1.1 "Actual Advertising Cost” is defined as the total Deliverables achieved times the unite price (rate) per Deliverable specified on an IO.
1.2 “Action” means a specific end user’s activity or a combination of activities specified in the IO, which may, under the conditions provided in the present Terms, be considered a Deliverable.
1.3 “Advertising Materials” is herein defined as any graphic file and/or any and all accompanying printed, hand written or electronically transferred information supplied by Adwool to Publisher to be displayed for advertising purposes.
1.4 “Advertising Services” means distribution of the Advertising Materials over the Internet using various online delivery methods with the purpose of bringing the Product or Service to the attention of potential customers of Adwool.
1.5 “Confidential Information" means any information, technical data, or know-how, including, but not limited to, that which relates to advertisements, research, business plans, marketing plans, contract terms, budgets, product plans, products, services, Advertisers, vendors, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, and marketing or finances of either party whether communicated in writing, orally, or through electronic means. Confidential information does not include information which was already in the possession of the recipient; information that is in the public domain; or information which recipient becomes aware of through an unrelated third party.
1.6 “CPA” means “Cost-per-Action”, it is a pricing model, whereby Advertiser pays for each specified Action. CPA includes but not limited to Cost-per Click (“CPC”), Cost-per-Lead(“CPL”), and Cost-per-Install(“CPI”).
1.7 “CPM” means a pricing model, whereby Advertiser pays for each thousand (1000) impressions of Advertising Materials.
1.8 “Deliverable” is defined as a measurable result of the display of Advertising Material.
1.9 “Pricing Model” means a method of calculating the Service Fee due to Publisher for the Advertising Services.
The terms, including without limitation, unite price, campaign type, pricing model, budget cap, and any restrictions or instructions, of each advertising campaign may be outlined on a separate Insertion Order (“IO”) or on a written notice (“Notice”) sent by one party to another party at the email address as set forth in the “Notice” section below. In the event of any conflict of terms between the terms written on any IO/ notice and this Agreement, the terms of the concerned Insertion Order/notice shall prevail.
3.1 All Advertising Materials and other materials provided by Adwool to Publisher hereunder shall be used exclusively for the purposes of provision of the Advertising Services.
3.2 Publisher shall ensure that all Advertising Materials render completely and function properly. All costs and damages resulting from technical problems relating to the Advertising Materials shall be borne by Publisher.
3.3 Adwool 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. Adwool shall notify Publisher about its decision via email and Publisher shall withdraw and/or replace the Advertising Materials as instructed by Adwool within the time frame as indicated in the email but in no event later than twenty four (24) hours from the receipt of such email from Adwool. 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.
4.1 Deliverables. 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/Notice shall not be considered a Deliverable and shall not form a basis for the Actual Advertising Cost. Unless explicitly stated otherwise in the IO, an incentivized activity or a combination of activities of end users shall not be considered a Deliverable. Adwool reserves the right to charge back any Actual Advertising Cost attributable to Publisher that are later determined to have not met the requirements for Deliverable.
4.2 Invoices. Publisher will issue invoices to Adwool only after received approved numbers, within five (5) calendar days. The invoices shall at a minimum contain the number of Deliverables, the unite price (rate) per Deliverable, the Actual Advertising Cost and such other additional information as may be requested by Adwool. The invoice shall cover only those Deliverables that meet the criteria specified on the applicable IO. Unless otherwise specified on an IO, invoices shall be based on Adwool’s deliverable measurements.
4.3 Additional Information. In addition to the invoice, within twenty four (24) hours upon Advertiser’s request send via e-mail, Publisher shall provide to Adwool such information regarding the progress in the performance of the Advertising Services as will be requested by Adwool in the form suitable for Adwool.
4.4 Total maximum Deliverables. Adwool shall not be charged for more than the total maximum Deliverables specified on a given IO.
5.1 Records. Publisher shall keep accurate records relating to all Deliverable per country within the Territory throughout the Term and throughout the one (1) year period thereafter. Upon not less than thirty (30) days’ prior written notice, such records shall be open for inspection at Publisher’s offices during normal working hours by Adwool or an independent third party certified public accountant designated by Adwool. Any discrepancies found shall be rectified within thirty (30) calendar days by Publisher.
5.2 Restrictions. Except as otherwise expressly set forth in this Agreement, Publisher shall not use or apply for (or cause a third party to use or apply) any trademarks or other marks or domain names that is the same as or confusingly similar to any of the designs, names, characters, items or marks provided by Adwool or contained in the Creative during or after the term of the Agreement, or use the aforementioned designs, names, characters, items or marks (or any confusingly similar designs, names, characters, items or marks) as part of Publisher’s corporate name.
5.3 Intellectual Property Rights. Publisher acknowledges that all title to and interest in the Creative, including intellectual property rights, as well as Adwool’s and its Affiliate’s brands and trademarks (collectively “Rights”), are the exclusive property of Adwool, and that all rights will at all times and for all purposes vest and remain vested with Adwool. Publisher shall not acquire or claim any title to the Creative or the Rights, or the goodwill attaching thereto by virtue of the rights granted to it, except as specifically contemplated by this Agreement.
6.1 Warranties. Both parties hereby represent that they are authorized to enter into this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ADWOOL SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND WARRANTIES IMPLIED FROM COURSE OF DEALING OR PERFORMANCE.
6.2 Publisher's Representations. Publisher represents and warrants that: (1) All content, products, and services on the Publisher´s website(s) , application(s), newsletter(s) or any other form of advertising media are legal to distribute, and it owns or has the legal right to use, and will not infringe upon any copyrights, trademarks, patents or other proprietary rights appearing on its website(s); (2) the Publisher's website(s), application(s), newsletter(s) or any other form of advertising media are free of any type of malware or other device that could impair or injure any person or entity; (3) it conducts its business in compliance with all applicable laws, rules and regulations; (4) the execution of this Agreement and the performance of its obligations hereunder will not conflict with or cause a breach or violation of any agreement, law, regulation or other obligation to which Publisher(s) is a party or subject; (5) it will not use deceptive or false creative and/or representations and/or notifications to end users in order to initiate a program’s installation without the end user’s awareness, knowledge or consent; (6) it will not use automated or direct installation of a program or using any automated program intended to generate non-human clicks (this may include by using scripts, web crawlers, spiders, bots or other similar non-human programs that result in installation of a product or any other program without the end user’s knowledge);
6.3 Indemnification.Publisher will defend, indemnify and hold harmless Adwool from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim of action brought against Adwool arising out of or related to a breach by Publisher of its representations and warranties or any of Publisher’s obligations as set forth in this Agreement.
6.4 Limited Liability. Adwool shall not be liable to Publisher for any indirect, special, punitive, consequential, or incidental damages, including, lost profits arising out of, or related to this Agreement, however caused and on any theory of liability including but not limited to negligence, even if Adwool has been advised of the possibility of such damages. In any event, Adwool’s total liability to Publisher, in respect of any losses arising under or in connection with this Agreement or related thereto, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to the total fees paid by the Adwool to Publisher in the previous six months with regard to the campaign(s) in question.
Neither party shall disclose or use the other party’s confidential information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party. However, either party may disclose the other party’s confidential information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Adwool’s confidential information shall remain the property of Adwool, and Publisher's confidential information shall remain the property of Publisher. The parties shall not disclose any of the terms and conditions of this document to any third party without the prior written consent of the other party.
8.1 Termination. Adwool 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 twenty four (24) hours cancellation notice to Publisher via email. The Advertising Services specified in the cancellation notice shall be considered to be cancelled in twenty four (24) hours from the moment of receipt by Publisher of the cancellation notice from Adwool (the “Cancellation Moment”).
8.2 Effect of Termination. Upon the Cancellation Moment, Publisher shall remove all of Adwool’s Advertising Materials. Publisher shall be entitled to the Actual Advertising Cost attributable to the Advertising Services actually performed as of the Cancellation Moment. Publisher will send Adwool a final invoice within thirty (30) calendar days after the Cancellation Moment, and Adwool will issue payment thirty (30) calendar days thereafter. The Advertising Services performed after the Cancellation Moment shall not be payable by Adwool. If Adwool has prepaid, in the event of cancellation of the Advertising Services, Publisher shall return to Adwool the amount of prepayment reduced by the amount of that accounts for the respective Advertising Services actually performed by Publisher as of the Cancellation Moment. Such return shall be performed by Publisher within thirty (30) calendar days of the Cancellation Moment.
8.3 Survival. Sections 3 - 7 will survive the termination of this Agreement.
9.1 Independent Contractors.The parties are independent contractors, and neither party will be deemed to be an employee, agent, partner, or legal representative of the other. Neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other.
9.2 Assignment. Neither party may assign this Agreement or any rights hereunder without the express written consent of the other party, unless such assignment occurs by operation of law or to under a sale, merger or acquisition of all or substantially all of the stock or assets of the assigning party; any attempted assignment in violation of this provision will be null and void. This Agreement is binding on the parties respective successors and permitted assigns.
Except as otherwise expressly provided in this Agreement, all notices sent by one Party to the other Party pursuant to or in connection with this Agreement shall be in writing and shall be deemed to have been sufficiently given and received for the purposes of this Agreement if sent to the other Party at the email address as set forth below and shall be deemed received upon confirmation of receipt.
Notice to Adwool shall be sent to firstname.lastname@example.org.
9.4 Waiver. The failure of a party to require performance by another party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
9.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.6 Governing Law and Jurisdiction. This Agreement shall be governed by and construed and interpreted in accordance with English law and the parties submit to the exclusive jurisdiction of the English Court.
9.7 Counterparts. This Agreement may be executed in multiple counterparts, each of which will be considered to be an original, but all of which together will constitute one and the same instrument.
9.8 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or meaning of this Agreement or any portion hereof.
Entire Agreement and Modification. This Agreement is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. The terms contained herein are intended to supersede and will supersede any other agreements entered into between the parties prior to the date written above concerning the same subject matter. This Section will not apply to terms written in an IO/Notice which is sent in compliance with this Agreement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in this Agreement. This Agreement shall supersede any online agreement entered into between the parties and the terms of such online agreement shall not apply.
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