Terms & Conditions
These terms and conditions (these “T&C’s”) shall govern the purchase of advertising and related services by Gotzha Pte. Ltd. (hereafter referred to as “Gotzha” or” Advertiser”) by its affiliated companies “ from Publisher Company as of the Effective Date. Advertiser and Publisher Company are each referred to herein as a “Party” and collectively as the “Parties”. The specific type of advertising media, pricing, placement, run, rate, targeting and other campaign-specific terms for each purchase shall be set forth in an insertion order as described below.
1. Insertion Orders; Ad Placement and Positioning.
From time to time, the Parties may negotiate insertion orders (each an “Insertion Order” or “IO”and, together with these T&Cs, this “Agreement”) under which Publisher Company will display advertisements on its Internet World Wide Web (“Web”) site(s) or otherwise deliver advertisements to computer or mobile device users. Each Insertion Order must be in writing and signed by an authorised officer of both Parties Advertiser in order to be effective. Each IO shall specify: (A) the type(s) of inventory to be delivered (e.g., Impressions, Click-Throughs or Completed Actions (each as defined below)); (B) the price(s) for such inventory; (C) the maximum amount of money to be spent pursuant to the IO (which may be open); and (D) the start and end dates of the campaign (which may be open). Other items that may be included are: reporting requirements such as which company’s server data will be used to establish delivery for billing purposes; any special advertisement delivery scheduling and/or advertisement placement requirements or restrictions, including the accepted geographical targeting for the campaign, which shall follow the Accepted Geo County Schedule attached hereto as Exhibit C and hereby incorporated by reference; and specifications concerning ownership of data collected.
Commencing on the start date set forth in the IOInsertion Order, Publisher Company will post (or otherwise publish, as described in the applicable IOInsertion Order), and thereafter maintain the advertising placements, the design and content of which shall be provided by Advertiser (“Ad Materials”) all as set forth in the applicable IO Insertion Order.
Publisher Company must comply with the IO, including all advertisement placement and traffic source restrictions, so that, for example, consistent with the scope of the IO, an advertisement provided by Advertiser (including a functioning hyperlink to a web page designated by Advertiser) is provided to the site or sites specified on the IO when such site is called up by an internet user.
Publisher Company will make commercially reasonable efforts not to place Ad Materials on Web sites that are primarily dedicated to and/or targeted at users under the age of eighteen (18).
Cost Per Action Bounties. If the insertion order specifies CPA/CPL, or Cost Per Action, pricing (or uses similar pricing terms such as cost per acquisition, cost per download, cost per registration or similar phrases), Advertiser will pay Publisher Company a fee at the rate specified in the Insertion Order for each Completed Action (as defined below) generated by Publisher Company pursuant to the IO during the term of this agreement (subject to any shorter period or payment caps specified in the IO).
“Completed Action.” As used in this Agreement, and unless otherwise specified in any certain IO, the term “Completed Action” shall have the following meaning: -in the case of advertising campaigns for Advertiser’s desktop, mobile or mobile application products, “Completed Action”: means:
in the case of advertising campaigns for Advertiser’s desktop, mobile or mobile application products, “Completed Action”: means
advertiser retains the right to exclude prospective registrants and/or disqualify registrants who do not meet all registration criteria as in place from time to time (for example, age or geographic criterion) even though such “bump out” may or may not prevent the registration from completing; and
in the case of any other type of advertising campaign, “Completed Action” shall mean the end-user action described in the IO.
No bounty shall be payable in connection with any of the following circumstances: (i) any Completed Action or Click-Through generated as the result of any incentive, reward or similar program offered by or through Publisher Company in exchange for such Completed Action or Click-Through (“Incentivized Clicks”), unless specified in the IO; (ii) any Completed Action or Click-Through reasonably believed by Advertiser to have been taken by persons under the age of 18; (iii) any Completed Action or Click-Through by persons reasonably believed by Advertiser to be located outside of the countries or regions expressly specified in the applicable IO; (iv) any Completed Action or Click-Through which, according to Advertiser servers/records, is generated or originates from a country that is outside of the countries or regions covered by the specific tracking code used to generated such Completed Action or Click-Through; (v) any Completed Actions or Click-Throughs reasonably believed by Advertiser to have been produced by any automated, computerised or machine driven process or by persons acting on behalf of (or motivated primarily by a desire to benefit) Publisher Company (“Artificial Clicks/Leads”); (vi) any Completed Actions or Click-Through generated by or in connection with any advertisement, Web site or application which is false, misleading and/or that infringes upon the intellectual property rights of Advertiser or any other 3rd party; (vii) any Completed Action or Click-Through which Advertiser reasonably deems to have occurred in violation of the terms of this Agreement, the Affiliate Guidelines mentioned above and hereby incorporated by reference (the “Affiliate Guidelines”), or via any entity or site contained in the Prohibited Networks mentioned under restrictions.
The T&Cs may be updated by Advertiser, in its sole discretion, from time-to-time, with any such updates effective upon receipt by Publisher Company. Publisher Company (1) shall not permit any of its systems, employees, agents or contractors to generate Artificial Clicks or, unless expressly permitted in the Insertion Order, Incentivized Clicks/leads, (2) represents and warrants that it has safeguards in place to prevent its systems, employees, agents and contractors from so generating Artificial Clicks/leads, and (3) shall immediately notify Advertiser if it has any reason to believe that Artificial Clicks/leads might be occurring. In addition, Publisher Company shall not, and shall ensure that each of its sub-publishers, affiliates and advertising syndication partners (“Downstream Affiliates”) shall not publish or display any Ad Materials on any Web site or through any Downstream Affiliate which is not in compliance with the same terms as Publisher Company. Publisher Company’s, or its Downstream Affiliates’, violation of this Section 2.3.2 shall give Advertiser the right to immediately terminate this Agreement, withhold any amounts due to Publisher Company pursuant to this Agreement, and without limitation of the foregoing pursue all other remedies available in law or in equity.
Additional Display Criteria. If the IO calls for advertising to be displayed on Publisher Company’s site, Publisher Company shall position all advertising on Publisher Company’s site, and shall establish a link to the applicable Advertiser website, as designated in the IO or in the advertising creative delivered by Advertiser to Publisher Company pursuant to the IO. Publisher Company shall use its best efforts to maintain its sites and to meet all display and usage requirements, levels of Impressions and number of Completed Actions or Click-Throughs as set forth in the IO (collectively the “Display Criteria”). In the event that the Publisher Company fails to meet the Display Criteria, then Advertiser may terminate this Agreement immediately upon providing written notice to the Publisher Company, without liability to Advertiser.
3. Tracking; Payment; Books & Records; Taxes.
Tracking. The number of Completed Actions, Click-Throughs or Impressions (or other applicable unit) for which payment is due under each IOr shall be as recorded by Advertiser’s servers or by the servers of a third party mutually agreeable to the Parties and specified in the IO. If the Parties agree to track the campaign using Publisher Company’s own servers (or those of a third party selected by Publisher Company) but Advertiser’s own server measurements are lower than those produced by Publisher Company’s (or such third party’s) servers and the amount in dispute is greater than 10% of the total amount invoiced, then: (i) Advertiser will notify Publisher Company of the dispute, (ii) the Parties will facilitate a reconciliation effort between two sets of server data and each party agrees to work in good faith to resolve the dispute within thirty days from the date the dispute arose. Advertiser may withhold payment of the disputed amount(s) of the invoice, and shall remit to Publisher Company the undisputed amount(s) in a timely manner. If the discrepancy cannot be resolved even though Advertiser has made a good faith effort to facilitate the reconciliation effort, Advertiser liability shall be no greater than 110% of the amount recorded by Advertiser servers.
Billing Procedure; Payment Terms. (i) Unless otherwise stated in the IO, amounts due (and not disputed in good faith) will be paid by Advertiser on a monthly basis (or such other period as may be specified in the IO), in arrears, as follows: In situations where the amount due is calculated based on Advertiser reporting data, promptly after the end of the period (or such more frequent interval as may be specified in the IO), Advertiser will provide (or make accessible) the reporting data to Publisher Company. Publisher Company shall deliver monthly (or such other period as may be specified in the IO) invoices to Advertiser accounts payable department (or such other addressee as may be named in the IO). The parties agree to work together in good faith to resolve any disputes regarding invoiced amounts. Upon resolution of any such dispute, the resulting amount due, if any, shall be due no less than 30 days after resolution of the dispute. Unless required by the terms of the resolution, no late penalty or interest shall apply to such amounts. (ii) Publisher Company acknowledges that allocation of Advertiser limited advertising budget between media suppliers and over time relies upon Publisher Company to accurately estimate the periodic fees/bounties payable by Advertiser under each Insertion Order. Accordingly, in the event that the Insertion Order lists a periodic or total maximum amount, projected spend, or similar terms (regardless of whether expressed as an estimate only), Advertiser shall not be liable for any fees/bounties for such period in excess of such amount (regardless of whether Publisher Company over-delivers Completed Actions, Click-Throughs or Impressions) and over-delivery in one period shall not be carried over to the following period, unless in each case Advertiser has expressly agreed to such additional fees or carry-over by explicit and unambiguous language in the Insertion Order. (iii) Late payment may be subject to such additional interest as the parties may agree in the IO. In any event, the invoice must be received by Advertiser within 180 days of delivery of the Completed Action, Click-Through or Impression. Failure by the Publisher Company to send such invoice shall be considered a waiver of right to payment for delivery of goods or services for which no invoice was timely sent.
Taxes. Each party shall be responsible for and pay taxes based on its own income. Publisher Company agrees to pay, and to indemnify and hold Advertiser harmless from, any sales, use, excise, import or export, value added or similar tax or duty
4. Link Formats.
Link Formats. Advertiser will provide Publisher Company with special hyperlinks for inclusion in the advertisement, which must be used in order for Advertiser to track Completed Actions and Click-Throughs. Advertiser will have no liability for any failure by Publisher Company to properly implement such special link formats in any advertising placements.
Campaign Information and Customer Data. Publisher Company will not share any data pertaining to any campaign, (including all information regarding the specific viewing of Advertiser advertisements, the Click-Through rates of such advertisements, the number of Completed Actions, Click-Throughs or Impressions generated under this Agreement, and the demographics of users that respond to the advertisements) with any third party and shall not permit any third party to use such data to target any offer or communication to end-users or otherwise to solicit end-users. All such data shall be the property of Advertiser; provided, however, Publisher Company may use aggregate demographic information once stripped of any personally identifiable user information or Advertiser-specific information.
Pricing and other Terms. The Parties shall use their reasonable efforts to keep confidential the pricing terms and all other terms and conditions of this Agreement. Unless expressly agreed to in writing by Advertiser, Publisher Company shall not disclose to any third party (in marketing materials or otherwise) that Advertiser is among its advertisers. Each Party is prohibited from disclosing the other Party’s confidential information and may not use such information except as required to perform under this Agreement. Either Party’s breach of this Section 5 would cause the other Party irreparable harm and the harmed Party shall be entitled to appropriate injunctive relief in the event of such breach.
6. License to Use Advertisers Materials.
License to Use Advertisers Materials. Subject to the terms and conditions of this Agreement, Advertiser hereby grants to Publisher Company a limited, non-exclusive, non-transferable license to use the Ad Materials provided to Publisher Company by Advertiser and to use those, but only those, trademarks, service marks and logos set forth therein (or as otherwise specified in writing by the Advertiser) (collectively the “Marks”), solely to display advertisements and links as specified in a valid IO in accordance with this Agreement. Publisher Company shall use only the most current Ad Materials and Marks, as may be provided by the Advertiser from time to time. Publisher Company agrees not to take any action inconsistent with Advertiser’s ownership of the Marks and agrees that any benefits accruing from use of such Marks shall automatically vest in Advertiser. Publisher Company may not modify for public display any Ad Materials, logos or Marks, except upon receiving Advertiser’s prior written approval. Publisher Company may not sublicense, resell, assign or transfer any of its rights hereunder, without the prior written approval of Advertiser. Any attempt to resell, assign or transfer such rights absent such approval is void and shall, at Advertiser’s election, result in immediate termination of this Agreement, without liability to Advertiser. All rights not expressly granted hereunder are reserved to Advertiser.
7. Email and Text Message (“SMS”)Compliance.
Publisher Company shall ensure that any transmission and delivery of Ad Materials by Publisher Company or its third party suppliers pursuant to this Agreement (a) complies with all local, country, state and federal laws regarding the sending of commercial email or SMS or other electronic communication and (b) does not constitute spam, meaning unsolicited or undesirous communication. Publisher Company shall have the right, with prompt notice to Advertiser, to cancel or terminate any email transmission if Publisher Company determines such transmission would violate any such law. For purposes of this Agreement, an email or SMS shall be deemed to be “Spam” if such email, SMS or other communication satisfies any one or more of the following criteria: (i) the email or SMS or other electronic communication contains or includes a falsified sender domain name or non-responsive IP address; (ii) the email,SMS or other electronic communication contains or includes a false or misleading subject line that attempts to disguise or conceal the content of the communication; (iii) the email,SMS or other electronic communication fails to contain or include valid and responsive contact information of the sender, list manager or list owner; (iv) the email, SMS or other electronic communication fails to contain or include an accurate description of the marketing purposes for which a consumer’s email address or phone number may be used; (v) the email, SMS or other electronic communication is sent for the purpose (but not necessarily the sole purpose) of harvesting the end user’s email address or other personal data in order to send future unsolicited emails or other electronic communication; (vi) the email SMS or other electronic communication is sent unsolicited to a recipient that does not have a prior business or personal relationship with Publisher Company or its third party list provider; or (vii) the email SMS or other electronic communication or the transmission of the same otherwise violates the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”) the Telephone Consumer Protection Act (“TCPA”) or any other applicable law outside the USA. In addition, any transmission of emails SMS or other electronic communication that promote or advertise any Advertiser product or service (each an “Advertiser Product”) under this Agreement shall be subject to the following terms and conditions (and Publisher Company shall not transmit any email SMS or other electronic communication under this Agreement or otherwise on behalf of Advertiser unless all of the following conditions are met):
Publisher Company shall be permitted to use a broker or other third party to deliver electronic communication hereunder only if such broker or third party agrees to act in compliance with the terms of this Agreement that would be applicable to Publisher Company if Publisher Company were performing such service itself, agrees to fully and completely indemnify Advertiser for all damages arising from the broker’s or other third party’s breach of any of such obligations and Publisher Company has the contractual right to terminate distribution or procurement by any such third party on 24 hours notice.
Every email or SMS or other electronic communication promoting an Advertiser Product shall contain a functioning return electronic mail address or other Internet-based communication mechanism clearly displayed that a recipient may use to request not to receive future messages from Publisher Company and/or any third party who initiates the list.
Every email SMS or other electronic communication sent by Publisher Company (or by any broker on Publisher Company’s behalf) shall include a valid physical postal address of Publisher Company (or such broker, as applicable) as the entity principally responsible for sending the communication.
Publisher Company shall process any and all opt-out requests within 5 business of the request and shall maintain electronic or tangible records evidencing the removal of such methods of communication e.g. email address of mobile telephone number from the list of Publisher Company for verification by Advertiser.
Publisher Company shall screen delivery by Publisher Company and/or any third party to any email or telephone lists against one or more do-not-solicit files provided by Advertiser for this purpose (whether by directly providing Publisher Company with such files, or by providing Publisher Company with access to online files) setting forth email addresses or phone numbers which have elected not to receive emails, SMS or other electronic communication promoting such particular Advertiser Product. Publisher Company shall apply such screen to all distributions within immediately upon (i) receipt of an updated list from Advertiser; or (ii) when the online files are updated. Advertiser shall be permitted to update online files, or send Publisher Company updated do-not-solicit files on a daily basis. Publisher Company shall be solely responsible for monitoring any updates to online accessible do-not-solicit files. Upon Advertiser’s request, Publisher Company shall enter into Advertiser’s standard Email Suppression List Mutual Non-Disclosure Agreement.
Unless otherwise directed by Advertiser in writing, Publisher Company shall not use (unless otherwise agreed upon) any Advertiser brand or any abbreviations of such names or any trademark, trade name, service mark, logo or other identifying information of Advertiser or its brands in the originating or return electronic communication address line, header or subject line of any electronic transmission and instead all electronic transmissions shall contain language in the body, the from line and the subject line that clearly announces that the offer embedded in the communication is being sent by Publisher Company for the benefit of Publisher Company user.
Any and all electronic communication shall contain a notice to be specified by Advertiser within the communication indicating that the communication contains a commercial message.
Upon request by Advertiser, Publisher Company shall promptly provide Advertiser with (i) a point of contact at Publisher Company office for handling customer complaints received by Advertiser and (ii) information regarding consumer responses to the electronic communication distribution and any and all records verifying that recipients consented to receive the transmissions in question and/or were properly unsubscribed.
Upon notice from Advertiser to Publisher Company requesting that Publisher Company terminate e-mail or SMS or other electronic solicitations of one or more of the Advertiser Products, Publisher Company shall immediately stop sending any e-mail SMS or other electronic solicitations promoting such Advertiser Products, and
In the event of any breach of this Agreement by Publisher Company, Advertiser shall, in addition to all other remedies available to it, have the right to refuse to make any payments to Publisher Company as a result of Publisher Company promotional efforts that cannot be verified by Publisher Company as having complied with the terms and conditions hereof.
8. Provision of Advertising Materials.
Advertiser will provide all Ad Materials in a format and a transmission method reasonably agreed upon by the parties and identified in the Insertion Order.
9. Right to Reject Advertisement.
Publisher Company has the right to reject any Ad Materials, and to cancel any Advertiser advertisement, if Publisher Company has good cause to believe that such Ad Materials are not in compliance with applicable legislation. However, the Publisher Company must promptly provide Advertiser with written notice of such rejection and/or cancellation, together with the specific reason for such rejection and/or cancellation, and any materials supporting such reason.
10. Term; Cancellation and Termination; Survival.
The term of this Agreement shall commence on the Effective Date, and shall continue until (i) terminated as provided for herein; or (ii) superseded by a future agreement between the parties.
Advertiser may cancel any advertising campaign or placement on no less than 24 hours prior notice to Publisher Company, unless a different cancellation period is expressly stated in the IO. In the event of such a cancellation, Advertiser shall be liable solely for ads actually delivered through the effective time of cancellation according to the pricing terms agreed upon by the Parties.
Either Party may terminate this Agreement, with or without cause, by providing the other Party with ten (10) days’ written notice. In the event of such a termination, all IOs shall be deemed cancelled, and Advertiser shall be liable solely for advertisements actually delivered through the effective time of cancellation according to the pricing terms agreed upon by the Parties.
Upon any termination or expiration of this Agreement, or any IOInsertion Order, all licenses granted to the Publisher Company in connection with such IO or hereunder, as applicable, shall immediately terminate, and the Publisher Company shall cease using and promptly return and purge its files of all Ad Materials relating to such IO or this Agreement, as applicable, and all related Advertiser confidential information.
11. Provision of Advertising Materials.
Publisher Company must not engage in any advertising, marketing or promotional efforts which violate any applicable laws and regulations. Publisher Company must not engage in any advertising on any websites which infringe any third party intellectual property, or that could reflect negatively upon our business reputation. Publisher Company must not use any copyrighted/licensed content, logos or images without permission of copyright or license holder. The Publisher Company agrees that they will not make any representations, promises, warranties or other statements about the advertiser’s website, products, or policies which are misleading or factually inaccurate.
FOR CAMPAIGNS TARGETING THE FOLLOWING GEOS (GB, DK, and IT) THESE ADDITIONAL TERMS APPLY: Publisher Company must not engage in any advertising, marketing or promotional efforts which violate any law and gaming license requirements. Publisher Company must not engage in any advertising on copyright infringing sites, or that could reflect negatively upon our business reputation. In addition to this, any advertising or marketing by the Publisher Company must be compliant with the UK Advertising Codes (Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP)) and any other relevant industry code of practice on advertising.
Principle Marketing communications must not describe a product as “free”, “gratis”, “without charge” or similar if the consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for delivery of the item.
3.23 Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a “free” offer.
3.24 Marketing communications must not describe items as “free” if:
3.24.1 the consumer has to pay packing, packaging, handling or administration charges for the “free” product
3.24.2 the cost of response, including the price of a product that the consumer must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion, or Guidance Note Guidance on the use of “free”
3.24.3 the quality of the product that the consumer must buy has been reduced. CAP and BCAP have published joint guidance on the use of “free”. 3.25 Marketers must not describe an element of a package as “free” if that element is included in the package price unless consumers are likely to regard it as an additional benefit because it has recently been added to the package without increasing its price. 3.26 Marketers must not use the term “free trial” to describe “satisfaction or your money back” offers or offers for which a non-refundable purchase is required.
Principle Advertisements must not describe a product or service as “free”, “gratis”, “without charge” or similar if the consumer has to pay anything other than the unavoidable cost of responding to the promotion and collecting or paying for delivery of the item. 3.25 Advertisements must make clear the extent of the commitment consumers must make to take advantage of a “free” offer. Advertisements must not describe items as “free” if: 3.25.1 consumers have to pay for packing, packaging, handling or administration of the “free” product or service 3.25.2 The cost of response, including the price of a product or service that consumers must buy to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion. 3.25.3 the quality of the product or service that consumers must buy has been reduced 3.26 Advertisements must not describe an element of a package as “free” if that element is included in the package price, unless consumers are likely to regard it as an additional benefit because it has recently been added to the package without increasing its price. 3.27 Advertisements must not use the term “free trial” to describe a “satisfaction or your money back” offer or an offer for which a non-refundable purchase is required.