Last updated: 26 November, 2024
The website located at https://www.lospollos.com (the "Website") is managed and operated by Skyforge Digital AG, a company registered at Chamerstrasse 176, 6300 Zug, Switzerland with the registration number CHE-481.990.668 (hereinafter referred to as the “Company”, “we”, “us”, or “our”).
These Advertiser Terms and Conditions set forth herein (“Advertiser Terms and Conditions”), along with the Insertion Order ("IO"), Privacy Policy, Cookie Policy, and any other relevant policies or rules published on the Website or otherwise provided to you, collectively constitute the agreement (the "Agreement") governing the relationship between the Company and you as an advertiser ("You," "Your," or "Advertiser") utilizing the services made available via the Website (the "Service" or “Services”). The Advertiser identified in the IO agrees to be bound by this Agreement. The Company and the Advertiser hereinafter individually referred to as the “Party” and collectively as the “Parties”.
For the purposes of this Agreement, the term “Advertiser” encompasses the individual, company, or entity registering with the Company to access its Website for the purpose of promoting their products, services, or brand, as well as, without limitation, any parent companies, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors, or employees acting on their behalf. If You do not fully agree to these Advertiser Terms and Conditions, you are not permitted to: (i) register as an Advertiser; (ii) access or use the Service; or (iii) utilize the Website in any capacity or form.
By accessing, viewing or using any Services and our Website, you represent and warrant that you are at least 18 years old or have reached the age of majority in Your state or country of residence, whichever is higher. If You are accessing the Service on behalf of a legal entity, You further represent and warrant that You are authorized to act on behalf of that entity and to bind it to this Agreement. Upon our request, You agree to sign a non-electronic version of this Agreement or the relevant Insertion Order.
1. Main Definitions Used in the Agreement
1.1. For the purposes of this Agreement the following definitions are used by the Parties unless otherwise specified:
1.1.1. Advertising and Information Module (AIM) – a static (with unchanging display), or animated, graphical or text and graphical, rectangular, square, or being of another form, information unit which is placed on designated by the Company or its Affiliates Web pages or applications in the Internet and containing jump code (a hypertext link) to the website of the Advertiser (web page of the lead generation) or application stores. Types (formats) of AIM being placed by the Company for the execution of the Agreement are determined by the Company at its own discretion.
1.1.2. Company’s Affiliate is any individual, company, or legal entity that participates in the Company's affiliate program by promoting the Advertiser's products, services, or platform through its marketing channels.
1.1.3. Integration methods – technical ways of lead generation data transfer from the Advertiser’s system to the Company’s system and vice versa. The following types of integration may be applied between the Advertiser and the Company:
- – Postback integration – server-to-server integration by means of a specific link created to enable the Advertiser’s system to transfer data on generated leads to the Company’s System and the Company’s System for registering Leads. Additional parameters of this URL enable for identifying the lead source and other features shall be mutually agreed upon by the Parties according to their Systems’ technical needs and capabilities;
- – API integration – a cooperation interface between the Systems of the Company and the Advertiser for lead metering and data exchange. Parameters of such integration enable for identifying the lead source and other features shall be mutually agreed upon by the Parties according to their Systems’ technical needs and capabilities;
- Control pixel – software counter of a control system of Internet advertising and the audit in the form of an invisible picture of 1x1 pixel size and/or XML file.
1.1.4. Lead – accomplishment by an Internet user of an action (a request for additional information, site registration, filling in the forms, downloading an application, completing the sale, paying a deposit, submission of credit card information and subsequent paying of some small amount, email confirmation, etc.) predetermined by the Advertiser on the Advertiser’s website or in an application store. The fact of accomplishment of a Lead by a user is determined by means of special control pixels placed on the web pages of selected websites, or by means of API or postback response, in case one of these integration methods was agreed to be used by the Parties. Characteristics and conditions of placement and performance of leads shall be determined by the Parties in the IO prior to starting advertising activity.
1.1.5. Lead generation parameters – conditions and procedure for determining the actions of users on a website of the Advertiser as Leads.
1.1.6. Request – directly expressed request of the Advertiser containing the order for services provision under the Agreement, indicating the requirements and limitations raised by the Advertiser for the terms of placement of AIM and generation of leads, as well as specifying other material terms of the order, including time frames of rendering of services and prices (tariffs) for the services.
1.1.7. Statistics data – a detailed report on the accomplishment of Leads of the Advertiser on websites on the Internet along with the information about the scope of services rendered.
1.1.8. System (System of Internet Advertising and Audit Management) – computer software which is applied by the Parties for placing rates for Leads and gathering statistical data on the services provided hereunder.
1.1.9. User(s) – a user of the Advertiser’s Website(s).
1.1.10. Web page – a separate integral part of the website, a separate document on the Internet that is generated on the basis of HTML, which is identified by a unique address (URL), containing the information (text, graphics, audio and video files). Except otherwise specified, in this Advertiser Terms and Conditions the word “website” means the information resource on the Internet with a unique URL address, consisting of interconnected web pages, united thematically, and intended for publishing of the information via the Internet.
1.2. Other terms not defined in this Section shall be interpreted in accordance with market practice. In case of any discrepancies or disputes regarding the interpretation of definitions, the Parties agree to rely on commonly accepted market practices and applicable standards in the field of digital advertising.
2. Account Registration
2.1. To access certain features or Services on our Website, You may be required to create an account. By registering, You agree to provide accurate, up-to-date, and complete information during the registration process, and to promptly update such information as needed to maintain its accuracy and completeness.
2.2. The Company, at its sole discretion, may verify or validate the accuracy of any registration details provided by the Advertiser. The Company may request the account holder to complete an approval process (e.g., provide additional details on promotional methods and/or identity, or participate in an interview with a Company representative). The Advertiser agrees to provide truthful and valid information regarding their identity and location, and to refrain from using fake names, aliases, or pseudonyms to conceal their identity or contact information. The Advertiser consents to keep their contact information current and notify the Company of any changes.
2.3. You are responsible for maintaining the confidentiality of Your account credentials and for any activities conducted under Your account. You agree to immediately inform us of any unauthorized use of Your account or any other security breach. The Advertiser acknowledges that the account is intended for their use only, and they shall not allow others to access it, nor use another person’s or entity’s account for their own purposes. The Advertiser may only create one (1) account using their own identity details. Any additional accounts must be preapproved by a Company representative in writing. If the Company becomes aware of multiple accounts associated with the same individual or legal entity created with the intention of deceiving the Company or its partners, the Company reserves the right to restrict, deny, or terminate such accounts.
2.4. If the Company or a third-party payment provider requests the Advertiser to verify their identity and location, the Advertiser must respond within two (2) business days and provide valid proof. Should the Company determine, at its sole discretion, that the Advertiser’s registration information is inaccurate, misleading, or untruthful, it may restrict, deny, or terminate the Advertiser’s account, access to the Service.
We reserve the right to suspend or terminate Your account if any information provided during registration or thereafter is found to be false, inaccurate, or misleading, or if Your use of the account violates these Advertiser Terms and Conditions.
3. Subject of the Agreement
3.1. The Company operates an advertising platform, providing Advertisers access to its network of publishers and affiliates (“Affiliates”) for the purpose of promoting Advertiser campaigns. The Advertiser agrees to use the platform to place and manage advertisements for their products and services on a cost-per-action (CPA) basis, meaning the Advertiser will pay for specified actions (leads, sales, clicks, or other conversions) and/or on the other terms and conditions as defined in the IO or as agreed upon by both parties.
The Company utilizes proprietary tracking tools and reporting systems to measure and report the performance of Advertiser campaigns. The Advertiser is responsible for ensuring that the required tracking pixels, links, or other tracking technologies (“Tracking Tools”) are correctly implemented on their end to capture campaign performance data. The Company shall not be responsible for any discrepancies in tracking due to incorrect implementation by the Advertiser.
3.2. Lead generation parameters, scope of Services, deadlines and other essential conditions shall be detailed in the IO prior to the start of advertising activity and form an integral part of this Agreement.
3.3. The Parties have agreed that for the purposes of keeping records of the process and results of Advertiser campaigns under the Agreement, including the accomplishment of the Advertiser’s Leads and processing of statistics, the Advertiser`s control (management) system of Internet advertising and the Advertiser`s audit is used (except in cases specified in Clause 5.2. to this Agreement), whose data will be used to determine the amount of Services rendered and to calculate their value for payments.
3.4. The Company provides the tools and infrastructure for Advertiser to run its campaigns but does not guarantee any specific results, levels of traffic, leads, conversions, or revenue from any campaign. Campaign performance is subject to market conditions, targeting, and the attractiveness of the Advertiser’s offer.
4. The Rights and Obligations of the Parties
4.1. The Company shall:
4.1.1. provide software tools for a permanent record of the accomplishment of the Advertiser’s Leads and not to take any intentional action leading to its malfunction and (or) improper operation;
4.1.2. provide statistics information on the accomplishment of the Advertiser’s Leads on the Advertiser’s request.
The Advertiser is informed and agrees that whereas the Company is not the owner of the websites where AIM is placed, it cannot control the content of posted information there and, as a consequence shall not be liable for the unconditional implementation of restrictions on placing of certain types of information of their owners.
4.2. The Company is entitled:
4.2.1. to refuse to accept the order and placement of AIM at its own discretion, as well as if advertised activity on AIM is reasonably suspected to violate the laws, and specifically contains any signs of inappropriate advertising and (or) obviously does not correspond to generally accepted moral and ethical standards;
4.2.2. to involve third parties to render services (perform works) under the Agreement, including (but not limited to) advertisement distributors and affiliated marketers;
4.2.3. in case of late payment for Services by the Advertiser, to refuse accept the following Requests for services until the debt is repaid for previous periods;
4.2.4. to unilaterally suspend the rendering of Services in case the operation capacity of pixel, postback or API fails within one day from the date of its discovery until all the circumstances of the integration malfunction are clarified.
4.3. Advertiser shall:
4.3.1. designate a responsible authorized representative to solve current issues related to the rendering of Services under the Agreement;
4.3.2. timely and in full pay for the Services of the Company in accordance with the Agreement and the IO;
4.3.3. timely provide the Company with all the information and materials needed for the fulfillment of the Agreement, as well as immediately inform the Company of any changes related to the previously provided materials and information. The Advertiser acknowledges that failure to provide or properly configure the necessary information and materials may affect the accuracy and quality of Services, for which the Company shall not be held liable;
4.3.4. provide the Company with the Advertising Material (as defined below), technical information and assistance required in order to establish a link to the Advertiser Website, all in accordance with the Company`s guidelines and instructions, that shall be provided to the Advertiser by the Company and may be changed by it from time to time;
4.3.5 bear sole responsibility for ensuring that the content of the Advertising Materials provided complies with all applicable laws, regulations, and ethical standards. The Company shall not be liable for any claims, damages, or penalties arising from the use or dissemination of the Advertising Materials;
4.3.6. place the Company’s Control pixel, other tracking pixel(s) or any other necessary mechanisms if requested by the Company for the purpose of observing, monitoring and recording the performance of any campaign;
4.3.7. make records of the generation of the Leads and provide the Company with statistical reports on the Services rendered by the Company in accordance with the terms of the Agreement;
4.3.8. immediately notify the Company of all actions entailing the inoperativeness of Postback, API, or Control pixel, as well as any tasks with its software code. The Advertiser is informed and agrees that in case of removing / blocking of operation of Control pixel, Postback or API the Company will not be liable for the quality of the provision of Services under the Agreement.
4.4. The Advertiser is entitled to provide the Company with service Requests during the term of the Agreement.
5. Cost of Services and Payment Procedure
5.1. Prices and rates for Services provided by the Company under the Agreement shall be agreed by the Parties in the IO depending on the Lead generation parameters and conditions selected by the Advertiser prior to the start of any advertising activities.
5.2. For the Services to be rendered by the Company, the Advertiser hereby pledges, covenants and agrees to pay to the Company the amounts according to the rates which are set out in the IO and any additional payments which are to be agreed upon between the Parties.
For the purpose of effecting payments, the Advertiser shall provide the Company with calculations within 10 (ten) calendar days after each billable month or any other billing period agreed upon between the Parties. The Company reserves the right to dispute the Advertiser’s calculations. In case of such a dispute, the calculations from the Company’s tracking platform shall prevail unless the Advertiser can soundly prove the discrepancy between the calculations of the Advertiser and the Company arose from the Company’s own mistake. After the calculations are agreed, the Company shall issue an invoice to the Advertiser. If the Advertiser fails to provide the Company with the aforementioned report within the aforesaid timeframe, then the Company reserves the right to issue and send an invoice based on the Company’s calculations and the Advertiser will not have a right to dispute such Company’s calculations. In such a case, the Advertiser is not released from the obligation to provide the abovementioned report and shall provide it within 10 (ten) calendar days following the issuance of the relevant invoice by the Company. If the Advertiser's calculations indicate that the Company is eligible for the additional fee pertaining to the rendered Services, the Company reserves the right to either issue an additional invoice or include this fee in the invoice for the subsequent billing period.
The Advertiser hereby promises, agrees and covenants to timely effect payment of the amounts mentioned in the invoices. The Advertiser is responsible for paying all applicable taxes, including VAT, sales tax, or any similar levies, without set-off. Failure to pay may result in additional legal or collection expenses borne by the Advertiser. Such amounts might also include abatements, compensations or deductions, all in accordance with the terms of this Agreement and the additional terms set out in the IO. Payment, unless there is an agreement to the contrary, shall be made to the Company within 15 (fifteen) calendar days from the date that the invoice is issued, unless other payment terms have been agreed upon by the Parties in the applicable IO.
The reporting period under the Agreement shall not exceed 1 (one) month (hereinafter "Reporting Period"). The Company’s failure to invoice the Advertiser each Reporting Period shall not constitute a waiver of any amounts due to the Company by the Advertiser for which an invoice may be sent at a later date.
5.3. Services provided by the Company shall be paid by wire transfer in currency and according to payment details specified in the Company’s invoice. Other payment methods such as (but not limited to) Payoneer, Paxum, Paypal etc. are also acceptable if agreed by the parties. The payment date shall be the date of receipt of funds to the Company’s account. In the event payments under this Agreement are not received by the Company when due, the Company has a right to stop providing Services to the Advertiser immediately and without prior notice. In case of delayed payment, the Advertiser shall reimburse the Company for any collection fees incurred by appointing a third-party collection agency, attorneys’ fees and other related expenses as applicable.
Payments under this Agreement are non-refundable unless explicitly agreed otherwise in writing by the Company.
5.4. Each Party is solely responsible for its own taxes, duties and other governmental charges and any related penalties and interest arising from the payment of the invoices under this Agreement.
5.5. The Advertiser shall, at all times, pay to the Company for its Services despite non-payment of any third party. Undisputed overdue payments will accrue interest at the rate of 24% (twenty-four percent) per annum or in any case at the maximum rate permissive by the law. The interest rate shall begin to accrue after 15 (fifteen) calendar days or other payment terms agreed upon by the parties in the applicable IO, from the date on which the invoice (for which payment is due) was issued, up until the final settlement of the said invoice and it shall be calculated on a daily basis, unless there is a written agreement to the contrary.
5.6. Where applicable and in order to observe, monitor and record the performance of any campaign, the Company might ask the Advertiser to place the Company’s tracking pixel(s) or any other necessary mechanisms for the purpose of observing, monitoring and recording the performance of any campaign (collectively referred to as the "Tracking Tools"). Such placement and testing shall be the sole responsibility of the Advertiser. Even in the event that the Advertiser fails to correctly place the Tracking Tools on the Advertiser website or where the Tracking Tools will not be recording valid Leads or actions, the Advertiser hereby acknowledges and accepts that it will pay for each and every Lead or action generated and recorded by the Company unless such Lead and/or action is determined to be fraudulent or invalid (as this is defined in the applicable IO).
6. Advertising Materials
6.1. The Advertiser hereby grants to the Company and its affiliated marketers a non-exclusive, worldwide, sublicensable, royalty-free license and right to use, perform, reproduce, display, transmit, modify, copy and distribute the advertisement, including all content, trademarks, images, trade names and brand features (collectively, the “Advertising Material”) and any trademark, logos, and graphics of the Advertiser in accordance with the IO and this Agreement. The Advertiser warrants that it holds all necessary rights, licenses, and permissions to grant the aforementioned rights and agrees to indemnify and hold the Company harmless from any claims or liabilities arising from such use.
6.2. The Company reserves the right to edit or modify Advertising Materials solely to ensure compliance with technical standards, without altering the substantive content of such materials.
The Company reserves at any time the right to reject, suspend or cancel any campaign and/or to reject any Advertising Material, which in the opinion and/or discretion of the Company is not deemed suitable and appropriate for publication for any reason. Furthermore, the Company reserves the right to reject, suspend, postpone or cancel any advertisement, which in the opinion of the Company may expose the Company to criminal and/or civil liability and/or any other form of liability or bring it into disrepute. Furthermore, the Company might refuse, reject, suspend or cancel any campaign if in its opinion it is deemed to be offensive or objectionable. Any rejection, suspension, or cancellation of Advertising Materials or campaigns as outlined herein shall not entitle the Advertiser to claim any damages or reimbursement.
6.3. For the avoidance of any doubt, the Company shall not be liable for the content of Advertising Materials, provided by the Advertiser or created and utilized by the Company`s affiliate marketer, for direct or indirect, foreseeable and/or non-foreseeable damages caused by or resulting from the inappropriateness and/or unlawfulness of the content of Advertising Materials. The Company disclaims all liability and responsibility for such matters. The Advertiser shall be solely liable for ensuring that the Advertising Material complies with all applicable laws, regulations, and ethical standards. The Advertiser expressly agrees to indemnify the Company and its affiliates against any claims, damages, penalties, or liabilities resulting from the use, publication, or distribution of the Advertising Material.
6.4. The Company does not guarantee the placement, positioning or the timing of delivery of any Advertising Material, or the certain quantity and quality of traffic, publications, conversions or clicks on any Advertising Material. The timing, positioning and distribution of the Advertising Material for any campaign(s) shall be at the sole discretion of the Company, unless such timing, positioning and distribution is specifically provided for in the IO and agreed between the Parties. The Company shall not be liable for any delays or deviations in the timing, positioning, or distribution of Advertising Materials caused by third-party factors or technical issues.
7. Proprietary Rights
7.1. As between the Parties, Advertiser and its licensors (if any) retain all rights, title and interest, including Advertiser`s Intellectual Property Rights, solely in and to Advertiser’s proprietary product/service, Advertising Materials, Advertiser’s websites including without limitations Advertiser`s Confidential Information (as defined below) and all modifications, enhancements improvements, and/or derivatives directly created by the Advertiser. All rights in and to the foregoing not expressly granted hereunder are reserved to the Advertiser and its licensors (if any). Nothing in this Agreement shall limit the Company’s rights to use such materials as permitted under this Agreement.
7.2. As between the Parties the Company and/or its licensors (if any) retain all rights, title, and interest, including the Company’s Intellectual Property Rights in and to, any and all components of the Company’s Website, and Company’s Confidential Information, and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing. All rights in and to the foregoing not expressly granted hereunder are reserved to the Company and its licensors (if any). In case the Company involves affiliated marketers and/or advertisement distributors to render services (perform works) under the Agreement, the Parties agree that such affiliated marketers, advertisement distributors and/or their licensors (if any) retain all rights, title, and interest, including their Intellectual Property Rights in and to, any and all components of affiliated marketers` and/or advertisement distributors` websites, and all modifications, enhancements, improvements, and/or derivatives to any of the foregoing.
7.3. Intellectual Property Rights shall mean copyright, patents, know-how, trade secrets, trademarks, service marks, trade names, trade dress, and associated logos (in each case including rights in goodwill attached thereto), design rights, rights in get-up, database rights, chip topography rights, mask works, utility models, domain names and website addresses and all similar rights database rights, all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, rights in and to confidential information (including know-how and trade secrets) and, in each case whether registered or not, including any applications to protect or register such rights, including all renewals and extensions of such rights or applications, whether vested, contingent or future, all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
7.4. Nothing in this Agreement shall be construed as a transfer or assignment of Intellectual Property Rights from one Party to the other. Each Party acknowledges and agrees that the other Party’s Intellectual Property Rights shall remain the sole and exclusive property of that Party.
8. Representations and Covenants
8.1. Without limiting or derogating from the Advertiser’s representations, warranties or covenants herein, Advertiser hereby represents and warrants to the Company that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of the Advertiser; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; (d) it is the owner, or it has sufficient rights in and to the technology, products/services, content, that are required in order to comply with its obligations under this Agreement, and the foregoing will not infringe any copyright, trademark, patent or other proprietary rights of third parties; (e) there is no action, suit or proceeding at law or in equity now pending or, to its knowledge, threatened by or against or affecting it which would substantially impair its right to carry on its business as contemplated herein or adversely affect its financial condition or operations; (f) it will comply with all laws and regulations that may apply to Internet advertising, including, but not limited to the Children's Online Privacy Protection Act, the Can-Spam Act, the Federal Trade Commission Act, the Digital Millennium Copyright Act, General Data Protection Regulation, Unfair Commercial Practices Directive, Consumer Rights Directive, ePrivacy Directive. The Company shall not be held liable for any representations, warranties, or covenants breached by the Advertiser.
8.2. Advertiser also represents and warrants that:
8.2.1. the Advertising Material / Advertiser`s website does not contain: (i) any misrepresentations or content that is defamatory or violates any rights of privacy or publicity; (ii) any pornography, child pornography or link to such content; (iii) linking to software piracy; (iv) link to any form of illegal activity (i.e., how to build a bomb, hacking, etc.); (v) violate any applicable law or regulation particularly while offering of sweepstakes, lotteries, betting, gambling, promotions and other regulated activities; (vi) any gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm; (vii) any content promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.); (viіi) false or deceptive advertising or any machine-readable code including but not limited to any malware, virus, Trojan-horse or other self-executing program, or other harmful code that could damage the users, disrupt, or otherwise impair the operation of the Company or any third party’s systems.
8.2.2. the Advertiser`s website and/or Advertising Material do not participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam);
8.2.3. all content, including third-party content, used in the Advertising Material and/or Advertiser’s website complies with applicable laws, does not infringe third-party rights, and adheres to the standards outlined in this Agreement;
8.2.4. all data collected through the Advertising Material and/or the Advertiser’s website is obtained and processed in compliance with applicable data protection and privacy laws, including the General Data Protection Regulation (GDPR) and other similar laws, where applicable.
8.3. The Advertiser shall maintain during the term of this Agreement a privacy policy that is consistent with the then-current industry standards and applicable laws and prominently display it on the Advertiser`s website. Advertiser collection of User information shall be limited to the extent allowed according to the privacy policy of the applicable website and all applicable laws and regulations.
9. Disclaimer of Warranties and Limitation of Liability
9.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO SERVICES PROVIDED BY IT PURSUANT TO THIS AGREEMENT. THE COMPANY`S SERVICES AND WEBSITE ARE PROVIDED TO THE ADVERTISER ON AN "AS IS" AND “AS AVAILABLE” BASIS AND THE COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT. THE COMPANY SHALL NOT BE LIABLE FOR ANY ERRORS OR OMISSIONS IN CONNECTION WITH THE SERVICES THAT IT MAY PROVIDE. THE COMPANY DOES NOT GUARANTEE THAT THE ADVERTISER OR ANY THIRD PARTY WILL BE ABLE TO ACCESS ITS WEBSITE OR ANY THIRD-PARTY WEBSITES WHERE THE ADVERTISER`S API IS LOCATED AT ANY PARTICULAR TIME.
THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACTIONS, CONTENT, OR OPERATIONS OF AFFILIATES, INCLUDING BUT NOT LIMITED TO THE SITES OR SERVICES THEY PROVIDE. AFFILIATES OPERATE INDEPENDENTLY AND ARE NOT AGENTS, EMPLOYEES, OR REPRESENTATIVES OF THE COMPANY.
9.2. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE ADVERTISER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR TORT DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE, WEBSITE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), SERVICE LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, THE COMPANY SHALL NOT BE LIABLE FOR ANY FAILURE OF AFFILIATES TO COMPLY WITH APPLICABLE LAWS, REGULATIONS, OR CONTRACTUAL OBLIGATIONS. THE COMPANY DISCLAIMS ALL RESPONSIBILITY FOR ANY UNAUTHORIZED, FRAUDULENT, OR MALICIOUS ACTIVITIES CONDUCTED BY AFFILIATES.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, and as such, the limitations above may not apply to you; in such cases, our liability shall be limited to the maximum extent permitted by law.
9.3. In view of using a computer or other equipment, communication channels and (or) computer software that is the property of the third parties, the Parties have agreed that the Company shall not be liable for any delays, interruptions, direct or indirect loss or damage resulting from defects of electronic or mechanic equipment and (or) software or any technical difficulties and actions or inaction of the third parties, difficulties with data transmittal or connectivity, power failure occurring through no fault of the Company.
9.4. The Advertiser shall be fully liable that the Advertising Material complies with all applicable legislation. The Advertiser warrants to the Company that the Advertiser is not involved in any unlawful business or propaganda thereof.
9.5. Scope of the liability of the Company under the Agreement shall be limited to the cost of Services provided for the Reporting Period where the Company’s failure to perform its obligations under the Agreement resulting in the loss sustained by the Advertiser has been identified. Only actual damage shall be rectified. The Advertiser is aware and agrees that the Company cannot guarantee the generation of leads in the amount required by the Advertiser since lead generation depends directly on the activity of the Internet users. Prospective lead generation shall be calculated by the Company based on the statistical data. The Advertiser acknowledges and agrees that given the probabilistic nature of the prospective lead generation prognosis, the Company under no conditions shall be responsible for the failure to meet the numbers of the prospective lead generation prognosis.
9.6. The Parties have agreed that any dispute over the quality of the traffic provided by the Company can be raised not later than within 10 (ten) calendar days after the end of the Reporting Period, in which questionable traffic was provided. The Company shall consider deduction in good faith if only it was declared within the terms set above and after the provision of a detailed fraud report. The fraud report must include sufficient and verifiable evidence to substantiate claims of fraudulent activity, including specific data points, logs, and other technical evidence deemed acceptable by the Company. Any disputes, claims or objections that lack such supporting evidence shall be considered invalid.
The Company retains sole discretion to determine whether the provided evidence meets the required standard for initiating any deductions or adjustments. If the Company determines that the evidence provided is insufficient or inconclusive, no deductions shall be made, and all traffic shall be deemed valid and payable. Any later disputes, claims, or objections against traffic shall be voided, and all traffic shall be paid for. Furthermore, the Company shall not be liable for any indirect, incidental, consequential, or punitive damages resulting from the provision of traffic or assessment of traffic quality, including but not limited to loss of revenue, business, or reputation. The Advertiser agrees to hold the Company harmless from any claims made by third parties concerning traffic quality.
9.7. The Company shall not investigate or resolve any claim or dispute involving the Advertiser and any third party. Any and all disputes between the Advertiser and any third party shall be resolved by the Advertiser and that third party. The Advertiser agrees that the Company shall have no obligations and incur no liabilities to the Advertiser in connection with any such dispute.
9.8. Both Parties acknowledge and agree that the Parties entered into this Agreement in reliance upon the disclaimers and limitations of liability set forth herein, which constitute a material agreement upon which this Agreement is based and correctly and fairly represent the allocation of risk as mutually agreed between the Parties. These limitations shall apply notwithstanding any failure of the essential purpose of any limited remedy.
10. Indemnification
10.1. The Advertiser (the “Indemnifying Party”) agrees to indemnify, defend and hold the Company and/or other Company’s group companies and officers, directors, employees, agents, independent contractors, service providers, licensors, affiliates, and publishers (the “Indemnified Party”) 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 Advertiser’s property inter alia, service and/or technology, Advertiser`s product/service, Advertising Material (the “Infringing Property”) infringes intellectual property rights of third parties or otherwise violates applicable law or regulations; (ii) the content or subject matter of the Advertising Material that gives rise to any claim, cause of action, or results in actual damages or losses; or (iii) the breach of any representation or warranty of the Advertiser set forth herein, (collectively, the “Claim”); (iv) any third-party claims related to the use of any data provided by Advertiser, including, but not limited to, Advertiser data.
In the event a Claim is brought against an Indemnified Party, such Indemnified Party shall give the Indemnifying Party as soon as reasonably possible notice of such Claim; provided that failure of an Indemnified Party to give prompt notice as provided herein shall not relieve the Indemnifying Party of any of its obligations hereunder. The Indemnifying Party may not adjust, settle or compromise any Claim brought against the Indemnified Party for which the indemnity set forth herein is sought without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld.
10.2. Without limiting this indemnification, the Indemnified Party may opt to take over the conduct of its own defense of any claim or liability, in which event the Indemnifying Party shall cooperate with the Indemnified Party fully in any legal dispute or proceedings.
10.3. If a Claim alleging infringement is brought or the Indemnifying Party believes one may be brought, the Indemnifying Party shall have the option at its own expense, to (i) modify the Infringing Property to avoid the allegation of infringement; (ii) obtain for the Indemnified Party, at no cost to such party, a license to continue and display the Infringing Property in accordance with this Agreement; (iii) ask Indemnified Party to immediately remove the Infringing property from the applicable websites.
11. Force Majeure
11.1. In case of force majeure circumstances including, but not limited to fires, floods, earthquakes, national disasters, acts of God, strikes, governmental restrictions, significant power outages, damage to the server where Advertising and Information Modules are stored or other circumstances beyond reasonable control of the Parties, performance of this Agreement shall be postponed for the time such circumstances are in effect.
11.2. Should such circumstances last longer than 2 (two) months, then any of the Parties shall have the right to terminate this Agreement at any time thereafter upon providing 5 (five) days prior written notice to the other Party, providing that all payment obligations will be fulfilled in the reasonable timeframes. In this case, the Agreement shall be deemed terminated and no Party may claim indemnification of losses by the other Party except in cases specified in Section 10 (INDEMNIFICATION).
11.3. The Party that is unable to perform its contractual obligations due to force majeure circumstances shall immediately notify the other Party of the commencement and cessation of such circumstances within 3 (three) business days. Failure to notify the other Party of such circumstances shall deprive the Party of its right to use such circumstances as an excuse in case of the failure to perform its obligations under the Agreement.
12. Confidentiality
12.1. Either party (hereinafter the “Disclosing Party”) may, from time to time, disclose to the other party (hereinafter the “Receiving Party”) certain information relating to the Disclosing Party’s business or customers, affiliates, subsidiaries, agents, or employees; business and marketing plans, processes, strategies and methods which may not be standard industry practice or which are not generally known in the industry and/or to any section of the public; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (all collectively referred to as the “Confidential Information”). The Disclosing Party and the Receiving Party hereby agree and acknowledge that such Confidential Information will be provided at the sole discretion of the Disclosing Party, and nothing in this Agreement obligates the Disclosing Party, its directors, agents or employees to disclose or grant to the Receiving Party access to any Confidential Information. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party hereby promises, pledges, covenants and agrees (a) to use the Confidential Information only for the purposes expressly contemplated in this Agreement; (b) that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, or agent of the Receiving Party without the prior written consent of the Disclosing Party. The Receiving Party acknowledges that the Disclosing Party remains the sole and exclusive owner of all rights, title and interest in and to the Confidential Information. The Receiving Party agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of the Disclosing Party, with the exception that one (1) copy may be made for backup and archival purposes only.
12.2. The undertakings and obligations of each Party under this Section shall not apply to any information which it can establish to have: (a) become publicly known through no action on the Receiving Party’s part; (b) been known by the Receiving Party prior to receipt as proven by the Receiving Party’s written records; (c) been independently developed by the Receiving Party as proven by the Receiving Party’s written records; (d) been approved for public release by the Disclosing Party’s written authorization; (e) is rightfully obtained by the Receiving Party from third parties authorized to make such disclosure without restriction; or (f) been required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Disclosing Party is notified immediately of such required disclosure and given the opportunity to seek a protective order.
12.3. Each Party agrees to restrict access to the Confidential Information to those of its officers, directors and employees (including the officers, directors and employees of its related bodies corporate) (collectively “Employees”), and employees of other contractors or consultants it retains (including those retained by its related bodies corporate) who have a "need to know", have been instructed as to the confidential nature of such information and are bound by written confidentiality obligations at least as stringent and onerous as the obligations imposed on the parties hereto. A Party hereto shall be liable to the other in the event that any of its employees or any of the employees of other contractors or consultants it retains (including those retained by its related bodies corporate) breach these obligations. Upon the earlier of the termination of this Agreement for any reason or the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party or, at the discretion and request of the Disclosing Party, destroy and certify the destruction thereof to the Disclosing Party, all Confidential Information then in its possession, in any form.
12.4. Unless the Company has provided its prior, express written consent, the Advertiser will keep the IO and the terms of the Agreement strictly confidential and may not make any unauthorized disclosure of the same to any person.
12.5. The confidentiality non-disclosure provisions shall survive this Agreement for a period of 3 (three) years after termination of the Agreement.
13. Non-Solicitation
13.1. During the term of this Agreement and for a period of 1 (one) year thereafter, the Advertiser will not seek, in any way, to undermine the business standing and goodwill of the Company, and in particular, the Advertiser will not, directly or indirectly: a) solicit or entice or attempt to solicit or entice any of the employees of the Company to enter into employment service with the Advertiser or a competitor of the Company; or b) directly or indirectly enter into any agreement or contract, written or otherwise, with any affiliate/sub-affiliate (including, but not limited to affiliate marketer) of the Company without the prior written approval of the Company.
13.2. The Advertiser agrees and understands that the Company has incurred significant expenses in forming the Company’s affiliate network and in providing services for the benefit of its clients, and the Advertiser agrees and understands that in the event of a breach by the Advertiser of this section, the Advertiser shall pay the Company as liquidated damages an amount equal to the amount paid by the Advertiser to Company within 6 (six) billable months preceding such breach. The liquidated damage remedies provided herein in this section shall not preclude the Company from seeking injunctive relief.
14. Governing Law and Settlement of Disputes
14.1. This Agreement and the IO shall be governed and interpreted in accordance with the laws of Switzerland.
14.2. The Parties shall comply with all laws, rules, regulations or other requirements imposed by any governmental body or entity which are applicable to the performance of services under the Agreement.
14.3. Disputes and disagreements that may arise in the performance of the Agreement shall be settled by negotiations between the Parties.
14.4. All disputes and disagreements that may arise out of this Agreement or in connection herewith and failed to be settled by negotiations shall be finally resolved through arbitration, during the arbitration proceedings under the Swiss Rules of International Arbitration of the Swiss Arbitration Centre in effect at the time the Notice of Arbitration is filed. The arbitration shall be conducted by a sole arbitrator in English.
At the request of the Company, the arbitration proceedings shall be conducted confidentially, with all documents, testimony, and records maintained under seal and accessible only to the parties involved their attorneys, and any experts who have agreed in writing to uphold confidentiality. The arbitrator shall have the authority to grant equitable relief, including temporary restraining orders, injunctions, and the award of damages, with or without an accounting of costs. The Company shall be entitled to recover its reasonable costs and expenses, including attorneys' fees, in connection with any arbitration or proceeding arising from the Agreement.
14.5. To the extent permitted by law, you agree not to initiate, join, or participate in any class action lawsuit against the Company, its employees, officers, directors, members, representatives, or assigns. You consent to the issuance of injunctive relief to prevent or terminate such a lawsuit or to remove you as a participant. You also agree to reimburse the Company for any attorneys' fees and court costs incurred in seeking such relief. This provision does not waive your right to pursue individual claims through binding arbitration as set forth above and shall be treated as an independent agreement.
15. Termination
15.1. This Agreement shall commence upon the date that the first IO is executed by both Parties hereto and shall remain in full force and effect until terminated as set forth hereunder. If the Company has not rendered the Services for any period of time within the duration hereof this cannot be considered a breach of the Agreement and result in any losses or damages to the Advertiser.
15.2. Either Party may terminate this Agreement and cancel the IO without providing a reason for such termination, by giving 3 (three) working days’ prior written notice to the other Party. In such case, any undisputed amounts owed by the Advertiser shall be settled within 15 (fifteen) working days from the date that the termination becomes effective. Either Party may cancel separately the IO by giving 3 (three) working days’ prior written notice to the other Party. Such cancellation of the IO will not affect the validity of these Advertiser Terms and Conditions and all other IOs.
15.3. The Company may immediately terminate this Agreement and the IO by means of a written notice to the Advertiser, in cases where the Company considers that the Advertiser has been in breach of any of the terms of this Agreement and the IO or if it is considered that the Advertiser has acted and/or the campaign noted in the IO has been managed in a way which: a) is in contravention and/or violation of applicable laws, by-laws, rules and regulations, b) is defamatory, obscene, misleading, deceptive, fraudulent or otherwise inappropriate; or c) might harm the good reputation of the Company, its directors, affiliates or any other person and/or body for which the Company is in law responsible.
15.4. The Company might also terminate the Agreement unilaterally and without judicial procedures in case of:
- a delay in payment for Services in accordance with terms specified in the IO and this Advertiser Terms and Conditions for more than 10 (ten) working days;
- repeated detection by the Company during the term of the Agreement of the fact of the lack of control pixel on the websites where they shall be or improper functioning of postback or API.
15.5. Survival. All representations and warranties and provisions hereunder which, by nature, are meant to survive any termination of this Agreement shall so survive, including without limitation, sections 7 (PROPRIETARY RIGHTS), 9 (DISCLAIMER OF WARRANTIES. LIMITATION OF LIABILITY), 10 (INDEMNIFICATION), 12 (CONFIDENTIALITY), 13 (NON-SOLICITATION), Clause 15.5 (SURVIVAL).
16. Important Privacy Policy Requirements for Advertisers
The Advertiser must feature on its website(s) a privacy policy that is linked from the home page with explicit language indicating its presence. The privacy policy should describe the types of personal information the Advertiser collects, including cookies, tracking technologies, and any other data collected through its advertising activities. It must also specify the purposes for which the data will be used, such as ad targeting, campaign performance measurement, and personalized content delivery. Furthermore, the privacy policy must disclose whether data is shared with third parties, including affiliates or data processors, and outline how users can opt out of certain data collection methods. The policy must also explain how users can access, correct, or request the deletion of their personal information and outline the process for notifying users of any material changes to the policy. The Advertiser must ensure compliance with applicable privacy laws, including but not limited to the California Online Privacy Protect Act (“CalOPPA”), Children’s Online Privacy Protection Act (COPPA), California Consumer Privacy Act (CCPA), General Data Protection Regulation (GDPR), other applicable law and notify users of their data rights clearly and transparently. The Advertiser is obligated to fully comply with the privacy policy always posted on its website(s). The Advertiser shall notify the Company in writing at least three (3) business days in advance of any changes to any applicable privacy policy.
17. Other Advertiser Terms and Conditions
17.1. The Company reserves the right to modify the Website, the Service, and this Agreement at any time without prior notice. The most recent version of the Agreement will be made available on the Website. By continuing to use the Website and/or the Service after any modifications, You indicate Your acceptance of the updated terms. Accordingly, it is recommended that You regularly review the Website for any updates or changes.
All amendments and additions to the Insertion Order, including mechanisms for agreeing on service parameters, scope, and deadlines, shall constitute an integral part thereof. Such amendments and additions shall be valid only if made in writing and signed by both Parties and cannot be altered without mutual written consent.
17.2. The Parties have agreed that all notices, instructions, demands, approvals or other communication to be given or made in order to comply or in connection with the matters contemplated by this Agreement by either Party shall be in writing and shall be deemed to have been duly given: (a) when personally delivered; or (b) when delivered by an internationally recognized courier service to the relevant addresses set forth herein; or (c) when sent by email to the representative of the other Party providing that it allows to duly identify the sender and the recipient of such communication. A Party may change its notice address and contact person by giving written notice to the other Party.
17.3. If any provision contained in this Agreement 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 this Agreement will remain in full force and effect.
17.4. Nothing contained in this Agreement shall be construed to constitute a partnership, joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venture of the other, it is understood and agreed that the relationship of the Parties is that of independent contractors.
17.5. This Agreement and the IO constitute the entire agreement between the parties with respect to the campaigns noted in the IO and supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written between the Parties. In the event that the Company is required to digitally sign or agree to any additional terms when using the Advertiser’s network, site or platform, the Parties agree that such digital agreement is merely a technical requirement to view statistics and/or to access advertising content. Accordingly, any digital acceptance of required click-through website terms or terms that appear on the Advertiser’s program or network site shall have no force or effect against the Parties to the extent they are acting under this Agreement; shall not govern the Parties; and shall be disregarded and deemed non-effective and superseded by this Agreement.
17.6. Neither party may assign this Agreement and the IO without the express written consent of the other. Notwithstanding the foregoing however the Company is able - and if this is deemed appropriate – and may broker or assign this Agreement and the IO at any time, in part or whole, to an affiliate marketer with whom the Company has entered into its standard affiliate agreement. Such an assignment may be affected without seeking the prior written consent of the Advertiser, but the Advertiser might be notified of such an occurrence at the discretion of the Company.
17.7. The Company reserves the right to include the Advertiser’s name in any advertisement, publication, press release or promotional material, without seeking the Advertiser’s prior consent. In case promotional materials will need to be produced by the Company, the Company may request from the Advertiser and the Advertiser will supply the Company with at least 1 (one) digital copy of art and/or other possible promotional materials produced that may be copied, printed, and/or distributed at conferences, signings, mailings, trade shows, etc.
17.8. The Parties shall notify each other as soon as practicable (no later than 5 (five) working days) of a change of legal entity status, valid address (location), phone (fax) numbers, e-mail addresses, new authorized representatives and such other identifying or financial information.
17.9. Your personal information matters to us. Our Privacy Policy and Cookie Policy provide detailed explanations of the information we collect about you and how we use it.
17.10. You are prohibited from using any device, software, or routine to interfere with or attempt to disrupt the proper functioning of the Website. Additionally, you may not take any action that places an unreasonable or disproportionately large load on the Company’s infrastructure. Any unauthorized or unlawful use of the Website or Service is deemed to cause irreparable harm to the Company, for which monetary damages alone would be insufficient. In such cases, the Company reserves the right to seek immediate injunctive relief against you, without the requirement of posting a bond, in addition to any other remedies available under the Agreement.
17.11. Our Website may feature advertisements, promotions, and links to third-party websites or resources, as well as non-commercial references to third parties within its content. We are not responsible for the availability, content, or functionality of these external websites or resources. Additionally, we do not endorse or assume liability for any products, services, or information provided by third-party websites or resources. Should you engage with any third parties through our Website, their terms and conditions will govern your interaction with them. We disclaim all responsibility and liability for the terms, actions, or omissions of such third parties.
17.12. If you have any questions or need further clarification regarding these Advertiser Terms and Conditions, please do not hesitate to contact us. You can reach us by email at [email protected].