Advertiser Agreement (hereinafter, the “ Agreement ”)
This Agreement is entered between Wlompos Investments Ltd (hereinafter, “ Wlompos ”)
You (the “ Advertiser ”, “ You ”, “ Yours ”, etc.)
Hereinafter together referred as the ” Parties “ and individually as the ” Party ”
Wlompos and Advertiser hereby agree as follows:
1.1. Advertiser is a company or an individual willing to benefit from the advertising services of Wlompos within the Media Channel.
1.2. Advertising Materials are promotional materials provided by Advertiser or created by Wlompos on behalf of Advertiser, which Wlompos from time to time may request in order to attract attention to Advertiser`s Products including but not limited to text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders. Advertising Materials shall be conformed to this Agreement, the relevant IO and the legislation of the applicable territory.
1.3. Advertiser`s Products are software entertainment and information application for mobile or computer devices (including games, books and other components), working under all known operating systems, or any other product that needs to be promoted within the Media Channel.
1.4. Advertising Campaign (Marketing Campaign) is a complex set of qualified actions undertook by Wlompos aimed at the promotion of Advertiser`s Products and increase of internet traffic in respect of it. Advertising Campaign shall be arranged in strict compliance with this Agreement and the IO.
1.5 Insertion Orders are particular terms and conditions agreed between Advertiser and Wlompos for each Advertising Campaign launched by Wlompos.
1.6. Media Channel is an advertising channel used by Wlompos for advertising and promotion of Advertiser`s Products including any websites, applications, contents or any other media owned, operated, or provided by Wlompos.
1.7. Effective Date is the earlier of (i) the date when Advertiser and Wlompos sign the IO; or (ii) when Wlompos starts the Advertising Campaign according to request of Advertiser.
1.8. Representatives means, in relation to a party, its employees, officers, representatives, advisers and any other person to whom Confidential Information may be disclosed in connection with the Permitted Purpose.
2. THE SERVICE
2.1. Under this Agreement Wlompos shall arrange for Advertisers an Advertising Campaign and Advertiser shall pay Wlompos remuneration for its services in accordance with specific terms agreed in IO.
2.2. The Parties have agreed that all specific terms of the Advertising Campaign including but not limited to remuneration, KPI, Advertising Materials, territory, start and end date of the Advertising Campaign may be specified by the Parties in IO.
2.3. Wlompos shall implement, monitor, track and report on an agreed Advertising Campaign. Wlompos will furthermore report if and when errors have occurred in Advertising Campaign in order to rectify such errors so that such Advertising Campaign can be conducted as agreed by the Parties. Wlompos shall also, at its sole discretion, provide support and advice on an Advertising Campaign during the term of this Agreement.
2.4. Wlompos does not guarantee: (i) the placement, positioning or the timing of delivery of any Advertising Materials; (ii) the number (if any) of any impressions, publications, conversions or clicks on any Advertising Materials.
2.5. Advertiser confirms that all terms of this agreement are material and breach of any of them may lead to irreparable harm to Wlompos as monetary as well as reputational. Advertiser also agrees to indemnify Wlompos if it becomes subject to any monetary penalties arising as a result of a breach of this Agreement and/or the IO.
2.6. Advertiser hereby fully understands and agrees that in case of breach of this Agreement or relevant IO as Wlompos may determine at its own discretion, Wlompos is entitled to unilaterally terminate this Agreement and request immediate payment of all revenue accrued to at such time.
2.7. In order to identify Advertiser as a real person and to comply with the AML regulations and other relevant legislation, the latter shall provide Wlompos with Кnow Your Client documents available at http://appness.com/legal (“KYC documents”) within 30 days from signing of the IO. Advertiser undertakes full responsibility for the credibility and accuracy of the KYC documents and Wlompos shall not be liable to any third parties if any of the KYC documents have been found to be inaccurate or falsified. Advertiser shall also immediately inform Wlompos if any changes are made to the KYC documents. Wlompos ensures secrecy of KYC documents in accordance with the non-disclosure agreement (NDA) signed by the Parties. Wlompos reserves the right to amend the list of required KYC Documents at any time at its sole discretion.
3.1. The amount of rendered services shall be determined by the Parties by reviewing statistics of Wlompos and statistics of Advertiser, if otherwise not specified in the IO. In case of discrepancies between these two statistics, the statistics of Wlompos shall prevail.
3.2. For the purpose of effecting payments, Wlompos will issue to Advertiser monthly invoices. Advertiser hereby undertakes, agrees and covenants to effect payment of the amounts mentioned in the invoices. Such amounts may include, without limitation, all applicable and pertinent sales, use, excise and/or any other taxes, without set-off. Such amounts may also include compensations or deductions, all in accordance with the terms of this Agreement and the additional terms set out in the IO. Payment, unless otherwise is specified in the IO, shall be made to Wlompos within 30 (thirty) calendar days from the date that the invoice is issued and sent by Wlompos to Advertiser.
3.3 Overdue payments will accrue interest at the rate of 20% per annum or in any case at the maximum rate permissible by law, whichever is the greater. Such interest rate shall begin to accrue at the next calendar day from the Payment Due Date of the invoice, up and until final settlement of the said invoice and it shall be calculated on a daily basis.
3.4. Where applicable and in order to observe, monitor and record the performance of any Advertising Campaign, Wlompos may ask Advertiser to place the Wlompos tracking pixel(s) or any other necessary mechanisms for the purpose of observing, monitoring and recording the performance of any Adverting Campaign (collectively referred to as "the Tracking Tools" ). Such placement and testing shall be the sole responsibility of Advertiser. Even in the event that Advertiser fails to correctly place the Tracking Tools on the IO website or where the Tracking Tools will not be recording valid leads or actions, Advertiser hereby acknowledges and accepts that it will pay for each and every lead or action generated and recorded by Wlompos, unless such lead and/or action is determined to be fraudulent or invalid (as this is defined in the applicable IO).
3.5. In the event that any Party believes that there is a discrepancy in the reports, such Party must provide the other with a reasoned report of such discrepancy within five (5) calendar days from receipt of the report of the non-claiming Party. Otherwise, the party producing reports shall not be liable for such discrepancy.
3.6. Wlompos provides the ability to perform different payment methods agreed in the IO by the Parties.
3.7. Advertiser is responsible for all applicable taxes associated with provided ad services, other than taxes based on Wlompos income.
3.8. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to Wlompos may be shared by Wlompos with companies who work on Wlompos’ behalf such as payment processors and/or credit agencies solely for the purpose of checking credit and/or effecting payment to Wlompos and serving customers account.
3.9. Advertiser’s obligations of payment specified in this clause shall be fulfilled regardless of its relations with third parties. In this regard Advertiser, entering into this Agreement at its sole risk, cannot be released from financial obligations before Wlompos if Advertiser does not receive appropriate compensation from their clients or any other third parties. Advertiser shall hold Wlompos harmless and indemnify it from any claims or liability related to such unpaid revenue.
3.10. Neither Party shall have a right to add any interest rate in case of deferral of payment or postponement of service rendering under the Agreement.
4. PUBLICATION OF ADVERTISER`S MATERIALS
4.1. Advertiser shall submit all types of Advertiser`s Materials in accordance with such due date as may be set out in this Agreement or as otherwise unilaterally set by Wlompos.
4.2. Unless otherwise agreed in writing, the positioning of Advertiser`s Materials on the Media Channel is at Wlompos’ sole discretion.
4.3. If Advertiser asks Wlompos to carry out the modification of an Advertising Campaign or any element of the Advertising Campaign (including without limitation through an authorization for Wlompos to optimize Advertising Campaign generally), Wlompos will carry out such modification within 48 hours if otherwise is not specified in IO. Request on modification shall be made in accordance with the terms of the Agreement and respective IO and applicable law. If the request on modification does not conform the conditions of the Agreement and respective IO and applicable law, Wlompos has a right to unilaterally decline the request with notification of Advertiser. Any such modification carried out by Wlompos shall be deemed approved by Advertiser from the earlier of: (i) confirmation from Advertiser, and (ii) the end of the 12th hour following the modification carried out by Wlompos. If Advertiser does not approve the modification, it must notify Wlompos via e-mail within 12 hours of the modification.
4.4. Advertising Materials shall not contain any information relating to an identified or identifiable natural person.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. Advertiser may not alter, modify, manipulate or create derivative works of Advertising Materials or any of its graphics, creative, copy or other materials owned, created or licensed by Wlompos to Advertiser in any way for the Advertising Campaign. Wlompos may revoke your license anytime by giving Advertiser written notice. Except as expressly stated herein, nothing in this Agreement is intended to grant Advertiser any rights to any of Wlompos trademarks, service marks, copyrights, patents or trade secrets. All rights not expressly granted in this Agreement are reserved by Wlompos.
5.2. Advertiser represents, warrants and covenants that it does not provide Wlompos with Advertising Materials in violation of any third party’s copyrights, trademarks, or other intellectual property rights. Advertiser represents, warrants and covenants that Advertiser abides by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by Advertiser.
5.3. All the parties hereby agree that Wlompos does not have any authority or ability to control content of the Advertising Materials that are provided by Advertiser, therefore cannot bear any responsibility regarding breaching of any third party’s intellectual property rights. Advertiser fully understands that violation of any clauses of this chapter may lead to termination of this Agreement and compensation of all losses incurred by Wlompos.
6. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
6.1. Each party will make every effort to uphold the highest ethical and commercial standards. If Wlompos requests that Advertiser`s Materials shall be removed from or not placed in any context that harms the goodwill or reputation of Wlompos, Advertiser will promptly comply with such request.
6.2. Advertiser accepts and acknowledges the full responsibility in the event that Advertiser`s Materials are invalid or illegal in any applicable jurisdiction.
6.3. Advertising Products shall meet the following criteria:
6.4. Advertiser will make all reasonable efforts to prevent unauthorized use of its software or application and to terminate any unauthorized use. Advertising software shall be installed only with the consent of the user, and shall provide ability of its removal without special additional programs.
6.5. Advertiser represents and warrants that it holds all necessary rights, permits and licenses to start Advertising Campaigns and to display Advertiser`s Materials and operate its web-sites and business activities in the selected jurisdictions. In case of breach of this obligation, Wlompos may terminate this Agreement at any time without prior notice and claim for compensation of incurred losses.
6.6. Advertiser undertakes to ensure that its servers support the traffic directed to Advertiser.
6.7. Advertiser agrees preclude third parties from placing Advertiser`s Materials that violate the requirements of the legislation, as well as ethics and morality rules.
6.8. Advertiser agrees not to modify, adapt, translate, disassemble or otherwise attempt to derive the source code of any software, used by Wlompos in Advertiser`s Materials.
6.9. Advertiser agrees to indemnify and hold Wlompos, its affiliates, subsidiaries, successors and assigns harmless from any and all claims, actions, judgments or liabilities arising out of or in connection with Advertiser´s Campaign, any breach of this Agreement by Advertiser and/or of any representation, warranty or agreement in this Agreement.
6.10. Advertiser provides to Wlompos all the necessary information under the Agreement. Herewith, Wlompos, its affiliates, subsidiaries, successors and assigns shall remain harmless in accordance with clause 6.9 of the Agreement and shall not bear any liability for disclosure of any information from Advertiser to Wlompos under this Agreement.
7. FRAUDULENT ACTIVITY
7.1. Advertiser is expressly prohibited from using any means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with the services provided by Wlompos. You are prohibited from any practice of disguising (cloaking) an Advertiser`s Materials with different content or landing page. Wlompos shall have the right, in proven cloaking attempts, to stop the Advertising Campaign, to withhold funds and to take all necessary legal actions to restore the damage caused by this violation. In any case Wlompos shall make all determinations about fraudulent activity in its sole discretion.
8. REJECTION OF ADVERTISER`S MATERIALS
8.1. Wlompos has, in its sole discretion, the right, without any liability, to deny any Advertising Material that includes or based on any inappropriate or illegal content such as, including but not limited to, the following examples:
8.2. Advertiser agrees that it bears full responsibility to third parties and Wlompos, including all due damages and compensations to the stated parties, for the Advertising Materials violating article 8.1 of the Agreement.
9. DISCLOSURE OF INFORMATION
9.1. Each Party and its Representatives (a “Receiving Party“ ) understands that the other Party and its Representatives (a “Disclosing Party“ ) may disclose information of a confidential nature for the purpose of exercising its rights and obligations under or in connection with this Agreement ( “Permitted Purpose” ) including, without limitation, product information, data, pricing, financial information, software, specifications, research and development and proprietary algorithms or other materials that is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used ( “Confidential Information“ ).
9.2. A Party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause 9 as if they were a party to this agreement.
9.3. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance.
9.4. The Parties agree that if disclosure is made to their professional advisors, auditors or bankers this shall be done subject to each Party procuring each such recipient’s agreement to keep such information confidential to the same extent as if such recipient were Party to this agreement.
9.5. The foregoing obligations under this section 9 shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third Party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information or (vi) express written consent has been given prior to disclosure.
9.6. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or regulatory or governmental order or requirement, or any tax authority to which that Party is subject or submits, wherever situated, whether or not the requirement for information has the force of law the Receiving Party shall promptly notify the Disclosing Party in order to allow such Party to contest the order or requirement or seek confidential treatment for such information.
9.7. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other all such other Party’s Confidential Information, or to certify to the Disclosing Party in writing that all such material has been destroyed, however, destruction is only permitted after Disclosing Party’s prior approval.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL WLOMPOS BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, OPERATION OF ANY PROGRAM, OR CREATIVE, INCLUDING BUT NOT LIMITED TO BROKEN IMAGES, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF WLOMPOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE INFORMATION, CONTENT AND SERVICES ON THE SITE ARE PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTY. YOU USE THE SITE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WLOMPOS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SITE, THE INFORMATION, SERVICES, AND CONTENT INCLUDED ON THE SITE AND PROVIDED BY WLOMPOS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WLOMPOS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THIS SITE OR PROVIDED BY WLOMPOS IS ACCURATE, COMPLETE OR CURRENT.
11.1. Advertiser shall irrevocably defend, indemnify and hold Wlompos and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
11.1.1. Advertiser's breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
11.1.2. Advertiser`s Materials, Advertiser Products and/or Advertiser websites; and/or
11.1.3. Any claim that Wlompos is obligated to pay any taxes in connection with Advertiser's participation hereunder.
12. FORCE MAJEURE
12.1 Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labour difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
13.1. Either party may cancel the advertising campaign and terminate this Agreement upon written notice of the other party. Wlompos reserves the right to amend the terms and conditions of this Agreement. Advertiser shall be informed of such amendments by e-mail or through the information being made available on Wlompos’ website. Amendments to Agreement come into force from the date of publication of such amendments or date of sending notification to Advertiser, whichever is earlier.
14.1 Assignment. (a) Wlompos may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement; and (b) Advertiser shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
14.2. Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of Cyprus. Any dispute, controversy or claim which may arise out of or in connection with the present contract (agreement), or the execution, breach, termination or invalidity thereof, shall be settled by the courts of Cyprus.
14.3. Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended by Wlompos at its sole discretion and such amendments shall take immediate effect upon the amendments being published on Wlompos’s website ( http://appness.com/legal/ , as amended or updated from time to time) or by email notification. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
14.4. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the 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 real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
14.5. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf.
14.6. Survival of Representation and Warranties. The Parties agree that all representations and warranties made by them in this Agreement shall survive the termination of this Agreement.
14.7. Headings. The headings and numbering of the different paragraphs of this Agreement are inserted for convenient reference only and are not to be taken as part of this Agreement or to control or affect the meaning, construction or effect of the same.