Terms and conditions for publishers (Formerly “Master Service Agreement”)

These terms and conditions for publishers (“publisher terms”) are between AdsHeads Ltd, with its registered office at10, Georgiou Gennadiou, Agathangelos Court, 202/3041, Limassol, Cyprus(hereinafter referred to as “AdsHeads”) and the party submitting an application to participate as a publisher in advertiser programs set up on the network platform or to use the services of AdsHeads (referred to as “the publisher” or  “you”).

AdsHeads and the publisher shall collectively be referred to as “the parties” and singularly “the party”.

AdsHeads operates an affiliate network (hereinafter referred to as “the AdsHeads network”), which provides quality performance marketing and related services (hereinafter “the AdsHeads services”) for AdsHeads´s advertising partners (hereinafter referred to as “the advertisers”)

The AdsHeads network enables registered publishers to participate in partner programs (hereinafter referred to as “partner programs”) set up by advertisers, which gear towards supporting the advertiser's online – and mobile games and / or related services (hereinafter referred to as “advertiser's services”).

After successful registration to the AdsHeads network and acceptance to a partner program, the publisher may incorporate and / or embed advertiser ads (as defined below) into the publisher media (as defined below), which then may result into a payment for an action (as also defined below) according to these publisher terms and the respective campaign terms.


1. Definitions

The following definitions shall apply to publisher terms and the agreement:

Action – shall mean (but not exclusively) a click, install, lead, sale, view defined as a payment trigger as set out below;

Advertiser ads – shall mean advertiser's proprietary advertising materials, including, without limitation, banners, buttons, text links, clicks, co-registrations, pop –ups, pop – unders, e-mail newsletters, graphic files and similar online media promoting the advertiser's services;

Advertiser media – shall mean the advertiser´s service´s and / or any website in relation thereto (landing page), accessed by a user through the tracking URL on the advertiser ads;

Agreement – These publisher terms and the respective agreed upon campaign terms;

Business day – shall mean a day other than Saturday, Sunday or public holiday in Cyprus;

Campaign – shall mean the marketing campaign, consisting of the advertiser ad which is distributed by the publisher on publisher media according to the publisher terms and the campaign terms;

Campaign terms – shall mean any (additional) terms and conditions as agreed with the publisher and/ or any sub-publisher for a campaign, such as start and end dates of a campaign, target countries, pricing model, campaign budget (cap), pay-out, as well as (traffic) restrictions,  to be either imposed by AdsHeads as participation condition for a partner program and / or as individually agreed from time to time in a written and signed purchase order, between AdsHeads and the publisher;

AdsHeads services – shall mean the technical processing of the partner program(s), including tracking, creating statistics, administration of advertiser ads, the administration of publishers as well as billing and payments through AdsHeads and / or AdsHeads´s agents and / or third parties commissioned;

Intellectual property rights – shall mean copyrights, trademarks, patents, design rights, know-how, and any other similar protected rights in any country;

Pay-per-click – means compensation per unique click through from the advertiser ads on the publisher media to the advertiser media;

Pay-per-install – means a compensation for a successful installation as set out in the campaign terms by a user of advertiser services (e.g. a client software, a mobile app) of advertiser, directed through the advertiser ads on the publisher media;

Pay-per-lead – means a compensation for leads as set out in the campaign terms, directed through the advertiser ads on the publisher media;

Pay-per-sale – means a compensation for each time a sale is completed by a user within or with respect to advertiser's services, directed through the advertiser ads on the publisher media;

Pay-per-view – means compensation per unique view by users of the advertiser ads on the publisher media. AdsHeads reserves the right to ask for frequency capping, if requested by advertiser;

Pay-outs – shall mean the specific remuneration based on pay-per-click, pay-per-install, pay-per-lead, pay-per-sale or pay-per-view or any combination of those as set out in the respective campaign terms and / or the agreement;

Publisher media – shall mean the advertising environment of publisher, which is owned or controlled by publisher, including, but not limited to, websites, mobile sites, social media profiles, email newsletters, software, mobile applications for smartphones, tablets and other suitable devices;

Purchase Order (“P.O.”) - shall mean the order duly signed by the authorized representative of publisher as well as of AdsHeads with respect to a campaign;

User – shall mean a natural person.


2. Conclusion, scope of the agreement

2.1 - The publisher may apply to participate in the AdsHeads network by registering with the AdsHeads network on the underlying technical platform (hereinafter “AdsHeads platform”).  During registration, the publisher must create a unique password – protected account and provide the information requested by AdsHeads, fully and accurately (hereinafter “account”). AdsHeads may set up an account for the publisher with his consent in his stead.

2.2 - After registering for the AdsHeads network and accepting the present publisher terms, the publisher submits an offer to AdsHeads to conclude an agreement to participate in the AdsHeads network. The conclusion of an agreement will then be confirmed by AdsHeads through e-mail.

2.3 - The following publisher terms form part of each agreement, concluded as described above, or any other confirmed or otherwise concluded agreement between AdsHeads and the publisher, even – with respect to future agreements – if the publisher terms have not been expressly agreed upon again. The publisher terms and the respective campaign terms shall be collectively referred to as “the agreement”. If the P.O. and these terms contradict each other, the P.O, shall prevail.

2.4 - Any terms and conditions of publishers that are contrary to or deviate from or are supplemental to these publisher terms and/or the campaign terms shall not be recognized unless the express written consent of AdsHeads has been provided. The applicability of these publisher terms shall not be impaired by the fact that AdsHeads – with knowledge of any terms and conditions of a publisher, that are contrary or supplemental to or deviate from these publisher terms – renders the AdsHeads services without reservations.

2.5 - If the publisher operates a publisher network with its own (sub-) publishers, the publisher shall make sure that the terms of the agreement, including, but not limited to the campaign terms, are also effectively imposed on its sub-publishers and the publisher shall bear full responsibility to comply with the terms of the agreement, regardless of any fault of any sub-publisher.

2.6 - Upon request by AdsHeads, the publisher shall give evidence, through verifiable means, that publisher´s sub-publishers have accepted effectively the agreement including the campaign terms prior to allowing to display the advertiser ads on the sub-publisher´s publisher media. Publisher agrees to maintain at all times its publisher network according to the highest industry standards. All sub-publishers must be in good standing with the publisher. In case of doubt, any reference in the agreement to the publisher shall refer to the publisher as well as to a sub-publisher.

2.7 - In case of an alleged or actual breach of the agreement, including the campaign terms, to be determined upon AdsHeads´s sole discretion, by a sub-publisher of the publisher, the publisher shall immediately

  • a) disclose the identity and contact details of the respective sub-publisher to AdsHeads;
  • b) remove the sub-publisher from the partner program;
  • c) upon explicit request by AdsHeads: ban the sub-publisher from the participation in future partner programs with AdsHeads and / or the advertiser.

2.8 - The publisher shall be solely responsible for safeguarding and maintaining the confidentiality of its account. The publisher shall remain fully and solely responsible for any and all actions take under its account, whether authorized by advertiser or not. The publisher shall immediately inform AdsHeads of any unauthorized use of its account.

2.9 - The publisher shall be responsible for keeping its account information current, complete and accurate. AdsHeads shall especially not be responsible or liable for any information or notice not delivered to publisher as a result of inaccurate account information.

2.10 - The campaign terms stated within the AdsHeads network shall become automatically part of the publisher terms with the application of the publisher to a partner program and / or the integration of the advertiser ads on the publisher media. Any modification of the campaign terms shall be communicated individually to the publisher and shall become binding between the parties after a period of 48 h, if not previously explicitly objected by the publisher in writing.

2.11 - AdsHeads may modify the campaign terms, terminate or pause the partner program and/ or campaign, at any time with future effect, upon 48 hours prior notice, without having to give any specific reasons. The current campaign terms may be viewed on the AdsHeads platform. AdsHeads reserves the right to modify the campaign terms, terminate or pause them within 24 hours if extraordinary circumstances occur.

2.12 - Once the campaign terms have been accepted by the publisher, the publisher may display the advertiser ads on the publisher media.


3. AdsHeads services

3.1 - AdsHeads shall provide the publisher through the AdsHeads platform or through any other suitable means with the relevant advertiser ads of the partner program the publisher has been accepted to.

3.2 - AdsHeads grants the publisher a non – exclusive, worldwide, royalty-free license to use, perform, reproduce, display, transmit, modify, copy and distribute the advertiser ads on the publisher media in accordance with the agreement.

3.3 - AdsHeads shall not be obliged to render the AdsHeads services to the publisher to a certain extent and no term in the agreement shall be understood in the sense that AdsHeads must do so.

3.4 - The AdsHeads platform shall be rendered under the reservation of availability. As an availability of 100 % is technically not possible, AdsHeads will use its best endeavors to keep the AdsHeads platform constantly available. However, AdsHeads reserves the right, at its own discretion, to modify, update, maintain or suspend the AdsHeads network, the AdsHeads platform and the AdsHeads´s tracking tools (“technical measures”). In such an event, AdsHeads shall notice advertiser, as far as plannable, with a period of 48 h  in advance of such technical measures, if such technical measures have an substantial impact on the AdsHeads services rendered to publisher. The publisher acknowledges, that accessing and usage of the AdsHeads network may be impossible or limited for the duration of the technical measures.


4. Obligations of the publisher, advertiser ads

 

The advertiser ads and implemented tracking pixels or other appropriate tracking means serve to identify the publisher as a member of the partner program and will establish a link from the publisher media to the advertiser media. The publisher shall therefore not alter, modify or otherwise change any advertiser ads provided by AdsHeads, in any manner whatsoever, without AdsHeads´s prior written consent.


5. Validation of actions

5.1 - Unless otherwise agreed in the campaign terms, AdsHeads´s tracking technology, preliminary results of which may be accessed by publisher through the AdsHeads platform, shall be the sole and conclusive technical system to track applicable actions. The publisher hereby accepts and acknowledges that AdsHeads´s tracking technology shall be the sole and conclusive basis for any commissions paid to publisher under the agreement.

5.2 - A validated action shall solely be constituted by the following premises, all of which have to be fulfilled cumulatively

  • a) the action has been directly performed by a user;
  • b) the action has been tracked by AdsHeads´s tracking tool as set out in sect. 5.1;
  • c) the action is not non – valid within the meaning of section 5.4.

5.3 - AdsHeads reserves the right to not-confirm an action as being valid, if the action

  • a) has not been approved by the advertiser;
  • b) is not a valid action according to the campaign terms (e.g. lead flow, geo - restrictions) .

5.4 - An action shall be considered especially, but not exclusively, non – valid and therefore not being subject to any commission, if it

  • a) is caused through any form of misuse, including, but not limited to, by procuring actions by unfair methods and / or unacceptable means, that violate applicable laws, the publisher terms and / or the campaign terms;
  • b) is not caused through a user, but through a robot, spider, computer script,  such as spyware, stealware, through cookie – stuffing or any other automated, artificial or  fraudulent method to appear like an individual person;
  • c)  in case of  pay-per-sale, if such sale is fraudulent, cancelled, charged back or otherwise nullified;
  • d) is not compliant to the specific campaign terms;
  • e) is later determined by AdsHeads, in its sole discretion, to be fraudulent, incomplete, unqualified, abusive or duplicate (e.g. a software or mobile application has previously been installed by a user on an appropriate device).

6. Payments

6.1 - AdsHeads shall pay to the publisher a performance related remuneration (hereinafter referred to as “commission”) for each validated action as set out in sec. 5.2, initiated on the publisher media, based on the pay-outs as described in further detail in the relevant campaign terms.

6.2 - AdsHeads will not be charged by publisher for any additional ads above any level guaranteed or capped in the campaign terms.

6.3 - Publisher will receive credit notes from AdsHeads on a monthly basis. Credit notes are based on preliminary monthly reports of validated actions (sec. 5), which will be issued latest by the 15 th day of the calendar month for the previous month of performance. Credit notes will be paid by AdsHeads within thirty (30) days from the last day of the month of performance, unless different payment terms are arranged for the Publisher in the PO and agreed by Publisher and AdsHeads. All credit notes will include

  • a) the campaign name and period of participation;
  • b) the number of (valid) Actions delivered by the Publisher in the respective period;
  • c) the corresponding Advertiser Services;
  • d) the Pay-Outs and the target countries of the campaign.

6.4 - Commissions to the publisher may be effected without a final review by AdsHeads as to whether the commission is based on validated actions. If actions cannot be validated as set out in sec. 5.2 following a review by AdsHeads, AdsHeads shall be entitled to re-debit the publisher within a period of 12 weeks following a disbursement and / or demand a repayment and / or offset any amount of the disbursed amount paid for non – valid actions with any amounts then due to the publisher.

6.5 - In addition to any other rights and remedies available to AdsHeads, AdsHeads reserves the right to withhold or freeze any unpaid commissions or re-debit, demand repayment and / or set off any disbursed commissions – partially or in total - with any commissions then due to publisher, if AdsHeads finds sufficient evidence, that actions were non – valid as set out in sect. 5.4 a) and d).

6.6 - AdsHeads reserves the following rights with regards to payments:

  • a) to pay commissions to the publisher from the advertiser´s balances for the respective campaign. AdsHeads may request from advertisers sufficient amounts in advance for the respective campaigns and / or check sufficient solvency of advertisers. In case the amounts provided by an advertiser for a campaign are not sufficient to cover all publisher commissions then due, AdsHeads may pay the publishers for the respective campaign on a pro rata basis. If legal disputes with advertisers arise for specific campaigns resulting in a non-payment from advertiser to AdsHeads, AdsHeads may hold back the amount for these specific campaigns until that dispute is settled.  Publisher shall have the right to invoice AdsHeads for all other campaigns which are not in dispute.
  • b) If advertiser does not pay the accrued amounts for the relevant campaign following a formal notice of default by AdsHeads, AdsHeads reserves the right to inform the publishers concerned about the identity of the advertiser and ask the publisher to directly assert their claim against the advertiser in question.
  • c) AdsHeads shall assign the corresponding claim against the advertiser to the publisher, if requested by the publisher. The publisher shall not be obliged to assert a claim against the advertiser insofar as the assertion has no prospects of success by objective and comprehensible criteria.

6.7 - To reduce administrative costs, the Parties agree that AdsHeads shall not be required to make any payment to the Publisher until such time that the commission owed to the Publisher equals or exceeds USD 500,00 (five hundred US-Dollars).

6.8 - Unless otherwise agreed in the respective I.O., all payments to AdsHeads shall be made in Euro or dollar USA.


7. Warranties, Indemnification

7.1 - The publisher represents and warrants that,

  • a) it has the full power and authority to enter into and perform its obligations under the agreement during its duration;
  • b) the publisher media currently complies and will comply with all applicable laws, including, but not limited to, any applicable provisions for consumer protection, data protection and competition law;
  • c) no publisher media infringes intellectual property rights of third parties and/or AdsHeads and/or the advertiser, nor will publisher make AdsHeads and / or advertiser, directly or indirectly, to infringe such rights by any means;
  • d) it will not manipulate any browser functionalities, which prevents users from perform standard browser functions;
  • e) the publisher media does not contain any misinterpretations or any content that is defamatory, contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexual suggestive, promotes or supports illegal gambling or sweepstakes or contests or contains any “worm”, “virus”, “Trojan” or other code which could impair or injure any hardware, software, person or entity;
  • f) it will not send any e-mails to e-mail addresses not previously approved by AdsHeads.

7.2 - The publisher shall indemnify and hold harmless, at first request, AdsHeads from any and against any and all liability, losses, damages or expenses (including, without limitation, reasonable attorney's fees, costs and expenses) arising out of or related to any claim of any third party related to the publisher´s breach of warranties set out in this sec. 7.


8. Limitation of Liability

8.1 - AdsHeads shall not be liable to for the content on publisher media, for damage or other disturbances caused by defects and / or interoperability of advertiser ads of advertisers and / or for damages resulting from the insufficient availability or imperfect functioning of the internet and / or app stores.

8.2 - Apart from the limitations set out in sect. 8.1, in all cases of contractual and non - contractual liability AdsHeads shall only pay compensation for damages in accordance with the principles set forth below:

  • a) to the full amount, only in cases of willful acts as well as in case of absence of an agreed property, that AdsHeads has guaranteed;
  • b) in case of gross negligence, limited however of the amount of foreseeable damages, which should have been avoided through adherence to the obligation violated;
  • c) in all other cases: only for the breach of an essential contractual duty which is of special importance for achieving the purpose of the agreement and on which the parties can normally rely on (cardinal obligation) to the extent of the typically foreseeable damages. In this case, the liability for indirect and non – foreseeable damages, loss of profits, loss of savings and financial damages due to claims of third parties shall be excluded. The liability shall be limited per case to EUR 25.000, in total to the amount payable to publisher according to the agreement. Essential contractual duties are those duties, where failure to comply endangers the purpose of the agreement, e.g. significant late compliance, not just insignificant failure in cooperation and communication or not insignificant duties which are essential to the success of the contractual purpose;
  • d) furthermore, if AdsHeads is insured against the damages that have occurred, but restricted to the amount of insurance coverage and subject to the condition precedent of full insurance payment.

8.3 - The exception to contributory negligence remains open for AdsHeads.

8.4 - Insofar the liability of AdsHeads is restricted or excluded according to the provisions set forth above, this shall also apply to the personal liability to AdsHeads´s employees, personnel, staff and other agents as well as authorized representatives.

8.5 - For all damage claims of the publisher a limitation period of one year applies.


9. Confidentiality

9.1 - The parties undertake to treat confidentially also beyond the end of the agreement any and all information which is protected by law or contains business or trade secrets or which is designated as being confidential, that is disclosed or provided to them by the other contracting party respectively within the context of the contractual negotiations or performance (“confidential information”).

9.2 - The parties shall disclose any confidential information to their employees or any third parties on a strict need to know basis only.

9.3 - Notwithstanding the foregoing, confidential information shall not include information of which it is proven by the receiving party that:

  • (a) it was already known to the receiving party at or prior to the time of disclosure by the disclosing party;
  • (b) it is or becomes publicly known through no act of the receiving party;
  • (c) it is received without restrictions from a third party without breach of any obligation of non-disclosure;
  • (d) it is independently developed by the receiving party;
  • (e) the receiving party is under an obligation to disclose pursuant to the order of a court of law or public authority.

10. Term and termination

10.1 - The publisher terms shall be concluded for an unlimited period.

10.2 - Either party may terminate the agreement for convenience purposes 48 hours prior written notice to the other party. The right to termination for cause shall remain unaffected.

10.3 - Upon termination, the publisher shall remove any and all advertiser ads from the publisher media within 24 hours.

10.4 - After termination, publisher will be removed from AdsHeads network.


11. Amendments, Modifications

11.1 - AdsHeads reserves the right to amend or modify the publisher terms. If AdsHeads intends to amend or modify essential contractual duties as set out in sect. 8.2, AdsHeads shall inform the publisher of the intended amendments or modifications. If publisher does not object in line with formal requirements, and in good time, the amended or modified publisher terms shall become effective two (2) calendar weeks following the receipt of notification. The publisher´s objection shall only be deemed in line with the formal r/equirements, and in good time, if the objections is lodged in writing, and is received within the aforementioned period following receipt of notification. AdsHeads shall inform the publisher of his right to object, the formal requirements and period and the legal consequences of failing to object.


12. General

12.1 - Nothing in the agreement is intended to, or shall be deemed to establish a partnership or joint venture between AdsHeads, the publisher or a publisher. The agreement shall not constitute either party to be the agent of the other party for any purpose. Neither party shall have the authority to act as an agent for, or to bind, the other party in any way. The publisher expressly agrees that any obligations set out in the respective partner program of advertiser shall in no way be construed as obligations to AdsHeads.

12.2 - The publisher shall not, partially or entirely, at any time assign or transfer any rights and / or obligations under the agreement to any third party without AdsHeads´s prior written consent. AdsHeads may at any time, assign or transfer any rights and / or obligation under the agreement to any third party.

12.3 - Should any individual provision of the publisher terms be regarded as being invalid, partially or entirely, this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed to be replaced by a provision that is legally effective and comes closest, in the usual understanding, the economic intend and purpose of the invalid provision. The same shall apply to any unintentional omission to the publisher terms.

12.4 - The Parties submit to the exclusive jurisdiction of the courts of Limassol. The right of either party to seek injunctive relief at the competent court of jurisdiction is not affected.

12.5 - The publisher terms and / or the P.O. and/ or the agreement and their interpretation shall be governed by the laws of Cyprus with the exception of the UN Convention on Contracts for the International Sale of Goods dated 11.4.1980.

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