Terms and Conditions for Advertisers
Preamble
1. Next Level S.L., Edificio Banco de Santander, 07002 Palma de Mallorca operates a Digital Performance Marketing Network (Imocash), which enables providers of any services and products (Advertiser) to advertise their services and products online using selected operators of websites and mobile applications (Publisher).
2. Imocash brings Advertisers and Publishers together. Within Imocash, Publishers make websites or mobile applications available (Advertising Space) to advertisers, whereas Advertisers make banners, pop-ups, texts, graphics, videos, email-lists, or animations (Advertising Material) available to Publishers.
3. These Terms and Conditions are the binding agreement governing the legal relation between Imocash and the Advertiser.
4. By signing up as an Advertiser, the Advertiser hereby acknowledges that has read it understood and accepts each of the sections set forth herein.
Advertiser
1. Imocash accepts an Advertiser at it´s sole discretion. Imocash only accepts Advertisers of at least eighteen years of age.
2. During the term of this Agreement Imocash engages Advertiser as an exclusive Advertiser and Advertiser agrees to be engaged as such.
3. The Advertiser agrees to provide advertising content including images and text in connection with various advertising campaigns to be run by Imocash’s Publishers on behalf of the Advertiser on mobile websites and/or applications.
4. Approved Advertisers remunerate Imocash based on the successful delivery of a specific campaign including, as applicable, the display of an Ad, an end user clicking on an Ad, or an end user completing some action (including but not limited to sales/installs/leads) after viewing or clicking on an Ad.
Advertiser’s Ad Campaign Restrictions
Advertiser’s Ad Campaign must not promote, advocate, facilitate or otherwise include any of the following:
– Racial, ethnic, political, hate-mongering or otherwise objectionable content;
– Investment, money-making opportunities or advice not permitted by law;
Violence or profanity;
– Material that displays any telephone numbers, street addresses, last names, URL’s, e-mail addresses or any confidential contact of any third person;
– Material that impersonates any person or entity;
– Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
– Content which is inappropriate or harmful to children;
– Promotion of terrorism or terrorist related activities, sedition or similar activities;
– Software pirating;
– Hacking or Phreaking;
– Any material that contains software viruses or any other computer code, files or campaigns designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
Reservation of the Right to reject and remove Content
1. Imocash does not review and approve any content oft the Advertiser prior to publication. Nevertheless Imocahs reserves the right within its discretion to reject or remove from its Publisher’s mobile websites any Ads that do not comply with its policies, including but not limited to the eligibility and content policies set-out in this Agreement above, or that in Imocash’s sole judgment do not comply with any applicable law, regulation or other judicial or administrative order.
2. Imocash reserves the right within its discretion to reject or remove from its Publisher’s mobile websites any Ads, which would bring or may tend to bring, disparagement, ridicule, or scorn upon Imocash or any of its Publishers, developers or other business partners, or it otherwise deems inappropriate in its sole discretion.
Payment
1. The Advertiser shall be obliged to make a result-based payment to Imocash for the services rendered, these being specified in detail in the Conformation of Order.
2. Imocash shall invoice the Advertiser for the required payment twice a month.
3. The amounts stated in the invoices shall be due for payment, without deductions, within seven (7) days after delivery of the invoice to the Advertiser. All transfer fees shall to be covered by the Advertiser.
Intellectual Property
1. All materials, in particular data, software, information, documents, signs, marks, symbols and data supplied to Advertiser by or on behalf of Imocash shall be and remain the sole and exclusive property of imocash.
2. Imocash owns all copyrights, trademarks, or any other intellectual Property Rights connected to the services, websites or software necessary for the execution of this Agreement.
3. All such property shall be delivered to Imocash by Advertiser, immediately upon demand, or destroyed, as may be requested.
4. The Advertiser shall not be entitled
(a) to pass on to third parties or allow third parties access to the applications placed at its disposal via the Imocash network or, where applicable, the data contained therein,
(b) to modify or otherwise process said applications and data, or (c) to transfer them to other formats and/or use them to set up a database and/or service operation of its own.
5. The Advertiser hereby grants Imocash the non-exclusive, transferable, irrevocable and royalty-free, worldwide License to use the Advertising Material provided by the Advertiser in order to fulfill the purpose of the present agreement, in particular to supply said materials to the Publishers for placement on their Advertising Space and, where applicable, supply to their Sub-Publishers.
6. The Advertiser warrants that it is entitled and in a position to grant the aforesaid right. The Publisher shall not be permitted to process, reproduce or disseminate the Advertising Material to any extent in excess thereof.
7. Imocash shall be entitled to grant Publishers sub-licenses for the use of the Advertiser’s Advertising Material (including the right of the Publishers to grant sub-licenses to any possible Sub-Publishers).
8. By transmitting the particular Advertising Material, the Advertiser gives its formal approval to their use for the above-stated purpose.
9. Imocash shall be entitled to use the Advertiser’s Advertising Material and its product names, including the trademarks for the goods and services offered via the Imocash Network, as a reference in the context of its own acquisition operations.
Termination
1. The contract for participation in the Imocash Network is concluded indefinitely.
2. Either party may terminate this Agreement without cause with immediate effect at any time.
3. If the Agreement is terminated the Advertiser must cease to use the licenses, sites and services of Imocash immediately.
4. Imocash is entitled at its sole discretion to terminate its websites and services at any time without notice.
5. Notwithstanding termination of this Agreement for any reason, the Advertiser covenants and agrees that it will continue to be bound by the terms set out in Sections: Indemnification, Limitation of Liability, Force Majeur, Confidentiality, Applicable Law and Competent Courts of this Agreement.
Indemnification
1. The Advertiser covenants and agrees to indemnify and save harmless Imocash, its parent company and their respective shareholders, directors, officers, and employees (Indemnified Group) from and against any and all claims or judgments, including all associated legal fees, expenses and disbursements actually incurred, arising out of any breach of this Agreement by the Advertiser or or the exercise by the Advertiser of any right under this Agreement or any act or omission of the Advertiser, or anyone for whom the Advertiser is in law responsible, including without limitation any damages, losses, consequential or otherwise, arising in any manner (including those arising from or incidental to any liability or other lawsuit, claim, demand or other action brought) as a consequence of any act or omission of the Advertiser or any person for whom the Advertiser is in law responsible, whether or not the Indemnified Group or any of them are named as a party defendant in any such proceedings and whether or not the Indemnified Group or any of them are alleged to be negligent or otherwise responsible for any damage or injury to persons or property.
2. The obligation of the Advertiser to defend and indemnify as set out in this section will not be otherwise limited by any other term or condition of this or any Agreement.
3. Imocash may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by Advertiser. Imocash may participate in the defense of all claims as to which it does not assume defense and control, and Advertiser shall not settle any such claim without Imocash prior written consent.
Limitation of liability
1. Imocash disclaims all conditions and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement).
2. Notwithstanding any other provision of this Agreement, Imocash additionally disclaims all obligations and liabilities on the part of Imocash and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys’ and experts’ fees, and court costs (even if Imocash has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.
3. In no circumstance will Imocash be liable to the Advertiser or any third party for any consequential, indirect, special, punitive or incidental damages or lost profits of the Advertiser or the Advertiser’s successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise.
4. The preceding liability exclusions and limitations apply to the same extent in favor of management bodies, shareholders, legal representatives, employees and other vicarious agents of Imocash.
5. The liability of Imocash in accordance with the German Product Liability Act for intentional actions, for death, injury and damage to health as well as for fraudulent concealment remains unaffected by the pre-ceding liability exclusions and limitations.
Force Majeur
Imocash shall not be liable or responsible for any failure or inability to perform or delay caused by reason of one or more so called “force majeure” contingencies as fire, earthquake, hurricane, natural disaster, strike, labor disturbance, civil commotion, acts of Government, any Law, action of any labor union or association affecting a Party or the industry within which the Party is engaged, delays in the delivery of materials or supplies, terrorist attack, any act of sabotage, etc.
Noncompetition
The Advertiser shall not for any reason carry on, or be engaged in, or be concerned with, or interested in, or employed by any person or company engaged in or concerned with or interested in a business which is the same as, or substantially similar to, or in competition with, the businesses of Imocash.
Exclusivity
Imocash shall be the exclusive publisher for that offer, and Advertiser shall not duplicate the same or similar offer for any other affiliate, publisher, or network without Imocash‘s prior written consent.
Confidentiality
1. The parties undertake to treat all confidential information, for example of a technical, commercial or organizational nature, which comes to their knowledge via the performance of the present agreement, in strict confidence and to use it only for the contractually agreed purposes. This non-disclosure obligation shall not apply in respect of persons who are authorized to gain such knowledge and are under a statutory or contractual confidentiality obligation or if non-disclosure is in conflict with the assertion of their own claims, or if the other party has consented to disclosure. Confidential information within the meaning of this provision shall be information, documents, statements and data which are designated as such or must, by their nature, be regarded as confidential. The term confidential information does not include information which (a) is or comes to be in the public domain or accessible to the general public (unless this is due to a breach of the present agreement by the party informed or one of its representatives); (b) had already lawfully and without any applicable confidentiality obligation come into the possession of the informed party before it was received from the informing party; or (c) was received from a third party with an unrestricted right to disclose the information.
2. If a party is obliged to make information from other party which is confidential in the aforesaid sense accessible to public authorities, it shall be entitled to do so; said other party must be informed without delay and if possible before disclosure of the information to the public authorities.
3. Both parties shall be obliged, on termination of the agreement, to return or destroy, at their discretion, the other party’s confidential information, except when it has been properly disposed of or must, by law, be preserved.
Data Protection
1. Imocash shall collect, process and use personal data exclusively in compliance with the applicable provisions of statute law for the protection of data, in particular the BDSG (German data protection act) and all relevant European Data Protection Directives, in Particular Directive 95/46/EC.
2. Imocash shall be entitled to collect and use the Advertiser’s person-related data (name of contact partner, address, other contact information, bank details) insofar as this is necessary to enable the Advertiser to participate in the Imocash Network. The processing and use of person-related data for other purposes shall only be possible on the basis of consent or a statutory provision which allows Imocash such use.
3. The Advertiser also undertakes to comply with the applicable data protection provisions of statute law, and shall not collect, process or use the person-related data of third parties except with the consent of the parties affected or on the basis of a statutory requirement.
Applicable Law and Competent Courts
1. These Terms and Conditions and any contracts entered into between Imocash and the Advertiser will be interpreted, construed and enforced in all respects in accordance with the laws of the Federal Republic of Germany excluding its conflict of law rules and under exclusion of of the UN Convention on the International Sale of Goods (CISG).
2. If the Advertiser is a corporation, limited liability company or commercial partnership or otherwise operates a commercial business (Kaufmann within the meaning of the German Commercial Code) or is a legal entity or special fund organized under public law, the courts in Hannover (Germany) shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract or in connection with these Terms and Conditions.
General
1. All the services, offers and agreements or contracts between Imocash and the Advertiser shall be subject exclusively to these Terms and Conditions.
2.Terms and conditions of the Advertiser which are in conflict with or differ from these Terms and Conditions shall not be applicable. This shall also apply if Imocash has been informed of such other contractual terms and conditions and has enabled access to the Imocash network in knowledge of such contractual terms and conditions. Any conflicting confirmations by the Advertiser on the basis of its own terms and conditions will not be recognized.
3. Imocash may assign this Agreement without the Advertiser’s prior consent. The Advertiser may not assign this Agreement without the express written consent of Imocash.
4. From time to time, Imocash may amend, supplement or replace this Terms and Conditions in part or in whole, on Notice to the Advertiser. If within ten buisness days following Notice of such amendment, supplement or replacement the Advertiser has not terminated this Terms and Conditions, the Advertiser will be deemed to have consented to the same.
5. Any notice or other communication permitted or required by this Terms and Conditions will be in writing and given by personal delivery or transmitted by facsimile or electronic mail to the receiving party at the address provided to Imocash by Advertiser. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile or electronic mail or delivered.
6. The invalidity of individual provisions of these Terms and Conditions shall not affect the validity of the other provisions. Invalid provisions shall, by way of priority, be replaced by provisions which are legally valid and which correspond, in commercial terms, as closely as possible to the invalid provisions. The same shall apply to any omissions or unregulated matters.
7. These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.