Advertiser Terms & Conditions
These Terms and Conditions (“Agreement” or “Terms“) are a legally binding and enforceable agreement between dlulisa holding BV, Buitenrustpad 11H, 1097 MX Amsterdam, The Netherlands, Chamber of Commerce registration number 69548374 (“Company”) and you (“Advertiser”).
The Company corresponds to the service-providing party (“Service Provider”) and/or the Company named in the applicable Insertion Order.
1. Definitions
1.1. “Action” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, or other measurable events as defined in the applicable Insertion Order.
1.2. “Advertiser” means a party or parties that may obtain access to the Company Assets (as defined below) to market the Advertiser’s Content and provide additional services under the terms of this Agreement and in accordance with the applicable Insertion Order.
In any instance where the Advertiser is an agency entering into this Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to the agency as well as the applicable underlying client.
1.3. “Advertiser’s Content” means any related promotional materials and content provided by or on behalf of the Advertiser to be placed, displayed, and promoted, including but not limited to the Advertiser’s marks, logos, brands, and trade names, as well as any website or information (including additional advertisements) to which such content may link, if applicable.
1.4. “Advertiser’s Trademarks” means, without limitation, the Advertiser’s marks, logos, brands, and trade names.
1.5. “Advertising Network” means a network of registered third-party affiliates and publishers (“Media Partners“) operated by the Company, utilizing related technology and software.
1.6. “Claims” means claims, suits, demands, and actions brought or tendered for defense or indemnification.
1.7. “Company Assets” means software applications, services, web pages, or digital placements owned by the Company, properly licensed to the Company, or otherwise made available by the Company through the Advertising Network, Media Partners, or other third parties for the purpose of placing content.
1.8. “Confidential Information” means any non-public, proprietary, confidential, and/or trade secret information of a Party, whether furnished before or after the Effective Date (as set forth in the applicable Insertion Order), and regardless of the manner in which it is furnished, which a reasonable person or entity should recognize as proprietary, confidential, or competitively sensitive.
This includes, without limitation, business procedures, technology and related documentation, client lists, developments, business partners, or other information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), either directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment.
Confidential Information does not include information which:
- (i) was known to or in the possession of the Receiving Party at the time of disclosure without any confidentiality obligation;
- (ii) becomes publicly known and generally available after disclosure by the Disclosing Party through no fault or inaction of the Receiving Party;
- (iii) is independently developed by the Receiving Party without reliance on the Confidential Information and can be proven with written documentation;
- (iv) is required to be disclosed by applicable law, regulatory authority, or valid court order, provided that the Receiving Party provides reasonable prior written notice to the Disclosing Party to allow for a protective order, and limits disclosure to the extent required;
- (v) is approved for release by prior written authorization of the Disclosing Party; or
- (vi) can be demonstrated by the Receiving Party to have been disclosed by the Disclosing Party to a third party without any confidentiality obligations.
1.9. “Content” means data, text, information, advertisements, graphics, links to third-party sites or services, web pages, signs, images, software and code, technology, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
1.10. “Consideration” shall mean:
1.10.1. an amount which equals a fixed cost per thousand impressions (“CPM“) of the Advertiser’s Content, which are served and displayed to End Users under this Agreement; or
1.10.2. an amount which equals a fixed cost per click (“CPC“) on the Advertiser’s Content by End Users under this Agreement; or
1.10.3. an amount which equals a fixed cost per action (“CPA“) by End Users under this Agreement; or
1.10.4. an amount which equals a fixed cost per install (“CPI“) by End Users under this Agreement;
or any combination thereof, as detailed in the applicable Insertion Order or any other agreement between the Company and the Advertiser.
1.11. “End User” means a (generally human) end user who interacts with the Company Assets.
1.12. “Insertion Order” means a document (including an online registration page or order form) executed by both parties that specifies custom pricing and additional terms.
1.13. “Impressions” means the display of the Advertiser’s Content by the Company on the Company’s Assets to End Users as contemplated herein.
1.14. “Losses” means damages, losses, costs, and liabilities, including reasonable attorney and professional fees, arising from a Claim.
1.15. “Party” means either the Company or the Advertiser.
1.16. “Prohibited Activity” means any illegal activity, including without limitation:
(a) using deceptive, fraudulent, inappropriate, or false representations and/or notifications to End Users (e.g., impersonating system notifications in connection with opening, viewing, or playing a particular type of content);
(b) acting in a manner that may harm or dilute the Company’s reputation;
(c) taking any action that may exploit vulnerabilities, harm the security of an End User’s device, compromise the privacy of the End User, or materially interfere with or disrupt web navigation or browsing, including disabling, modifying, interfering, or intervening with End Users’ control over the operating system, browser settings (including bypassing consent dialogs or preventing the End User from viewing or modifying browser settings), browser functionality, or webpage display;
(d) using any materials or content that contain viruses, worms, Trojan horses, or any other computer code, files, or programs designed to interrupt, hijack, destroy, limit, or adversely affect the functionality of any computer software, mobile device, hardware, network, or telecommunications equipment;
(e) using any misleading, deceptive, or fraudulent practices with respect to any content (including providing unproven or misleading endorsements);
(f) replacing any existing advertisement or displaying, injecting, or generating advertisements on private webpages such as HTTPS or SSL-protected pages.
1.17. “Prohibited Content” means any content that is:
(a) false, deceptive, misleading, infringing upon any applicable law, impersonating others, fraudulent, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit, or related to politically sensitive or controversial issues;
(b) adult content (including pornographic material);
(c) excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, discriminatory, hate-mongering, or otherwise objectionable;
(d) defamatory, abusive, or threatening physical harm to others;
(e) any type of harmful application or component which intentionally creates or exploits any security vulnerabilities in an End User’s device, including without limitation: viruses, spyware, malware, Trojan horses, spamware, worms, or any other malicious code of conduct;
(f) advocating or facilitating violence of any kind;
(g) any type of harmful applications or components which intentionally pose a security risk or create or exploit any security vulnerabilities in an End User’s device, including without limitation: viruses, spyware, malware, Trojan horses, spamware, worms, scareware, or any other malicious code of conduct;
(h) targeted at or designed to appeal to persons under the age of 18 and the minimum legal age permitted by applicable law to use the Advertiser’s Content and the Company Assets;
(i) infringing third-party rights, including proprietary rights, or creating false associations, endorsements, or sponsorships that are inaccurate (e.g., using the “Microsoft Certified” seal, using Windows/Chrome or any other operating system and browser logo when not relevant, mimicking an OS or browser notification, etc.);
(j) content that would constitute a criminal offense, give rise to civil liability, or otherwise be considered illegal under applicable law or regulation, or infringe upon third-party proprietary or privacy rights;
(k) not compliant with Store Policies.
1.18. “Proprietary Rights” means all intellectual property rights, including, without limitation:
(a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications;
(b) all registered and unregistered marks, and registrations and applications for registration thereof;
(c) all copyrights in copyrightable works, all other rights of authorship (including moral rights), and all applications and registrations in connection therewith;
(d) all trade secrets and confidential business and technical information (including, without limitation, research and development, programming, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production, operation, and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software, and specifications);
(e) all rights in databases and data compilations, whether or not copyrightable; and
(f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
1.19. “Store” means the Google Play Store, the App Store, or any other online distribution platform, as applicable.
1.20. “Store Policies” means the Google Play Content Policies (as available here: https://developer.android.com/google-play/policies), or the App Store Review Guidelines (as available here: https://developer.apple.com/app-store/review/guidelines/), as applicable.
2. Licenses and Services
2.1. Subject to the terms and conditions of this Agreement, the Advertiser hereby grants to the Company, during the Term, a limited, non-exclusive, non-transferable, non-sub-licensable, royalty-free, worldwide right and license to use, reproduce, and distribute the Advertiser’s Content through the Company Assets and solely in connection with this Agreement.
The Advertiser reserves all rights not expressly granted and disclaims any implied license, including implied licenses to copyrighted materials, the Advertiser’s Trademarks, and patents.
2.2. The Advertiser acknowledges and agrees that:
(i) the Advertiser’s Content may be integrated into the Company Assets in conjunction with other content;
(ii) unless otherwise stated in an applicable Insertion Order, the frequency, positioning, order, and placement of the Advertiser’s Content on the Company Assets shall be determined by the Company or its Media Partners, as applicable, at their sole discretion;
(iii) the Company shall have no obligation to review the Advertiser’s Content.
2.3. The Company may make available to the Advertiser certain features to assist with the generation, selection, and optimization of End Users’ targeting decisions (“Targeting”). The Advertiser acknowledges that it is solely responsible for the Advertiser’s Content and the Targeting.
3. Advertiser Content Codes, Conversion Tracking, and Tracking
3.1. Unless otherwise stated in writing by the Company, each piece of the Advertiser’s Content or link used by the Company in connection with a specific campaign must include, in unaltered form, the special transaction computer code or tracking link provided by the Company (“Ad Codes”).
3.2. The Advertiser will not knowingly modify, circumvent, impair, disable, or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by the Company to be used in connection with any and all Advertiser Content in order to track Actions.
3.3. The Company’s services under this Agreement do not include investigating or resolving any claim or dispute involving the Advertiser and any third party.
3.4. In case the Advertiser is working with several marketing partners, the Advertiser shall ensure that all campaigns run through the Company are subject to the “last click wins principle.”
For the purpose of this subsection, the “last click wins principle” means that an Action will be attributed to the marketing partner that generated the last click of the respective End User before the Action took place.
3.5. When “server-to-server,” cookie-less, or server-based tracking is employed in order to track Actions, the Advertiser must ensure that all Actions are accurately tracked and timely reported to the Company’s system, including the correct unique ID used by the Company in the tracking URL.
3.6. In case of technical problems or outages caused by either party’s systems that result in a non-restorable loss of data regarding Actions, one of the following methods shall be used to determine the correct number and attribution of Actions (in the following order):
3.6.1. Manual matching of MAC addresses, IDFAs, or any other unique identifiers that can be retrieved ex post by the Media Partner and the Advertiser to determine attribution and number of Actions.
3.6.2. Approximation based on historical conversion rate data (click-to-action) from the Company’s system in the following preferential order:
3.6.2.1. If available, from the same campaign; or
3.6.2.2. From the most comparable campaign for which historical data is available in the Company’s system.
For the purpose of this article, “comparable” means that the campaign should be closely comparable with regard to the defined Action, product and platform, geographical locations, advertising methods used, and Media Partners.
4. Intellectual Property
4.1. Except as expressly granted in this Agreement, the Company retains all right, title, and interest in and to the Company Assets and any versions, revisions, corrections, modifications, or derivatives thereof, including any Proprietary Rights therein (“Company Property”).
All rights in and to the Company Property that are not expressly granted herein are reserved by the Company.
Except as expressly granted in this Agreement, the Advertiser retains all right, title, and interest in and to the Advertiser’s Content, the Advertiser’s Trademarks, and related Content thereof, including any Proprietary Rights therein.
All rights in the Advertiser’s Content, including any of the Advertiser’s marks, that are not expressly granted herein are reserved by the Advertiser.
This Agreement does not convey any title or ownership rights to the other Party.
4.2. Neither Party shall assert any Proprietary Rights in or to the other Party’s Content, materials, or any element, derivation, adaptation, variation, or name thereof.
Neither Party shall have the right to remove, obscure, or alter any notices of Proprietary Rights or disclaimers appearing in or on any Content or materials provided by the other Party.
4.3. Neither Party shall:
(i) contest, or assist others in contesting, the other Party’s rights or interests in and to such Party’s property and all applications, registrations, or other legally recognized interests therein, or any element, derivation, adaptation, variation, or name thereof; or
(ii) seek to register, record, obtain, or attempt to pursue any Proprietary Rights or protections in or to the other Party’s property; or
(iii) remove, obscure, or alter any notices of Proprietary Rights or disclaimers appearing in or on the other Party’s property.
5. Restrictions on Use
The Advertiser shall not, and shall not allow any third party to:
(i) infiltrate, hack, copy, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to interfere with the proper operation of the Company Assets, or any part thereof, for any purpose, and shall not simulate or derive any source code or algorithms from the Company Assets;
(ii) represent that it possesses any proprietary interest in the Company Assets, or remove any notices or copyright information from the Company Assets;
(iii) attempt to sell, resell, sublicense, modify, transfer, lease, assign, pledge, or share its rights under this Agreement;
(iv) use any robot, spider, or other device to retrieve, index, scrape, data mine, or otherwise gather information, content, or other materials from the Company Assets;
(v) take any action, directly or indirectly, to contest the Company’s intellectual property rights or infringe them in any way;
(vi) except as specifically permitted in writing by the Company, use the name, trademarks, trade names, logos, or other proprietary rights of the Company;
(vii) use the Company Assets for any Prohibited Activity or other unlawful, harassing, intrusive, or abusive activities, or for any unauthorized purposes.
6. Term and Termination
6.1. This Agreement shall become effective as of the Effective Date specified in the Insertion Order and shall remain effective until terminated pursuant to this section and as further provided in the accompanying Insertion Order (the “Term”).
6.2. Either Party may terminate this Agreement upon two (2) days’ prior written notice to the other Party.
Following termination of the Agreement, any provisions that, in order to fulfill their purpose, must survive the termination of the Agreement shall survive.
6.3. In the event of any termination:
6.3.1. The Advertiser shall pay the Company all Consideration amounts due and owing as of the termination date within seven (7) days in accordance with the terms of this Agreement;
6.3.2. Neither Party shall be liable to the other Party or to any other person or entity for damages resulting from the termination of this Agreement;
6.3.3. Each Party shall have no obligation to maintain any information stored in its data centers related to the other Party;
6.3.4. Without derogating from the foregoing and subject to the terms of this Agreement, upon termination, all rights, licenses, and obligations of the Parties shall cease, except that all obligations accrued prior to the effective date of termination and remedies for breach of this Agreement shall survive;
6.3.5. Confidential Information of either Party that is in the possession of the other Party shall be immediately returned. If such Confidential Information is not returned, it must be maintained as confidential in accordance with Article 14.
7. Mutual Representations and Warranties
Each Party represents and warrants to the other Party that:
(i) it has the full corporate right, power, and authority to enter into this Agreement, to grant the licenses granted hereunder, and to perform the acts required of it under this Agreement;
(ii) the execution of this Agreement and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is otherwise bound;
(iii) when executed and delivered, this Agreement will constitute a legal, valid, and binding obligation of each Party, enforceable against each Party in accordance with its terms;
(iv) it is the owner of, or has all legal rights and interests in, its software, components, materials, or content; and
(v) to the best of its knowledge, its software, components, materials, or services do not infringe or misappropriate the intellectual property or other proprietary rights of any third party when used by the other Party in accordance with the terms of this Agreement.
8. Company Representations and Warranties
8.1. The Company represents and warrants that it has the skills and will use reasonable efforts to perform its obligations under this Agreement to the best of its commercial ability.
The Company has no obligation to monitor any content made available through or in connection with the Advertiser’s Content for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality, or applicability of any such content.
8.2. The Company reserves the right, at its sole discretion and without liability, to reject or remove any Advertiser Content from the Company Assets.
The Advertiser acknowledges that any campaign may be terminated or suspended, whether by the Company or its Media Partners, at any time and without notice.
The Advertiser further acknowledges that the Company acts solely as an intermediary between Advertisers and Media Partners and, as such, shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties.
9. Advertiser Representations and Warranties
9.1. The Advertiser represents and warrants that:
(i) all activities or obligations undertaken in connection with this Agreement shall be performed in compliance with all applicable laws, rules, and regulations, including, without limitation, privacy laws;
(ii) the Advertiser’s Content complies with all applicable laws, rules, and regulations, as well as industry best practices, including, without limitation, the Children’s Online Privacy Protection Act of 1998 (“COPPA“) and the CAN-SPAM Act of 2003 (“CAN-SPAM“);
(iii) it owns or has the valid legal right or license to use and distribute the Advertiser’s Content to the extent required or contemplated under this Agreement, and the Advertiser’s Content does not and will not, during the Term, infringe or violate any third party’s Proprietary Rights or other rights, including but not limited to intellectual property, privacy, and publicity rights, and will fully comply with all third-party licenses, permits, guidelines, and authorizations required;
(iv) the Advertiser is solely responsible for the Advertiser’s Content or any technology that may be reached or linked via the Advertiser’s Content;
(v) the Company shall not be responsible for any discrepancy or misleading actions with respect to the Advertiser’s Content;
(vi) the Advertiser’s Content, related services, and any other materials used in connection with or related to this Agreement will not contain, use, or promote any Prohibited Content, or engage, encourage, or utilize any Prohibited Activity, as reasonably deemed by the Company in its sole discretion.
The Advertiser further represents that it employs all necessary monitoring and review procedures to ensure compliance with the foregoing.
9.2. The Advertiser further represents and warrants that:
(i) it shall submit the Advertiser’s Content in accordance with any technical specifications provided by the Company;
(ii) any information provided to the Company (including contact and payment information) will at all times be complete, accurate, and kept up to date;
(iii) it will not promote any mobile applications that are not available for download on the applicable Store. Upon removal of such application from the Store, the Advertiser shall promptly inform the Company and immediately cease running the associated campaign;
(iv) it will not use the Company Assets to sell, resell, lease, rent, sublicense, distribute, display, or make any other use of the Service or Inventory, except as expressly permitted herein;
(v) it will not copy, crawl, index, cache, or store any information derived from the Company, except as expressly permitted, nor use robots, spiders, scraping, or other technology to access or use the Company Assets to obtain any information beyond what the Company provides under this Agreement.
9.3. The Advertiser acknowledges and agrees that the Company may collect information about End Users, including but not limited to personally identifiable and behavioral information, for the Company’s commercial or internal use.
9.4. The Advertiser warrants and represents that, when serving promotional Content to End Users in connection with the Advertiser’s Content, it shall make commercially reasonable efforts to:
(i) provide End Users with disable functionalities (e.g., close button, “X”, etc.) that close the promotional Content without triggering new promotional Content; and
(ii) provide End Users with clear instructions regarding opt-out mechanisms.
9.5. The Advertiser and the Advertiser’s Content shall not, in any manner, infringe upon End Users’ privacy rights and shall not collect, transmit, disclose, copy, or use End Users’ personal information without their explicit and informed consent.
If applicable, the Advertiser must provide End Users with a Privacy Policy that is available for display before any information is collected and that accurately reflects the actual usage of the End Users’ personal information.
Such Privacy Policy must include:
- a clear and accurate description of the information collected, used, or shared with third parties;
- the method and purpose of collection; and
- the type of recipients of any such collected information.
Sensitive information (e.g., banking details) must be collected and retained using proper encryption and security measures.
9.6. The Company has executed a Data Processing Agreement (“DPA”) in accordance with Article 28 of the EU General Data Protection Regulation 2016/679 (“GDPR”).
A copy of the DPA is available on the Company’s website.
The Advertiser warrants and represents that any personal data (as defined under the GDPR) or other personally identifiable information shared with the Company by the Advertiser shall be governed by the provisions of the DPA.
The DPA forms an integral part of this Agreement and does not derogate from any of the Advertiser’s representations and warranties set forth herein.
10. Company’s Assets
10.1. Subject to a two (2) business days’ prior written notice, the Company reserves the right, at its sole discretion, to add additional guidelines or requirements during the term of this Agreement in the event that industry guidelines are updated.
10.2. The Company shall have the right, at its sole discretion, to remove the Advertiser’s Content from the Company Assets if:
(i) the Company receives a complaint from any third party regarding the Advertiser’s Content or any related content;
(ii) the Company reasonably believes that promoting the Advertiser’s Content will have an adverse impact on the Company Assets or the Company’s reputation;
(iii) the Advertiser’s Content violates this Agreement;
(iv) the Advertiser’s Content breaches any applicable law, rule, or regulation, or industry best practices; or
(v) the Advertiser’s Content infringes upon any third party’s rights.
The Advertiser acknowledges and agrees that the Company shall not be liable for any damages or costs resulting from or related to the removal of the Advertiser’s Content, whether to the Advertiser or any third party.
10.3. The Company represents and warrants that:
(a) it shall make reasonable efforts to comply with all applicable laws, rules, and regulations, including, but not limited to, those governing privacy, data collection, and the protection of intellectual property rights; and
(b) the Company Assets, including all content provided therein, do not and will not:
(i) infringe upon, misappropriate, or otherwise violate the Proprietary Rights of any third party or any applicable law; or
(ii) contain any viruses, worms, Trojan horses, or other malicious code, files, or programs designed to interrupt, hijack, or otherwise adversely affect the functionality of any computer software, mobile device, hardware, network, or telecommunications equipment.
11. Considerations
11.1. Unless otherwise specified in the applicable Insertion Order, the Company shall provide a monthly invoice based on the Consideration model agreed upon between the Parties. Payment shall be due within seven (7) business days from the date indicated on each invoice.
11.2. The Advertiser must timely pay all Considerations due to the Company as specified in the Insertion Order, in accordance with the terms set out in the applicable Insertion Order(s) executed by the Parties.
11.3. All Considerations shall be calculated as detailed in the Insertion Order.
11.4. The Advertiser shall submit to the Company any disputes relating to the measurement or calculation of any Action, in writing or by email, specifying the reason for such objection and providing reasonable proof, by the 10th day of the calendar month following the month in which the invoice was issued.
If no such dispute is submitted within the foregoing period, the Action shall be deemed accepted by the Advertiser and billed accordingly. Any undisputed portion of a charge must be paid in full.
11.5. The Advertiser shall have no right to set off, withhold, or otherwise deduct any amount owed to the Company under this Agreement against any amount owed or claimed to be owed by the Company to the Advertiser, whether disputed or not, under any theory of liability.
11.6. The Company reserves the right to charge additional fees and interest for delayed payments.
The Company will charge a surcharge of forty (40) euros per delayed invoice, plus the maximum interest rate legally permitted under German law (pursuant to § 288(1,2) BGB).
In the event of any failure by the Advertiser to make payment, the Advertiser will also be responsible for all reasonable expenses (including attorneys’ fees) incurred by the Company in collecting such amounts.
11.7. The Advertiser is solely responsible for paying all applicable taxes, duties, or charges imposed or that may be imposed by any applicable governmental agency or authority in connection with this Agreement.
11.8. All payments under this Agreement shall be made in euros unless otherwise agreed, and shall be inclusive of any applicable taxes, including value-added tax (VAT) or other national, state, or local taxes.
11.9. The Advertiser shall provide the Company with accurate and complete billing information, including a valid credit or debit card or any other payment method as detailed in the applicable Insertion Order.
If payment is made via credit or debit card, the Advertiser authorizes the Company to charge all incurred Considerations to the designated card and acknowledges that recurring (monthly or annual) payments may be charged automatically without separate authorization, unless otherwise specified in the applicable Insertion Order.
12. Disclaimer of Warranties
12.1. To the maximum extent permitted by law, and without derogating from any terms of this Agreement, the Company Assets are provided on an “as is” and “as available” basis, without warranties or conditions of any kind, whether express or implied.
This includes, without limitation, any warranties or conditions regarding title, performance, non-infringement of third-party rights, merchantability, or fitness for a particular purpose.
In addition, the Company does not represent or warrant that:
(i) the Company Assets or any part thereof will be error-free or that any errors will be corrected; or
(ii) the operation of the Company Assets or any part thereof will be uninterrupted.
12.2. Each Party further expressly disclaims that the Advertiser’s Content and/or the Company Assets will be error-free or operate without interruption, or that any errors in the Advertiser’s Content and/or the Company Assets will be corrected, or that any information contained therein will be accurate or complete — all without derogating from any of the terms of this Agreement.
12.3. Without derogating from any of the terms of this Agreement, to the extent that the Advertiser’s Content and/or the Company Assets incorporate any third-party materials or software belonging to one or more third parties, such materials or software are provided “as is” and are subject to the terms and restrictions of the applicable third party.
Each Party makes no warranty whatsoever regarding any third-party materials or software, without derogating from any of the terms of this Agreement.
13. Limitation of Liability
13.1. To the extent permitted by law, in no event shall either Party be liable to the other for any lost profits or business opportunities, loss of use, loss or inaccuracy of data, cost of procurement of substitute goods, services, software, systems, or technologies, or for any special, incidental, indirect, punitive, or consequential damages, however caused and under any theory of liability — whether arising from breach of contract, tort (including negligence, strict liability, or product liability), or otherwise — arising out of or in connection with this Agreement.
This applies even if the Party has been advised of the possibility of such damages and notwithstanding the failure of the essential purpose of any limited remedy stated herein.
13.2. Without derogating from the foregoing, in no event shall the Company’s aggregate liability for any claim arising out of or relating to this Agreement exceed the monthly average of Consideration paid under this Agreement during the three (3) months preceding the event giving rise to such claim, to the fullest extent permitted under applicable law.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages; therefore, the above limitations and exclusions may not apply.
13.3. No action arising under or relating to this Agreement, regardless of its form, may be brought by either Party more than three (3) months after the cause of action has accrued, and in any event, no later than three (3) months after the expiration or termination of this Agreement.
These limitations are fundamental elements of the basis of the bargain between the Parties and shall apply even if any limited remedy fails of its essential purpose.
13.4. The Company remains responsible for product liability and as provided under Section 44a of the German Telecommunications Act (TKG).
14. Indemnification
14.1. Except as otherwise set forth in this Agreement, each Party (“Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and its shareholders, directors, officers, employees, and agents (“Indemnified Party”) from and against all Claims and all Losses resulting from Claims brought or prosecuted by any third party against the Indemnified Party, which, in whole or in part, arise from or relate to a breach of the Indemnifying Party’s representations under this Agreement.
Such indemnification shall apply only to Claims reduced to a final, adverse, non-appealable judgment by a court of competent jurisdiction and actually borne by the Indemnified Party.
14.2. The Indemnified Party shall:
(i) promptly notify the Indemnifying Party of any Claim;
(ii) provide the Indemnifying Party, at the Indemnifying Party’s expense, with reasonable information and assistance in defending the Claim; and
(iii) give the Indemnifying Party control over the defense and settlement of the Claim, provided that any settlement shall be subject to the Indemnified Party’s prior written approval, which shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, the Indemnified Party shall not be required to allow the Indemnifying Party to assume control of the defense of a Claim where the Indemnified Party determines that:
(1) the Claim relates directly to the Company Assets (if the Advertiser is the Indemnifying Party) or to the Advertiser’s Content (if the Company is the Indemnifying Party); or
(2) the relief sought against the Indemnified Party is not monetary damages.
In such cases, the Indemnified Party shall assume control of the defense at the Indemnifying Party’s expense. The Indemnified Party may also join in the defense of any Claim at its own expense.
15. Confidentiality
During the Term of this Agreement and thereafter, each Party agrees not to disclose or use the Confidential Information of the other Party without the prior written consent of the Disclosing Party.
Each Party shall take reasonable steps—at least equivalent to those taken to protect its own Confidential Information—to prevent unauthorized disclosure of the other Party’s Confidential Information during the Term and for a period of five (5) years thereafter.
Disclosure of Confidential Information shall be limited to employees, subsidiaries, or agents who require such access to perform the Party’s obligations or exercise its rights under this Agreement and who have agreed to comply with this confidentiality provision.
These confidentiality obligations shall survive the termination or expiration of this Agreement.
16. Non-Circumvention
16.1. The Advertiser acknowledges that the Company maintains proprietary relationships with its Media Partners.
The Advertiser agrees not to circumvent the Company’s relationship with any such Media Partners, nor to solicit, purchase, contract for, or obtain services similar to those provided by the Company from any Media Partner known, or reasonably known, to have such a relationship with the Company.
This restriction applies during the term of this Agreement and for six (6) months following its termination or expiration.
Notwithstanding the foregoing, if the Advertiser can demonstrate that any such Media Partner had an existing business relationship with the Advertiser prior to the date of the first executed Insertion Order between the Parties, the Advertiser shall not be prohibited from continuing that relationship.
16.2. The Advertiser agrees that monetary damages alone would be insufficient to remedy a breach or threatened breach of this section.
Accordingly, the Company shall be entitled to liquidated damages equal to one hundred percent (100%) of the fees paid by the Advertiser to the relevant Media Partner during the twelve (12) months preceding such breach.
If the relationship lasted for a period shorter than twelve months, the amount shall be prorated to represent the equivalent of twelve months.
The Advertiser retains the right to demonstrate that no damages, or substantially lower damages, occurred.
Conversely, the Company retains the right to prove that higher damages were incurred.
17. Independent Contractors
The Parties are independent contractors, and nothing in this Agreement shall be construed to create an employer-employee relationship, agency, joint venture, partnership, or any similar legal relationship that could impose liability on one Party for the acts or omissions of the other.
Neither Party shall have any express or implied authority to enter into contracts, commitments, or obligations in the name of, or on behalf of, the other Party, nor to bind the other Party in any manner whatsoever.
18. Force Majeure
Except for payment obligations arising under this Agreement, neither Party shall be liable or deemed in breach of this Agreement for any delay or failure to perform its obligations due to causes or conditions beyond its reasonable control that cannot be overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”).
If a Force Majeure Event occurs — including, without limitation, acts of God, fires, explosions, telecommunications, Internet, or Advertising Network failures, acts of vandalism or hacking, storms, natural disasters, national emergencies, terrorism, insurrections, riots, wars, strikes, labor disputes, or any act or omission of another person or entity — the affected Party shall promptly notify the other Party and use commercially reasonable efforts to minimize the event’s impact.
19. Changes to the Agreement
The Company may, at its sole discretion, modify this Agreement from time to time.
The most current version will always be available on the Company’s website at https://upyield.io/atc.pdf.
By continuing to access or use the Company’s services after such changes become effective, the Advertiser agrees to be bound by the revised Agreement.
20. Assignment
Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party.
Any assignment made in violation of this clause shall be void, except that the Company may freely assign this Agreement within its corporate group of affiliated companies.
21. Severability
If any provision of this Agreement is found unenforceable by a court of competent jurisdiction, such provision shall be enforced to the maximum extent permissible to effectuate the Parties’ intent, and the remaining provisions shall continue in full force and effect.
22. Governing Law
This Agreement and any related matters shall be governed by and construed in accordance with the laws of The Netherlands.
The United Nations Convention on Contracts for the International Sale of Goods and German International Private Law shall not apply.
The courts of Amsterdam, The Netherlands shall have exclusive jurisdiction, to the exclusion of any other court.
However, the Company retains the right to file claims at the domicile of the Advertiser as well.
23. Entire Agreement
This Agreement, together with the applicable Insertion Order, constitutes the entire agreement between the Company and the Advertiser with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, whether written or oral, regarding such subject matter.
Without limiting the foregoing, in the event of any conflict between the terms of this Agreement and the terms of any other agreement, provision, quote, order, acknowledgment, or other communication between the Parties, the terms of this Agreement shall prevail over any conflicting terms — even if such conflicting terms appear in a written instrument signed by the Parties after the execution of this Agreement — unless that instrument explicitly references this Agreement by name and date and expressly amends its terms and conditions.
24. Miscellaneous
The captions and headings in this Agreement are included for convenience only and shall not be construed to limit or otherwise affect the interpretation of any provision of this Agreement.
25. No Waiver
No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent is made in writing and signed by the other Party.
No waiver or consent to deviate from any provision of this Agreement shall operate as a waiver of any subsequent right or provision.