This agreement will commence on the effective date (which will be once the IO is signed by both parties) between Publisher/Network and FROGGIE SL, addressed at Sevilla, (Spain). Cl. Arquitectura 2 planta 7, and describes the terms and conditions of the relationship.
“Ad” means any advertisement provided by Agency on behalf of an Advertiser.
“Advertiser” means the advertiser for which Agency is the agent under an applicable IO.
“Advertising Materials and/or creatives” means artwork, copy, or active URLs for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency listed on the applicable IO.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPC Deliverables” means Deliverables sold on a cost per click basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
“Media Company” means the publisher listed on the applicable IO.
“Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company.
“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.
“Parties” means both parties, client and FROGGIE.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Media Company Properties and Network Properties.
“Terms” means these General Conditions.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads
I. INSERTION ORDERS AND INVENTORY AVAILABILITY
a. IO Details. From time to time, parties may execute IOs. As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
b. Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
c. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
a. Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
b. Forbidden sites. Notwithstanding, in no instance parties will place tags and advertisements on pornographic/offensive, and/or warez, and/or illegal MP3 sites/directories, and/or P2P (not approved by RIAA)/Bit-Torrent sites, and/or Spyware or malicious code of any sort and/or any alternatively questionable areas. Ads or tags will be not placed on websites, applications or any other form of media that may include pornographic/adult content of any kind.
c. Viewbility. Where parties have contracted to placements of Viewable Impressions, FROGGIE will not be responsible for payment of non-viewable impressions. Viewable Impressions will be determined under IAB standards for viewability found at http://www.iab.net/viewability. Desktop display ads will be considered viewable if 50% of their pixels are in view for a minimum of one second and Desktop video will be considered viewable if 50% of their pixels are in view for a minimum of 2 seconds. Larger desktop ad units, will be considered viewable if 30% of pixels are in view for 1 second.
d. Withholdings payments. In the instance of tags or advertisements being placed in such locations, FROGGIE and/or Publisher reserves the right to withhold and payments due at the time of the occurrence and/or to submit an immediate legal action against the company and/or set a financial penalty in the amount of $500 (USD), based on the damages caused to FROGGIE and/or Publisher, for each and every occurrence of the same.
1.- As a Publisher. FROGGIE shall remit payment to publishers.
We only accept invoices (and remit payments) with a minimum amount of $10.00 (USD) if the preferred payment method is via PayPal, or $1,000.00 (USD) if the preferred payment method is via wire transfer. Lower amounts will be accumulated to the following calendar month. The veracity of publisher traffic is verified by various systems, and no payments (of any amounts due at the time of the alert) will be made to a publisher if an alert related to suspicious traffic is received from one of those systems until the stats have been checked and verified and only if no evidence is found of the traffic being fraudulent in those subsequent checks and verifications.
The amounted revenue Publisher’s will be payable within five (5) business days of receipt by Supplier of the corresponding media buy fees from Demand Side Platform Partners and/or Advertisers and Agencies; or within sixtyfive (65) days of the end of the month, whichever is the later.
2.- As an Advertiser. Payments must be made in accordance with the terms set out in the Payment terms (30-45-60 days after end of the invoiced month) and are due on the date stated on the invoice. Advertiser waives any dispute regarding the invoice unless raised in writing within fifteen (15) days of the invoice date. Any fee related to the payment of the invoices to FROGGIE Online will be shared between ordering party and beneficiary.
Daily budgets under 200$ can have a potential over delivery due to the low budget settings, and will be billed accordingly to FROGGIE Online’s reporting tools.
3.- As an Advertiser and/or Publisher.
FROGGIE reserves the right to make adjustments to Client payments in the event of advertiser claw backs and to withhold any or all revenues generated from impressions, clicks or actions determined by FROGGIE to be fraudulent, artificially inflated, or otherwise invalid (including, but not limited to, all activity related to click spam, robots, macro programs, and Internet agents). FROGGIE, Inc. agrees to make a good faith investigation of such non-payable activity and provide information related to FROGGIE, Inc.’s determination
Time zone of reports for billing purposes will be UTC.
Any fee related to the payment of the invoices will be shared between ordering party and beneficiary.
IN TERMS OF INCOME TAX AND VAT LEGISLATION, ALL COMPANIES AND SOLETRADERS ESTABLISHED IN THE EU SHOULD BE REGISTERED FOR VATIF THEY ARE CARRYING OUT AN ECONOMIC ACTIVITY, UNLESS THE ACTIVITIES QUALIFY FOR AN EXEMPTION FROM REGISTRATION OR THE THRESHOLDS REACHED MAKE THEM ELIGIBLE FOR THEM NOT TO REGISTER. IF A PUBLISHER IN EU IS NOT REGISTERED FOR VAT, THE PLACE OF SUPPLY OF THE SERVICE REVERTS TO THE MEMBER STATE WHERE THE PERSON MAKING THE SUPPLY IS ESTABLISHED AND THEREFORE VAT OF THAT MEMBER STATE SHOULD APPLY.
Unless stated otherwise in the IO, all data reports will be delivered “as is” and based on FROGGIE stats.
I. Termination: Either party may terminate this Agreement if; a) the other party files a petition for bankruptcy or is adjudicated bankrupt, b) a petition in bankruptcy is filed against the other party and such petition is not dismissed within 30 days of the filing date, c) the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy law, d) a receiver is appointed for the other party or its business, e) upon the occurrence of a material breach of a material provision by the other party if such breach is not cured within 15 days after written notice is received by the breaching party identifying the matter constituting the material breach, f) upon 30 days written notice for any reason or no reason or g) by mutual consent of the parties.
II. Effect of termination: Each party will, within 30 days after any termination, return and/or destroy all tangibles copies of any confidential information of the other party in such party’s possession or control and, upon request, shall furnish to such other party an affidavit or declaration signed by an officer of such party certifying that such delivery or destruction has been fully effected. In addition, immediately upon termination, each party shall discontinue the use of the other´s logo, name, trade dress and look and feel of the other of the other party.
VI. FORCE MAJEURE
a. Generally. Excluding payment obligations, neither party will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”).
b. Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
a. By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach or of Media Company’s representations and warranties in Section, (ii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
b. By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach or of Advertiser’s representations and warranties, (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO.
c. By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations.
d. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
VIII. REPRESENTATIONS AND WARRANTIES
1. Corporate Power. Each party hereby representsand warrants that such party is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority to enter into this agreement and to carry out the provision hereof.
2. Due Authorization. Each party hereby represents and warrants that such party is duly authorized to execute and deliver this agreement and to perform its obligations hereunder.
3. Binding Agreement. Each party hereby represents and warrants that this agreement is a legal an d valid obligation binding upon it and enforceable with its terms and that the party does not conflict with any agreement, instrument or may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
4.Intellectual propertty rights. FROGGIE is the sole owner of all intellectual property rights pertaining to the creativities, and any and all derivatives, changes and improvements thereof, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved.
Publisher and/or Advertiser, is solely responsible for any change made to the creativities without knowledge of FROGGIE that (i) infringes any copyright, trademark, patent, trade secret, right of privacy or right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic (if not allowed), profane, or is otherwise inappropriate as determined by FROGGIE in its sole discretion, (iii) contains any virus, worms, Trojan horses or other harmful or destructive code or content intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of FROGGIE or any person or entity, (iv) encourages illegal activity, or (v) falsely suggests or implies sponsorship or endorsement by FROGGIE.
FROGGIE may review and delete or prevent the delivery of any Content that, in its sole judgment, violates this Agreement or any applicable law or regulation, or is otherwise objectionable.
IX. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, COQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OR THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM PERFORMANCE UNDER OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN ADDITION, IN NO EVENT SHALL EITHER PARTY BE LIABLE DAMAGES IN EXCESS OF THE PARY UNDER THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LA, THE LIMITAIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF A BREACH OF CONFIDENTIALITY AND INDEMNIFICATION.
X. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
a. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
b. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
c. Use of Collected Data.
i. Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party except as set forth in this agreement.
ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.
iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
e. Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
a. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
b. Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in 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.
Notwithstanding the foregoing, the FROGGIE shall be free to assign this agreement, and all of its rights, responsibilities and obligations hereunder, to any affiliate of the company or to a successor entity in connection with the sale of all or substantially all of the assets of the company or the sale of all or substantially all of the issued and outstanding equity of the company, without restriction.
c. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs and this agreement will be governed by the laws of the State of Malta. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in Malta, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Relationship of the parties. Both parties are independent contractors under this agreement, and nothing herein shall be construed to create a partnership, joint venture, working relationship or agency relationship. Neither party has authority to enter into agreements of any kind on behalf of the other.
f. Good faith. The parties agree to act in good faith with respect to each provision of this agreement and any dispute that may arise related hereto.
g. No Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
h. Severability. Each provision of this agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
i. Notices. All notice required to be given under this Agreement must be given to the following address:
j. Survival. All terms of this agreement, which by their nature extend beyond its termination, remain in effect until fulfilled, and apply to respective successors and assigns.
k. Joint drafting and neutral construction clause. This agreement is a negotiated document and shall be deemed to have been drafted jointly by the parties, and no rule of construction or interpretation shall apply against any particular party based on a contention that the agreement was drafted by one of the parties. This agreement shall be construed and interpreted in a neutral manner.