A.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.
B.The Customer is in the business of the online communication websites operation, wishes to place advertisements on the Internet either by the Customer itself or on behalf of Third Parties (as defined below) 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:
"Ads" means an advertisement or series of advertisements for the Customer, Third Parties and/or their products and services.
"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 each of Provider's sub-publishers, affiliates, sub-affiliates and advertising syndication partners.
"Relevant Laws and Regulations" means laws and regulations including, without limitation, state and federal laws, rules and US Federal Trade Commission implementing regulations (including, but not limited to, the CAN-SPAM Act and any international laws, rules and regulations), as well as any published rules or guidelines of the IAS networks, domains and/or e-mail service providers, with respect to the email marketing and any laws and regulations governing deceptive trade practices and/or online marketing and/or advertising of any jurisdiction/country where the Campaign is carried out by the Provider and the Affiliates. Restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Affiliates with or without notice from the Provider of such change in the law.
"Drive-by Download" means any software installation process or procedure initiated as the direct or indirect result of a page or Ad 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).
"Lead" means completion of registration of a unique male human Internet user aged 35+ located in the geography agreed by the parties on a web-site designated by the Customer after such user has clicked on an Ad Material placed by the Provider or its Affiliate, in each case in accordance with this Agreement.
"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.
"Spyware" means any application that covertly gathers user data and transmits it through the user's Internet connection other than information reasonably gathered in connection with services or information overtly provided by the application provider to such users.
"Third Party" means a person that is not a party to an IO and who appointed the Customer as its advertising agency; for purposes of clarity, the Provider, the Affiliates, the Customer and any of their representatives are not Third Parties.
"Unit" means the inventory delivered by the Provider (e.g., Leads, clicks, impressions, or other desired actions).
For purposes of this Agreement, capitalized terms used and not defined in this Section 1 shall have the respective meanings ascribed to them in other clauses of the Agreement.
In the Agreement, a reference to a statute or statutory provision includes a reference to that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and any subordinate legislation made under that statute or statutory provision.
The Section headings do not affect the interpretation of the Agreement.
2. Campaign, admaterils and affiliates
Pursuant to an IO, the Provider agrees to distribute the Ads in accordance with the specifications described in an IO ("Campaign").
The Customer may provide to the Provider the banners, buttons, text-links, URLs, subject lines and artwork for promotional e-mail, graphic files and/or similar online media (collectively, "Customer's Materials") required for the Provider to run the Campaign.
Unless specified in an IO, the Provider or any Affiliate is responsible for development of any advertising materials for the Customer ("Provider's Materials"), the form and content of the Provider's Materials have always to be expressly approved by the Customer before their placement, display or delivery.
The Provider and its Affiliates shall be prohibited from modifying the Customer's Materials or the Provider's Materials (collectively, "Ad Materials") without the Customer's approval.
The Provider will distribute the Ad Materials and market the Campaign using its technology infrastructure. The Provider and its Affiliates (if any) shall make the editorial decisions regarding the placement, positioning and frequency of the Ad Materials distribution and other aspects of the Campaign, as agreed with the Customer. The Provider shall collect, possess and always be capable of providing to the Customer, prior to the public use or dissemination of the Ad Materials, the following: (i) copies of all materially Ad Materials to be used by its Affiliates, including text, graphics, video, audio, and photographs; (ii) information on each location where the Ad Materials will appear; (iii) for hyperlinks contained within the marketing materials, information on each location to which a user will be transferred by clicking on the hyperlink; and (iv) the range of dates that the Ad Materials will be publicly used or disseminated.
The Provider shall maintain the proper identifying information of every Affiliate, namely: (i) in the case of a natural person, the Affiliate's first and last name, physical address, country, telephone number, email address, and complete bank account information as to where payments are to be made to that person; (ii) in the case of a business entity, the Affiliate's name and any and all names under which it does business, state of incorporation, registered agent, and the first and last name, physical address, country, telephone number, and email address for at least one natural person who owns, manages, or controls the Affiliate, and the complete bank account information as to where payments are to be made to the Affiliate; and (iii) if the natural person(s) listed in this Section 2.6 resides in the United States, a photocopy of that person's driver's license or other State-issued identification card or, if the natural person(s) listed in this Section 2.6 resides outside of the United States, a photocopy of a government-issued identification for such person. Provider shall, and shall require each Affiliate, to create, maintain, and retain the records and documents necessary to demonstrate each person's full compliance with each provision of this Agreement.
The Customer may, at its sole discretion, request that each and every Affiliate may be involved to the Campaign only after the express Customer's approval. If the traffic within the Campaign shall be generated by efforts of an internal team of the Provider, the Customer shall pre-approve a complete list of relevant team members IDs, who will be involved to the Campaign. The Provider shall not involve (or, as the case may be, immediately terminate involvement) to the Campaign any Affiliate mentioned in the Customer's List of Prohibited Networks and Distributors as may be communicated by the Customer at its sole discretion via email from time to time.
Unless otherwise separately agreed, the Provider acknowledges and agrees and shall procure the same with regard to the Affiliates that the Provider's 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.
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 belonging to the Customer in connection with the Campaign as contemplated by the Agreement. 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.
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 click-under and pop advertising, no push and toolbar advertising.
No rebrokering offers.
No adult traffic or adult creatives are allowed.
No brand bidding allowed.
No virus or fraud traffic allowed.
No viral traffic.
The Provider shall not, and shall ensure that each of Affiliates do not, display or deliver Ad Materials on or through Adware, Spyware, Malware or Drive-by Download applications.
The Provider acknowledges that any association of the Ad Materials, the Customer or the Third Parties with Spyware, Adware, Malware or Drive-by Download applications harms Customer's goodwill with users and might cause substantial lost revenues to the Customer.
If the email marketing is prohibited in an IO, the Provider shall ensure that no electronic mail is being sent to any Internet users for the purposes of generating Units from such Internet users (or encouraging them to generate such Units).
If the email marketing is allowed in an IO, the Section 10 "Email Compliance Terms" shall apply.
4. Payments, tracking and anti-fraud
The Customer agrees to pay the Provider for all tracked Units legitimately caused by Campaign placements.
The reporting of the Campaign will be based on the number of Units as shown by the tracking system specified in an IO.
That is fraudulent, including without limitation for any Unit 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 (collectively, "Fraudulent Units").
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 Ad Materials after Customer's approval or without any approval.
Generated as the result of any incentive, reward or similar program offered by or through the Provider in exchange for such Unit ("Incentivized Units").
Reasonably believed by the Customer to have been taken by persons under the age of 35.
Generated through Affiliates unapproved by the Customer or mentioned in the Customer's List of Prohibited Networks and Distributors.
Reasonably believed by the Customer to be located outside of the targeting geography specified in an IO.
Generated by or in connection with any advertisement, web site or application which infringes upon the intellectual property rights of any other third party.
Which the Customer reasonably deems to have occurred in connection with a breach of the terms of this Agreement.
The Customer (basing on the data from the anti-fraud systems specified in an IO, among other things) shall communicate to the Provider about any Unit 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 Unit shall be payable.
The necessity of proof that any Unit 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.
Each party represents and warrants to the other (i) that 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) that its obligations will be performed in compliance with all applicable laws, regulations, and rules, and the ethical guidelines of the Data & Marketing Association (https://thedma.org/accountability/ethics-and-compl...).
The Provider further represents, warrants and covenants to the Customer that (i) it restricts its Affiliates, systems, employees, agents or contractors from generating Fraudulent Units or Incentivized Units, has safeguards in place and shall immediately notify the Customer if it has any reason to believe that Fraudulent Units or Incentivized Units might be occurring; (ii) all sites on which the Ad 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 advertising hereunder do not violate any law or any intellectual property or other proprietary right 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) it and its Affiliates shall fully comply with the terms of this Agreement and these Terms are contractually imposed on them; 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 (including as maintained by the Provider per Section 2.6 hereof), 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.
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 alteration of any Ad Materials by the Provider, its agents or Affiliates; (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. The indemnity in this Section 6.2 shall be conditional upon the Provider duly discharging its obligation under the Agreement.
7. Limitation of liability
Nothing in the Agreement will 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; or (iv) for any other liability that may not otherwise lawfully be excluded or limited.
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 ownership, privacy and laws
Any marked confidential information and proprietary data provided by any party, including the Ad Materials description, and the pricing set forth in an IO, shall be deemed "Confidential Information" of the disclosing party. Confidential Information shall also include information provided by any party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
All personally identifiable information provided by individual web users in the course of this Agreement is the property of the Customer and is considered Confidential Information. Any use of such information must be set forth in an IO signed by both parties.
The Customer, the Provider and Affiliates will at all times comply with all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
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. The Customer shall be entitled, at any time, to assign these Terms and any IO to any third party without notice to the Provider. 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.
All IOs 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.
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.
The Agreement shall be governed by the laws of England and Wales. The Parties agree that any controversy or claim arising out of or relating to Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Dispute Resolution Procedures, as modified by the ICDR Online Protocol for Manufacturer/Supplier Disputes then in effect (please find the International Dispute Resolution Procedures and the ICDR Online Protocol for Manufacturer/Supplier Disputes at www.icdr.org).
These Terms may be modified by the Customer at its sole discretion subject to the Customer giving the Provider a written email notice at least forty-eight (48) hours prior to the modifications are in effect.
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 sent via email or received via 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.
It is the intention of the parties hereto to agree to these Terms by execution of an IO.
10. Email compliance terms
This Section 10 "Email Compliance Terms" shall be applicable together with the other terms of the Agreement if the Campaign includes any email marketing component.
The Provider represents and warrants that, at all times, it will comply and will contractually procure compliance of the Affiliates with all applicable Relevant Laws and Regulations.
The Provider acknowledges that any failure to comply with this Section 10 may, in Customer's sole discretion, result in: (i) disabling of the Unique Link, (ii) the immediate termination of this Agreement in whole or in relation to infringing Affiliates, and (iii) the forfeiture of any and all rights to any payments otherwise owed to the Provider by the Customer (or, as the case may be, the obligation of the Provider to refund respective prepaid funds).
The Provider shall not, and shall ensure that each of Affiliates do not: (i) falsify email header and transmission information (including, without limitation, source, destination and routing information); (ii) use any "subject" or "from" line that is materially false, misrepresented, forged or likely to mislead recipients, acting reasonably under the circumstances, about material facts regarding the contents or subject matter of the message; and (iii) seek or obtain unauthorized access to computers for the purpose of sending any and all commercial email.
The Customer shall provide the unique link capable of generating Leads under this Agreement (the "Unique Link") to the Provider. The Customer agrees not to provide the Unique Link to any person other than the Provider. The Customer agrees that it would not itself send any emails containing the Unique Link (to any person other than the Provider). For the avoidance of doubt, this shall not limit the right of the Customer to promote, or procure the promotion of, the relevant object of advertising using any link other than the Unique Link.
The Provider agrees to ensure that all transmitted electronic mail messages that contain the Unique Link or a link that directly or indirectly leads (or redirects) to the Unique Link or a page containing the Unique Link ("Provider's Emails") are compliant with the Relevant Laws and Regulations. In particular (without limiting the generality of the foregoing), each of the Provider's Emails shall include the following: the Customer's valid physical address or the Third Parties' valid physical address which shall be notified by the Customer (as the case may be), a fully functional "Opt-Out" mechanism (that is the Provider's Emails shall include at least: (i) a clear and conspicuous notice of the recipient's opportunity to decline to receive further commercial electronic mail messages from the Customer or the Third Parties as the case may be at the recipient's electronic mail address, (ii) a functioning mechanism, clearly and conspicuously displayed, that a recipient can use to submit a request not to receive future commercial electronic mail messages from the Customer or the Third Parties as the case may at the electronic mail address where the message was received, and that remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message), a non-misleading and accurate "Subject Line", and an accurate and non-misleading "From Line". In addition, the body of the email shall clearly and conspicuously identify that an electronic message is an advertisement or solicitation. The Provider shall immediately decline any content, text, materials or instructions provided by the Customer with respect to the Provider if distribution of such content, text, or materials or acting upon such instructions would result in a breach of the Relevant Laws and Regulations.
The Customer shall procure that a master suppression list consisting of email addresses of all recipients that have activated Customer's or Third Party's unsubscribe link or otherwise asked to be removed from Customer's or Third Party's email list is properly maintained.
If a suppression list management system is not specified in an IO, the Customer shall provide the master suppression list to the Provider at the start of the Campaign, and shall update and send such suppression list in real time or, if not possible to send in real time, at least once a week, to the Provider each time a user has requested to be unsubscribed (through the link or otherwise) in the format specified by the Provider to enable the Provider and its Affiliates to sync up their master suppression lists against such suppression list. Prior to each email distribution for the Campaign, the Provider shall run, and require its Affiliates to run, then-current suppression list against the contemplated email distribution list(s) for that Campaign.
If a suppression list management system is specified in an IO, prior to each email distribution for the Campaign, the Provider shall run, and require its Affiliates to run, the contemplated email distribution list(s) for the Campaign against then-current suppression list stored by a relevant suppression list management system provider.
The Provider represents and warrants that neither it nor its Affiliates will 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.
The Provider shall assure that the email address communicated by the Customer to the Provider (if any) is always included into the email list(s), which is (are) or will be used for promotion under the terms of this Agreement.
If the Customer suspects the Affiliates in spamming activities or other Relevant Laws and Regulations violations, it should have the right to report its concerns immediately to the Provider. The Customer agrees to give the Provider a reasonable timeframe to address the complaint and respond to the Customer with feedback, provided that such timeframe shall not exceed three (3) business days.
If it is required by the Relevant Laws and Regulations, the Provider shall obtain, and shall procure that the Affiliates obtain express/affirmative consent or any other type of consent (as may be required by the Relevant Laws and Regulations) from recipients of that particular jurisdiction/country before initiating any Campaign hereunder.
The Provider will make commercially reasonable efforts to obtain opt-in information, including opt-in source, date, IP address, from any Affiliates that the Customer suspects are spamming or otherwise violating the Relevant Laws and Regulations. The Affiliates refusing to supply such information shall be terminated.