Acquisition: It is defined as a user going through the signup process and reaching the confirmation page and/or accesses the application on which the agency pixel is displayed. Partner: The company that gives the order to the Mobile Network to distribute marketing campaigns for their products. Mobile Network: Bidderplace GmbH (short: BidderPlace or MOBILE NETWORK)
A selected independent third party ad server may measure the number of individual ad units, impressions, clicks or acquisition delivered by Mobile Network to Partner each month during an advertising campaign.
Partner shall provide Mobile Network access to ad server statistics showing acquisitions obtained. All data generated or supplied under or in connection with this mobile media Insertion Order is confidential and proprietary to Partner and shall not be disclosed to any third party or used or exploited in any way the Mobile Network except as expressly permitted hereunder.
Upon providing creative material to the Mobile Network, Partner hereby grants the Mobile Network a non-exclusive, non-transferable license to use the provided creative material and all elements thereof in the form provided by Partner solely for the purposes contemplated under this Insertion Order. Mobile Network reserves the right to reject Creative if deemed inappropriate and objectionable.
Mobile Network will send invoices to Partner showing acquisitions delivery on a monthly basis based on the Partner’s backend numbers. If Partner is using a cookie-based counting method, the minimum cookie lifetime is 30 days. Partner will wire payment within 15 days after the last day of the billable month. All payouts and amounts agreed upon are net of any and all taxes, withholdings, etc. In the event Partner is more than 45 days past due in paying amounts owed, Partner is liable for attorney’s fees and other costs of collection. For each full week beyond the 45th day after the date of invoice reception, Partner is due to pay 2.5% interest of the full amount. Once payment is received from Partner or after 15 days, whichever comes first, all Mobile Network and User liability, current and future, for that corresponding activity including non-compliance will be cleared and nullified. If Partner does not confirm the billable amount by the 5th of the proceeding month, the numbers tracked in the Mobile Network’s system will be deemed valid and serve as the minimum billable amount until confirmation is received. Additionally, any and all clicks/leads/installs not rejected by the 5th of the proceeding month with specific proof and evidence of reason of invalidity, will be considered valid and billable.
Partner agrees to notify the Mobile Network whenever it experiences downtime that affects the performance of the customer acquisition campaign. In the event that the Partner’s site goes down during a campaign, Partner will compensate Mobile Network by the following process: Identify when the downtime occurred. Check server log of Partner (average acquisitions generated per hour 7 days before error started). Lost acquisitions would be determined by the average number of sign ups generated per hour of normal service minus the average number of sign ups generated during the downtime period multiplied by the number of hours of downtime. Partner will pay Mobile Network the average of the lost acquisition estimate determined by Partner and Mobile Network.
Either party may terminate this agreement for any reason with 2 business days prior written notice. In case of an emergency, Partner may terminate this agreement within 1 business day prior written notice but Mobile Network reserves the right to redirect all Partner traffic to competing Partners.
Partner agrees not to disclose or otherwise reveal to any third Party the identities, addresses, telephone numbers, facsimile numbers, Email addresses, telex numbers, bank codes, account numbers, pricing, financial details, financial reference, or any other entities introduced by Mobile Network to Partner without the specific written permission of Mobile Network.
Partner agrees at its own expense, to indemnify, defend and hold harmless Mobile Network, and its employees, representatives, agents and users, against any and all expenses and losses of any kind (including reasonable attorneys fees and costs) incurred by Mobile Networks in connections with any claims, administrative proceedings or criminal investigations of any kind arising out of publication of the advertisement and/or any defamation, breach of confidentiality, privacy violation, false or deceptive advertising or sales practices.
Partner represents and warrants that its Creative, advertisements, products and/or services do not and will not (1) violate any third party’s patent, copyright, trade secret or other intellectual property rights, (2) contain material that is defamatory, slanderous, libelous, or obscene, portray any person in a false light, constitute an invasion of any right to privacy or an infringement of any right to publicity, or otherwise violate any rights of any third party or (3) violate any applicable foreign, federal, state or local statutes, laws or regulations.
Mobile Network shall have the right to reference and refer to its work for, and relationship with, Partner for marketing and promotion purposes. No press releases or general public announcements shall be made without the mutual consent of both parties.
PARTNER ACKNOWLEDGES AND AGREES THAT (a) ALL INTELLECTUAL PROPERTY ASSOCIATED WITH THE SITES, SOFTWARE, CONTENT OR OTHER MATERIALS OR INFORMATION PROVIDED TO PARTNER IS OWNED BY MOBILE NETWORK OR ITS LICENSORS AND NO TRANSFER OR ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS OCCURS UNDER THIS AGREEMENT;(b) TO THE EXTENT PERMITTED BY LAW, DUE TO THEIR NATURE, THE SERVICES (INCLUDING SOFTWARE) ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITH NO WARRANTY;(c) PARTNER HAS NOT, AND IT IS NOT REASONABLE FOR PARTNER TO RELY ON MOBILE NETWORK’S SKILL AND JUDGEMENT IN RELATION TO THE SERVICES;(d) IT IS NOT POSSIBLE FOR MOBILE NETWORK TO GUARANTEE OR WARRANT THAT ANY SERVICE IS FIT FOR A PARTICULAR PURPOSE OR THAT ANY PARTICULAR OUTCOME OR INCOME WILL BE ACHIEVED AS A RESULT OF PARTNER ENTERING INTO THIS AGREEMENT AND NO SUCH GUARANTEES OR WARRANTIES HAVE BEEN GIVEN;(e) PARTNER USES THE SITES, THE SERVICES, SOFTWARE AND THIRD PARTY CONTENT AT ITS OWN RISK;(f) MOBILE NETWORK HAS MADE NO EXPRESS WARRANTIES TO PARTNER ABOUT THE SERVICES, SITES, SOFTWARE OR CONTENT OTHER THAN ANY SET OUT IN THIS AGREEMENT;(g) MOBILE NETWORK DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE SITES OR PROVIDED BY MOBILE NETWORK IS ACCURATE, COMPLETE OR CURRENT;(h) PARTNER’S USE OF THE SITES, SOFTWARE AND SERVICES MAY NOT BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERRORS;(i) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SITES OR SOFTWARE MAY NOT BE CORRECTED;(j) PARTNER IS SOLELY RESPONSIBLE FOR ANY LOSS (INCLUDING LOSS OF DATA), DAMAGE OR LIABILITY HOWSOEVER ARISING WHICH RESULTS FROM PARTNER’S USE OF THE SITES, SERVICES, SOFTWARE OR ANY CONTENT;(k) PARTNER MUST NOT INTRODUCE ANY VIRUS OR OTHER HARMFUL CODE INTO A SITE;(l) TO THE MAXIMUM EXTENT PERMITTED BY LAW, MOBILE NETWORK DISCLAIMS AND EXCLUDES ALL CONDITIONS, REPRESENTATIONS, WARRANTIES, RIGHTS OR REMEDIES, LIABILITIES AND OTHER TERMS IMPLIED BY STATUTE, CUSTOM OR COMMON LAW (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE).
13.1 TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MOBILE NETWORK BE LIABLE FOR:(a) ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS, DAMAGE OR EXPENSE OF ANY NATURE WHATSOEVER; OR (b) ANY LOST PROFITS, REVENUES, DATA, BUSINESS INTERRUPTION OR LOSS OF GOODWILL OR REPUTATION, HOWSOEVER ARISING AS A RESULT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF MOBILE NETWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 TO THE EXTENT PERMITTED BY LAW, IF NOTWITHSTANDING CLAUSE 13.1, MOBILE NETWORK IS LIABLE TO PARTNER (a) UNDER THIS AGREEMENT, THE TOTAL LIABILITY OF MOBILE NETWORK SHALL NOT EXCEED THE LESSER OF $1,000 OR THE AGGREGATE OF THE CHARGES PAID BY PARTNER TO MOBILE NETWORK IN THE THREE MONTHS PRECEDING ANY CAUSE OF ACTION ARISING; OR (b) UNDER A STATUTORY GUARANTEE, MOBILE NETWORK'S LIABILITY WILL BE LIMITED, AT MOBILE NETWORK'S OPTION TO EITHER (i) THE REPAIR OF THE GOODS; (ii) THE RE-PERFORMANCE OF THE SERVICE; OR (iii) THE PAYMENT OF THE COST OF REPAIRING OR REPLACING ANY GOODS OR SUPPLYING THE SERVICE AGAIN. PARTNER ACKNOWLEDGES AND AGREES THAT IT IS FAIR AND REASONABLE FOR MOBILE NETWORK TO RELY ON THE FOREGOING LIMITATIONS, AND THAT THIS IS REFLECTED IN THE COST OF THE GOODS AND SERVICES.
14.1. Partner agrees to defend and hold harmless Mobile Network, its agents, third party partners, officers, directors and employees, related bodies corporate, affiliates, Users and list providers (“those indemnified”) from and against all actions, proceedings, claims and demands; and pay those indemnified on demand for any loss, cost, liability or damage (including legal costs on a full indemnity basis) howsoever suffered or incurred, arising (directly or indirectly) out of, as a consequence of or in connection with (i) a third party claim arising from Partner’s activities under this Agreement including Partner’s use of the Sites, Software and Services; (ii) the publication, display or distribution of Partner’s Creatives; (iii) Partner’s willful, unlawful or negligent acts or omissions; (iv) Partner’s infringement of the intellectual property rights (including copyright and moral rights) of those indemnified or a third party.
14.2. MOBILE NETWORK agrees to indemnify Partner from and against all actions, proceedings, claims and demands and pay Partner on demand for any loss, cost, liability or damage (including legal costs on a full indemnity basis) howsoever suffered or incurred arising (directly or indirectly) out of, as a consequence of or in connection with its willful, unlawful or negligent acts or omissions.
Any disputes arising out of or in connection with the present contract or its validity will be resolved exclusively in the courts locate in Berlin, Germany and in accordance with the laws of Germany. Where the local courts (Amtsgerichte) have jurisdiction ratione materiae, the local court of Mitte (Amtsgericht Mitte) in Berlin, Germany, shall decide the dispute, unless a different German local court has exclusive jurisdiction ratione loci. The prevailing Party shall be entitled to an award of its reasonable costs and expenses, including attorney’s fees, in any action or proceeding arising out of this Agreement. The applicable substantive law is German law.