AVOW Media Partner Terms and Conditions

These Terms and Conditions are a legally binding and enforceable agreement between Avow GmbH located at Am Treptower 21, 12435 Berlin, hereby referred to as (“Company”) and you (“Media Partner”) and apply to a Media Partner's participation in Company's Publisher program. 

1. Definitions

1.1 "End User" means end human user who interacts with the Media Partner's advertising assets.

1.2 “Action” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, etc. as defined in the Insertion Order, provided that the Action was performed by an actual human end user, which is not illegitimately computer generated in the normal course of using a mobile device.

1.3 “Account” is defined as an online, password protected Publisher account allowing Media Partner to manage its advertising revenues generated via the Company platform.

1.4 "Advertising Material" graphic and text links to specific websites or other creative or promotional materials, including without limitation, any website or information including additional advertisements, to which the creative material may link to, if applicable, as provided by Company's upstream advertisers.

1.5 "Advertising Network" is a network of registered third party affiliates and publishers ("Media Partners") run by the Company, utilizing related technology and software.

1.6 "Claims" means claims, suits, demands and actions brought or tendered for defense or indemnification.

1.7 "Media Partner Assets" means software application, service, web pages or digital placements owned by Media Partner or properly licensed to Media Partner and emails send by Media Partner which clearly identify Media Partner.

1.8 "Confidential Information" means any non-public, proprietary, confidential and/or trade secret information of a Party, whether furnished before or after the Effective Date, as listed in the applicable Insertion Order, and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, compensation amounts (payouts), technology and any related documentation, client list, developments, business partners or other information disclosed the Disclosing Party to the Receiving Party either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment.

1.9 "End User" means human end user who interacts with the Media Partner's Assets.

1.10 "Insertion Order" means a document (including an online registration page or order form) executed by both parties that specifies custom pricing and additional terms.

1.11 "Losses" means damages, losses, costs, and liabilities, including reasonable attorney and professional fees, arising from a Claim.

1.12 "Objectionable Content" means any Content that is: (a) false, deceptive, misleading, infringing upon any applicable law, impersonating others, fraudulent, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit, politically sensitive or controversial in nature; (b) adult content, including pornographic material; (c) racist, excessively profane, ethnically offensive, threatening, infringing, excessively violent, discriminatory, hate-mongering or otherwise objectionable content; (d) defame, abuse, or threaten physical harm to others; (e) any type of harmful applications or components which intentionally create or exploit any security vulnerabilities in an End User's device, including without limitation: viruses, spyware, malware, spamware or any other malicious code or conduct; (f) advocate or facilitate violence of any kind; (g) related to gambling of any kind; (h) any content which is targeted at or designed to appeal to minors.

1.13 "Qualified Action" means an Action, excluding any Action by an End User which: (1) is using pre-populated fields; (2) does not complete all the information required for such Action within the timeframe allowed by Company; or (3) is determined, by Avow’s sole discretion, to be fraudulent, incomplete or duplicate.

1.14 "Fraudulent Activity" shall mean: (a) the display, promotion, distribution or interaction with the Advertising Material in a manner which engages with anything other than natural persons viewing actually displayed Advertising Material in the normal course of using any device, including without limitation, browsing through online, mobile or any other technology or platform, as determined by Company at its sole discretion which may lead to falsely generated or artificially inflated revenues; (b) the automatic redirection of visitors, blind text links, misleading links, forced clicks, etc. from the Advertising Material. Without limiting the foregoing, Fraudulent Activity shall include any of the following practices: (i) inclusion or counting of views or clicks: by a natural person who has been engaged for the purpose of viewing the Advertising Material, whether exclusively or in conjunction with any other activities of that person (including, without limitation, employing any means to induce, encourage, incentivize (unless such incentivized traffic or means were pre-approved specifically by Company) or trick the End User into viewing or clicking on the Advertising Material); and/or by non-human visitors (such as bots); and/or that are not actually visible to the human eye, discernible to human senses or perceived by a human being; (ii) masking or cloaking any URL, or employing any means to obscure the true source of traffic, or conceal conversions; (iii) generating automated, fraudulent or otherwise invalid impressions, inquiries, views, clicks or conversions, or artificially inflating impressions, inquiries, views, clicks, or conversions, or employing any misleading or practices (such as repeated manual clicks); (iv) Installing or transmitting malicious code; (c) displaying the Advertising Material in a misleading or non-viewable manner.

1.15 “Publisher Data” means any and all data shared between the parties that may include, inter alia, device information, IDs, events, and country level geo location data. The Publisher Data includes, without limitation, data deemed as Personal Data and IDs all as detailed herein.

1.16 “Data Protection Laws" 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.

1.17 "Controller", "Processor", "Data Subject", "Personal Data", "Processing" (and "Process"), “Personal Data Breach” and "Special Categories of Personal Dat" shall have the meanings given in EU Data Protection Law.

1.18 "EU Data Protection La" means the (i) 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); (iv) any legislation replacing or updating any of the foregoing (v) any judicial or administrative interpretation of any of the above, including any binding guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority.

1.19 “ID” means online identifiers such as IPs, advertising IDs, cookies and agents.

1.2 “Security Incident" means any security breach relating any Personal Data elements leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data within, Personal Data transmitted, stored or otherwise processed; including without limitation the meaning assigned to it under section 12 of Article 4 of the GDPR.


2. Platform Participation and Limited License

2.1 Media Partner will keep access data to its Account and Platform ("Account Data") strictly confidential. The Media Partner shall promptly inform Company in case it learns or suspects that an unauthorized party is in possession of the Account Data. If Company suspects that an unauthorized third party is in possession of the Account Data, Company may, at its sole discretion, change the Access Data or block the applicable Account. In case an unauthorized third party uses, through Media Partner's fault, the Access Data, then Media Partner will be liable for all actions done through the access to the Account and Program.

2.2 Company will make available to Media Partner the Advertising Material for Media Partner to display on any of the Media Partner's Assets.

2.3 Display of Advertising Material by Media Partner will include identification of Media Partner as a member of Company’s Program and will provide a link to the Program's site.

2.4 Company grants Media Partner a non-exclusive, non-transferable, revocable right to use the Advertising Material and access the Company's website solely in accordance with the terms of the Agreement, and for the sole purpose of identifying the Media Partner's Assets as a participant in the Program.

2.5 Company may revoke Media Partner's license at any time, at its sole discretion, if Company determines that Media Partner has breached any of the terms of the Agreement.

2.6 Company may change, suspend or discontinue any aspect of the Advertising Material or remove, alter or modify any tags, texts, graphics or banner ad in connection with Advertising Material. Media Partner agrees to promptly implement any request from Company to remove, alter or modify any link, graphic or banner ad that is being used by Media Partner as part of the Program.

2.7 If Media Partner operates a network ("Network") of its own media partners ("Third Party Media Partner"):

2.7.1 Media Partner will not broker Advertising Material within its Network without prior written approval from Company.

2.7.2 Media Partner will maintain the Network in accordance with the highest industry standards. If a Third Party Media Partner operates its own network:

2.7.3 Media Partner must receive Company's prior written approval for each applicable Third Party Media Partner network;

2.7.4 Media Partner will forbid Third Party Media Partner to modify the Advertising Material in any way;

2.7.5 Media Partner will ensure that Third Party Media Partners will not display or be associated with objectionable content;

2.7.6 Media Partner will ensure that Third Party Media Partners will affirmatively accept terms which are at least equivalent to those in the Agreement prior to obtaining access to the Advertising Material;

2.7.7 If a Third Party Media Partner breaches any of the terms above: (i) Media Partner will immediately remove the Third Party Media Partner from the Network; (ii) Media Partner will notify Company and provide Company with the identity and contact information of the Third Party Media Partner. For the avoidance of doubt, a breach by a Third Party Media Partner shall be considered a breach of this Agreement and will entitle the Company to act, inter alia, in accordance with the provisions of Article 7.3 and 7.4 of the Agreement.

 

3. Restrictions

Media Partner shall not, or not allow any third party, to: (i) infiltrate, hack, copy, create derivative works of, reverse engineer, decompile, or disassemble or otherwise attempt to interfere with the proper operation of the Advertising Material or Advertising Network, or any part thereof for any purpose and shall not simulate or derive any source code or algorithms from the Advertising Network; (ii) represent that it possess any proprietary interest in the Advertising Material or Advertising Network, or remove any notices or copyright information from the Advertising Network; (iii) attempt to sell, resell, sublicense, modify, transfer, lease, assign, pledge, or share its rights under this Agreement; (iv) use any robot, spider, or other device to retrieve, index, scrape, data mine, or in any way gather information, Advertising Material, or other materials from the Advertising Network; (v) take any action, directly or indirectly, to contest the Company's intellectual property rights or infringe them in any way, including without limitation, using the Confidential Information to develop, enhance or operate a service that competes with the program, or assist any other party to do so; (vi) except as specifically permitted in writing by the Company, use the name, trademarks, trade-names, and logos or other proprietary rights of the Company; (vii) use the Program for any Fraudulent Activity or other unlawful, harassing, intrusive or abusive activities, or for any unauthorized purposes; (viii) place any links to the Advertising Material in chat rooms or bulletin boards, unless pre-approved by Company in writing.

 

4. Media Partner Representations and Warranties

4.1 Media Partner hereby represents and warrants that: (i) any and all activities or obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, privacy laws and will not engage in Fraudulent Activity; (ii) Company reserves the right to audit all Media Partner delivery and initiate charge backs if either it or the Advertiser deems delivery to be fraudulent due to install occurring in less than twenty (20) seconds, or more than seventy percent (70%) of installs during any consecutive twenty-four hour period are received within one hour from the initiated click, or the click to install timeframe remains less than 0.25% during any consecutive twenty-four hour period. (iii) Media Partner is in compliance with all applicable laws, rules and regulations as well as industry best practices, including, without limitation, the Children's Online Privacy Protection Act of 1998 ("COPPA") and CAN-SPAM Act of 2003 or any other applicable legislations or regulations relating to marketing; (iv) Media Partner's Assets do not infringe the intellectual property rights of third parties or contain any Objectionable Content; (v) Media Partner's Assets do not collect, use or transfer the data of End Users in any manner not clearly and accurately disclosed pursuant to a privacy policy that complies with applicable laws and regulations; (vi) Media Partner's privacy policy will inform End Users (and receive their consent, if required) that Company or Advertisers may store user data and usage data which they collect automatically or through forms, may use such data to optimize offers and service, perform statistical or market research and may use email addresses or other contact information for marketing and promotions (vii) Media Partner's Assets do not contain Malicious Code.

4.2 Media Partner acknowledges that in case of a material breach of this Agreement, Company reserves the right to disclose Media Partner's identity and contact information to applicable law enforcement agencies, regulatory authorities or any relevant third party which has been directly damaged by Media Partner's actions or lack thereof.

 

5. Company Representations and Warranties

5.1 Company hereby represents and warrants that it has the skills and will use reasonable efforts to perform its obligations hereunder as best as commercially possible. Company does not have any obligation to provide a certain amount of Advertising Material or monitor any Advertising Material made available through or in connection with the Advertising Network, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of any such Content.

5.2 Company reserves the right, at its sole discretion and without liability, to reject or remove any Advertising Material from the Advertising Network. Media Partner acknowledges that any campaign may be terminated or suspended, whether by Company or its upstream Advertisers, at any time and without notice to Media Partner.

5.3 Media Partner 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 third parties (including with respect to the content of the Advertising Material).

5.4 Company takes reasonable measures to protect its systems, including the Advertising Network, against viruses, spyware and other forms of Malicious Code. However, Media Partner acknowledges that Malicious Code can never be completely prevented, so Media Partner is responsible to protect its data and its systems against unauthorized access and Malicious Code and will make its End Users waive, as far as legally permissible, on all potential claims against Company based on Malicious Code.

 

6. Mutual Representations and Warranties

Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (iii) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms; (iv) it is the owner or has all legal rights and interest in its software, components, material or Content; and (v) to the best of its knowledge its software, components, material or services does not infringe or misappropriate the intellectual property or other proprietary rights of any third party when used by the other Party in accordance with the terms of this Agreement.

 

7. Payment

7.1 Company will pay Media Partner for each Qualified Action, as defined in the applicable Insertion Order. Payments due to Media Partner will be calculated and based only on Company's tracking systems, which shall be considered final and binding, and no other measurement or statistics of any kind shall be accepted or have any effect. Company will automatically generate an invoice on behalf of Media Partner based on the above calculation and will remit payment based on such invoice.

7.2 Company will issue payment on a monthly basis, provided that Media Partner's Account balance is greater than USD 1000. If the balance in the Media Partner's Account is lower than USD 1000, then the balance will be carried on to the following month and will continue to do so until a balance of USD 1000 is reached.

7.3 Payments shall be made solely for Qualified Actions and Company will not be obligated to remit payment, and will be entitled to withhold payment or demand a refund (in the event that Considerations have already been paid): (a) in connection with payments that were not fully remitted to Company from its Advertisers, or approved by Advertisers; (b) if determined, by Company, at its sole discretion that Media Partner has engaged in Fraudulent Activity, was in breach of this Agreement or that payments were paid for Qualified Actions that are later determined to have not met the requirements set in this Agreement to be a Qualified Action.

7.4 Company reserves the right to deduct, set off, claw back or charge back any amount payable or that was actually paid to Media Partner from Media Partner's Account, if applicable. If Media Partner's Account balance is not sufficient to cover the amount of the Charge Back, then Media Partner is obliged to transfer the amount of the Charge Back to Company no later than seven (7) days following Company's demand. Company may demand Charge back: (i) accordance with Article 7.3 above; (ii) if Company is required to refund third parties in connection with the Advertising Material. The Charge Back right will also apply to outstanding balances due to Company under any other agreement between the parties.

7.5 Media Partner may submit to Company disputes regarding discrepancies in tracking of Qualified Actions. Disputes must be submitted within three (3) days following the end of each calendar month. If the Dispute shows a variation of over 10% and the tracking by Media Partner is done using generally accepted industry methods, then Company and Media Partner agree to make a good faith effort to resolve the Dispute. If the parties are unable to resolve the Dispute, then Company’s calculation shall govern.

7.6 Media Partner will have no right to set-off, 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).

7.7 All payments due to Media Partner under this Agreement will be in U.S. Dollars unless agreed otherwise and exclusive of any applicable taxes, including or any other national, state or local tax expressly VAT taxes. Media Partner will be responsible for all Taxes and any related interest and penalties resulting from any payment made hereunder, other than any taxes based on Company's net income.

 

8. Intellectual Property

8.1 Except as otherwise agreed in the Agreement, Media Partner shall have all right, title and interest in its intellectual property. Company retains all right, title and interest in the intellectual property rights in the platform and Advertising Network.

8.2 Nothing herein shall be interpreted to provide Media Partner any rights to the platform or Advertising Network except the limited license granted by Platform enrollment.

8.3 Media Partner shall only use Company's trade names, trademarks, service marks, logos or other distinctive brand features as set out in this Agreement.

 

9. Term and Termination

9.1 This Agreement shall become effective as of the date that Company approves Media Partner's application to the Platform, as specified in the Agreement, and shall remain effective until terminated pursuant to this section and as further provided in the accompanying Insertion Order.

9.2 Either Party may terminate this Agreement without any liability to the other party by providing written notice to the other Party.

9.3 Following the termination of the Agreement, any provisions of the Agreement that in order to fulfill their purpose need to survive the termination of the Agreement, shall survive.

9.4 If the Agreement has been terminated by Company due to: (i) Fraudulent Activity of Media Partner; or (ii) a breach of Media Partner's obligations and representations under this agreement which have not been remedied within seven (7) days following a written notice by Company (including without limitation, breaches regarding maintain the quality of traffic provided via the Media Partner's Assets); then Company shall be entitled to withhold all considerations still due and owing to Media Partner at the date of termination.

9.5 In the event of any termination:

9.5.1 Each Party will have no obligation to maintain any information stored in its data centers related to the other Party.

9.5.2 Media Partner will cease representing itself a part of the Program or Advertising Network.

9.5.3 All rights, licenses and obligations of the Parties shall cease, except that all obligations that accrued prior to the termination and remedies for breach of this Agreement shall survive.

9.5.4 Confidential Information of either party which is in the possession of the other party shall be immediately returned. If the Confidential Information is not returned, it should be maintained confidential in accordance with article 14.

 

10. Data Protection and Processing

10.1 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. The obligations hereunder do not apply to aggregated reporting or statistics information a party may collect from end users or provide to the other party.

10.2 In relation to all Publisher Data, the Company acknowledges that, as between the parties, Publisher is the Controller of Company Data, and that the Company, in providing the services is acting as a Processor on behalf of the Controller. The subject-matter and duration of the Processing carried out by the Processor on behalf of the Controller, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subjects are described as required by Article 28(3) of GDPR:

Subject matter and duration of the Processing of Personal Data - Processing carried out in connection with the provision of the services. The duration shall be for the terms of the partnership with an additional period from the expiration of the partnership until deletion of Publisher Data by the Company in accordance with these terms.

The nature and purpose of the Processing of Personal Data - To provide the services and display advertisement on Publishers assets.

The types of Personal Data Processed - IDs

The categories of Data Subject to whom the Personal Data relates - Users/Data Subject in the EEA.

10.3 The Publisher represents and warrants that: (a) its Processing instructions comply with all applicable Data Protection Laws, the Publisher acknowledges that, taking into account the nature of the Processing, the Company is not in a position to determine whether the Publisher’s instructions infringe applicable Data Protection Laws; and (b) the Publisher hereby warrants and represents that as of the Effective Date it will comply with EU Data Protection Law, specifically with the lawful basis for Processing Personal Data. The Company represents and warrants it shall process Personal Data, as set forth under Article 28(3) of the GDPR and Schedule 1 attached herein, on behalf of the Publisher, solely for the purpose of providing the service. Notwithstanding the above, in the event required under applicable laws, the Company may Process Personal Data other than as instructed by the Publisher, in such event the Company shall make best efforts to inform the Publisher of such requirement unless prohibited under applicable law.

10.4 It is agreed that where either party receives a request from a Data Subject or an applicable authority in respect of Personal Data Controlled or Processed by the other party, where relevant, the party receiving such request will direct the Data Subject or the authority to the other party, as applicable, in order to enable the other party to respond directly to the Data Subject’s request. Each party shall reasonable cooperate and assist the other party in handling of a Data Subject’s or an authority’s request, to the extent permitted under Data Protection Law.

10.5 The Publisher acknowledges that the Company may transfer Personal Data to and otherwise interact with third party data processors (“Sub-Processo”). Publisher hereby, authorizes the Company to engage and appoint such Sub-Processors to Process Personal Data, as well as permits each Sub-Processor to appoint a Sub- Processor on its behalf. The Company may, continue to use those Sub-Processors already engaged by the Company (as detailed in Schedule ) and the Company may, engage an additional or replace an existing Sub-Processor to process Personal Data provided that it notifies the Publisher. The Company shall, where it engages any Sub-Processor impose, through a legally binding contract between the Company and Sub-Processor, data protection obligations no less onerous than those set out in this DPA on the Sub-Processor, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR.

10.6 Each party shall implement appropriate technical and organizational measures to protect the Personal Data and its security, confidentiality and integrity and the Data Subject’s rights.

10.7 The Company will notify Publisher without undue delay upon becoming aware that an actual Security Incident involving the Publisher Data in Company’s possession or control has occurred, as Company determines in its sole discretion. Company’s notification of or response to a Security Incident under this section 3 shall not be construed as an acknowledgment by the Company of any fault or liability with respect to the Security Incident. The Company will, in connection with any Security Incident affecting Publisher Data: (i) quickly and without delay, take such steps as are necessary to contain, remediate, minimize any effects of and investigate any Security Incident and to identify its cause (ii) co-operate with Publisher and provide Publisher with such assistance and information as it may reasonably require in connection with the containment, investigation, remediation or mitigation of the Security Incident; and (iii) immediately notify Publisher in writing of any request, inspection, audit or investigation by a supervisory authority or other authority.

10.8 The Company shall make available, solely upon prior written notice and no more than once per year, to a reputable auditor nominated by the Publisher, information necessary to reasonably demonstrate compliance with this DPA, and shall allow for audits, including inspections, by such reputable auditor solely in relation to the Processing of the Publisher Data (“Audi”). The Audit shall be subject to the terms of this DPA and confidentiality obligations (including towards third parties). The Company may object in writing to an auditor appointed by the Publisher in the event the Company reasonably believes, the auditor is not suitably qualified or independent, a competitor of the Company or otherwise manifestly unsuitable (“Objection Notic”). In the event of Objection Notice, the Publisher will appoint a different auditor or conduct the Audit itself. The Publisher shall bear all expenses related to the Audit and shall make (and ensure that each of its mandated auditors makes) reasonable endeavors to avoid causing (or, if it cannot avoid, to minimize) any damage, injury or disruption to the Company’s premises, equipment, personnel and business while its personnel are on those premises in the course of such Audit. Any and all conclusions of such Audit shall be confidential and reported back to the Company immediately.

10.9 Where EU Data Protection Law applies, neither party shall transfer to a territory outside of the EEA unless it has taken such measures as are necessary to ensure the transfer is in compliance with EU Data Protection Law. Such measures may include (without limitation) transferring the Personal Data to a recipient in a country that the European Commission has decided provides adequate protection for Personal Data.

10.10 Each party shall take out and maintain insurance policies to the value sufficient to meet their respective liabilities and to meet legal requirements in their jurisdictions of operation.

10.11 In the event of any conflict or inconsistency between these Terms and Conditions and Avow’s Privacy Policy, the Company’s privacy policy shall prevail, provided only that the procedure prevailing through the privacy policy shall not constitute as a breach or infringement of any Data Protection Laws. In the event of inconsistencies between the provisions of these Terms and Conditions and any other agreements signed between the parties, these terms shall prevail.

 

11. Limitation of Liability

11.1 To the extent permitted by law, in no event shall either Party be liable to the other Party for lost profits or business opportunities, loss of use, loss or inaccuracy of data, cost of procurement of substitute goods or services, software, systems or services, or for special, incidental, indirect, punitive or consequential damages, however caused, and under any theory of liability, whether for breach of contract, or otherwise, arising from or related with the Agreement, whether or not the Party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy stated herein.

11.2 Without deviating from any of the foregoing, in no event will the Company's aggregate liability for any Claim arising out of or related to the Agreement, to the fullest extent possible under applicable law, exceed the lower of: (i) the monthly average of Consideration made under this Agreement with respect to three (3) months preceding any Claim under which such liability shall arise; or (ii) USD 10,000. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or other damages, so the above limitations and exclusions may not apply.

11.3 No action arising under or relating to this Agreement, regardless of its form, may be brought by either Party more than three (3) months after the cause of action has accrued and in any event no later than three (3) months after the expiration and/or termination of this Agreement. The foregoing limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between the parties.

11.4 Company remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).

 

12. Disclaimer of Warranties

12.1 To the maximum extent permitted by law, without derogating of any of the terms of this Agreement, the Platform is provided on an "as is" and "as available" basis, without warranties or conditions of any kind, either express or implied, including, without limitation, any warranties or conditions of title, performance, non-infringement of third party rights, merchantability or fitness for a particular purpose. In addition, Company does not represent or warrant that: (i) the Platform or any part therein will be error free or that any errors will be corrected or (ii) that the operation of the Platform or any part therein will be uninterrupted.

12.2 Company does not guarantee that the platform will always be complete, accurate, safe, secure, bug-free or error-free, or that the foregoing will always function without disruptions, delays or imperfections.

12.3 Company may change, suspend or discontinue platform activity at any time without notice or liability.

12.4 Without derogating of any of the terms of this Agreement, to the extent the incorporates any third party materials or software that belongs to one or more third parties, then the materials or software are provided "AS IS" and subject to the terms and restrictions of the applicable third party. Each Party makes no warranty whatsoever regarding the third party materials or software, without derogating of any of the terms of this Agreement.

 

13. Non-Circumvention

13.1 Media Partner, including without limitation, other entities which are controlled by Media Partner, explicitly agrees to withhold completely from entering into a business relation with or from approaching Company's clients either directly or through third parties, inter alia by disclosing our partnership, with regard to user acquisition or performance marketing services for the term of this Agreement and a period of six (6) months after the end of the Agreement, unless Company approves it in writing in advance.

13.2 Media Partner is personally responsible to follow this commitment and must not use any means to circumvent its obligation.

13.3 Breach of this clause will result in a contractual penalty to be determined by an independent court in Company's residential country and should not be less than twice the financial loss caused through this unauthorized action with a minimum fee of 1000,00 EUR.

13.4 An obligation to reimburse damages will thereby not be excluded. This also applies to any rights granted to Company by Sect. 87 ff. German Commercial Code (Handelsgesetzbuch, HGB).

13.5 In case Media Partner can prove having entered into a business relation with Company's client (the Advertisers) before entering into a business relation with Company, this clause should not be enforced.

 

14. Confidentiality

During the Term of this Agreement and thereafter, each Party agrees that it will not disclose or use the Confidential Information of the disclosing party (other than for the purpose of this Agreement) without the disclosing Party's prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the Term and for a period of five (5) years thereafter to prevent the disclosure of the other Party’s Confidential Information other than to its employees, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. The Confidentiality obligations herein shall survive any termination or expiration of this Agreement.

 

15. Indemnification

15.1 Except as otherwise set forth in this Agreement, each Party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and its shareholders, directors, officers, employees and agents ("Indemnified Party"), from and against all Claims, and for all Losses that result or arise from Claims, commenced or prosecuted by any third party against the Indemnified Party, which in whole or in part, arise from or is related to a Claim of a third party for a breach of the Indemnifying Party's representations under this Agreement, reduced to a final adverse, non-appealable judgment made by a court of competent jurisdiction and actually borne by the Indemnified Party.

15.2 The Indemnified Party will: (i) promptly notify the Indemnifying Party of any Claim; (ii) provide the Indemnifying Party, at the cost of the Indemnifying Party, reasonable information and assistance in defending the Claim; and (iii) give the Indemnifying Party control over the defense and settlement of the Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior written approval, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Indemnified Party will not be required to allow Indemnifying Party to assume the control of the defense of a Claim, in which case the Indemnified Party will assume the control at Indemnifying Party's costs, to the extent that the Indemnified Party determines that: (1) such Claim relates directly to the Media Partner's Assets (if the Media Partner is the Indemnifying Party), or to the Advertising Network (if the Company is the Indemnifying Party); or (2) the relief sought against the Indemnified Party is not monetary damages; in addition, the Indemnified Party may join in the defense of any Claim at its own expense.

 

16. Force Majeure

Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Advertising Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

 

17. Governing Law

This Agreement and any matters related hereto shall be governed by, and construed in accordance with laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for International Sale of Goods and German International Private Law are excluded. The courts of Berlin, Germany shall have exclusive jurisdiction, to the exclusion of any other court.

 

18. Severability

If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of this Agreement shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

 

19. Entire Agreement

This Agreement and applicable Insertion Order constitute the entire agreement between the Company and Media Partner with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Without derogating from the generality of the foregoing, in the event that the terms of this Agreement are in conflict to the terms of any other agreement, provision, quote, order, acknowledgment, or other communications between the parties, the terms provided herein shall prevail over such conflicting terms (even if the conflicting terms are incorporated in a written instrument signed by the parties herein after the execution of this Agreement unless the Parties specifically referred in such instrument to the name and date of this Agreement and to the amendment of its terms and conditions).

 

20. Changes to the Agreement

Company may make changes to the Agreement from time to time, at its sole discretion. The most current version will be posted on Company's website or Platform or notified by email to Media Partner. By continuing to access or use of the Company's services, as described in this Agreement after the changes become effective, the Media Partner agrees to be bound by the revised Agreement.