STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING
THIS STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING WILL BE INCORPORATED BY REFERENCE INTO ALL INSERTION ORDERS SUBMITTED TO YOU (“Advertiser”) BY CPA.ROCKS.
THESE STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING ARE A LEGAL AGREEMENT BETWEEN YOU (“Advertiser”) AND CPA.ROCKS STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR PARTICIPATION IN CPA.ROCKS NETWORK. PLEASE READ THIS AGREEMENT (“AGREEMENT” OR “TERMS AND CONDITIONS”). CPA.ROCKS RESERVES THE RIGHT TO CHANGE THIS AGREEMENT.
In these Terms and Conditions:
“Action” means a specific end user’s activity or a combination of activities specified in the Insertion Order, which may, under the conditions provided in the present Terms and Conditions, be considered a Deliverable.
«Advertiser» means a legal entity specified in the Insertion Order that places an order for the Advertising Services.
“Advertising Materials” means graphical or textual information specified in the applicable Insertion Order and aimed to promote the Product on the market.
“Advertising Services” means distribution of the Advertising Materials over the Internet using various online delivery methods with the purpose of bringing the Product to the attention of potential customers of Advertiser.
“Attribution Window” means a period of time specified in the Insertion Order that allows certain end user’s activity or a combination of activities to qualify as a Deliverable, provided that they are performed within the Attribution Window.
“Billing Model” means a method of calculating the Service Fee due to Publisher for the Advertising Services (cost per click (CPC), cost per install (CPI), cost per action (CPA), etc.).
“CPA” means a Billing Model, whereby Advertiser pays for each specified Action.
“CPC” means a Billing Model, whereby Advertiser pays when end user follows the link contained in the Advertising Materials.
“CPI” means a Billing Model, whereby Advertiser pays for each install of the particular application specified by Advertiser.
“CPM” means a Billing Model, whereby Advertiser pays for each thousand (1 000) impressions of Advertising Materials.
“Deliverable” means, depending on the Billing Model applied, the end user’s click, impression, install, Action, another activity or combination of activities, which serve a basis for calculation and payment of the Service Fee, as in more detail provided in Section 5 below.
“Double Opt-In Registration” or “DOI Registration” means a type of registration, whereby an end user fills out a registration form on Advertiser’s web page, receives a link to his/her e-mail and follows this link confirming the registration.
“Insertion Order” or “IO” means a written document that contains all necessary instructions given by Advertiser to Publisher with regard to the Advertising Services to be performed.
“Parties” means Publisher and Advertiser.
“Product” means a team-based massively multiplayer online action game specified in the applicable IO.
“Publisher» means the provider of the Advertising Services specified in the Insertion Order.
“Service Fee” has the meaning provided in Section 4 below.
Advertiser engages Publisher, and Publisher undertakes to provide the Advertising Services as specified in the Insertion Order to the benefit of Advertiser.
Publisher acknowledges and agrees that the fact of signature by both Parties of the Insertion Order represents neither Advertiser’s commitment to spend certain amount of money on the Advertising Services specified in such Insertion Order, nor irrevocable authorization by Advertiser to Publisher to perform the Advertising Services. Advertiser shall have the absolute right to immediately terminate the Insertion Order by giving a corresponding notice to Publisher via email at any time before the Advertising Services actually started.
Advertiser shall prepare and provide to Publisher Advertising Materials necessary for the provision of the Advertising Services. Not later than five (5) business days prior to the start of the Advertising Services, Publisher shall communicate to Advertiser all technical and other requirements to the Advertising Materials that Advertiser is required to take into consideration when preparing such Advertising Materials.
All Advertising Materials and other materials provided by Advertiser to Publisher hereunder shall be used exclusively for the purposes of provision of the Advertising Services.
Publisher shall ensure that all Advertising Materials render completely and function properly.
Advertiser may at any time decide to withdraw a particular Advertising Material from publication and/or replace it with any other Advertising Materials at its sole discretion. Advertiser shall notify Publisher about its decision via email and Publisher shall withdraw and/or replace the Advertising Materials as instructed by Advertiser within the time frame as indicated in the email but in no event later than forty eight (48) hours from the receipt of such email from Advertiser. Upon the withdrawal of the Advertising Materials Publisher shall have no right to use such Advertising Materials in the course of performance of the Advertising Services.
In consideration to the provision of the Advertising Services Advertiser shall pay Publisher a compensation specified in the corresponding Insertion Order (the “Service Fee”). The Service Fee might be defined as: (a) a fixed amount, or (b) might be calculated based on the rate for each Deliverable (specified in the IO or agreed via email) and the total number of Deliverables provided within each reporting period.
The Service Fee includes all direct, indirect taxes, commissions, duties, bank charges and other similar levies and expenses that may arise in connection to the present Terms and Conditions and the applicable IO. Advertiser shall pay any banking fees for outgoing bank transfers and Publisher shall pay any subsequent banking fees charged by intermediary banks and the Publisher’s bank. Publisher shall bear all other expenses relating to the receipt of the Service Fee and pay all taxes that may arise in connection therewith.
The Service Fee shall be deemed to be duly paid at the time when the funds are debited from Advertiser’s bank account specified in the applicable IO or another bank account designated for payment by Advertiser.
Service Fee shall be paid to Publisher according to the terms as specified in the applicable IO.
Payment under this Agreement shall be made in EURO. Where currency conversion or exchange is required, it shall be based upon the exchange rate as obtained from the web site ‘oanda.com’ on the date of payment.
For the purposes of the present Terms and Conditions and each applicable Insertion Order, a Deliverable shall mean the following activities:
Any activity or a combination of activities performed by end user at a source or as a result of use of a method listed as restricted in the IO shall not be considered a Deliverable and shall not form a basis for the Service Fee. Unless explicitly stated otherwise in the IO, an incentivized activity or a combination of activities of end users shall not be considered a Deliverable.
If a particular Attribution Window is specified in the IO, only activities performed within the Attribution Window shall form a Deliverable. If end user performs a particular activity or a combination of activities more than once within the same Attribution Window, only the last of such activities or a combination of activities shall form a Deliverable.
Advertiser has a right to change the Attribution Window at any time by providing a reasonable notice via e-mail.
Within five (5) calendar days after the end of the reporting period specified in the IO, Publisher shall furnish to Advertiser appropriate truthful statements with regard to the scope of the Advertising Services provided during the reporting period (the “Publisher’s Report”). Each Publisher’s Report shall be sent via e-mail and contain at a minimum such essential information regarding the Advertising Services that is required for calculation of the Service Fee due to Publisher at the end of the reporting period and such other additional information as may be requested by Advertiser. Total number of Deliverables provided within each reporting period shall be defined on the basis of the figures generated by Publisher’s automated system that monitors the provision of the Advertising Services and Publisher’s Report.
In the event that at the end of the reporting period there is a discrepancy of more than ten percent (10%) between data generated by the Advertiser and Publisher’s Report, the Parties may agree to use Advertiser’s data for the purposes of the definition of the number of Deliverables provided in the reporting period. In the event that the Parties are not able to reach an agreement with regard to which report to use (Publisher’s or Advertiser’s), the Parties may decide to involve an independent third-party specialist at Advertiser’s expense for independent verification of the correctness of both Publisher’s Report and Advertiser’s data. Upon request of Advertiser, Publisher shall grant to such specialist an unhindered free access to all necessary Publisher’s software, documents and information that relate to the provision of the Advertising Services. The purpose of such verification is to determine which report should be used as the basis for the Service Fee calculation.
In addition to the above, within forty eight (48) hours upon Advertiser‘s request sent via e-mail Publisher shall provide to Advertiser such information regarding the progress in the performance of the Advertising Services as will be requested by Advertiser (the “Upon Request Reports”).
Advertiser may at any time for or without cause cancel the Advertising Services in part or in full, whether provided by Publisher directly, or provided by Publisher through a third-party platform, by sending a forty-eight (48) hours cancellation notice to Publisher via email. The Advertising Services specified in the cancellation notice shall be considered to be cancelled in forty-eight (48) hours from the moment of receipt by Publisher of the cancellation notice from Advertiser (the “Cancellation Moment”).
In the event of cancellation of the Advertising Services Publisher shall be entitled to the Service Fee attributable to the Advertising Services actually performed as of the Cancellation Moment. Upon the Cancellation Moment Publisher shall cease the respective Advertising Services. The Advertising Services performed after the Cancellation Moment shall not be payable by Advertiser.
If the Service Fee has been paid to Publisher in advance, in the event of cancellation of the Advertising Services Publisher shall return to Advertiser the Service Fee reduced by the amount that accounts for the respective Advertising Services actually performed by Publisher as of the Cancellation Moment. Such return payment shall be performed by Publisher within fifteen (15) calendar days of the Cancellation Moment.
Advertiser and/or its licensors own and will own all right, title and interest in and to all Advertising Materials created by Advertiser to the Product and to any other materials provided by Advertiser to Publisher in connection to the provision of the Advertising Services (the “Materials”), together with any and all copyright, trade secret, trademark and other intellectual property rights in any such Materials (“Advertiser’s IP Rights”). Publisher will not contest the validity of Advertiser’s ownership rights or Advertiser’s IP Rights in and to the Materials and hereby waives any moral rights in and to Materials.
Nothing contained in these Terms and Conditions or in any Insertion Order shall be construed as an assignment or grant to Publisher of any ownership right in or to Advertiser’s IP Rights, or any other right, title or interest in or to the Materials. Any use of the Materials shall inure to the benefit of Advertiser.
In performing of the Advertising Services, each Party may be exposed to the other Party’s Confidential Information. “Confidential Information” means information that (i) is marked as confidential or proprietary, (ii) is disclosed under circumstances that would lead a reasonable person to understand that the information is confidential or proprietary, or (iii) is otherwise not known to the general public. Confidential Information may include, but is not limited to, current or future: (a) information, know-how, techniques, methods, information, concepts, ideas or trade secrets; (b) any business, marketing, customer or sales information; (c) any information relating to development, design or operation of technology infrastructure; (d) any information that is received from others that either party is obligated to keep confidential; (e) passwords or other access or security codes necessary to use or provide the Advertising Services or Deliverables; and (f) this Agreement and any communications related to it. Confidential Information may be disclosed in digital or electronic format, in writing, orally, visually, or in the form of drawings, technical specifications, or other tangible items which contain or manifest, in any form, the Confidential Information. Confidential Information does not include information that: (a) is or becomes generally available to the public without unauthorized disclosure; (b) is received by the disclosing party from a third party without restriction against disclosure; or (c) was known to disclosing party without restriction prior to disclosure.
If Publisher collects any data on the users of Advertiser’s Product, such data shall be used exclusively for promotion of the Product according to the applicable IO.
The Parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than in the performance of these Terms and Conditions and the applicable IO. Each party will use commercially reasonable standards and no less care than each party uses with its own Confidential Information to protect the other party’s Confidential Information from unauthorized disclosures for a period of five (5) years from the date of disclosure. Each party acknowledges that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.
Advertiser represents and warrants to the other that:
(a) it has the power and authority to enter into the present Terms and Conditions and into the applicable IO, and to transfer the rights as provided herein;
(b) it has no agreement or understanding with any third party that interferes with or will interfere with its performance of its obligations under the IO;
(c) the Advertising Materials will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, privacy, publicity or other intellectual property right of any third party.
Advertiser will indemnify, defend and hold Publisher and/or Publisher’s officers, directors and employees harmless, at its own expense, against any claims, actions, damages and costs (including but not being limited to attorneys’ fees and costs), arising out of or based upon: (i) a claim that Advertising Materials (when they are being provided by Advertiser), Advertiser’s website and/or technology, infringe Intellectual Property or other rights of third parties; or (ii) a breach of any representation or warranty of an Advertiser set forth herein; or (iii) a breach of any other obligations under these Terms and Conditions and the applicable IO.
Any dispute, controversy or claim arising out of or relating to these Terms and Conditions and any applicable Insertion Orders, including but not limited to formation, performance, breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the London Court of International Arbitration in accordance with its rules (LCIA).
The Parties further agree that:
The governing law of the contract shall be the substantive law of Great Britain.
Notwithstanding any other provision hereof, the applicable Insertion Order may be terminated by the Parties for or without reason by providing a termination notice via email to any of the contact e-mails not later than forty-eight (48) hours prior to the date of termination (the “Termination Date”). Publisher shall be entitled to receive its prorated fees for the duly provided Advertising Services performed up through such Termination Date. All Advertising Materials and other materials shall be returned to Advertiser and Publisher should cease use of any of such materials.
If the Service Fee has been paid to Publisher in advance, in the event of termination of the applicable Insertion Order Publisher shall return to Advertiser the Service Fee reduced by the amount that accounts for the respective Advertising Services actually performed by Publisher as of the Termination Date. Such return payment shall be performed by Publisher within fifteen (15) calendar days of the Termination Date.
Neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such Party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
In the event that either Party is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure, that Party shall use all reasonable endeavors without being obliged to incur any expenditure to mitigate the effects of Force Majeure and/or bring the Force Majeure event to a close, or to find a solution by which the Agreement may be performed despite the continuation of the Force Majeure event.
These Terms and Conditions combined with the Insertion Orders and their amendments attached hereto, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings and agreements between the Parties hereto concerning the subject matter herein.
(i) Neither Party shall assign its rights and obligations under the IO and these Terms and Conditions in whole or in part without prior written consent of the other Party, except for Advertiser, who has the right to assign its rights and obligations under the IO and these Terms and Conditions to its affiliated companies and subsidiaries without consent of Publisher; (ii) nothing contained in these Terms and Conditions and applicable IOs shall be deemed to establish any relationship of partnership, joint venture, employment, franchise or other agency or relationship between Publisher and Advertiser; (iii) neither Advertiser nor Publisher have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein; (iv) any notices under the IO and these Terms and Conditions shall be sent to the addresses set forth in the corresponding IO; (v) the waiver of any breach or default of the IO and these Terms and Conditions will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party; (vi) If any provision contained in the IO is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the Parties, and the remaining provisions of the IO will remain in full force and effect.