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:
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:
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.
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:
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 email@example.com. You can further limit the advertisements you receive using the following methods:
8. RETENTION OF PERSONAL INFORMATION. AdAction retains your personal information:
9. OTHER INFORMATION.
AdAction Interactive LLC
Attn: AdAction Legal Department
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.
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:
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.
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.
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.
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:
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:
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.
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:
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.
Advertiser represents and warrants that:
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:
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:
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:
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.
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:
IN WITNESS WHEREOF, AdAction and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.
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.
1.1 “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.
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.
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
(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.;
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
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(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
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.
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.
1.1. “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.