These Terms and Conditions (“Agreement” or “Terms“) are a legally binding and enforceable agreement between AdAction Interactive LLC (“AdAction”) and you (“Advertiser”), whereby Advertiser may obtain access to the AdAction network of registered third party affiliates (“Affiliates”) and publishers (“Publishers”), and related technology and software (“AdAction Ad Server”), to market customized advertisements and links provided by Advertiser and/or AdAction (“Ads” as further defined below). AdAction, as well as the services provided by AdAction in connection therewith (“Services”), are subject to an Insertion Order (“IO”) incorporated herein by reference (the IO, together with this Advertiser Agreement, the “Agreement”). In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to agency as well as the applicable underlying client.
- AdAction Services
Advertiser agrees to accept and pay for, and AdAction agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, AdAction shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby AdAction will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, AdAction Ads (as defined below) through AdAction either:
- On Publisher websites via the AdAction Ad Server for impressions-based Ad Campaigns (“CPM”); or
- By Affiliates via e-mail-based marketing, search engine marketing, website-based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay AdAction commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, “Actions”). The applicable Actions, the fees due to AdAction for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in the subject IO. AdAction shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.
Upon the execution of the Agreement, Advertiser must register on the AdAction website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify AdAction of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that AdAction will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
- Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that AdAction shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that AdAction prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “AdAction Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that AdAction is the sole owner of any and all intellectual property rights associated with the AdAction Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the AdAction Ads. Under no circumstances shall AdAction be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s).
- AdAction reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by AdAction. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where AdAction deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website or app linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon AdAction or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and AdAction shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM or CPA-based Ad Campaign, or an Ad associated with such a CPM or CPA-based Ad Campaign, effective within approximately forty-eight (48) business hours of AdAction’s receipt of Advertiser’s cancellation notice in writing.
- Advertiser guarantees that all advertisement material, links, descriptions, landing pages or related content associated to the Ads provided to AdAction and shown to users during fulfilment of AdAction Services will only ever contain Ad Campaigns agreed upon in the above IO. Advertiser is forbidden from changing the landing page, content, available offer or any other significant part of the Ad Campaign listed on this IO. If Advertiser is found to be engaging in such practices, or making material changes to Ad Campaigns without sufficient prior written notice to AdAction, AdAction can, in its sole discretion, find Advertiser to be in material breach of this IO and Terms and Conditions and seek reasonable damages.
- Advertiser further guarantees that all advertisements, websites, ad campaigns, links, landing pages and/or related material or content comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following (“Ad Guidelines”):
a. Pornographic material, including any material appealing to the prurient interests
b. Racial, ethnic, political, hate-mongering or otherwise objectionable content;
c. Investment, money-making opportunities or advice not permitted under law;
d. Gratuitous violence or profanity;
e. Material that defames, misrepresents, abuses, or threatens physical harm to others;
f. Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc;
g. Software pirating
h. Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;
i. Infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
j. Any illegal activity whatsoever; and
k. Links to any affiliate networks
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by AdAction and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that AdAction and/or its Affiliates and Publishers may determine, in their respective sole discretion.
- Ad Codes
Unless otherwise stated in writing by AdAction, each Ad used by AdAction in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by AdAction (“Ad Codes”). 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 AdAction to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay AdAction a reasonable market rate determined by AdAction on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by AdAction in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, AdAction’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
- E-mail Marketing
- The following terms apply to all Ad Campaigns transmitted via e-mail by AdAction’s Affiliates on behalf of Advertiser. Any and all e-mail-based Ads shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 (“CAN-SPAM”) and any and all Federal Trade Commission implementing regulations;
- must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and
- must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). AdAction may make available, at an AdAction-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by AdAction’s Affiliates for Advertiser under applicable IO(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by AdAction, or send its suppressed e-mail addresses to AdAction via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then AdAction may conclude that no such addresses exist. The suppression list and login provided by AdAction are deemed to be Confidential Information of AdAction, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.
- The fees for Actions shall be set forth in the applicable IO(s). Subject to Section 8 below the payment of the fees shall be unconditioned and shall be paid regardless whether the Advertiser actually collected the funds from his applicable advertisers or not (if applicable). Conditioned that the Advertiser shall enable AdAction 24/7 access to Advertiser’s campaign tracking system, the fees shall be calculated according to the Advertiser’s record of Valid Actions (as defined in Section 8).
- AdAction will invoice Advertiser monthly. Unless otherwise set forth in the applicable IO, payment will be due to AdAction within thirty (30) days of the date of invoice. If payment is not made in a timely manner, AdAction may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one-half percent (1.5% per month) or the maximum amount permitted by law. In addition, Advertiser shall be liable to AdAction for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by AdAction and/or any of its Publishers or Affiliates.
- Prior to initiating the applicable campaign, as deemed necessary by AdAction, Advertiser may be required to pay AdAction advance payment set forth in the IO. Any fees payable to AdAction according to the IO shall be deducted from the Advance Payment. After the Advance Payment is fully exhausted, and as a condition for continuing the campaign, the Advertiser shall pay AdAction additional Advance Payment. In the event of a cancelation of an IO the Advertiser shall be acquitted for the non-used balance of the Advance Payment (if any) within 30 days of such cancelation.
- Leads/CPA/Unaccepted Actions
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay AdAction for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
- it rejects within five (5) days of its receipt thereof; and
- both parties determine is not a Valid Action (as defined below). Where AdAction determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means:
- Ad campaign requirements were not satisfied by a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
- Ad campaign requirements were not fulfilled using fake or stolen credit cards
- Ad campaign requirements were not satisfied using IP and/or locations-based fraud
- in the case of CPA-based Campaign, a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
- In the case of Leads-based Campaigns, an individual person has submitted information that meets all of Advertiser’s criteria as set forth in the applicable IO.
Advertiser shall make best commercial efforts to prevent and/or substantially limit the occurrences of invalid and/or fraudulent Actions by using suitable fraud detection and customary prevention technology. In addition, and as a condition for nonpayment of applicable fees due for an invalid Action, the Advertiser shall provide AdAction with: (i) a written notification within five (5) days of the discovery of an invalid Action, any fraud claim submitted after the said period will not allow the Advertiser to deny the fees for such invalid Actions; and (ii) a written monthly report that shall include summary of the invalid Actions that occurred in the preceding month. Without derogating from the above, AdAction will not be required to accept any invalid Action claims presented to it unless it receives all the required evidence to satisfactorily determine that such actions were invalid Actions.
For certain incentivized traffic sources, AdAction receives end-user requests for incentives that are not delivered as expected upon completion of a conversion or required action. Where AdAction finds the end-user has completed the requirements of the offer or campaign and a Valid Action occurred, AdAction reserves the right to invoice the Advertiser for these Valid Actions. AdAction will provide reporting of these Valid Actions to Advertiser monthly and both parties will work in good faith to validate such Actions. Valid Actions will be added to Advertiser’s monthly invoice.
The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of AdAction, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to AdAction therefor in accordance with payment terms set forth herein and in the applicable IO), AdAction shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
- will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
- will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by AdAction;
- will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
- will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
- will notify AdAction as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to AdAction in the investigation and prosecution of any such unauthorized use or disclosure.
Advertiser shall provide AdAction, at its request, with periodic reports detailing information regarding Valid Actions, inter alia number of invalid Actions, rates of cancellations, fraudulent events and users, chargebacks, refunds on such Actions and any related information.
Advertiser agrees to provide AdAction with detailed reporting of Actions Advertiser believes are not Valid Actions no less than every seven (7) days. Advertiser agrees that failure to provide such regular, on time reporting of Actions Advertiser believes are not Valid Actions and therefore, non-billable, will disallow the denial of payment for such Actions to AdAction.
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon seven (7) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:
- Advertiser will pay AdAction all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 above;
- any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
- any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
- Warranty/Limitation of Liability
THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY ADACTION UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, ADACTION MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADACTION DOES NOT WARRANT OR GUARANTEE ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. WITHOUT DEROGATING FROM THE GENERALITY OF ANY PROVISIONS CONTAINED HEREIN, ADVERTISER ACKNOWLEDGES THAT ALTHOUGH ADACTION ENDEAVOUR TO PLACE THE ADS IN WEBSITES THAT ARE SUITABLE FOR THE GOALS OF THE APPLICABLE CAMPAIGN AND THE TARGET USERS, ADACTION DOESN’T WARRANT THAT: (i) THE CAMPAIGN SHALL BE SUCCESSFUL OR; (ii) THAT THE WEBSITE AND ITS USERS SHALL RISE TO THE EXPECTATIONS OF THE ADVERTISER OR; (iii) THAT IS EXAMINED THE CONTENT OF THE WEBSITE AND/OR THE SUITABILITY THEREOF, OR HAS THE ABILITY TO MONITOR AND/OR CONTROL SUCH CONTENT, INTER ALIA IN TERMS OF LEGITIMACY AND/OR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (iv) THAT THE SERVICE AND ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ADACTION HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND ADACTION DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. ADACTION HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND ADACTION DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. ADACTION MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL ADACTION BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF ADACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADACTION WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ADACTION’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ADACTION’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO ADACTION BY ADVERTISER DURING THE PRIOR THREE (3) MONTH PERIOD PURSUANT TO THE AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADVERTISER ACKNOWLEDGES AND AGREES THAT THE ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL THE ADACTION BE LIABLE FOR, THE ACTIONS OR OMISSIONS OF ANY ADVERTISER, FOR ANY CONTENT CONTAINED IN ANY ADVERTISEMENTS OR LINKED WEBSITES, APPS OR OTHER ONLINE PROPERTIES, OR FOR ANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH ANY ADVERTISER’S ADVERTISEMENT, WEBSITE, APP OR ONLINE PROPERTY. ADVERTISER FURTHER ACKNOWLEDGES AND AGREES THAT ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL THE ADACTION BE LIABLE FOR, ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES, OR FOR A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES, FOR ANY CONTENT CONTAINED ON A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES, OR FOR ANY PRODUCT(S) OR SERVICE(S) OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES.
- Representation and Warranties
Advertiser represents and warrants that:
- it has the power and authority to enter into and perform its obligations under the Agreement;
- at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website or app linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the Children’s Online Privacy Protection Act (COPPA), and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Online Privacy Protection Act (CalOPPA), the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws, and applicable self-regulatory standards, including but not limited to, the Digital Advertising Alliance Self-Regulatory Principles (collectively, “Laws”);
- it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, AdAction Ads, by AdAction, its Publishers and Affiliates, as contemplated by the Agreement;
- at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website or app linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
- at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website or app linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
- Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
- Advertiser shall fulfill all commitments made in the Ads;
- if the Advertiser’s Ad links to an app that offers an option to purchase subscriptions or offers in-app services, goods, content or functionality for purchase, Advertiser shall clearly notify end-users that such payment is required in accordance with industry standard practices, and comply with all applicable “in-app” purchase rules and policies set forth by the applicable distribution platform(s) and/or app store(s), including but not limited to, the Google Play Store, the Apple App Store, and other similar distribution platforms or app stores;
- Advertiser shall ensure that no Ad is targeted or directed to end-users under the age of eighteen (18). Without limiting the foregoing, or limiting Advertiser’s obligations under COPPA, Advertiser shall not share with AdAction any personal information collected from or about children under the age of 13;
- the Ads, Advertiser Products, any Advertiser website or app linked to from the Ads do not:
- contain any misrepresentations or content that is false, deceptive, misleading, unethical, libelous, or defamatory;
- contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
- promote or support gambling or sweepstakes or contests; or
- contain any “worm,” “virus” or other device that could impair or injure any person or entity;
- Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.
Each party agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees from and against any third-party loss, cost, claim, injury or damage (including reasonable attorneys’ fees) arising out of or related to a breach of such party’s representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement.
Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim and the indemnitor shall defend and/or settle the claim at its own expense and with counsel of its own selection. Indemnitee shall at all times have the right to fully participate in the defense of any claim and in any settlement which it reasonably believes would have an adverse effect on its business. The indemnitee shall make available to the indemnitor all books and records relating to the claim, and the parties to this Agreement agree to render to each other such assistance as may reasonably be requested in order to ensure a proper and adequate defense. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor. An indemnitor shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnitee without the prior written consent of the indemnitee, such consent not to be unreasonably withheld. Nothing in this Agreement shall be construed to prevent indemnitee from retaining counsel of its choice, at the expense of the indemnitee, to represent indemnitee’s interests and participate in the defense of any such claims covered under this section.
For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
- a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
- the material terms of the Agreement and/or any associated IO(s);
- with respect to AdAction, the Unaccepted Action Data and suppression lists; and
- any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
- who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
- who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
- is generally available to or known to the public through no wrongful act of the receiving party;
- was independently developed by the Receiving Party without the use of Confidential Information; or
- was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
Advertiser recognizes that AdAction has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent AdAction’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by AdAction hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with AdAction, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that AdAction shall be entitled to:
- injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;
- liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
- any and all other remedies available to AdAction at law or in equity.
- Force Majeure
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Assignment: Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
- an acquirer of all or substantially all of such party’s equity, business or assets;
- a successor in interest whether by merger, reorganization or otherwise; or
- any entity controlling or under common control with such party.
- Choice of Law/Venue: The Agreement shall be construed in accordance with and governed by the laws of the State of Colorado. Each party irrevocably waives, to the fullest lawful extent, all right to trial by jury in any proceeding relating to this agreement, the notes or the transactions they contemplate.
- Modification: The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
- Non-Waiver/Severability: No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
- Relationship of the Parties: The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that AdAction acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
AdAction Interactive LLC Data Processing Addendum
The terms used in this Exhibit shall have the meanings set forth in this Exhibit. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
- “Advertiser Personal Data” means Personal Data received from or on behalf of Advertiser that is covered by a Data Protection Law;
- “Affiliate” when used under this Exhibit means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Advertiser or AdAction respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
- “Controller,” “Processor,” “DataSubject,” “Processing,” “SupervisoryAuthority,” “Personal Data Breach,” and “Special Categories of Personal Data” shall have the same meaning as in the applicable Data Protection Law;
- “Data Protection Laws” means: (i) the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”); and (ii) the EU General Data Protection Regulation 2016/679 (“GDPR“), as well as any other applicable national rule and legislation on the protection of personal data in the European Union that is already in force or that will come into force during the term of this Addendum, including any measure, guideline and opinion issued by the data protection authorities, the Working Party under Article 29 of Directive 95/46/EC, the European Data Protection Board under Article 63 et seq. of the GDPR and any other competent authority, and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA;
- “EEA” means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en;
- “Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household;
- “Restricted Transfer” means the onward transfer of Advertiser Personal Data that is located in the EEA to AdAction in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission;
- “Standard Contractual Clauses” means the Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection pursuant to the European Commission’s decision (C(2010)593) of 5 February 2010;
- “Subprocessor” means any Processor (including any third party and any AdAction Affiliate) appointed by AdAction to Process Advertiser Personal Data on behalf of Advertiser or any Advertiser Affiliate.
- Data Processing Terms. While providing the Services to Advertiser and Advertiser Affiliates pursuant to the Agreement, AdAction and AdAction Affiliates may Process Advertiser Personal Data on behalf of Advertiser or any Advertiser Affiliate as per the terms of this Addendum. AdAction agrees to comply with the following provisions with respect to any Advertiser Personal Data submitted by or for Advertiser or any Advertiser Affiliate to the Services or otherwise collected and Processed by or for Advertiser or any Advertiser Affiliate by AdAction or any AdAction Affiliate. AdAction shall only retain, use, or disclose Advertiser Personal Data as necessary for AdAction’s performance of its obligations under the Agreement and only in accordance with Advertiser’s instructions. AdAction must not sell any Advertiser Personal Data as the term “selling” is defined in the CCPA. AdAction agrees to refrain from taking any action that would cause any transfers of Advertiser Personal Data to or from AdAction to qualify as “selling personal information” under the CCPA.
- Processing of Advertiser Personal Data. AdAction shall not Process Advertiser Personal Data other than on Advertiser’s documented instructions unless Processing is required by Data Protection Laws to which AdAction is subject, in which case AdAction shall to the extent permitted by Data Protection Laws inform Advertiser of that legal requirement before Processing Advertiser Personal Data. For the avoidance of doubt, the Agreement and any related SOW entered into by Advertiser shall constitute documented instructions for the purposes of this Addendum. Advertiser shall be responsible for: (i) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Advertiser’s use and disclosure and AdAction’s Processing of Advertiser Personal Data; and (ii) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Advertiser Personal Data to AdAction and to permit the processing of such Advertiser Personal Data by AdAction for the purposes of performing AdAction’s obligations under the Agreement or as may be required by Data Protection Laws. Advertiser shall notify AdAction of any changes in, or revocation of, the permission to use, disclose, or otherwise process Advertiser Personal Data that would impact AdAction’s ability to comply with the Agreement, or applicable Data Protection Laws.
- Confidentiality. AdAction shall take reasonable steps to ensure that individuals that process Advertiser Personal Data are subject to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality.
- Security. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, AdAction shall in relation to Advertiser Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.
- Subprocessing. AdAction may engage such Subprocessors as AdAction considers reasonably appropriate for the processing of Advertiser Personal Data in accordance with this Addendum, provided that AdAction shall notify Advertiser of the addition or replacement of such Subprocessor and Advertiser may, on reasonable grounds, object to a Subprocessor by notifying AdAction in writing within 10 days of receipt of AdAction’s notification, giving reasons for Advertiser’s objection. Upon receiving such objection, AdAction shall: (i) work with Advertiser in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and (ii) where such change cannot be made within 10 days of AdAction’s receipt of Advertiser’s notice, Advertiser may by written notice to AdAction with immediate effect terminate the portion of the Agreement or relevant SOW to the extent that it relates to the Services which require the use of the proposed Subprocessor. This termination right is Advertiser’s sole and exclusive remedy to Advertiser’s objection of any Subprocessor appointed by AdAction. AdAction shall require all Subprocessors to enter into an agreement with equivalent effect to the Processing terms contained in this Addendum. AdAction shall remain fully liable for all the acts and omissions of each Subprocessor.
- Data Subject Rights. AdAction shall promptly notify Advertiser if it receives a request from a Data Subject under any Data Protection Laws in respect to Advertiser Personal Data. In the event that any Data Subject exercises any of its rights under the Data Protection Laws in relation to Advertiser Personal Data, AdAction will shall use reasonable commercial efforts to assist Advertiser in fulfilling its obligations as Controller following written request from Advertiser, provided that AdAction may charge Advertiser on a time and materials basis in the event that AdAction considers, in its reasonable discretion, that such assistance is onerous, complex, frequent, or time consuming.
- Personal Data Breach. In the event of a Personal Data Breach, AdAction will notify Advertiser without undue delay after becoming aware of the Personal Data Breach. Such notification may be delivered to an email address provided by Advertiser or by direct communication (for example, by phone call or an in-person meeting). Advertiser is solely responsible for ensuring that the appropriate notification contact details are current and valid. AdAction will take reasonable steps to provide Advertiser with information available to AdAction that Advertiser may reasonably require to comply with its obligations as Controller to notify impacted Data Subjects or Supervisory Authorities.
- Data Protection Impact Assessment and Prior Consultation. In the event that Advertiser considers that the Processing of Advertiser Personal Data requires a privacy impact assessment to be undertaken or requires assistance with any prior consultations to any Supervisory Authority of Advertiser, following written request from Advertiser, AdAction shall use reasonable commercial efforts to provide relevant information and assistance to Advertiser to fulfil such request, provided that AdAction may charge Advertiser on a time and materials basis in the event that AdAction considers, in its reasonable discretion, that such assistance is onerous, complex, frequent, or time consuming.
- Deletion or Return of Advertiser Personal Data. Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement AdAction shall, at Advertiser’s option, delete or return all Advertiser Personal Data and all copies to Advertiser.
- Relevant Records and Audit Rights. AdAction shall make available to Advertiser on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by Advertiser or an auditor mandated by Advertiser, not being competitors of AdAction (“Mandated Auditor”) of any premises where the Processing of Advertiser Personal Data takes place in order to assess compliance with this Addendum. AdAction shall provide reasonable cooperation to Advertiser in respect of any such audit and shall at the request of Advertiser, provide Advertiser with relevant records of compliance with its obligations under this Addendum. AdAction shall promptly inform Advertiser if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations with AdAction’s other Advertisers. Advertiser agrees that: (i) audits may only occur during normal business hours, and where possible only after reasonable notice to AdAction (not less than 20 days’ advance written notice); (ii) audits will be conducted in a manner that does not have any adverse impact on AdAction’s normal business operations; (iii) Advertiser and any Mandated Auditor will comply with AdAction’s standard safety, confidentiality, and security procedures in conducting any such audits; and (iv) any records, data, or information accessed by Advertiser or any Mandated Auditor in the performance of any such audit will be deemed to be the Confidential Information of AdAction. To the extent any such audit incurs in excess of 20 hours of AdAction personnel time, AdAction may charge Advertiser on a time and materials basis for any such excess hours.
- International Data Transfer. In the event that any Advertiser transfers any Advertiser Personal Data to AdAction in a country outside the EEA, Advertiser on behalf of itself and each Advertiser Affiliate as data exporter and AdAction on behalf of itself and each AdAction Affiliate as data importer shall enter into the Standard Contractual Clauses, which terms shall take precedence over those in this Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer of Personal Data to an entity located outside the EEA, Advertiser shall cooperate with AdAction to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (i) the data exporter becoming a party to them; (ii) the data importer becoming a party to them; and (iii) commencement of the relevant Restricted Transfer.
- General Terms. Any obligation imposed on AdAction under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (i) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.