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.

Glispa Connect Terms and Conditions on Relations with Publishers

These Glispa Connect Terms and Conditions on Relations with Publishers will apply to all relations between glispa GmbH and Publisher who signed up to the Glispa Connect Platform. Glispa GmbH and Publisher agree to be legally bound as follows:

 

Definitions

  • “Account” means an online, password protected Publisher account allowing Publisher to manage its advertising revenues over the Glispa Connect Platform.
  • “Ad” means any advertisement, including any graphics, text, hyperlinks or other promotional content therein, provided by Advertiser.
  • “Ad Unit” means any or all of the following: individual Ad units, impressions, clicks, downloads or installs.
  • “Advertiser” means any client of Glispa that submits an Ad to the Glispa Connect Platform.
  • “Agreement” means the present agreement and any amendment or addendum thereto signed between Glispa and Publisher.
  • “Glispa Connect Ad Serving Solution” means the Glispa Connect Mediation Solution, as well as Glispa Connect Cross Promotion Solution and the Glispa Connect Direct Deals Solution.
  • “Glispa Connect Cross Promotion Solution” means the technical solution that is used by Glispa to serve Ads on behalf of Publishers. The solution allows Publishers to promote their own apps using their own Ad impressions.
  • “Glispa Connect Direct Deals Solution” means Glispa’s solution that connects Advertisers with Publishers so that Publishers may simultaneously run campaigns from Ad networks and Demand Supply Platforms (DSPs) alongside campaigns that Publishers have received directly from Advertisers.
  • “Glispa Connect Exchange” means the Real Time Bidding (RTB) platform for demand supply platforms (DSPs) or any demand partners that want to buy impressions in a programmatic manner.
  • “Glispa Connect Mediation Solution” means a single SDK that incorporates Ad network, SDKs and application program interfaces (APIs) to allow for the mediation between Ad networks on both, the demand and supply sides, with Glispa being included as one of multiple demand sources.
  • “Glispa Connect Platform” means the online platform developed, maintained and offered by Glispa to Publisher in connection with the Services, comprising both the Glispa Connect Ad Serving Solution and Glispa Connect Exchange solution.
  • “Confidential Information” means any and 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 any information of which the receiving party knows or should know that the disclosing party regards such information as confidential, including but not limited to:
    • a party’s business plan, strategy, know how, marketing plans, finance, personally identifiable end user information, pricing, technology, personnel matters, trade secrets;
    • the terms of the Agreement;
    • any information marked or designated by the disclosing party as confidential.
  • Information is not Confidential Information if:
    • it was already publicly known when received by the receiving party;
    • the information was known to the receiving party prior to receiving it from the disclosing party; or
    • the receiving party has developed it independently.
  • “Dashboard” means the panel through which Publisher can set up its app and integrate Ad sources and through which Publisher can manage, optimize and analyze their Ad monetization strategy.
  • “Glispa” means glispa GmbH.
  • “Glispa Ad Network” means Glispa’s direct demand that is integrated by default into the Glispa Connect Mediation Solution.
  • “Inventory” means the elements of any Publisher Property that Publisher makes available via the Services for the placement of Ads.
  • “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:
    • fraud;
    • impressions, clicks, installs or actions generated by false representation, duress or force;
  • automated means to increase the number of impressions, clicks, installs or actions through tracking links or completion of any required information by use of spyware, use of steal ware or use of cookie-stuffing;
  • impressions, clicks, installs or actions generated by offers of cash, prizes or anything else of value in exchange for services;
  • unless expressly agreed on otherwise, impressions, clicks, installs or actions generated by the use of the words “free”, “no cost”, “no charge”, or anything that means “free” or “with no obligation or participation”;
  • impression data matches click data during any consecutive 24-hour period;
  • more than 70% of installs during any consecutive 24-hour period are received within one hour from the initiated click; or
  • the click to install rate amounts to less than 0.25% during any consecutive 24-hour period.
  • “Mainland China” means the geopolitical area under the direct jurisdiction of the People’s Republic of China. The term excludes Hong Kong, Taiwan and Macau.
  • “Payout” has the meaning explained in sections 5 lit. a and b below.
  • “Publisher” means a person who desires to make Inventory available via the Service for the placement of Ads.
  • “Publisher Network” means any entity which develops, owns or operates an app and/or site that Publisher made available to Glispa Connect Exchange, including, without limitation, Publisher itself, as well as any of its affiliates and/or subsidiaries.
  • “Publisher Property” means mobile applications and websites registered by Publisher over its Account over which Ads are served.
  • “SDK” means any software development kit developed by Glispa and the rights in which are vested in Glispa, as well as any third party components contained in such software development kit and any Update.
  • “Services” means the services provided by Glispa under section 3 of the Agreement.
  • “Update” means any change that Glispa has applied to the SDK, including but not limited to any of the following: an upgrade, patch, enhancement, or fix for the SDK that Glispa has provided to Publisher.
  • “User Activities” means activities of end users on the Platform relevant for the payment arrangement under the Publisher Agreement.

Warranties

  • Publisher warrants and represents that none of the materials posted on Publisher’s media or otherwise used in connection with the Agreement
  • 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;
  • infringe the intellectual property or personal rights of any third party; and
    • 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.
  • Publisher must comply and contractually require any third party within the Publisher Network to comply at all times with all applicable regulations and with standard industry practice, including but not limited to regulations and industry practice regarding:
    • child protection legislation, including the United States Children’s Online Privacy Protection Act 1998 (COPPA) (notwithstanding the requirement to also abide by other jurisdictions’ laws and legal rules), as well as industry standards;
    • gambling legislation and industry standards; and
    • privacy legislation and industry standards.
  • Publisher must comply and contractually require any third party within the Publisher Network to comply at all times with all applicable policies of third party platforms that distribute its Publisher Property, including the policies, rules and standards of Apple, Facebook, Microsoft and Google to mobile application developer policies, API terms and all other guidelines posted on respective websites.

 

Services

  • Glispa will use commercially reasonable efforts to provide the following Services:
    • provide the Glispa Connect Ad Serving Solution and Glispa Connect Exchange;
    • host, maintain and make available the website www.Glispa Connect.com, the Account and Dashboard;
  • serve Ads provided by Advertisers for distribution to Publisher Property registered on the Account;
  • make Glispa’s API available to deliver Ads to the Publisher Property; and
  • track Account data and make it available to Publisher.
  • Publisher may sign up to one or several of the following Glispa Connect Platform solutions:
    1. Glispa Connect Ad Serving Solution; or
    2. Glispa Connect Exchange.

 

Sign up and approval process

  • Publisher must
    • establish an Account by completing the registration process.
    • provide Glispa with accurate and complete information, including contact and payment information, corporate and tax official identification number, as well as with Publisher Property characteristics, and update this information by providing Glispa with the new information immediately once a change has occurred.
  • Publisher is solely responsible for submitting its Publisher Property characteristics and for keeping such information up-to-date.
  • Glispa may:
    • manage the Inventory;
    • select the Ads to be delivered to the Publisher Property;
    • identify, select and manage relationships with Advertisers;
  1. determine the terms under which Ads are distributed and marketed; and
  2. take all actions regarding the foregoing provisions.
  3. Publisher must keep its Account information up-to-date by promptly notifying Glispa of any changes in the Account information. Account access is provided on a password protected basis.
  4. Publisher must keep access data strictly confidential and must not disclose such data to any third party without Glispa’s written approval in advance.
  5. Publisher must not participate in any unauthorized use of the Account or any other access data.
  6. Publisher must inform Glispa immediately if Publisher becomes aware of the fact that an unauthorized third party has gained access data or has used Publisher’s equipment, property or system.
  7. If Publisher reasonably suspects that access data is known to an unauthorized third party or that Publisher’s equipment, property or systems have been used by a third party, then Glispa may either change the access data at its own discretion or block the Account.
  8. At Glispa’s reasonably exercised discretion, pursuant to § 315(1) of the German Civil Code, Glispa may suspend, restrict, or cancel Publisher’s access to the Glispa Connect Platform or any part of it and/or to its Account.

 

Glispa Connect Exchange

  • Provided the Publisher has provided Glispa with a respective invoice, Glispa will pay Publisher the Payout due to Publisher for transactions entered into through Glispa Connect Exchange services within thirty days from delivery.
  • The Payout for each individual transaction entered into using Glispa Connect Exchange will be determined unilaterally by Glispa at Glispa’s reasonably exercised discretion, pursuant to § 315(1) of the German Civil Code, taking into account all relevant facts and circumstances, and, in particular, the net proceeds actually received by Glispa in connection with the required User Activities.
  • Glispa provides no assurance that Publisher will earn any particular Payout amount or that Publisher will recover any expenses that Publisher has made in fulfillment of its obligations under the Agreement.
  • Glispa will not be liable to pay any tax on the Payout, except where mandatory German and/or EU legislation provides otherwise.
  • Publisher is responsible for providing and maintaining accurate payment and contact information.
  • Publisher will bear all transaction costs in relation to payments made by Glispa to Publisher.

Glispa Connect Ad Serving Solution

  • The following subsections b and c apply to the use by Publisher of the Glispa Connect Ad Serving Solution.
  • The Glispa Connect Ad Serving Solution is provided to Publisher free of charge.
  • Unless where Glispa is expressly indicated as a demand source for a specific transaction mediated through the Glispa Connect Ad Serving Solution, Publisher earns a payment claim solely against the third parties indicated as relevant demand sources. On no account shall Glispa be held fully, or even partially, directly or subsidiarily, liable for the fulfillment of any remuneration, commission, compensation or any other monetary or non-monetary claim which Publisher may have against a third party advertiser under or in connection with a contract mediated through or with contract negotiations which have been handled using the Glispa Connect Ad Serving Solution.
  • Where Glispa is expressly indicated as a demand source for a specific transaction mediated through the Glispa Connect Ad Serving Solution, Publisher acquires claims against Glispa. Publisher’s claims will be based on cost per thousand impressions (CPM). Section 5 b shall apply mutatis mutandis to the present subsection.

Ad Units resulting from Irregular Events

  • Publisher must not deliver Ad Units resulting from Irregular Events.
  • Glispa will not pay for Ad Units resulting from Irregular Events.

 

Confidential information

  • The parties must not disclose any Confidential Information to any third party.
  • 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 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.
  • A disclosure is not a prohibited disclosure within the meaning of the Agreement if:
  • the disclosing party has expressly consented to the disclosure in writing prior to the disclosure;
  • 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
  • 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 (i) 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.
  • Following termination, each party must use reasonable commercial efforts to return or destroy the other party’s Confidential Information.

 

Data protection, data collection, processing and transfer of data

  • Within the scope of this contractual relationship, Publisher shall transfer inter alia the following data to Glispa for the purpose of advertisement:
    • device data;
    • location data (if required and available);
    • Publisher ID;
  • app or site being used at the time of impression.
  • 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 will comply with its obligations as data controller under applicable data protection legislation;
    • Publisher has published a conspicuous data protection and privacy policy that will be visible to the end user;
  • Publisher has obtained the end user’s prior, specific and informed 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, industry practice and standards and that such consent is sufficiently detailed in scope regarding the type of data collected, processed and used and regarding the purpose of the collection, processing and use;
  • Publisher will obtain prior, specific and informed consent or opt-in regarding all functionalities of the SDK from the end user that uses a device containing the SDK;
  • Publisher will in particular obtain prior, specific and informed consent or opt-in from the end user who uses a device containing the SDK, to collect, process or use the end user’s location data, as well as data on apps stored or installed and data on how apps are used by end users, where applicable;
  • Publisher will obtain consent or opt-in from the end user who uses a device containing the SDK before the end user engages in the download or install of the respective app;
  • Publisher has provided clear and complete information to end users regarding collection, use and disclosure of user or device data;
  • Publisher has 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;
  • Publisher has complied with the guidelines and terms of use of any promotional channels and app stores;
  • Publisher has complied with industry guidelines, local, national and European regulations on data protection and privacy laws; and
  • Publisher has contractually obligated any third party (including, but not limited to, any agent, employee etc.) who handles personal data on behalf of Publisher to comply with all of the above;
  • Publisher has advised the end user that the end user may withdraw his opt-in (opt-out) at any time by clicking on the link that Publisher will have obtained from the Glispa Connect Platform: www.Glispa Connect.com.
  • Publisher has advised the end user that the end user may opt out of all interest based advertising by setting his mobile device accordingly, where this possibility is applicable.
  • Publisher must, in particular:
    • keep a written record of all of Publisher’s efforts to comply with section 9; and
    • provide Glispa with proof of compliance under section 9 b., should Glispa request such proof.

 

Use of Software Development Kit

  • By downloading or using the SDK along with any documentation that accompanies it, Glispa grants Publisher a gratuitous, limited, worldwide, non-transferable, non-sub licensable, non-exclusive license to use the SDK solely for the purpose of using the Services.
  • Unless Glispa has given prior written approval, Publisher will not, either directly or indirectly, combine the SDK with other software such that Publisher restricts or charges for access to the SDK. If Glispa makes available and Publisher uses the SDK in compiled form, Publisher must not copy (except for backup purposes), decompile, disassemble, reverse engineer, modify, adapt, or create derivative works of the SDK, including runtime components and any other portions thereof. Publisher must not extract the source code of the SDK.
  • If Glispa releases an Update, Publisher must implement the Update within its application within a reasonable period of time from the time of release.
  • Publisher’s use of any components of the SDK that are licensed under an open source software license are governed solely by the applicable license for that software.
  • Glispa may revoke the license granted under the present clause at any time with immediate effect. Glispa may remove copies of the SDK at any time with immediate effect.

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 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 Publisher; 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 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, EUR 50,000, 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.
  • For the avoidance of doubt, contractual fulfilment claims to remuneration which the Publisher has against Glispa shall not be capped under the preceding sentence.

 

Indemnification

Publisher will indemnify and hold Glispa harmless from and against all claims (including reasonable attorney fees and costs) by any third party against Glispa due to infringement of the Publisher’s warranties and obligations under this Agreement. 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. 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.

 

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 Agreement will begin to apply on the signup date and will remain in full force for as long as the Publisher uses the Glispa Connect Platform. The right to terminate for good cause remains unaffected.

 

Severability

If any provision of the 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 Agreement by providing Publisher with two weeks’ notice by e-mail. Unless Publisher objects within the notice period, the modifications are deemed to have been approved by Publisher.

 

Successor

The 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 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.

 

Governing Law and Jurisdiction

  • 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.
  • 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.
  • 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.
  • 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.

Content guidelines

For Advertisers

  • Ads must be redirected to sites that are formatted for display on a mobile screen. To ensure a high-quality experience for advertisers, publishers and users, our ad exchange is targeted towards mobile devices and sites formatted for a mobile browser.
  • Glispa Connect (formerly known as Avocarrot) does not allow flashing ads or ads that make mobile devices vibrate.
  • Glispa Connect (formerly known as Avocarrot) does not allow advertising for products or services which contain the following types of content:

 

Violence

  • Assault/rape
  • Injury to human beings
  • Injury to animals
  • Blood and dismemberment, human beings
  • Blood and dismemberment, animals
  • Torture or killing of human beings
  • Torture or killing of animals

 

Obscenity and sexual materials

  • Nudity (deep cleavages, exposed breasts, visible genitalia, exposed buttocks)
  • Obscured or implied sexual acts
  • Explicit sexual language
  • Explicit sexual acts
  • Visible sexual touching

 

Alcohol & tobacco

Content devoted to the promotion of beer, hard alcohol, tobacco or tobacco-related products is not permitted

 

Anti or hateful speech

Any content promoting violence or advocating against a particular group is not permitted. This includes, but not limited to, groups identified by their:

  • Race or ethnic origin
  • National origin
  • Age
  • Sexual orientation/gender identity
  • Veteran status
  • Religion
  • Political Association
  • Disability

 

Deceptive, offensive or inappropriate Content

Content that is deceptive, misleading, defamatory, obscene, distasteful, harassing is not permitted in any way. This includes but is not limited to:

  • Any content that falsely informs the users they have won or otherwise are entitled to receive goods or monetary amounts;
  • Any content informing the users that the device is infected with viruses;
  • Any health content that displays feet and/or toes with fungus, feet with peeling or dry skin, and fingers and/or toes with cream or lotion on them.

 

Drugs

Any content promoting drugs and drug paraphernalia is not permitted. This includes drug accessories, illegal drugs, and herbal drugs such as salvia and magic mushrooms.

 

Gambling

Any content devoted to the promotion of gambling, wagering or betting of any kind is not permitted. (this only applies to the US and other countries in which such content is illegal).

 

Prostitution

Any content promoting prostitution is not permitted.

 

Content promoting weapons

Any content promoting weapons such as firearms, explosives, ammunition, balisongs, butterfly knives, and brass knuckles is not permitted.

 

For Publishers:

  • Glispa Connect (formerly known as Avocarrot) does not allow publishers to include/post on their media any of the prohibited content falling under the categories below:
  • Drugs and drug paraphernalia – IAB26-1 (Illegal Content)
  • File sharing apps – IAB26-4 (Copyright Infringement)
  • Weapons and weapons accessories – IAB26-1 (Illegal Content)
  • Adult sexual content – IAB25-3 (Pornography)
  • Content infringing copyrighted materials – IAB26-4 (Copyright Infringement)
  • Hate content, sensitive topics and violence – IAB25-5 (Hate Content), IAB25-2 (Extreme Graphic/Explicit Violence)
  • Software downloads, spyware and illegal hacking – IAB26-3 (Spyware/Malware)
  • Illegal products and services – IAB26-1 (Illegal Content)
  • Tobacco and tobacco accessories – IAB9-9 (Cigars)

 

Glispa Connect (formerly known as Avocarrot) does not allow Incentivized clicks and downloads / installs