AVOW GmbH Advertiser Terms and Conditions
These Terms and Conditions are a legally binding and enforceable agreement between Avow GmbH at Am Treptower Park 21, 12435 Berlin between (“Company”) and you (“Advertiser”).
1.1 “Acquisition” means a user visiting an application store via Avow tracking link, by downloading or by opening the application via a mobile device, as defined in the Insertion Order.
1.2 “Action” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, as specified in the applicable Insertion Order.
1.3 “Advertiser” means any client of Avow GmbH which has entered into one or multiple Insertion Orders with Avow GmbH.
1.4 “Creative” means all creative assets included in Advertiser’s advertising material supplied to Avow.
1.5 “Insertion Order (IO)” means a binding document entered into by both parties Advertiser and Avow GmbH that outlines pricing and promotion terms.
1.6 "Content" means advertisements, graphics, data, text copy, links to third party sites, web pages, images, software code, technology, files, texts, photos, audio, video, and visuals.
1.7 “Downtime” refers to any time period in which a technical failure has occurred disrupting the technical tracking connection supporting promotion between Advertiser and Avow.
1.8 "Advertising Network" is a network of registered third party affiliates and publishers ("Media Partners") run by the Company, utilizing related technology and software.
1.9 "Party" means the Company or the Advertiser.
1.10 “Data Protection Law" means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
1.11 "Controller", "Processor", "Data Subject", "Personal Dat", "Processing" (and "Process"), “Personal Data Breach” and "Special Categories of Personal Data" shall have the meanings given in EU Data Protection Law.
1.12 “Company Data” means data collected on behalf of Company’s Publishers and shared with the Advertiser subject to the Advertiser Agreement and for the purpose of providing the service, including without limitations, IDs.
1.13 "EU Data Protection Law" means the (i) EU General Data Protection Regulation (Regulation 2016/679) (“GDP”); (ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy La); (iii) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii); and (iv) any legislation replacing or updating any of the foregoing.
1.14 “ID” means: (i) a unique identifier stored on an end-user’s device, (ii) a unique identifier generated on the basis of device information, (iii) a resettable advertising ID associated with a mobile device or an application; or (iv) IP Address.
1.15 “Security Inciden" means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data of the other party. For the avoidance of doubt, any Personal Data Breach of the other Party’s Personal Data will comprise a Security Incident.
2. Tracking and Reporting
2.1 Unless otherwise stated in writing by Company, each Advertiser's Content or link used by Company in connection with a specific campaign must include the transaction computer code or tracking link provided by Company.
2.2 Advertiser will not knowingly modify, disable or otherwise interfere with any Advertiser Codes and/or other technology and/or methodology required or made available by Company to be used in connection with any and all Advertiser Content in order to track Actions.
2.3. Company's services under this Agreement do not involve investigating or resolving any claim or dispute involving Advertiser and any third party.
2.4. In case Advertiser is working with multiple marketing suppliers, Advertiser will ensure that all campaigns that run through Company, will follow the last click wins model, meaning that an Action will be attributed to the marketing partner which generated the last click of the respective End User before the Acquisition took place.
2.5. When server based tracking is employed in order to track Actions, Advertiser ensures all Actions are accurately tracked and timely reported to Company's system, inclusive of accurate unique ID used by Company in the tracking URL.
2.6 Avow tracking and ad serving system or a third party tracking and ad serving system will measure all Acquisitions delivered to Advertiser.
2.7 Advertiser must provide Company with access to ad server statistics showing advertisement units viewed, click-throughs and/or Acquisitions via access to the tracking system employed by the Advertiser.
2.8 Avow reserves the right to rely on Advertiser’s reporting. Advertiser must pay Avow based on the tracking or ad serving system or the Advertiser’s backend numbers, whichever is greater, provided that Advertiser’s backend numbers have been validated by a certified tracking attribution entity or have been validated by server to server integration.
2.9 Avow reserves the right to have an independent external auditor review any data reports from Advertiser’s backend system to verify accuracy.
2.10 If Advertiser employs a cookie-based tracking method, the minimum attribution window is thirty (30) days.
2.11 If there is under-delivery of volume levels, compared to specifications in the Insertion Order, Avow will use commercially reasonable efforts to ensure delivery in accordance with the Insertion Order. Predictability, forecasting and conversions for CPA, CPI, CPL deliverables may vary. Unless otherwise agreed in writing, Avow does not contract for a specific conversion, billability or profitability rate of the campaign. Advertiser may not raise the allegation that the campaign did not meet Advertiser’s actual or alleged conversion, billability, profitability, or other quality expectations, as a defence against any remuneration claim of Avow. Rather, the parties’ campaign-specific acquisition definitions shall be deemed exhaustive. Advertiser is solely responsible for ensuring that the contents and the technical parameters of the campaign will meet the legal, regulatory as well as any pertinent third-party requirements in any of the target jurisdictions.
3. Licenses and Creative
3.1 Advertiser grants Avow and its media partners a non-exclusive, non-transferable license to use Creative and all elements thereof solely for the purpose expressed in the Insertion Order, including implied licenses to copyrighted materials, Advertiser's Trademarks and patents.
3.2 Advertiser must have all necessary licenses and clearances that are required for using the content contained in Creative.
3.3 Advertiser acknowledges and agrees that: (i) the Advertiser's Content may be integrated to the Company Assets in conjunction with other content; (ii) unless otherwise stated in an applicable Insertion Order the frequency, positioning, order and placements of the Advertiser's Content on the Company Assets shall be determined by Company or its Media Partners, as applicable, at their respective sole discretion; (iii) Company shall have no obligation to review the Advertiser's Content.
4. Downtime / Tracking Disruption
4.1 Advertiser must immediately notify Avow whenever it experiences downtime that affects its performance under this agreement.
4.2 If Advertiser’s site, app, landing page or tracking goes down during a campaign, Advertiser must compensate Avow as follows:
Advertiser must identify precisely when the downtime occurred.
Advertiser must check its server log for Acquisitions generated per hour during the three hours before errors started to occur and three hours after errors were resolved. Advertiser must determine lost Acquisitions on the basis of the average number of Acquisitions generated per hour of normal service minus the average number of sales generated during the downtime period, multiplied by the number of hours of downtime.
Avow will check their system for average revenue generated during the three hours before errors started to occur and the three hours after errors were resolved. Avow will determine lost revenue on the basis of the average amount of revenue generated per hour of normal service minus the average amount of revenue generated during the downtime period, multiplied by the number of hours of downtime. Lost Acquisitions would be the lost revenue divided by the payout per Acquisition.
Advertiser must compensate Avow the average of the lost Acquisition estimate determined by Advertiser and the lost Acquisition estimate as determined by Avow.
5. Data Protection and Processing
5.1 Within the scope of this contractual relationship, Advertiser will provide the following data to Avow for advertising purposes, billing and reporting:
Non-user specific device data
ad campaign ID
location data (if required and available)
General demographic data; or
5.2 In the event that any transferred data under the present clause contains information concerning the personal or material circumstances of an identified or identifiable individual (personal data), Advertiser warrants that the collection, processing and transfer of personal data comply with the applicable data protection law. In particular, Avow warrants that Advertiser has:
obtained end user’s consent, authorization or clearance to collect, process or use the end user’s data as may be required by applicable laws and industry practice and standards;
notified the end user that the privacy and data protection laws in the countries in which the end user’s data may be collected, processed or used may vary from the laws in the country in which such end users live;
complied with industry guidelines, local, national and European regulations on data protection and privacy laws; and
contractually obligated any third party (including, but not limited to, any agent, employee etc.) who handles personal data on behalf of Advertiser to comply with all of the above.
5.3 To the extent that EU Data Protection Law applies to the Processing of Personal Data under the Agreement, including if: (a) the Processing is in the context of the activities of an establishment of either party in the European Economic Area (“EE”); or (b) the Personal Data relates to Data Subjects who are in the EEA and the Processing relates to the offering to them of goods or services or the monitoring of their behavior in the EEA by or on behalf of a party.
5.4 The parties agree and acknowledge that under the performance of their obligations set forth in the Advertiser Agreement, and with respect to the Processing of Company Data, the Company is the Data Controller and the Advertiser is the Data Processor. Each party shall be individually and separately responsible for complying with the obligations that apply to it subject to the Data Protection Law. The subject-matter and duration of the Processing carried out by the Processor in connection with the Advertiser Agreement, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subjects are described as follows:
Subject Matter - Processing carried out for the purpose of providing the services as detailed in the Advertiser Agreement and specifically for the purpose of placing advertisement within the digital assets of Company’s partners (i.e., publishers, suppliers, etc.)
Duration - Solely for the purpose of providing the services (i.e., bidding on ad placement or placing an ad) and shall be promptly deleted thereafter.
Categories of Data and Types of Personal Data - IDs
Special Categories of Data - None
5.5 Each party shall Process Personal Data in compliance with applicable Data Protection Law, industry standards and its obligations herein. Without derogating from the general or specific terms herein, the Advertiser hereby warrants and confirms that as of May 25, 2018 it will be compliant with EU Data Protection Law.
5.6 In respect of the Processing of Personal Data by Advertiser in connection with the Advertiser Agreement where EU Data Protection Law applies, the Advertiser is responsible for and shall comply with applicable Data Protection Law and agrees that it shall: (a) treat all Company Data processed by it on behalf of the Company as confidential and ensure that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (b) cooperate as requested by the Company and implement appropriate technical and organizational measures to enable Company to comply with any exercise of rights by a Data Subject under applicable Data Protection Law in respect of Personal Data processed by Company under the Advertiser Agreement (including, without limitation, deletion of a Data Subject’s Personal Data); (c) not access or transfer outside the EEA any Personal Data without the prior written consent of the Company; (d) provide the Company with reasonable resources and assistance as are required by the Company pursuant to Articles 32 to 36 of the GDPR; (e) by Company’s sole disclosure, delete all the Company Data following the completion of the Processing, and delete existing copies unless European Union or Member State law requires storage of such; (f) ake available to the Company at its request all information necessary to demonstrate compliance with the obligations herein and under Article 28 of the GDPR, including without limitation, provide the Company with a written description of the technical and organizational methods employed by Advertiser and its Sub- Processors (if any) for the Processing of Personal Data; and (g) immediately inform the Company if, in the its opinion, an instruction from the Company infringes applicable Data Protection Law.
5.7 The Advertiser will notify the Company without undue delay, and, in any event within forty-eight (48) hours, upon becoming aware that an actual Security Incident has occurred. The Advertiser will, as soon as possible, provide the Company with at least the following information with respect to the Security Incident: (a) a description of the cause and nature of the Security Incident including the categories and approximate numbers of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (b) the measures being taken to contain, investigate and remediate the Security Incident; (c) the likely consequences and risks for the Company and its Data Subjects as a result of the Security Incident; and (d) any mitigating actions taken and a proposed plan to mitigate any risks for Data Subjects as a result of the Security Incident. Further, the Advertiser shall (i) mmediately and without delay, take necessary steps to contain, remediate, minimize any effects of the Security Incident and to identify its cause; (ii) co-operate with the Company and provide the Company with applicable assistance and information as it may reasonably require in connection with the mitigation of the Security Incident; and (iii) immediately notify the Company in writing of any request, inspection, audit or investigation by a Supervisory Authority.
5.8 The Advertiser shall implement and maintain the technical and organizational measures and take all other measures required pursuant to Article 32 of the GDPR including all organizational and technical security measures necessary to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of Company Data, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing.
5.9 The Advertiser may engage with Sub-Processors and notified in writing to Company prior to this DPA. In the event the Advertiser requires to engage with additional or replace an existing Sub-Processor to process Personal Data, it shall notify the Company in writing of any intended use or replacement of a Sub-Processor (email notification to the DPO at: email@example.com shall be sufficient) within thirty (30) days of the engagement or replacement of the Sub-Processor concerned, unless the Company objects in writing to the proposed use or replacement of the relevant Sub-Processor within thirty (30) days of receipt of the email notification (in which case Advertiser shall not use or replace the Sub-Processor concerned in relation with the Company Data. The Advertiser shall (i) only use a Sub-Processor that has provided sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR and this DPA and ensure the protection of the rights of Data Subjects; and (ii) impose, through a legally binding contract between Advertiser and Sub-Processor, the same data protection obligations as set out in this DPA. The Advertiser acknowledges and agrees that if any Sub-Processor fails to fulfil its obligations in the contract between the Advertiser and Sub-Processor, Advertiser shall remain fully liable to the Company for the performance of the Sub-Processor’s obligations.
5.10 Upon reasonable request of the Company, the Advertiser will submit its data processing facilities, data files and documentation as reasonably needed by the Company for the purpose of auditing or inspecting the Advertiser to ensure compliance with the warranties and undertakings under this DPA (“Audi”). The Audit will be conducted (i) by the Company or any independent or impartial inspection agents or auditors agreed between the parties; and (ii) by providing reasonable notice and during regular business hours. The request will be subject to the extent permitted under applicable law.
6. Representations and Warranties
6.1 Advertiser warrants that Creative, its products and services do not violate any third party’s trade secret or intellectual property rights; contain material that is defamatory or obscene, that portrays any person in a false light, constitutes an invasion of any privacy right, or that violate any applicable laws and regulations.
6.2 Company does not have any obligation to monitor any Content made available through or in connection with the Advertiser's Content, and as a result, the Company is not responsible for the accuracy, completeness, appropriateness, or legality of such Content.
6.3 Company reserves the right, at its sole discretion and without liability, to reject or remove any Advertiser Content from the Company Assets. Advertiser acknowledges that any campaign may be terminated or suspended, whether by Company or its Media Partners, at any time and without notice to Advertiser. Advertiser hereby acknowledges that Company is acting as an intermediary between Advertisers and Media Partners and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties.
6.4 Advertiser acknowledges and agrees that Company may collect information about End Users which includes, but is not limited to personally identifiable information as well as behavioral information for Company’s commercial or internal use.
6.5 Advertiser warrants and represents that when serving advertising content to End Users in connection with the Advertiser's Content, Advertiser shall make commercially reasonable efforts to: provide the End User with disable functionalities that end the session of the promotional Content and do not trigger new promotional Content; and provide the End User with opt-out instructions.
6.7 Advertiser represents and warrants: (i) it will submit Advertiser Content in accordance with any technical specification provided by the Company; (ii) Any information the Advertiser provides the Company, including contact information and payment information, will at all times be accurate and in full, and will be maintained at all times; (iii) Advertiser will not promote any mobile applications which are not available for download on the applicable Store. Upon application removal from the Store, Advertiser shall immediately inform Company.
7.1 Company will provide a monthly invoice based on the payment model agreed upon between both parties in the Insertion Order. Payment will be due within thirty (30) days of the last day of the billable month. All Payments shall be calculated as detailed in the Insertion Order.
7.2 Advertiser is to send to Avow any disputes relating to the measurement or calculation of any Action by email specifying the reason for such objection and including evidence to support the objection, by the 5th of the calendar month following the month in which the invoice was issued. If no objection has been submitted within the foregoing time period, the Action shall be deemed as accepted by Advertiser and billed accordingly. Any portion of a charge not disputed in good faith must be paid in full.
7.3 Advertiser will have no right to setoff, withhold or otherwise deduct any amount owed to Company hereunder (and accordingly transfer to Company when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by Company to Advertiser (under any theory of liability).
7.4 The Company reserves the right to charge additional fees and interest for the delay of payments. Avow will add a 50 EURO surcharge per late invoice, plus 2.5% interest on any overdue invoices past sixty (60) days. If Advertiser fails to make payment, Advertiser is responsible for all reasonable expenses, including attorneys' fees, incurred by Company in collecting such amounts.
7.5 Advertiser is solely responsible for paying all applicable taxes, duties or charges that may be imposed by any applicable governmental regulation, or any authority governing taxation in connection with the Agreement.
7.6 All payments under this Agreement will be in U.S. Dollars unless agreed otherwise and inclusive of any applicable taxes, including or any other national, state or local tax, VAT.
7.7 Advertiser will provide the Company with accurate and complete billing information including a valid credit, debit card or any other payment method as further detailed in the Insertion Order. If payment is made via a credit or debit card, Advertiser authorizes the Company to charge all Payments incurred to the designated card and acknowledges that periodic (monthly or annual) payments may be charged automatically and without separate authorization unless otherwise provided on an applicable Insertion Order.
8.1 Nothing in this Agreement shall limit or exclude the liability of either party, provided that the claims giving rise to liability arise out of: i) infringements of life, ii) body or health; or iii) the assumption of a guarantee or of a procurement risk; iv) or the German Product Liability Act; or v) intentional or grossly negligent conduct of Avow or of its statutory agent or other persons which Avow may periodically involve in the service of its obligations towards Advertiser; or vi) violations of material contractual duties, the fulfillment of which is necessary in order for the contract to be executed and in the compliance with which the respective other Party typically places reasonable confidence.
8.2 Unless where Avow’s liability is unlimited as stated, the liability of Avow to Advertiser, as well as the liability to Publisher of any agents of Avow, employees or other persons which Avow may, periodically, involve in the performance of its obligations towards Advertiser, shall, whether arising out of contract or statute, be limited to the amount that, taking into account the nature and type of the parties’ contract, in particular its volume, constitutes the damages that are typically foreseeable or, alternatively, 50,000.00 EUR, whichever is greater. On no account shall Avow’s agents, employees or any other person which Avow may involve in the performance of the parties’ contract or contracts be liable towards Advertiser for actions or omissions for which Company’s liability is excluded hereunder or shall quantum-wise be liable in excess of Company’s liability.
During the Term of this Agreement and for four (4) years after, each Party agrees that it will not disclose or use the Confidential Information of the disclosing party without the disclosing Party's prior written consent.
10.1 Advertiser agrees, at its own expense, to indemnify, defend and hold harmless Avow, its employees, representatives, agents and media partners, against any and all expenses and losses of any kind incurred by Avow in connection with any claims, administrative proceedings or criminal investigations of any kind arising out of the publication of the advertisement and/or any defamation, privacy violation, false or deceptive marketing practices.
10.2 Advertiser hereby indemnifies and holds Avow harmless from and against all claims arising to any third party against Avow due to infringement of warranties and obligations by Advertiser. Advertiser is liable for any damage in this connection and the costs incurred by Avow for legal action. This shall not affect any further claims Avow may have. Advertiser shall, upon instance and demand by Avow or any third party nominated by Avow, make whatever in-court or out-of-court declarations and provide whatever documents are required to defend against third-party claims.
11.1. Advertiser recognizes that Avow has proprietary relationships with Media Partners. Advertiser agrees not to circumvent, solicit or contract Company's relationship with such Media Partners, or obtain services similar to the services performed by Company hereunder from any Media Partners that is known, or should reasonably be known, by Advertiser to have a relationship with Avow, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement.
11.2. Advertiser agrees that monetary damages for a breach of this section will not be adequate by themselves and that Company shall be entitled to damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, for the previous twelve (12) month period. If the period is shorter than twelve (12) months the amount due will be calculated based on the true duration of the partnership to an equivalent of 12 months. Advertiser has the right to prove that no or only substantial lower damages occurred and Company has the right to prove that higher damages occurred.
Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.
13. Force Majeure
Neither party will be responsible for delays caused by acts of god, embargoes, war or any other circumstances beyond its control.
If any provision of agreement should be held to be void, invalid or unenforceable, in whole or in part the validity of the remaining provisions shall remain unaffected hereby. Such provision or part thereof shall be treated as severable and shall be modified so as to be enforceable to the fullest extent allowed by law and shall be replaced by a provision that comes as close as possible in terms of economic and legal effect to the replaced provision. The same shall apply to gaps, if any.
15. Governing Law
This Agreement and any related matters shall be governed by the laws of the Federal Republic of Germany. The courts of Berlin, Germany shall have jurisdiction, to the exclusion of any other court; however, Company is entitled to file a claim at the domicile of Advertiser as well.