials shall be returned to the Advertiser or destroyed upon first demand from the Advertiser.
(b) The Media Company will additionally defend, indemnify, and hold harmless the Advertiser, and each of its Affiliates and representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third party and resulting from (i) the Media Company’s alleged breach of representations and warranties hereunder, (ii) the Media Company’s display or delivery of any Ad in breach of this Agreement, or (iii) the Advertising Materials provided by the Media Company for an Ad (and not by the Advertiser, and/or each of its Affiliates and/or representatives) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of any third party; or (B) are defamatory or obscene.
6.3. Limitation of Liability
(a) Excluding Parties’ respective obligations under paragraph 6.1 above, damages that result from a breach of Section 8 below, or intentional misconduct by one of the Parties hereto, in no event will any Party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another Party arising out of an IO, even if such party has been advised of the possibility of such damages.
7. TERM AND TERMINATION OF THE AGREEMENT
7.1. This Agreement is effective as of the date of notification by the Advertiser of acceptance of a Media Company and will remain in full force and effect until terminated by one of the Parties.
7.2. The Media Company hereby expressly agrees that the Advertiser may terminate this Agreement and cancel any outstanding IO (partially or in full) thereto upon two (2) days written notice for any reason or no reason whatsoever, provided that the Advertiser shall fully reimburse the Media Company for (i) any completed work up to the cancellation date the Media Company shall not claim the following against this amount:
• planned expenses that the Media Company does not incur due to the cancellation,
• income that the Media Company earns from the alternate use of its working capacity (reallocation of resources in case of work cancellation); and
• any other income not explicitly related to the cancelation.
7.3. The Parties may terminate this Agreement as provided below:
7.3.1. The Parties may terminate this Agreement by mutual written consent at any time;
7.3.2. The Media Company may terminate this Agreement by giving notice to the Advertiser at any time, if the Advertiser has breached any material representation, obligation, covenant or warranty contained in this Agreement in any material respect and such breach remains uncured for a period of ten (10) business days after such notice;
7.3.3. The Advertiser may terminate this Agreement by giving notice to the Media Company at any time, if the Media Company has breached any representation, obligation, covenant or warranty contained in this Agreement;
7.3.4. Each Party may terminate this Agreement -
(i) if any other Party declares insolvency or bankruptcy;
(ii) if a petition is filed in any court and not dismissed in ninety (90) days to declare any other Party bankrupt or for such other Party’s reorganization under bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting the rights of creditors; or
(iii) if any other Party consents to the appointment of a trustee in bankruptcy or a receiver or similar entity.
7.3. Upon the effective date of any termination of this Agreement, all legal obligation, rights, and duties arising out of this Agreement shall terminate except that the warranties and indemnities, confidentiality restrictions, ownership of proprietary rights provisions, and independent contractor provisions of this Agreement shall continue to apply and shall survive the termination of this Agreement as ongoing covenants between the Parties.
7.4. Any notice under this section hereof submitted by email shall be treated as a written notice.
8. CONFIDENTIALITY.
8.1. The Media Company acknowledges the highly confidential nature of all information relating to the Advertiser and its respective affiliates, irrespective of its medium or format, which may become known to it for the purpose of discussing possible business relationship regarding any project and/or conclusion and/or performance of the Agreement, including, without limitation, existing or future products, text files, dialogue databases, technical and financial data, discoveries, know-how, inventions, professional projects, contracts and agreements, negotiations in progress, bids, working methods, documents, drawings, logos, characters, titles, scripts, languages, plans, reports, analyses, electronic data, computer programs, source codes, research, prototypes, opinion polls (collectively referred to as “Confidential Information”)
8.2. In this respect, the Media Company undertakes to take all necessary measures with its staff and/or involved persons and/or agents and/or sub-contractors of any kind, be they permanent or punctual, to ensure the confidentiality obligation hereunder is complied with.
8.3. The Media Company specifically undertakes:
• only to use, copy and/or disclose the Confidential Information for the strict performance of the Agreement;
• only to reveal the Confidential Information to the members of its team who need to use the Confidential Information in question for performance of each Service. In this respect, the Media Company undertakes to alert its employees, consultants, and sub-contractors employed or engaged by the Media Company in advance of the confidential nature of the Confidential Information, and to obtain in advance a personal, written undertaking from them not to disclose the Confidential Information, it being agreed that this may arise out of their existing employment contract and will not necessarily be the subject of a specific confidentiality agreement;
• not to exploit the provided confidential information for other purposes, particularly not for competitive purposes; furthermore, the Media Company shall not disclose the information or make it public;
8.4. The Media Company acknowledges and agrees that the damage and harm caused to the Advertiser and its respective affiliates, as a result of a disclosure of the Confidential Information would be exceptionally serious and that the Media Company would be liable as a result. The Media Company undertakes to inform the Advertiser immediately if and when it becomes aware that the Confidential Information is used or disclosed. The Media Company undertakes to assist the Advertiser and its respective affiliates, in good faith, in recovering the Confidential Information and preventing its fraudulent use.
8.5. The Media Company explicitly acknowledges and agrees that it neither holds nor acquires any right either to the Confidential Information or the Products to which the Confidential Information relates, either under the Agreement or through the communication of said Confidential Information.
8.6. It is expressly agreed that the confidentiality obligation hereunder shall continue to apply for a period of five (5) years after the expiration or termination of the Agreement, for any reason.
8.7. The confidentiality obligation shall not apply to information for which the Media Company is able to document that:
• it was known to the Media Company, and it can prove that it learnt of it through its own efforts or through a third party not bound by a confidentiality obligation that predates the Agreement;
• it is or was in the public domain prior to execution of this Agreement, or enters the public domain during performance of the Agreement without any action or omission on the part of the Media Company and/or its staff and/or intervening party of any kind whatsoever, be they permanent or casual;
• it was independently developed by the Media Company without any use of or reference to any Confidential Information.
8.8. Nevertheless, the Media Company may communicate the Confidential Information to any court of competent jurisdiction, to its advisers (legal and/or fiscal) and to any competent administration which may request it, provided it has notified the Advertiser sufficiently in advance to allow it to oppose such a request. In this case, the Media Company shall restrict communication to the Confidential Information requested.
8.9. The Media Company acknowledges that it will be impossible to fully measure in money the damage caused to the Advertiser and its respective affiliates by any failure to comply with, or any breach of, the material terms, promises, agreements, and conditions of this section hereof, and that such failure or breach will result in irreparable and continuing damage to the Advertiser and its respective affiliates, and that in the event of any such failure or breach, the Advertiser and its respective affiliates will not have an adequate remedy at law or in damages. If any action of law or equity is necessary to enforce or interpret the terms of this section hereof, the Advertiser shall be entitled to its reasonable attorney’s fees, costs and disbursements in addition to any other relief to which it may be entitled. If a dispute arises over what constitutes Confidential Information subject to this Agreement, the Media Company agrees to treat any information subject to such dispute (the “Disputed Information”) as Confidential Information hereunder until such time as either the Parties can mutually agree or a court of competent jurisdiction has determined if the Disputed Information shall be Confidential Information, subject to the terms hereof.
8.10 Data Protection
8.10.1 The Media Company can transmit personal data of the User (the “User data”) to Advertiser, as well as to Advertiser’s affiliated parties, payment partners, being the processors (“Processors”) of the User data, controlled by the The Media Company , exclusively if:
– it is necessary for compliance with the Agreement; and
– has provided to the The Media Company his/her written consent to transfer of the User data to Advertiser and its processing, including, but not limited to, storage; and
– such transmission and further processing of the User data by Advertiser will not violate any applicable laws.
In the event transmission of the User data and its secure processing by the Processors require execution of any documents, collection of any consents or performance of any other actions, the The Media Company undertakes to fully comply with all such requirements, inter alia, based on Advertiser’s written request.
The Media Company ’s failure to comply with the provisions of this paragraph shall constitute a material breach of the Agreement and be a ground for its termination by Advertiser without right to receive any charges for Advertising Services provided, and result in the The Media Company ’s obligation to fully indemnify any expenses or losses, that can be incurred by Advertiser or other Processors by such incompliance, as well as by incompliance with any applicable laws.
8.2. For the purposes of compliance with its obligations hereunder, i.e. for settlement of payments as may be due from Advertiser to a The Media Company , The Media Company will provide Advertiser through the Affiliated Platform, or through Advertiser’s affiliated party, or directly with the following data: name and surname or company name, telephone number, registered address, passport number (if applicable), as well as Webmoney Purse number, bank account number, BIC number and such bank details that may be required for effective settlements of payment (jointly referred to as “The Media Company ’s Data”).
Hereby the The Media Company agrees to Advertiser’s storage and other use of the The Media Company ’s Data as may be used for the above purposes. The Media Company also agrees that in some cases Advertiser will transmit the The Media Company ’s Data to third parties exclusively for the purposes of compliance with its obligations under the Agreement, and the The Media Company agrees for such transmission.
9. FINAL PROVISIONS
9.1. This Agreement constitutes the entire agreement of the Parties with respect to its subject matter and supersedes any other obligations made by the Parties in writing or orally to execution of this Agreement.
9.2. This Agreement and any IOs may be amended by Advertiser at any time. Such amended Agreement and/or IOs shall be effective on the date of announcement thereof to the Media Company in Media Company’s account or on the date of forwarding e-mail notification to Media Company’s e-mail address inserted in Media Company’s account. By continuing to use The Media Company ’s account and provide Advertising Services after such date of announcement or notification, The Media Company will be deemed to have accepted such amendments. If Media Company does not agree with amendments, he should immediately cease to use Media Company’s account and provide Advertising Services under Affiliate Program
9.3. Advertiser’s failure to act with respect to a breach by the Media Company does not waive Advertiser’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver under the Agreement and/or IO shall be deemed effective unless delivered in writing and signed by a duly appointed representative of Advertiser.
9.4. All notifications and messages sent by the Parties to each other at the below addresses are recognized by the Parties through official correspondence under this Agreement.
9.5. Headings are inserted for convenience only and do not affect the construction of this Agreement.
9.6. All or any of rights and obligations of Advertiser under the Agreement and IOs may be assigned by a notice to the The Media Company . The The Media Company must not assign or transfer the Agreement or any or all of its rights thereunder without the prior written consent of Advertiser. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the Parties hereto.
9.7. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party’s rights under the Agreement at any time to enforce strict compliance thereafter with every term and condition of the Agreement.
