AdAction Interactive LLC’s Terms & Conditions for Publishers
These Publisher Terms and Conditions (the “Agreement”) set forth the agreement between AdAction Interactive LLC, a Colorado limited liability company with offices at 200 Union Boulevard, Suite #305, Lakewood, CO 80228 (“AdAction”), and its publishers. This Agreement replaces and supersedes any prior terms and conditions between AdAction and its publishers. You (“Publisher”) shall be legally bound by this Agreement by executing a hard copy of this Agreement, electronically accepting this Agreement online, or by using AdAction’s services.
1. Approval of Publisher.
Registration with AdAction shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by AdAction on the Site on behalf of its clients (the “Advertisers”). Participation by Publisher in the AdAction publisher lead generation program is subject to review and approval by AdAction. All prospective publishers need official approval from AdAction before they can become Publishers. Official approval requires meeting the criteria listed under section 1.1 below, however approval is not automatically granted upon fulfillment of said criteria. AdAction reserves the right to withhold or refuse approval for any reason or for no reason. Once Publisher has been accepted into the Program, Publisher’s continued right to participate is conditioned upon Publisher’s ongoing compliance with all of the terms and conditions of this Agreement. AdAction may immediately suspend Publisher from participating in the Program and/or terminate this Agreement if AdAction determines, in its sole discretion, that Publisher has violated the terms and conditions of this Agreement. Publisher may re-qualify for program upon proof of compliance with terms and conditions of this Agreement, subject to approval by AdAction. Publisher shall promptly notify AdAction in the event of a material change in its business practices or strategy. Approval of a Publisher can be withdrawn by AdAction, at any time for any reason.
1.1. Minimum Eligibility Requirements.
In order to be eligible to become a Publisher, all websites, affiliated websites, e-mail distribution lists and other online properties (collectively the “Media”) must meet the following criteria, at a minimum:
All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation:
(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 to AdAction within one business days of request thereof;
Unless otherwise approved in writing by AdAction, Publishers may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
Publisher websites must be fully functional at all levels; no “under construction” sites or sections;
Publisher, Publisher’s Media and Publisher’s policies, shall comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Federal Trade Commission Act and guidelines published by the U.S. Federal Trade Commission, the CAN-SPAM Act of 2003, the Children’s Online Privacy Protection Act (“COPPA”), and any applicable and generally accepted self-regulatory standards, including but not limited to, the Digital Advertising Alliance’s Self-Regulatory Principles;
Spawning process pop-ups are prohibited; and
Such other criteria as AdAction may from time to time determine, in its sole discretion.
1.2. Publisher Website Content.
The content of Publisher’s Media shall be subject to AdAction’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:
Pornographic material, including any material appealing to the prurient interests;
Racial, ethnic, political, hate-mongering or otherwise objectionable content;
Investment, money-making opportunities or advice not permitted under law;
Gratuitous violence or profanity;
Material that defames, misrepresents, abuses, or threatens physical harm to others;
Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;
Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;
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;
Any illegal activity whatsoever; and
Links to any affiliate networks
2. Use of the Site.
2.1. The Site allows AdAction to post offers of advertising programs sponsored by AdAction or its affiliates on the system (“Program(s)”). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program’s requirements are fulfilled. 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 the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) (“Ad”) on Publisher’s Media. Publisher shall display the Ad exactly 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 other remedies available to AdAction, result in termination of Publisher. AdAction may change a Program at any time, upon reasonable advance written notice to Publisher. AdAction is responsible for displaying and administering all active Programs and tracking the payments owed.
2.2. Special Rules Governing Email Campaigns.
2.2(b). Publisher may not use an advertiser’s name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission.
2.2(c). No Misleading Headers or Other Masking of Email Origin. An email may not include falsification of header information, false registrations for email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.
2.2(d). Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the message. Publisher may only use approved Subject Lines available provided by AdAction or Subject Lines for which Publisher has documented approval from AdAction.
2.2(e). Email Ads Must Contain Clear Identification. Messages containing advertisements or solicitations must identify themselves as such, and do so by “clear and conspicuous” means, for example, by stating in the message body “This advertisement is brought to you by (Your Company)”. Further, the sender must identify itself as the initiator and sender of the email including company name, email and physical address.
2.2(f). Effective Method of Opting Out of Future Mailings. Senders of commercial emails must give recipients an effective means of requesting not to receive future email ads from that sender. At a minimum, the publisher must give the recipient the ability to send a reply message to unsubscribe, opt out via postal letter and provide a functioning unsubscribe link that must remain in operation for 30 days from the date of the original email transmission.
2.2(g). All unsubscribe requests must be adhered to within 10 business days from their receipt. You may not sell or transfer an email address once someone has opted out of receiving future communications, whether from only the advertiser or globally.
2.2(h). No Random or Invalid Generation of Email Addresses. Publisher is responsible for knowing the source of its email list. Email addresses may not be obtained by the use of a program for random generation of email addresses, and/or “scraping” websites or online services. Publisher must have full opt-in data for all recipients in its database.
2.3 Special Rules Governing Social Influencer publishers or social media traffic
The following additional terms shall apply to any advertising activity on social media (“Post”) undertaken by you through or in connection with AdAction, including any endorsements, testimonials, or statements you make on behalf of Advertisers. We reserve the right to update these terms at any time effective immediately upon posting to our website.
2.3(a) You agree to the following: Your engagement with an Advertiser through AdAction will not be positioned as an unaffiliated critical review.
You will disclose the existence and nature of your connection to any Advertisers you are promoting or working with by communicating in a clear, conspicuous and obvious way that the applicable video, Post, and related messaging from you about the Advertiser and/or their product and/or service, is sponsored.
Your disclosures will comply with all Federal Trade Commission guidelines found at https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff-revises-online-advertising-disclosure-guidelines/130312dotcomdisclosures.pdf.
All disclosures will be prominent, obvious and cannot require users to take unnatural action, like excessive scrolling. Disclosures will be understandable
You will not require a user to navigate to another screen or click on a hyperlink to view the disclosure.
Your disclosure will be in a format conducive to sharing, meaning that in the event that your Post is shared by other users, the disclosure will not be lost, and will continue to be prominent, clear, conspicuous and obvious.
Under no circumstances should you conceal your connection with an Advertiser or endorse products or services that you have not actually used or engage in any other misleading or deceptive practices.
AdAction reserves the right, in our sole discretion, to determine the validity of all disclosures. If we find any publisher to have less than sufficient disclosures, we reserve the right to terminate such Publisher’s access to Programs. Any Publisher in breach of these terms will also forfeit any payment for ads in question.
2.3(b) You warrant that your disclosures will meet, in addition to the FTC requirements linked above and any additional state or federal regulations, these criteria:
For any photo or non-video Post, your disclosure will appear in the caption or description directly adjacent to the image, above the fold (i.e. requiring no scrolling to view). In the event that the Post does not have a description box or caption, clear and conspicuous disclosure must be overlaid in text. The disclosure text must be static, visible and easy to read for a minimum of four (4) seconds, if the Post is in a format where a user may automatically scroll or transition to another Post.
For any video you post (“Video”), your disclosure will appear in the description box or caption of that video, above the fold (e.g. you do not have to click “Show More” or similar to see disclosure). Additionally, you should include either a verbal mention in the Video that the Video is sponsored and/or include prominent on-screen text for at least four (4) seconds stating clearly that the video is sponsored. Any verbal presentation of the disclosure should be at the same speed and general phrasing as the rest of the content of the video (e.g. do not bury or quickly speed through the disclosure). Your disclosure should be made at or near the beginning of the Video or during or immediately after the call-to-action. For any Video longer than 10 minutes, you should include a final clear and conspicuous disclosure at the end of the video.
For any Post, in any format, casual references to the Advertiser or simply saying “thanks to [the Advertiser]” are not clear enough to convey the paid relationship. In some cases, using the phrase “Sponsored By” or other similar wording may also not be sufficiently clear.
All criteria required by the individual platform being used for delivery of the Ads, including but not limited to, the platform policies linked below.
3. Compliance and Monitoring.
Publisher agrees that AdAction and our service providers may monitor or audit Publisher’s Media and activities under this Agreement, as well as those of Publisher’s Agents. Publisher will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Publisher may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Publisher’s facilities and those of its Agents. Publisher’s failure to promptly and reasonably comply with AdAction’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement.
3.1. All Publishers will be monitored by AdAction (or a third party retained by AdAction for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests. If the monitoring is done by a third party, such third party will share all such information with AdAction.
3.2. Each unsubscribe list furnished to a Publisher shall be separately and technologically identified so that AdAction will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Publisher must not send further emails to names already on or newly added to the unsubscribe list.
3.3 Notwithstanding the foregoing, AdAction assumes no liability for any 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, information or analyses arising out of such use (the “Site Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, such Publisher may not provide the Program to its publishers, without the prior written consent of AdAction. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to AdAction, Publisher shall forfeit its rights to any amounts owed by AdAction to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by AdAction. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from AdAction that allows AdAction to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from AdAction hereunder or as part of the services hereunder is proprietary to and owned by AdAction. If instructed to do so by AdAction and/or if Publisher shall be terminated by AdAction, Publisher will immediately destroy and discontinue the use of any AdAction data, including Site Data, and any other material owned by AdAction or the Advertisers.
Publisher agrees that Publisher will not approach or attempt to engage in 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 other person or entity. AdAction will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as an AdAction Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because AdAction will be irreparably harmed by Publisher’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Publisher agrees that AdAction shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.
6. Participation in our Program.
AdAction shall provide Publisher with material to create a website for the purpose of search engine optimization, or Publisher can create its own website. In either event, no website shall be released online, and no submission, inclusion or any traffic can be sent to it, prior to AdAction’s review and approval of it. If Publisher already has its own website, Publisher’s website will be subject to AdAction’s review and approval. Approval shall be written or by electronic submission. All Program related websites will contain links (“Links”) provided by AdAction directing traffic to product sales web pages served by AdAction or an AdAction Group Client. Publisher’s selection of entities to be included on any such website is also subject to AdAction’s review and approval, of which shall not be unreasonably withheld. Should any of AdAction’s Client(s) provide content which includes imbedded bots, Data Miners, links or other creative, graphic, text or html, all content shall remain at all times the sole property of AdAction.
Publisher agrees to use the Links in the exact form that we deliver them to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without AdAction’s written approval. Links must be served from the AdAction server, unless otherwise permitted in writing by AdAction. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees to, if request by AdAction, modify or alter Links or Tracking devices in the manner requested by AdAction. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by AdAction in accordance with the previous sentence.
AdAction owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. AdAction may choose to imbed certain data mining tools within Links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sole property of AdAction. AdAction may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If AdAction does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of AdAction. Should AdAction choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by AdAction without modification unless approved by us in writing; (ii) only in the manner expressly permitted by AdAction in writing and only until AdAction shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by AdAction to do so.
AdAction actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things:
Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of AdAction;
Have ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported;
Have shown fraudulent leads as determined by the Advertisers;
Have used any incentives to procure clicks or leads, without the prior written consent of AdAction;
Have provided leads obtained other than through intended consumer action. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior; or
Use fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.
If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by AdAction or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by AdAction, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to AdAction, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, AdAction reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
Publisher will be paid per the terms of each Program. AdAction shall pay any amounts due approximately 30 days after the end of each month, less any taxes required to be withheld under applicable law, provided that AdAction may, in its discretion, withhold payments until such time as the Advertiser has paid AdAction for any Program. In addition to any other remedies that may be available to AdAction, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by AdAction to Publisher. AdAction reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. AdAction shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by AdAction need to be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. AdAction will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to AdAction and payments made to Publisher shall be based on the Events as reported by AdAction. AdAction will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. AdAction will require a Publisher to provide a W-9, and similar such information, as a condition to payment.
9. Special Terms for Co-Registration Campaigns.
With respect to Publishers who are running co-registration campaigns to generate leads (“Leads”) for Advertisers, the following specific terms and conditions shall apply:
9.1. Approval of Publisher’s Site(s).
No Program may go live until such time as AdAction, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval 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 validity of a lead (the “Lead Requirements”). AdAction may detect and track all Invalid Leads, which are determined on a real-time basis. AdAction shall only pay for leads deemed valid by this system. At the sole discretion of AdAction, leads may also subsequently be deemed invalid for (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a publisher’s inability to provide the user IP and time/date stamp for each lead or (ii) non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a AdAction Account Executive and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an AdAction Account Executive.
9.4. Use of Leads.
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of AdAction or its Advertiser. Therefore, other than providing the Leads to AdAction for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in AdAction or its Advertisers.
9.5. No Alteration of Approved Co-Registration Forms.
Publisher may not, in any way, alter or modify the Co-Registration Forms, without the prior written consent of AdAction.
The initial terms of this Agreement shall be for one year from the date of its first execution by the last party to so execute. Upon the one-year anniversary of the execution, this Agreement shall automatically renew for successive thirty (30) day terms, unless: (a) not less than thirty (30) days prior to the date of any such automatic renewal, a party notifies the other in writing that it does not wish to renew this Agreement; or (b) this Agreement is otherwise earlier terminated pursuant to the provisions hereof.
AdAction reserves the right, in its sole and absolute discretion, to terminate a Program, this Agreement, Publisher’s access to the Site, and remove any advertisements, at any time for any reason, upon written notice to Publisher. Upon termination, Publisher shall terminate the Program and immediately cease emailing and any traffic involved with removed advertisement(s). AdAction also reserves the right to terminate Publisher’s access to the Site at any time without notice.
Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 12, 13, 14 and 15 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
12. Representations and Warranties/Covenants.
12.1. Mutual Representations.
Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.
12.2. Publisher Representations, Warranties and Covenants.
Publisher represents, warrants, and covenants that:
Publisher, Publisher’s Media, and Publisher’s policies, shall comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Federal Trade Commission Act and guidelines published by the U.S. Federal Trade Commission, the CAN-SPAM Act, the Children’s Online Privacy Protection Act (“COPPA”), and any applicable and generally accepted self-regulatory standards, including but not limited to, the Digital Advertising Alliance’s Self-Regulatory Principles.
Publisher: (i) will not deliver or place advertisements on Media which are directed to users under 13 years of age or that collect information from users actually known to be under 13 years of age (“Children Sites”), unless the parties have otherwise agreed to such delivery in writing; and (ii) will not use or allow the use of the Media on which advertisements may appear in connection with any activity that may violate COPPA, including without limitation in connection with placing behaviorally targeted advertisements, creating profiles of users or visitors of Children Sites, or the collection of personal information (as defined by COPPA) of users or visitors of Children Sites. In any event, Publisher shall not share with AdAction any personal information regarding end-users of Child Sites;
Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
Publisher’s database consists of only permission based opted-in e-mail addresses;
Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media;
Publisher will not send unsolicited commercial e-mail (spam) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses that have consented to receive such commercial e-mails);
Publisher will not post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from AdAction;
Publisher will not promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;
Publisher will not use the Site in any manner other than that which is specifically contemplated herein;
Publisher will not engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs;
Publisher will not, while an approved Publisher and for 180 days thereafter, participate in any performance based advertising relationship with any Advertiser within AdAction’s network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of AdAction. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, AdAction will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher;
Publisher shall conduct the web advertising campaign for Advertiser in accordance with the highest industry standards; and
Publisher shall provide within one business day after request therefrom, the IP Information, together with such other related information that AdAction may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher.
Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of AdAction, result in the immediate suspension or termination of this Agreement and AdAction’ relationship with Publisher, and Publisher shall forfeit all rights to any compensation theretofore owed to it by AdAction. The foregoing rights shall be in addition to any other remedies available to AdAction.
13. Customer Information; Non-Disclosure. Confidentiality.
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of AdAction, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards.
All information provided to Publisher hereunder shall be kept strictly confidential.
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 ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ADACTION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADACTION’S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY ADACTION TO PUBLISHER HEREUNDER.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PUBLISHER ACKNOWLEDGES AND AGREES THAT ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL ADACTION BE LIABLE FOR, ANY ACTIONS OR INACTIONS OF PUBLISHER AND/OR AFFILIATES, OR FOR PUBLISHER’S MEDIA, FOR ANY CONTENT CONTAINED 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 NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL ADACTION BE LIABLE FOR, THE ACTIONS OR OMISSIONS OF ANY ADVERTISER, FOR ANY CONTENT CONTAINED IN ANY ADVERTISEMENT OR LINKED WEBSITE, APP OR OTHER ONLINE PROPERTY, OR FOR ANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH ANY ADVERTISER’S ADVERTISEMENT, WEBSITE, APP OR ONLINE PROPERTY.
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.
14.3. Indemnification Procedures.
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.
15. CONFIDENTIAL INFORMATION.
Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the prior written consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that AdAction may divulge its personal and/or otherwise Confidential Information to an Advertiser upon request or to an enforcement agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or pursuant to any applicable law or regulation.
16.1. Governing Law.
The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State 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 the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any Internet outage, act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
The relationship of Publisher and AdAction established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other.
Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (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 courier service to the address of the respective party as indicated herein. In the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.adaction.com. Notices to AdAction shall be sent to AdAction at 200 Union Boulevard, Suite 305, Lakewood CO, 80228. Notices to Publisher shall be sent to Publisher at its most recent email address set forth in its account information on www.adaction.com. Publisher agrees to receive electronic communications from AdAction, at the email address provided by Publisher. Publisher further agrees that any notice or other communication that AdAction sends it electronically will satisfy any legal communication requirements, including that such communications be in writing.
16.5. Successors and Assigns.
Publisher may not assign or otherwise transfer this Agreement or any rights or obligations herein without the prior written consent of AdAction. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.adaction.com
16.8. Entire Agreement; Severability.
This Agreement and any related IO’s set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
16.9. Dispute Resolution.
In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. In the event of a dispute resulting in litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Denver, Colorado, USA and any such litigation will be brought within such courts. The prevailing party in any action shall be entitled to recover its reasonable attorneys’ fees and costs incurred.
Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.
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.
1.1. “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 Publisher 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;
1.2. “Controller,” “Processor,” “Data Subject,” “Processing,” “SupervisoryAuthority,” “Personal Data Breach,” and “Special Categories of Personal Data” shall have the same meaning as in the applicable Data Protection Law;
1.3. “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;
1.4. “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 ;
1.5. “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;
1.6. “Publisher Personal Data” means Personal Data received from or on behalf of Publisher that is covered by a Data Protection Law;
1.7. “Restricted Transfer” means the onward transfer of Publisher 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;
1.8. “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 ;
1.9. “Subprocessor” means any Processor (including any third party and any AdAction Affiliate) appointed by AdAction to Process Publisher Personal Data on behalf of Publisher or any Publisher Affiliate.
2. Data Processing Terms. While providing the Services to Publisher and Publisher Affiliates pursuant to the Agreement, AdAction and AdAction Affiliates may Process Publisher Personal Data on behalf of Publisher or any Publisher Affiliate as per the terms of this Addendum. AdAction agrees to comply with the following provisions with respect to any Publisher Personal Data submitted by or for Publisher or any Publisher Affiliate to the Services or otherwise collected and Processed by or for Publisher or any Publisher Affiliate by AdAction or any AdAction Affiliate.AdAction shall only retain, use, or disclose Publisher Personal Data as necessary for AdAction’s performance of its obligations under the Agreement and only in accordance with Publisher’s instructions. AdAction must not sell any Publisher 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 Publisher Personal Data to or from AdAction to qualify as “selling personal information” under the CCPA.
3. Processing of Publisher Personal Data. AdAction shall not Process Publisher Personal Data other than on Publisher’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 Publisher of that legal requirement before Processing Publisher Personal Data. For the avoidance of doubt, the Agreement and any related SOW entered into by Publisher shall constitute documented instructions for the purposes of this Addendum. Publisher shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Publisher’s use and disclosure and AdAction’s Processing of Publisher Personal Data; and (2) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Publisher Personal Data to AdAction and to permit the processing of such Publisher Personal Data by AdAction for the purposes of performing AdAction’s obligations under the Agreement or as may be required by Data Protection Laws. Publisher shall notify AdAction of any changes in, or revocation of, the permission to use, disclose, or otherwise process Publisher Personal Data that would impact AdAction’s ability to comply with the Agreement, or applicable Data Protection Laws.
4. Confidentiality. AdAction shall take reasonable steps to ensure that individuals that process Publisher Personal Data are subject to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality.
5. 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 Publisher Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.
6. Subprocessing. AdAction may engage such Subprocessors as AdAction considers reasonably appropriate for the processing of Publisher Personal Data in accordance with this Addendum, provided that AdAction shall notify Publisher of the addition or replacement of such Subprocessor and Publisher 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 Publisher’s objection. Upon receiving such objection, AdAction shall: (1) work with Publisher 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 (2) where such change cannot be made within 10 days of AdAction’s receipt of Publisher’s notice, Publisher 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 Publisher’s sole and exclusive remedy to Publisher’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.
7. Data Subject Rights. AdAction shall promptly notify Publisher if it receives a request from a Data Subject under any Data Protection Laws in respect to Publisher Personal Data. In the event that any Data Subject exercises any of its rights under the Data Protection Laws in relation to Publisher Personal Data, AdAction shall use reasonable commercial efforts to assist Publisher in fulfilling its obligations as Controller following written request from Publisher, provided that AdAction may charge Publisher 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.
8. Personal Data Breach. In the event of a Personal Data Breach, AdAction will notify Publisher without undue delay after becoming aware of the Personal Data Breach. Such notification may be delivered to an email address provided by Publisher or by direct communication (for example, by phone call or an in-person meeting). Publisher is solely responsible for ensuring that the appropriate notification contact details are current and valid. AdAction will take reasonable steps to provide Publisher with information available to AdAction that Publisher may reasonably require to comply with its obligations as Controller to notify impacted Data Subjects or Supervisory Authorities.
9. Data Protection Impact Assessment and Prior Consultation. In the event that Publisher considers that the Processing of Publisher Personal Data requires a privacy impact assessment to be undertaken or requires assistance with any prior consultations to any Supervisory Authority of Publisher, following written request from Publisher, AdAction shall use reasonable commercial efforts to provide relevant information and assistance to Publisher to fulfil such request, provided that AdAction may charge Publisher 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.
10. Deletion or Return of Publisher Personal Data. Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement AdAction shall, at Publisher’s option, delete or return all Publisher Personal Data and all copies to Publisher.
11. Relevant Records and Audit Rights. AdAction shall make available to Publisher on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by Publisher or an auditor mandated by Publisher, not being competitors of AdAction (“Mandated Auditor“) of any premises where the Processing of Publisher Personal Data takes place in order to assess compliance with this Addendum. AdAction shall provide reasonable cooperation to Publisher in respect of any such audit and shall at the request of Publisher, provide Publisher with relevant records of compliance with its obligations under this Addendum. AdAction shall promptly inform Publisher if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations with AdAction’s other Publishers. Publisher agrees that: (1) 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); (2) audits will be conducted in a manner that does not have any adverse impact on AdAction’s normal business operations; (3) Publisher and any Mandated Auditor will comply with AdAction’s standard safety, confidentiality, and security procedures in conducting any such audits; and (4) any records, data, or information accessed by Publisher 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 Publisher on a time and materials basis for any such excess hours.
12. International Data Transfer. In the event that any Publisher transfers any Publisher Personal Data to AdAction in a country outside the EEA, Publisher on behalf of itself and each Publisher 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, Publisher 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: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfer.
13. 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: (1) 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, (2) 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.
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