GLISPA STANDARD TERMS AND CONDITIONS ON RELATIONS WITH PUBLISHERS

These Glispa Standard Terms and Conditions on Relations with Publishers (“Terms”), together with the additional terms addendum and any additional annexes (collectively, this “Agreement”), and any amendments thereto and any operating rules or policies, will apply to all relations between glispa GmbH and Publisher who signed up to the Glispa Perform Platform. Glispa 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 Publisher, Publisher’s only recourse will be to terminate this Agreement as set forth herein. Publisher’s continued use of Glispa Perform Platform following Glispa’s posting of a new Agreement on Glispa’s site will constitute a binding acceptance of the change.

By accepting the Terms, the Publisher:

(1)           represents and warrants that Publisher is of at least 18 years of age;

(2)           agrees to provide accurate, current and complete information about Publisher 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 Publisher is inaccurate, not current or incomplete, Glispa has the right to terminate Publisher’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 Publisher (the “Account”).

Glispa privacy policy available at https://www.glispa.com/privacy-policy/ (“Privacy Policy“) which is incorporated by reference into this Agreement, and is, part of these Terms. In order to use certain aspects of the Glispa Perform Platform, you may be required to agree to certain additional terms and conditions, which will be made available to you in connection with the relevant service.

1. Definitions

a. “Advertiser” means any client of Glispa GmbH.

b. “Ad Units” means any or all of the following: individual ad units, impressions, clicks, downloads or installs.

c. “Confidential Information” means all data and information of a confidential nature, disclosed during the term of the       agreement by one party to the other party, as well as information of which the receiving party knows or should know that the disclosing party regards such information as confidential, including but not limited to:

i.     a party’s business plan, strategy, know how, marketing plans, finance, personally identifiable end user information, pricing, technology, personnel matters, trade secrets;

ii.  any information marked or designated by the disclosing party as confidential.

Information is not Confidential Information if:

i.      it was already publicly known when received by the receiving party;

ii.     the information was known to the receiving party prior to receiving it from the disclosing party; or

iii.    the receiving party has developed it independently.

d. “Creative” means creative included in Advertiser’s advertising material.

e. “Glispa” means Glispa GmbH.

f. “Irregular Events” means any of the following occurrences or activities, regardless of whether or not they are carried out by,          condoned by, or known to Publisher at whatever given point in time:

i.     fraudulent traffic: the inclusion in any report or deliverable of Ad Units that result from an intentionally deceptive practice designed to manipulate legitimate ad serving or measurement processes or to create fictitious activity that leads to inflated counts or uses in calculations, anything other than natural persons viewing actually displayed ads in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform. Without limitation, fraudulent traffic includes, the inclusion or counting of views: (i) by a natural person who has been contracted or engaged for the purpose of viewing such ads, whether exclusively or in conjunction with any other activities of that person; (ii) by non-humans, i.e., “bots”; (iii) or by any combination of (i) and/or (ii); (iv) that are not actually discernable or perceived by a human being; and (v) by using a design that encourages or is reasonably likely to lead to accidental or unintended clicks by the user on any ads; or

ii.  impressions, clicks, installs or actions generated by false representation, duress or force; or

iii. otherwise non-compliant traffic according to major tracking company’s analysis and guidelines.

g. “Publisher” means any publisher who runs an advertising campaign through Glispa and registered with Glispa Perform Platform.

2. Delivery

a. Publisher must deliver Ad Units as provided through Glispa Perform Platform.

3. Warranties and representations

a. Publisher warrants and represents that Publisher is the legal owner of the URL or any other digital media source (“Digital Media”) specified in his Account, an employee of the legal owner of the Digital Media or has obtained express written permission from the legal owner of the Digital Media in connection with the use of the Glispa Perform Platform with the aforementioned domain. Without derogating from any other provision in this Agreement, Publisher expressly agrees to indemnify Glispa from any claims, losses, damages, including by any third party, arising from or in connection with the use of the Glispa Perform Platform with the specified Digital Media.

b. Publisher warrants and represents that none of the materials posted on Digital Media or otherwise used in connection with the present agreement:

i. are in violation of any applicable legal rules and regulations which may reasonably be considered to apply to the publication and/or dissemination of such materials;

ii. infringe the intellectual property or personal rights of any third party; and

iii. contain or link to any material which is harmful, threatening, defamatory, obscene, harassing, promotes discrimination, promotes illegal activities, or otherwise contains materials that may reasonably considered objectionable.

c. Publisher warrants and represents that Publisher complies with all applicable regulations and with standard industry practice, including but not limited to regulations and industry practice regarding:

i. child protection;

ii. gambling; and

iii. privacy.

d. Without prejudice to Glispa’s or any other third party’s claims and remedies, if Glispa notifies Publisher of a violation of the placement specifics, Publisher must make a commercially reasonable effort to correct such violation within 24 hours and Glispa reserves the right to pause Publisher’s campaign.

4. Creative

a. Glispa will grant Publisher a non-exclusive, non-transferable license to use the Creative solely for the purpose contemplated by this Agreement.

b. Publisher must not modify the Creative without obtaining Glispa’s prior approval.

c. Publisher must use the Creative in strict compliance with any written instructions provided by Glispa. Written instructions  may include instructions by e-mail. Publisher may reject the Creative if deemed inappropriate.

5. Invoicing

a. Publisher will invoice Glispa on a monthly basis.

b. Publisher’s invoice must display the total Publisher’s earnings that are invoiced. The invoice must include evidence in relation to the invoiced earnings. The earnings that Publisher invoices must be based on Glispa ad server reports or on reports from a mutually agreed third party service.

c. If Glispa identifies an error in said reports even after submitting reports to Publisher, or if Publisher identifies a discrepancy between Publisher’s and Glispa’s reports, Glispa and Publisher will cooperate in good faith to correct such error.

d. Provided that the total earnings displayed on the invoice accurately reflect the Ad Units that the Publisher delivered, Glispa will pay Publisher’s invoice within thirty days from the date of receipt of invoice from the Publisher.

e. The amount invoiced and paid out by Glispa will include any and all applicable tax. Glispa will not be liable to pay any tax on the invoiced amount over and above the amount that is displayed on Publisher’s invoice.

f. In accordance with applicable ISO standards, Glispa will apply SWIFT payment instruction code SHA when making a SWIFT  payment to Publisher. Glispa will only pay the outgoing transfer charge. The recipient Publisher will pay the incoming transfer     charge.

g. Glispa may withhold payment until the billable amount reaches the minimum threshold of 250 EUR (for invoiced amounts in EUR) or 250 USD (for invoiced amounts in USD).

6. Compliance

Publisher must not:

a.  unless explicitly permitted by Glispa, deliver Ad Units that include the words “free”, “no cost”, “no charge”, or anything that means “free” or “with no obligation or participation”;

b.  send unsolicited e-mail that mention Advertiser;

c. use bots on bulletins, community sites, message boards, chat communities, or social networks to promote Advertiser;

d. to another publisher’s detriment, interfere with Advertiser’s or Glispa’s tracking link.

7. Ad Units resulting from Irregular Events

a. Publisher must not provide Ad Units resulting from Irregular Events.

b. Glispa will not pay for Ad Units resulting from Irregular Events.

c. To the extent any amount attributable to Irregular Events is billed to or paid by Glispa, Publisher shall adjust the applicable invoice, or if paid, at Glispa’s option, refund or credit such payment.

8. Confidential Information

a. The parties must not disclose any Confidential Information.

b. The receiving party must hold all Confidential Information in trust and confidence and, except as may be authorized by the      disclosing party, must not use such Confidential Information for any purpose other than as expressly set forth in the present      agreement or disclose any Confidential Information to any person, except to those of its employees and professional advisers      who need to know such information in order for the receiving party to perform its obligations hereunder and who have      entered into a confidentiality agreement.

c. A disclosure is not a prohibited disclosure within the meaning of the present agreement if:

i.     the disclosing party has expressly consented to the disclosure in writing prior to the disclosure;

ii.    the disclosure is made to external advisors, auditors, attorneys or experts, provided that the respective receiving        party is under a professional duty of confidentiality; or

iii.  the disclosure is made in order to comply with a legal requirement or with a decision made by a competent court or       arbitral tribunal, or a stock exchange or supervisory authority, or some other government authority, provided that       

iv.  the disclosing party is made aware of the disclosure either prior thereto or as soon as possible subsequent thereto; and (ii) the receiving party has made reasonable efforts to maintain the information’s confidential character.

d. Following termination, each party must use reasonable commercial efforts to return or destroy the other party’s Confidential Information.

9. Data protection, data collection, processing and transfer of data

a. Within the scope of this contractual relationship, Publisher shall transfer inter alia the following data (if required and available) to Glispa for the purpose      of advertisement, billing and reporting:

i. device data;

ii. location data;

iii. publisher ID;

iv. app or site being used at the time of impression.

b. In the event that any transferred data under the present clause contains information concerning the personal or material      circumstances of an identified or identifiable individual (personal data), Publisher warrants that the collection, processing and transfer of personal data comply with the applicable data protection law. In particular, Publisher warrants that Publisher has:

i. published a conspicuous data protection and privacy policy that will be visible to the end user;

ii. obtained the end user’s consent, approval, opt-in, waiver, authorization or clearance to collect, process or use the end user’s data as may be required by applicable laws and industry practice and standards;

iii.  notified the end user that the privacy and data protection laws in the countries in which the end user’s data may be collected, processed or used may vary from the laws in the country in which such end users live;

iv.  complied with the guidelines and terms of use of any promotional channels and app stores;

v.   complied with industry guidelines, local, national and European regulations on data protection and privacy laws; and

vi. contractually obligated any third party (including, but not limited to, any agent or employee) who handles personal data on behalf of Publisher to comply with all of the above.

c. Publisher must, in particular:

i. keep a written record of all of Publisher’s efforts to comply with section 9; and

ii. provide Glispa with proof of compliance under section 9 b., should Glispa request such proof.

d. To the extent that any data that is shared between the parties includes personal data of, then Data Processing Addendum (the “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.

e. Publisher grants Glispa the right to collect, process, use or store data as provided for in section 9 a. and to profile based on that data.

10. Non-circumvention

a. Glispa maintains and controls all Advertiser contact and account management. Publisher must not contact Advertisers without Glispa’s prior consent.

b. Publisher must not circumvent Glispa directly or indirectly under any circumstances for the duration of any campaign as well as the three months that follow the termination of such campaign. In particular, Publisher warrants and represents that it will not enter into any negotiations and/or contracts with any Advertiser, provided it is known to Publisher that the entity in question is an Advertiser. For the purpose of the interpretation of this article, it is insignificant whether it was the Advertiser or whether it was Publisher which took the initiative to negotiate and/or contract with Publisher.

11. Publicity

Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.

12. Liability

a. Nothing in this Agreement shall limit or exclude the liability of either party, provided that the claims giving rise to liability arise out of:

i.    infringements of life, body or health; or

ii.   the assumption of a guarantee or of a procurement risk; or

iii.  the German Product Liability Act; or

iv. intentional or grossly negligent conduct of Glispa or of its statutory agent or other persons which Glispa may from time to time involve in the performance of its obligations towards Publisher; or

v. violations of material contractual duties the fulfillment of which is necessary in order for the contract to be duly performed and in the compliance with which the respective other Party typically places reasonable confidence  (cardinal duties).

b. UNLESS WHERE GLISPA’S LIABILITY IS UNLIMITED UNDER LIT A. ABOVE, THE LIABILITY OF GLISPA TO PUBLISHER, AS WELL AS THE LIABILITY TO PUBLISHER OF ANY OF GLISPA’S AGENTS, EMPLOYEES OR OTHER PERSONS WHICH GLISPA MAY, FROM TIME TO TIME, INVOLVE IN THE PERFORMANCE OF ITS OBLIGATIONS TOWARDS PUBLISHER, SHALL, WHETHER ARISING OUT OF CONTRACT OR STATUTE, BE LIMITED TO THE AMOUNT THAT, TAKING INTO ACCOUNT THE NATURE AND TYPE OF THE PARTIES’ CONTRACT, IN PARTICULAR ITS VOLUME, CONSTITUTES THE DAMAGES THAT ARE TYPICALLY FORESEEABLE OR, ALTERNATIVELY, 50,000.00 EUR, WHICHEVER GREATER. ON NO ACCOUNT SHALL GLISPA’S AGENTS, EMPLOYEES OR ANY OTHER PERSON WHICH GLISPA MAY INVOLVE IN THE PERFORMANCE OF THE PARTIES’ CONTRACT OR CONTRACTS BE LIABLE TOWARDS PUBLISHER FOR ACTIONS OR OMISSIONS FOR WHICH GLISPA’S LIABILITY IS EXCLUDED HEREUNDER OR SHALL QUANTUM-WISE BE LIABLE IN EXCESS OF GLISPA’S LIABILITY.

c. EXCEPT FOR BREACH OF CONFIDENTIALITY, WILLFUL MISCONDUCT AND GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

d. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PUBLISHER EXPRESSLY UNDERSTAND AND AGREES THAT PUBLISHER USE OF THE GLISPA OERFORM PLATFORM IS AT PUBLISHER’S SOLE RISK AND THAT THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM GLISPA OR THROUGH OR FROM ITS PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS. GLISPA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT

13. Indemnification

a. Publisher will indemnify and hold Glispa harmless from and against all claims (including reasonable attorney fees and costs) arising to any third party against Glispa due to infringement of the Publisher’s warranties and obligations under this contract. Publisher will be liable for any damage in this connection and the costs incurred by Glispa for legal action. This will not affect any further claims Glispa may have.

b. Publisher shall – upon first demand by Glispa or any third party nominated by Glispa – make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.

14. Force majeure

Neither party will be responsible for delays caused by accidents, war, act of god, embargoes, or any other circumstances beyond its control.

15. Term and termination

a. The Agreement will begin to apply on the signup date and will remain in full force for as long as the Publisher uses the Glispa Perform Platform.

b. 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 the notice of the violation.

c. Either party may terminate the Agreement upon forty-eight (48) hours’ notice.

16. Severability

If any provision of agreement should be held to be void, invalid or unenforceable, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby. Such provision or part thereof shall be treated as severable and shall be modified so as to be enforceable to the fullest extent allowed by law and shall be replaced by a provision that comes as close as possible in terms of economic and legal effect to the replaced provision. The same shall apply to gaps (if any).

17. Non waiver; silence; implied conduct

a. Failure of either party to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver of such terms, covenants and conditions.

b. Silence on the part of one party does not in and of itself amount to acquiescence. However, reasonable inferences may be drawn from implied conduct in accordance with the applicable law, as well as the parties’ prior dealings and commercial  customs and practices in general.

18. Successor

The present agreement will apply to any legal successors of the parties. In case of a legal succession, the parties will inform each other of that matter promptly.

19. Assignment

Glispa 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.

20. Entire agreement

a. The Agreement will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement.

b. Glispa may provide Publisher with notices, including those regarding changes to the Agreement, by email, regular mail, or postings on the Glispa Perform Platform.

c. In case Glispa is required to accept any online contracts and/or terms and conditions as a requirement to get access to Publisher’s platform and/or its reports, both parties state that the acceptance shall not, by any means, bind the parties to any new contractual relationship other than the one hereunder and that this Agreement shall fully supersede every other contract accessible via Publisher’s platform.

21. Governing law and jurisdiction

a. If Publisher is incorporated in either Germany, Austria, Belgium, Netherlands, Luxembourg, France, UK, Ireland, Sweden or Finland, the following applies:

    • Any disputes arising (i) out of or in connection with the Agreement or its validity; or (ii) out of or in connection with any past contract concluded between the parties must be resolved exclusively in the courts located in Berlin, Germany, and in accordance with the laws of Germany. If the local courts (“Amtsgerichte”) have jurisdiction ratione materiae, the local court of Mitte (Amtsgericht Mitte) in Berlin, Germany, will decide the dispute, unless a different German local court (Amtsgericht) has exclusive jurisdiction ratione loci. The prevailing party will be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of the Agreement, even if they are in excess of fees under the statutory fee schedule. The applicable substantive law is German law. Other tribunals may only be seized if (i) faced with an interim or enforcement matter and (ii) the other tribunal has jurisdiction to hear the case under its own rules.
    • Any jurisdictional and choice-of-court agreements which the parties may have concluded prior to the signing of this contract are superseded by this clause. However, if proceedings are already pending when this contract is signed, the forum seized in the previous proceedings shall not become incompetent by virtue of this clause, provided that the jurisdictional basis of the previous proceedings is such that the decision to be rendered is, regardless of the actual place of enforcement, capable of being recognized in Germany.

b. If Publisher is incorporated in any EU Member State that is not mentioned in subsection a.  or if Publisher is incorporated in either Switzerland, Norway or Iceland, the following applies:

    • Any disputes arising (i) out of or in connection with the Agreement or its validity; or (ii) out of or in connection with any past contract concluded between the parties shall be finally settled in accordance with the arbitration rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law except for the purposes of interim measures or for enforcement. The place of the arbitration is Berlin, Germany. The number of arbitrators is one. The language of the arbitration is English. The applicable substantive law is German law.
    • Any jurisdictional and choice-of-court agreements which the parties may have concluded prior to the signing of this contract are superseded by this clause. However, if proceedings are already pending when this contract is signed, the forum seized in the previous proceedings shall not become incompetent by virtue of this clause, provided that the jurisdictional basis of the previous proceedings is such that the decision to be rendered is, regardless of the actual place of enforcement, capable of being recognized in Germany.

c. If Publisher is incorporated in Mainland China, the following applies:

    • The UNIDROIT Principles of International Commercial Contracts (2010) are incorporated in this, as well as in all previous and future contracts between the parties, to the extent that they are not inconsistent with the other terms of the respective contract and the applicable law.
    • Any dispute arising from or in connection with this contract as well as with any previous or future contract between the parties shall be submitted to the South China International Economic and Trade Arbitration Commission (SCIA) for arbitration. The losing party shall bear the reasonable expenses incurred in resolving the dispute including, but not limited to, arbitration fees and attorneys’ fees. The place of the arbitration is Shenzhen, PRC. The language of the arbitration shall be English. The number of arbitrators is: 1 (one). The Chairman of SCIA shall recommend a list of candidates for the sole arbitrator for the parties to select from. Failing a joint nomination of the parties within fifteen (15) days from the date of receipt of such list by the parties, the sole arbitrator shall be appointed by the Chairman of SCIA.

d. If Publisher is incorporated in any country that is not the subject of subsections a to c, the following applies:

    • Any disputes arising (i) out of or in connection with the Agreement or its validity; or (ii) out of or in connection with any past contract concluded between the parties shall be finally settled under the rules of arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed in accordance with the said rules and without recourse to the ordinary courts of law except for the purposes of interim measures or for enforcement. The place of the arbitration is Berlin, Germany. The language of the arbitration is English. The applicable substantive law is German law.
    • Any jurisdictional and choice-of-court agreements which the parties may have concluded prior to the signing of this contract are superseded by this clause. However, if proceedings are already pending when this contract is signed, the forum seized in the previous proceedings shall not become incompetent by virtue of this clause, provided that the jurisdictional basis of the previous proceedings is such that the decision to be rendered is, regardless of the actual place of enforcement, capable of being recognized in Germany.

Annex A

Data Protection Addendum

This Data Protection Addendum (“Addendum”) reflects the parties’ agreement on the Processing of Personal Data (as defined below).

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.

1 DEFINITIONS

1.1 In this Addendum:

Controller” shall have the meaning given to that term in the Data Protection Laws.

Data Protection Laws” means (a) the EU General Data Protection Regulation (2016/679); and (b) the EU ePrivacy Directive (2002/58/EC), in each case as supplemented or amended from time to time in a member state of the European Union, or in England and Wales.

Data Subject” shall have the meaning given to that term in the Data Protection Laws.

End Publisher” means, where the Publisher acts as an agent on behalf of third parties, the publisher that originally collects Personal Data from an End User.

End User” means an individual user of a mobile device to whom Shared Data relates.

End User Request” means a request by an end user to exercise their rights in relation to Personal Data under the Data Protection Laws.

Personal Data” means any data relating to an identified or identifiable individual that are within the scope of protection as “personal data” under the Data Protection Laws.

Relevant Privacy Requirements” mean all (i) applicable laws, governmental regulations and court or government agency orders and decrees relating in any manner to the collection, use or dissemination of information from or about users, user traffic or otherwise relating to privacy rights or with respect to the sending of marketing and advertising communications; (ii) posted privacy policies; and (iii) for mobile applications, the terms of service for the applicable mobile operating system.

Standard Contractual Clauses” means standard contractual clauses for the transfer of Personal Data to third countries approved by the European Commission Decision C(2004) 5271

2 DATA SHARING

2.1 The Parties acknowledge they shall each be independent Controllers of Personal Data that is shared under the terms of this Addendum or the Agreement (the “Shared Data”). Where the Publisher acts as an intermediary on behalf of any End Publisher, the Parties acknowledge that the End Publisher shall also be a Controller of the Shared Data originating from the End Publisher.

2.2 Each Party shall process Shared Data only for (a) the purposes set forth in the Agreement or as (b) otherwise agreed in writing by the Parties, provided such processing strictly complies with (i) Data Protection Laws, (ii) Relevant Privacy Requirements and (iii) its obligations under the Agreement.

2.3 The Parties acknowledge that the Shared Data shall include those categories set out in the Schedule 1. Neither Party shall share with the other any Personal Data that (a) may be considered to be a “sensitive category of personal data” under the Data Protection Laws; (b) relates to an End User under the age of 16 years; or (c) contains direct identifiers such as an End User’s name.

3 COMPLIANCE WITH DATA PROTECTION LAWS

3.1 Each Party shall comply with the obligations of a Controller under the Data Protection Laws in connection with its processing of the Shared Data, including by making available a privacy notice that satisfies the transparency requirements under the Data Protection Laws.

3.2 The Publisher warrants and represents that in respect of the Shared Data transferred to Glispa (a) it has provided End Users (or ensured the End Publishers have so provided) with appropriate transparency information regarding data collection and use, and (b) where consent is required to be collected from End Users under the Data Protection Laws, it has collected a valid consent (or ensured the End Publishers have done so) in accordance with the Data Protection Laws.

3.3 Glispa shall direct any End User Request that it receives to the Publisher in order for the Publisher to respond directly to the End User Request.

3.4 The Publisher shall procure that End Publishers are required to comply with obligations substantially similar to those in this Clause 3.

4 INTERNATIONAL DATA TRANSFERS

4.1 Neither Party shall transfer any Shared Data (nor permit any Shared Data to be transferred) to a territory outside of the European Economic Area (“EEA“) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Data Protection Laws. Such measures may include (without limitation) transferring Shared Data (i) to a recipient in a country that the European Commission has decided provides adequate protection for personal data, (ii) to a recipient in the United States that has certified compliance with the EU-US Privacy Shield framework.

4.2 Except with regard to the Shared Data transferred from one Party to the other Party in reliance on the appropriate transfer mechanism specified in Section 4.1. above, the Standard Contractual Clauses shall apply to the recipient’s processing of Shared Data in countries outside the EEA that do not provide an adequate level of data protection. To the extent that the Parties transfer Shared Data in reliance on the Standard Contractual clauses, the Standard Contractual Clauses shall be deemed completed and signed by the Parties by the execution of this Addendum. At the reasonable request of a Party, including in order to evidence compliance with the Data Protection Laws, the Parties agree to execute the Standard Contractual Clauses separately.

5 MISCELLANEOUS

5.1 This Addendum shall be governed by the law stipulated in the Agreement.

Schedule 1 to the Addendum

Data Subjects

The Shared Data may concern the following minimum categories of Data Subjects:

• Internet and Mobile Users

Categories of Personal Data

• IP Address

• Identifier for advertiser (e.g. Google Advertiser ID or Apple Advertiser ID)

• Device identifier

Standard Terms and Conditions on Relations with Advertisers

These standard terms and conditions for advertisers outline the framework for mobile media buys. They represent the parties’ common understanding for conducting business. While each individual Insertion Order entered into or to be entered into by the parties constitutes a separate legal transaction, the present standard terms and conditions govern all Insertion Orders. Unless otherwise agreed upon, these standard terms and conditions for advertisers shall also govern contracts concluded between the parties in the past and shall supersede any clauses in such past contracts which may conflict with the contents of the present agreement.

 

Definitions

  • “Acquisition” means a user visiting an application store via Glispa’s tracking link, by downloading or by opening the application via a mobile device, as defined in the Insertion Order.
  • “Advertiser” means any client of Glispa GmbH which has entered into one or several Insertion Order(s) with Glispa GmbH.
  • “Creative” means all creative included in Advertiser’s advertising material.
  • “Glispa” means Glispa GmbH.
  • “Insertion Order” means any insertion order entered into by Advertiser and Glispa while running Glispa’s advertising campaigns.

 

Delivery

  • Glispa’s tracking and ad serving system or a third party tracking and ad serving system will measure all Acquisitions delivered by Glispa to Advertiser.
  • Advertiser must pay Glispa based on the tracking or ad serving system or the Advertiser’s backend numbers, whichever is greater, provided that Advertiser’s backend numbers have been validated by a certified tracking attribution entity or have been validated by server to server integration. If Advertiser is using a cookie-based counting method, the minimum attribution window is 30 days.
  • If there is under-delivery of volume levels, as set forth in the Insertion Order, Glispa will use commercially reasonable efforts to ensure delivery in accordance with the Insertion Order. Predictability, forecasting and conversions for CPA, CPI, CPL deliverables may vary. Unless otherwise agreed in writing, Glispa does not contract for a specific conversion, billability or profitability rate of the campaign. Advertiser may not raise the allegation that the campaign did not meet Advertiser’s actual or alleged conversion, billability, profitability, or other quality expectations, as a defense against any remuneration claim of Glispa. Rather, the parties’ campaign-specific acquisition definitions shall be deemed exhaustive. Advertiser is solely responsible for ensuring that the contents and the technical parameters of the campaign will meet the legal, regulatory as well as any pertinent third-party requirements in any of the target jurisdictions.
  • Glispa will use commercially reasonable efforts to comply with the stipulated restrictions with respect to ad placements.

 

Representations and warranties

Advertiser warrants that Creative, its products and services do not:

  • violate any third party’s trade secret or intellectual property rights;
  • contain material that is defamatory or obscene, that portrays any person in a false light, constitutes an invasion of any privacy right, or that otherwise violates any third party rights; or
  • violate any applicable laws and regulations.

 

Reporting

  • Advertiser must provide Glispa with access to ad server statistics showing advertisement units viewed, click-throughs and/or Acquisitions obtained on a weekly basis. Advertiser must provide Glispa with access to the tracking provider’s dashboard.
  • Glispa has the right to rely on Advertiser’s reporting.
  • Glispa reserves the right to have an independent auditor review any data reports from Advertiser’s backend system to verify accuracy.

 

Creative

  • Advertiser grants Glispa a non-exclusive, non-transferable license to use Creative and all elements thereof solely for the purpose contemplated by the Insertion Order.
  • Advertiser must have all necessary licenses and clearances that are required for using the content contained in Creative.
  • Glispa may reject Creative if Creative is deemed inappropriate.

 

Invoicing

 

  • Glispa will send an invoice to Advertiser on a monthly basis, showing delivery of the preceding month.
  • Advertiser must transfer payment within 15 days from the last day of the billable month. Advertiser shall be deemed to have acknowledged owing to Glispa any invoiced amount unless Advertiser communicates to Glispa within ten business days from receipt of the invoice a justified objection in writing or by e-mail. Glispa undertakes to specifically draw the attention of Advertiser to the intended significance of Advertiser’s non-objection; a corresponding alert will be contained in every invoice.
  • All invoiced amounts are net of taxes and transfer costs. If payments are due in connection with the present agreement, these payments must be made in the currency which the parties have agreed upon.
  • In accordance with applicable ISO standards, Advertiser must apply SWIFT payment instruction code SHA when making a SWIFT payment to Glispa. Glispa will only pay the incoming transfer charge. Advertiser will pay the outgoing transfer charge.
  • If Advertiser is more than 30 days past due in paying amounts owed, Advertiser is liable for:
    • collection costs, including, without limitation, reasonable attorney fees which will usually be in excess of fees under statutory fee schedules by multiple times and must be reimbursed regardless;
    • default interest on the respective outstanding claim until full and final payment; and
    • penalties for late payment. The amount of the penalty is computed by multiplying the debit positions on which the respective outstanding account balance is based by 0.025 for each full calendar week (Monday through Sunday) which has elapsed since the claim has become overdue. The penalty is capped at the amount reached after 30 calendar weeks of the penalty period.

 

Pre-litigation and/or pre-arbitration collection (supra (i)) costs are credited towards penalty amounts (supra (iii)), if any.

  • Acceptance of partial or advance payments by Glispa does not constitute a waiver of any of its rights or remedies. Glispa may claim payment of a penalty which has become due even if the principal amount has intermittently been paid wholly or in part. Glispa may at all times require that reasonable advance payments be made in order for campaigns to be initiated or resumed. An agreement or practice of the parties whereby Advertiser makes advance payment to Glispa must not be construed in such a way as to limit the volume of a campaign to the amount of the advance payment.
  • Advertiser may not set off Glispa’s claims against alleged counter-claims or exercise a right of retention with regard to Glispa s claims in view of alleged counter-claims save if such counter-claims are undisputed or have been established with res iudicata effect by way of a decision which is recognized in Germany.

 

Downtime

  • Advertiser must notify Glispa whenever it experiences downtime that affects its performance under the present agreement.
  • If Advertiser’s site or landing page goes down during a campaign, Advertiser must compensate Glispa as follows:
    • Advertiser must identify precisely when the downtime occurred.
    • Advertiser must check its server log for Acquisitions generated per hour during the three hours before errors started to occur and three hours after errors were resolved. Advertiser must determine lost Acquisitions on the basis of the average number of Acquisitions generated per hour of normal service minus the average number of sales generated during the downtime period, multiplied by the number of hours of downtime.
    • Glispa will check their system for average revenue generated during the three hours before errors started to occur and the three hours after errors were resolved. Glispa will determine lost revenue on the basis of the average amount of revenue generated per hour of normal service minus the average amount of revenue generated during the downtime period, multiplied by the number of hours of downtime. Lost Acquisitions would be the lost revenue divided by the payout per Acquisition.
    • Advertiser must pay Glispa the average of the lost Acquisition estimate determined by Advertiser and the lost Acquisition estimate determined by Glispa.

 

Data protection, data collection, processing and transfer of data

  • Within the scope of this contractual relationship, Advertiser shall transfer inter alia the following data to Glispa for the purpose of advertisement, billing and reporting:
  1. device data
  2. publisher ID
  3. ad campaign ID
  4. location data (if required and available)
  5. demographic data; or
  6. event data.

 

  • In the event that any transferred data under the present clause contains information concerning the personal or material circumstances of an identified or identifiable individual (personal data), Advertiser warrants that the collection, processing and transfer of personal data comply with the applicable data protection law. In particular, Advertiser warrants that Advertiser has:
    • published a conspicuous data protection and privacy policy that will be visible to the end user;
  • obtained the end user’s consent, approval, opt-in, waiver, authorization or clearance to collect, process or use the end user’s data as may be required by applicable laws and industry practice and standards;
  • notified the end user that the privacy and data protection laws in the countries in which the end user’s data may be collected, processed or used may vary from the laws in the country in which such end users live;
    • complied with the guidelines and terms of use of any promotional channels and app stores;
    • complied with industry guidelines, local, national and European regulations on data protection and privacy laws; and
    • contractually obligated any third party (including, but not limited to, any agent, employee etc.) who handles personal data on behalf of Advertiser to comply with all of the above.

 

 

  • Advertiser must, in particular:
    • keep a written record of all of Advertiser’s efforts to comply with section 8; and
    • provide Glispa with proof of compliance under section 8 b., should Glispa request such proof.

 

Non-circumvention

  • Glispa maintains and controls all Publisher contact and account management. Advertiser must not contact Publisher without Glispa’s prior consent.
  • Advertiser must not circumvent Glispa directly or indirectly under any circumstances for the duration of any campaign, as well as the three months that follow the termination of such campaign. In particular, Advertiser warrants and represents that it will not enter into any negotiations and/or contracts with a Publisher provided it is known to Advertiser that the entity in question is a Publisher. For the purpose of the interpretation of this article, it is insignificant whether it was the Publisher or whether it was Advertiser which took the initiative to negotiate and/or contract with Advertiser.
  • Advertiser is released from its obligation under lit. b above once the contractual relationship with Glispa has been ongoing continuously for at least 5 (five) consecutive years.

 

Publicity

Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.

 

Liability

  • Nothing in this Agreement shall limit or exclude the liability of either party, provided that the claims giving rise to liability arise out of:
    • infringements of life, body or health; or
    • the assumption of a guarantee or of a procurement risk; or
  • the German Product Liability Act; or
    • intentional or grossly negligent conduct of Glispa or of its statutory agent or other persons which Glispa may from time to time involve in the performance of its obligations towards Advertiser; or
    • violations of material contractual duties the fulfillment of which is necessary in order for the contract to be duly performed and in the compliance with which the respective other Party typically places reasonable confidence (cardinal duties).

 

  • Unless where Glispa’s liability is unlimited under lit a. above, the liability of Glispa to Advertiser, as well as the liability to Publisher of any of Glispa’s agents, employees or other persons which Glispa may, from time to time, involve in the performance of its obligations towards Advertiser, shall, whether arising out of contract or statute, be limited to the amount that, taking into account the nature and type of the parties’ contract, in particular its volume, constitutes the damages that are typically foreseeable or, alternatively, 50,000.00 EUR, whichever greater. On no account shall Glispa’s agents, employees or any other person which Glispa may involve in the performance of the parties’ contract or contracts be liable towards Advertiser for actions or omissions for which Glispa’s liability is excluded hereunder or shall quantum-wise be liable in excess of Glispa’s liability.

 

Indemnification

  • Advertiser agrees, at its own expense, to indemnify, defend and hold harmless Glispa, its employees, representatives, agents and affiliates, against any and all expenses and losses of any kind (including reasonable attorney fees and costs) incurred by Glispa in connection with any claims, administrative proceedings or criminal investigations of any kind arising out of the publication of the advertisement and/or any defamation, privacy violation, false or deceptive marketing practices.
  • Advertiser hereby indemnifies and holds Glispa harmless from and against all claims arising to any third party against Glispa due to infringement of the aforementioned warranties and obligations (under section 8.b)) by Advertiser. Advertiser is liable for any damage in this connection and the costs incurred by Glispa for legal action. This shall not affect any further claims Glispa may have. Advertiser shall – upon first demand by Glispa or any third party nominated by Glispa – make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.

 

Force majeure

Neither party will be responsible for delays caused by accidents, war, act of god, embargoes, or any other circumstances beyond its control.

 

Term and termination

  • The present Standard Terms and Conditions will begin to apply to the relationship between Glispa and Advertiser on the date of signing of an Insertion Order referring to them, and they will remain in full force for as long as any Insertion Order is in effect between the parties thereto. The right to terminate for good cause remains unaffected.
  • The present agreement must be terminated by providing written notice to the other party.
  • Insertion Orders which specify the end of the campaign as “open” shall expire ipso facto once two years have elapsed since their conclusion unless the Parties agree otherwise.

 

Severability

If any provision of agreement should be held to be void, invalid or unenforceable, in whole or in part the validity of the remaining provisions shall remain unaffected hereby. Such provision or

part thereof shall be treated as severable and shall be modified so as to be enforceable to the fullest extent allowed by law and shall be replaced by a provision that comes as close as possible in terms of economic and legal effect to the replaced provision. The same shall apply to gaps (if any).

 

Non waiver; Silence; Implied conduct

  • Failure of either party to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver of such terms, covenants and conditions.
  • Silence on the part of one party does not in and of itself amount to acquiescence. However, reasonable inferences may be drawn from implied conduct in accordance with the applicable law, as well as the parties’ prior dealings and commercial customs and practices in general.

 

Modification

Glispa has the right to modify the present agreement and any Insertion Order made subject to the present agreement, by providing Advertiser with two weeks’ notice by e-mail. Unless Advertiser objects within the notice period, the modifications are deemed to have been approved by Advertiser.

 

Successor

The present agreement will apply to any legal successors of the parties. In case of a legal succession, the parties will inform each other of that matter promptly.

 

Entire agreement

The Insertion Order and the underlying agreement will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Insertion Order.

 

Governing law and jurisdiction

  • The present Standard Terms and Conditions shall be governed by the law stipulated in the Insertion Order or Insertion Order entered into between Glispa and Advertiser.
  • If there are multiple Insertion Orders between Glispa and Advertiser which are in full force and effect at the same point in time, and if they contain incompatible provisions on the governing law,
  • if one of the Insertion Orders provides for the application of German law, or if none of the Insertion Orders provides for any law, then the present Standard Terms and Conditions shall be governed by German law;
  • otherwise, these Standard Terms and Conditions shall be governed by the law designated in the most recent Insertion Order.
  • Disputes arising under and/or in connection with these Standard Terms and Conditions shall be resolved pursuant to the stipulations contained in the Insertion Order and/or Insertion Orders entered into between Glispa and Advertiser.
  • If there are multiple Insertion Orders between Glispa and Advertiser which are in full force and effect at the same point in time, and if they contain incompatible provisions on the resolution of disputes, then these Standard Terms and Conditions may be invoked before any court or tribunal which may have jurisdiction under any of the Insertion Order(s) or otherwise.