These Standard Terms and Conditions on Relations with Publishers dated 01.09.2018 will apply to all purchase orders in which they have been referenced. Discover Tech and Publisher agree to be legally bound as follows:
- “Advertiser” means any client of Discover Tech.
- “Ad Units” means any or all of the following: individual ad units, impressions, clicks, downloads or installs.
- “Confidential Information” means all data and information of a confidential nature, disclosed during the term of the agreement by one party to the other party, as well as information of which the receiving party knows or should know that the disclosing party regards such information as confidential, including but not limited to:
- a party’s business plan, strategy, know how, marketing plans, finance, personally identifiable end user information, pricing, technology, personnel matters, trade secrets;
- the terms of the present agreement or Purchase Order;
iii. any information marked or designated by the disclosing party as confidential.
Information is not Confidential Information if:
- it was already publicly known when received by the receiving party;
- the information was known to the receiving party prior to receiving it from the disclosing party; or
iii. the receiving party has developed it independently.
- “Creative” means creative included in Advertiser’s advertising material.
- “Discover Tech” means Discover Tech.
- “Irregular Events” means any of the following occurrences or activities, regardless of whether or not they are carried out by, condoned by, or known to Publisher at whatever given point in time:
- fraudulent traffic: the inclusion in any report or deliverable of Ad Units that result from an intentionally deceptive practice designed to manipulate legitimate ad serving or measurement processes or to create fictitious activity that leads to inflated counts or uses in calculations, anything other than natural persons viewing actually displayed ads in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform. Without limitation, fraudulent traffic includes, the inclusion or counting of views: (i) by a natural person who has been contracted or engaged for the purpose of viewing such ads, whether exclusively or in conjunction with any other activities of that person; (ii) by non-humans, i.e., “bots”; (iii) or by any combination of (i) and/or (ii); (iv) that are not actually discernable or perceived by a human being; and (v) by using a design that encourages or is reasonably likely to lead to accidental or unintended clicks by the user on any ads; or
- impressions, clicks, installs or actions generated by false representation, duress or force; or
iii. otherwise non-compliant traffic according to major tracking company’s analysis and guidelines.
- “Publisher” means any publisher who runs an advertising campaign through Discover Tech and has entered into a Purchase Order.
- “Purchase Order” means any purchase order entered into by Publisher and Discover Tech while running Discover Tech’s advertising campaigns.
- Publisher must deliver Ad Units as provided for in the Purchase Order.
- Warranties and representations
- Publisher warrants and represents that Publisher is the legal owner of the URL or any other digital media source (“Digital Media”) specified in his Account, an employee of the legal owner of the Digital Media or has obtained express written permission from the legal owner of the Digital Media in connection with the use of the Discover Tech Perform Platform with the aforementioned domain. Without derogating from any other provision in this Agreement, Publisher expressly agrees to indemnify Discover Tech from any claims, losses, damages, including by any third party, arising from or in connection with the use of the Discover Tech Perform Platform with the specified Digital Media.
- Publisher warrants and represents that none of the materials posted on Digital Media or otherwise used in connection with the present agreement
- are in violation of any applicable legal rules and regulations which may reasonably be considered to apply to the publication and/or dissemination of such materials;
- infringe the intellectual property or personal rights of any third party; and
iii. contain or link to any material which is harmful, threatening, defamatory, obscene, harassing, promotes discrimination, promotes illegal activities, or otherwise contains materials that may reasonably considered objectionable.
- c. Publisher warrants and represents that Publisher complies with all applicable regulations and with standard industry practice, including but not limited to regulations and industry practice regarding:
- child protection;
- gambling; and
- d. Without prejudice to Discover Tech’s or any other third party’s claims and remedies, if Discover Tech notifies Publisher of a violation of the placement specifics indicated on the Purchase Order, Publisher must make a commercially reasonable effort to correct such violation within 24 hours and Discover Tech reserves the right to pause Publisher’s campaign.
- Discover Tech will grant Publisher a non-exclusive, non-transferable license to use the Creative solely for the purpose contemplated by the Purchase Order.
- Publisher must not modify the Creative without obtaining Discover Tech’s prior approval.
- Publisher must use the Creative in strict compliance with any written instructions provided by Discover Tech. Written instructions may include instructions by e-mail. Publisher may reject the Creative if deemed inappropriate.
- Publisher will invoice Discover Tech on a monthly basis.
- Publisher’s invoice must display the total Publisher’s earnings that are invoiced. The invoice must include evidence in relation to the invoiced earnings. The earnings that Publisher invoices must be based on Discover Tech ad server reports or on reports from a mutually agreed third party service.
- If Discover Tech identifies an error in said reports even after submitting reports to Publisher, or if Publisher identifies a discrepancy between Publisher’s and Discover Tech’s reports, Discover Tech and Publisher will cooperate in good faith to correct such error.
- Provided that the total earnings displayed on the invoice accurately reflect the Ad Units that the Publisher delivered, Discover Tech will pay Publisher’s invoice within thirty days from the receipt of invoice, to the extent proceeds have cleared from Advertiser to Discover Tech.
- The amount invoiced and paid out by Discover Tech will include any and all applicable tax. Discover Tech will not be liable to pay any tax on the invoiced amount over and above the amount that is displayed on Publisher’s invoice.
- In accordance with applicable ISO standards, Discover Tech will apply SWIFT payment instruction code SHA when making a SWIFT payment to Publisher. Discover Tech will only pay the outgoing transfer charge. The recipient Publisher will pay the incoming transfer charge.
- Discover Tech may withhold payment until the billable amount reaches the minimum threshold of 250 EUR (for invoiced amounts in EUR) or 250 USD (for invoiced amounts in USD).
Publisher must not:
- unless explicitly permitted by Discover Tech, deliver Ad Units that include the words “free”, “no cost”, “no charge”, or anything that means “free” or “with no obligation or participation”;
- send unsolicited e-mail that mention Advertiser;
- use bots on bulletins, community sites, message boards, chat communities, or social networks to promote Advertiser;
- to another publisher’s detriment, interfere with Advertiser’s or Discover Tech’s tracking link.
- Ad Units resulting from Irregular Events
- Publisher must not provide Ad Units resulting from Irregular Events.
- Discover Tech will not pay for Ad Units resulting from Irregular Events.
- To the extent any amount attributable to Irregular Events is billed to or paid by Discover Tech, Publisher shall adjust the applicable invoice, or if paid, at Discover Tech’s option, refund or credit such payment.
- Confidential Information
- The parties must not disclose any Confidential Information.
- The receiving party must hold all Confidential Information in trust and confidence and, except as may be authorized by the disclosing party, must not use such Confidential Information for any purpose other than as expressly set forth in the present agreement or disclose any Confidential Information to any person, except to those of its employees and professional advisers who need to know such information in order for the receiving party to perform its obligations hereunder and who have entered into a confidentiality agreement.
- A disclosure is not a prohibited disclosure within the meaning of the present agreement if:
- the disclosing party has expressly consented to the disclosure in writing prior to the disclosure;
- the disclosure is made to external advisors, auditors, attorneys or experts, provided that the respective receiving party is under a professional duty of confidentiality; or
iii. the disclosure is made in order to comply with a legal requirement or with a decision made by a competent court or arbitral tribunal, or a stock exchange or supervisory authority, or some other government authority, provided that
- the disclosing party is made aware of the disclosure either prior thereto or as soon as possible subsequent thereto; and (ii) the receiving party has made reasonable efforts to maintain the information’s confidential character.
- Following termination, each party must use reasonable commercial efforts to return or destroy the other party’s Confidential Information.
- Data protection, data collection, processing and transfer of data
- Within the scope of this contractual relationship, Publisher shall transfer inter alia the following data (if required and available) to Discover Tech for the purpose of advertisement, billing and reporting:
- device data;
- location data;
iii. publisher ID;
- app or site being used at the time of impression.
- In the event that any transferred data under the present clause contains information concerning the personal or material circumstances of an identified or identifiable individual (personal data), Publisher warrants that the collection, processing and transfer of personal data comply with the applicable data protection law. In particular, Publisher warrants that Publisher has:
- obtained the end user’s consent, approval, opt-in, waiver, authorization or clearance to collect, process or use the end user’s data as may be required by applicable laws and industry practice and standards;
iii. notified the end user that the privacy and data protection laws in the countries in which the end user’s data may be collected, processed or used may vary from the laws in the country in which such end users live;
- complied with industry guidelines, local, national and European regulations on data protection and privacy laws, including the German Bundesdatenschutzgesetz and Telemediengesetz; and vi. contractually obligated any third party (including, but not limited to, any agent or employee) who handles personal data on behalf of Publisher to comply with all of the above.
- Publisher must, in particular:
- keep a written record of all of Publisher’s efforts to comply with section 9; and
- provide Discover Tech with proof of compliance under section 9 b., should Discover Tech request such proof.
- Publisher grants Discover Tech the right to collect, process, use or store data as provided for in section 9 a. and to profile based on that data.
- Discover Tech maintains and controls all Advertiser contact and account management. Publisher must not contact Advertisers without Discover Tech’s prior consent.
- Publisher must not circumvent Discover Tech directly or indirectly under any circumstances for the duration of any campaign as well as the three months that follow the termination of such campaign. In particular, Publisher warrants and represents that it will not enter into any negotiations and/or contracts with any Advertiser, provided it is known to Publisher that the entity in question is an Advertiser. For the purpose of the interpretation of this article, it is insignificant whether it was the Advertiser or whether it was Publisher which took the initiative to negotiate and/or contract with Publisher.
Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.
- Nothing in this Agreement shall limit or exclude the liability of either party, provided that the claims giving rise to liability arise out of:
- infringements of life, body or health; or
- the assumption of a guarantee or of a procurement risk; or
iii. the German Product Liability Act; or
- intentional or grossly negligent conduct of Discover Tech or of its statutory agent or other persons which Discover Tech may from time to time involve in the performance of its obligations towards Publisher; or
- violations of material contractual duties the fulfillment of which is necessary in order for the contract to be duly performed and in the compliance with which the respective other Party typically places reasonable confidence (cardinal duties).
- UNLESS WHERE DISCOVER TECH’S LIABILITY IS UNLIMITED UNDER LIT A. ABOVE, THE LIABILITY OF DISCOVER TECH TO PUBLISHER, AS WELL AS THE LIABILITY TO PUBLISHER OF ANY OF DISCOVER TECH’S AGENTS, EMPLOYEES OR OTHER PERSONS WHICH DISCOVER TECH MAY, FROM TIME TO TIME, INVOLVE IN THE PERFORMANCE OF ITS OBLIGATIONS TOWARDS PUBLISHER, SHALL, WHETHER ARISING OUT OF CONTRACT OR STATUTE, BE LIMITED TO THE AMOUNT THAT, TAKING INTO ACCOUNT THE NATURE AND TYPE OF THE PARTIES’ CONTRACT, IN PARTICULAR ITS VOLUME, CONSTITUTES THE DAMAGES THAT ARE TYPICALLY FORESEEABLE OR, ALTERNATIVELY, 50,000.00 EUR, WHICHEVER GREATER. ON NO ACCOUNT SHALL DISCOVER TECH’S AGENTS, EMPLOYEES OR ANY OTHER PERSON WHICH DISCOVER TECH MAY INVOLVE IN THE PERFORMANCE OF THE PARTIES’ CONTRACT OR CONTRACTS BE LIABLE TOWARDS PUBLISHER FOR ACTIONS OR OMISSIONS FOR WHICH DISCOVER TECH’S LIABILITY IS EXCLUDED HEREUNDER OR SHALL QUANTUM-WISE BE LIABLE IN EXCESS OF DISCOVER TECH’S LIABILITY.
- EXCEPT FOR BREACH OF CONFIDENTIALITY, WILLFUL MISCONDUCT AND GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PUBLISHER EXPRESSLY UNDERSTAND AND AGREES THAT PUBLISHER USE OF THE DISCOVER TECH PERFORM PLATFORM IS AT PUBLISHER’S SOLE RISK AND THAT THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM DISCOVER TECH OR THROUGH OR FROM ITS PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. DISCOVER TECH EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Publisher will indemnify and hold Discover Tech harmless from and against all claims (including reasonable attorney fees and costs) arising to any third party against Discover Tech due to infringement of the Publisher’s warranties and obligations under this contract. Publisher will be liable for any damage in this connection and the costs incurred by Discover Tech for legal action. This will not affect any further claims Discover Tech may have.
Publisher shall – upon first demand by Discover Tech or any third party nominated by Discover Tech – make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.
- Force majeure
Neither party will be responsible for delays caused by accidents, war, act of god, embargoes, or any other circumstances beyond its control.
- Term and termination
- The present Standard Terms and Conditions will begin to apply to the relationship between Discover Tech and Publisher on the date of signing of a Purchase Order referring to them, and they will remain in full force for as long as any Purchase Order is in effect between the parties thereto. The right to terminate for good cause remains unaffected.
- The present agreement must be terminated by providing written notice to the other party.
- Purchase Orders which specify the end of the campaign as “open” shall expire ipso facto once two years have elapsed since their conclusion unless the Parties agree otherwise.
If any provision of agreement should be held to be void, invalid or unenforceable, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby. Such provision or part thereof shall be treated as severable and shall be modified so as to be enforceable to the fullest extent allowed by law and shall be replaced by a provision that comes as close as possible in terms of economic and legal effect to the replaced provision. The same shall apply to gaps (if any).
- Non waiver; silence; implied conduct
- Failure of either party to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver of such terms, covenants and conditions.
- Silence on the part of one party does not in and of itself amount to acquiescence. However, reasonable inferences may be drawn from implied conduct in accordance with the applicable law, as well as the parties’ prior dealings and commercial customs and practices in general.
Discover Tech has the right to modify the present agreement and any Purchase Order made subject to the present agreement, by providing Publisher with two weeks’ notice by e-mail. Unless Publisher objects within the notice period, the modifications are deemed to have been approved by Publisher.
The present agreement will apply to any legal successors of the parties. In case of a legal succession, the parties will inform each other of that matter promptly.
Discover Tech will be entitled to freely assign any of its rights and obligations in connection with this Agreement or any subsequent business activity to any of its subsidiaries and/or affiliated companies or to a purchaser in the event of a sale to or acquisition, whether by merger, consolidation, reorganization or other similar transaction. This Agreement will bind and benefit the parties and their successors and permitted assigns.
- Entire agreement
- The Purchase Order and the underlying agreement will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Purchase Order.
- In case Discover Tech is required to accept any online contracts and/or terms and conditions as a requirement to get access to Publisher’s platform and/or its reports, both parties state that the acceptance shall not, by any means, bind the parties to any new contractual relationship other than the one hereunder and that this Agreement shall fully supersede every other contract accessible via Publisher’s platform.
- Governing law and jurisdiction
- The present Standard Terms and Conditions shall be governed by the law stipulated in the Purchase Order or Purchase Orders entered into between Discover Tech and Publisher.
- If there are multiple Purchase Orders between Discover Tech and Publisher which are in full force and effect at the same point in time, and if they contain incompatible provisions on the governing law,
- if one of the Purchase Orders provides for the application of German law, or if none of the Purchase Orders provides for any law, then the present Standard Terms and Conditions shall be governed by German law;
- otherwise, these Standard Terms and Conditions shall be governed by the law designated in the most recent Purchase Order.
- Disputes arising under and/or in connection with these Standard Terms and Conditions shall be resolved pursuant to the stipulations contained in the Purchase Order and/or Purchase Orders entered into between Discover Tech and Publisher.
- If there are multiple Purchase Orders between Discover Tech and Publisher which are in full force and effect at the same point in time, and if they contain incompatible provisions on the resolution of disputes, then these Standard Terms and Conditions may be invoked before any court or tribunal which may have jurisdiction under any of the Purchase Order(s) or otherwise.