The following Specific Terms and Conditions (hereinafter “T&Cs”) are incorporated by reference into one or more Insertion Order(s) (“IO”) which, together with these T&Cs comprise the agreement (“Agreement”) by and between the ES WORLDWIDE LIMITED, legal entity registered under the law of Malta, Registration number C85662, Tax number 999170227, VAT number 25311817, registered address Depiro point BLK A2 Mons. G. Depiro street, SLM 2033 Sliema (“Advertiser”) and You, the publisher identified in respective Insertion Order (“PUBLISHER”) effective as of the date set forth on the first IO between the parties (the “Effective Date”). If there is a conflict between these T&Cs and an IO, the IO shall prevail.
WHEREAS, Advertiser wishes PUBLISHER to provide Internet-based lead generation, customer acquisition and/or other related marketing services for and on behalf of Advertiser for the campaigns listed in the IO (“Campaigns”), considering the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Advertiser and PUBLISHER, intending to be legally bound hereby, agree as follows:
DEFINITIONS:
Capitalized terms used but not defined in these T&Cs shall have the meanings in the IO. In addition, “Creative Material” shall mean the advertisement and any components or elements thereof provided by Advertiser to PUBLISHER including banner ads, emails including the body, header and subject lines, ad copy and/or other content that comprises the Creative Material.
SERVICES
PUBLISHER will display the Creative Material and perform lead generation services solely in the marketing channels described in the IO.
Advertiser hereby grants to PUBLISHER during the term of the Agreement, a non-exclusive, royalty-free, worldwide right and license by all means and, in any media, whether now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Creative Material and all its constituent parts. The parties understand and agree that Advertiser (or the third party who provided Creative Materials to Advertised) is the sole owner of any and all intellectual property rights associated with the Creative Material.
In connection with generating leads hereunder, PUBLISHER is authorized to market Advertiser´s products and/or services as provided for in the IO which may include: (i) via e-mail to those consumers in PUBLISHER´s proprietary database(s) of e-mail addresses (collectively, “PUBLISHER Databases”); and (ii) to consumers on websites owned and/or operated by PUBLISHER (collectively, “PUBLISHER Websites” and together with the PUBLISHER Databases, “PUBLISHER Media”).
PUBLISHER NETWORKS
PUBLISHER may make a third-party network available for the Advertiser, in which case the parties expressly acknowledge that PUBLISHER is entitled to allow such third parties (each, a “Network Member”) to provide or refer potential or actual customers to Advertiser.
PUBLISHER shall permit Network Members to run the Campaign, only in when such Network Members are considered subject PUBLISHER´s standards. If Advertiser determines that use of any Creative Material by a Network Member or a Network Member’s marketing practices do not reflect its corporate identity, Advertiser shall inform PUBLISHER and PUBLISHER shall make its best efforts to request the Network Member to modify the use of such Creative Material or cease its marketing practices.
MONITORING AND REMOVAL OF CREATIVES
Advertiser has the right to monitor PUBLISHER’s site and placement of Creative materials at any time to determine if PUBLISHER is following these T&Cs and relevant IO. Advertiser may notify PUBLISHER of any changes that Advertiser
feels should be made, or to make sure that PUBLISHER’s links to target web site are appropriate and to notify further PUBLISHER of any changes that Advertiser feel should be made. If PUBLISHER does not make the changes that Advertiser feel are necessary, Advertiser reserves the right to terminate this Agreement.
PUBLISHER may not remove any Creative Material without prior notice to Advertiser.
TERM
The term for any campaign will be indicated in the IO. These T&Cs shall continue until expiration of the last IO to expire. The Agreement, including any outstanding IOs, may be terminated by mutual consent of the parties. PUBLISHER shall be intitled to stop providing its service upon a written notice 48h. Advertiser shall be entitled to terminate this Agreement upon a written notice 48h prior to termination. All non-disputed amounts due to PUBLISHER will be paid during the upcoming billing cycle.
PAYMENT AND PAYMENT TERMS
PUBLISHER will invoice Advertiser at the payout rates reflected in the IO or any other binding document (including emails or any instant messaging systems sent to PUBLISHER by the Advertiser and accepted by PUBLISHER). Advance payments may apply if it has been agreed in the IO. Charges are solely based on Advertiser measurements, unless otherwise agreed to in writing. In case of dispute, Advertiser´s measurements shall prevail, provided that PUBLISHER does present relevant documentation such as records of post-backs. Nothing in this Agreement or an insertion order can obligate Advertiser to do credit to any party.
Advertiser shall make all payments to PUBLISHER according to the payment terms provided for in the IO. Clarification of payment terms see below this topic. All payments made to PUBLISHER shall include any sales, use or similar tax associated with such payment, or any other tax applicable according to PUBLISHER’s legislation. Advertiser shall, at all times, pay PUBLISHER for its services in spite of non-payment of any third party. All past due amounts shall accrue interest at the rate of two percent (0.5%) per month or the maximum rate allowed by law, whichever is lower.
Payment terms:
Net 30 – Advertiser pays within 30 days after the billing period;
REPRESENTATIONS, WARRANTIES AND COVENANTS
Advertiser and PUBLISHER each represent and warrant to the other party that (i) such party has the full corporate power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder, and (ii) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
PUBLISHER represents, warrants and covenants to Advertiser: (i) PUBLISHER will not intentionally add leads or clicks or inflate leads or clicks by intentional traffic generation; (ii) PUBLISHER will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the site tags, source codes, links, pixels, modules or other data provided by or obtained from Advertiser that allows Advertiser to measure ad performance and provide its services; (iii) all of PUBLISHER’s services associated with this Agreement comply with applicable laws, rules and regulations.
Should the Advertiser allege fraud, it shall provide sufficient evidence to support such claim in the period provided for in the IO.
Advertiser represents, warrants and covenants to PUBLISHER: (i) that it holds the required intellectual property rights and/or licenses necessary to license the Creative Material it supplies to PUBLISHER and (ii) the Creative Material provided to PUBLISHER (and their posting, display, use, reproduction, distribution, and transmission by PUBLISHER) do not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights and do not violate applicable laws, rules and regulations and do not contain any Prohibited Materials; (iii) the operation of Advertiser’s business and any business advertised using the PUBLISHER’s service complies with applicable laws, rules and Regulations and will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights; and (iv) Advertiser will maintain appropriate physical, technical and organizational measures to protect all non-public personal information, sales, registration, or data provided by or about a user against accidental loss or unauthorized access, use, disclosure, alteration, or destruction.
In addition, the Advertiser represents and warrants to PUBLISHER that none of the advertising provided contains any unlawful content, including but not limited to: (i) any material that consists of paraphilia or scatological activities; (ii) any material that contain children or minors in adult or sexual situations; (iii) any material that offers illegal products or services; (iv) promotion of incentives for online activity to surf websites, click on ads, or any activity that artificially enhances website or advertiser metrics; (v) promotion of violence, racial intolerance, or advocacy against any individual, group, or organization; (vi) promotion of fake documents, copied material, or paper mills; (vii) any unauthorized use of third party trademarks that either creates a likelihood of confusion that consumers will believe the products or services originated from the trademark owner, or is likely to dilute the value of a known trademark; (viii) promotion of drugs or any related paraphernalia; (ix) sales or offers of certain weapons, alcohol, tobacco or any related paraphernalia; (x) advertisements for electronic cigarettes are permitted but cannot contain tobacco; (xi) promotion or any attempt to profit from human tragedy or suffering; (xii) promotion of illegal activities that infringes on the rights of others; (xiii) any content that targets to children below the legal age; (xiv) any material that does not respect particular advertising rules for a specific website.
CONFIDENTIALITY
Each party (“Discloser”) acknowledges that during the performance of its obligations under this Agreement, it may be required to disclose to the other party (“Recipient”) certain information that it regards as proprietary or confidential. As used in this Agreement, the term «Confidential Information» means information regarding Discloser’s trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now-existing or future non-disclosure agreement between the parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature. Recipient agrees that it will not disclose any Confidential Information to anyone except an employee, agent or advisor (collectively, “Representatives”) 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, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by Recipient to comply with any requirement of law or order of a court or administrative body (provided that Recipient agrees to notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser’s expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. Confidential Information does not include information that: (i) is known to or in the possession of Recipient prior to its disclosure of information to Recipient hereunder, as evidenced by the Recipient’s written records; (ii) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of this Agreement; (iii) is made available free of any legal restriction to Recipient by a third party; or (iv) is independently developed by Recipient without use of or reference to Confidential Information.
Notwithstanding anything to the contrary in this Agreement, PUBLISHER may use and disclose any aggregate information (i.e. information that does not identify or relate specifically to Advertiser), which it has collected or received in providing the Services, to the extent necessary to perform, enhance or improve its services and/or for PUBLISHER’s business and marketing purposes.
Any personal data provided by Parties shall be treated by the other Party with the utmost confidentiality. The Parties will treat such personal data with the purpose of executing the present Agreement, ensuring full compliance with local regulations and any applicable Directives on Data Protection, in particular regarding information requirements and the acquisition of prior consent from those concerned.
DISCLAIMER OF WARRANTIES
Except as otherwise provided, PUBLISHER provides its services as performed hereunder, on an «as is,» «where is» and «as available» basis. Except as otherwise provided herein, PUBLISHER disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance.
PUBLISHER shall not be liable for the solvency of the media or any third party.
INDEMNIFICATION
Advertiser shall not be responsible for any action taken by the PUBLISHER. The PUBLISHER hereby agrees to indemnify, defend and hold Advertiser and its officers, directors, shareholders, successors, affiliates, employees, agents and representatives harmless from and against any and all costs, claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any claims and lawsuits or proceeding for libel, fraud, slander, copyright, and trademark violation as well as all other claims resulting from a relationship with PUBLISHER.
Notwithstanding anything to the contrary herein, in no event shall PUBLISHER or any of its affiliates or their respective officers, directors, employees or agents be liable to Advertiser or any third parties for any special, incidental, indirect or consequential damages, damages from loss of use, data or profits, or cost of procurement of substitute goods or services, arising out of or in connection with this Agreement. In no event shall PUBLISHER’s total cumulative liability, from all causes of action of any kind, exceed the amounts actually paid to PUBLISHER in the two (2) month period preceding the claim. PUBLISHER shall have no responsibility for failures due in whole or in part to acts or omissions of Advertisers or due to failures of or defects in third party systems.
GENERAL PROVISIONS
Assignment. Neither Party shall have the right to assign or otherwise transfer its rights nor obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void. Notwithstanding the above, Advertiser is hereby entitled to assign and/or transfer its rights and obligations under this Agreement to any company of the Advertiser’s group without prior consent of the PUBLISHER.
Independent Contractor. Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party’s prior written consent.
Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
Entire Agreement; Modification. These T&Cs together with any IO attached hereto constitutes the entire Agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral, regarding the subject matter. No modification, amendment, supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both parties.
Agreement in Counterparts. These T&Cs are deemed incorporated into an IO and will be effective when the IO is signed by Advertiser and PUBLISHER. An IO may be signed in counterparts, and facsimile signatures shall have the same force and effect as an original signature.
Notices. Any notice, approval or consent required or permitted hereunder shall be in writing and sent to the addresses set forth on the applicable Insertion Order and will be deemed to have been duly given upon (i) delivery, if delivered personally or (ii) if sent via email, upon receipt by the sender of electronically generated confirmation of delivery and opening by the recipient.