Tyrads Network ltd., Master Terms and Conditions for Advertising Sales
The following Master Terms and Conditions for Advertising Sales govern the placement and delivery of advertising by Tyrads Network ltd., (“Tyrads”) for you (“Customer”) and, together with any related Insertion Order (each, an “IO”), which are incorporated herein by reference, and regulated by the Data Protection Addendum (as defined below) constitute a written and binding agreement between Tyrads and Customer (the “Agreement”). In the event of a conflict between an IO and these terms and conditions, the IO shall take precedence.
- Representations. Customer represents and warrants that: (1) it is the owner of or is licensed to use the entire contents and subject matter contained in the text, links, creative, website, mobile application and other material provided by Customer to Tyrads hereunder (collectively, the “Ad”); (2) the Ad is free of any “worm,” “virus” or other device that could impair or injure any person or entity; (3) the Ad and any products or services offered therein do not violate any applicable laws or regulations, including, without limitation, those laws and regulations governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, trade disparagement, or obscenity (including child pornography); (4) the Ad does not contain any misrepresentation or content that is defamatory or violates any rights of privacy or publicity; (5) the Ad does not and will not infringe any copyright, trademark, patent, trade secret or other proprietary right; (6) Customer shall not, without Tyrads’s prior written consent, share, transfer, or assign its Tyrads account with or to any third party, regardless of its relation to or common ownership with Customer. If the Ad is for display and distribution in any foreign country, Customer further represents and warrants that the Ad and any products or services offered in the Ad will comply with all applicable laws and regulations of such foreign country.
- Terms of Payment.
- Actions. For purposes of this Agreement, “Action” means an act or event by a third party upon which payment hereunder is based or determined, such CPA (cost per action), CPI (cost per install), CPL (cost per lead), CPC (cost per click) or CPM (cost per thousand), as set forth in the IO.
- Payment. Customer shall pay to Tyrads all charges incurred by Actions in accordance with the payment basis (e.g., CPA or CPI) set forth in the applicable IO. Tyrads will invoice Customer monthly, in arrears following the completion of each calendar month, for all Actions incurred during the month. Payment in full shall be due from Customer to Tyrads within the specified date on the IO/Proposal. All amounts due hereunder shall be paid in United States currency unless otherwise set forth in an IO, in which event, such amounts shall be converted to United States currency based on the average exchange rate (as published on oanda.com) for the calendar month covered by the invoice. Customer shall pay to Tyrads interest on any past due payments at the rate of 1.5% per month, or if less, the highest rate permitted under applicable law, and all costs of collection, including reasonable attorney’s fees and expenses.
- Reporting. On a real time basis or no less than weekly, Customer shall provide Tyrads with all statistics relating to completed Actions. Tyrads will invoice Customer based on the higher of the Actions tracked by Customer or the Actions tracked by Tyrads for the calendar period, and Customer agrees to pay all amounts as invoiced.
- Disputes. The amounts due under any invoice, and all Actions and other data upon which such amounts are based, shall be final and binding on Customer for all purposes unless Customer objects in writing to the amounts, Actions or other data (collectively, the “Payment Information”) and provides Substantiating Data within five (5) days of receipt of the disputed invoice in question. For purposes of this Agreement, “Substantiating Data” shall mean and include the following, for each disputed Action: (i) affiliate identifier; (ii) consumer identifiers, including user IP address, MAC address or mobile device ID, (iii) for Ad campaigns wherein specific lead qualifications are set forth in the IO, full lead details including all fields that were completed and provided to the Customer in connection with the disputed Action, (iv) information on any patters observed or documented by Customer, and (v) all reasons, stated in writing, for the suspected fraud or dispute. To be clear, merely noting that the Action was deemed fraudulent by a fraud-tracking application (e.g., ForensIQ or 24 Metrics) does not fulfill the requirement for Substantiating Data unless mutually agreed upon prior to launch. If specific lead qualifications are not set forth in the IO, Customer shall not object to any based on the validity of an Action. Tyrads may use the foregoing data to notify its affiliates and publishers of fraudulent users and to generally increase the quality of leads and Actions. If Customer fails to object in writing to an Action within the timeframe set forth in this Section 2(D), or if Customer fails to provide all the requisite Substantiating Data, Customer permanently waives and releases any right to contest or otherwise challenge the Action and must timely pay Tyrads for it at the rate agreed upon in the IO.
- Taxes. Customer shall also pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes on Tyrads’s income.
- Delivery of Ads. Customer will, at its sole cost and expense, create and deliver all content required for any Ad to Tyrads. If such content does not conform to Tyrads’s technical specifications or does not arrive timely enough to deliver such Ad on the agreed display dates, then Tyrads, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming content is corrected, or (ii) the late-arriving content is received. Tyrads may, in its sole discretion, reject or remove any Ad, for any reason, in which event Tyrads will refund any amounts paid in advance for such Ad or a prorated portion of such fees if such Ad is removed after a period of display. Along with the delivery of the content for any Ad to Tyrads, Customer shall also deliver to Tyrads instructions for any suppression files to be accessed and downloaded in connection with the Ad. Customer shall be solely responsible for complying with all applicable laws and regulations (including the CAN Spam Act, as amended) regarding suppression files for Customer’s Ads, including maintaining and timely updating its suppression files and providing Tyrads with access to the suppression files and updates for use in connection with the Ad.
- Publisher Information. If, during an active campaign being run by Tyrads for Customer hereunder, Customer expresses a legitimate desire to access to the names and contact information of one of Tyrads’s Publishers (collectively, the “Publisher Information”), such as to investigate fraud, Customer shall notify Tyrads in writing of its request for access to the Publisher Information and the reasons therefor (which notice must be given while the campaign in still active and not after the completion of the campaign). Assuming a timely notice is given by Customer as provided above and Tyrads consents to such access (which Tyrads may grant or withhold in its sole discretion), Tyrads will provide Customer with the Publisher Information. In order to protect the proprietary nature of the Publisher Information if access is granted, Customer agrees as follows: (i) that the Publisher Information constitutes Confidential Information of Tyrads and shall be subject to the confidentiality and other obligations under the IAB Terms, (ii) not to, directly or indirectly, purchase or seek to purchase advertising services from any Publisher in violation of Section 11 below, and (iii) not seek or set up a direct linking or other arrangement whereby Tyrads’s services or parts thereof is circumvented and Tyrads is unable to fully track and monitor the conversions and other events that are the basis for determining payments owing to Tyrads.
- Audit Right. Customer shall be obligated to retain books and records pertaining to the Actions and other data necessary to compute the charges hereunder for at least one year after the conclusion of each Ad. Tyrads shall have the right to audit such books and records. If the audit reveals an underpayment, Customer shall promptly pay to Tyrads such underpayment along with past due interest charges from the time originally due until paid. If the amount of the underpayment is more than 5%, Customer shall also be obligated to pay to Tyrads its reasonable audit costs.
- Quality Control Rights. Tyrads reserves the right to refuse service to Customer, in its sole discretion, with or without cause. Tyrads reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Ad or content thereof for any reason at any time, with or without notice to the Customer and regardless of whether such Ad was previously accepted or published. Tyrads does not accept Ads from Customers that produce or provide adult content. Ads and content thereof (along with any linked URLs) shall not include nudity, partial nudity or adult language. Tyrads does not accept Customers that engage in, promote or facilitate illegal activities. Tyrads may in its sole discretion refuse or restrict use of any Ad that it deems inappropriate or requires special handling. This Agreement, along with any applicable IOs, is terminable by Tyrads immediately if Customer fails to disclose, conceals or misrepresents itself in any way.
- License. For the term of this Agreement, Customer hereby grants to Tyrads and Tyrads’s affiliates and publishers a non-exclusive, royalty-free, worldwide license to (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the IO, and (b) use all associated Customer intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Customer intellectual property shall remain with Customer or its third-party licensors. In addition, Customer agrees that Tyrads may, during the term of this Agreement and thereafter, include Customer’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Tyrads’s customer list and in its marketing materials and sales presentations.
- DISCLAIMER OF WARRANTIES. TYRADS PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PUBLISHERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PUBLISHERS, AS PERFORMED HEREUNDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. WITHOUT LIMITING THE FOREGOING, TYRADS DOES NOT WARRANT OR GUARANTEE THE SUCCESS OF ANY AD, THE NUMBER OR QUALITY OF LEADS GENERATED FROM THE AD, OR THE AMOUNT OF SALES OR REVENUE TO BE DERIVED BY CUSTOMER FROM THE ADS. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, TYRADS’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. TYRADS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- LIMITATIONS OF LIABILITY. EXCEPT FOR INDEMNTIY OBLIGATIONS UNDER SECTON 12, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR INDEMNTIY OBLIGATIONS UNDER SECTON 12 AND AMOUNTS OWED BY CUSTOMER UNDER SECTION 2, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTIES FOR AN AMOUNT OF DAMAGES GREATER THAN THE TOTAL AMOUNTS PAID BY CUSTOMER HEREUNDER FOR THE SIXMONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. IN LIEU OF PAYING DAMAGES, TYRADS SHALL BE GIVEN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED TO PROVIDE CUSTOMER WITH A SUBSTITUTE AD PLACEMENT.
- Term and Termination. This Agreement shall have a term commencing upon execution of this Agreement and continuing thereafter until (1) all IOs have expired or terminated pursuant to their respective terms, and (2) either party gives the other party ten (10) days prior written notice of its election to terminate this Agreement (which may be given without cause or reason).
In addition to any other remedies that may be available to it under this Agreement or pursuant to applicable laws, either party may immediately terminate this Agreement and all outstanding IOs in the event of any breach by the other party of the representations and warranties contained herein or nonperformance of any of its obligations hereunder and the failure of the other party to cure such breach within 10 days after written notice from the non-breaching party unless continuing to perform under the Agreement during the cure period would require the non-breaching party to violate any applicable law, regulation, or third-party right. Either party may also terminate a particular outstanding IO, for any or no reason, on ten (10) days prior written notice. Sections 1, 2, 5, 8, 9, 11 through 16, and any accrued but unpaid payment obligations shall survive any termination.
- Non-Circumvent. Customer recognizes that Tyrads has proprietary relationships with its publishers, networks, and other advertising affiliates. For the term of this Agreement and a period of one (1) year thereafter, Customer agrees not to knowingly circumvent Tyrads’s relationship with such third parties, or otherwise obtain, directly or indirectly, services similar to those performed by Tyrads or such third parties from any third party that is known, or should reasonably be known, by Customer to have such a relationship with Tyrads. For the term of this Agreement and a period of one (1) year thereafter, Customer shall not solicit the publishers, networks, or other advertising affiliates of Tyrads, nor shall Customer use or attempt to use reverse engineering or tracing of advertising traffic as a means to solicit and/or identify Tyrads’s publishers, networks, or other advertising affiliates. Failure to comply with this section shall constitute a material breach of this Agreement.
- Indemnity. Customer agrees to indemnify, defend, and hold harmless Tyrads for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) incurred by Tyrads as a result of the acts or omissions or breach of this Agreement by Customer. Tyrads agrees to indemnify, defend, and hold harmless Customer for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) incurred by Customer as a result of the acts or omissions or breach of this Agreement by Tyrads. In the event either of these indemnities include claims against the employees, agents or affiliates of Tyrads or Customer, those employees, agents, or affiliates shall be indemnified just as their principal would be.
- Confidential Information. “Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. The identity of Tyrads’s affiliates and publishers (collectively, the “Publishers”) are Confidential Information of Tyrads, including those Publishers recruited for the Customer through Tyrads’s outreach efforts. Neither Customer nor Tyrads shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party’s Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Customer’s Confidential Information shall remain the property of Customer, and Tyrads’s Confidential Information shall remain the property of Tyrads. To protect the proprietary nature of Tyrads’s Publishers, Customer hereby agrees to work exclusively with Tyrads for all advertising placed, directly or indirectly, through Publishers disclosed by Tyrads to Customer, and to otherwise abide by the Non-Circumvention provisions of Section 11 above.
- Data Protection Addendum; International Compliance. Data Protection Addendum; International Compliance. Customer has read and agrees to comply with the Data Protection Agreement, available at http://www.Tyrads.com/s/Tyrads_Advertiser_DPA.pdf , which is incorporated herein by reference. Before approving any partner to run an Ad through Tyrads, Customer shall present and secure the written agreement to the Data Protection Addendum from said partner. Customer agrees that, where applicable, its marketing and data collection practices shall comply at all times with the United Kingdom Data Protection Act of 1998 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679, as amended and adopted by the member states of the EU, and all related directives, acts, or regulations. Customer represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry-standard or better security protocols. If Customer is either located outside the United States or offering or distributing (or potentially distributing) an Ad outside the United States, Customer represents and warrants that (1) Customer is familiar with the particular laws, regulations and industry customs in those countries in which Customer is located and/or distributing the Ad, (2) Customer has previous experience distributing Ads in such countries, and (3) Customer will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Customer in such countries. To be clear, Customer is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Customer is located. Customer’s obligations and liabilities under this Paragraph and the Data Protection Addendum shall extend to the conduct of all partner.
- Governing Law; Mandatory Arbitration
- Governing Law. The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Colorado without reference to its conflict of laws principles. Subject to and without waiving the arbitration agreement below, for purposes for any legal action which is brought in a court of law (such as for remedies in aid of arbitration), Customer and Tyrads each: (a) hereby irrevocably submit to the exclusive jurisdiction in the state courts located in the City and County of Denver, Colorado, or in the United States District Court for the District of Colorado for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waive, and agree not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
- Arbitration. At the option of either Party, any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, said party will pay all the costs and expenses (including without limitation, court costs, arbitrators’ fees and expenses and reasonable attorneys’ fees) incurred by the other party in defending such action. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement. If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding.
- Miscellaneous. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. This Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures.
- No Other Agreements. This Agreement and any related IO’s sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change this Agreement. In the event that Tyrads is required to agree to additional terms when using Customer’s website, mobile application, or tracking platform for purposes of performing the Services, calculating payment, or obtaining creative at Customer’s direction, the parties hereby acknowledge and agree that such agreement is inconsequential and in no way binding and that it is a result of a technical requirement that cannot be altered; therefore, any such terms are to be disregarded and deemed non-effective and shall be explicitly superseded by this Agreement.