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TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) shall govern, unless otherwise specified, any Insertion Order (“IO”) entered into by and between mSALES Ltd. (“Advertiser”) and Publisher. “Publisher” means the entity publishing the advertisement and delivering the traffic. “Advertiser” means the entity buying the placement of advertisements and traffic. Advertiser and Publisher may also be referred to herein individually as a “Party” and collectively as “Parties”. These Terms set out the Parties´ respective rights and obligations with respect to any and all advertising campaigns described in the initial IO and, unless otherwise specified, with respect to any future campaigns (these Terms and the IO collectively referred to as “Agreement”). Where there is a conflict between these Terms and the IO, the provisions of the IO shall prevail. Lacunae in the IO are filled by provisions of these Terms.
2. Services and Intellectual Property Rights
Publisher shall place the advertisement and perform the user generation services described in the respective IO. “Advertisement” means the advertisement, including any copy thereof, and text ads, graphic, sound, video, programming code and/or other content that comprises the advertisement, as well as the websites to which an advertisement is linked, if applicable.
Advertiser grants to Publisher during the term of the respective IO a non-exclusive, royalty-free, worldwide right by all means and in any media, whether now known or unknown, to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Advertisement and all its constituent parts.
Advertiser grants to Publisher during the term of the respective IO the right to use, reproduce, display, transmit and distribute Advertiser´s Data, including trademarks, logos, images, trade names, service marks, and other proprietary words and symbols which Advertiser may adopt from time to time (collectively “Trademarks”) as well as the logos, names and other proprietary words and symbols of the products provided by the Advertiser in order to fulfill its obligations under this Agreement. Nothing contained herein will confer upon Publisher any right, title or interest in any of the Advertiser’s Trademarks either alone or in association with other words or names.
3. Remuneration and Payment
Advertiser shall pay Publisher for all Advertisements published by Publisher only on a Cost-Per-Action basis (“CPA”) according to the conversion payout as set forth in the payment details of the IO. “Action” means a Conversion, whereas “Conversion” means the sales event which is subject to a specific commission payout as defined in the IO.
Publisher will invoice Advertiser according to the payment terms agreed on in the IO. The invoice shall be based on the Postbacks generated by Advertiser and transmitted to Publisher. “Postback” means the real time notification of a Conversion which shall usually include the amount of the commission.
The Advertiser’s Postbacks include the Advertiser’s unique transaction ID. Such unique transaction ID as well as the transferred Conversion data and clickIDs shall be stored by the Publisher in its logs for investigation and reconciliation in case of a discrepancy between Advertiser’s and Publisher’s reporting on Conversions. In case of a discrepancy between Advertiser´s and Publisher´s reporting on Conversions, payment will be based on whichever number of Conversions is greater.
Duplicate Postbacks may occur due to technical reasons, e.g. transmission retries. Duplicate Postbacks with the same clickID shall be rejected by the Publisher and Advertiser shall not be obliged to pay for such duplicate Postbacks.
Subject to Section 3.4 above, Advertiser assumes liability towards Publisher for all other Conversions transmitted in Postbacks, irrespective of whether or not transmitted by mistake, provided, however, that the respective traffic was delivered by Publisher in accordance with the provisions in Sections 4.2. and 4.3. Advertiser´s liability arising from conversions resulting from faulty Postbacks shall be limited to USD 5,000.00 per campaign and day. Publisher shall notify Advertiser of any detected suspicious conversion rate patterns without undue delay.
4. Publisher Obligations
Publisher shall conduct the advertising campaigns as described in the IO.
If the Parties agree on specific traffic types in the IO, Publisher shall provide the traffic types as specified in the IO. Publisher shall carry out a strict segmentation of the traffic delivery with regard to the following different traffic types: (i) adult, (ii) mainstream and (iii) incentivized. It is strictly prohibited for Publisher to mix the different traffic types, e.g. sending adult traffic to a mainstream URL. Publisher shall be responsible to take appropriate precautions to avoid an improperly segmented traffic. Improperly segmented traffic will be charged back upon discovery.
Publisher shall deploy all technically and economically reasonable resources to detect fraud and non-compliant traffic-patterns and block such traffic from its traffic delivery to the Advertiser.
Publisher shall always send the IDs of its sub-Publishers and the IDs of their (sub-sub-) publishers (if available) to Advertiser in order to improve transparency and to allow for quality and compliance management by Advertiser. Advertiser reserves the right to request from Publisher at any time that certain (sub-)publishers IDs will be blocked.
5. Advertiser Obligations
Subject to the provisions set out in Section 3, Advertiser shall pay all reported Conversions which have been transmitted to Publisher, either by server-to-server Postback or by pixel Postback. Advertiser shall not be obliged to pay for:
5.1.1 Fraudulent traffic (e.g. malicious bot traffic, lead generating or application installing scripts);
5.1.2 Traffic delivered in violation of Sections 4.2 and 4.3. Advertiser may deduct the payout for such Conversions from Publisher’s invoice.
If Publisher has charged Advertiser for Conversions in breach of Sections 5.1, 3.4 and/or 3.6, Advertiser is entitled to charge back the payout for such Conversions, to offset any claim for repayment against claims of Publisher (in particular if Advertiser has been or will be commissioned by Publisher to act also as a publisher), or to claim damages.
6. Advertiser Rights
Advertiser may request proof of advertising techniques and specific placements from Publisher at any time.
Advertiser may suspend Publisher without previous notification from its platform if Publisher is being found in breach of this Agreement.
7. Term and Termination
This Agreement is effective from the date of the signing of the initial IO by Advertiser and Publisher, or any other date agreed in the IO. It shall run from the launch date until the end date as set out in the IO.
These Terms shall further apply with respect to any advertising campaigns described in any future IO, unless otherwise agreed between the Parties.
Any Party may terminate this Agreement at any time for cause upon written notice if the respective other Party is in breach of its obligations under this Agreement.
Upon expiration or termination of this Agreement for any reason:
7.4.1 any and all rights granted to the respective other Party shall immediately cease;
7.4.2 the Parties shall cease all activities authorized by this Agreement or any IO;
7.4.3 Advertiser shall promptly pay all unpaid amounts due or to become due to Publisher upon written request by the Publisher;
7.4.4 the Parties shall return to the respective other Party any material including, without limitation, any and all Confidential Information provided by and/or belonging to the other Party or destroy the same, at the Parties option, and immediately delete any data stored which is owned by the respective other Party, unless such information or data needs to be retained in order to comply with applicable laws.
The terms of this Agreement are confidential and shall not be disclosed to any third party. Except as permitted in this Section 8, each Party undertakes forever that it shall not disclose to any third party any confidential information disclosed to it by the other Party concerning the business and/or affairs of the other Party, including but not limited to information relating to a Party’s operations, technical or commercial know-how, specifications, inventions, processes or initiatives, plans, product information, pricing information, know-how, designs, trade secrets, software, documents, data and information which, when provided by one Party to the other: (i) are clearly marked as “Confidential” or described as such; (ii) are disclosed orally or visually and confirmed as “Confidential” in writing within ten (10) days following the time of disclosure; or (iii) a reasonable person would recognize as confidential at the time of disclosure; or (iv) are to be regarded as confidential because of their contents or the situation of disclosure (“Confidential Information“).
Each Party may disclose the other Party’s Confidential Information to its employees, officers, agents, consultants or sub-contractors (“Representatives“) who need to know such information for the purposes of performing the obligations under this Agreement, provided that the disclosing Party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this Section 8, and as may be required by law, court order or any governmental or regulatory authority. The disclosing Party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this Section.
Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party or are to be implied from this Agreement. In particular, no license is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either Party now or in the future, unless agreed otherwise in this Agreement.
Notwithstanding the foregoing, Confidential Information will not include information that: (i) is lawfully received from a third party provided that the third party is not bound by an obligation of confidentiality with respect to such information; (ii) the receiving Party knew prior to receiving such information from the disclosing Party through no breach of confidentiality; (iii) is disclosed with the prior written approval of the disclosing Party; (iv) was independently developed by the receiving Party without any use of the Confidential Information as evidenced by suitable written documentation; or (v) is disclosed pursuant to an order of a court or other governmental or regulatory body; provided that the receiving Party shall, to the extent permitted by law, provide the disclosing Party with prompt notice of such order to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
Publisher shall compensate Advertiser on first demand for any and all damages, losses and costs (including reasonable lawyers’ fees and court fees resulting from judicial proceedings brought by or against Publisher) which are suffered or incurred due to a violation of the obligation of confidentiality in this Section 8.
Publisher undertakes to pay for each and any violation of the obligation of confidentiality a contractual penalty to Advertiser in an amount to be determined by Advertiser in its fair judgment and to be reviewed by the court of competent jurisdiction in the event of a dispute. Sec. 348 German Commercial Code shall be excluded in this respect. The right to assert claims for damages in excess of the contractual penalty shall remain unaffected; however, such damages shall be reduced by any contractual penalty already paid.
9. Limitation of Liability
Advertiser shall only be liable for damages or compensation for wasted expenditure for whatever reason and on whatever legal basis in the event of:
9.1.1 willful misconduct or lack of a quality that Advertiser has guaranteed, in the full amount;
9.1.2 gross negligence in the amount of the typical and foreseeable damage that was intended to be prevented by the breached duty;
9.1.3 all other cases (i.e. slight negligence) only if a material contractual obligation (the performance of which is an indispensable prerequisite for the proper performance of this Agreement and on compliance with which the contract partner normally relies and can rely) is breached and if the attainment of the contractual goal is at risk, and then only in the amount of the typical and foreseeable damage.
The limitation of liability under this Section 9 shall not apply to liability for personal injury and liability under the German Product Liability Act.
Without prejudice to the foregoing, contributory negligence caused by Publisher and/or its Associated Companies, for example, the inadequate provision of cooperation or any behavior in way contrary to this Agreement shall lessen the amount of any claims for damages or compensation for wasted expenditure according to the respective amount of the contributory negligence.
Publisher shall notify Advertiser of any damage in writing without undue delay so that Advertiser, if necessary also together with Publisher, can take action early to minimize damage.
10. Force Majeure
Neither of the Parties shall be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, laws, regulations, acts or orders of any government or agency or official thereof, other catastrophes or any other similar occurrences beyond such Party’s reasonable control. However, as a strict condition precedent to any potential or asserted application or such excuse, in every case, (a) the delay or failure in performance or interruption of service must be without any fault or negligence of the Party claiming excusable delay, and (b) the Party claiming excusable delay must both (i) promptly notify the other Party of such delay in detail, attaching all reasonably available explanatory and confirming documentation not already in the other Party’s possession and (ii) immediately deploy its reasonable best efforts and full resources under the circumstances to assess, minimize, and remedy any adverse impact to the other Party. Notwithstanding the above, the following conditions shall not be considered unforeseen or covered by this Section: turn-over of employees (i.e. changed assignments or voluntary quitting by employees for any reason or in any amount); transition of software development methodologies, tool(s), or programming language(s); change in currency valuation or exchange rate; change in tax rates in any country, state, or province.
Publisher shall indemnify and fully hold harmless Advertiser and its parents, subsidiaries, Associated Companies and their successors from and against any and all damages, costs, losses, expenses (including, but not limited to, reasonable attorneys' fees) (hereinafter referred to collectively as “Losses”) brought by any third party against Advertiser due to, arising from or in connection with: (i) any breach by Publisher of its representations, warranties or obligations under this Agreement; (ii) any infringement or misappropriation of any intellectual property right relating to any and all content or advertising material or any technology provided to Publisher under this Agreement; (iii) any violation of any privacy right by Publisher; or (iv) any fraud, misrepresentation or violation of applicable laws or regulations by Publisher. Publisher will give Advertiser all necessary cooperation, information and assistance with respect to the defense or action. Advertiser will not be entitled to settle any claim without the written consent of Publisher (which consent will not be unreasonably delayed or withheld).
12. Governing Law and Jurisdiction
Unless and to the extent of mandatory applicable laws provide for otherwise, the validity, interpretation and construction of this Agreement shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany, without reference to its rules of conflict of laws. The United Nations Convention on the International Sale of Goods (CISG) shall not apply.
Place of jurisdiction for all disputes arising from this Agreement and any IO between Publisher and Advertiser is, to the extent permitted by law, Stuttgart. In addition, Advertiser shall remain entitled to commence action or initiate other court proceedings at the registered seat of Publisher.
13. Set-off and Assignment
Advertiser may offset own claims against claims of Publisher and its Associated Companies, in particular, but not limited to, if Advertiser is in breach of the Payment Terms as agreed in the IO and these Terms.
Publisher may offset own claims only if and to the extent its respective claims have been acknowledged by a finally binding court decision or have been acknowledged by Advertiser.
Advertiser may at any time by notice in writing to Publisher assign, sub-contract or otherwise transfer its rights and obligations under this Agreement to any of its Associated Companies.
Publisher may not assign, sub-contract, sublicense or otherwise transfer, in whole or in part, this Agreement or any of its rights or obligations under this Agreement, without Avertiser’s prior written consent.
14. Entire Agreement
This Agreement contains the entire understanding and agreement between the Parties with respect to its subject matter and supersedes any prior or contemporaneous oral or written understandings and agreements. An IO may be changed only by a subsequent writing signed by both Parties.
Any general terms of business or other terms and conditions of any order or other document issued by Publisher in connection with this Agreement shall not be binding on Advertiser, unless otherwise agreed in writing.
This Agreement and any IO is non-exclusive to Advertiser and shall have the right to enter into similar agreements with other third parties.
All notices to be given under this Agreement shall be given in English in writing to the address stated in the IO, or to such other address as shall be given by either Party to the other in writing. Any notice involving non-performance, termination, or renewal shall be hand-delivered or sent by recognized overnight courier or by certified mail, return receipt requested. Notices given by Publisher regarding price changes, advertisement discontinuance, and advertisement changes may in addition be sent by email or fax to the person(s) specified by Advertiser from time to time. All other notices not referred to elsewhere in this Section may be sent by (i) recognized overnight courier or (ii) by fax or email and confirmed by mail. All notices shall be deemed to have been given and received on the earlier of actual receipt or three (3) days from the date of postmark.
Save as otherwise expressly stated in this Agreement, any changes or amendments of this Agreement have to be made in writing. This shall also apply to the amendment of this Section.
Should any provision of this Agreement be or become invalid or unenforceable, the validity of the remaining provisions shall not be affected thereby. Advertiser and Publisher will replace any invalid or unenforceable provision by a valid or enforceable provision which reflects best the purpose of the invalid or unenforceable provision. The same shall apply in the event that this Agreement contains any omissions.