INTERNET ADVERTISING TERMS AND CONDITIONS
These Internet Advertising Terms and Conditions ("Terms") govern the Insertion Order attached hereto ("IO") that was entered into by and between Mirelia Services Co., reg. # 93264, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 ("Customer") and the company listed in the IO ("Provider") (the IO, together with these Terms, the "Agreement").
The Provider is in the business of digital marketing carrying on its activities either through its own direct efforts, or operating an affiliate network comprised of third party marketers by and through which the Provider has the contractual right to display or deliver advertisement.
The Customer is in the business of the websites operation, wishes to place advertisements on the Internet and to engage the Provider for this purpose.
NOW, THEREFORE, as and for a good and adequate consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree to be legally bound as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement:
1.1.1. "Ad" means advertising provided by Customer
1.1.2. "Adware" means any application that (i) causes advertising to pop-up as a new window (over or under the active window) on the user's computer either randomly or based on the user's online activity (other than advertisements a web site serves to users to such site's own domain while those users are visiting or exiting such domain), or (ii) is used to distribute Spyware, in each case regardless of whether the user consented to install such application.
1.1.3. "Affiliate" means each of Provider's sub-publishers, affiliates and advertising syndication partners.
1.1.4. "Lead" means completion of registration of a unique male human Internet user aged 18+ located in the United States or another geography agreed by the parties (unless otherwise agreed by the parties) on a web-site designated by the Customer after such user has clicked on an Ad Material placed by (or on behalf of) the Provider on a web-site, in each case in accordance with this Agreement.
1.1.5. "Unit" means the inventory delivered under this Agreement (e.g., Leads, clicks, impressions, or other desired actions).
1.2. For purposes of this Agreement, capitalized terms used and not defined in this Section 1 shall have the respective meanings ascribed to them in other clauses of the Agreement.
1.3. In the Agreement, a reference to a statute or statutory provision includes a reference to that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and any subordinate legislation made under that statute or statutory provision.
1.4. The Section headings do not affect the interpretation of the Agreement.
2. CAMPAIGN AND AD MATERIALS
2.1. Pursuant to the IO, the Provider agrees to distribute the Ads in accordance with the specifications described in the IO ("Campaign").
2.2. Unless specified in the IO, the Customer is responsible for providing to the Provider the banners, buttons, text-links, URLs, subject lines and artwork for promotional e-mail, graphic files and/or similar online media (collectively, "Customer's Materials") required for the Provider to run the Campaign.
2.3. The Provider and its Affiliates shall be prohibited from materially modifying the Customer's Materials or the Provider's Materials (collectively, "Ad Materials") without the Customer's approval. The file size of the Ad Materials provided by Customer may be optimized without Customer approval, provided that such optimization does not materially degrade the physical appearance of the applicable Ad Materials. Provider shall be permitted to add necessary footers for CAN-SPAM compliance should Customer not include them in their Ad Materials.
2.4. The Provider will distribute the Ad Materials and market the Campaign using its technology infrastructure. The Provider and its Affiliates (if any) shall make the editorial decisions regarding the placement, positioning and frequency of the Ad Materials distribution and other aspects of the Campaign, as agreed with the Customer.
2.5. Unless specified in the IO, each and every Affiliate may be involved to the Campaign only after the express Customer's approval. If the traffic within the Campaign shall be generated by efforts of an internal team of the Provider, the Customer shall pre-approve a complete list of relevant team members IDs, who will be involved to the Campaign.
2.6. The Provider acknowledges and agrees and shall procure the same with regard to the Affiliates that the Provider's Materials approved by the Customer (and all rights therein, including, without limitation, copyright) belong to and shall be the sole and exclusive property of the Customer since their creation.
2.7. The Customer hereby grants to the Provider and its Affiliates a nonexclusive, limited, revocable license to display, perform, distribute, transmit and copy the Ad Materials in connection with the Campaign as contemplated by the Agreement. Any advertising and marketing rights in and to the Ad Materials not specifically granted to the Provider pursuant to the Agreement are specifically reserved by the Customer.
3. CAMPAIGN LIMITATIONS
3.1. The Provider shall ensure that the following limitations are adhered to within the Campaign:
3.1.1. No torrent traffic
3.1.2. No rebrokering offers.
3.1.3. No brand bidding allowed.
3.1.4. No virus or fraud traffic allowed.
3.2. If the email marketing is prohibited in the IO, the Provider shall ensure that no electronic mail is being sent to any internet users for the purposes of generating Units from such Internet users (or encouraging them to generate such Units).
3.3. If the email marketing is allowed in the IO, the Email Compliance Annex shall apply.
4. PAYMENTS, TRACKING AND ANTI-FRAUD
4.1. The Customer agrees to pay the Provider for all tracked Units legitimately caused by Campaign placements.
4.2. The reporting of the Campaign will be based on the number of Units as shown by the tracking system specified in the IO.
4.3. The Customer reserves the right not to pay for any of the following Units:
4.3.1. That is fraudulent, including without limitation for any Unit that is: (i) generated by means of any device, program, or robot; (ii) generated using stolen credit cards; or (iii) manually created in bad faith by the Provider or an Affiliate with the direct intent to artificially inflate amounts payable by the Customer (collectively, "Fraudulent Units").
4.3.2. Generated through or as a result of (i) any Adware, Spyware or Drive-by Download applications or (ii) the modification in any manner of the Ad Materials.
4.3.3. Generated as the result of any incentive, reward or similar program offered by or through the Provider in exchange for such Unit ("Incentivized Units").
4.3.4. Generated through Affiliates unapproved by the Customer (if separately agreed by the parties via email).
4.3.5. Reasonably believed by the Customer to be located outside of the targeting geography specified in the IO.
4.3.6. Generated by or in connection with any advertisement, web site or application which infringes upon the intellectual property rights of any other third party.
4.3.7. Which the Customer reasonably deems to have occurred in connection with a breach of the terms of this Agreement.
4.4. The Customer (basing on the data from the internal anti-fraud systems, among other things) shall communicate to the Provider about any Unit set forth in Section 4.3 above and provide relevant supporting details (at the discretion of the Customer) within 15 days after its generation, otherwise such Unit shall be payable.
4.5. The necessity of proof that any Unit does not fall within the scope of Section 4.3 above shall lie with the Provider. Customer shall provide reasonable evidence of any fraudulent or noncompliant leads to Provider upon request.
4.6. The date of the initial invoice issuance and the billing schedule shall be specified in the IO.
5.1. Each party represents and warrants to the other (i) that it has the right, power, and authority (corporate or otherwise) to execute, deliver, perform, and carry out all its actions contemplated by this Agreement; and (ii) that its obligations will be performed in compliance with all applicable laws, regulations, and rules, and the ethical guidelines of the Data & Marketing Association.
5.2. Provider Representations. The Provider further represents, warrants and covenants to the Customer that (i) it restricts its Affiliates, systems, employees, agents or contractors from generating Fraudulent Units or Incentivized Units, has safeguards in place and shall immediately notify the Customer if it has any reason to believe that Fraudulent Units or Incentivized Units might be occurring; (ii) all sites on which the Ad Materials are or will be displayed by the Provider or the Affiliates, the material or content posted thereon (and/or included therein), and the method of delivering advertising hereunder do not violate any law or any intellectual property or other proprietary right of any third party and do not contain any content which may reasonably be considered unlawful, harassing, libelous, abusive, threatening, harmful, indecent, fraudulent or tortuous; (iii) its Affiliates shall fully comply with the terms of this Agreement; and (iv) it shall cooperate fully with the Customer in the event the Customer alerts the Provider that it has a belief that an Affiliate is violating the terms of this Agreement, such cooperation to include, without limitation, providing the Customer with a means of identifying and/or contacting any suspect Affiliates, providing Customer with an audit of any bounties or other payments made or owing to such suspect Affiliates, and maintaining any suspicion or investigation by the Customer of an Affiliate confidential.
6.1. The Provider shall indemnify and hold the Customer and its affiliates and each of their employees, officers, directors, shareholders, contractors and agents harmless from any and all liability, loss, damage, expense, claim, or cause of action, including, without limitation reasonable legal fees and expenses, arising out of or related to: (i) Provider's products or services; (ii) any unauthorized alteration of any Ad Materials by the Provider; (ii) any breach by the Provider, of any of the Provider's representations, warranties or obligations contained in this Agreement.
6.2 The Customer shall indemnify and hold the Provider and its affiliates and each of their employees, officers, directors, shareholders, contractors and agents harmless from any and all liability, loss, damage, expense, claim, or cause of action, including, without limitation reasonable legal fees and expenses, arising out of or related to any breach by the Customer of any obligations contained in this Agreement.
7. LIMITATION OF LIABILITY
7.1. Nothing in the Agreement will exclude or limit either party’s liability: (i) for death or personal injury resulting from the negligence of either party or their servants, agents or employees; (ii) for fraud or fraudulent misrepresentation; (iii) for payment of sums properly due and owing to the other in the course of normal performance of the Agreement; or (iv) for any other liability that may not otherwise lawfully be excluded or limited.
7.2. Subject to Section 7.1, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise) for any: (i) loss of profit; (ii) loss of anticipated savings; (iii) loss of business opportunity; (iv) loss of or corruption of data; or (v) indirect or consequential losses; suffered or incurred by the other party (whether or not those losses were within the contemplation of the parties at the date of the Agreement).
7.3. The parties’ liability under the Agreement shall not exceed the aggregate fees paid and payable to Provider by Client under the Agreement for the six (6) month period preceding the date the first liability arose.
8. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
8.1. Any marked confidential information and proprietary data provided by one party, including the Ad Materials description, and the pricing set forth in the IO, shall be deemed "Confidential Information" of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
8.2. All personally identifiable information provided by individual web users in the course of this Agreement is the property of the Customer and is considered Confidential Information. Any other use of such information must be set forth in the IO signed by both parties.
8.3. The Customer, the Provider and Affiliates will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
9.1. The Provider shall not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Customer's prior written approval will be null and void. All terms and provisions of these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
9.2. The IO and these Terms constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement. The Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
9.3. In the event of any inconsistency between the terms of the IO and these Terms, the terms of the IO shall prevail.
9.4. The Agreement shall be governed by the laws of Cyprus. The Parties agree that any controversy or claim arising out of or relating to Agreement, or the breach thereof, shall be determined by courts of Cyprus.
9.5. This Agreement may be amended by the Customer from time to time unilaterally. All amendments shall be in force following the date of publication on the web-site mirelia.co.
9.6. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
9.7. All notices, requests, demands, and other communications hereunder will be in writing and will be deemed given at the time such communication is sent by registered or certified mail, or recognized national overnight courier service, or delivered personally, or received via email or confirmed facsimile to the addresses of the parties indicated in the IO.
9.8. The provisions of this Agreement which expressly or by their nature survive expiration or termination of this Agreement will remain in effect after the expiration or termination of this Agreement.
9.9. It is the intention of the parties hereto to agree to these Terms by execution of the IO.
EMAIL COMPLIANCE ANNEX
1. This Annex shall be applicable together with the other terms of the Agreement if the Campaign includes any email marketing component.
2. The Provider represents and warrants that, at all times, it will comply and will procure compliance of the Affiliates with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, the CAN-SPAM Act and any international laws, rules and regulations), as well as any published rules or guidelines of the IAS networks, domains and/or e-mail service providers, with respect to the email marketing. Restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Affiliates with or without notice from the Provider of such change in the law.
3. The Provider acknowledges that any failure to comply with this Annex may, in Customer's sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any payments otherwise owed to the Provider by the Customer.
4. The Provider shall not, and shall ensure that each of Affiliates do not: (i) falsify email header and transmission information (including, without limitation, source, destination and routing information); (ii) use any "subject" or "from" line that is materially false or misleading; and (iii) seek or obtain unauthorized access to computers for the purpose of sending any and all commercial email.
5. The Customer shall provide the unique link capable of generating Leads under this Agreement (the "Unique Link") to the Provider.
6. The Provider agrees to ensure that all transmitted electronic mail messages that contain the Unique Link ("Provider's Emails") are compliant with all applicable state and federal statutes, rules and regulations, including, without limitation, the CAN-SPAM Act and all other laws governing deceptive trade practices and/or online marketing and/or advertising. In particular, Provider's Emails shall include the following: the Customer's valid physical address, a fully functional "Opt-Out" mechanism, a non-misleading and accurate "Subject Line", and an accurate and non-misleading "From Line". In addition, in the body of the email it shall be clearly and conspicuously identified that an electronic message is an advertisement or solicitation. The Provider shall immediately decline any content, text, materials or instructions provided by the Customer with respect to the Provider if distribution of such content, text, or materials or acting upon such instructions would result in a breach of the CAN-SPAM Act of 2003.
7. The Customer shall maintain a master suppression list that consists of the email addresses of all recipients that have activated Customer's unsubscribe link or otherwise asked to be removed from Customer's email list.
8. If a suppression list management system is not specified in the IO, the Customer shall provide the master suppression list to the Provider at the start of the Campaign, and shall update and send such suppression list in real time or, if not possible to send in real time, at least once a week, to the Provider each time a user has requested to be unsubscribed (through the link or otherwise) in the format specified by the Provider to enable the Provider and its Affiliates to sync up their master suppression lists against the Customer's suppression list. Prior to each email distribution for the Campaign, the Provider shall run, and require its Affiliates to run, the Customer's then-current suppression list against the contemplated email distribution list(s) for that Campaign.
9. If a suppression list management system is specified in the IO, prior to each email distribution for the Campaign, the Provider shall run, and require its Affiliates to run, the contemplated email distribution list(s) for the Campaign against the Customer's then-current suppression list stored by a relevant suppression list management system provider.
10. The Provider represents and warrants that neither it nor its Affiliates will remarket, resell, or otherwise distribute any Customer's suppression list to any other party for any purpose other than to permit suppression against existing email lists.
11. The Provider shall assure that the email address communicated by the Customer to the Provider (if any) is always included into the email list(s), which is (are) or will be used for promotion under the terms of this Agreement.
12. If the Customer suspects the Affiliates in spamming activities or other CAN-SPAM Act violations, it should have the right to report its concerns immediately to the Provider. The Customer agrees to give the Provider a minimum of 48 hours to address the complaint and respond to the Customer with feedback.
13. The Provider will make commercially reasonable efforts to obtain opt-in information, including opt-in source, date, IP address, from any Affiliates that the Customer suspects are spamming or otherwise violating the CAN-SPAM Act. The Affiliates refusing to supply such information shall be terminated.