AdAction Interactive Legal Policies

ADACTION PRIVACY POLICY

AdAction Interactive LLC, on behalf of itself and its subsidiaries and affiliates (“AdAction,” “us,” “we,” or “our”) is committed to protecting your privacy. AdAction has prepared this Privacy Policy to describe to you, or if you represent an entity or other organization, that entity or organization, (in either case, “you” or “User”) our practices regarding the personal information that AdAction collects, uses, and shares regarding our mobile app marketing ad network platform (the “Platform”) accessed through the website located at https://www.adaction.mobi/ and through various other websites operated by AdAction (each a “Website“) or using mobile and online applications provided by and on behalf of AdAction (each, an “Application,” and each Website and Application treated as a part of the “Platform” for purposes of this Privacy Policy). The Platform provides users with access to data, information, and other content (“Content”), as well as features, resources, and services (“Services”), relating to AdAction’s Platform.

If you are viewing our Platform to sign up as a developer, advertiser, or publisher (“Customer”), on sign-up or Account creation you will be requested to enter into an agreement with AdAction (“Agreement”). That Agreement may contain additional privacy disclosures and obligations. If there is any conflict between the Agreement and this Privacy Policy, the Agreement prevails.

AdAction reserves the right, at any time, to modify this Privacy Policy. If we make revisions that change the way we collect, use, or share personal information, we will post those changes in this Privacy Policy. You should review this Privacy Policy periodically so that you keep up to date on our most current policies and practices. We will note the effective date of the latest version of our Privacy Policy at the end of this Privacy Policy.

Please read this Privacy Policy carefully to understand our views and practices regarding your personal information and how we will treat it. By visiting this Platform, you are freely accepting and consenting to the practices in this Privacy Policy. You may withdraw your consent at any time and for any reason with effect to future data processing by contacting us at the address listed below in the Section titled “Communications”. Without your consent, AdAction will use personal information, only insofar as such processing is permitted by applicable law (e.g., for the performance of an Agreement between AdAction and you) or where such processing is necessary for compliance with a legal obligation to which AdAction is subject. 

1. COLLECTION OF PERSONAL INFORMATION. Personal information refers to information that is related to you, and may include things such as your email address, mailing address, mobile number, demographic information, participation in marketing programs, and marketing preferences. AdAction collects personal information when Users voluntarily submit it to us. For example, we may collect or receive information from you when you create an Account, edit your Account Information, use or access Service or Content, or otherwise interact with us or other Users of the Platform.  We also collect information from our Customers about their end users, which may be users of the Platform, such as Customer promotions, surveys, or contests offered to any end user of a Customer.

In addition to personal information that we may receive from you, AdAction may collect other information from Users using the following technologies:

  • Cookies. “Cookies” are small bits of information that the Platform places on the hard drive of your computer. Cookies remember information about your activities on the Platform to make your visits to the Platform more enjoyable and valuable to you by providing a customized experience and recognizing your preferences when you visit the Platform. If you’ve chosen to disable cookies on your browser, some of the functionality of the Platform may be lost. Certain Services provided by AdAction, require that cookies be enabled in your browser and cannot be used when you have disabled cookies in your browser.
  • Web Server Logs. Web server logs are records of activity created by the computer that delivers the web pages you request to your browser. For example, a web server log may record the search term you entered or the link you clicked to bring you to a web page. The web server log also may record information about your browser, such as your IP address and the cookies set on your browser by the server.
  • Device Information. We may collect information about the mobile device or computer you use to access the Platform, including without limitation the hardware model, operating system and version, browser type, unique device identifiers, and mobile network information.
  • SDK Information. We may collect information from a Software Development Kit (SDK) that our Customers integrate into their applications that allows them to provide end users with advertising. By downloading and using the Customer’s application, end users give permission to share information collected by the SDK with AdAction under this Privacy Policy.

AdAction participates in behavioral-based advertising. This means that a third party may use technology (e.g., a cookie) to collect information about you so that they can provide advertising about products and services tailored to your interest. That advertising may appear either on the Platform, or on other web sites.

In addition to the information that we collect from you directly, we may also receive information about you from other sources, including Customers, third parties, or publicly available sources.

Lastly, we may collect personal information that is necessary for our legitimate interests, which will be disclosed to you at the time of collection. AdAction will use this information for the purposes of which it was collected.

2. USE OF PERSONAL INFORMATION. AdAction’s primary purpose in collecting personal information is to provide you with advertisements about products and services that match your interests. AdAction may also use personal information about you for various purposes, including without limitation to:

  • To help diagnose problems with the Platform, to administer the Platform, and to enhance the Platform for optimal User experience.
  • To monitor the usage and performance of the Platform, and to determine aggregate information about our Users and usage patterns.
  • To customize Content and Services that may be of interest to our Users.
  • To identify you when you access and use any Sites or Applications.
  • To facilitate transactions and process payments.
  • To provide you with more relevant advertisements.
  • To send Users materials, updates, and product information regarding the Platform.
  • To provide maintenance, support, and customer service for the Platform.
  • To conduct research and analysis.
  • To contact Users for information verification purposes.
  • To fulfil other legitimate purposes permitted by applicable law.

3. SHARING OF PERSONAL INFORMATION.

AdAction may ask if you would like us to share your personal information with other unaffiliated third parties who are not described elsewhere in this policy, and we may do so with your consent.  AdAction may share your personal information with companies that are affiliated with us (that is, that control, are controlled by, or are under common control with AdAction). AdAction may share your personal information with service providers that perform services for AdAction, such as providing hosting services, marketing assistance, analyzing User data, processing payment card information, and for other legitimate purposes permitted by applicable law. There may also be instances when AdAction may disclose your personal information without providing you with a choice in order to protect the legal rights of AdAction, other affiliated companies or their employees, agents, and contractors; to honor a request that you have made through the Platform; to protect the safety and security of other Users; to protect against fraud or for risk management purposes; or to comply with the law or legal process. In addition, if AdAction sells all or part of its business or makes a sale or transfer of assets or is otherwise involved in a merger or business transfer, AdAction may transfer your personal information to a third party as part of that transaction.

The Platform may offer you the ability to share your personal information through a social networking site (e.g., Facebook, Twitter, LinkedIn), using such site’s integrated tools (e.g., Facebook “Like” button, or Twitter “Tweet” button). The use of such integrated tools enables you to share personal information about yourself with other individuals or the public, depending on the settings that you have established with such social networking site. Additionally, by making personal information available on the Platform, you “opt in” to allow AdAction to provide such personal information to a social networking site without your further consent. For more information about the purpose and scope of data collection and use in connection with such social networking site or a site’s integrated tools, please visit the privacy policies of the entities that provide these social networking sites.

4. PUBLIC FORUM AND MESSAGING. AdAction may offer public discussion forums and bulletin boards.  Please note that information that you disclose in these public forums become public.  Use caution in disclosing any personal information.  The Platform may also allow you to exchange messages with other Users.  We may store these messages in order to deliver them and allow you to manage them.

5. SECURITY. AdAction employs reasonable and appropriate security measures to protect personal information from becoming disclosed to individuals who are not described in this Privacy Policy.  While there is no such thing as “perfect security” on the internet, we will take reasonable steps to ensure the safety of your personal information.

6. ACCESS & CHOICE. AdAction has implemented the following procedure that you may use to access, correct, or delete your personal information, or choose how your information is used:

  • You may have a right, in accordance with applicable laws, to access, update, correct, and in some cases requests deletion of the personal information that we hold about you. When updating your personal information, we may ask you to verify your identity before we can act on your request. Any access request will be subject to the relevant fee, if any, to meet our costs in providing you with details of the information we hold about you. We will comply with your request as soon as reasonably practicable and in accordance with applicable laws. We may need to retain certain information for recordkeeping purposes, as required under applicable legal obligations, or to complete any transactions that you began prior to requesting such change or access.
  • If you wish to stop receiving email marketing communications from AdAction, please contact us at the address listed below or clicking the “Unsubscribe” in any marketing communications. If you opt out, we may still send you non-promotional communications, such as those about your Account or to facilitate Content or Services that you have made or accepted.
  • Some web browsers and devices permit you to broadcast a preference that you not be “tracked” online. At this time AdAction does not modify your experience based upon whether such a signal is broadcast.

7. OPT-OUT. In line with best practices in our industry, we respect your rights to opt-out of receiving advertising. To opt-out of AdAction Interactive behavioral advertising, email your request to privacy@adactioninteractive.com. You can further limit the advertisements you receive using the following methods:

  • Device Setting. iOS devices include Apple’s advertising control features which can limit ad tracking using the “Limit Ad Tracking” setting. For example, you can do this by going to “Settings” from the device’s home screen; scroll down to “Privacy”; select “Advertising”; and turn on “Limit Ad Tracking”. In Android devices, you can activate the “Opt-out of interest-based ads” setting. For example, you can do this by going to “Settings” on the device; select “Google Settings”; select “Ads”; and check the box labelled “Opt-Out of Interest-Based Ads”. Please note that even if you opt-out, you will still receive advertising but these messages will not feature interest-based ads that may be more relevant to you.
  • Advertising Alliance Programs. You may use the Network Advertising Initiative (“NAI”) and Digital Advertising Alliance (“DAA”) opt-out tools to learn more about targeted or interest based advertising and to opt out of certain targeting programs not associated with AdAction.

8. RETENTION OF PERSONAL INFORMATION. AdAction retains your personal information:

  • For so long as your Account is active or as needed to provide you with Services or to fulfill our contractual obligations;
  • As necessary to comply with our legal obligations, resolve disputes, and enforce our agreements; and
  • For so long as is necessary for the purposes for which we collected such personal information.

9. OTHER INFORMATION.

  • Notice to California Residents. Under California Civil Code sections 1798.83-1798.84, California residents who have an established business relationship with AdAction are entitled to ask us for a notice describing what categories of personal customer information we share with third parties for their direct marketing purposes. This notice will identify the categories of information shared with and will include a list of the third parties with which it is shared, along with their names and addresses. If you are a California resident and would like a copy of this notice, please submit a written request to us at the addresses listed below.
  • Notice to Residents of the European Economic Area. In accordance with applicable data protection laws, you may have the right to request: access to, rectification, and erasure of your personal information; restriction of processing of personal information; objecting to certain processing of personal information; and the right to data portability. Where any processing of personal information is solely dependent upon your consent, you have the right to withdraw such consent at any time (For example, we suggest by using the unsubscribe link contained in an applicable marketing message, or, emailing us at the “Communications” details below). Where you believe that we have not processed your personal information in accordance with applicable data protection laws, you may lodge a complaint with the respective supervisory authority or data protection regulator. The provision of personal information by you will be for contractual, marketing, or analytical purposes as referred to in this Privacy Policy. If we do not have access to such personal information from you, then we will not be able to undertake certain Services for you. We may withhold information where the search for that information would require disproportionate effort or have a disproportionate effect to, for example, the cost of providing the information, the time it would take to retrieve the data, or how difficult it may be to obtain the information requested. To exercise your rights under these provisions, please contact us at the “Communications” details below. When we receive your requests, we may ask you to verify your identity before we can act on your request.
  • International Operations. AdAction is based, and this Platform is hosted, in the United States of America. If you are from a country outside of the United States of America with laws governing data collection, use, and disclosure that may differ from U.S. law and you provide personal information to AdAction, please note that any personal information that you provide to AdAction may be transferred to the United States of America. By providing your personal information, you hereby specifically and expressly consent to such transfer and processing and the collection, use, and disclosure set forth herein or in any terms and conditions related to the use of and access to the Platform.
  • Other Websites. This Privacy Policy does not apply to sites or applications offered by other companies or individuals, including third party products and services, that may be displayed as content in a search on the Platform. AdAction encourages you to read the privacy policy of any third party site or applications before transmitting personal information.

10. COMMUNICATIONS. If you have any additional questions or concerns about our Privacy Policy or any other privacy or security issue, please contact us at:

AdAction Interactive LLC
Attn: AdAction Legal Department
Email: privacy@adactioninteractive.com

If AdAction needs, or is required, to contact you concerning any event that involves information about you, we may do so by email, telephone, or mail.

Effective as of April 10, 2018

Advertiser Terms and Conditions

These Terms and Conditions (“Agreement” or “Terms“) are a legally binding and enforceable agreement between AdAction Interactive LLC (“AdAction”) and you (“Advertiser”), whereby Advertiser may obtain access to the AdAction network of registered third party affiliates (“Affiliates”) and publishers (“Publishers”), and related technology and software (“AdAction Ad Server”), to market customized advertisements and links provided by Advertiser and/or AdAction (“Ads” as further defined below). AdAction, as well as the services provided by AdAction in connection therewith (“Services”), are subject to an Insertion Order (“IO”) incorporated herein by reference (the IO, together with this Advertiser Agreement, the “Agreement”). In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to agency as well as the applicable underlying client.

  1. AdAction Services

Advertiser agrees to accept and pay for, and AdAction agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, AdAction shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby AdAction will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, AdAction Ads (as defined below) through AdAction either:

  1. On Publisher websites via the AdAction Ad Server for impressions-based Ad Campaigns (“CPM”); or
  2. By Affiliates via e-mail-based marketing, search engine marketing, website-based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay AdAction commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, “Actions”). The applicable Actions, the fees due to AdAction for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in the subject IO. AdAction shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.
  1. Account

Upon the execution of the Agreement, Advertiser must register on the AdAction website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify AdAction of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that AdAction will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.

  1. Ads
    1. Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that AdAction shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that AdAction prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “AdAction Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that AdAction is the sole owner of any and all intellectual property rights associated with the AdAction Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the AdAction Ads. Under no circumstances shall AdAction be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s).
    2. AdAction reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by AdAction. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where AdAction deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website or app linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon AdAction or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and AdAction shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM or CPA-based Ad Campaign, or an Ad associated with such a CPM or CPA-based Ad Campaign, effective within approximately forty-eight (48) business hours of AdAction’s receipt of Advertiser’s cancellation notice in writing.
    3. Advertiser guarantees that all advertisement material, links, descriptions, landing pages or related content associated to the Ads provided to AdAction and shown to users during fulfilment of AdAction Services will only ever contain Ad Campaigns agreed upon in the above IO. Advertiser is forbidden from changing the landing page, content, available offer or any other significant part of the Ad Campaign listed on this IO. If Advertiser is found to be engaging in such practices, or making material changes to Ad Campaigns without sufficient prior written notice to AdAction, AdAction can, in it’s sole discretion, find Advertiser to be in material breach of this IO and Terms and Conditions and seek reasonable damages.
    4. Advertiser further guarantees that no advertisement, website, ad campaign, links, landing pages or related material or content complies with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:
      a. Pornographic material, including any material appealing to the prurient interests
      b. Racial, ethnic, political, hate-mongering or otherwise objectionable content;
      c. Investment, money-making opportunities or advice not permitted under law;
      d. Gratuitous violence or profanity;
      e. Material that defames, misrepresents, abuses, or threatens physical harm to others;
      f. Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc;
      g. Software pirating
      h. Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;
      i. Infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
      j. Any illegal activity whatsoever; and
      k. Links to any affiliate networks
  2. Placement

The positioning, placement, frequency and other editorial decisions related to Ads shall be made by AdAction and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that AdAction and/or its Affiliates and Publishers may determine, in their respective sole discretion.

  1. Ad Codes

Unless otherwise stated in writing by AdAction, each Ad used by AdAction in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by AdAction (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by AdAction to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay AdAction a reasonable market rate determined by AdAction on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by AdAction in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, AdAction’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.

  1. E-mail Marketing
    1. The following terms apply to all Ad Campaigns transmitted via e-mail by AdAction’s Affiliates on behalf of Advertiser. Any and all e-mail-based Ads shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 (“CAN-SPAM”) and any and all Federal Trade Commission implementing regulations;
    2. must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and
    3. must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). AdAction may make available, at a AdAction-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by AdAction’s Affiliates for Advertiser under applicable IO(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by AdAction, or send its suppressed e-mail addresses to AdAction via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then AdAction may conclude that no such addresses exist. The suppression list and login provided by AdAction are deemed to be Confidential Information of AdAction, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.
  1. Payments
    1. The fees for Actions shall be set forth in the applicable IO(s). Subject to Section 8 below the payment of the fees shall be unconditioned and shall be paid regardless whether the Advertiser actually collected the funds from his applicable advertisers or not (if applicable). Conditioned that the Advertiser shall enable AdAction 24/7 access to Advertiser’s campaign tracking system, the fees shall be calculated according to the Advertiser’s record of Valid Actions (as defined in Section 8).
    2. AdAction will invoice Advertiser monthly. Unless otherwise set forth in the applicable IO, payment will be due to AdAction within thirty (30) days of the date of invoice. If payment is not made in a timely manner, AdAction may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one-half percent (1.5% per month) or the maximum amount permitted by law. In addition, Advertiser shall be liable to AdAction for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by AdAction and/or any of its Publishers or Affiliates.
    3. Prior to initiating the applicable campaign, as deemed necessary by AdAction, Advertiser may be required to pay AdAction advance payment set forth in the IO. Any fees payable to AdAction according to the IO shall be deducted from the Advance Payment. After the Advance Payment is fully exhausted, and as a condition for continuing the campaign, the Advertiser shall pay AdAction additional Advance Payment. In the event of a cancelation of an IO the Advertiser shall be acquitted for the non-used balance of the Advance Payment (if any) within 30 days of such cancelation.
  1. Leads/CPA/Unaccepted Actions

In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay AdAction for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:

  1. it rejects within five (5) days of its receipt thereof; and
  2. both parties determine is not a Valid Action (as defined below). Where AdAction determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means:
    1. Ad campaign requirements were not satisfied by a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
    2. Ad campaign requirements were not fulfilled using fake or stolen credit cards
    3. Ad campaign requirements were not satisfied using IP and/or locations-based fraud
    4. in the case of CPA-based Campaign, a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
    5. In the case of Leads-based Campaigns, an individual person has submitted information that meets all of Advertiser’s criteria as set forth in the applicable IO.

Advertiser shall make best commercial efforts to prevent and/or substantially limit the occurrences of invalid and/or fraudulent Actions by using suitable fraud detection and customary prevention technology. In addition, and as a condition for nonpayment of applicable fees due for an invalid Action, the Advertiser shall provide AdAction with: (i) a written notification within five (5) days of the discovery of an invalid Action, any fraud claim submitted after the said period will not allow the Advertiser to deny the fees for such invalid Actions; and (ii) a written monthly report that shall include summary of the invalid Actions that occurred in the preceding month. Without derogating from the above, AdAction will not be required to accept any invalid Action claims presented to it unless it receives all the required evidence to satisfactorily determine that such actions were invalid Actions.

The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of AdAction, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to AdAction therefor in accordance with payment terms set forth herein and in the applicable IO), AdAction shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:

  1. will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
  2. will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by AdAction;
  3. will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
  4. will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
  5. will notify AdAction as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to AdAction in the investigation and prosecution of any such unauthorized use or disclosure.
  1. Reports

Advertiser shall provide AdAction, at its request, with periodic reports detailing information regarding Valid Actions, inter alia number of invalid Actions, rates of cancelations, fraudulent events and users, chargebacks, refunds on such Actions and any related information.

Advertiser agrees to provide AdAction with detailed reporting of Actions Advertiser believes are not Valid Actions no less than every seven (7) days. Advertiser agrees that failure to provide such regular, on time reporting of Actions Advertiser believes are not Valid Actions and therefore, non-billable, will disallow the denial of payment for such Actions to AdAction.

  1. Term/Termination

The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon seven (7) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:

  1. Advertiser will pay AdAction all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 above;
  2. any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
  3. any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
  1. Warranty/Limitation of Liability

THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY ADACTION UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, ADACTION MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADACTION DOES NOT WARRANT OR GUARANTEE ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. WITHOUT DEROGATING FROM THE GENERALITY OF ANY PROVISIONS CONTAINED HEREIN, ADVERTISER ACKNOWLEDGES THAT ALTHOUGH ADACTION ENDEAVOUR TO PLACE THE ADS IN WEBSITES THAT ARE SUITABLE FOR THE GOALS OF THE APPLICABLE CAMPAIGN AND THE TARGET USERS, ADACTION DOESN’T WARRANT THAT: (i) THE CAMPAIGN SHALL BE SUCCESSFUL OR; (ii) THAT THE WEBSITE AND ITS USERS SHALL RISE TO THE EXPECTATIONS OF THE ADVERTISER OR; (iii) THAT IS EXAMINED THE CONTENT OF THE WEBSITE AND/OR THE SUITABILITY THEREOF, OR HAS THE ABILITY TO MONITOR AND/OR CONTROL SUCH CONTENT, INTER ALIA IN TERMS OF LEGITIMACY AND/OR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (iv) THAT THE SERVICE AND ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ADACTION HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND ADACTION DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. ADACTION HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND ADACTION DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. ADACTION MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL ADACTION BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF ADACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADACTION WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ADACTION’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ADACTION’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO ADACTION BY ADVERTISER DURING THE PRIOR THREE (3) MONTH PERIOD PURSUANT TO THE AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADVERTISER ACKNOWLEDGES AND AGREES THAT THE ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL THE ADACTION BE LIABLE FOR, THE ACTIONS OR OMISSIONS OF ANY ADVERTISER, FOR ANY CONTENT CONTAINED IN ANY ADVERTISEMENTS OR LINKED WEBSITES, APPS OR OTHER ONLINE PROPERTIES, OR FOR ANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH ANY ADVERTISER’S ADVERTISEMENT, WEBSITE, APP OR ONLINE PROPERTY. ADVERTISER FURTHER ACKNOWLEDGES AND AGREES THAT ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL THE ADACTION BE LIABLE FOR, ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES, OR FOR A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES, FOR ANY CONTENT CONTAINED ON A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES, OR FOR ANY PRODUCT(S) OR SERVICE(S) OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES.

  1. Representation and Warranties

Advertiser represents and warrants that:

  1. it has the power and authority to enter into and perform its obligations under the Agreement;
  2. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website or app linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the Children’s Online Privacy Protection Act (COPPA), and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Online Privacy Protection Act (CalOPPA), the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws, and applicable self-regulatory standards, including but not limited to, the Digital Advertising Alliance Self-Regulatory Principles (collectively, “Laws”);
  3. it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, AdAction Ads, by AdAction, its Publishers and Affiliates, as contemplated by the Agreement;
  4. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website or app linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
  5. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website or app linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
  6. Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
  7. Advertiser shall fulfill all commitments made in the Ads;
  8. if the Advertiser’s Ad links to an app that offers an option to purchase subscriptions or offers in-app services, goods, content or functionality for purchase, Advertiser shall clearly notify end-users that such payment is required in accordance with industry standard practices, and comply with all applicable “in-app” purchase rules and policies set forth by the applicable distribution platform(s) and/or app store(s), including but not limited to, the Google Play Store, the Apple App Store, and other similar distribution platforms or app stores;
  9. Advertiser shall ensure that no Ad is targeted or directed to end-users under the age of eighteen (18). Without limiting the foregoing, or limiting Advertiser’s obligations under COPPA, Advertiser shall not share with AdAction any personal information collected from or about children under the age of 13;
  10. prior to loading any program onto an individual’s device including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such program;
  11. the Ads, Advertiser Products, any Advertiser website or app linked to from the Ads do not:
    1. contain any misrepresentations or content that is false, deceptive, misleading, unethical, libelous, or defamatory;
    2. contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
    3. promote or support gambling or sweepstakes or contests; or
    4. contain any “worm,” “virus” or other device that could impair or injure any person or entity;
  12. Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.

Advertiser represents and warrants that Advertiser’s privacy policy permits the collection, use and transfer of data as contemplated hereby and the AdAction program terms. Advertiser will comply with all applicable laws and regulations, including data privacy and security laws and rules applicable to the personal information of the users that is being accessed, collected, used, or shared by Advertiser with AdAction. Advertiser shall post on any website involved in the Programs a privacy policy that abides by all applicable laws and regulations and that provides legally adequate disclosure to Advertiser’s users about: (i) any information relating to users that will be provided or is otherwise accessible to us in connection with the Services; and (ii) to the extent applicable, a conspicuous manner, in accordance with applicable laws and regulations and as instructed by AdAction, in which a user may opt-out of receiving targeted ads based on the user’s behavior and interests. Advertiser hereby confirm that it has read and understands AdAction’s Privacy Policy, and that nothing therein is contrary to Advertiser’s privacy policy. AdAction may use cookies and pixels as part of the services, inter alia, for the purpose of performing and improving the Services, analyzing its performance, detecting and addressing technical issues. In no event will AdAction be liable for any placement of cookies by third parties. Advertiser hereby acknowledge and agree to the terms of the Data Processing Addendum attached hereto as Exhibit A. AdAction may immediately suspend any Ad. Ad Campaign, Advertiser’s use of the Services, and/or terminate the Agreement if Advertiser violates this Section 11.

  1. Indemnification

Advertiser shall irrevocably defend, indemnify and hold AdAction, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:

  1. Advertiser’s breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
  2. the Ads, Advertiser Products and/or Advertiser websites or apps; and/or
  3. any claim that AdAction is obligated to pay any taxes in connection with Advertiser’s participation hereunder.
  1. Confidentiality

For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:

  1. a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
  2. the material terms of the Agreement and/or any associated IO(s);
  3. with respect to AdAction, the Unaccepted Action Data and suppression lists; and
  4. any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall 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, company or entity, except to those of its employees and professional advisers:
  5. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
  6. who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
  7. is generally available to or known to the public through no wrongful act of the receiving party;
  8. was independently developed by the Receiving Party without the use of Confidential Information; or
  9. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
  1. Non-Circumvention

Advertiser recognizes that AdAction has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent AdAction’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by AdAction hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with AdAction, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that AdAction shall be entitled to:

  1. injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;
  2. liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
  3. any and all other remedies available to AdAction at law or in equity.
  1. Force Majeure

Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

  1. Miscellaneous

Assignment: Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:

    1. an acquirer of all or substantially all of such party’s equity, business or assets;
    2. a successor in interest whether by merger, reorganization or otherwise; or
    3. any entity controlling or under common control with such party.
    4. Choice of Law/Venue: The Agreement shall be construed in accordance with and governed by the laws of the State of Colorado. Each party irrevocably waives, to the fullest lawful extent, all right to trial by jury in any proceeding relating to this agreement, the notes or the transactions they contemplate.
    5. Modification: The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
    6. Non-Waiver/Severability: No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
    7. Relationship of the Parties: The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that AdAction acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).

IN WITNESS WHEREOF, AdAction and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives. 

Exhibit A

Data Processing Addendum This Data Processing Addendum (“Addendum“) forms part of the Agreement between AdAction Interactive LLC (“AdAction“) acting on its own behalf and as agent for each AdAction Affiliate; and Advertiser (“Advertiser“) acting on its own behalf and as agent for each Advertiser Affiliate. The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect. The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.

  1. Definitions.

1.1 “Advertiser Personal Data” means any Personal Data Processed by AdAction or any AdAction Affiliate on behalf of Advertiser or any Advertiser Affiliate pursuant to or in connection with the Agreement or any related SOW;

1.2 “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Advertiser or AdAction respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

1.3 “Controller,” “Processor,” “Data Subject,” “Personal Data,” “Processing,” “Supervisory Authority,” “Personal Data Breach,” and “Special Categories of Personal Data” shall have the same meaning as in the Data Protection Laws;

1.4 “Data Protection Laws” shall mean Directive 95/46/EC and Directive 2002/58 /EC, in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR“) and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA;

1.5 “EEA” means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en;

1.6 “Restricted Transfer” means the onward transfer of Advertiser Personal Data that is located in the EEA to AdAction in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission;

1.7 “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the contractual clauses.

1.8 “Subprocessor” means any Processor (including any third party and any AdAction Affiliate) appointed by AdAction to Process Advertiser Personal Data on behalf of Advertiser or any Advertiser Affiliate.

  1. Data Processing Terms: While providing the Services to Advertiser and Advertiser Affiliates pursuant to the Agreement, AdAction and AdAction Affiliates may Process Advertiser Personal Data on behalf of Advertiser or any Advertiser Affiliate as per the terms of this Addendum. AdAction agrees to comply with the following provisions with respect to any Advertiser Personal Data submitted by or for Advertiser or any Advertiser Affiliate to the Services or otherwise collected and Processed by or for Advertiser or any Advertiser Affiliate by AdAction or any AdAction Affiliate.
  2. Processing of Advertiser Personal Data: AdAction shall not Process Advertiser Personal Data other than on Advertiser’s documented instructions unless Processing is required by Data Protection Laws to which AdAction is subject, in which case AdAction shall to the extent permitted by Data Protection Laws inform Advertiser of that legal requirement before Processing Advertiser Personal Data. For the avoidance of doubt, the Agreement and any related SOW entered into by Advertiser shall be constitute documented instructions for the purposes of this Addendum. Advertiser shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Advertiser’s use and disclosure and AdAction’s Processing of Advertiser Personal Data; and (2) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Advertiser Personal Data to AdAction and to permit the processing of such Advertiser Personal Data by AdAction for the purposes of performing AdAction’s obligations under the Agreement or as may be required by Data Protection Laws. Advertiser shall notify AdAction of any changes in, or revocation of, the permission to use, disclose, or otherwise process Advertiser Personal Data that would impact AdAction’s ability to comply with the Agreement, or applicable Data Protection Laws.
  3. Confidentiality: AdAction shall take reasonable steps to ensure that individuals that process Advertiser Personal Data are subject to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality.
  4. Security: Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, AdAction shall in relation to Advertiser Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk.
  5. Subprocessing: AdAction may engage such Subprocessors as AdAction considers reasonably appropriate for the processing of Advertiser Personal Data in accordance with this Addendum, provided that AdAction shall notify Advertiser of the addition or replacement of such Subprocessor and Advertiser may, on reasonable grounds, object to a Subprocessor by notifying AdAction in writing within 10 days of receipt of AdAction’s notification, giving reasons for Advertiser’s objection. Upon receiving such objection, AdAction shall: (1) work with Advertiser in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and (2) where such change cannot be made within 10 days of AdAction’s receipt of Advertiser’s notice, Advertiser may by written notice to AdAction with immediate effect terminate the portion of the Agreement or relevant SOW to the extent that it relates to the Services which require the use of the proposed Subprocessor. This termination right is Advertiser’s sole and exclusive remedy to Advertiser’s objection of any Subprocessor appointed by AdAction. AdAction shall require all Subprocessors to enter into an agreement with equivalent effect to the Processing terms contained in this Addendum. AdAction shall remain fully liable for all the acts and omissions of each Subprocessor.
  6. Data Subject Rights: AdAction shall promptly notify Advertiser if it receives a request from a Data Subject under any Data Protection Laws in respect to Advertiser Personal Data. In the event that any Data Subject exercises any of its rights under the Data Protection Laws in relation to Advertiser Personal Data, AdAction will shall use reasonable commercial efforts to assist Advertiser in fulfilling its obligations as Controller following written request from Advertiser, provided that AdAction may charge Advertiser on a time and materials basis in the event that AdAction considers, in its reasonable discretion, that such assistance is onerous, complex, frequent, or time consuming.
  7. Personal Data Breach: In the event of a Personal Data Breach, AdAction will notify Advertiser without undue delay after becoming aware of the Personal Data Breach. Such notification may be delivered to an email address provided by Advertiser or by direct communication (for example, by phone call or an in-person meeting). Advertiser is solely responsible for ensuring that the appropriate notification contact details are current and valid. AdAction will take reasonable steps to provide Advertiser with information available to AdAction that Advertiser may reasonably require to comply with its obligations as Controller to notify impacted Data Subjects or Supervisory Authorities.
  8. Data Protection Impact Assessment and Prior Consultation: In the event that Advertiser considers that the Processing of Advertiser Personal Data requires a privacy impact assessment to be undertaken or requires assistance with any prior consultations to any Supervisory Authority of Advertiser, following written request from Advertiser, AdAction shall use reasonable commercial efforts to provide relevant information and assistance to Advertiser to fulfil such request, provided that AdAction may charge Advertiser on a time and materials basis in the event that AdAction considers, in its reasonable discretion, that such assistance is onerous, complex, frequent, or time consuming.
  9. Deletion or Return of Advertiser Personal Data: Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement AdAction shall, at Advertiser’s option, delete or return all Advertiser Personal Data and all copies to Advertiser.
  10. Relevant Records and Audit Rights: AdAction shall make available to Advertiser on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by Advertiser or an auditor mandated by Advertiser, not being competitors of AdAction (“Mandated Auditor”) of any premises where the Processing of Advertiser Personal Data takes place in order to assess compliance with this Addendum. AdAction shall provide reasonable cooperation to Advertiser in respect of any such audit and shall at the request of Advertiser, provide Advertiser with relevant records of compliance with its obligations under this Addendum. AdAction shall promptly inform Advertiser if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations with AdAction’s other Advertisers. Advertiser agrees that: (1) audits may only occur during normal business hours, and where possible only after reasonable notice to AdAction (not less than 20 days’ advance written notice); (2) audits will be conducted in a manner that does not have any adverse impact on AdAction’s normal business operations; (3) Mandated Auditor will comply with AdAction’s standard safety, confidentiality, and security procedures in conducting any such audits; and (4) any records, data, or information accessed by Mandated Auditor in the performance of any such audit will be deemed to be the Confidential Information of AdAction. To the extent any such audit incurs in excess of 20 hours of AdAction personnel time, AdAction may charge Advertiser on a time and materials basis for any such excess hours.
  11. International Data Transfer: In the event that any Advertiser transfers any Advertiser Personal Data to AdAction in a country outside the EEA, Advertiser on behalf of itself and each Advertiser Affiliate as data exporter and AdAction on behalf of itself and each AdAction Affiliate as data importer shall enter into the Standard Contractual Clauses which terms shall take precedence over those in this Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer of Personal Data to an entity located outside the EEA, Advertiser shall cooperate with AdAction to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfer.
  12. General Terms: Any obligation imposed on AdAction under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. To the extent that Data Protection Laws do not apply to the Processing of Advertiser Personal Data, this Addendum shall be governed by the governing law of the Agreement. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (1) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (2) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.

PUBLISHER TERMS AND CONDITIONS

AdAction Interactive LLC’s Terms & Conditions for Publishers

These Publisher Terms and Conditions (the “Agreement”) set forth the agreement between AdAction Interactive LLC, a Colorado limited liability company with offices at 200 Union Boulevard, Suite #305, Lakewood, CO 80228 (“AdAction”), and its publishers. This Agreement replaces and supersedes any prior terms and conditions between AdAction and its publishers. You (“Publisher”) shall be legally bound by this Agreement by executing a hard copy of this Agreement, electronically accepting this Agreement online, or by using AdAction’s services.

  1. Approval of Publisher.

Registration with AdAction shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by AdAction on the Site on behalf of its clients (the “Advertisers”). Participation by Publisher in the AdAction publisher lead generation program is subject to review and approval by AdAction. All prospective publishers need official approval from AdAction before they can become Publishers. Official approval requires meeting the criteria listed under section 1.1 below, however approval is not automatically granted upon fulfillment of said criteria. AdAction reserves the right to withhold or refuse approval for any reason or for no reason. Once Publisher has been accepted into the Program, Publisher’s continued right to participate is conditioned upon Publisher’s ongoing compliance with all of the terms and conditions of this Agreement. AdAction may immediately suspend Publisher from participating in the Program and/or terminate this Agreement if AdAction determines, in its sole discretion, that Publisher has violated the terms and conditions of this Agreement. Publisher may re-qualify for program upon proof of compliance with terms and conditions of this Agreement, subject to approval by AdAction. Publisher shall promptly notify AdAction in the event of a material change in its business practices or strategy. Approval of a Publisher can be withdrawn by AdAction, at any time for any reason.

1.1. Minimum Eligibility Requirements.

In order to be eligible to become a Publisher, all websites, affiliated websites, e-mail distribution lists and other online properties (collectively the “Media”) must meet the following criteria, at a minimum:

All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation:

(i) Member opt-in date

(ii) Registration source

(iii) First name

(iv) Last name

(v) Address

(vi) Email address

(vii) Any other information collected and will supply such records to AdAction within one business days of request thereof;

Unless otherwise approved in writing by AdAction, Publishers may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;

Publisher websites must be fully functional at all levels; no “under construction” sites or sections;

Publisher, Publisher’s Media and Publisher’s policies, shall comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Federal Trade Commission Act and guidelines published by the U.S. Federal Trade Commission, the CAN-SPAM Act of 2003, the Children’s Online Privacy Protection Act (“COPPA”), and any applicable and generally accepted self-regulatory standards, including but not limited to, the Digital Advertising Alliance’s Self-Regulatory Principles;

Spawning process pop-ups are prohibited; and

Such other criteria as AdAction may from time to time determine, in its sole discretion.

1.2. Publisher Website Content.

The content of Publisher’s Media shall be subject to AdAction’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:

Pornographic material, including any material appealing to the prurient interests

Racial, ethnic, political, hate-mongering or otherwise objectionable content;

Investment, money-making opportunities or advice not permitted under law;

Gratuitous violence or profanity;

Material that defames, misrepresents, abuses, or threatens physical harm to others;

Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;

Software Pirating;

Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;

Infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;

Any illegal activity whatsoever; and

Links to any affiliate networks

  1. Use of the Site.

2.1. The Site allows AdAction to post offers of advertising programs sponsored by AdAction or its affiliates on the system (“Program(s)”). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program’s requirements are fulfilled. Compensation is derived from a specified event (“Event”) identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. If Publisher accepts a Program, Publisher agrees to place that Program’s advertising creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) (“Ad”) on Publisher’s Media. Publisher shall display the Ad exactly as it appears on the Site and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to AdAction, result in termination of Publisher. AdAction may change a Program at any time, upon reasonable advance written notice to Publisher. AdAction is responsible for displaying and administering all active Programs and tracking the payments owed.

2.2. Special Rules Governing Email Campaigns.

2.2(a). In the event that AdAction or Publisher receives a complaint from any recipient of a Program transmitted by Publisher, upon our request Publisher will immediately provide AdAction with appropriate records verifying that recipient’s consent to receive email transmissions from Publisher. Such records include, but may not necessarily be limited to, the Internet address of Publisher’s opt-in/opt-out website, the date of the recipient’s action, and Publisher’s privacy policy.

2.2(b). Publisher may not use an advertiser’s name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission.

2.2(c). No Misleading Headers or Other Masking of Email Origin. An email may not include falsification of header information, false registrations for email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.

2.2(d). Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the message. Publisher may only use approved Subject Lines available provided by AdAction or Subject Lines for which Publisher has documented approval from AdAction.

2.2(e). Email Ads Must Contain Clear Identification. Messages containing advertisements or solicitations must identify themselves as such, and do so by “clear and conspicuous” means, for example, by stating in the message body “This advertisement is brought to you by (Your Company)”. Further, the sender must identify itself as the initiator and sender of the email including company name, email and physical address.

2.2(f). Effective Method of Opting Out of Future Mailings. Senders of commercial emails must give recipients an effective means of requesting not to receive future email ads from that sender. At a minimum, the publisher must give the recipient the ability to send a reply message to unsubscribe, opt out via postal letter and provide a functioning unsubscribe link that must remain in operation for 30 days from the date of the original email transmission.

2.2(g). All unsubscribe requests must be adhered to within 10 business days from their receipt. You may not sell or transfer an email address once someone has opted out of receiving future communications, whether from only the advertiser or globally.

2.2(h). No Random or Invalid Generation of Email Addresses. Publisher is responsible for knowing the source of its email list. Email addresses may not be obtained by the use of a program for random generation of email addresses, and/or “scraping” websites or online services. Publisher must have full opt-in data for all recipients in its database.

  1. Compliance and Monitoring.

Publisher agrees that AdAction and our service providers may monitor or audit Publisher’s Media and activities under this Agreement, as well as those of Publisher’s Agents. Publisher will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Publisher may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Publisher’s facilities and those of its Agents. Publisher’s failure to promptly and reasonably comply with AdAction’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement.

3.1. All Publishers will be monitored by AdAction (or a third party retained by AdAction for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests. If the monitoring is done by a third party, such third party will share all such information with AdAction.

3.2. Each unsubscribe list furnished to a Publisher shall be separately and technologically identified so that AdAction will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Publisher must not send further emails to names already on or newly added to the unsubscribe list.

3.3 Notwithstanding the foregoing, AdAction assumes no liability for any action or inaction regarding Publisher or Publisher’s Media.

  1. License

AdAction grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the Site (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Site Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, such Publisher may not provide the Program to its publishers, without the prior written consent of AdAction. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to AdAction, Publisher shall forfeit its rights to any amounts owed by AdAction to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by AdAction. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from AdAction that allows AdAction to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from AdAction hereunder or as part of the services hereunder is proprietary to and owned by AdAction. If instructed to do so by AdAction and/or if Publisher shall be terminated by AdAction, Publisher will immediately destroy and discontinue the use of any AdAction data, including Site Data, and any other material owned by AdAction or the Advertisers.

  1. Non-Solicitation.

Publisher agrees that Publisher will not approach or attempt to engage in a contract with any of AdAction’s clients (each such client, individually a “Client” and all such clients, collectively “Clients”) directly or indirectly via a Client’s Ad agency, broker or any other person or entity. AdAction will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a AdAction Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because AdAction will be irreparably harmed by Publisher’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Publisher agrees that AdAction shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.

  1. Participation in our Program.

AdAction shall provide Publisher with material to create a website for the purpose of search engine optimization, or Publisher can create its own website. In either event, no website shall be released online, and no submission, inclusion or any traffic can be sent to it, prior to AdAction’s review and approval of it. If Publisher already has its own website, Publisher’s website will be subject to AdAction’s review and approval. Approval shall be written or by electronic submission. All Program related websites will contain links (“Links”) provided by AdAction directing traffic to product sales web pages served by AdAction or a AdAction Group Client. Publisher’s selection of entities to be included on any such website is also subject to AdAction’s review and approval, of which shall not be unreasonably withheld. Should any of AdAction’s Client(s) provide content which includes imbedded bots, Data Miners, links or other creative, graphic, text or html, all content shall remain at all times the sole property of AdAction.

6.1. Links.

Publisher agrees to use the Links in the exact form that we deliver them to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without AdAction’s written approval. Links must be served from the AdAction server, unless otherwise permitted in writing by AdAction. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees to, if request by AdAction, modify or alter Links or Tracking devices in the manner requested by AdAction. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by AdAction in accordance with the previous sentence.

6.2. Ownership.

AdAction owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. AdAction may choose to imbed certain data mining tools within Links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sole property of AdAction. AdAction may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If AdAction does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of AdAction. Should AdAction choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by AdAction without modification unless approved by us in writing; (ii) only in the manner expressly permitted by AdAction in writing and only until AdAction shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by AdAction to do so.

  1. Fraud

AdAction actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things:

Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of AdAction;

Have ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported;

Have shown fraudulent leads as determined by the Advertisers;

Have used any incentives to procure clicks or leads, without the prior written consent of AdAction;

Have provided leads obtained other than through intended consumer action. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior; or

Use fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.

If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by AdAction or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by AdAction, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to AdAction, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, AdAction reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.

  1. Payment

Publisher will be paid per the terms of each Program. AdAction shall pay any amounts due approximately 30 days after the end of each month, less any taxes required to be withheld under applicable law, provided that AdAction may, in its discretion, withhold payments until such time as the Advertiser has paid AdAction for any Program. In addition to any other remedies that may be available to AdAction, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by AdAction to Publisher. AdAction reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. AdAction shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by AdAction need to be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. AdAction will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to AdAction and payments made to Publisher shall be based on the Events as reported by AdAction. AdAction will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. AdAction will require a Publisher to provide a W-9, and similar such information, as a condition to payment.

  1. Special Terms for Co-Registration Campaigns.

With respect to Publishers who are running co-registration campaigns to generate leads (“Leads”) for Advertisers, the following specific terms and conditions shall apply:

9.1. Approval of Publisher’s Site(s).

No Program may go live until such time as AdAction, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.

9.2. Privacy and Data Processing.

Publisher represents and warrants that Publisher’s privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms. Publisher will comply with all applicable laws and regulations, including data privacy and security laws and rules applicable to the personal information of the users that is being accessed, collected, used, or shared by Publisher with AdAction.  Publisher shall post on any website involved in the Programs a privacy policy that abides by all applicable laws and regulations and that: (a) includes a link to AdAction’s Privacy Policy; and (b) provides legally adequate disclosure to Publisher’s users about: (i) any information relating to users that will be provided or is otherwise accessible to us in connection with the services, as set forth in the AdAction’s Privacy Policy; and (ii) to the extent applicable, a conspicuous manner, in accordance with applicable laws and regulations and as instructed by AdAction, in which a user may opt-out of receiving targeted ads based on the user’s behavior and interests.  Publisher hereby confirm that it has read and understands AdAction’s Privacy Policy, and that nothing therein is contrary to Publisher’s privacy policy.  AdAction may use cookies and pixels as part of the services, inter alia, for the purpose of performing and improving the services, analyzing its performance, detecting and addressing technical issues.  In no event will AdAction be liable for any placement of cookies by third parties.  Publisher hereby acknowledge and agree to the terms of the Data Processing Addendum attached hereto as Exhibit A.

9.3. Scrubbing Leads.

Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”). AdAction may detect and track all Invalid Leads, which are determined on a real-time basis. AdAction shall only pay for leads deemed valid by this system. At the sole discretion of AdAction, leads may also subsequently be deemed invalid for (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a publisher’s inability to provide the user IP and time/date stamp for each lead or (ii) non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a AdAction Account Executive and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an AdAction Account Executive.

9.4. Use of Leads.

Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of AdAction or its Advertiser. Therefore, other than providing the Leads to AdAction for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in AdAction or its Advertisers.

9.5. No Alteration of Approved Co-Registration Forms.

Publisher may not, in any way, alter or modify the Co-Registration Forms, without the prior written consent of AdAction.

  1. Term

The initial terms of this Agreement shall be for one year from the date of its first execution by the last party to so execute. Upon the one-year anniversary of the execution, this Agreement shall automatically renew for successive thirty (30) day terms, unless: (a) not less than thirty (30) days prior to the date of any such automatic renewal, a party notifies the other in writing that it does not wish to renew this Agreement; or (b) this Agreement is otherwise earlier terminated pursuant to the provisions hereof.

  1. Termination.

AdAction reserves the right, in its sole and absolute discretion, to terminate a Program, this Agreement, Publisher’s access to the Site, and remove any advertisements, at any time for any reason, upon written notice to Publisher. Upon termination, Publisher shall terminate the Program and immediately cease emailing and any traffic involved with removed advertisement(s). AdAction also reserves the right to terminate Publisher’s access to the Site at any time without notice.

Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 12, 13, 14 and 15 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.

  1. Representations and Warranties/Covenants.

12.1. Mutual Representations.

Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.

12.2. Publisher Representations, Warranties and Covenants.

Publisher represents, warrants, and covenants that:

Publisher, Publisher’s Media, and Publisher’s policies, shall comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Federal Trade Commission Act and guidelines published by the U.S. Federal Trade Commission, the CAN-SPAM Act, the Children’s Online Privacy Protection Act (“COPPA”), and any applicable and generally accepted self-regulatory standards, including but not limited to, the Digital Advertising Alliance’s Self-Regulatory Principles.

Publisher: (i) will not deliver or place advertisements on Media which are directed to users under 13 years of age or that collect information from users actually known to be under 13 years of age (“Children Sites”), unless the parties have otherwise agreed to such delivery in writing; and (ii) will not use or allow the use of the Media on which advertisements may appear in connection with any activity that may violate COPPA, including without limitation in connection with placing behaviorally targeted advertisements, creating profiles of users or visitors of Children Sites, or the collection of personal information (as defined by COPPA) of users or visitors of Children Sites. In any event, Publisher shall not share with AdAction any personal information regarding end-users of Child Sites;

Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;

Publisher’s database consists of only permission based opted-in e-mail addresses;

Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media;

Publisher will not send unsolicited commercial e-mail (spam) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses that have consented to receive such commercial e-mails);

Publisher will not post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from AdAction;

Publisher will not promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;

Publisher will not use the Site in any manner other than that which is specifically contemplated herein;

Publisher will not engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs;

Publisher will not, while an approved Publisher and for 180 days thereafter, participate in any performance based advertising relationship with any Advertiser within AdAction’s network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of AdAction. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, AdAction will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher;

Publisher shall conduct the web advertising campaign for Advertiser in accordance with the highest industry standards; and

Publisher shall provide within one business day after request therefrom, the IP Information, together with such other related information that AdAction may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher.

Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of AdAction, result in the immediate suspension or termination of this Agreement and AdAction’ relationship with Publisher, and Publisher shall forfeit all rights to any compensation theretofore owed to it by AdAction. The foregoing rights shall be in addition to any other remedies available to AdAction.

  1. Customer Information; Non-Disclosure. Confidentiality.

All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of AdAction, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards.

All information provided to Publisher hereunder shall be kept strictly confidential.

  1. LIMITATION OF LIABILITY; NO ADDITIONAL WARRANTIES; INDEMNIFICATION. THE ADACTION WEBSITES (INCLUDING ANY REPORTING SITE) AND THE OFFERS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ADACTION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADACTION’S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY ADACTION TO PUBLISHER HEREUNDER.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PUBLISHER ACKNOWLEDGES AND AGREES THAT ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL ADACTION BE LIABLE FOR, ANY ACTIONS OR INACTIONS OF PUBLISHER AND/OR AFFILIATES, OR FOR PUBLISHER’S MEDIA, FOR ANY CONTENT CONTAINED ON PUBLISHER’S MEDIA, OR FOR ANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH PUBLISHER’S MEDIA.

PUBLISHER FURTHER ACKNOWLEDGES AND AGREES THAT ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL ADACTION BE LIABLE FOR, THE ACTIONS OR OMISSIONS OF ANY ADVERTISER, FOR ANY CONTENT CONTAINED IN ANY ADVERTISEMENT OR LINKED WEBSITE, APP OR OTHER ONLINE PROPERTY, OR FOR ANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH ANY ADVERTISER’S ADVERTISEMENT, WEBSITE, APP OR ONLINE PROPERTY.

14.1. Indemnification.

Each party agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees from and against any third-party loss, cost, claim, injury or damage (including reasonable attorneys’ fees) arising out of or related to a breach of such party’s representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement.

14.2. Indemnification Procedures.

Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim and the indemnitor shall defend and/or settle the claim at its own expense and with counsel of its own selection. Indemnitee shall at all times have the right to fully participate in the defense of any claim and in any settlement which it reasonably believes would have an adverse effect on its business. The indemnitee shall make available to the indemnitor all books and records relating to the claim, and the parties to this Agreement agree to render to each other such assistance as may reasonably be requested in order to ensure a proper and adequate defense. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor. An indemnitor shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnitee without the prior written consent of the indemnitee, such consent not to be unreasonably withheld. Nothing in this Agreement shall be construed to prevent indemnitee from retaining counsel of its choice, at the expense of the indemnitee, to represent indemnitee’s interests and participate in the defense of any such claims covered under this section.

  1. CONFIDENTIAL INFORMATION. Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the prior written consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that AdAction may divulge its personal and/or otherwise Confidential Information to an Advertiser upon request or to an enforcement agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or pursuant to any applicable law or regulation.

 

  1. GENERAL

16.1. 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.

16.2. Force Majeure.

Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any Internet outage, act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.

16.3. Relationship.

The relationship of Publisher and AdAction established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other.

16.4. Notice.

Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by facsimile or email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein. In the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.adactioninteractive.com. Notices to AdAction shall be sent to AdAction at 14143 Denver West Parkway, Suite 100 Golden, CO 80401. Notices to Publisher shall be sent to Publisher at its most recent email address set forth in its account information on www.adactioninteractive.com. Publisher agrees to receive electronic communications from AdAction, at the email address provided by Publisher. Publisher further agrees that any notice or other communication that AdAction sends it electronically will satisfy any legal communication requirements, including that such communications be in writing.

16.5. Successors and Assigns.

Publisher may not assign or otherwise transfer this Agreement or any rights or obligations herein without the prior written consent of AdAction. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.

16.6. Waiver.

The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.

16.7. Amendment.

Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.adactioninteractive.com

16.8. Entire Agreement; Severability.

This Agreement and any related IO’s set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as   possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.

16.9. Dispute Resolution.

In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. In the event of a dispute resulting in litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Denver, Colorado, USA and any such litigation will be brought within such courts. The prevailing party in any action shall be entitled to recover its reasonable attorneys’ fees and costs incurred.

16.10. Survival.

Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.

16.11. Interpretation.

Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.

 

Exhibit A
Data Protection Addendum

This Data Protection Addendum (“Addendum”) forms part of the (“Agreement”) between AdAction acting on its own behalf and as agent for each AdAction Affiliate; and Publisher on its own behalf and as agent for each Publisher Affiliate.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.

The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.

  1. Definitions.

1.1.             “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Publisher or AdAction respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

1.2.             “Controller,” “Processor,” “Data Subject,” “Personal Data,” “Processing,” “Supervisory Authority,” “Personal Data Breach,” and “Special Categories of Personal Data” shall have the same meaning as in the Data Protection Laws;

1.3.             “Data Protection Laws” shall mean Directive 95/46/EC and Directive 2002/58 /EC, in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”) and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA;

1.4.             “EEA” means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en;

1.5.             “Restricted Transfer” means the onward transfer of Personal Data that is located in the EEA to another party in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission;

1.6.             “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the contractual clauses.

1.7.             “Subprocessor” means any Processor appointed by either party acting as a Processor to the other party acting as Controller to Process Personal Data on behalf of the other party acting as Controller or such party’s Affiliate.

  1. Data Processing Terms.AdAction and Publisher are parties to the Agreement by which AdAction provides Services to Publisher and Publisher Affiliates. In performing their respective obligations under the Agreement, each party may receive Personal Data which may be subject to the Data Protection Laws. The parties acknowledge that AdAction acts as a Controller with respect to the Processing specified in AdAction’s privacy policy, and Publisher acts as a Controller with respect to Processing specified in the Agreement.  Where the Processing specified in AdAction’s privacy policy overlap with the Processing specified in the Agreement, the parties acknowledge and agree that both AdAction and Publisher will be considered Controllers of Personal Data with respect to the Processing. Each party shall only use or otherwise Process Personal Data in accordance with the permitted purposes set forth in this Addendum and in accordance with Data Protection Laws. Each party shall be individually and separately responsible for complying with the obligations under Data Protection Laws that apply to such party as a Controller or Processor, as applicable, in respect to certain types of Personal Data processed under the Agreement and this Addendum.
  2. Processing of Personal Data as Processor. Except as provided in Section 2 and when acting as a Processor to Publisher, AdAction shall not Process Personal Data other than on Publisher’s documented instructions unless Processing is required by Data Protection Laws to which AdAction is subject, in which case AdAction shall to the extent permitted by Data Protection Laws inform Publisher of that legal requirement before Processing Personal Data. For the avoidance of doubt, the Agreement and any related Order entered into by Publisher shall constitute documented instructions for the purposes of this Addendum.
  3. Consent for the Processing of Personal Data. As AdAction does not have a direct relationship with any Data Subject using or accessing Publisher Program, Publisher shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Publisher’s use and disclosure and AdAction’s Processing of Personal Data; and (2) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Personal Data to AdAction and to permit the processing of such Personal Data by AdAction for the purposes of performing AdAction’s obligations under the Agreement or as may be required by Data Protection Laws. Publisher shall notify AdAction of any changes in, or revocation of, the permission to use, disclose, or otherwise process Personal Data that would impact AdAction’s ability to comply with the Agreement, or applicable Data Protection Laws.
  4. Cookies and Notifications. As AdAction does not have a direct relationship with any Data Subject using or accessing Publisher Application, and in each case where consent is necessary for the use of cookies, other local storage, or collection of information from Data Subjects’ devices, Publisher shall obtain, and shall ensure that its Affiliates or Subcontractors enabled by Publisher using the Services pursuant to the Agreement, obtain, the specific, informed, unambiguous, and freely given consent of each Data Subject for the use of cookies and the collection of information from Data Subjects’ devices in connection with the Services. Publisher will have, and ensure that all of the Publisher Application contain, and will require that its Affiliates and Subcontractors enabled by Publisher using the Services pursuant to the Agreement, and their respective properties and platforms, contain appropriate, clear, concise, easily accessible notifications in accordance with Data Protection Laws that provide transparency to Data Subjects about what Personal Data is being processed by or on behalf of AdAction, the purpose of such Processing, and any other disclosures required by Data Protection Laws. In each case where Publisher uses any Personal Data sources from a third party in connection with the Services provided pursuant to the Agreement, Publisher shall ensure that such third party provide or obtain and shall ensure that such third party’s own sources of Personal Data provide or obtain, the notification or consent in accordance with the requirements of this Section 5.
  5. Confidentiality. Each party shall take reasonable steps to ensure that individuals that process Personal Data are subject to obligations of confidentiality or are under an appropriate obligation of confidentiality.
  6. Security. Each party shall implement and maintain all appropriate technical and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the Processing and the nature of the Personal Data, and to prevent unauthorized or unlawful Processing of Personal Data, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Data.
  7. Subprocessing. Each party hereby grants the other party general authorization to engage Subprocessors in connection with performing its obligations under the Agreement (including website hosting providers, credit card processors, marketing professionals, network infrastructure operators, providers of anti-fraud reporting services, analytics service providers, and other outsourced providers), provided that such party shall in each case ensure that: (1) such party enters into a written agreement with such Subprocessors that includes materially the same obligations as those in this Addendum; (2) such party remains fully responsible for such Subprocessors Processing activities under the Agreement; (3) such Subprocessors implement appropriate technical and organization security measures to protect Personal Data; and (4) such Subprocessors provide sufficient guarantees that such Subprocessors will Process Personal Data in a manner that will meet the requirements of applicable Data Protection Laws.
  8. Data Subject Rights. In the event a party receives a request from a Data Subject for Personal Data related to such Data Subject as permitted by any Data Protection Laws (a “Data Subject Request”), such party shall not share, transfer, disclose, or otherwise provide or permit access to Personal Data without the other party’s prior written consent. If either party receives a Data Subject Request relating to Personal Data in its control or possession, it shall promptly (and in any event within 5 days): (1) provide the other party with all information relating to the Data Subject Request; (2) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of Personal Data and the rights of the relevant Data Subject; and (3) provide any assistance reasonable requested by such party to take such steps.
  9. Personal Data Breach. Each party agrees to notify the other party without undue delay after becoming aware of the Personal Data Breach and to take reasonable steps to mitigate the impact of any Personal Data Breach that may impact the other party. To the extent a party seeks the assistance of the other party related to the investigation of a Personal Data Breach, the other party shall reasonably cooperate with such requesting party to: (1) determine the scope and severity of the Personal Data Breach; and (2) provide timely information and cooperation as the requesting party may require to fulfill the requesting party’s reporting and notification obligations under Data Protection Laws. Unless such party is required to give notice to individuals under Data Protection Laws, such party shall not give notice to individuals in respect to a Personal Data Breach, except with the prior written approval of the other party.
  10. Data Protection Impact Assessment and Prior Consultation. To the extent that a party considers that the Processing of Personal Data requires a data protection impact assessment to be undertaken or requires assistance with any prior consultations to any applicable Supervisory Authority, following written request from such party, the other party shall use reasonable commercial efforts to provide relevant information and assistance to the requesting party to fulfil such request.
  11. Deletion or Return of Personal Data. Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement, or at any time following the other party’s request, each party shall, at the other party’s option, delete or return all Personal Data and all copies to the other party.
  12. Relevant Records and Audit Rights. Each party shall make available to the other party on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by the requesting party of any premises where the Processing of Personal Data takes place in order to assess compliance with this Addendum. The parties shall reasonably cooperate in respect of any such audit in compliance with the obligations under this Addendum. The party that receives such request shall promptly inform the requesting party if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations. The requesting party agrees that: (1) audits may only occur during normal business hours, and where possible only after reasonable notice (not less than 20 days’ advance written notice); (2) audits will be conducted in a manner that does not have any adverse impact on normal business operations; and (3) the audit will comply with standard safety, confidentiality, and security procedures in conducting any such audits.
  13. International Data Transfer. In the event that either party initiates a Restricted Transfer of Personal Data, the parties shall enter into the Standard Contractual Clauses which terms shall take precedence over those in Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer or Personal Data to an entity located outside the EEA, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfe
  14. Warranties and Indemnity. Each party represents and warrants that it will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data. Each party (an “Indemnifying Party”) shall defend (through its own counsel), indemnify and hold harmless the other and the other’s officers, directors, employees, agents, representatives, service providers and affiliates (an “Indemnified Party”) from and against all liabilities, damages, losses, costs and expenses, including attorneys’ fees and other legal expenses (“Losses”), arising directly or indirectly from or in connection with any claims, actions or proceedings involving any alleged breach by the Indemnifying Party of its representations and warranties contained herein. In any defense with respect to any matter covered by this paragraph, the Indemnified Party may participate with counsel of its own choosing at its expense and the Indemnifying Party will not agree to any settlement which imposes any obligation or liability on the Indemnified Party without such Indemnified Party’s prior written consent, (such consent not to be unreasonably withheld or delayed). Each party shall promptly inform the other of any third party claims, actions, or proceedings to which it becomes aware that involves the other party as a result of this Addendum.
  15. Liability. The liability of the parties under or in connection with these Controller Terms will be subject to the exclusions and limitations of liability in the Agreement.
  16. General Terms. Any obligation imposed under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. To the extent that Data Protection Laws do not apply to the Processing of Personal Data, this Addendum shall be governed by the governing law of the Agreement. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (1) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (2) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.