1. General Terms
This agreement (the “Agreement”) covers Advertiser’s participation in the Adverty VR/AR/MR advertising network for the purchase, deployment and management of advertising campaigns on the advertising network. Adverty will only promote Branded Campaigns and/or apps leading directly to Google Play and/or Apple’s iTunes Appstore. Adverty is allowed to promote Advertiser’s campaigns on its own placements and additional placements as will be added in the future by Adverty. Type of apps and content which are forbidden to promote at Adverty’s network are: Sexually Explicit Material, Violence and Bullying, hate speech, impersonation or deceptive behavior, personal and confidential information, intellectual property and copyright infringement, Illegal Activities and Malicious Products. Apps must meet Google Play or Apple iTunes app store Terms of Service if ads lead to one of those stores. Advertiser declares to have the right to promote all trademarks, service marks, trade names, and/or copyrighted material that were provided to Adverty as a publisher
2. Creative
Advertiser agrees to submit to Adverty all necessary creatives for the campaign specified, if any (the “creative”). The creative must meet the specifications provided by Adverty. Adverty shall have the right, with or without notice, to terminate the creative at any time and for any reason without liability, including, without limitation, if Adverty suspects that the above consists of forbidden content as defined in the preceding paragraph. Any changes to the creative for any ongoing campaign require at least two (2) business days of prior written notice. Advertiser hereby grants Adverty the license to transmit and distribute the creative delivered by Advertiser for publication via Adverty in accordance with this Agreement. Advertiser represents and warrants that (a) it is the owner or has the right to use and license the creative to Adverty as provided herein. (b) The creative is free of any virus or other defects. (c) the creative does not and will not infringe any copyright, trademark, patent, trade secret, or other proprietary right, whether registered or not. (d) Adverty can use any creative material that exists on Google Play or the Apple iTunes Appstore under the advertiser’s application page. (e) Advertiser has the full right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder. (f) The execution of this Agreement by Advertiser and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound. (g) When executed and delivered, this Agreement will constitute the legal, valid and binding obligation of Advertiser, enforceable against Advertiser in accordance with its terms
3. Reporting and tracking
Tracking and billing will be according to the Trackers records, unless explicitly agreed otherwise in writing between the parties. The Advertiser must report and prove any discrepancies related to their campaign to Adverty within five (5) days of the occurrence. Adverty is not liable for any discrepancies not reported within this time frame and Advertiser waives all right, title, and intent to dispute payment to Adverty based upon any discrepancy not reported within this time frame. Unless explicitly agreed otherwise in writing between the parties, in case of any discrepancy between Adverty and the advertiser Adverty will have the right to decide which data is the correct data and advertiser will have to follow Adverty’s decision. When applicable Advertiser will provide Adverty with a login to a dashboard to the advertiser’s system for billing purposes. In the event of discrepancies of more than 10% between Adverty’s records and Advertiser’s records, the parties shall discuss in good faith a solution to such discrepancies. Until a final solution is found to such discrepancies, the parties shall split such discrepancies equivalently (provided that the discrepancies do not exceed 10% of the budget), and each party shall have the right to pause this Agreement (except for payment obligations) by providing the other party with a written notice. In any case, the amount that is not under dispute will be invoiced and paid in full. The remaining amount which is under dispute will be invoiced when the parties reach a common ground
4. Payments
Unless explicitly agreed otherwise in writing between the parties, all payments by the advertiser will be made according to the Payment Terms. To the extent required by applicable mandatory law (and only in such event), invoices shall be paid to Adverty net of tax withholding, except in the event that, in the time of payment, Adverty has provided Advertiser with a valid withholding exemption
5. Termination
Each party has the right to terminate this Agreement, at any time, by providing the other party with a 48 hours prior written notice. For the avoidance of doubt, all obligations (including billing) shall continue to apply until the expiration of such 48 hours. Adverty reserves the right to terminate this Agreement immediately without a previous notice in case Advertiser breaches the Agreement and fails to cure the breach within 2 days of notification of the breach. In such case Adverty reserves the right not to refund the advertiser in accordance with the preceding paragraph
6. Intellectual Property
The parties acknowledge and agree that the Intellectual Property right of Adverty’s platform and its integration is solely owned by Adverty and/or Adverty’s licensors. Without derogating from the above mentioned each Party acknowledges the other Party’s ownership in its respective Intellectual Property and agrees it will do nothing inconsistent with such rights
7. Indemnification
Advertiser shall indemnify Adverty and hold it harmless from and against any claim, actions, suits, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorney’s fees) associated with any claim or action (collectively a “Claim”), to the extent such Claim arises from or is connected with (i) any misrepresentation or any breach of any warranty, covenant or agreement on the part of Advertiser; or (ii) claims of infringement of any patent, copyright, trademark, trade secret, or other intellectual property right of any third party
8. Confidentiality / Prohibition on Reverse Engineering
Each party acknowledges that no information (technical and/or business related), trade secret or any other propriety information of the other party will be delivered to any 3rd party, nor will be used other than for the purpose of this Agreement, without a written approval from the other party. Advertiser shall not decompile, disassemble, decrypt, extract or otherwise reverse engineer or attempt to reconstruct or discover any source code of, or any underlying ideas in, Adverty’s platform
9. Limitation of Liability
EXCEPT WITH RESPECT TO INDEMNIFICATION, CONFIDENTIALITY AND PROHIBITION ON REVERSE ENGINEERING PROVISIONS HEREUNDER, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. ANY AND ALL CLAIMS IN THIS RESPECT ARE EXPRESSLY WAIVED. EXCEPT WITH RESPECT TO INDEMNIFICATION, CONFIDENTIALITY AND PROHIBITION ON REVERSE ENGINEERING PROVISIONS HEREUNDER, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE TO THE OTHER FOR MORE THAN THE AMOUNT PAID BY ADVERTISER HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ADVERTY MORE THAN ONE YEAR AFTER THE DATE OF SERVICE
10. Advertiser is Independent Contractor
Adverty is an independent contractor of Advertiser. This Agreement does not create any employment, agency, partnership relationship between the parties. Neither party shall have the right, power or authority to obligate or bind the other in any manner whatsoever, except as otherwise agreed to in writing
11. Governing Law
This Agreement shall be governed by the laws of Sweden. Jurisdiction and venue for any suit or proceeding arising under or in connection with this Agreement or the relationship of the parties shall lie exclusively in the competent courts in Stockholm, Sweden. Nothing in this Section shall be deemed to limit the parties’ right to seek interim injunction relief in any court of law
12. Force Majeure
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God
13. Assignment
Adverty shall be entitled to assign this Agreement, without obtaining the written consent of Advertiser, to any entity that controls, that is controlled by, or that under common control with, Adverty, as well as to any entity acquiring all or substantially all of the shares or assets of Adverty, whether by way of a merger, a share transaction, an asset transaction, or otherwise
Brand Safety Policy
On behalf of Advertisers, Adverty will apply reasonable endeavours to minimise the risk of ad misplacement. Adverty deems apps and content to be inappropriate based on (but not limited to) the following default exclusion criteria: Adult Content, Malware/Adware, Hate and Racism, Illegal Drugs, Fraudulent clicks Full details on the methodology of Adverty’s Brand Safety compliance can be found at: www.adverty.com/brand-safety
Take down policy
Adverty shall take all reasonable steps to minimise the risk of ad misplacement on behalf of the Advertiser. In the event Adverty becomes aware of an incidence of ad misplacement Adverty will remove the ad as soon as is practicably possible. Adverty will action take down no later than 24 working hours after written notification is received. The contractual consequences of ad misplacement will be agreed between Adverty and the Advertiser on a case by case basis
