AD NETWORK AND OPERATION AGREEMENT
General Terms and Conditions for the Publisher
These General Terms and Conditions (“General Conditions“), including all special conditions set out in the Annexes (“Special Conditions“), govern the relationship between Adapex and the Partner as identified in the Purchase Order. Adapex and the Partner are referred to individually as the “Party” and jointly as the “Parties“. These General Terms and Conditions, the Purchase Order and the Special Terms and Conditions together constitute the “Agreement“. This Agreement applies to the provision of the Adapex Services, as defined below, made available through the Platform. By clicking on accept or signing the contract, the Partner accepts all the terms of these Special Conditions included in this Agreement. If the Partner does not intend to accept the terms of this Agreement, the Partner must immediately stop using the Adapex Services. The use of the Adapex Services will be considered as tacit acceptance of the Agreement. This Agreement shall be effective from the date the Partner accepts it (by clicking on “I have read and accept” present on the Adapex Platform or signing the contract ) or as otherwise agreed with Adapex (“Effective Date“) and shall be effective until terminated in accordance with the terms of this Agreement.
- This Agreement applies to Adapex’s advertising solution which enable the Partner to monetise its advertising inventory. Adapex advertising solutions are composed of the services described in greater detail in these General Conditions and/or in the Special Conditions, where applicable (each a “Service” and jointly the “Services“). The Services shall be agreed between the Parties by means of a Purchase Order and/or the Platform and/or by e-mail and provided in accordance with this Agreement. The Partner may subscribe to one or more Services at the same time and/or decide to add new Services during the term of this Agreement
- Adapex Services facilitate the placement of advertisements in the various dedicated spaces within the Properties and the display of advertisements on the Properties using Adapex Formats.
- For the purposes of this Agreement, the Adapex Definitions contained in this link shall apply. The terms “including”, “such as” or “for example” shall be construed without limitation in respect of the following terms.
IMPLEMENTATION AND OPERATION
- Partner will comply with all technical requirements provided by Adapex for use of the Platform and access to the Services. Partner agrees not to remove the Tags and/or disable the SDK integration without providing Adapex with five (5) business days prior written notice. Partner may suspend the Tags by providing Adapex with 24 hours written notice. Adapex will provide the Partner with the necessary guidelines (an email will suffice for this purpose). The Partner acknowledges and accepts that Adapex will organize and manage the placement of Advertisements (monetising through programmatic and/or non-programmatic protocols, directly and/or through third parties).The Partner acknowledges that an unforeseen event and/or any significant event related to the industry or third party standards to which Adapex is subject, occurring during the term of the Agreement, which results in a significant technological or economic change beyond Adapex’s control may directly and/or indirectly affect Adapex’s performance of its obligations and the economic balance of the Agreement as determined at the time of signing the Agreement. In such a case, Adapex will inform the Partner, and the Parties undertake to seek in good faith an appropriate solution for the continuation of the Agreement. If the Parties are unable to agree on a solution within ten (10) working days, Adapex shall be entitled to terminate the Agreement by giving the Partner five (5) days’ written notice by e-mail or other equivalent means
- Partner agrees to comply with the technical implementation instructions provided by Adapex from time to time in order to enable the optimisation of the Adapex Services on the Partner’s Property.
- Adapex grants access to the Platform for Users through the use of the username and password communicated by Adapex to the Partner or which the Partner has set himself when creating his account on the Platform (“Identification Data“). The Identification Data is confidential and can only be modified by the Partner or, at Partner request, by Adapex. The Partner is responsible for the confidentiality and security of the Identifying Data and will not provide access to the Identifying Data to third parties, unless they are Platform Users authorized by the Partner. The Partner is fully responsible for all activities carried out on its account and for any consequences resulting from the use of the Identifying Data, including any loss, theft, appropriation and/or fraudulent use of the Identifying Data.
- The Partner shall provide all information requested during the registration process. The Partner must regularly check and update the registration information to ensure that it remains accurate, current and complete. Adapex will not be responsible for any problems relating to the operation of the Platform or the Services caused by the information provided by the Partner.
- The Partner agrees to use the Platform in accordance with the “Guidelines on the Use of the Platform”..
- The Partner explicitly recognizes and accepts that Adapex Network Members will determine the validity of the traffic and the validity of the Impression generated. If any Adapex Network Members considers, in its discretion, that the traffic or any Impression is invalid, such Impressions will not be taken into account for the purpose of calculating the compensation due to the Partner under this Agreement.
- In case the Partner generates a disproportionate amount of invalid traffic Adapex reserves the right to terminate the contract and retain the compensation due to the Partner under this Agreement.
- In the event that the Partner is not the owner of the Properties on which the Advertisements are shown through the Platform, the Partner guarantees that it (i) holds the necessary rights to the Properties and the content appearing thereon; and (ii) is authorized to use the Properties for the purposes of this Agreement. The Partner shall be responsible for compliance with the conditions prescribed for the use of the Platform and the conditions of this Agreement by the Platform Users.
- In addition, the Partner agrees to: (i) follow Adapex’s instructions in relation to the use of the Platform; and (ii) immediately inform Adapex of any event that may affect its ability to comply with the terms of this Agreement.
- Adapex may, at its sole discretion, with or without notice, temporarily or permanently suspend the Partner’s use of the Platform, without incurring any liability whatsoever.
- Adapex may deactivate any unused account for six (6) consecutive months for security reasons. If the Partner wishes to reactivate the account, upon request, Adapex will send the Partner new Identification Data to access the Platform. In the case of an account that has been inactive for at least twelve (12) months, Adapex will have the right to terminate the Agreement, without having to provide any further reasons.
PRICES, INVOICING AND PAYMENTS
- Partner agrees to allow Adapex a revshare in the amount set out in the Purchase Order for all advertising revenue generated by AdApex each month. Revenues will be based on net advertiser numbers (net of advertiser commissions, service fees and invalid traffic costs) and will be collected by AdApex, then paid on a monthly basis, net 60 days . Payments will be paid to the Partner in the first week of each month. The minimum monthly payment threshold is $200. Unpaid revenue will accrue until the minimum threshold is reached. In the event of termination of this Agreement mid-month for any reason, revenues and revshare will be paid pro-rata.
- Adapex Network Partners measure Impressions and other metrics against which fees are calculated. The Partner shall have access to a dashboard through the Platform that provides access to economic reporting as well as other statistics and measurements related to his account (“Matrix“). The Partner accepts that all Adapex measurements and statistics are final and binding.
- The fees are calculated on the basis of the Dynamic CPM in accordance with the conditions stated on the Platform and agreed between the Parties. However, the Parties may agree to use any other metric. In this case, the Partner and Adapex will agree on the applicable metric, which will be formalized in the Purchase Order or via email (as the case may be) and which may be modified from time to time when expressly agreed between the Parties. In the event of a conflict, the metric agreed by the Parties by email shall prevail.
- It is expressly agreed between the Parties that Adapex reserves the right to revise its pricing conditions during the term of the Agreement. In this case, Adapex will provide a 30-day written notice to the Partner (an e-mail will suffice).
- The Partner acknowledges that, in some cases, Adapex will have to make changes to the statistics reported on the Platform. In the event that the difference between Adapex’s and the Partner’s measurement exceeds ten percent (10%), the Partner shall notify Adapex within 15 days of the end of the billing month and the Parties shall attempt to remedy the divergence in good faith.
- Partner acknowledges that, where required by tax or governmental authorities, third party network providers or advertisers may deduct from advances, commissions and/or other payments to Customer hereunder any tax or other taxation or governmental charge or levy which they are obliged to deduct from such payments as aforesaid under or by virtue of any applicable tax or governmental provision, whether or not as a result of Partner’s status for tax purposes. AdApex shall be paid its fees based on the total amount earned by the Partner, not the net amount after any required withholding tax.
- All taxes due on monies received by AdApex for and on behalf of the Partner, such as monies received from third party networks and transferred to the Partner, shall be due and payable solely by the Partner and/or the owner of the site/app and charged to AdApex by any tax authority.
- In accordance with the Applicable Data Protection Laws, Adapex does not come into contact with personal data of the Partner’s Users. However, through the Adapex Services, Partner will share Users’ data with the Adapex Network. Members of the Adapex Network will act from time to time:
- as joint controllers for the operations of reading and writing information to the User’s terminal. This joint responsibility is limited to obtaining the legal basis and managing the User’s right to withdraw consent as described below.
- Data Processors (the list of all Members of the Adapex Network and the relatives DPA are available at the following link)
Accordingly, the Parties shall act as autonomous data controllers for the rest of the operations carried out.
- The Partner shall ensure that each of the Properties (owned and/or operated by it) is organized in such a way as to:
- inform its Users about: a) the use of third party technologies; and b) the collection of data and its use by Adapex and/or Adapex Network Members resulting from the Partner’s use of the Platform and Services;
- implement IAB technical solutions by Partner: specifically, (i) for the European market, a Consent Management Platform (“CMP“) registered with the IAB Transparency and Consent Framework (latest version) in order to collect and store valid consent from Users and to be able to demonstrate that such consent has been obtained in accordance with applicable law, including on behalf of Adapex Network Members; and (ii) for the California market, an opt-out mechanism registered or compatible with the IAB CCPA Compliance Framework in order to be able to demonstrate that such opt-out has been processed in accordance with applicable law. For reasons of technical interoperability, such solutions shall be integrated into the Properties through a format that complies with the IAB technical specifications. In addition, Partner shall ensure, by all means, that each applicable IAB technical solution is kept up-to-date so that it complies with changes in Applicable Data Protection Laws and technical specifications;
- when Partner is subject to a national or state-level privacy law, other than those set forth above, Partner will ensure that data collected through the Properties may be lawfully used and shared in all ways and for all purposes contemplated by the Agreement without limitation, by ensuring that (i) Users have been provided with lawful and appropriate mechanisms of choice and (ii) Users may exercise their rights. Partner has been informed that, to this end, Adapex encourages participation in an industry standardized transparency and consent framework (such as that of the IAB);
- in any case, the Partner will maintain and make available to Adapex, upon request, any evidence necessary for Adapex and Adapex’s Partners to justify its compliance with the law.
- Partner authorizes Adapex Network Members to collect, use, analyze and process Partner’s Raw Data:
- to execute the Agreement;
- as part of its activities, to operate, manage, test, maintain and improve Adapex and Adapex Network Members’ technology, the Adapex Services and Adapex Network Members Services, the Platform and other Adapex products, programs and/or services, including, as part of its redirection capabilities (i.e. segmentation, creation or integration of User profiles or inventory profiles, or creation of interest categories, etc.), to present to Users Advertisements based on their interests. ), to present Users with Advertisements based on their interests and to associate Partner’s Raw Data with other data obtained, including Adapex’s Partner Data; and as part of their performance campaign reporting, as well as their re-targeting capabilities (i.e. segmentation, creation or integration of User or inventory profiles or creation of interest categories, etc.) to deliver interest-based Advertisements to Users who have been exposed or not exposed to the Advertisements.
- In addition, Adapex may use and share without limitation any anonymised and/or aggregated data so that it is not identifiable and traceable to a specific individual.
- Each Party will remain the exclusive owner of the intellectual property rights it held prior to entering into the Agreement.
- Adapex is the exclusive owner of all intellectual property rights on and in respect of the Platform.
- Adapex grants the Partner a non-exclusive, non-transferable and revocable license for the duration of this Agreement to access and use the Platform in accordance with the terms of this Agreement. For the duration of the Agreement, the Partner grants Adapex (and Adapex’s Affiliates) a worldwide, royalty-free, non-transferable license to use, reproduce and depict the Partner’s trademarks and logos on all promotional literature related to the Platform and for the use of the Services.
DURATION AND TERMINATION OF CONTRACT
- Unless otherwise provided for in the Purchase Order, this Agreement shall be effective from the date of acceptance hereof and for the first twelve (12) months thereafter (“Initial Term“).
- Following expiry of the Initial Term, the Agreement shall automatically renew for successive periods of twelve (12) months (“Extended Term“).
- Either party to this Agreement may terminate this Agreement with or without cause by providing at least thirty working days’ written notice to the other party. Any termination of this Agreement (whether for cause or not) shall not affect the accrued rights or liabilities of either Party nor shall it affect the coming into force or continuation in force of any provision hereof which is expressly or by implication intended to come into or continue in force from or after such termination.
- Termination of this Agreement (for any reason) shall not affect the rights and obligations of the Parties arising prior to the date of termination. The following articles shall continue to bind the Parties following termination of this Agreement: 6, 7, 8, 9, 10, 11, 12, 13, 14, 18 and 19, and any other provisions of this Agreement that are consequently intended to survive any termination or expiration.
STATEMENTS AND WARRANTIES
- Each Party represents and warrants that:
- it has full capacity and power to enter into and perform this Agreement;
- once entered into, this Agreement shall be legally binding upon it and enforceable in accordance with its terms;
- entering into, implementing and performing this Agreement is not and shall not conflict with any contract, order, judgment or understanding, oral or written, to which it is a party or by which it may be bound; and
- it will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations, including applicable privacy and data protection rules and regulations.
- The Partner agrees to defend Adapex against any third party claims which are related to a breach by the Partner of any express representations or warranties under the Agreement. The Partner agrees to indemnify Adapex for any settlement amounts or sums by way of damages, liabilities, costs and expenses (including legal fees) awarded by reason of, or arising out of, the aforementioned claims.
LIMITATION OF LIABILITY
- Nothing in this Agreement shall exclude or limit either Party’s liability for: (a) death or personal injury; (b) fraud or fraudulent misrepresentation; or (c) wilful misconduct or gross negligence, or any other liability that cannot otherwise be limited or excluded by applicable law.
- Without prejudice to clause 13.1 above, and with the exception of the indemnity provision in clause 12 and claims arising from breaches of confidentiality, in no event shall either Party be liable to the other Party for any loss or damage arising out of or in connection with:
- interruption of use, loss or inaccuracy of data or expenses incurred in procuring substitute technology, goods or services;
- special or particular damages, even if the other party knew of the circumstances in which such damages might occur
loss of business;
- loss of revenue;
- loss of profits; or
- loss of or damage to goodwill;
whether such loss or damage is direct, indirect, immediate or consequential and whether arising in contract, tort (including negligence) or otherwise.
- Without prejudice to Art. 13. 1, if any liability of a Party arises, whether in contract, tort or otherwise, which is not otherwise limited or excluded by this Agreement, the aggregate amount thereof shall not exceed the amounts paid or payable under this Agreement during the twelve (12) months prior to the date on which such liability arises, provided, however, that the foregoing shall not limit the liability of a Party with respect to: (a) its indemnification obligations under Article 12; or (b) its obligations arising out of breaches of confidentiality.
- For the purposes of this Agreement, “Confidential Information” means the terms of this Agreement and any information, know-how and trade secrets in any form which is not publicly known and which is identified as confidential.
- Each Party agrees to:
- to keep confidential any Confidential Information it receives from the other Party, and to employ the same degree of caution that it uses to protect its own Confidential Information;
- not disclose to any third party any Confidential Information of the other Party without the express consent of the other Party:
- use the other Party’s Confidential Information solely to exercise its rights and perform its obligations in accordance with the terms of the Agreement.
- The obligations of the Parties with respect to Confidential Information shall continue in force throughout the term of this Agreement and for a further period of two (2) years after the expiry or termination for any reason of this Agreement, provided that the obligations of the Parties with respect to trade secrets shall continue in force until such trade secrets become publicly known for reasons other than a breach of this Agreement by the receiving Party.
- The Parties shall not be liable to each other for any delay or breach of this Agreement caused by any factor beyond the reasonable control of the Parties which prevents in whole or in part the performance of this Agreement, including (but not limited to) natural disasters, fire, storm, flood, earthquake, explosion, accident, acts of terrorism, wars, rebellions, insurrections, sabotage, epidemics, pandemics, lockdowns, quarantines or similar measures, labour disputes, shortage of workers, energy shortages, embargoes, transportation shortages or delays, any act or omission (including laws, regulations, disagreements or lack of approval) of any government or governmental agency (“Force Majeure“).
- It is expressly agreed that the occurrence of a Force Majeure Event shall result in the suspension of the Agreement for the sole period of duration of such event; provided that the Party intending to invoke this Clause 15 shall notify the other Party within a period not exceeding two (2) weeks of the occurrence of the Force Majeure Event, by email, specifying the period of suspension of its obligations and the Force Majeure Event justifying such suspension.
TRANSFER OF CONTRACT
- No Party may assign, transfer or subcontract its rights under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Adapex may assign this Agreement, without Partner’s consent (i) to a company belonging to Adapex’s corporate group; or (ii) to a third party acquiring Adapex or a controlling interest or all or substantially all of Adapex’s share capital. Any assignment of this Agreement in breach of the provisions of this article shall be null and void.
APPLICABLE LAW AND JURISDICTION
- The Agreement (including any dispute or claim of a non-contractual nature arising out of or relating to the Agreement) shall be governed by and construed in accordance with the laws of Delaware, without regard to any principles or rules of conflicts of laws which would result in the application of the laws of a different jurisdiction. The Parties agree that the court of Delaware shall have exclusive jurisdiction over all disputes (including non-contractual disputes) arising out of or relating to this Agreement and hereby waive any claim of forum non conveniens with respect to such jurisdictions.
- Adapex and Partner are independent contractors and nothing in the Agreement shall be construed to qualify either Party as a legal representative, partner, joint venturer, principal, employee or agent of the other Party.
- If any term or provision of this Agreement is held to be invalid or unenforceable, that fact shall not affect the other terms or provisions of this Agreement, nor shall it render such provision invalid or unenforceable in any other jurisdiction. In such cases, a valid provision that comes as close as possible to what the Parties intended to define commercially and that will replace the invalid provision shall be deemed to have been agreed. If such a change is not possible, the provision in question, or part of it, shall be deemed deleted and shall not affect the validity or enforceability of the remainder of the Agreement.
- The present Agreement constitutes the entire agreement and understanding between the Parties and supersedes previous agreements, declarations, negotiations and discussions between the Parties with respect to the Platform and the subject matter of the present Agreement.
- The Partner acknowledges and agrees that Adapex may update or amend this Agreement at any time. If the Agreement is revised, Adapex will inform the Partner of the changes through the Platform or by any other appropriate means. If such changes are material, Adapex will notify the Partner before the change becomes effective. Any use of the Services and/or the Platform by the Partner subsequent to the notification will be considered as acceptance by the Partner of the Agreement as amended. If Partner does not intend to accept such changes, Partner must immediately: (i) notify Adapex in writing; and (ii) stop using the Services and the Adapex Platform.
- Unless otherwise provided for in this Agreement, in the event of any discrepancy between what is set out in the documents making up the Agreement, the following shall prevail, in the order set out below: (i) Purchase Order (when applicable), (ii) General Terms and Conditions.