PUBLISHER TERMS AND CONDITIONS
These Publisher Terms and Conditions (the “Agreement”) set forth theagreement between AdAction Interactive LLC, a Colorado limitedliability company with offices at 200 Union Boulevard, Suite #305,Lakewood, CO 80228 (“AdAction”), and its publishers. This Agreementreplaces and supersedes any prior terms and conditions between AdActionand its publishers. You (“Publisher”) shall be legally bound by thisAgreement by executing a hard copy of this Agreement, electronicallyaccepting this Agreement online, or by using AdAction’s services.
1. Approval of Publisher
Registration with AdAction shall not confer any right on Publisher tomarket or promote any Programs (as defined under Section 2) madeavailable by AdAction through the website located athttps://partners.adactioninteractive.com(the “Site”) on behalf of its advertiser clients (the “Advertisers”).Participation by Publisher in the AdAction publisher lead generationprogram is subject to review and approval by AdAction. All prospectivepublishers need official approval from AdAction before they can becomePublishers. Official approval requires meeting the criteria listedunder Section 1.1 below, however approval is not automatically grantedupon fulfillment of said criteria. AdAction reserves the right towithhold or refuse approval for any reason or for no reason. OncePublisher has been accepted into the Program, Publisher’s continuedright to participate is conditioned upon Publisher’s ongoing compliancewith all of the terms and conditions of this Agreement. AdAction mayimmediately suspend Publisher from participating in the Program and/orterminate this Agreement if AdAction determines, in its solediscretion, that Publisher has violated the terms and conditions ofthis Agreement. Publisher may re-qualify for program upon proof ofcompliance with terms and conditions of this Agreement, subject toapproval by AdAction. Publisher shall promptly notify AdAction in theevent of a material change in its business practices or strategy.Approval of a Publisher can be withdrawn by AdAction, at any time forany reason.
1.1. Minimum Eligibility Requirements.
In order to be eligible to become a Publisher, all websites, affiliatedwebsites, e-mail distribution lists and other online properties(collectively the “Media”) must meet the following criteria, at aminimum:
(a) All Publishers that wish to send advertisements via email mustcomply with applicable anti-spam and privacy laws, including, to theextent required by such laws, having the consent of the consumer tosend such email and records evidencing such consent including, withoutlimitation:
i. Member opt-in date
ii. Registration source
iii. First name
iv. Last name
vi. Email address
vii. Any other information collected and will supply such records toAdAction within one business days of request thereof;
(b) Unless otherwise approved in writing by AdAction, Publishers maynot offer incentives to users as means to enhance the performance ofany Program (as defined below); incentives include but are not limitedto awarding them cash, points, prizes, contest entries, etc.;
(c) Publisher websites must be fully functional at all levels; no“under construction” sites or sections;
(d) Publisher, Publisher’s Media and Publisher’s policies, shall complywith all applicable foreign, federal, state or local laws, rules,regulations and ordinances including, without limitation, the FederalTrade Commission Act and guidelines published by the U.S. Federal TradeCommission, the CAN-SPAM Act of 2003, the Children’s Online PrivacyProtection Act (“COPPA”), and any applicable and generally acceptedself-regulatory standards, including but not limited to, the DigitalAdvertising Alliance’s Self-Regulatory Principles;
(e) Spawning process pop-ups are prohibited; and
(f) Such other criteria as AdAction may from time to time determine, inits sole discretion.
1.2. Publisher Website Content.
The content of Publisher’s Media shall be subject to AdAction’ssubjective approval and must comply with all applicable laws andregulations (including all laws respecting intellectual propertyrights) and, in any event, shall not include the following:
(a) Pornographic material, including any material appealing to theprurient interests
(b) Racial, ethnic, political, hate-mongering or otherwiseobjectionable content;
(c) Investment, money-making opportunities or advice not permittedunder law;
(d) Gratuitous violence or profanity;
(e) Material that defames, misrepresents, abuses, or threatens physicalharm to others;
(f) Promotion of illegal substances or activities such as illegalonline gambling, how to build a bomb, counterfeiting money, etc.;
(g) Software Pirating;
(h) Obscenity and any spoofing, redirecting, or trafficking fromadult-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 performanceor other music-related rights, or any other right of any third party;
(j) Any illegal activity whatsoever; and
(k) Links to any affiliate networks.
2. Use of the Site
2.1. The Site allows AdAction to post offers of advertising programssponsored by AdAction or its affiliates on the system (“Program(s)”).The Programs will specify the amount and terms under which Publisherwill receive payment when the applicable Program’s requirements arefulfilled. Compensation is derived from a specified event (“Event”)identified in a Program, such as clicks, click-throughs, sales,registrations, impressions and leads. If Publisher accepts a Program,Publisher agrees to place that Program’s advertising creative(including, if email creative, the subject and from lines, theAdvertiser CAN-SPAM disclosures and any other disclosures providedtherein) (“Ad”) on Publisher’s Media. Publisher shall display the Adexactly as it appears on the Site and will not alter it in any way.Failure to adhere to this requirement may, in addition to all otherremedies available to AdAction, result in termination of Publisher.AdAction may change a Program at any time, upon reasonable advancewritten notice to Publisher. AdAction is responsible for displaying andadministering all active Programs and tracking the payments owed.
2.2. Special Rules Governing Email Campaigns.
(a) Publisher may not use an advertiser’s name (including anyabbreviation thereof) in the originating email address line or subjectline of any email transmission.
(b) No Misleading Headers or Other Masking of Email Origin. An emailmay not include falsification of header information, falseregistrations for email accounts or IP addresses used in connectionwith email ads, and retransmissions of an email ad for the purpose ofconcealing its origin. Publisher and/or their email delivery providersare prohibited from relaying or retransmitting emails from a computeror computer network that was accessed without authorization.
(c) Subject lines may not be false or misleading such that it wouldlikely mislead a reasonable recipient as to the contents or subjectmatter of the message. Publisher may only use approved Subject linesprovided by AdAction or subject lines for which Publisher hasdocumented approval from AdAction.
(d) Email Ads Must Contain Clear Identification. Messages containingadvertisements or solicitations must identify themselves as such, anddo so by “clear and conspicuous” means, for example, by stating in themessage body “This advertisement is brought to you by (Your Company)”.Further, the sender must identify itself as the initiator and sender ofthe email including company name, email and physical address.
(e) Effective Method of Opting Out of Future Mailings. Senders ofcommercial emails must give recipients an effective means of requestingnot to receive future email ads from that sender. At a minimum, thepublisher must give the recipient the ability to send a reply messageto unsubscribe, opt out via postal letter and provide a functioningunsubscribe link that must remain in operation for 30 days from thedate of the original email transmission.
(f) All unsubscribe requests must be adhered to within 10 business daysfrom their receipt. You may not sell or transfer an email address oncesomeone has opted out of receiving future communications, whether fromonly the advertiser or globally.
2.3. Special Rules Governing Social Influencer publishers or socialmedia traffic.
The following additional terms shall apply to any advertising activityon social media (“Post”) undertaken by you through or in connectionwith AdAction, including any endorsements, testimonials, or statementsyou make on behalf of Advertisers. We reserve the right to update theseterms at any time effective immediately upon posting to our website.
(a) You agree to the following:
i. Your engagement with an Advertiser through AdAction will not bepositioned as an unaffiliated critical review.
ii. You will disclose the existence and nature of your connection toany Advertisers you are promoting or working with by communicating in aclear, conspicuous and obvious way that the applicable video, Post, andrelated messaging from you about the Advertiser and/or their productand/or service, is sponsored.
iii. Your disclosures will comply with all Federal Trade Commissionguidelines found at<ahref=”https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf”>https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf.
iv. All disclosures will be prominent, obvious and cannot require usersto take unnatural action, like excessive scrolling. Disclosures will beunderstandable
v. You will not require a user to navigate to another screen or clickon a hyperlink to view the disclosure.
vi. Your disclosure will be in a format conducive to sharing, meaningthat in the event that your Post is shared by other users, thedisclosure will not be lost, and will continue to be prominent, clear,conspicuous and obvious.
vii. Under no circumstances should you conceal your connection with anAdvertiser or endorse products or services that you have not actuallyused or engage in any other misleading or deceptive practices.
AdAction reserves the right, in our sole discretion, to determine thevalidity of all disclosures. If we find any Publisher to have less thansufficient disclosures, we reserve the right to terminate suchPublisher’s access to Programs. Any Publisher in breach of these termswill also forfeit any payment for Ads in question.
(b) You warrant that your disclosures will meet, in addition to the FTCrequirements linked above and any additional state or federalregulations, these criteria:
i. For any photo or non-video Post, your disclosure will appear in thecaption or description directly adjacent to the image, above the fold(i.e. requiring no scrolling to view). In the event that the Post doesnot have a description box or caption, clear and conspicuous disclosuremust be overlaid in text. The disclosure text must be static, visibleand easy to read for a minimum of four (4) seconds, if the Post is in aformat where a user may automatically scroll or transition to anotherPost.
ii. For any video you post (“Video”), your disclosure will appear inthe description box or caption of that video, above the fold (e.g. youdo not have to click “Show More” or similar to see disclosure).Additionally, you should include either a verbal mention in the Videothat the Video is sponsored and/or include prominent on-screen text forat least four (4) seconds stating clearly that the video is sponsored.Any verbal presentation of the disclosure should be at the same speedand general phrasing as the rest of the content of the video (e.g. donot bury or quickly speed through the disclosure). Your disclosureshould be made at or near the beginning of the Video or during orimmediately after the call-to-action. For any Video longer than 10minutes, you should include a final clear and conspicuous disclosure atthe end of the video.
iii. For any Post, in any format, casual references to the Advertiseror simply saying “thanks to [the Advertiser]” are not clear enough toconvey the paid relationship. In some cases, using the phrase“Sponsored By” or other similar wording may also not be sufficientlyclear.
iv. All criteria required by the individual platform being used fordelivery of the Ads, including but not limited to, the platformpolicies linked below.
3. Compliance and Monitoring
Publisher agrees that AdAction and our service providers may monitor oraudit Publisher’s Media and activities under this Agreement, as well asthose of Publisher’s Agents. Publisher will not block or otherwiseinterfere with such monitoring, and we may use technical means toovercome any methods that Publisher may use to block or interfere withsuch monitoring. Audits may include requests for documents andinformation and visits to Publisher’s facilities and those of itsAgents. Publisher’s failure to promptly and reasonably comply withAdAction’s efforts to audit its or its Agent’s compliance with thisAgreement shall constitute a material breach of this Agreement.
3.1. All Publishers will be monitored by AdAction (or a third partyretained by AdAction for such purposes) for compliance with applicablelegal requirements, with respect to honoring unsubscribe requests. Ifthe monitoring is done by a third party, such third party will shareall such information with AdAction.
3.2. Each unsubscribe list furnished to a Publisher shall be separatelyand technologically identified so that AdAction will be able to ensurethat each Publisher is not disseminating or otherwise using theunsubscribe list other than in a manner required by applicable law.Publisher must not send further emails to names already on or newlyadded to the unsubscribe list.
3.3. Notwithstanding the foregoing, AdAction assumes no liability forany action or inaction regarding Publisher or Publisher’s Media.
AdAction grants Publisher a revocable, non-transferable,non-sublicensable, non-exclusive limited license to use the Site(including any Ads posted thereon) and any data, reports, informationor analyses arising out of such use (the “Site Data”) solely for thepurpose of marketing or promoting the Programs hereunder and subject tothese Terms and Conditions and the applicable Program Terms. If aPublisher also maintains its own network of publishers, such Publishermay not provide the Program to its publishers, without the priorwritten consent of AdAction. If a Publisher fails to adhere to theforegoing requirement, in addition to any other remedies available toAdAction, Publisher shall forfeit its rights to any amounts owed byAdAction to Publisher. Publisher acknowledges and agrees that Publisherdoes not have, nor will it claim any right, title or interest in theSite software, applications, data, methods of doing business or anyelements thereof, or any content provided on the Site (including theAds). Publisher may only access the Site via web browser, e-mail or ina manner approved by AdAction. Publisher will not attempt in any way toalter, modify, eliminate, conceal, or otherwise render inoperable orineffective the Site tags, source codes, links, pixels, modules orother data provided by or obtained from AdAction that allows AdActionto measure ad performance and provide its service. In addition,Publisher acknowledges that all non-public information, data andreports received from AdAction hereunder or as part of the serviceshereunder is proprietary to and owned by AdAction. If instructed to doso by AdAction and/or if Publisher shall be terminated by AdAction,Publisher will immediately destroy and discontinue the use of anyAdAction data, including Site Data, and any other material owned byAdAction or the Advertisers.
Publisher agrees that Publisher will not approach or attempt to engagein a contract with any of AdAction’s clients (each such client,individually a “Client” and all such clients, collectively “Clients”)directly or indirectly via a Client’s Ad agency, broker or any otherperson or entity. AdAction will promptly reply in writing to anyinquiries received from Publisher regarding the status of any person orentity as an AdAction Client so as to aid Publisher in its efforts tocomply with the non-solicitation provisions of this Agreement. BecauseAdAction will be irreparably harmed by Publisher’s conduct, and becausethe true extent of such harm will be impossible to quantify, monetarydamages will not be an adequate remedy for any such conduct. Publisheragrees that AdAction shall be entitled to injunctive relief precludingPublisher from taking or continuing any action or conduct in violationof this provision, to be issued by any court of competent jurisdictionupon a showing of any such violative conduct by Publisher.
6. Participation in our Program
AdAction shall provide Publisher with material to create a website forthe purpose of search engine optimization, or Publisher can create itsown website. In either event, no website shall be released online, andno submission, inclusion or any traffic can be sent to it, prior toAdAction’s review and approval of it. If Publisher already has its ownwebsite, Publisher’s website will be subject to AdAction’s review andapproval. Approval shall be written or by electronic submission. AllProgram related websites will contain links (“Links”) provided byAdAction directing traffic to product sales web pages served byAdAction or an AdAction Group Client. Publisher’s selection of entitiesto be included on any such website is also subject to AdAction’s reviewand approval, of which shall not be unreasonably withheld. Should anyof AdAction’s Client(s) provide content which includes imbedded bots,Data Miners, links or other creative, graphic, text or html, allcontent shall remain at all times the sole property of the AdActionClient.
Publisher agrees to use the Links in the exact form that we deliverthem to Publisher. Publisher agrees not to modify, alter, delete, oradapt the Links in any manner without AdAction’s written approval.Links must be served from the AdAction server, unless otherwisepermitted in writing by AdAction. Publisher shall not take any actionsto impede the action of or to disable any such links. Publisher agreesto, if request by AdAction, modify or alter Links or Tracking devicesin the manner requested by AdAction. Publisher further agrees that itshall in no event modify or interfere with Tracking devices unlessspecifically instructed to do so by AdAction in accordance with theprevious sentence.
As between the parties, AdAction and AdAction Clients own all rights,title, and interest in and to the Services, Programs, Links, and userdata collected and derived through the activities countenanced pursuantto this Agreement, and all modifications, enhancements, improvements,updates, upgrades, or new versions thereof or derived therefrom, andall worldwide intellectual property rights therein or relating thereto.AdAction may choose to imbed certain data mining tools within Linksfrom time to time (“Data Miners”). Any data derived by any such DataMiner may be used by AdAction to build or improve the quality of theServices, provided AdAction does not use Publisher Personal Data (asdefined in Exhibit A) to provide services to other publishers. AdActionmay, from time to time and where permitted by AdAction Clients, opt toshare data derived from Data Miners with Publisher to help Publisheroptimize the quality of leads generated from Publisher’s activities orto otherwise improve the quality, functionality and mutualprofitability of the activities of the parties under this Agreement. IfAdAction does share data derived from Data Miners with Publisher,Publisher agrees that this data will be used solely by Publisher forthe purposes for which it is provided to Publisher and will not beshared by Publisher with any other third party or entity without thewritten approval of AdAction. Should AdAction choose to provideadvertising creative content, web design services or other web contentof any type (“Web Content”) to Publisher, Publisher shall use such WebContent: (i) in exactly the form that it is delivered to the Publisherby AdAction without modification unless approved by us in writing; (ii)only in the manner expressly permitted by AdAction in writing and onlyuntil AdAction shall request that Publisher discontinue its use of suchadvertising creative, at which time Publisher shall discontinue suchuse within two (2) business days of being requested by AdAction to doso.
AdAction actively monitors traffic for fraud. If fraud is detected,Publisher’s account may be made inactive pending further investigation.Publisher accounts are flagged that, among other things:
· Have click-through or conversion rates that are much higher thanindustry averages and where solid justification for such higherclick-through or conversion rates is not evident to the reasonablesatisfaction of AdAction;
· Have ONLY click or lead generation programs generating clicks orleads with no indication by site traffic that it can sustain the clicksor leads reported;
· Have shown fraudulent leads as determined by the Advertisers;
· Have used any incentives to procure clicks or leads, without theprior written consent of AdAction;
· Have provided leads obtained other than through intended consumeraction. For instance, use of phone books, or similar such compilationsof personal data, to complete lead generation forms shall be consideredfraudulent behavior; or
· Use fake redirects, automated software, and/or other fraudulentmechanisms to generate Events from the Programs.
If Publisher fraudulently adds leads or clicks or inflates leads orclicks by fraudulent traffic generation (such as pre-population offorms or mechanisms not approved by AdAction or use of sites inco-registration campaigns that have not been approved by Advertiser),as determined solely by AdAction, Publisher will forfeit its entirecommission for all programs and its account will be terminated. IfPublisher is notified that fraudulent activities may be occurring onits Media, and Publisher fails to take prompt action to stop thefraudulent activities, then, in addition to any other remediesavailable to AdAction, Publisher shall be responsible for all costs andlegal fees arising from these fraudulent activities. In addition, inthe event that Publisher has already received payment for fraudulentactivities, AdAction reserves the right to seek credit or remedy fromfuture earnings or to demand re-imbursement from Publisher.
Publisher will be paid per the terms of each Program. AdAction shallpay any amounts due approximately 30 days after the end of each month,less any taxes required to be withheld under applicable law, providedthat AdAction may, in its discretion, withhold payments until such timeas the Advertiser has paid AdAction for any Program. In addition to anyother remedies that may be available to AdAction, in the event of anybreaches by Publisher of these Terms and Conditions, Publisher shallforfeit its rights to any amounts owed by AdAction to Publisher.AdAction reserves the right to reduce any payments owed to Publisher asa consequence of any offsets taken by Advertisers for invalid Events,technical errors, tracking discrepancies and the like. AdAction shallcompile, calculate and electronically deliver data required todetermine Publisher’s billing and compensation. Any questions regardingthe data provided by AdAction need to be submitted in writing within 10business days of receipt, otherwise the information will be deemedaccurate and accepted as such by Publisher. AdAction will not pay forany Events that occur before a Program is initiated, or after a Programterminates. Invoices submitted to AdAction and payments made toPublisher shall be based on the Events as reported by AdAction.AdAction will not be responsible to compensate Publisher for Eventsthat are not recorded due to Publisher’s error. AdAction will require aPublisher to provide a W-9, and similar such information, as acondition to payment.
9. Special Terms for Co-Registration Campaigns.
With respect to Publishers who are running co-registration campaigns togenerate leads (“Leads”) for Advertisers, the following specific termsand conditions shall apply:
9.1. Approval of Publisher’s Site(s).
No Program may go live until such time as AdAction, and if necessarythe applicable Advertiser, have approved, in writing, (a) all sites tobe used by the Publisher for each Program and (b) the transfer of leadsin the form of either a successful post for real-time transfer orapproval of the test file for batch or FTP files.
9.2. Privacy and Data Processing.
9.3. Scrubbing Leads.
Each Program shall have its own criteria for determining the validityof a lead (the “Lead Requirements”). AdAction may detect and track allInvalid Leads, which are determined on a real-time basis. AdActionshall only pay for leads deemed valid by this system. At the solediscretion of AdAction, leads may also subsequently be deemed invalidfor (i) fraudulent activities including but not limited to changingapproved lead generation forms, publishing an offer on an unapprovedsite, utilizing automated software or manpower to completeco-registration forms, incentivization of co-registration forms and/ora publisher’s inability to provide the user IP and time/date stamp foreach lead or (ii) non-compliance with co-registration programsincluding but not limited to exceeding lead caps as communicated by aAdAction Account Executive and/or going live with a co-registrationoffer prior to written approval of a creative and data transfer by anAdAction Account Executive.
9.4. Use of Leads.
Publisher hereby acknowledges that the collection of the Leads is beingdone solely for the benefit of the Advertiser. Therefore, other thanproviding the Leads to AdAction for delivery to the Advertisers,Publisher may not use, sell, transfer or assign or attempt to monetizethe Leads for its own purposes. All right, title and interest in theLeads shall vest exclusively the Advertisers.
9.5. No Alteration of Approved Co-Registration Forms.
Publisher may not, in any way, alter or modify the Co-RegistrationForms, without the prior written consent of AdAction.
The initial terms of this Agreement shall be for one year from the dateof its first execution by the last party to so execute. Upon theone-year anniversary of the execution, this Agreement shallautomatically renew for successive thirty (30) day terms, unless: (a)not less than thirty (30) days prior to the date of any such automaticrenewal, a party notifies the other in writing that it does not wish torenew this Agreement; or (b) this Agreement is otherwise earlierterminated pursuant to the provisions hereof.
AdAction reserves the right, in its sole and absolute discretion, toterminate a Program, this Agreement, Publisher’s access to the Site,and remove any advertisements, at any time for any reason, upon writtennotice to Publisher. Upon termination, Publisher shall terminate theProgram and immediately cease emailing and any traffic involved withremoved advertisement(s). AdAction also reserves the right to terminatePublisher’s access to the Site at any time without notice.
Termination notice will be provided via e-mail and will be effectiveimmediately, meaning, among other things, that Publisher mustimmediately cease all advertising activities. All moneys then due toPublisher will be paid during the next billing cycle. Therepresentations, warranties and obligations contained in paragraphs,12, 13, 14 and 15 shall remain in full force and effect aftertermination of this Agreement. In addition, all payment obligationsaccruing prior to the termination date shall survive until fullyperformed.
12. Representations and Warranties/Covenants
12.1. Mutual Representations.
Each party represents and warrants that: (a) it has the right to enterinto and fully perform the services contemplated herein, consistentwith these Terms and Conditions; (b) there is no outstanding contract,commitment or agreement to which it is a party that conflicts withthese Terms and Conditions; and (c) at all times while any Programremains in effect, it shall comply with all applicable laws andregulations. Neither party makes any guarantee, representations orwarranties, express or implied, as to the level of consumer responsethat will result from the Programs.
12.2. Publisher Representations, Warranties and Covenants.
Publisher represents, warrants, and covenants that:
(a) Publisher, Publisher’s Media, and Publisher’s policies, shallcomply with all applicable foreign, federal, state or local laws,rules, regulations and ordinances including, without limitation, theFederal Trade Commission Act and guidelines published by the U.S.Federal Trade Commission, the CAN-SPAM Act, the Children’s OnlinePrivacy Protection Act (“COPPA”), and any applicable and generallyaccepted self-regulatory standards, including but not limited to, theDigital Advertising Alliance’s Self-Regulatory Principles.
(b) Publisher: (i) will not deliver or place advertisements on Mediawhich are directed to users under 13 years of age or that collectinformation from users actually known to be under 13 years of age(“Children Sites”), unless the parties have otherwise agreed to suchdelivery in writing; and (ii) will not use or allow the use of theMedia on which advertisements may appear in connection with anyactivity that may violate COPPA, including without limitation inconnection with placing behaviorally targeted advertisements, creatingprofiles of users or visitors of Children Sites, or the collection ofpersonal information (as defined by COPPA) of users or visitors ofChildren Sites. In any event, Publisher shall not share with AdActionany personal information regarding end-users of Child Sites.
(c) Publisher’s Media does not contain or promote, nor links to anotherwebsite that contains or promotes, libelous, defamatory, abusive,violent, prejudicial, obscene, sexually explicit or illegal content,product, service or activity.
(d) Publisher owns or has the legal right to use and distribute allcontent, copyrighted material, products, and services displayed onPublisher’s Media.
(e) Publisher will not post any specific messages to newsgroups, chatrooms, bulletin boards or any other places regarding any Programsunless expressly approved in writing from AdAction.
(f) Publisher will not promote via website or link to websitescontaining any pornographic, racial, ethnic, political, softwarepirating or hacking, hate-mongering, or otherwise objectionable orillegal content, or any other content referenced in paragraph 1.2.
(g) Publisher will not use the Site in any manner other than that whichis specifically contemplated herein;
(h) Publisher will not engage in any kind of deceitful, misleading orother unfair trade practices, or fraudulent or other unlawful practicewhen marketing any Programs.
(i) Publisher will not, while an approved Publisher and for 180 daysthereafter, participate in any performance based advertisingrelationship with any Advertiser within AdAction’s network, unless apreviously existing business relationship between Advertiser andPublisher can be demonstrated to the reasonable satisfaction ofAdAction. In this connection, both parties agree and acknowledge thatif Publisher violates its obligations hereunder, AdAction will beentitled to damages in the amount of forty-five percent (45%) of thegross revenues resulting from sales conducted by Advertiser through theadvertising or marketing efforts of Publisher.
(j) Publisher shall conduct the web advertising campaign for Advertiserin accordance with the highest industry standards.
(k) Publisher shall provide within one business day after requesttherefrom, the IP Information, together with such other relatedinformation that AdAction may request. Failure to provide suchinformation may result in termination or suspension of the Publisherand/or the deactivation of all links in any Programs downloaded byPublisher.
Publisher acknowledges that breaches of any of the foregoingrepresentations and covenants may, in the sole discretion of AdAction,result in the immediate suspension or termination of this Agreement andAdAction’ relationship with Publisher, and Publisher shall forfeit allrights to any compensation theretofore owed to it by AdAction. Theforegoing rights shall be in addition to any other remedies availableto AdAction.
13. Customer Information; Non-Disclosure. Confidentiality
All information submitted to Publisher by an end-user customer pursuantto a Program is proprietary information of the Advertisers. Suchcustomer information is confidential and may not be disclosed byPublisher. Publisher agrees not to reproduce, disseminate, sell,distribute or commercially exploit any such proprietary information inany manner. Publisher shall maintain such data in a secure manner,consistent with industry standards.
All information provided to Publisher hereunder shall be kept strictlyconfidential.
14. LIMITATION OF LIABILITY; NO ADDITIONAL WARRANTIES; INDEMNIFICATION
14.1. Limitation of Liability; No Additional Warranties.
THE ADACTION WEBSITES (INCLUDING ANY REPORTING SITE) AND THE OFFERS AREPROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH INTHIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLYDISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTEROF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY ANDFITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ADACTION BE LIABLEFOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVEDAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS ORREVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THEPOSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADACTION’S LIABILITYUNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY,BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR THREE (3) MONTHSBY ADACTION TO PUBLISHER HEREUNDER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PUBLISHERACKNOWLEDGES AND AGREES THAT ADACTION MAKES NO REPRESENTATIONS,ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NOEVENT SHALL ADACTION BE LIABLE FOR, ANY ACTIONS OR INACTIONS OFPUBLISHER AND/OR AFFILIATES, OR FOR PUBLISHER’S MEDIA, FOR ANY CONTENTCONTAINED ON PUBLISHER’S MEDIA, OR FOR ANY PRODUCT OR SERVICE OFFERED,PURCHASED, ACCESSIBLE OR USABLE THROUGH PUBLISHER’S MEDIA.
PUBLISHER FURTHER ACKNOWLEDGES AND AGREES THAT ADACTION MAKES NOREPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS ORIMPLIED, AND IN NO EVENT SHALL ADACTION BE LIABLE FOR, THE ACTIONS OROMISSIONS OF ANY ADVERTISER, FOR ANY CONTENT CONTAINED IN ANYADVERTISEMENT OR LINKED WEBSITE, APP OR OTHER ONLINE PROPERTY, OR FORANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGHANY ADVERTISER’S ADVERTISEMENT, WEBSITE, APP OR ONLINE PROPERTY.
Each party agrees to indemnify, defend and hold harmless the other, itssubsidiaries, advertisers, vendors and suppliers, and each of theirrespective agents, partners, officers, directors and employees from andagainst any third-party loss, cost, claim, injury or damage (includingreasonable attorneys’ fees) arising out of or related to a breach ofsuch party’s representations or warranties made in this Agreement or abreach of the terms and conditions of this Agreement.
14.3. Indemnification Procedures.
Upon the assertion of any claim or the commencement of any suit orproceeding against an indemnitee by any third party that may give riseto liability of an indemnitor hereunder, the indemnitee shall promptlynotify the indemnitor of the existence of such claim and the indemnitorshall defend and/or settle the claim at its own expense and withcounsel of its own selection. Indemnitee shall at all times have theright to fully participate in the defense of any claim and in anysettlement which it reasonably believes would have an adverse effect onits business. The indemnitee shall make available to the indemnitor allbooks and records relating to the claim, and the parties to thisAgreement agree to render to each other such assistance as mayreasonably be requested in order to ensure a proper and adequatedefense. An indemnitee shall not make any settlement of any claimswhich might give rise to liability of an indemnitor hereunder withoutthe prior written consent of the indemnitor. An indemnitor shall notmake any settlement of any claims which give rise to or impose anyliability or obligations on the indemnitee without the prior writtenconsent of the indemnitee, such consent not to be unreasonablywithheld. Nothing in this Agreement shall be construed to preventindemnitee from retaining counsel of its choice, at the expense of theindemnitee, to represent indemnitee’s interests and participate in thedefense of any such claims covered under this section.
15. Confidential Information
Each party agrees to use the other party’s Confidential Informationsolely for the purposes contemplated by this Agreement, and to refrainfrom disclosing the other party’s Confidential Information to anythird-party, unless (a) any disclosure is necessary and permitted inconnection with the receiving party’s performance of its obligations orexercise of its rights under this Agreement or any other agreementbetween the parties; (b) any disclosure is required by applicable law;provided, that the receiving party uses reasonable efforts to give thedisclosing party reasonable advance notice thereof so as to afford thedisclosing party an opportunity to intervene and seek an order or otherappropriate relief for the protection of its Confidential Informationfrom any unauthorized use or disclosure; or (c) any disclosure is madewith the prior written consent of the disclosing party. For thepurposes of this Agreement “Confidential Information” includes, withoutlimitation, the terms of this Agreement (including pricing) andinformation regarding existing or contemplated service, products,Advertisers, processes, techniques, or know-how, or any information ordata developed pursuant to the performance of the services.Notwithstanding the foregoing, Publisher agrees that AdAction maydivulge its personal and/or otherwise Confidential Information to anAdvertiser upon request or to an enforcement agency, legal orregulatory authority, person or entity relating to investigations,claims or actions that Publisher has violated this Agreement orpursuant to any applicable law or regulation.
16.1. Governing Law.
The rights and obligations of the parties under or arising out of thisAgreement shall be governed by and construed under the laws of theState of Colorado without reference to its conflict of laws principles.
16.2. Force Majeure.
Neither party shall be deemed in default of this Agreement to theextent that performance of its obligations or attempts to cure anybreach are delayed or prevented by reason of any Internet outage, actof God, fire, natural disaster, accident, terrorism, riots, acts ofgovernment, shortage of materials or supplies, or any other causebeyond the reasonable control of such party.
The relationship of Publisher and AdAction established by thisAgreement is that of independent contractors, and neither party is anemployee, agent, partner or joint venture of the other.
Any notice, communication or statement relating to this Agreement shallbe in writing and deemed effective: (i) upon delivery when delivered inperson; (ii) upon transmission when delivered by facsimile or email; or(iii) when delivered by registered or certified mail, postage prepaid,return receipt requested or by nationally-recognized overnight courierservice to the address of the respective party as indicated herein. Inthe event of material changes to this Agreement, notice shall be deemedeffective upon posting at www.adaction.com. Notices to AdAction shallbe sent to AdAction at 200 Union Boulevard, Suite305, Lakewood, CO80228. Notices to Publisher shall be sent to Publisher at its mostrecent email address set forth in its account information onwww.adaction.com. Publisher agrees to receive electronic communicationsfrom AdAction, at the email address provided by Publisher. Publisherfurther agrees that any notice or other communication that AdActionsends it electronically will satisfy any legal communicationrequirements, including that such communications be in writing.
16.5. Successors and Assigns.
Publisher may not assign or otherwise transfer this Agreement or anyrights or obligations herein without the prior written consent ofAdAction. This Agreement shall be binding upon and inure to the benefitof the parties hereto, their successors and permitted assigns.
The failure of either party to insist upon or enforce strictperformance by the other or to exercise any right under this Agreementshall not be construed as a waiver or relinquishment to any extent ofsuch party’s right to assert or rely upon any such provision or rightin that or any other instance, and the same shall be and remain in fullforce and effect.
Changes, amendments or modifications of any provision of this Agreementshall be valid upon posting at www.adaction.com.
16.8. Entire Agreement; Severability.
This Agreement, any exhibits attached hereto, and any related IO’s setforth the entire agreement and understanding of the parties relating tothe subject matter hereof, and merges all prior discussions andwritings between them with respect to the contents of this Agreement.If any provision of this Agreement is determined by a court ofcompetent jurisdiction as part of a final non-appealable ruling,government action or binding arbitration, to be invalid, illegal, orotherwise unenforceable, such provision shall be enforced as nearly aspossible in accordance with the stated intention of the parties, whilethe remainder of this Agreement shall remain in full force and effectand bind the parties according to its terms.
16.9. Dispute Resolution.
In the event of disputes between the parties arising from or concerningin any manner the subject matter of this Agreement, the parties shallfirst attempt to resolve the dispute(s) through good faith negotiation.In the event of a dispute resulting in litigation, each party consentsto the exclusive jurisdiction of the federal and state courts inDenver, Colorado, USA and any such litigation will be brought withinsuch courts. The prevailing party in any action shall be entitled torecover its reasonable attorneys’ fees and costs incurred.
Any obligation of the parties relating to limitations on liability,confidentiality and indemnification shall survive termination orexpiration of this Agreement.
Each party acknowledges and agrees that it has had the opportunity toseek the advice of independent legal counsel and has read andunderstood all of the terms and conditions of this Agreement. ThisAgreement shall not be construed against either party by reason of itsdrafting.
Exhibit A – Data Processing Addendum
Capitalized terms used in this Data Processing Addendum (“Addendum”) shall have the meanings set forth in thisAddendum. Capitalized terms not otherwise defined herein shall have themeaning given to them in the AdAction Publisher Terms and Conditions (the “Agreement”). Except as modified below, the terms of theAgreement shall remain in full force and effect. The following obligationsshall only apply to the extent required by Data Protection Laws with regardto the relevant Publisher Personal Data, if applicable.
1.1. “Affiliate” means an entity that owns or controls, isowned or controlled by or is or under common control or ownership witheither Publisher or AdAction respectively, where control is defined as thepossession, directly or indirectly, of the power to direct or cause thedirection of the management and policies of an entity, whether throughownership of voting securities, by contract or otherwise;
1.2. “Controller” means an entity that determines thepurposes and means of the Processing of Personal Data.
1.3. “Data Protection Laws” means thedata privacy and security laws and regulations of any jurisdictionapplicable to the Processing of Publisher Personal Data, including, in eachcase to the extent applicable, European Data Protection Laws and UnitedStates Data Protection Laws.
1.4. “Data Subject” means the identified or identifiablenatural person who is the subject of Personal Data.
1.5. “European Data Protection Laws” means,in each case to the extent applicable: (a) theEU General Data Protection Regulation 2016/679 (“GDPR”);(b) the GDPR as it forms part of the law of England and Wales, Scotland andNorthern Ireland by virtue of section 3 of the European Union (Withdrawal)Act 2018 (“UK GDPR”), the Data Protection Act of 2018, andall other laws relating to data protection, the processing of personaldata, privacy, or electronic communications in force from time to time inthe United Kingdom (collectively, “UK Data Protection Laws”); (c) the Swiss Federal Act on Data Protection (“Swiss FADP”); and (d) any other applicable law, rule, orregulation related to the protection of Publisher Personal Data in theEuropean Economic Area, United Kingdom, or Switzerland that is already inforce or that will come into force during the term of this Addendum.
1.6. “Personal Data” means informationthat constitutes “personal information,” “personal data,” “personallyidentifiable information,” or similar term under Data Protection Laws.
1.7. “Process” means any operation or set of operationsperformed upon Personal Data, whether or not by automated means, such ascollection, recording, organization, structuring, storage, adaptation,alteration, retrieval, consultation, use, alignment, combination,restriction, erasure, destruction or disclosure by transmission,dissemination or otherwise making available.
1.9. “Publisher Personal Data” means Personal DataProcessed by AdAction on behalf of Publisher to perform the Services underthe Agreement.
1.10. “Security Incident” means a breach of AdAction’ssecurity that leads to the accidental or unlawful destruction, loss,alteration, unauthorized disclosure of, or access to Publisher PersonalData in AdAction’s possession, custody, or control. “Security Incident”does not include unsuccessful attempts or activities that do not compromisethe security of Publisher Personal Data, including unsuccessful log-inattempts, pings, port scans, denial of service attacks, or other networkattacks on firewalls or networked systems.
1.11. “Standard Contractual Clauses” means, as applicable, Module Two (Transfer controller to processor) orModule Three (Transfer processor to processor) of the standard contractualclauses approved by the European Commission’s implementing decision(C(2021)914) of 4 June 2021 on standard contractual clauses for thetransfer of personal data to third countries pursuant to Regulation (EU)2016/678 or the European Parliament and of the Council (available at:<ahref=”https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914&locale=en”>https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914&locale=en), as supplemented or modified by Appendix 3.
1.14. “United States Data Protection Laws” means, in eachcase to the extent applicable: (a) the California Consumer Privacy Act of2018, as amended by the California Privacy Rights Act of 2020, and itsimplementing regulations (collectively, “CCPA”); (b) theVirginia Consumer Data Protection Act (“VCPDA”); (c) theColorado Privacy Act and its implementing regulations (“CPA”), when effective; (d) the Utah Consumer Privacy Act(“UCPA”), when effective; (e) Connecticut SB6, An ActConcerning Personal Data Privacy and Online Monitoring (“CTDPA”), when effective; and (f) any other applicable lawor regulation related to the protection of Publisher Personal Data in theUnited States that is already in force or that will come into force duringthe term of this Addendum.
2. Roles of the Parties; Compliance. While providing the Services to Publisher and PublisherAffiliates pursuant to the Agreement, AdAction and AdAction Affiliates mayProcess Publisher Personal Data on behalf of Publisher or any PublisherAffiliate as per the terms of the Agreement and this Addendum. The partiesacknowledge and agree that, as between the parties, with regard to theProcessing of Publisher Personal Data under the Agreement, Publisher is aController and AdAction is a Processor.In some circumstances, the parties acknowledge that Publisher may beacting as a Processor to a third-party Controller in respect ofPublisher Personal Data, in which case AdAction will remain a Processorwith respect to the Publisher in such event.Each party will comply with the obligations applicable to it in such roleunder Data Protection Laws with respect to the Processing of PublisherPersonal Data.
3. Details of Processing. The parties acknowledge and agree that the nature andpurpose of the Processing of Publisher Personal Data, the types ofPublisher Personal Data Processed, the categories of Data Subjects, andother details regarding the Processing of Publisher Personal Data are asset forth in Appendix 1.
4. Processing of Publisher Personal Data. AdAction shall not Process Publisher Personal Data other than onPublisher’s documented instructions unless Processing is required by DataProtection Laws to which AdAction is subject, in which case AdAction shallto the extent permitted by Data Protection Laws inform Publisher of thatlegal requirement before Processing Publisher Personal Data. For theavoidance of doubt, the Agreement shall constitute documented instructionsfor the purposes of this Addendum. Publisher hereby instructs AdAction toProcess Publisher Personal Data: (a) to provide the Services to Publisher;(b) to perform its obligations and exercise its rights under the Agreementand this Addendum; and (c) as necessary to prevent or address technicalproblems with the Services. Publisher’s instructions for the Processing ofPublisher Personal Data shall comply with Data Protection Laws. Publishershall be responsible for: (i) giving adequate notice and making allappropriate disclosures to Data Subjects regarding Publisher’s use anddisclosure and AdAction’s Processing of Publisher Personal Data; and (ii)obtaining all necessary rights, and, where applicable, all appropriate andvalid consents to disclose such Publisher Personal Data to AdAction and topermit the processing of such Publisher Personal Data by AdAction for thepurposes of performing AdAction’s obligations under the Agreement or as maybe required by Data Protection Laws. Publisher shall notify AdAction of anychanges in, or revocation of, the permission to use, disclose, or otherwiseprocess Publisher Personal Data that would impact AdAction’s ability tocomply with the Agreement, this Addendum, or Data Protection Laws.
5. Processing Subject to the CCPA. As used in this Section, the terms “Sell,” “Share,”“Business Purpose,” and “Commercial Purpose” shall have the meanings givenin the CCPA and “Personal Information” shall mean any personal information(as defined in the CCPA) contained in Publisher Personal Data. AdAction will not: (a) Sell or Share any PersonalInformation; (b) retain, use, or disclose any Personal Information (i) forany purpose other than for the Business Purposes specified in theAgreement, including for any Commercial Purpose other than the BusinessPurposes specified in the Agreement, or as otherwise permitted by the CCPA,or (ii) outside of the direct business relationship between Publisher andAdAction; or (c) combine Personal Information received from, or on behalfof, Publisher with Personal Data received from or on behalf of any thirdparty, or collected from AdAction’s own interaction with Data Subjects,except to perform any Business Purpose permitted by the CCPA.AdAction hereby certifies that it understands the foregoingrestrictions under this Section and will comply with them. The partiesacknowledge that the Personal Information disclosed by Publisher toAdAction is provided to AdAction only for the limited and specifiedpurposes set forth in Appendix 1.AdAction will comply with applicable obligations under the CCPA and providethe same level of privacy protection to Personal Information as is requiredby the CCPA. Publisher has the right to take reasonable and appropriatesteps to help ensure that AdAction uses the Personal Informationtransferred in a manner consistent with Publisher’s obligations under theCCPA by exercising Publisher’s audit rights in Section 13. AdAction willnotify Publisher if it makes a determination that Publisher can no longermeet its obligations under the CCPA. If AdAction notifies Publisher ofunauthorized use of Personal Information, including under the foregoingsentence, Publisher will have the right to take reasonable and appropriatesteps to stop and remediate such unauthorized use by limiting the PersonalInformation shared with AdAction, terminating the portion of the Agreementrelevant to such unauthorized use, or such other steps mutually agreedbetween the parties in writing.
6. Confidentiality. AdAction shall take reasonable steps to ensure thatindividuals that process Publisher Personal Data are subject to obligationsof confidentiality or are under an appropriate statutory obligation ofconfidentiality.
7. Security. Taking into account the state of the art, the costs ofimplementation and the nature, scope, context, and purposes of Processingas well as the risk of varying likelihood and severity for the rights andfreedoms of natural persons, AdAction shall in relation to PublisherPersonal Data implement appropriate technical and organizational measuresto ensure a level of security appropriate to the risk, in accordance withthe security standards in Appendix 2 (the “Security Measures”). Publisher agrees that, withoutlimitation of AdAction’s foregoing obligations, Publisher is solelyresponsible for its use of the Services, including: (a) making appropriateuse of the Services to ensure a level of security appropriate to the riskin respect of the Publisher Personal Data; and (b) securing any accountauthentication credentials, systems, and devices Publisher uses to accessor connect to the Services, where applicable. Without limiting AdAction’sobligations hereunder, Publisher is responsible for reviewing theinformation made available by AdAction relating to data security and makingan independent determination as to whether the Services meet Publisher’srequirements and legal obligations under Data Protection Laws.
8. Subprocessing. AdAction may engage such Subprocessors as AdActionconsiders reasonably appropriate for the processing of Publisher PersonalData in accordance with this Addendum, provided that AdAction shall notifyPublisher of the addition or replacement of such Subprocessor and Publishermay, on reasonable grounds, object to a Subprocessor by notifying AdActionin writing within 10 days of receipt of AdAction’s notification, givingreasons for Publisher’s objection. Upon receiving such objection, AdActionshall: (i) work with Publisher in good faith to make available acommercially reasonable change in the provision of the Services whichavoids the use of that proposed Subprocessor; and (ii) where such changecannot be made within 10 days of AdAction’s receipt of Publisher’s notice,Publisher may by written notice to AdAction with immediate effect terminatethe portion of the Agreement or relevant IO to the extent that it relatesto the Services which require the use of the proposed Subprocessor. Thistermination right is Publisher’s sole and exclusive remedy to Publisher’sobjection of any Subprocessor appointed by AdAction. AdAction shall requireall Subprocessors to enter into an agreement containing data protectionobligations not less protective than those in this Addendum. AdAction shallremain fully liable for all the acts and omissions of each Subprocessor.
9. Data Subject Rights. In the event that any Data Subject exercises any of itsrights under the Data Protection Laws in relation to Publisher PersonalData, AdAction will advise the Data Subject to submit the request toPublisher and Publisher will be responsible for responding to any suchrequest. Taking into account the nature of the Processing of PublisherPersonal Data and the functionality of the Services, AdAction will shalluse reasonable commercial efforts to assist Publisher in fulfilling itsobligations as Controller following written request from Publisher,provided that AdAction may charge Publisher on a time and materials basisin the event that AdAction considers, in its reasonable discretion, thatsuch assistance is onerous, complex, frequent, or time consuming.
10. Security Incidents. AdAction will notify Publisher without undue delay afterbecoming aware of a confirmed Security Incident. Such notification may bedelivered to an email address provided by Publisher or by directcommunication (for example, by phone call or an in-person meeting).Publisher is solely responsible for ensuring that the appropriatenotification contact details are current and valid. AdAction will takereasonable steps to provide Publisher with information available toAdAction that Publisher may reasonably require to comply with itsobligations as Controller to notify impacted Data Subjects or SupervisoryAuthorities. Upon becoming aware of a confirmed Security Incident, AdActionwill: (a) notify Publisher of the Security Incident without undue delayafter becoming aware of the Security Incident; and (b) take reasonablesteps to identify the cause of such Security Incident, minimize harm, andprevent a recurrence. AdAction will take reasonable steps to providePublisher with information available to AdAction that Publisher mayreasonably require to comply with its obligations under Data ProtectionLaws. AdAction’s notification of or response to a Security Incident underthis Section will not be construed as an acknowledgement by AdAction of anyfault or liability with respect to the Security Incident.
11. Data Protection Impact Assessment and Prior Consultation. In the event that Publisher considers that theProcessing of Publisher Personal Data requires a privacy impact assessmentto be undertaken or requires assistance with any prior consultations to anySupervisory Authority of Publisher, following written request fromPublisher, AdAction shall, taking into account the nature of AdAction’sProcessing of Publisher Personal Data and the information available toAdAction, use reasonable commercial efforts to provide relevant informationand assistance to Publisher to fulfil such request, provided that AdActionmay charge Publisher on a time and materials basis in the event thatAdAction considers, in its reasonable discretion, that such assistance isonerous, complex, frequent, or time consuming.
12. Deletion or Return of Publisher Personal Data. Unless otherwise required by applicable law, following termination orexpiration of the Agreement AdAction shall, at Publisher’s option, deleteor return all Publisher Personal Data and all copies to Publisher.
13. Relevant Records and Audit Rights. AdAction shall make available to Publisher on requestall information reasonably necessary to demonstrate compliance with thisAddendum and allow for and contribute to audits, including inspections byPublisher or an auditor mandated by Publisher, not being competitors ofAdAction (“Mandated Auditor”) of anypremises where the Processing of Publisher Personal Data takes place inorder to assess compliance with this Addendum. AdAction shall providereasonable cooperation to Publisher in respect of any such audit and shallat the request of Publisher, provide Publisher with relevant records ofcompliance with its obligations under this Addendum. AdAction shallpromptly inform Publisher if, in its opinion, a request infringes the DataProtection Laws or any other confidentially obligations with AdAction’sother Publishers. Publisher agrees that: (i) audits may only occur duringnormal business hours, and where possible only after reasonable notice toAdAction (not less than 20 days’ advance written notice); (ii) audits willbe conducted in a manner that does not have any adverse impact onAdAction’s normal business operations; (iii) Publisher and any MandatedAuditor will comply with AdAction’s standard safety, confidentiality, andsecurity procedures in conducting any such audits; and (iv) any records,data, or information accessed by Publisher or any Mandated Auditor in theperformance of any such audit will be deemed to be the ConfidentialInformation of AdAction. To the extent any such audit incurs in excess of20 hours of AdAction personnel time, AdAction may charge Publisher on atime and materials basis for any such excess hours.
14. International Data Transfer. In the event that any Publisher transfers to AdActionany Publisher Personal Data that is subject to European Data ProtectionLaws, and and such transfer is not subject to an alternative adequatetransfer mechanism under European Data Protection Laws or otherwise exemptfrom cross-border transfer restrictions, then Publisher on behalf of itselfand each Publisher Affiliate as “data exporter” and AdAction on behalf ofitself and each AdAction Affiliate as “data importer” agree that theapplicable terms of the Standard Contractual Clauses shall apply to andgovern such transfer and are hereby incorporated herein by reference, whichterms shall take precedence over those in this Addendum. In the event thatthe Standard Contractual Clauses cease to be recognized as a legitimatebasis for the transfer of Personal Data to an entity located outside theEEA, Publisher shall cooperate with AdAction to identify and implement analternative legitimate basis to the extent that one is required by the DataProtection Laws. The Standard Contractual Clauses shall come into effect onthe later of: (i) the data exporter becoming a party to them; (ii) the dataimporter becoming a party to them; and (iii) commencement of the relevanttransfer; and the Standard Contractual Clauses shall automaticallyterminate once the transfer becomes lawful under European Data ProtectionLaws in the absence of such Standard Contractual Clauses on any otherbasis.
15. General Terms. Any obligation imposed on AdAction under this Addendumin relation to the Processing of Publisher Personal Data shall survive anytermination or expiration of the Agreement and automatically expire uponAdAction’s deletion or return of all Publisher Personal Data. Should anyprovision of this Addendum be invalid or unenforceable, then the remainderof this Addendum shall remain valid and in force. The invalid orunenforceable provision shall be either: (i) amended as necessary to ensureits validity and enforceability, while preserving the intent of theprovision as closely as possible or, if this is not possible, (ii)construed in a manner as if the invalid or unenforceable part had neverbeen contained therein. With regard to the subject matter of this Addendum,the provisions of this Addendum shall prevail over the Agreement withregard to data protection obligations for Personal Data of a Data Subjectunder Data Protection Laws. Any liabilities arising in respect of thisAddendum are subject to the limitations of liability under the Agreement.This Addendum will be governed by and construed in accordance with thegoverning law and jurisdiction provisions in the Agreement, unless requiredotherwise by Data Protection Laws.
Appendix 1 to Data Processing Addendum
Details of Processing of Publisher Personal Data
The subject matter and duration of the Processing are as described in theAgreement and the Addendum.
2. Nature and purpose of the Processing of Publisher Personal Data
The nature of the Processing involves those activities reasonably requiredto facilitate or support the provision of the Services as described in theAgreement and the Addendum.
The purpose of the Processing is to provide the Services as described inthe Agreement and the Addendum, and include the following businesspurposes:
· Auditing related to counting ad impressions to unique visitors/clickthroughs, verifying positioning and quality of ad impressions, and auditingcompliance with this specification and other standards;
· Helping to ensure security and integrity, to the extent the use ofPublisher Personal Data is reasonably necessary and proportionate for thesepurposes;
· Debugging to identify and repair errors that impair existing intendedfunctionality;
· Performing the Services as described in the Agreement and carrying outthe instructions set forth in Sections 4 and 5, including processingEvents, processing payments for Events, providing analytic services, orproviding similar services on behalf of Customer;
· Providing advertising and marketing services, except for cross-contextbehavioral advertising, to Data Subjects provided that, for the purpose ofadvertising and marketing, AdAction shall not combine the PublisherPersonal Data of opted-out Data Subjects that AdAction receives from, or onbehalf of, Publisher with Personal Data that AdAction receives from, or onbehalf of, another person or persons or collects from its own interactionwith Data Subjects;
· Undertaking internal research for technological development anddemonstration; and
· Undertaking activities to verify or maintain the quality or safety of theServices, and to improve, upgrade, or enhance the Services.
3. The categories of Data Subjects to whom Publisher Personal Datarelates
4. The categories of Publisher Personal Data
The categories of Publisher Personal Data Processed are those categoriescontemplated in and permitted by Agreement may include name, work address,account ID, email address and phone number of Users, and may includeadvertising identifiers, device identifiers, location data, IP addresses,game play, in-app purchases, email address, and birth date of End Users.
5. The sensitive data included in Publisher Personal Data
6. The frequency of Publisher’s transfer of Publisher Personal Data toAdAction:
If applicable, on a continuous basis for the term of the Agreement.
7. The period for which Publisher Personal Data will be retained, or,if that is not possible, the criteria used to determine thatperiod:
As set forth in the Addendum or the Agreement.
8. For transfers to Subprocessors, the subject matter, nature andduration of the Processing of Publisher Personal Data:
As set forth in the Addendum or the Agreement.
Appendix 2 to Data Processing Addendum
1. Information Security Program. Implement, maintain, and comply with informationsecurity policies and procedures designed to protect the confidentiality,integrity, and availability of Publisher Personal Data and any systems thatstore or otherwise Process it, which are: (a) aligned with anindustry-standard control framework (e.g., NIST SP 800-53, ISO 27001, CISCritical Security Controls); (b) approved by executive management; (c)reviewed and updated at least annually; and (d) communicated to allpersonnel with access to Publisher Personal Data.
2. Risk Assessment. Maintain risk assessment procedures for the purposes ofperiodic review and assessment of risks to the organization, monitoring andmaintaining compliance with the organization’s policies and procedures, andreporting the condition of the organization’s information security andcompliance to internal senior management.
3. Personnel Training. Train personnel to maintain the confidentiality,integrity, and availability of Publisher Personal Data, consistent with theterms of the Agreement and Data Protection Laws.
4. Vendor Management. Prior to engaging Subprocessors and othersubcontractors, conduct reasonable due diligence and monitoring to ensuresubcontractors are capable of maintaining the confidentiality, integrity,and availability of Publisher Personal Data.
5. Access Controls. Only authorized personnel and third parties arepermitted to access Publisher Personal Data. Maintain logical accesscontrols designed to limit access to Publisher Personal Data and relevantinformation systems (e.g., granting access on a need-to-know basis, use ofunique IDs and passwords for all users, periodic review and revoking orchanging access when employment terminates or changes in job functionsoccur).
6. Secure User Authentication. Maintain password controls designed to manage andcontrol password strength, expiration, and usage. These controls includeprohibiting users from sharing passwords and requiring that passwordscontrolling access to Publisher Personal Data must: (a) be at least 8characters in length and meet minimum complexity requirements; (b) not bestored in readable format on the organization’s computer systems; (c) havea history threshold to prevent reuse of recent passwords; and (d) if newlyissued, be changed after first use.
7. Incident Detection and Response. Maintain policies and procedures to detect and respondto actual or reasonably suspected Security Incidents, and encourage thereporting of such incidents.
8. Vulnerability Management. Detect, assess, mitigate, remove, and protect againstnew and existing security vulnerabilities and threats, including viruses,bots, and other malicious code, by implementing vulnerability management,threat protection technologies, and scheduled monitoring procedures.
9. Physical Security. Take steps to ensure the physical and environmentalsecurity of data centers, server room facilities and other areas containingPublisher Personal Data, including by: (a) protecting information assetsfrom unauthorized physical access; (b) managing, monitoring, and loggingmovement of persons into and out of the organization’s facilities; and (c)guarding against environmental hazards such as heat, fire, and waterdamage.
10. Business Continuity and Disaster Recovery. Maintain business continuity and disaster recoverypolicies and procedures designed to maintain service and recover fromforeseeable emergency situations or disasters.
Appendix 3 to Data Processing Addendum
Standard Contractual Clauses
1. Application of Modules. If Publisher is acting as a Controller with respect to Publisher PersonalData, “Module Two: Transfer controller to processor” of the StandardContractual Clauses shall apply. If Publisher is acting as a Processor to athird-party Controller with respect to Publisher Personal Data, AdAction isa sub-Processor and “Module Three: Transfer processor to processor” of theStandard Contractual Clauses shall apply.
2. Sections I-V. The parties agree to the following selections in Sections I-IV of theStandard Contractual Clauses: (a) the parties select Option 2 in Clause9(a) and the specified time period shall be the notification time periodset forth in Section 8 of the Addendum; (b) the optional language in Clause11(a) is omitted; (c) the parties select Option 1 in Clause 17 and thegoverning law of the Republic of Ireland will apply; and (d) in Clause18(b), the parties select the courts of the Republic of Ireland.
3. Annexes. The name, address, contact details, activities relevant to the transfer,and role of the parties set forth in the Agreement and the Addendum shallbe used to complete Annex I.A. of the Standard Contractual Clauses. Theinformation set forth in Appendix 1 to the Addendum shall be used tocomplete Annex I.B. of the Standard Contractual Clauses. The competentsupervisory authority in Annex I.C. of the Standard Contractual Clausesshall be the relevant supervisory authority determined by Clause 13 and theGDPR, unless otherwise set forth in Sections 5 or 6 of this Appendix 3. Ifsuch determination is not clear, then the competent supervisory authorityshall be the Irish Data Protection Authority. The technical andorganizational measures in Annex II of the Standard Contractual Clausesshall be the measures set forth in Appendix 2 to the Addendum.
4. Supplemental Business-Related Clauses. In accordance with Clause 2 of the Standard Contractual Clauses, theparties wish to supplement the Standard Contractual Clauses withbusiness-related clauses, which shall neither be interpreted nor applied insuch a way as to contradict the Standard Contractual Clauses (whetherdirectly or indirectly) or to prejudice the fundamental rights and freedomsof Data Subjects. AdAction and Publisher therefore agree that theapplicable terms of the Agreement and the Addendum shall apply if, and tothe extent that, they are permitted under the Standard Contractual Clauses,including without limitation the following:
4.1. Instructions. The instructions described in Clause 8.1 are setforth in Section 4 of the Addendum.
4.2.Protection of Confidentiality. In the event a Data Subject requests acopy of the Standard Contractual Clauses or the Addendum under Clause8.3, Publisher shall make all redactions reasonably necessary toprotect business secrets or other confidential information of AdAction.
4.3.Deletion or Return. Deletion or return of Publisher Personal Data byAdAction under the Standard Contractual Clauses shall be governed bySection 12 of the Addendum. Certification of deletion of PublisherPersonal Data under Clause 8.5 or Clause 16(d) will be provided byAdAction upon the written request of Publisher.
4.4.Onward Transfers. AdAction shall be deemed in compliance with Clause8.8 to the extent such onward transfers occur in accordance withArticle 4 of the Commission Implementing Decision (EU) 2021/914 of 4June 2021.
4.5.Audits and Certifications. Any information requests or audits providedfor in Clause 8.9 shall be fulfilled in accordance with Section 13 ofthe Addendum.
4.6.Liability. The relevant terms of the Agreement which governindemnification or limitation of liability shall apply to AdAction’sliability under Clauses 12(a), 12(d), and 12(f).
4.7.Termination. The relevant terms of the Agreement which governtermination shall apply to a termination pursuant to Clauses 14(f) or16.
5. Transfers from the United Kingdom. If Publisher transfers Publisher Personal Data to AdAction that issubject to UK Data Protection Laws, the parties acknowledge and agree that:(a) the template addendum issued by the Information Commissioner’s Officeof the United Kingdom and laid before Parliament in accordance with s119Aof the Data Protection Act 2018 on 2 February 2022 (available at:https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf),as it may be revised from time to time by the Information Commissioner’sOffice (the “UK Addendum”) shall be incorporated byreference herein; (b) the UK Addendum shall apply to and modify theStandard Contractual Clauses solely to the extent that UK Data ProtectionLaws apply to Publisher’s Processing when making the transfer; (c) theinformation required to be set forth in “Part 1: Tables” of the UK Addendumshall be completed using the information provided in this Appendix 3 andthe Addendum; and (d) either party may end the UK Addendum in accordancewith section 19 thereof.
6. Transfers from Switzerland.If Publisher transfers Publisher Personal Data to AdAction that is subjectto the Swiss FADP, the following modifications shall apply to the StandardContractual Clauses to the extent that the Swiss FADP applies toPublisher’s Processing when making that transfer: (a) the term “memberstate” as used in the Standard Contractual Clauses shall not be interpretedin such a way as to exclude Data Subjects in Switzerland from suing fortheir rights in their place of habitual residence in accordance with Clause18(c) of the Standard Contractual Clauses; (b) the Standard ContractualClauses shall also protect the data of legal entities until the entry intoforce of the revised Swiss FADP on or about 1 September 2023; (c)references to the GDPR or other governing law contained in the StandardContractual Clauses shall also be interpreted to include the Swiss FADP;and (d) the parties agree that the supervisory authority as indicated inAnnex I.C of the Standard Contractual Clauses shall be the Swiss FederalData Protection and Information Commissioner.