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Terms and Conditions

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Advertising Agreement Terms and Conditions

WHEREAS: Parties have executed an insertion order referencing this Agreement and therefore the Terms and Conditions as stipulated hereunder shall apply between Parties for the performance of that insertion order (hereinafter “IO”) unless specifically altered by such IO. 
1. APPLICABILITY
1.1. These terms and conditions are applicable to all requests, orders, offers and agreements in which this Agreement is referenced. 
1.2. This Agreement shall only be deviated from by agreement in writing, subject to Company reserving the right to change these terms and conditions at any time in its sole discretion upon prior written notice of 2 (two) weeks.
1.3. Any general terms and conditions of the Advertising Network covering the relationship between Company and the Advertising Network, howsoever incorporated, shall be excluded. 
2. DEFINITIONS
“Advertisement” means all promotional material provided by Company hereunder and that may consist of landing pages, follow up pages, text links, creatives, banners, audio and/or video or any combination thereof, and that is displayed on online media inventory for the purpose of publicizing Company’s products or services hereunder, as may be further defined in an IO;
“Advertising Network” means the entity as referred to as such in the IO; 
“Affiliated Company” means any third party under the effective control of a Party to this Agreement or under common control of a Party to this Agreement. Effective control in the foregoing sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies, or actions of an entity through the exercise of ownership or voting rights; 
“Agreement” means this Advertising Agreement together with the applicable IO;
 
“Campaign” means the actions of the Advertising Network in fulfilling its obligations to Company under this Agreement;
“Channel(s)” means the media as referred to in the IO;
“End-User Database” means the database of consumer data of customers of Company’s products or services, or any part of such database, such as but not limited to personal data as described in EU Directive 95/46, exclusively owned by Company;
“Company” means the entity as referred to as such in the IO;
 
“CPA” or “Cost Per Acquisition” means the fee paid by Company to the Advertising Network for each sale (pixel fire) of Company’s service or product to a customer resulting from the Advertising Network’s performance of its obligations under this Agreement
“Deliverables” means the type(s) and amount(s) of results to be delivered (e.g. CPA) by the Advertising Network to Company, as set forth in an IO;
“Effective Date” means the date stated under such heading in the IO, in absence of which it shall be the date of the last signature of the IO;
“E-mail” means the e-mail communication sent by the Advertising Network to its Database or to parts thereof, from its own e-mail account, as part of the Campaign set up by the Advertising Network, which e-mail contains an Advertisement;
“End Date” means the date stated under such heading in the IO;
“IO” means insertion order executed between Parties referencing this Agreement;
“Party” means either the Company or the Advertising Network severally and “Parties” means both the Company and the Advertising Network jointly;
“Territory” means the country / countries or any part(s) thereof referred to as such in the IO.
3. ADVERTISEMENT LICENSE, CONTENT AND CREATION
3.1. For the purpose of this Agreement, Company hereby grants to the Advertising Network the non-exclusive, royalty-free right and license to use and reproduce, copy, distribute and display, in the Territory, via the Channel, the Advertisement and related materials and metadata submitted by Company to the Advertising Network.
3.2. In no event shall the Advertising Network modify or alter the content, text or appearance (including but not limited to contextual appearance) of any Advertisement without Company’s prior written consent.
3.3.1. At all times, and prior to being published by the Advertising Network, Company’s written approval shall be required for any web- or wap page or advertising material created or designed by, or used via, the Advertising Network (including but not limited to any jump-pages, pre-landing pages, follow up pages or other material which could affect the appearance of the Advertisement (including but not limited to contextual appearance).
3.3.2. The Advertising Network shall be solely responsible and fully liable for the content of the Campaign and for compliance of the Campaign with all applicable laws and regulations. The Advertising Network hereby holds harmless Company from any and all damages, actions, proceedings and claims (including but not limited to third party claims) in this respect.
4. COMPLIANCE / DATA PROTECTION
4.1. Subject to the Advertising Network performing its obligations in accordance with the terms hereof, Company shall be responsible for the content of the Advertisement provided to the Advertising Network and for compliance of such Advertisement with all applicable laws and regulations (including but not limited to the applicable privacy and marketing laws and Codes of Practice that apply to marketing of the product or service offered by Company).
4.2. The Advertising Network hereby warrants that all Campaigns (including, for the avoidance of doubt, those of any of its publishers) hereunder will fully comply with any applicable law or updates thereof, relating to marketing activities, email campaigns and the other activities by or on behalf of the Advertising Network. This includes but is not limited to any local codes of practice for marketing of the products or services offered by Company to the extent these apply to marketing by the Advertising Network, the Unfair Competition Act, the Data Protection Directive (Directive 95/46/EC) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 established by the United States of America (“the CAN-SPAM Act”)) and any updates or amendments thereof. To the convenience of the Advertising Network, Company may provide a non-exhaustive summary of local restrictions that may apply when advertising the Company’s services, however, Company’s failure to provide such summary shall not under any circumstances, release the Advertising Network from the obligation to fully comply with any applicable laws and regulations.
4.3. The Advertising Network shall not place the Advertisements: i) on sites primarily or mostly oriented toward persons under 16; ii) on sites or in a manner that violate any laws regarding unfair competition, antidiscrimination or false advertising; iii) on sites that libel, defame, mislead, cause injury to, invade the privacy of or otherwise infringe or violate the rights of any person or third party; iv) on sites that promote sexually explicit materials or contain violence; v) on sites that contain viruses, trojan horses, worms, time bombs or other similar harmful or deleterious programming routines; vi) on any other place or in any other manner that is inconsistent with any terms set out herein or with any provision of law.
4.4. Company specifically prohibits (not limitative) (i) any change to or deletion of material, or parts thereof, provided by Company hereunder, (ii) using the Campaign to collect or to copy material or data pertaining to Company and (iii) usage of fields where data needs to be entered (other than those fields as provided in the Advertisements), iii) usage of undue methods such as, but not limited to, automatically opening windows, phishing, spamming or the use of links, spiders, robots in order to generate traffic or sales, iv) to refer oneself, to click yourself , improperly urge others, or force customers to click on Advertisements to increase the commission payable hereunder.
4.5. Under no circumstances, the Advertising Network shall have the right to use or exploit in any way, any personal data of the Company’s customers which the Advertising Network may process or may have access to when fulfilling its obligations hereunder.
5. PROPRIETARY RIGHTS
As between the Parties, the Advertising Network hereby agrees that Company owns and retains all right, title and interest in its Advertisements, its Database, its services, its systems, all software and other aspects and technologies related to its services and systems, any enhancements, modifications or derivative works thereto, any materials made accessible to the Advertising Network by Company through its systems, services or otherwise, and all intellectual property and proprietary rights in and to all of the foregoing. For the avoidance of doubt, nothing in this Agreement shall, or may be construed as, a transfer or license of any rights or title in and to the Database, or any part thereof, to Advertising Network or the third party clients of Advertising Network.
6. REPORTING AND PAYMENT
6.1. Unless otherwise agreed in the IO the Company shall report the amount of Deliverables to the Advertising Network within 5 (five) days from the end of each calendar month. Such reported amounts shall be conclusive between Parties unless the Advertising Network can provide incontestable evidence of its incorrectness.
6.2. In all cases where Company believes, in its sole discretion, Fraud has occurred in any advertising by the Advertising Network (or, for the avoidance of doubt, any of its publishers), Company shall reserve the right to close its account (or parts thereof) at the Advertising Network. The Advertising Network will be informed within 48 hours of closing In addition to any other rights or remedies Company may have, Company shall be entitled at any time and with immediate effect to withhold any payments due to the Advertising Network hereunder and to recover any compensation for transactions not in compliance with this Agreement, in any event the Advertising Network (or, for the avoidance of doubt, any of its publishers) has, or allegedly has, breached any of the provisions of this Agreement.
6.3. In consideration for the Deliverables, Company shall pay the Advertising Network the fees as stipulated in IO. All stated fees are exclusive of VAT, withholding taxes and/or any other taxes that may be assessed by any jurisdiction.
6.4. Unless otherwise agreed in the IO, the Advertising Network may invoice Company on a monthly basis in arrears or, when this Agreement is terminated, at such date of rightful termination. Company shall pay invoices within 30 (thirty) days of receipt, to the bank account as stipulated therein. In case parties agree that Company shall pay for the Deliverables in advance, and such paid fees are related to the quantity of Deliverables, then Company may, as necessary and applicable, at the end of the term of this Agreement issue a corrective invoice to the Advertising Network for fees unduly paid, and the Advertising Network shall return such overpaid amount within 10 (ten) days of invoice date.
7. REPRESENTATION AND WARRANTIES
7.1. Company hereby represents and warrants to the Advertising Network that: (i) Company has the power and authority to enter into and perform its obligations according to the terms of this Agreement; (ii) Company has no restrictions that would impair its ability to perform its obligations and grant all rights contemplated by this Agreement; (iii) Company has not and will not enter into any agreement that is inconsistent with its obligations hereunder; (iv) none of the Advertisements will violate any rights of any third party including but not limited to intellectual property rights; (v) an Advertisement will not be and/or link to any content that is defamatory, fraudulent, obscene, misleading or otherwise illegal; and (vi) none of the Advertisements will contain any viruses, Trojan horses, trap doors, back doors, Easter Eggs, worms, time bombs, cancel bots or other computer programming routines that may potentially damage or interfere with the Advertising Network’s services.
7.2. The Advertising Network hereby represents and warrants to Company that the Advertising Network: (i) has the power and authority to enter into and perform its obligations according to the terms of this Agreement; (ii) has no restrictions that would impair its ability to perform its obligations contemplated by this Agreement; (iii) has not and will not enter into any agreement that is inconsistent with its obligations hereunder; (iv) none of the Campaigns will violate any rights of any third party including but not limited to intellectual property rights; (v) a Campaign will not be and/or link to any content that is defamatory, fraudulent, obscene, misleading or otherwise illegal; and (vi) none of the Campaigns will contain any viruses, Trojan horses, trap doors, back doors, Easter Eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage or interfere with the Advertising Network’s services. In addition, and as far as it relates to the Database with personal data, the Advertising Network hereby represents and warrants that all such data has been collected and processed in accordance with any applicable Privacy Acts, laws and regulations; and iii) the Advertising Network shall comply with any applicable laws and regulations, codes of practices that apply when marketing the kind of product and services advertised in the Advertisement.
7.3. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY, TO THE FULLEST EXTEND PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL LIABILITY RELATING TO THESE TERMS AND CONDITIONS. IN NO EVENT SHALL COMPANY BE LIABLE UNDER THESE TERMS AND CONDITIONS FOR ANY CONSEQUENTIAL, SPECIAL, LOST PROFITS, INDIRECT OR OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. COMPANY’S AGGREGATE LIABILITY UNDER THE TERMS AND CONDITIONS FOR ANY CLAIM IS LIMITED TO THE AMOUNTS PAID BY COMPANY FOR SALES GENERATED BY THE ADVERTISING NETWORK DURING THE PRECEDING 2 MONTHS.
8. INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1. The Advertising Network shall defend, indemnify and hold harmless Company, its Affiliated Companies and their respective officers, directors, employees and agents against any and all losses, damages, liabilities, claims, costs and expenses, including reasonable and properly incurred attorneys’ fees, arising out of or in connections with any breach of the Advertising Network’s representations, warranties or obligations set forth in this Agreement.
8.2. Company shall defend, indemnify and hold harmless the Advertising Network against any and all losses, damages, liabilities, claims, costs and expenses, including reasonable and properly incurred attorneys’ fees, arising out of or in connections with any breach of Company’s representations, warranties or obligations set forth in this Agreement.
8.3. In no event shall Company be liable for any direct, indirect, consequential, incidental or special damage, cost, loss or expense of any nature suffered by the Advertising Network in the execution of this Agreement to the maximum extent allowed by the law. Notwithstanding the foregoing, Company’s aggregate liability under the terms and conditions for any claim is limited to the amounts paid by Company for revenue generated by the Advertising Network during the preceding 2 months.
9. CONFIDENTIALITY
9.1. Each Party shall keep in confidence all material and information, including without limitation marketing plans, administration and sales figures, received from the other Party and marked as confidential or which should be understood to be confidential, and may not use such material or information for any other purposes than those set forth in this Agreement.
The confidentiality obligation shall, however, not be applied to material and information, which as shown by the receiving Party; (a) is generally available or otherwise public; or (b) the receiving Party has received from a third party without any obligation of confidentiality; or (c) was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or (d) the receiving party has independently developed without using material or information received from the other Party.
9.2. Each Party shall promptly, upon termination of this Agreement or when the Party no longer needs the material or information in question for the purpose stated in this Agreement, cease using confidential material and information received from the other Party and, unless the Parties separately agree on destruction of such material, return the material in question (including all copies thereof).
9.3. The provisions of this clause 9 shall survive the termination or cancellation of this Agreement and remain in force in perpetuity.
10. TERM & TERMINATION
10.1.This Agreement will commence at the Effective Date and continue in full force and effect until the End Date. In absence of an end date the Agreement can be terminated by either party upon prior written notice of 30 (thirty) days.
10.2. Company may terminate or suspend any Campaign upon providing to the Advertising Network notice upon 24 hour notice (or in accordance with the Out period specified in the IO).
10.3. Company reserves the right, in its sole discretion, without notice and without liability, to reject, omit, exclude, remove or terminate any Advertisement for any reason at any time.
10.4. Company may terminate this Agreement (or any parts thereof) with immediate effect where the Advertising Network (or, for the avoidance of doubt, any of its publishers) is in breach (or alleged breach) of any term of this Agreement. In addition to any other rights and remedies Company may have, Company hereby specifically reserves the right to (i) withhold any accrued but unpaid commissions attributable to sales generated during the period the Advertising Network has been in breach with any of the terms and conditions covered in the Terms and Conditions and/or (ii) to require the Advertising Network to refund all commissions or amounts paid to the Advertising Network attributable to sales generated during the period the Advertising Network has been in breach with any of the terms and conditions covered herein.
10.5. Upon termination, for whatever reason, the Advertising Network shall (i) immediately cease using Company’s name, logos, trademarks, service marks, trade dress and proprietary technology and (ii) immediately stop the Affiliate Program and (iii) remove all Advertisements supplied by Advertiser within the Affiliate Program.
11. MISCELLANEOUS
11.1. Each Party shall carry out its commitments under this Agreement in a manner that reflects favorably upon the good name and goodwill of the other Party. The Parties agree that the commitments under this Agreement are not exclusive and that either Party may enter into similar agreements with third parties, including either Party’s competitors.
11.2. Nothing in this Agreement shall create a relationship between the Parties of agency, partnership, or joint venture.
11.3. Neither Party shall be held responsible or liable for any losses, direct or indirect damages, costs and/or expense arising out of any delay or failure in performance of any part of this Agreement due to any act of God, act of the public enemy or due to war, riot, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack or shortage of electrical power, failure of performance by any third party hosting service or equipment provided or maintained by others, including general performance of the Internet itself, or any other cause beyond the reasonable control of the Party delayed.
11.4. This Agreement constitutes the entire agreement between the Parties, and merges all prior and contemporaneous communications with respect to the agreement between the Parties.
11.5. If any provision of this Agreement proves to be or becomes invalid or unenforceable under any of the applicable laws, then such provision shall be deemed modified to the extent necessary to render such provision valid and enforceable; if the provision may not be so altered, it shall be severed and the remainder of Agreement shall remain in full force and effect. No waiver of any breach of provision of this Agreement shall constitute a waiver of any other breach or any provision hereof, and no waiver shall be effective unless made in writing signed by an authorized representative of the waiving party.
11.6. Nothing in this Agreement confers or purports to confer on a third party any benefit or any right to enforce a term of this Agreement.
11.7. No rights or obligations arising under this Agreement may be assigned, transferred, subcontracted, or otherwise disposed of without the prior written consent of the Parties. Any attempt to do so is void. However, this Agreement may be transferred, assigned and/or delegated by either Party without prior written consent (i) to a person or entity who acquires or has acquired all or substantially all of this Party’s assets, stock or business by sale, merger or otherwise and (ii) to an Affiliated Company of this Party.
11.8. Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party's prior written consent. The Advertising Network shall be solely responsible for determining the method, details and means of performing the Campaign.
11.9. All notices, authorizations and requests in connection with this Agreement shall be deemed given on the business day after they are (i) deposited in the mail, postage prepaid, certified or registered, return receipt as requested; or (ii) sent by air express courier charges prepaid to the address as set forth in the IO. Alternatively, regarding the scope of the Campaign, approval of advertising material, notices shall also be deemed given when sent by e-mail with a personalized acknowledgement of receipt.
11.10. This Agreement is governed by, and construed and interpreted in accordance with, the laws of the Netherlands without reference to the conflict of laws principles. Applicability of the United Nations Convention of the International Sale of Goods is specifically excluded. Any disputes which may arise in connection with this agreement shall be adjudicated by the competent court in Amsterdam, the Netherlands.
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