Revised & effective date: 22 May 2017
These WAARDEX Ad Exchange Terms and Conditions (the “T&Cs”) define the conditions under which WAARDEX OÜ (WAARDEX), a limited liability company, with its registered office located at Randla tn 13-201, Tallinn, 10315, Estonia, provides hosted ad serving solutions to publisher (the “Publisher”). The T&Cs constitute an agreement (the “Agreement”) between WAARDEX and Publisher. This Agreement governs advertising delivered through Publisher’s Web site(s) or platform(s) (the “Publisher’s Site(s)”).
WAARDEX and Publisher agree as follows:
- WAARDEX plans advertising campaigns and buys advertising media on behalf of its clients.
- Publisher sells certain advertising products and services that it is willing to make available in support of WAARDEX’s clients’ advertising campaigns.
- Publisher desires to sell and WAARDEX desires to purchase certain of Publisher’s products and services in accordance with the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:
“Advertising Material” means the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links created by an advertiser.
“Advertiser(s)” means one or more customers of WAARDEX, which create the Advertising Material, and authorizes WAARDEX Interactive as its agent to include it on the Publisher’s Site(s).
“WAARDEX HTML Insertion Code” means the code in which Publishers are permitted to use Advertising Material delivered to the Publisher’s Site(s).
“WAARDEX Network” means the advertising network owned and operated by WAARDEX.
“Impressions” means the number of times Advertising Material is served to a person visiting the Publisher’s Site(s).
“Publisher Earnings” and “WAARDEX Earnings”. “Publisher Earnings” means the total revenue WAARDEX generates by running advertising campaigns for Publisher using the Advertising Materials less “WAARDEX Earnings”. “WAARDEX Earnings” are calculated at the campaign level at the sole and absolute discretion of WAARDEX. WAARDEX evaluates each advertising campaign and makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, technology costs, and other factors relating to the campaign, the performance of Publisher’s site(s) and WAARDEX’s Network as a whole.
“Unique Click” means the number of times, as recorded by WAARDEX’s server, a person visiting Publisher’s Site(s), as identified by cookie or IP address, clicks on Advertising Material, provided however, that a click on Advertising Material by a particular visitor shall only be counted as a Unique Click once every 24-hour period.
Section 1. Services.
Publisher shall ensure the delivery of Advertising Material via self-serve platform of WAARDEX.
Section 2. Invoicing and Payment.
2.1. Payment. Within 45 days after the last day of each calendar month, WAARDEX will pay Publisher its Publisher Earnings for Advertising Material actually delivered by Publisher to each of Publisher’s Site(s) approved by WAARDEX during the applicable calendar month and for which WAARDEX has been paid by the Advertiser. Publisher acknowledges that WAARDEX bills its Advertisers, and pays its Publishers, based on actual delivery. Additionally there is a minimum threshold on publisher payments in the amount of $50 dollars and any publisher below this threshold will receive payment when the cumulative reaches the minimum.
2.2. Publisher acknowledges that WAARDEX operates as an Ad Exchange and is therefore reliant on payment by Advertisers to WAARDEX before WAARDEX will pay Publisher. WAARDEX will use reasonable endeavors to pay Publisher the relevant advertising revenue less the revenue share within 45 days of receipt of the relevant ad revenue from the Advertiser. WAARDEX does not guarantee that payment by Advertiser will be made. Accordingly, payment for the display of each Advertisement is strictly subject to and conditional upon the payment of fees for the same Advertisement (“Ad revenue”) by the relevant Advertiser. In the event that WAARDEX does not receive full payment of the Ad revenue, WAARDEX shall not be liable to make any corresponding payment to Publisher. Publisher acknowledges and agrees that WAARDEX has no liability to pay Publisher in the event that Publisher does not receive the relevant Ad revenue from the Advertiser.
2.3. Liability for Publisher’s Revenue. Publisher understands and agrees that WAARDEX acts solely as an agent for the Advertisers; and that WAARDEX shall only be liable to Publisher for Publisher’s Revenue based on payments from Advertisers that it has received without restrictions that constitute immediately-available funds to WAARDEX (hereinafter called “Cleared Funds”). WAARDEX agrees to make every reasonable effort to bill, collect and clear payment from the Advertisers on a timely basis. WAARDEX, reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein. WAARDEX shall not pay for clicks or impressions generated from WAARDEX house banners. Clicks or impressions from WAARDEX house banners will result in no revenue for Publisher.
2.4. Invoicing and Payments.
- If Publisher Submits an Invoice. Publisher shall invoice on a calendar monthly basis, in the month following delivery. Invoices shall be based on actual delivery amounts, not contracted numbers. All invoices received by WAARDEX will be considered final and correct after 45 days of receipt unless WAARDEX disputes the accuracy of an invoice by a written notice to Publisher, in case the dispute shall be resolved as provided herein.
- If Publisher Does Not Submit an Invoice WAARDEX makes its own final determination of the Publisher’s due balances on the first day of the calendar month after previous calendar month. This determination shall be calculated based on the amount of traffic as counted by the WAARDEX tracking system, multiplied by the fixed rate or revenue share percentage, as it is displayed in the publishers information within the WAARDEX system. Publisher shall notify WAARDEX in writing that it disputes the calculation within 75 days after the last calendar day of the month in question. All WAARDEX calculated payments after that period shall be deemed to be correct and final.
- If Publisher issues an invoice. If Publisher issues an invoice, and WAARDEX disputes all or a portion it, WAARDEX shall pay the part of the invoice that is undisputed. The disputed part of the invoice shall be negotiated between the parties until agreement is reached and WAARDEX shall then pay the agreed upon price of the disputed amount.
- If Publisher does not issue an invoice. If Publisher disputes all or part of a balance calculated by WAARDEX according to its tracking system, WAARDEX shall pay the undisputed part, and the disputed part shall be negotiated between the parties until agreement is reach, and WAARDEX shall then pay the agreed upon amount.
2.5. Taxes. WAARDEX assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the WAARDEX Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof. WAARDEX shall provide Publisher with appropriate tax information, including earnings on Form 1099. Publisher residing in the United States agree to provide their Social Security number or Federal Employee Identification Number to WAARDEX for tax reporting purposes. In no event will payments be made on accounts that have not provided proper tax identification information. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.
Section 3. Advertising Materials.
3.1. Linking and Trafficking Guidelines. Prior to displaying the first Advertising Materials, WAARDEX shall provide Publisher with linking instructions, URL, banner, and alternative text for the Advertising Material. WAARDEX may make changes to any such Advertising Material upon 48 hours notice, via e-mail, telephone or fax. Publisher shall process such changes so as to deliver the Advertising Material correctly, clearly, and at the times and frequencies specified by WAARDEX. In the event Publisher fails to run the Advertising Material properly, WAARDEX may require appropriate delivery of additional Advertising Material and/or a proportional or total reduction in amounts payable.
3.2. Delivery of Advertising Material. WAARDEX shall provide all Advertising Material to Publisher via servers at WAARDEX. WAARDEX shall provide Publisher with appropriate linking instructions to the WAARDEX servers. Publisher shall obtain the Advertising Materials from the WAARDEX services at the time of delivery the Advertising Materials for a specific advertisement. If Publisher is unable to obtain the Advertising Materials from the WAARDEX servers on a consistent basis, Publisher shall cease delivering Advertising Material and shall contact WAARDEX promptly, but in no event more than one business day after the problem first occurred. Publisher shall not resume the display of Advertising Materials until WAARDEX directs Publisher to do so. In the event of a persistent outage of the WAARDEX servers, WAARDEX may, at its option, provide Publisher with the Advertising Materials directly, and may direct Publisher to serve the Advertising Materials from its servers.
3.3. WAARDEX HTML Insertion Code. Publisher shall place the WAARDEX HTML Insertion Code on all appropriate pages within its Site(s). Publisher shall not alter, sell or disclose the WAARDEX HTML Insertion Code in any way without WAARDEX’s prior written consent. The WAARDEX HTML Insertion Code for Advertising Material may not be used on a web page other than one located at an approved Site and may not be distributed or submitted to any newsgroup, e-mail distribution list, chat room, guest books, or other location which would result in the execution of such code without a bona fide visit to an approved Web Site.
3.4. Modification of Advertising Material. Advertising Material must not be modified from original format without consent from WAARDEX. Publisher agrees to use the Advertising Material provided for displaying not more than one ad unit per page view. Advertising Material cannot be placed in email messages. Publisher can not alter, copy, modify, take, sell, reuse, or divulge any computer code for the Advertising Materials, except as is necessary to partake in the WAARDEX Network, provided, however, with the prior approval of WAARDEX, the Publisher may, in certain instances, modify the Advertising Material computer code for purposes of inserting certain pre-approved language above or below the Advertising Material. Requests for language approval should be sent to [email protected] If Publisher violates this provision, WAARDEX, may, at its option, either reduce or eliminate any and all payments due hereunder, and/or terminate this Agreement as provided herein.
3.5. Recording of Service Counts. WAARDEX shall have the sole responsibility for calculation of statistics, including Impressions and click-through numbers. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics shall be available to Publisher online at https://www.waardex.com. Publisher understands that WAARDEX’s online statistics may not be 100% accurate and that WAARDEX may make adjustments to Publisher’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. In the event that coding on Publisher’s Site(s) generates substantial number of erroneous impression due to a technical problem such as server malfunction, coding alteration or a mistake in entering code, Publisher agrees to respond to the e-mail generated by WAARDEX technical support within 48 hours. If Publisher does not respond to this alert, WAARDEX reserves the right to (a) withhold payment on all Impressions and clicks delivered after the 48-hour period has expired, or (b) not show any revenue-producing Advertising Material on the relevant Site(s).
3.6. Fraudulent Impressions & Click Spam. Any methods and or means direct or indirect, intentional, accidental, incidental, that artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Final counts of impressions or clicks and revenue earned, and amounts to be paid to publisher will be decided solely on the basis of reports generated by WAARDEX’s advertising systems/ad server(s) and the assessment of publisher data by the WAARDEX Policy Team. These prohibited methods include but are not limited to: framing an ad-banner’s click-through destination, auto-spawning of browsers, blind text links, running “spiders” against the Publisher’s own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by WAARDEX, acting reasonably, or based on industry practices) click-throughs and/or impressions. Advertising Material may not be placed on pages, which reload automatically. Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s clicks-throughs of any link other than WAARDEX’s Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, WAARDEX may terminate this Agreement effective upon delivery of notice and at its sole discretion withhold any payments due to publisher. Such determination and action is at the sole discretion of WAARDEX and is not in lieu of any other remedy available at law or equity. WAARDEX’s ad server(s) will be the official counter for determining the number of delivered Advertising Material, and amounts payable under this Agreement. Additionally WAARDEX may withhold amounts relating to advertiser chargebacks or credits from payment to publisher if WAARDEX and WAARDEX Policy Team in its sole reasonable discretion, believes the performance related to them is fraudulent or invalid in nature, or if WAARDEX was charged or credited back in their respect by any customer. Payment amounts displayed in WAARDEX reporting systems may be adjusted at any time and may not reflect final payment to publisher as per adjustments made hereunder.
Section 4. Eligible Site(s).
WAARDEX reserves the absolute right to refuse in its sole discretion to affiliate with any Publisher. The following are examples of sites that are not eligible for participation:
- sites which contain material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, roms, ”warez”, emulators, or cracks, etc.);
- sites with pornography, adult content, sexual or erotic material or sites that contain links to such content;
- sites with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm;
- sites promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.);
- sites that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam);
- sites promoting any type of illegal substance or activity (i.e., how to build a bomb, hacking, ”phreaking”, etc.);
- sites with illegal, false or deceptive investment advice and money-making opportunities;
- sites that provide incentives of any nature to require or encourage users to click on ad banners (i.e., charity, sweepstakes, etc.);
- sites that are under construction or incomplete;
- sites with extremely limited audiences or viewership;
- sites with any type of content reasonable public consensus deems to be improper or inappropriate;
- sites that contain any content violating Federal privacy laws, including the Children’s Online Privacy Protection Act.
At any time WAARDEX may investigate any Site for violation of this Agreement. WAARDEX regularly performs compliance audits. If WAARDEX determines that Publisher’s Site(s) includes any undesirable content, WAARDEX may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Advertising Material on such Site(s). In no event, will WAARDEX or its Advertisers be obligated to pay for Advertising Material delivered through Sites containing undesirable content after Publisher’s receipt of such notice from WAARDEX.
Section 5. Minimum Traffic.
WAARDEX reserves the right to terminate this Agreement immediately should, according to WAARDEX’s statistics, either (a) the number of Impressions delivered by Publisher total less than 100,000 unique users per month, or (b) the unique click-through rate on Advertising Material delivered to Publisher’s Site(s) equals 80% less than the average click-through rate of said Advertising Material for all web sites in the WAARDEX Network for any 7 consecutive calendar day period; or (c) the amount of United States-based traffic to Publisher’s Web Site (determined by the IP address of visitors to Publisher’s Web Site) equals less than 50% of the total traffic to such site (as determined by the total number of Impressions delivered by Publisher) (the ”Minimum Requirements”); provided, however, should WAARDEX exercise its rights pursuant to this Section 5, Publisher shall be entitled to receive payments under Section 3 herein generated up to and including the date of termination, as long as payments equal at least $50 at the date of termination, and amounts under $50 shall be forfeited. When calculating the amount due to Publisher under the previous sentence, any payments for a particular month of less than $1.00 will be forfeited. Notwithstanding the foregoing, prior to making any payment to Publisher, WAARDEX reserves the right to (i) demand make-goods for any short-fall of the Minimum Requirements, which make-goods shall equal the number of Impressions necessary to achieve United States-based traffic of at least 50% relative to the total traffic to Publisher’s Web Site; OR (ii) reduce payment to Publisher accordingly.
Section 6. Representations and Warranties.
Publisher represents and warrants to WAARDEX that:
- All content, products, and services on the Site(s) are legal to distribute, that it owns or has the legal right to use, and will not infringe, any and all copyrights, trademarks, patents or other proprietary rights;
- The Site(s) do not, and will not during the term of this Agreement, contain any material described in Section 4 of this Agreement;
- The Site(s) are free of any ”worm”, ”virus” or other device that could impair or injure any person or entity; It is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and it will conduct its business in compliance with all applicable laws, rules and regulations;
- It has full legal power and authority under its organizational documents to enter into this Agreement and to perform the obligations contained herein; and the execution of this Agreement and the performance of its obligations by Publisher will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Publisher is a party or subject.
Section 7. Campaign Discontinuance.
WAARDEX has the option, in its sole discretion, to discontinue any Ad campaign, with or without cause, by giving a notice via e-mail, telephone or fax, to the Publisher’s authorized representative that will be effective immediately on the date when it is sent. If WAARDEX elects to discontinue any Ad campaign, all unfulfilled contractual commitments subsequent to notice shall become null and void, and WAARDEX shall pay Publisher only for Advertising Material delivered up to the date of the notice period so long as such Advertising Material are delivered evenly.
Section 8. Term and Termination.
- Term. Subject to the early termination rights of either party herein, the term of this Agreement shall be 1 year from the date first written above; and it shall renew automatically for subsequent one-year periods unless either party notifies the other at least 30 days before the end of the then-Term that it does not wish to renew the Agreement.
- Termination by Either Party. Notwithstanding Section 8.A above, either party may terminate this Agreement at anytime for one of the following reasons for any reason whatsoever, upon 30 days written notice to the other party. Notice may be provided via e-mail or any other public means and will be effective 30 days after its transmission.
- Termination by WAARDEX. Notwithstanding Sections 8.A and B above, WAARDEX shall also have the right to terminate this Agreement because of either of the following reasons:
- Immediately upon written notice of because Publisher has breached Section 3.6 herein; or
- Upon the time periods specified in Section 7 herein upon a campaign discontinuance in accordance with that Section.
- Consequence of Termination. Upon receipt of such termination notice, Publisher agrees to immediately remove WAARDEX’s HTML code for serving Advertising Material from its Site(s). In the case of termination, provided that Publisher has an outstanding account balance equal to or greater than $50, WAARDEX will pay Publisher all legitimate moneys due during the next billing cycle.
Section 9. License and Intellectual Property.
WAARDEX Interactive shall use the trade names or trademarks of the other party or Advertisers without prior written approval from the party owning such name or mark.
Section 10. Privacy
10.2. Privacy Representations and Warranties. Each party warrants to the other that, during the term of this Agreement, it shall comply with all applicable laws and regulations (including but not limited to laws governing privacy, and data protection). Publisher warrants that it shall comply with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://www.networkadvertising.org/aboutnai_principles.asp).
Section 11. Confidentiality.
WAARDEX shall disclose to Publisher the names of WAARDEX’s Advertisers (”Client List”); and Publisher agrees that the Client List is sensitive and highly confidential information that it shall use solely for its performance under this Agreement, and that it and its officers, employees, directors, members, agents and representatives shall not disclose it to any other party for any purpose without the prior written consent of WAARDEX. Publisher shall ensure that each of the persons or parties in the previous sentence have signed confidentiality agreements with Publisher consistent with the aforesaid sentence before it may disclose the Client List to them. Notwithstanding the previous two sentences, however, Publisher may disclose to any third party the existence of its relationship with WAARDEX; but it cannot disclose the Client List or the existence or nature of WAARDEX’s relationship with any Advertisers included in the Client List. Publisher’s obligations under this paragraph shall continue indefinitely following the date of termination of this Agreement.
Section 12. Indemnification.
The Publisher agrees to indemnify and hold WAARDEX and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the Publisher in the WAARDEX Network, (ii) operation of the Publisher’s Site(s) submitted to WAARDEX for participation in the WAARDEX Network or (iii) otherwise arising from Publisher’s relationship with WAARDEX. The Publisher also agrees to indemnify WAARDEX for any legal fees incurred by WAARDEX, acting reasonably, in investigating or enforcing its rights under this agreement.
Section 13. Disclaimers, Exclusions and Limitations.
Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, WAARDEX MAKES, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Limitation of Liability. UNDER NO CIRCUMSTANCES WILL WAARDEX BE LIABLE TO PUBLISHER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT WAARDEXHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL WAARDEX’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE PUBLISHER HEREUNDER.
Section 14. Non-Circumvention.
During the Term of this Agreement, and any renewal thereof, and for one (1) year after its termination for any reason, Publisher agrees that it will not do business directly or indirectly with any Advertiser, or directly or indirectly solicit or induce such Advertiser to do business directly with the Publisher. Publisher understands and agrees that this prohibition is a key consideration and inducement for WAARDEX to enter into this Agreement with Publisher, and to provide the services hereunder.
Section 15. General.
15.1. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of Estonian Republic, and each of the parties submits to the exclusive jurisdiction of the courts of Estonia.
15.2. Assignment. Any assignment, transfer or delegation by Publisher of its rights or duties hereunder will be governed by this Agreement, subject to the parties’ termination rights hereunder.
15.3. No Prior Agreements. This Agreement, together with all fully-executed Addenda, attachments and exhibits attached hereto, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.
15.4. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative. The Parties represent that they fully acknowledge and agree to the terms of this Agreement
15.5. Counterparts. This Agreement may be executed in counterparts which together shall be deemed to constitute one valid & binding agreement & delivery of the counterparts may be effected by means of a fax or electronic mail transmission.