ADVERTISERS TERMS & CONDITIONS

ADVERTISERS TERMS & CONDITIONS

V.03 - 22.01.2018

 

  1. BACKGROUND

PUSHGROUND is a company that provides mobile advertising-spaces management services via a recommendation intelligence widget, with the aim to generate visits and traffic for its advertisers' and networks' websites (the Services).

By means of the execution of the Insertion Order (IO), Advertiser engages PUSHGROUND for the provision of Services regarding certain advertisement campaigns that will be determined between the Account Managers (as defined below) (the Campaigns).

These Terms and Conditions shall govern the placement and delivery of advertising campaigns by PUSHGROUND to Advertiser (the Parties), and together with the IO and the Particular Terms (as defined below) agreed by the Account Managers, shall constitute the entire Agreement between the Parties. In case of contradiction between these Terms and Conditions and the IO, the IO shall prevail.

 

  1. ADS

Prior to the Initial Date of the Campaign (as agreed by the Account Managers) Advertiser will create and provide to PUSHGROUND with the links or tags (the Insertion Codes) that shall be used to promote and manage the Campaign, and that will contain the creatives that will be showed to end-users (the Ads). In the event creative materials are not provided by Advertiser, or if for any other reason PUSHGROUND’s publishers or affiliates use advertising materials different from the ones provided by Advertiser (including, but not limited to, buttons, banners, pop-ups and pop-unders) PUSHGROUND hereby undertakes to request its publishers and affiliates  to declare and warrant that such advertising materials: (i) will comply with the applicable regulations in force from time to time and in the relevant jurisdiction; and (ii) will not be misleading nor will they cause error or confusion to the end-user.

Advertiser is solely responsible for the content of the Ads provided through the Insertion Codes, and any website or application or other destination that the Insertion Codes and/or Ads direct to, and any services and products that are offered in connection with the Ads. PUSHGROUND will not be required to publish any Ad that is not in accordance with its policies, restrictions or specifications as determined in its sole discretion. Notwithstanding the foregoing, PUSHGROUND’s policies, specifications and/or recommendations should not be construed as legal advice, or as sufficient guidelines to ensure that such Ads comply with applicable law. PUSHGROUND shall have no obligation to monitor or edit the Ads, and PUSHGROUND assumes no obligation and hereby disclaims any liability for Advertiser’s use or placements of any Ads.

PUSHGROUND shall not be responsible for any damage or loss as may be caused by the disruption of Ads or the removal of Ads by any third party, including but not limited to, any failure on the part of an advertising channel.

Advertiser warrants and represents to PUSHGROUND, that it has all rights, title and interests in and to the Ads it places, and that Ads content, and any website or application or other destination that the Ads direct to, that do not (i) contain material which is unlawful, harmful, threatening, defamatory, offensive, profane, harassing, discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), incites violence or otherwise is objectionable, libellous or misleading, or which constitutes an invasion of any right to privacy, breaches advertising rights or, in any other manner, breaches third-party rights; (ii) contain “spam”, malicious code, adware, spyware or drive-by download applications, viruses, worms, Trojan horses, corrupted files, unauthorized programs or similar programs that might harm data or computer systems, or may damage or render inoperable the corresponding software, hardware or security measures, or that interact with end users' browsers in any manner, it effects end users’ web navigation by error page redirections, hijacking, tabs redirection, creation of new tabs, or in any other manner; (iii) infringe patents, copyrights, trade secrets or other third-party industrial or intellectual property rights; (iv) breach any type of law or regulation, whether international, community, state, regional or municipal, which may be applicable (including regulations on consumer protection, product liability, or tort); or (v) otherwise contain material which may have an adverse effect on PUSHGROUND, its publishers, affiliates, licensors, agents, or end users. If the Advertiser becomes aware to any legal restriction concerning the Ads usage and/or distribution it will immediately notify PUSHGROUND.

 

  1. DISTRIBUTION OF ADS

PUSHGROUND shall strive to conduct the marketing Campaigns to promote, distribute and display the Ads, and generate traffic and visits to Advertiser’s website. Advertiser acknowledges that for this purpose PUSHGROUND will engage other publishers and affiliates.

To this effect, in relation to the specific Campaigns made available to PUSHGROUND, Advertiser hereby grants to PUSHGROUND and PUSHGROUND’s publishers, affiliates and partners a non-exclusive, royalty-free, worldwide, revocable and transferable license to: (i) use, perform, serve, place and display the Insertion Code (and therefore the Ads contained therein) and the creative materials delivered hereunder; and (ii) use all associated Advertiser intellectual property in connection therewith. Upon termination of a specific Campaign and upon termination of the Agreement, this license shall be understood automatically revoked, without need to express notification by Advertiser thereof. In no event shall the granted license imply transfer of ownership.

Positioning of the Ads is at the sole discretion of PUSHGROUND and its affiliates. PUSHGROUND does not guarantee that Advertiser’s Ads will be available through any specific part of the networks upon which PUSHGROUND places the Ads, the timing of delivery of the Ads and/or the placement and positioning of Advertiser’s Ads. PUSHGROUND reserves the right to approve, omit, edit or reject any of Advertiser’s Ads for any reason at any time, including the right to make minor changes to the Ads in order to optimize campaign results, with or without notice to Advertiser. In addition, PUSHGROUND reserves the right, at any time, to remove any of Advertiser’s Ads if PUSHGROUND determines, in its sole discretion that the Ad or any portion thereof, violates any of PUSHGROUND’s policies or may result in liability to PUSHGROUND. In addition, PUSHGROUND shall have the absolute right to reject any Insertion Code provided by Advertiser. PUSHGROUND’s failure to reject, cancel, approve, omit, edit or modify shall not be construed as an acceptance of an Ad, nor shall it negate other provisions of the IO or these Terms and Conditions, specifically with respect to liability. Publisher or its affiliates may reject or remove any ad for any or no reason. Advertiser agrees that PUSHGROUND shall not be responsible for any discrepancy in targeting criteria, which is the result of the publisher’s reporting methods.

 

  1. MEASUREMENT OF ADS PERFORMANCE

Advertiser will grant PUSHGROUND access to the numbers, statistics, evolution and results regarding the performance of the Campaigns, collected and stored as per its own server reports or third parties’ server reports (as publishers, affiliates, advertisers or networks), as soon as available and in real-time if possible. PUSHGROUND will grant Advertiser access to the numbers, statistics, evolution and results regarding the performance of CPM and CPC Campaigns collected and stored as per its own server reports or third parties’ server reports (as publishers, affiliates, advertisers or networks), as soon as available and in real-time if possible.

Measurement of the impressions, clicks, offers, installs, conversions or other results with respect to a particular Campaign’ performance for the purposes of billing and payment will be based on:

  • CPM and CPC Campaigns: PUSHGROUND’s reported numbers. In the event that post-backs and revenues recorded by the Advertiser are higher than the ones reported by PUSHGROUND, the Advertiser undertakes to inform PUSHGROUND the higher amounts recorded, in order PUSHGROUND to be able to verify and adjust, if necessary, the reported numbers.
  • Other Campaigns: Advertiser’s reported numbers, once they have been verified and adjusted, if the case, by PUSHGROUND.

To this effect, within the first ten (10) days of each month, the Advertiser will provide PUSHGROUND with the final numbers relating to the performance of the Campaigns during the previous month (including valid actions and pay-out, if required). If the Advertiser does not provide such data, PUSHGROUND may use any data which it may have in connection with the Advertiser’s Campaigns (own or third-party data) for invoicing purposes.

Each Party undertakes not engage any Fraudulent Activity. Fraudulent Activity means any of the following: (i) fictitious, automated and/or fraudulent downloads, installations, clicks, impressions or actions of (or in relation to) the Ads; (ii) management and placement of Ads in violation of any applicable law or regulation or breaching the specifications agreed between the Parties.

IF THE ADVERTISER BELIEVES THAT REGARDING A GIVEN MONTH (I) THERE ARE ERRORS OR DISCREPANCIES ON REPORTED NUMBERS AND STATISTICS ON VALID TRAFFIC AND ACTIONS REGARDING A DETERMINED CAMPAIGN; OR (II) THERE HAS BEEN FRAUDULENT ACTIVITY NOT DULLY DETECTED OR IDENTIFIED IN THE REPORTED NUMBERS; ADVERTISER SHALL PROVIDE PUSHGROUND, WITHIN THE TEN (10) FIRST DAYS OF THE FOLLOWING MONTH, WITH A REASONED REPORT AND SUFFICIENT EVIDENCE (INCLUDING TANGIBLE PROOF AS SCREENSHOT, VIDEO OR OTHER EVIDENCE OF WRONGDOING) in order PUSHGROUND to be able to evaluate the existence of such discrepancy. Based on the evidence provided by the Advertiser, PUSHGROUND will make a final decision on the valid numbers for billing purposes. In case no sufficient evidence is provided, PUSHGROUND will determine the measurement of the impressions, clicks, offers, installs, conversions or other results and all payments will be based on such numbers and shall be final. AFTER THIS 10-DAY PERIOD HAS ELAPSED, NO CLAIM OR DISCREPANCY ON NUMBERS WILL BE ALLOWED, AND REPORTED NUMBERS FOR BILLING PURPOSES WILL BE FINAL AND BINDING FOR BOTH PARTIES.

In the event that the Advertiser’s (or its final client) website experiences downtime that affects the performance of a specific Campaign, the Advertiser shall compensate PUSHGROUND, by means of the following process: (i) the moment when the downtime, inactivity, error or malfunction occurred and its duration, shall be identified; (ii) PUSHGROUND’s records will be checked in order to determine the average purchases/registrations generated per hour during the seven (7) days prior the start of the malfunction or error; (iii) the number of purchases made during the period of inactivity or malfunction will be determined by applying the purchases/registrations average (calculated in accordance with point (ii) above) to the duration of the malfunction; (iv) PUSHGROUND’s consideration will be calculated on the number of acquisitions determined by applying the process described in point (iii) above.

In no event the discrepancy between the Parties regarding several specific actions or numbers (for a specific period, campaign, site, publisher, affiliate, etc.) will entail the Advertiser to retain or suspend the payment for the remaining valid actions, conversions, impressions, etc. accrued as per the terms of the Agreement.

The Parties may establish any other mechanisms which they consider necessary for the coordination and monitoring of campaigns.

 

  1. PRICE AND PAYMENT

Price for Services will be based on the reported numbers of Ads performance as set out in clause 5 above. Payments are due regardless of whether Advertiser has collected payment from its clients.

PUSHGROUND will determine the payment system applicable to the Advertiser:

  • PREPAYMENT

Prepayment amount (as determined by PUSHGROUND) shall be paid by the Advertiser prior to the begging of the Services.

PUSHGROUND will manage the Advertiser’s Campaigns until the consideration for the Services provided reaches the Prepayment Amount. Once such amount is reached PUSHGROUND will be entitled to stop/pause the Advertiser’s Campaigns.

Management of the Advertiser’s Campaigns will be reassumed and Advertiser’s Campaigns will be relaunched by PUSHGROUND once the Prepayment Amount has been paid by the Advertiser to PUSHGROUND and proof of payment has been sent to PUSHGROUND’s Account Manager.

Each time PUSHGROUND receives the deposit of the Prepayment Amount, it will issue the corresponding invoice to the Advertiser.

If the Agreement is terminated for any reason whatsoever before the prepayment is depleted, PUSHGROUND will refund to the Advertiser that portion of the prepayment amount that remains undelivered at such time of termination.

 

  • CREDIT / POST-PAYMENT

If no specific terms have been agreed in the relevant IO, Services will be invoiced on a monthly basis (at the end of each calendar month) and shall be paid by the Advertiser within thirty (30) days following the end of the invoiced calendar month (Net+30). In case the relevant IO establishes a different payment term, this term will in all cases be counted from the end of the relevant invoiced period (and not from the date included in the invoice or the date the invoice is received).

PUSHGROUND may apply a Budget cap to the Services (such Budget cap will be notified to the Advertiser by PUSHGROUND’s Account Manager), in which case PUSHGROUND will be entitled to stop/pause the Advertiser’s Campaigns once PUSHGROUND’s consideration reaches the Budget Cap. In this event, management of the Advertiser’s Campaigns will be reassumed and Advertiser’s Campaigns will be relaunched once the invoiced Services (within the Budget Cap) have been fully paid by the Advertiser and proof of payment has been sent to PUSHGROUND’s Account Manager.

All amounts payable represent the net amounts to be received by PUSHGROUND and do not include any current or future customs, duties, charges or taxes, including, but not limited to, sales tax, withholding taxes, VAT, and any other taxes and transfer charges, which may apply. Each Party will bear the costs and commissions charged by its bank. Advertiser shall pay PUSHGROUND the full amount invoiced, without offset or deduction for any taxes or charges as described above.

Advertiser expressly acknowledges that PUSHGROUND will generate the invoices based on the data provided by the Advertiser and therefore warrants that such data is accurate, fully and legally compliant, especially for invoicing and taxation purposes. Any Advertiser residing in the European Union who has provided a VAT number expressly warrants that such VAT number is, in its own country, valid for the issuance of VAT-exempt invoices. Advertiser expressly accepts to be solely liable for any error, direct or indirect loss or damage arising from the inaccuracy or non-compliance of such data or the breach of any of the aforementioned warranties and, accordingly, Advertiser will hold PUSHGROUND totally harmless from any of the said errors, direct or indirect loss or damages.

Services shall be paid by the Advertiser to PUSHGROUND by wire transfer to the bank account designated by PUSHGROUND for such purpose. Advertiser shall also be entitled to pay PUSHGROUND via PayPal amounts up to USD 500 (above such amount PUSHGROUND’s consent shall be required, and the Advertiser will have to bear the commissions charged to PUSHGROUND, that for these purposes will be calculated at a rate of five per cent (5%) on the amounts to be paid).

ADVERTISER’S FAILURE TO MAKE TIMELY PAYMENT SHALL CONSTITUTE A MATERIAL BREACH OF THE AGREEMENT. IF DUE AMOUNTS ARE NOT PAID WITHIN THREE (3) DAYS FROM PUSHGROUND’S REQUEST ADVERTISER WILL BE RESPONSIBLE FOR (I) ALL REASONABLE EXPENSES INCURRED BY PUSHGROUND IN COLLECTING SUCH DUE AMOUNTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND COSTS) AND ALL BANK CHARGES; AND (II) A LATE PAYMENT INTEREST AT THE RATE OF TWO PERCENT (2%) PER DAY OF DELAY, OR THE MAXIMUM AMOUNT PERMITTED BY LAW, WHICHEVER IS LESS.

 

  1. PARTIES REPRESENTATIONS

Each Party will make every effort to uphold the highest ethical and commercial standards.

Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) when executed and delivered (by means of the execution of the relevant IO), this Agreement will constitute a legal, valid and binding obligation for such Party, enforceable against the same in accordance with its terms; and (iii) it will act in accordance with all applicable laws, rules and regulations.

Additionally, the Advertiser represents and warrants that (i) all of the information provided by Advertiser to PUSHGROUND is correct, complete and current; (ii) it will fulfil all representations and commitments made in any Ads; and (iii) it will have a clearly labelled and easily accessible privacy policy that provides users with clear and comprehensive information about cookies, device-specific information, location information and other information stored on, accessed on, or collected from users’ devices, including information about users’ options for cookie management; and (iv) it will comply with PUSHGROUND’s Quality and Antifraud Guidelines

PARTICULAR COVENANTS ON ANTI-BRIBERY

PUSHGROUND is committed, in accordance with its zero-tolerance policy for bribery and corruption (the Anti Bribery and Corruption Policy), to ensure that all PUSHGROUND’s activities and the activities of all of PUSHGROUND’s advertisers, publishers, affiliates and business partners comply with all applicable laws and regulations and accord to the highest principles of corporate ethics. Accordingly, Advertiser undertakes, in performing its activities under this Agreement, to comply with all applicable laws related to the fight against bribery and corruption and in particular:

  • Advertiser hereby agrees that neither itself (directly or through its own advertisers and or networks), nor its agents or other representatives involved in its business shall violate any applicable anti-corruption or anti-bribery laws, including the U.S. Foreign Corrupt Practices Act and United Kingdom’s Bribery Act of 2010 (the Anti-Bribery Laws), or act in a way which may result in such violation or cause other to violate Anti-Bribery Laws. To this effect it is placed on record that the Anti-Bribery Laws: (i) prohibit payments to government officials and private individuals, either directly or through intermediaries, for the purpose of obtaining or retaining business, or securing an improper business advantage; (ii) require the maintenance of complete and accurate books, records, invoices and other documents concerning payments and expenses which reflect in reasonable detail the character and amount of such expenditures and the transactions to which they relate; and (iii) prohibit use of any funds that are not fully accounted for, including “off book” accounts.
  • Advertiser represents, warrants and covenants that, in connection with the Agreement or any other transactions or actions involving or benefiting PUSHGROUND, neither Advertiser nor any of its agents or other representatives will make or promise to make, have ever made, or have ever agreed or promised to make, any payments or transfer any gifts, valuables, property, benefits, or anything of value, directly or indirectly, to: (а) any governmental officials or employees (including representatives of state-owned and state-controlled corporations), (b) any political parties or their officials or candidates, or (c) any other person or entity, if such a payment or transfer could violate the Anti-Bribery Laws. Advertiser shall not offer, promise, give, authorize, solicit or accept any undue amount or other advantage related to any prospective leads, impressions, clicks, acquisitions, installations, registrations, or payments made under this Agreement or otherwise.
  • Upon the request of PUSHGROUND, Advertiser shall make books, records, and documents available for inspection to the extent to which they concern the Services provided hereunder, provided that the inspection takes place while the Agreement is in force or within the five (5) years upon Agreement’s termination. Advertiser shall fully cooperate in any survey and/or audit that may be conducted.
  • Advertiser represents, warrants and covenants that it has not taken or failed to take any actions which would subject PUSHGROUND or its publishers to potential liability under the Anti-Bribery Laws.

PUSHGROUND shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of Advertiser’s activities do not fully comply with the Anti-Bribery Laws or PUSHGROUND’s Anti Bribery and Corruption Policy.

PARTICULAR COVENANTS ON ANTI-MONEY LAUNDERING

Additionally, PUSHGROUND is committed, in accordance with its zero-tolerance policy for money laundering and terrorism financing (the Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy), to ensure that funds related to, or derived form, PUSHGROUND’ activities are not derived from criminal activity or other non-legal or non-legitimate means. Accordingly, Advertiser hereby declares that it is also committed to preventing money laundering by having proportionate and effective anti-money laundering systems and processes in place. PUSHGROUND shall be entitled to immediately terminate this Agreement (at any time and without prior notice) if it determines, in its sole discretion, that any of Advertiser’s activities do not fully comply with PUSHGROUND’s Anti-Money Laundering and Counter-Terrorism Financing Compliance Policy.

 

  1. NO WARRANTY

PUSHGROUND’s services provided hereunder are provided on an “as is” and “as available” basis, without any warranty of any kind and without any guarantee. To this effect the Advertiser declares, acknowledges and accepts that (i) PUSHGROUND has no obligation to distribute the Ads or otherwise promote and manage the Campaigns through specific websites, and PUSHGROUND disclaims all guarantees regarding the results of the management and placement of Ads or the performance of a particular Campaign; (ii) the Advertiser has not relied on PUSHGROUND’s skills, capacities or results in relation to the Services (and it would not be reasonable to do so); (iii) PUSHGROUND does not warrant that the services fit for the Advertiser, its business, the purpose, revenue or profit perspectives of the Advertiser or its clients (and PUSHGROUND cannot do so); (iv) Advertiser uses the websites, services, software and third-party contents provided by PUSHGROUND at its own risk; (v) PUSHGROUND has made no express warranties about the Services, websites, software or third-party contents; the Services, websites or software may not be uninterrupted, timely, secure or free from errors; PUSHGROUND will not be responsible for interruptions or errors which may have occurred in the network, servers or platforms of third parties (vi) the Advertiser is solely responsible for any losses, damages, expenses, liabilities, etc. (including loss of data) arising from the use of the websites, the Services or software provided by PUSHGROUND (directly or through its affiliates or publishers).

ADVERTISER ACKNOWLEDGES, AGREES AND ACCEPTS THE RISK THAT PROHIBITED OR IMPROPER ACTIVITY CAN BE GENERATED BY THIRD PARTIES, AND ANY CREDITS OR REFUNDS FOR SUCH ACTIVITY ARE AT PUSHGROUND’S SOLE DISCRETION. PUSHGROUND SHALL HAVE NO RESPONSIBILITY OR LIABILITY IN RELATION WITH ANY THIRD PARTY CLICK FRAUD OR OTHER IMPROPER ACTIONS THAT MAY OCCUR.

 

  1. DURATION AND CANCELLATION

The Agreement between the Parties shall be indefinite and shall come into force on the date the relevant IO is executed by both Parties. Either Party may terminate the Agreement, or may cancel or suspend a Campaign by giving the other Party two (2) working days’ prior written notice.

Either Party, acting in good faith, may withdraw a specific Campaign without having to provide prior notice to the other Party for legal reasons or in the event of a third-party claim which may cause damages. In addition, PUSHGROUND may stop or pause a specific Campaign at any time without any need to provide prior notice to the Advertiser if the Campaign is not generating expected trade or yield levels or if it suspects that Fraudulent Activity is carried out regarding the same. Without detriment to the rights of termination and cancellation regulated in the Agreement, the Parties shall comply with their respective obligations regarding Campaigns which were under way up to the moment of their conclusion and payment of the corresponding price.

Clauses 7 (PARTIES REPRESENTATIONS), 8 (NO WARRANTY), 10 (LIMITATION OF LIABILITY) 11 (INDEMNITY FOR DAMAGES), 12 (CONFIDENTIALITY) 13 (DATA PROTECTION) and 14 (MISCELLANEOUS) shall remain in force after the termination of the Agreement.

 

  1. LIMITATION OF LIABILITY
  • Time Limitation. No action arising under or relating to this Agreement, regardless of its form, may be brought by the Advertiser more than two (2) months after the cause of action has occurred and in any event no later than two (2) months after the termination of this Agreement. PUSHGROUND will not be liable for actions brought after this time limitation.
  • Actions that may entail liability. PUSHGROUND will only be liable in case of (a) PUSHGROUND’s direct material breach of the Agreement, not remedied within fifteen (15) business days upon Advertisers written notification to this effect, or (b) wilful, unlawful or malicious acts (or omissions) committed directly by PUSHGROUND.
  • PUSHGROUND’s liability will be limited to DIRECT damages, losses, costs, liabilities, fines or penalties suffered by the Advertiser. In no event PUSHGROUND will be liable vis-à-vis the Advertiser for the results of a specific Campaign, or for any indirect, incidental or consequential damages of any type (including but not limited to loss of profits, revenues, data, business interruption, or loss of goodwill, clients or reputation).
  • Amount limitation. TO THE EXTENT PERMITTED BY LAW, THE TOTAL AND MAXIMUM AGGREGATE LIABILITY OF PUSHGROUND ARISING FROM THE AGREEMENT FOR ALL CLAIMS (REGARDLESS THE FORM OF ACTION) WILL BE LIMITED TO ONE MONTH AVERAGE FEE (WHICH SHALL BE DETERMINED BASED ON THE FEES ACTUALLY PAID BY THE ADVERTISER TO PUSHGROUND FOR THE LAST THREE BILLED MONTHS, PRIOR TO THE DATE THE CLAIM TAKES PLACE).
  • In no event PUSHGROUND will be liable towards third parties different form the Advertiser.

It is expressly placed on record that in no event the Advertiser will be entitled to suspend or retain payments in case a claim is brought against PUSHGROUND, being all payments accrued from PUSHGROUND’s services (for valid actions reported) due and payable in the terms of Clause 5.

THE FOREGOING LIMITATIONS ARE FUNDAMENTAL TO THE ENTERING INTO THIS AGREEMENT BY PUSHGROUND. THE ADVERTISER DECLARES, ACKNOWLEDGES AND ACCEPTS THAT IT IS FAIR AND REASONABLE FOR PUSHGROUND TO RELY ON THE FOREGOING LIMITATIONS FOR THE PROVISION OF THE SERVICES.

 

  1. INDEMNITY FOR DAMAGES

Advertiser agrees to defend, indemnify and hold harmless PUSHGROUND and each of its publishers and affiliates and their respective, directors, officers, shareholders, employees and representatives from and against any and all damage, injury, liability, costs and expense (including reasonable attorneys’ fees) or other claim, whether or not involving a third party claim, related to (i) claims arising from the Advertiser’s activities in relation to the Agreement, including, by way of illustration and not limited to, claims arising from the use by the Advertiser of third-party rights without the relevant authorization, or use of the websites or URL designated or provided by the Advertiser for promoting the Campaigns; (ii) the management, publication, display or distribution of the Insertion Codes, Ads, Campaigns or other publicity messages or marketing materials (including claims for defamation; breach of confidentiality agreements; violation of privacy; false, deceptive or misleading publicity or bad sales practices; non-fulfilling of consumers or end users rights; or failure to comply with representations made in any Ads or Advertiser’s (or its clients) website or other materials and/or any other content, products or services, linked to, or from the Ads); (iii) wilful, unlawful, negligent or malicious acts (or omissions) committed by the Advertiser; (iv) Advertiser’s breach of the terms of the Agreement or the failure to perform any obligation undertaken in the Agreement

PUSHGROUND will have the right to control the defence of any claim involving PUSHGROUND.

 

  1. CONFIDENTIALITY

The Parties agree that they shall not disclose to third parties and shall keep strictly confidential (i) any information or material in connection with the Agreement (including information contained in the IO and the Particular Terms agreed, and specifically including pricing terms); (ii) any information or material provided by the other Party, its Account Manager, employees or collaborators during the course of the commercial relationship between the Parties, save for to the extent required in order to execute the Services described herein (i.e. Insertion Codes, Ads, marketing material or other contents regarding a particular Campaign) or in the event such information is required by a competent tribunal or authority. In particular, the Parties shall adopt the necessary safety measures and procedures to protect the confidential nature of said information, in accordance with laws regulating intellectual property and protection of personal data.

These obligations shall remain in force indefinitely even after the commercial relationship between the Parties has terminated.

 

  1. DATA PROTECTION AND PRIVACY POLICY

Each of the Parties hereby represents and warrants it is in compliance with the Data Protection regulations applicable to the same (including EU regulations in force on the protection of natural persons with regard to the processing of personal data and on the free movement of such data), and that it has complied with all the terms, requirements, proceedings and regulations required to collect personal data (by whatever means), taking into account the foreseen use of the same.

The Advertiser acknowledges and accepts that all personal data contained in the relevant IO or submitted in relation to the Agreement will be incorporated on a file owned by PUSHGROUND GROUP, created with the aim to carry out the contractual relationship between the Parties, as well as to provide commercial information to the Advertiser (by any means available, including by web-based technology), in order to complement the commercialized Services. PUSHGROUND informs the Advertiser of its rights of access, rectification, cancellation and opposition. Advertiser is entitled to exercise any of these rights, by means to written notification to the following email address: data@PUSHGROUNDmob.com.

In the event that PUSHGROUND should have access to personal data to provide the Services, it shall do so in its capacity as the “person processing of the personal data” in accordance with the provisions of Section 12 of the Framework Personal Data Protection Act 15/1999, of 13 December 1999, and Sections 20 et seq. of Royal Decree 1720/2007, of 21 December 2007, which passed the regulations implemented under the aforementioned Framework Personal Data Protection Act 15/1999 and other applicable laws. PUSHGROUND shall only process the personal data which it has access to in accordance with the instructions given by the Advertiser, and shall not apply or use such data for any purpose other than that established in the Agreement, and shall not notify other persons of such data, not even for their safekeeping. The Advertiser shall be the only Party which shall decide on the purpose and use of the data which PUSHGROUND has access to.

 

  1. MISCELLANEOUS

License. Advertiser agrees that PUSHGROUND may include Advertiser’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on PUSHGROUND’s advertisers list and in its marketing materials and sales presentations and provide PUSHGROUND with the license to use its trade names, trademarks, service marks and logo for the purpose hereof.

Ownership. PUSHGROUND is the sole owner of any and all intellectual property rights associated with the Services herein. PUSHGROUND retains all rights, title and interest, including any and all intellectual property rights in and to any materials created, developed or provided by PUSHGROUND in relation to Advertiser’s campaign. PUSHGROUND reserves all rights not expressly granted herein.

Non-Exclusivity. PUSHGROUND will not render the Services on an exclusive basis and therefore PUSHGROUND may provide similar publicity, promotional and marketing services to those provided to the Advertiser to other companies.

Assignment and Rebrokering. PUSHGROUND may assign or subcontract all or part of its obligations arising from the Agreement without need of the Advertiser’s consent. Rebrokering is expressly authorized by the Advertiser.

Commercial Nature of the Relationship. The relationship which is established between the Parties by virtue of the Agreement, is a commercial relationship to all effects. PUSHGROUND and the Advertiser are independent Parties and they shall act in this capacity at all times, and nothing contained in the Agreement, nor any action taken by any Party in the execution of the same, shall be deemed to constitute either Party (or any of such Party's employees, agents or representatives) an employee, or legal representative of the other Party, nor to create any joint venture, association, syndication or any other type of relationship between them. The Parties shall each be separately liable for any corporate, tax, employment or other type of obligations arising from their commercial and economic activities.

Entire Agreement. The Terms and Conditions the IO and the Particular Terms (the Agreement) constitute the Parties’ entire agreement with respect to the subject matter hereof, and replace, annul and supersede any other agreements or documents of the Parties (including Advertiser’s general terms and conditions) in relation thereto. In the event of any difference between the stipulations of the Terms and Conditions and those of the IO, the stipulations of the latter shall prevail. In the event of any difference between the stipulations of the Particular Terms and those included in the Terms and Conditions or the IO, the stipulations of these latter shall prevail.

PUSHGROUND reserves the right to modify, from time to time and in its sole discretion these Terms and Conditions. In case of modification of these Terms and Conditions, PUSHGROUND will communicate said modification to Advertiser. The notified modification shall be deemed accepted by the Advertiser provided that the Advertiser does not communicate in writing to PUSHGROUND its disagreement within a period not exceeding five (5) days. In case the Advertiser communicates its disagreement, PUSHGROUND will be entitled either to terminate the Agreement, or to maintain the unmodified Terms and Conditions for the Advertiser.

Notices. Any notices or requests related to the Agreement shall be made to the contact persons and addresses indicated in the corresponding IO (as amended as the case may be, by written notification). Notices may be made by any lawful means which allows for the receipt and contents thereof to be recorded (including by email and fax). Any such notice will be deemed to have been received on the same business day if sent by during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day.

Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.

Force Majeure. Neither Party shall have any liability for any failures or delays in performance of the Agreement arising from force majeure events beyond their control. Force majeure events include, but are not limited to, natural disasters, governmental actions, regulatory actions or restrictions, sanctions, wars, terrorist acts, etc.

Governing Law and Jurisdiction. The Agreement between the Parties is governed by and interpreted (without giving effect to conflict of laws principles) in accordance with the Spanish law.

The Parties expressly submit any disputes arising in connection with the validity, interpretation or performance of the Agreement, to the jurisdiction of the courts of the city of Barcelona, waiving any other jurisdiction which may correspond to them.