Terms and Conditions
myDSP enables Advertisers to deliver targeted and effective advertising campaigns in real time and it enables Agencies to manage their clients’ targeted and effective advertising campaigns in real time (the “myDSP Service” or the “Services“). The myDSP Service, owned and operated by Marketcom Technology Limited and its affiliated companies (“Marketcom,” “Company,” “we,” “our,” or “us“), is provided to you (“You”, “Customer”, “User”, or “Advertiser”) under these Terms and Conditions (“Terms”), together with the additional terms addendum and any additional annexes (collectively, this “Agreement”), and any amendments thereto and any operating rules or policies. Marketcom reserves the right, in its sole discretion, to change, modify, add or remove all or part of the Agreement at any time. If this Terms and/or any modification to this Agreement is unacceptable to Customer, Customer’s only recourse will be to terminate this Agreement as set forth herein. Customer’s continued participation with the Service following Marketcom’s posting of a new agreement on Marketcom’s site will constitute a binding acceptance of the change.
By accepting the Terms of the Agreement, the Customer:
(1) represents and warrants that Customer is of at least 18 years of age;
(2) agrees to provide accurate, current and complete information about Customer as prompted by the Account Registration Form;
(3) agrees to maintain and update this information to keep it accurate, current and complete.
If any information provided by Customer is inaccurate, not current or incomplete, Marketcom has the right to terminate Customer’s account. By completing the account registration process, and clicking the “register” button, Customer agrees to be bound by this agreement and acknowledges the establishment of an account on behalf of such Customer (the “Account”).
You acknowledge and agree that myDSP is operated by Marketcom as a passive conduit for the traffic distribution and publication of information submitted by you and may contain links to third party websites or services (“Third Party Services”) that are not owned or controlled by Marketcom. When you access Third Party Services, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third-Party Services relating to your use of the Services and that you will act in accordance with those policies, in addition to your obligations under this Agreement. Marketcom has no obligation to screen communications or information in advance on any Third-Party Services including Publisher Sites. Consequently, Marketcom will not be liable for the underlying advertising product(s) or service(s) provided by Third Party Services and/or Publisher Sites available through myDSP. Marketcom does not warrant the correctness, accuracy, timeliness, reliability of any content or information posted on Third Party Services and/or Publisher Sites nor do Marketcom makes any representation or guarantee regarding the level of impression, the conversion rate, or the timing of delivery of any impressions available through myDSP. Furthermore, Marketcom will not be subject to any liability whatsoever for: (a) Any failure to provide access to all or any part of the myDSP due to systems failures or other technological failures of Marketcom or of the Internet; (b) Network disconnection caused by the network operators; (c) System maintenance; (d) Server down, server maintenance or device failures of the third party publishers; (e) Service interruptions caused by events beyond Marketcom’s control; and (f) Errors in content or omissions in any Advertising Materials. By using the Services, you expressly relieve and hold harmless Marketcom from any and all liability arising from your use of any Third-Party Service and/or Publisher Site.
1.1 “Advertisement(s)” or “Ads” means any Content or materials provided by any Customer including by not limited to text, rich media, photographs, messages, information, data, tags, graphics, video, audio, underlying code, other material or combination thereof, and which is caused to be served on a publisher’s site or exchange. Customer must have a licensed or produced or otherwise have authority to display such materials for the purpose of promoting or marketing.
1.2 “Advertising Data” means any and all data collected from any campaigns or websites of Customer or Advertiser, relating to the Advertisements, data provided by or on behalf of Customer and any data identifying Customer or the Advertiser that is, and may, from time to time, be referred to as “Customer Data”.
1.3 “Auction Clearing Price” is the second highest bid in the auction and the price at which the impression is sold to Customer if Customer wins the auction.
1.4 “Bid” will mean the process by which a Customer submits an offer to purchase selected Digital Media Inventory through the Service for the placement of Advertisement(s).
1.5 “Business Hours” mean Sunday through Thursday from 9:00 a.m. to 6:00 p.m. Israel Standard time (IST), exclusive of holidays and federal or banking holidays in Israel.
1.6 “Content” will have the same meaning as and will be used interchangeably with Advertisement(s), except as expressly stated otherwise.
1.7 “Customer” means any person or entity that is authorized to acquire Digital Media Inventory for Advertisements and including “Advertiser,” “Advertising Agency,” or “Agency,” or any agent, employee, or other party authorized to act on behalf of the Customer.
1.8 “Customer Data” means end-user device information, end-user’s session-based browsing behavior, number of impressions, aggregate performance statistics, http header information and any other data that Customer elects to provide to Marketcom or any data that Marketcom collects during delivery of the Advertisement or the performance of its obligations under this Agreement.
1.9 “Customer Platform” Customer’s Demand Side Platform or Real Time Bidding Technology Partner, including all third-party Advertisers on the platform.
1.10 “Digital Media Inventory” means any digital advertising inventory sold or acquired through the Service and any advertising exchanges.
1.11 “Inventory” means elements of a website or application that a Publisher designates for placement of Ads.
1.12 “Max Bid” means the maximum bid established by Customer or its Advertiser.
1.13 “Marketcom Marketplace” or the “Website” means the Marketcom platform and service for automated, real-time bidding to match Ads with Inventory.
1.14 “Marketcom RTB API” means the Marketcom version of an open RTB protocol licensed pursuant to free BSD license.
1.15 “Marketcom UI” means the Customer online interface through which Customer can login and manage its Ad campaigns, as made available by Marketcom.
1.16 “Non-personally identifiable Data” means any data used by the Marketcom, myDSP or Service for bidding and delivery, and the data derived from the performance of the Services that does not specifically identify Customer, as well as the data relating to any error, issue or enhancement to the operation or use of the Services, aggregate date to improve the myDSP service and the data that Marketcom would have regardless of Customer’s use of the Services.
1.17 “Publisher” means a third-party seller of Inventory (typically a publisher) that owns or controls the sites or applications that host Inventory.
Marketcom has the right at any time, in its sole discretion to revise, update, or otherwise modify this Terms and Conditions as well as the content and Services available on Marketcom’s website (“Modifications“). We reserve the right to make any such Modifications, effective immediately, to maintain the security and integrity of Marketcom’s website, our users’ access information or to comply with any laws or regulations. We cannot guarantee that Marketcom’s website or Services will be free from errors, delays or interruptions. We have the right to change these terms at any time without advance notice, so please review these terms and conditions on a regular basis to stay aware of any changes. Any Modifications will be effective when posted. Your continued use of Marketcom’s website or Services after we have made such Modifications will constitute your acceptance of and agreement to such Modifications.
3. Inactive Accounts
Marketcom reserves the right to cancel or disable or terminate any accounts that are inactive for a period ofthree (3) months. “Inactive” will be defined as an account that has not been accessed via log-in for a period ofthree (3) months.
4. Permitted Uses of Services and Marketcom’s Marketplace
Customer hereby grants Marketcom a non-exclusive, royalty-free, worldwide right and license to reproduce, transmit, distribute, display and otherwise use all or some of the Advertisement for the purpose of carrying out Marketcom’s obligations under this Agreement and to perform the Services. In addition, Customer hereby grants Marketcom the right to display Customer’s logo and description on Marketcom’s website or any other media as part of Marketcom’s client list.
Subject to your acceptance and compliance with these Terms, Marketcom grants You a non-exclusive, non-transferable, non-sublicensable, limited right to access, use and display the Advertisement(s) on Marketcom’s Marketplace solely for purposes of: (a) bidding for Inventory on the Marketcom Marketplace, and (b) receiving reports of advertising requests, impressions and other data related to the delivery of Ads through the Marketcom Marketplace. You will not interfere or attempt to interfere Marketcom Marketplace or the Services in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or by any means prohibited by these Terms. You may not use the Website or the Services for any other commercial purpose other than as expressly stated herein.
Customer understands that: (a) the highest Bid may not always win an auction based on the functionality of the Services (e.g., seller of Inventory specifies requirements on bidding terms, or specifies exclusions regarding who may buy its Inventory), (b) the Marketcom Marketplace allows for transactions in real time, and bids and offers may compete simultaneously against multiple other bids and offers, and (c) Customer will have no recourse for any transaction that does not occur and Marketcom makes no guarantee regarding the level of impressions of Ads, the timing of delivery of such impressions or the amount of any payment to be made or due hereunder.
Unauthorized use of the Service, by those other than the Customers in these terms and outside of the outlined permitted uses here in, is prohibited. You will provide updated and maintain truthful, accurate, current, and complete information as prompted by the registration form for login credentials. We reserve the right to delete your Account if we believe you have misrepresented any of the registration information submitted. You must use all commercially reasonable efforts to safeguard your account credentials to prevent unauthorized use of, or access to Your Account and, the Service. You agree not to use the login credentials of another user at any time or to disclose your login credentials to any third party. You agree to notify Marketcom immediately if you believe your account or log in credentials have been used by an unauthorized party. You are solely responsible for any and all use of your account, including that by a third party that should have reasonably been prevented by safeguarding your log in credentials.
5. Use and Ownership of Data
This Agreement does not grant either party any rights, implied or otherwise, unless expressly stated, to the other’s content, Site, Advertisement or any of the other’s intellectual property. The intellectual property of each party is and will be protected by copyright, trademark, patent, trade secret and other laws, and each party will own and retain all rights in its respective intellectual property, including, but not necessarily be limited to, Customer Data and Non-Personally Identifiable Data.
5.1. Customer Data. Customer hereby grants Marketcom a perpetual, non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute Customer Data (in whole or in part) for the purposes of: (i) providing the Service to Customer pursuant to the terms of this Agreement; and (ii) use of data: (A) for reporting purposes including for Marketcom’s internal business purposes, including but not limited to the compilation and aggregation of statistics and trends, (B) for optimization and improvement of content and advertising across all carriers, (C) use and disclose such Data when it is aggregated with similar information relating to other Marketcom customers or end-users, and does not specifically identify the Customer or end-user (D) if required by court order, law or governmental or regulatory agency or stock exchange; and (E) with regard to various marketing and press releases to share with the market. Customer and its advertisers may use Customer Data to deliver the applicable Ad so long as such use is (a) in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Customer Data (including but not limited to applicable restrictions on retargeting, merging with other data, and use of PII or sensitive data); and (b) and that it provides any notices and options, and obtains any consents or authorizations from end-users that may be required in connection therewith. Notwithstanding the aforesaid, Customer hereby confirm that he will not collect any User-Level Data.
5.2. User Device Identifiable Information. Member or Advertiser will not merge any User Device-Identifiable Information data that identifies an end-user’s device (DII – Device-Identifiable Information) with Personally Identifiable Data (PII) held by the Member or Advertiser, or to otherwise re-identify the individual, for personalized advertising purposes without obtaining the individual’s opt-in consent.
5.3. Non-Personally Identifiable Data. Marketcom grants Customer for the duration of the contractual relationship a temporary limited, non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute Non-Personally Identifiable Data (in whole or in part) for the sole purpose of and only to the extent necessary for using the Service. Marketcom will use the Non-Personally Identifiable Data solely: (i) to operate, manage, maintain and enhance the Service, and (ii) to improve the Service’s method of predicting impression-level market clearing prices and winning bid prices for Service users.
5.4. Data Processing Addendum. To the extent that any end-user’s Data that are provided by Marketcom to Customer includes personal data of individuals who are in the European Union, then Marketcom’s Personal Data Processing Addendum (DPA), which is attached hereto as Annex A and serves as an integral part thereof, applies and the parties agree to comply with its terms.
6. Confidential Information
“Confidential Information” will mean all non-public information disclosed by either Party hereunder, whether written or oral, disclosed by either Party, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. All Confidential Information will remain the exclusive property of the disclosing party, and the receiving party will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein. The parties agree that they will: (i) not use the Confidential Information for any other reason other than for the purposes outlined in these terms; (ii) limit disclosure of Confidential Information only to their officers, directors, agents and employees who, prior to disclosure who will protect Confidential Information using the same degree of care as it uses to protect its own information of similar nature, but no less than commercially reasonable degree of care. The recipient will return or destroy all Confidential Information (including copies) that the disclosing party made available to the recipient under this Agreement upon request by the disclosing party, or upon Termination or Expiration of this Agreement. Confidential Information does not include information which: (i) has been or becomes published or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party; (ii) prior to disclosure hereunder, is properly within the legitimate possession of the receiving party which can be verified by independent evidence; (iii) subsequent to disclosure hereunder, is lawfully received from a third party having rights therein without restriction of third parties or the receiving party’s rights to disseminate the information and without notice of any restriction against its further disclosure; or (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified by independent evidence. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, regulation or stock exchange, provided that the Party making the disclosure pursuant to the order will first have given notice to the other Party, unless legally prohibited, and will have provided such assistance as may be reasonably requested to limit such disclosure. No Party will issue a press release or other public statement regarding this Agreement without the other party’s prior written consent.
7. Customer Obligations
Compliance with Laws.To the extent applicable to its performance under this Agreement, you will at all times comply with any and all applicable laws and regulations with respect to its use of the Services. You agree and acknowledge that (i) the Services and Marketcom’s operation of the Services may be subject to the policies of publishers and exchanges and duly negotiated and executed contracts and agreements with those publishers and exchanges; (ii) amendments to this Agreement may become necessary from time to time to comply with a policy change of a publisher or exchange; and (iii) the Parties will timely implement such change, and where necessary, amend this Agreement to reflect such modification.
Compliance with Marketcom Policy.Marketcom has disclosed and Customer understands, acknowledges, and agrees that the Services and Marketcom’s operation of the Services are subject to the policies, terms, and guidelines of publishers and exchanges and duly negotiated and executed contracts with those publishers and exchanges. These contracts, agreements, and the terms, policies, and guidelines therein are binding on Marketcom and are not merely advisory. They incorporated into the terms and conditions of this Agreement. These policies, terms, and guidelines include, but are not limited to:
(i) Content will not violate any applicable law or regulation.
(ii) Content will not infringe in any manner upon the copyright, patent, trademark, trade secret, or any other intellectual property right of any third party;
(ii) Content will not contain any defamatory, obscene, deceptive, illegal, gambling-related, or hateful content or subject matter or message; and
(iii) Content will not contain any “virus”, “Trojan Horse”, “worm”, “disabling”, “lock out” or any other malicious code as such terms are understood in the computer industry.
Customer must comply with the policies, terms or guidelines in its contracts with the publishers or exchanges to prevent anything that may constitute a breach of Marketcom’s contract with the respective publisher or exchange. Marketcom reserves the right to remove the Content, and will not be liable to Customer for any damages or other legal or equitable relief for such determination or removal, to the extent that Marketcom determines, in its sole and absolute discretion, that content provided by the Customer to Marketcom does not satisfy the terms, policies, or guidelines contained in the contracts agreed to by Marketcom and the respective Publishers or Exchanges, or to the extent that Marketcom is advised of the same by the respective Publisher or Exchange.
8. Marketcom Obligations
Marketcom hereby covenants and agrees that, subject to Customer’s compliance with this Agreement, the terms and conditions contained herein, and all policies incorporated by reference, and subject to all disclaimer of warranty and limitations of liability contained in this Agreement, Marketcom will (i) provide Customer with direct access to the Services; (ii) allow Customer access to purchase Digital Media Inventory and upload Content through the Services; and (iii) make technical support for the Services available during Business Hours as defined in this Agreement.
9.1. Payment. Your use of the Services requires prepayment of all applicable fees which may be due to Marketcom in connection with the Services (the “Payments“). The following provisions apply to Payments and payment methods (“Payment Method” or “Method“). You must prepay for the Services using PayPal or wire transfer. Other payment options may be available, so please contact us for additional information. For the avoidance of doubts, any amount(s) paid by the Customer is non-refundable for any reason whatsoever. All Payments will be paid only in US dollars. Any late payment will entitle Marketcom to interest at a rate of 1.5% per calendar month. Minimum payment using PayPal is US$100.00. Minimum payment using wire transfer is US$150.00 (the “Minimum Amount“). Marketcom will deduct the due amounts from Your Account. The applicable Payments will be deducted according to your activity as registered by Marketcom. You must maintain a positive balance equal to at least the Minimum Amount. You acknowledge and agree that statistics recorded by Marketcom are the definitive and binding measurements for calculation of the charges under this Agreement. Company may, upon notice, at any time change: (i) the amount of or basis for determining any the Minimum Amount, applicable to your Account, fee, charge and/or payment, (ii) institute new fees or charges with respect to the Service, (iii) Methods that Company accepts. The Company may stop or terminate your access to the Services should you fail to maintain the Minimum Amount. Company may provide additional funds and/or incentives to Customers using the Service in its sole and absolute discretion. Any such additional funds and/or incentives are non-refundable and not redeemable for cash and may not be credited towards other services. You authorize Company to retain and store your information until such time you revoke this authorization. Any revocation of this authorization will become effective when all charges and fees associated with your use of the Service have been fullyPROFITES satisfied, as determined by Company. Your revocation of this authorization will have no effect on your liability for charges and fees that You have incurred in connection with Your use of the Service prior to such revocation. Company may share any bank card or related billing and payment information that Customer provides to Us with third parties such as payment processors solely for the purposes of effecting payments to and from, and servicing, Your Account. Company will not be liable for any use or disclosure of such information by such third parties.
9.2. Taxes. Customer is responsible for any applicable sales, use, gross receipts, value added or transaction-based taxes, in excess of any and all fees payable in connection with the Service. Such fees will be paid without deduction or withholding of any present or future taxes. You will reimburse Marketcomof any such taxes Marketcom is required to collect and/or remit any such taxes in connection with the Service selected by You. You will pay all applicable taxes or charges imposed by any government entity in connection with your use of the Service. All fees owed by User to any third party based on the activity covered by this Agreement are solely the responsibility of you and User, jointly and severally.
10. Representations and Warranties
Customer represents and warrants to Marketcom that you:
11. Disclaimer of Warranty
YOUR USE OF THIS WEBSITE, THE SERVICES, YOUR ACCOUNT ON THIS WEBSITE, THE SOFTWARE SUPPORTING AND OPERATING THIS WEBSITE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THESE TERMS AND CONDITIONS, THE SERVICES AND THIS WEBSITE ARE PROVIDED ‘AS IS.’ TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MARKETCOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES (COLLECTIVELY, ‘AGENTS’) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES OR WEBSITE IS FIT FOR A PARTICULAR PURPOSE, TITLE, UP-TIME, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY, PERFORMANCE OR CONTENT IN OR LINKED TO THE SERVICES OR THE WEBSITE. MARKETCOM DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER, ITS ADVERTISERS OR ANY THIRD PARTIES WILL RECEIVE FROM THE MARKETCOM SERVICE, INCLUDING WITHOUT LIMITATION, THE LEVEL OF IMPRESSION, THE CONVERSION RATE, OR THE TIMING OF DELIVERY OF ANY IMPRESSIONS AVAILABLE THROUGH THE SERVICE OR THE AWARD TO HIGHEST BIDDER. MARKETCOM AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES DO NOT WARRANT THAT THE SERVICES OR WEBSITE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. MARKETCOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES OR WEBSITE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE OPERATED BY MARKETCOM AS A PASSIVE CONDUIT FOR THE TRAFFIC DISTRIBUTION AND PUBLICATION OF INFORMATION SUBMITTED BY YOU AND MARKETCOM HAS NO OBLIGATION TO SCREEN COMMUNICATIONS OR INFORMATION IN ADVANCE ON ANY PUBLISHER SITES. CONSEQUENTLY, MARKETCOM WILL NOT BE LIABLE FOR THE UNDERLYING ADVERTISING PRODUCT(S) OR SERVICE(S) PROVIDED BY PUBLISHER SITES AVAILABLE THROUGH THE SERVICES.
The indemnified party will promptly notify the indemnifying party in writing of the Claim for which the indemnified party is seeking indemnification. The indemnifying party will control the defense of the Claim, including through choice of counsel, provided that the indemnified party may appear at its own expense through its own counsel. The indemnifying party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
13. Limitation of Liability
LIABILITY OF MARKETCOM,ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES FOR ALL CLAIMS RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR THE WEBSITE WILL BE LIMITED SUBJECT TO APPLICABLE LAW, MARKETCOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, (C) USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET MARKETCOM SYSTEMS REQUIREMENTS, (D) ERRORS IN CALCULATIONS, PROGRAMMING OR ALGORITHMS, (E) INFORMATION OBTAINED FROM THIRD PARTIES, (F) LOSS OF PROFITES OR REVENUE, EVEN IF MARKETCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATIONS APPLY EVEN IF MARKETCOM AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MARKETCOM WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND MARKETCOM’S CONTROL. MARKETCOM WILL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF ITS AFFILIATES. CUSTOMER UNDERSTANDS AND AGREES THAT PARTICIPATION IN myDSP IS SOLELY AT CUSTOMER’S OWN DISCRETION AND AT CUSTOMER’S OWN RISK. MARKETCOM’S TOTAL LIABILITY UNDER THE AGREEMTENT, INCLUDING THELIABLITYOF MARKETCOM’S OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES, FOR ALL CLAIMS RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES OR THE WEBSITE, WILL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO MARKETCOM BY CUSTOMER UNDER THE AGREEMENTFOR THE THREE (3) MONTH PERIOD PRECEEDING THE DATE THE FIRST LIABILITY AROSE. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF MARKETCOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AND OTHER AUTHORIZED THIRD PARTIES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES, THE WEBSITE, AND THEIR USE. EACH PARTY ACKNOWLEDGES THAT THE COMPENSATION PAYABLE HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
The Agreement may be terminated immediately by either party in the event that: (i) the other party has filed against it a petition in bankruptcy that is not dismissed within sixty (60) days of filing, or (ii) the other party commits a material breach of any of the terms or conditions contained in the Agreement, which breach is not cured within a reasonable time after we notify you of the violation, but in no case more than two (2) business days after we notify you of the violation. Either party may terminate its use or provision of the Services upon forty-eight (48) hours’ notice, provided that Customer will still be financially liable for any bids placed prior to Marketcom’s receipt of the notice of termination.
15. Effect of Termination
Upon termination of this Agreement, each Party’s revocable license(s) to the other Party will automatically and immediately be revoked. You must immediately stop using the Services and this Website upon termination of this agreement. Marketcom is not responsible for archiving or backing up your Content, data and information provided to Marketcom for the purposes of providing the Services. We will no longer provide You access to any provided information or data after forty-eight (48) hours after Your account is terminated.
16. Governing Law, Jurisdiction & Venue.
All legal proceedings will be conducted in English. If any dispute arises in connection out of the existence, validity, construction, performance and termination of this Agreement which cannot be amicably resolved, such dispute will be solely and finally settled as follows:
US Residents: Disputes with US residents will be governed by and be construed according to the laws of the State of California, without reference to conflict of laws principles and will be exclusively resolved in the competent court in Los Angeles. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST LAWFUL EXTENT, ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO THIS AGREEMENT.
Chinese Residents: Disputes with Chinese residents will be exclusively settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest of this clause. The appointing authority will be Hong Kong International Arbitration Centre. The place of arbitration will be in Hong Kong at Hong Kong International Arbitration Centre (HKIAC) by one arbitrator in English. Any such arbitration will be administered by HKIAC in accordance with HKIAC Procedures for Arbitration in force at the date of this contract including such additions to the UNCITRAL Arbitration Rules as are therein contained.
All other Jurisdictions: Disputes with Advertisers which are not residents of the US orChinawill be exclusively governed by the laws of England and Wales, without reference to conflict of laws principles will be referred to arbitration in London in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said rules. The arbitration will be conducted in English and the arbitrator will be obligated to provide reasons for his decisions.
You may not assign or transfer any rights or delegate any duties under the Agreement without Marketcom’s prior written consent. Marketcom 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.
18. Entire Agreement, Changes; Waiver.
The Agreement constitutes the entire agreement between the parties and supersedes any prior understandings or discussions relating to the subject matter of the Agreement. Marketcom will have the right to change or update this Agreement, in whole or in part (including without limitation the fees, charges payable hereunder), by notifying Customer of such change, by email and such change will enter into effect as detailed therein. No failure or delay on the part of either party in exercising any right or remedy under the Agreement will operate as a waiver, nor will any single or partial exercise of any such right or remedy preclude any exercise of any other right or remedy. In the event that a party is required to digitally sign or agree to additional terms when using the other’s online advertising network, the parties acknowledge and agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot be altered, in order to view reports or to access Advertising Materials.
This Agreement may be executed in multiple counterparts, and each such duly executed counterpart will be deemed to be an original of this Agreement, provided however that each Party will receive a counterpart fully executed by the other Party.
20. Independent Contractor
Each party is an independent contractor with respect to the other party hereunder. The Agreement will not be construed to: (i) create any employment, partnership, joint venture, franchise, or agency relationship between the parties; or (ii) authorize any party to enter into any commitment or agreement binding on the other party.
21. Force Majeure
No party will be liable under the Agreement for (or deemed in breach of the Agreement by reason of) any failure, delay or interruption in performing any term or condition of the Agreement (except obligations to pay money) due to cause(s) entirely beyond the control of such party; subject however to the condition that such party gives the other party written notice thereof promptly and, in any event, within thirty (30) days following discovery thereof and takes immediate action to cure such cause. In the event of any such cause, the time for performance will be extended for a period equal to the duration of such cause.
22. Enforceability; Severability
If any portion of the Agreement is determined to be or becomes unenforceable or illegal, then such portion will be reformed or eliminated to the minimum extent necessary for the Agreement to be enforceable and legal, and the Agreement will remain in effect in accordance with its provisions as modified by such reformation or elimination.
Notices pursuant to the Agreement will be in writing and delivered either personally, by overnight courier, or certified USPS mail, and sent to the addresses set forth in writing between the parties.
Customer acknowledges that through its relationship with Marketcom, it may learn that certain Publishers work with Marketcom. During the term of the Agreement, and for the six (6) month period following its termination, Customer agrees not to use its knowledge of any Publisher learned through its relationship with Marketcom to solicit such Publisher to enter into an agreement with Customer that would displace Marketcom in its relationship with such Publisher, or otherwise obtain marketing services from such Publisher similar to those provided hereunder; provided, however, that this prohibition will not apply to Publishers with which Customer had a business relationship that pre-dates the date of the Agreement. Customer agrees that monetary damages for its breach, or threatened breach, of this section 24 will not be adequate and that Marketcom will be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Customer in the amount equal to one hundred percent (100%) of the fees paid by Customer to the applicable Affiliate for the prior twelve (12) month period; and/or (c) any and all other remedies available to Marketcom at law and in equity.
Data Protection Addendum
This Personal Information Processing Addendum (“Addendum”) reflects the parties’ agreement on the Processing of Personal Information (as defined below). For the purposes of this DPA, you will be addressed as a “Demand Partner”.
All capitalized terms not defined herein will have the meaning set forth in the Agreement. All terms under the Agreement apply to this Addendum, except that the terms of this Addendum will supersede any conflicting terms under the Agreement.
Marketcom and Demand Partner agree on complying with the following provisions with respect to Personal Information processed by Demand Partner as part of the service provided by Demand Partner to Marketcom under the Agreement (the “Service”).
1.1. “Affiliate” means a corporation which directly controls or is controlled by or is under common control with Marketcom. As used in this section, control means direct ownership of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors.
1.2. “Individual” means a natural person to whom Personal Information relates, also referred to as “Data Subject” pursuant to EU data protection laws and regulations.
1.3. “Marketcom” means Marketcom Technology Limited and its Affiliates.
1.4. “Marketcom Personal Information” means any Personal Information that Marketcom transfers or makes available to Demand Partner, as part of the Service.
1.5. “Personal Information” means data about an identified or identifiable Individual, also referred to as “Personal Data” pursuant to EU data protection laws and regulations.
1.6. “Privacy Laws and Regulations” means the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) (when the GDPR becomes effective), the ePrivacy Regulation repealing Directive 2002/58EC (“EPR”) (when the EPR becomes effective) and all laws, rules and regulations applicable to the relevant party and relating to the Processing of Personal Information under or in relation to the Agreement including, where applicable and the equivalent of any of the foregoing in any relevant jurisdiction.
1.7. “Privacy Shield” means the EU-US Privacy Shield Framework, as administered by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of July 12, 2016.
1.8. “Process” or “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
2. ORDER OF PRECEDENCE.
The terms of this Addendum will prevail over any conflicting terms in the Agreement.
3. INFORMATION PROCESSING
3.1. Scope and Roles.This Addendum applies to all Personal Information Processed by Demand Partner as part of Demand Partner’s provision of the Service. In this context, to the extent that Privacy Laws and Regulations apply to the Personal Information that Demand Partner Processes for Marketcom under the Agreement, Marketcom and its Affiliates are the data processor or data controller, and Demand Partner is engaged by Marketcom as a data processor or as another data processor, as applicable.
3.2. Demand Partner’s Obligations. Demand Partner will: (1) process the Marketcom Personal Information only in accordance with Marketcom’s documented instructions (except to the extent Demand Partner is otherwise required by applicable law and provided that, unless prohibited by applicable law, Demand Partner will notify Marketcom of such requirement before such Processing); (2) without limiting the aforesaid or any other provision under this DPA – not merge any data containing device identifiable information (“DII”) with data containing personally identifiable information (e.g., name, telephone number, email address and government issued IDs) and will not otherwise re-identify the individuals who are the subjects of the DII for personalized advertising without obtaining the individuals’ prior (opt-in) consent; (3) ensure that all individuals engaged in the Processing of the Marketcom Personal Information under the Agreement are subject to strict obligations of confidentiality, non-disclosure and non-use in relation to such Personal Information for the duration of their Processing of the Marketcom Personal Information; (4) implement appropriate technical and organizational measures, as further provided in this Addendum, to ensure a level of security appropriate to the risk involved in Processing the Marketcom Personal Information pursuant to the Agreement and in accordance with good industry practice.
3.3. Use of Sub-Processors.Marketcom acknowledges and agrees that Demand Partner may engage with third-party service providers in the performance of the Service on Marketcom’s behalf (“Sub-Processors”). All Sub-Processors to whom Demand Partner transfers Personal Information to provide the Service on behalf of Marketcom must enter into written agreements with Demand Partner or such other binding instruments that bind them by the same material obligations as stated in this Addendum.
3.4. Objection. Demand Partner will provide Marketcom with a written notice of Demand Partner’s engagement with any additional data processor that will directly or indirectly process any Marketcom Personal Information on Marketcom customers’ behalf. To ensure compliance with applicable Privacy Laws and Regulation, Marketcom may object to any such additional Sub-Processor. If Marketcom sends Demand Partner a written objection to the new Sub-Processor, Demand Partner will make commercially reasonable efforts to provide Marketcom the same level of service without the use of such Sub-Processor. Marketcommayterminate the Agreement upon a written notice to Demand Partner with immediate effect. If Demand Partner is unable to maintain the same level of service without the use of the Sub-Processor.
3.5. Responsibility and Liability. Demand Partner remains responsible and liable for all acts and omissions of all Sub-Processors as if they were its own and Demand Partner will ensure that each Sub Processor Demand Partner enters into an agreement which contains equivalent protections for theMarketcomPersonal Information as are contained in this Addendum.
4. DEMAND PARTNER’S ASSISTANCE AND NOTICES
4.1. Assistance in Compliance. Demand Partner will cooperate with Marketcom and provide all necessary assistance to Marketcom in connection with –
4.1.1. Any required notification to Marketcom clients, supervising authorities or Individuals as applicable, taking into account the nature of Processing and the information available to Demand Partner.
4.1.2. Impact assessments and prior consultation that Marketcom conducts;
4.1.3. Marketcom’s GDPR-related demonstration of compliance;
4.1.4. Requests to exercise data subjects’ rights, complaints and inquiries pursuant to section 4 to this Addendum;
If at Marketcom’s discretion Demand Partner cannot provide sufficient assistance, Marketcom may terminate this Addendum and Agreement, or those portions of the Service which cannot be provided without the requested assistance and Marketcom will receive a pro-rated refund of applicable pre-paid fees or a pro rata reduction of future fees, if and to the extent that Marketcom has an interest in the Service in the then current form.
4.2. Demand Partner Notices. Unless prohibited under applicable laws, Demand Partner will notify Marketcom of:
4.2.1. Any violation by Demand Partner, or anyone on Demand Partner’s behalf of any provision under this Addendum or a Marketcom instruction pursuant thereof;
4.2.2. Any official competent supervisory proceedings regarding the Processing of the Marketcom Personal Data conducted by Demand Partner;
4.2.3. Any legal or factual circumstances preventing Demand Partner from executing any of Marketcom’s instructions under the terms of this Addendum; and
4.2.4. Any material changes impacting the technical and organizational security measures implemented by Demand Partner which cause such measures to fall short of Demand Partner’s data security obligations under this Addendum.
4.3. Instructions for Demand Partner’s Processing of Personal Information. Demand Partner will only Process the Marketcom Personal Information in accordance with Marketcom’s instructions. Marketcom hereby instructs Demand Partner to Process the Marketcom Personal Information for placing bids via the Service and Demand Partner may retain such Personal Information only as necessary to fulfill its obligations under this Addendum and the Agreement. Any use, disclosure, transfer or other processing of Personal Information without Marketcom’s prior written permission or as permissive under this Addendum, including by way of permitting access to, use by, or any other processing by Demand Partner’s affiliates, agents, vendors, customers, partners and other third parties, is strictly prohibited.
5. RIGHTS OF INDIVIDUALS
5.1. Inquiries, requests and complaints.Demand Partner will provide all reasonable and timely assistance to Marketcom, to enable Marketcom to respond to: (i) supervising authorities or Individuals requests for assistance in relation to any request from an Individual to exercise any of the Individual’s rights under Privacy Laws and Regulations; and (ii) any other correspondence, inquiry or complaint received from an Individual (or on an Individual’s behalf), supervising authority and other regulators, or competent authorities in connection with the Processing of the Marketcom Personal Information under the Agreement.
5.2. Information obligation.If any such communication related to the Processing of the Marketcom Personal Information is made directly to Demand Partner, Demand Partner will promptly inform Marketcom about such communication, provide Marketcom all related details and will not respond to the communication unless specifically required by applicable Privacy Laws and Regulations or authorized by Marketcom.
6. DEMAND PARTNER PERSONNEL
6.1. Limitation of Access. Demand Partner will ensure that Demand Partner’s access to the Marketcom Personal Information is limited only to those personnel who require such access to perform the Agreement.
6.2. Confidentiality. Demand Partner will impose appropriate contractual obligations upon its personnel engaged in the Processing of the Marketcom Personal Information, including relevant obligations regarding confidentiality, data protection and data security. Demand Partner will ensure that its personnel engaged in the Processing of the Marketcom Personal Information are informed of the confidential nature of the Marketcom Personal Information, have received appropriate training in their responsibilities, and have executed written confidentiality agreements.
7. DISCLOSURE TO COMPETENT AUTHORITIES
Demand Partner may disclose the Marketcom Personal Information if required by a subpoena or other judicial or administrative order, stock exchange or if otherwise required by law.
8. TRANSFER OF PERSONAL INFORMATION
8.1. Adequacy obligation. At all times, Demand Partner will provide an adequate level of protection for the Personal Information, wherever processed, in accordance with the requirements of applicable Privacy Laws and Regulations.
8.2. Adequacy Safeguard. Demand Partner will not process or transfer any Personal Information related to Individuals in the European Economic Area (“EEA”), to other territories, unless the transfer of the Personal Information is made: (i) to a territory which was formally recognized by the European Commission as providing adequate protection to Personal Information (“Adequacy Recognition”); or, (ii) pursuant to a Personal Information transfer instrument, as further provided in this section 8.
8.3. Standard Contractual Clauses. If required and applicable, Demand Partner and Marketcom may enter into and sign the COMMISSION DECISION of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (notified under document C(2010) 593) (Text with EEA relevance) (2010/87/EU).
8.4. Privacy Shield. If Demand Partner is self-certified with Privacy Shield, applicable, then Demand Partner represents and warrants that Demand Partner complies with the principles of the Privacy Shield and will maintain its self-certification to and compliance with the principles of the Privacy Shield throughout the term of Agreement.
8.5. Personal Information Arrangements. From time to time, Marketcom may require Demand Partner to enter into such other Personal Information arrangements, as may be required pursuant to other applicable Privacy Laws and Regulations, and Demand Partner will comply with such requirements.
8.6. Sub-Processing Adequacy. Demand Partner will downstream the obligations for transferring Personal Information under this section 8, as required under applicable Privacy Laws and Regulations, by entering into an appropriate onward transfer agreements with all relevant Demand Partner’s agents (as this term is referred to under the Privacy Shield principles), other data processors (as this term is referred to under the GDPR), or equivalents to agents or other data processors under applicable Privacy Laws and Regulations, to whom Demand Partner transfers the Marketcom Personal Information.
8.7. Future Adequacy. As applicable, if: (i) the Privacy Shield is invalidated; (ii) Demand Partner or any of its agents are no longer able to continue complying with the principles of the Privacy Shield; (iii) the Adequacy Recognition is invalidated or otherwise terminated; (iii) the Standard Contractual Clauses are invalidated or no longer in effect; (iv) any other Personal Information transfer safeguard is no longer in effect for any reason, then Demand Partner will take such alternative lawful measures, as may be available and applicable, to continue facilitating the lawful transfer of Marketcom Personal Information by Demand Partner, and by Demand Partner’s agents, other data processors, or equivalents thereof.
8.8. Termination for Inadequacy. If Demand Partner is unable to provide an alternative measure to continue transferring Marketcom Personal Information, then Marketcom may terminate the Addendum and Agreement, or those portions of the Service which cannot be provided without the transfer of the MarketcomPersonal Information, upon a written notice with immediate effect, and Marketcom will receive a pro-rated refund of applicable pre-paid fees or a pro rata reduction of future fees, if and to the extent that Marketcom has an interest in the Service in the then current form.
9.1. Security Controls. Demand Partner will establish, implement, and maintain an information security program that includes administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of the Marketcom Personal Information, pursuant to Demand Partner’s information security policy and in accordance with applicable Privacy Laws and Regulations, including without limitation safeguards related to: physical and environmental security measures, information transmission, periodic risk assessments, passwords, access control and authorization, responsibilities and accountability, encryption algorithms, secured software, web security, development and maintenance, incident management, fault and intrusion detection, training, Demand Partners’ security audits, secured information destruction and disposal, mitigation of vulnerabilities, back-up and business continuity, host services monitoring, employees confidentiality and background checks.
9.2. Additional Security Measures. Demand Partner will use its best efforts, upon Marketcom’s written requests from time to time, to take additional steps to secure the Marketcom Personal Information and provide Marketcom with records and documentation related thereto.
9.3. Certification. Marketcom may be satisfied with receiving Demand Partner’s in-effect information security certifications (e.g., ISO 27001 and SOC reports), risk assessments, vulnerability tests and penetration tests reports, and such other documentation that Marketcom may request from Demand Partner to demonstrate Demand Partner’s current status of information security safeguards.
9.4. Monitoring and Consistency Requirement. Demand Partner will regularly monitor compliance with these safeguards. Demand Partner will not materially decrease the overall security of the Service during the term of the Agreement.
10. POLICIES AND AUDITS
Demand Partner will permit and contribute to any data audits reasonably required by Marketcom upon Marketcom’s written request. Any on premise audits are subject to a thirty (30) days prior written notice, not more than once a year, during normal business hours and on Marketcom expense. Notwithstanding, an audit following a Security Incident, as further defined below, on Demand Partner’s or on Demand Partner third parties’ information systems, will not be subject to the above limitations.
11. SECURITY BREACH MANAGEMENT AND NOTIFICATION
11.1. Breach Prevention and Management. Demand Partner will maintain security incident management policies and procedures in accordance with applicable Privacy Laws and Regulations and will, to the extent permitted by law, notify Marketcom immediately of any actual or reasonably suspected unauthorized access to, acquisition of, or disclosure of the Marketcom Personal Information, by Demand Partner or its Affiliates or agents of which Demand Partner becomes aware (a “Security Incident”).
11.2. Breach Notification and Mitigation. In the event that Demand Partner detects or in the event that facts justify the assumption that (i) Marketcom Personal Information processed by Demand Partner on Marketcom’s behalf has been unlawfully transmitted or (ii) third parties have gained access to such data or (iii) the integrity or confidentiality of Marketcom Personal Information has been compromised in any other way, Demand Partner will give Marketcom without undue delay written notification specifying the date and time, nature, and extent of the incident. The notice will also include a description of potential consequences and potential adverse effects of the incident. Furthermore, Demand Partner will inform Marketcom about the measures it has taken in order to remediate the risks involved with the incident, to mitigate potential adverse effects and to prevent the occurrence of a similar incident in the future.
11.3. Remediation. Upon becoming aware of a Security Incident, Demand Partner will provide all such timely information and cooperation as Marketcom may require in order for Marketcom tofulfilits data breach reporting obligations under (and in accordance with the timescales required by) Privacy Laws and Regulations. Demand Partner will further take all such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and will keep Marketcom informed of all developments in connection with the Security Incident. Demand Partner will not notify any third parties of a Security Incident affecting the Marketcom Personal Information unless and to the extent that: (i) Marketcom has agreed to such notification, and/or (ii) notification is required to be made by Demand Partner under applicable Privacy Laws and Regulations and then, in each case, Demand Partner will keep Marketcom informed of the status of such notification and any response from any such third parties, unless such notification is prohibited to Demand Partner under applicable laws or regulations.
12. DELETION AND RETENTION OF PERSONAL INFORMATION
Upon termination or expiry of the Agreement, Demand Partner will (at Marketcom’s election) destroy or return to Marketcom all copies of the Marketcom Personal Information (including all copies of the Marketcom Personal Information) in its possession or control (including all back-ups and any Marketcom Personal Information subcontracted to a third party for Processing). This requirement will not apply to the extent that Demand Partner is required by any applicable law to retain some or all of the Marketcom Personal Information, in which event Demand Partner will isolate and protect the Marketcom Personal Information from any further Processing except to the extent required by such law. Demand Partner will state in writing that it has completed the deletion of the Marketcom Personal Information from its systems and send such confirmation firstname.lastname@example.org without undue delay.
13. LAWFULNESS OF PERSONAL INFORMATION
If Demand Partner collects Personal Information for or on behalf of Marketcom, or provides, or otherwise makes available Personal Information to Marketcom, then the following terms of this section 13 will apply:
13.1. Evidence Obligations. At Marketcom’s request, Demand Partner will provide supporting evidence, to demonstrate that: (i) Demand Partner collects, obtains and processes Personal Information lawfully, without violating any third parties’ rights, contractual obligations or Privacy Laws and Regulations; (ii) Demand Partner has all rights, consents, authorization and title to grant the rights and permissions to use the Personal Information under the terms of the Agreement; (iv) Processing and use of the Personal Information by Marketcom and modification thereof by Marketcom’s clients under the terms of the Agreement will not violate the Individuals’ rights and other third parties, including without limitation privacy, data protection, good-will, good name, publicity, confidentiality and intellectual property rights.
13.2. Disclosure Notification. Without limiting the aforesaid, Demand Partner confirms, and at Marketcom’s request will demonstrate that all Individuals received appropriate disclosures and notifications, as required under Privacy Laws and Regulations, including for the use, distribution and trans-border transfer of Personal Information, which encompasses the use of the Personal Information under the terms of the Agreement. Where a third party provided the notices to the Individuals and received their consent, Demand Partner will bear sole responsibility to verify and will be able to demonstrate that the notices and consents were sufficient for the purposes of use under the terms of the Agreement and adequate pursuant to Privacy Laws and Regulations.
13.3. Termination Right. Without limitation to any rights and remedies available to Marketcom under the applicable law, Customer may terminate this Agreement upon a notice to Marketcom with immediate effect, upon a failure by Demand Partner to meet any of the above representations and warranties.
14. DEMAND PARTNER RESPONSIBILITIES AND INDEMNIFICATION
14.1. Demand Partner guarantees the prompt and satisfactory performance of its obligations and responsibilities under this Addendum by Demand Partner and Demand Partner agrees that it will be responsible for all costs associated with its compliance of such obligations. Demand Partner is responsible and liable for its acts and omissions under this Addendum.
14.2. Demand Partner will defend, indemnify and hold Marketcom, its officers, directors, employees, contractors and agents harmless from and against any and all third-party claims, demands, losses, damages or expenses, including reasonable attorneys’ fees and court costs, arising out of or in connection with any failure by Demand Partner to comply with the requirements under this Addendum.
15. TERM AND TERMINATION
15.1. Term. This Addendum is effective as of the same date that the Agreement is effective and will continue until the Agreement is expired or terminated, pursuant to the terms therein.
15.2. Termination. Marketcom may terminate the Agreement if the other party breaches the Addendum and does not cure such breach within five (5) days after receiving a written notice by Marketcom about the breach. Notwithstanding the forgoing, any Demand Partner confidentiality obligations under the Agreement and this Addendum will survive the termination of this Agreement.
16. DISCLOSURE OF THE ADDENDUM.
Demand Partner acknowledges that Marketcom may disclose this Addendum and any relevant privacy provisions in the Agreement to any supervisory authority, regulator or other competent authority, to the extent required under the applicable law.
17.1. Any alteration or modification of this Addendum is not valid unless made in writing and executed by duly authorized personnel of both parties.
17.2. Invalidation of one or more of the provisions under this Addendum will not affect the remaining provisions. Invalid provisions will be replaced to the extent possible by those valid provisions which achieve essentially the same objectives.
Prohibited Ads and Content:
1. Misleading or deceptive ads, services or products, including but not limited to: ads that impersonate a system message, error warning, fake buttons, impersonate another app/software, missed message/call or chat window, state or imply that the user is at imminent risk of getting a virus, or that they already have one, violate copyright or trademarked content, make untrue statements;
2. Spyware and illegal hacking;
3. P2P file-sharing apps, torrent or any apps that facilitate or promote copyright infringement;
4. Sexual content, pornographic, nudity (full, partial or implied);
5. Alcohol, tobacco, drugs;
7. Violence, offensive or hateful speech and visuals;
8. False representation of brands, trademarks or celebrities without expressed; endorsement of the advertiser’s product;
9. Contain, install, link to, or prompt the download of any malware;
10. Initiate a download of any type of file without a landing page;
11. Auto redirect the user to a landing page without requiring a click through or other interaction;
12. Be unclear on what the offer is, or banner does not match the landing page;
13. Landing page does not work properly;
14. Have excessive animations, flashing or shaking;
15. Gambling (Permissible in the following countries only: UK, CA, ES, AU, DE, FR, IT, JP).
Creative Guidelines Penalties:
Without derogating from any other right of Marketcom pursuant to the Agreement or the applicable law, Advertisers will have their accounts suspended or terminated if the following violations occur:
1. Account suspensions:
2. Repeated uploads of creative and/or landing pages that have previously been rejected by our compliance team. If a campaign, creative or landing page has been rejected, do not resubmit it.
3. Immediate Account Termination:
4. “Bait and swapping” landing pages: The landing page design that was originally used for campaign approval must never change.
5. Malware / Spyware / Virus: The creative or landing page initiates directly or indirectly the installation of any malware, spyware, Trojan, or other virus to the user’s device.
6. Apply penalties or claim liquidated damages.