Terms and Conditions
Advertiser Terms & Conditions
These Terms and Conditions (“Agreement” or "Terms") are a legally binding and enforceable agreement between AppLift GmbH Rosenstr. 17, 10178 Berlin (“Company”) and you (“Advertiser”).
1.1. “Action” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, etc. as defined in the applicable Insertion Order.
1.2. "Advertiser" means a party or parties which may obtain access to the Company Assets, as defined below, in order to market Advertiser's Content and provide additional services, under the terms of this Agreement and in accordance with the applicable Insertion Order (as defined herein). In any instance where Advertiser is an agency entering this Agreement on behalf of a client, any reference to "Advertiser" shall refer jointly to Advertiser as well as the applicable underlying client.
1.3. "Advertiser's Content" any related promotional materials and Content provided by Advertiser or on Advertiser's behalf, to be placed, displayed and promoted, including without limitations Advertiser’s marks, logos, brands and trade-names, as well as any website or information, including additional advertisement, to which such Content may link to, if applicable.
1.4. "Advertiser's Trademarks" including without limitations Advertiser’s marks, logos, brands and trade-names.
1.5. "Advertising Network" is a network of registered third party affiliates and publishers ("Media Partners") run by the Company, utilizing related technology and software.
1.6. "Claims" means claims, suits, demands and actions brought or tendered for defense or indemnification.
1.7. "Company Assets" means software application, service, web pages or digital placements owned by Company, properly licensed to Company or otherwise made available by Company, through the Advertising Network, Media Partners or other third parties, for the purpose of placing Content.
1.8. "Confidential Information" as defined in Company's website, under "Confidential Information".
1.9. "Content" means data, text, information, advertisements, graphics, links to third party sited or services, web pages, signs, images, software and code, technology, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship and components.
1.10. "Consideration” shall mean:
1.10.1. an amount which equals a fixed cost per thousand Impressions ("CPM") of Advertiser's Content, which are served and displayed to End Users under this Agreement; or
1.10.2. an amount which equals a fixed cost per clicks ("CPC") on Advertiser's Content by End Users under this Agreement; or
1.10.3. an amount which equals a fixed cost per Action ("CPA") by End Users under this Agreement;
1.10.4. an amount which equals a fixed cost per install ("CPI") by End Users under this Agreement;
Or any combination thereof, as detailed in the applicable Insertion Order or any other agreement between Company and Advertiser.
1.11. "DataLift 360 Platform" means Company's online platform, which Advertiser may receive access to in order to manage its campaign through the Company or create, launch and track campaigns on a self-serve basis, as detailed in an applicable Insertion Order.
1.12. "End User" means human end user who interacts with the Company Assets.
1.13. "Insertion Order" means a document (including an online registration page or order form) executed by both parties that specifies custom pricing and additional terms.
1.14. “Impressions” means the display of Advertiser's Content by the Company on Company's Assets to End Users as contemplated herein.
1.15. "Losses" means damages, losses, costs, and liabilities, including reasonable attorney and professional fees, arising from a Claim
1.16. "Party" means the Company or the Advertiser.
1.17. "Prohibited Activity" The activities listed in Company's website under "Prohibited Activity", which may be updated by the Company at its sole discretion from time to time.
1.18. "Prohibited Content" The content listed in Company's website under "Prohibited Content", which may be updated by the Company at its sole discretion from time to time.
1.19. "Proprietary Rights" means all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered marks and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and confidential business and technical information (including, without limitation, research and development, programming, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications); (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
1.20. "Store" means the Google Play Store or the App Store or any other online distribution platform, as applicable.
1.21. "Store Policies" means Google Play Content Policies (as available here: https://play.google.com/about/developer-content-policy/), or the App Store Review Guidelines, (as available here: https://developer.apple.com/app-store/review/guidelines/), as applicable.
2. Licenses and services
2.1. Subject to the terms and conditions of this Agreement, Advertiser hereby grants to Company during the Term, a limited, fully revocable, non-exclusive, non-transferable, non-sub-licensable, royalty-free, worldwide right and license to use, reproduce and distribute the Advertiser's Content through Company Assets and solely in connection with this Agreement. Advertiser reserves any rights not expressly granted and disclaims any implied license, including implied licenses to copyrighted materials, Advertiser's Trademarks and patents.
2.2. Advertiser acknowledges and agrees that: (i) the Advertiser's Content may be integrated to the Company Assets in conjunction with other content; (ii) unless otherwise stated in an applicable Insertion Order the frequency, positioning, order and placements of the Advertiser's Content on the Company Assets shall be determined by Company or its Media Partners, as applicable, at their respective sole discretion; (iii) Company shall have no obligation to review the Advertiser's Content.
2.3. The Company may make available to Advertiser certain features to assist Advertiser with generation, selection and optimization of End Users' targeting decisions ("Targeting"). Advertiser hereby acknowledges that the Advertiser is solely responsible for the Advertiser Content and the Targeting.
2.4. The Company may grant Advertiser a license to use the DataLift 360 Platform. The terms of the license and use of the DataLift 360 Platform shall be governed under this Agreement and the applicable Insertion Order relevant to the DataLift 360 Platform.
3. Advertiser Content Codes, Conversion Tracking and Tracking
3.1. Unless otherwise stated in writing by Company, each Advertiser's Content or link used by Company in connection with a specific campaign must include, in unaltered form, the special transaction computer code or tracking link provided by Company ("Ad Codes").
3.2. 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 Company to be used in connection with any and all Advertiser Content in order to track Actions.
3.3. Company's services under this Agreement do not involve investigating or resolving any claim or dispute involving Advertiser and any third party.
3.4. In case the Advertiser is working with several marketing partners, the Advertiser will ensure that all campaigns that run through Company, will be subject to the "last click wins principle". For the purpose of this sub-section, the "last click wins principle" shall mean that an Action will be attributed to the marketing partner which generated the last click of the respective End User before the Action took place.
3.5. When "server-to-server"/cookie-less/server based tracking is employed in order to track Actions, Advertiser has to ensure that all Actions are accurately tracked and timely reported to Company's system, including the correct unique ID used by Company in the tracking URL.
3.6. In case of technical problems or outages caused by either of the parties' systems which lead to a non-restorable loss of data regarding Actions, one of the following methods should be used to determine the correct number and attribution of Actions (to be applied in the order of their listing):
3.6.1. "Manual" matching of MAC addresses, IDFAs or any other unique identifiers that can be retrieved ex-post by the Media Partner and Advertiser in order to determine attribution and number of Actions;
3.6.2. Approximation based on historical conversion rate data (click-to-action) from Company's system in the following preferential order:
184.108.40.206. If available, from the same campaign; or
220.127.116.11. From the most comparable campaign for which historical data is available in Company's system. For the purpose of this article, "comparable" means that the campaign should be closely comparable with regards to the defined Action, product and platform, Geo locations, advertising methods used and Media Partners.
4. Intellectual Property
4.1. Except as expressly granted in the Agreement, Company retains all right, title and interest in and to the Company Assets and any versions, revisions, corrections, modifications or derivatives thereof, including any Proprietary Rights therein ("Company Property"). All rights in and to the Company Property which are not expressly granted herein are reserved by Company. Except as expressly granted in the Agreement, Advertiser retains all right, title and Interest in and to the Advertiser's Content, Advertiser's Trademarks and related Content thereof, including any Proprietary Rights therein. All rights in the Advertiser's Content, including any of Advertiser’s marks thereof, which are not expressly granted herein, are reserved by Advertiser. This Agreement does not convey any title or ownership rights to the other Party.
4.2. Neither party shall assert any Proprietary Rights in or to the other party’s Content, materials or any element, derivation, adaptation, variation or name thereof. Neither party shall have the right to remove, obscure or alter any notices of Proprietary Rights or disclaimers appearing in or on any Content or materials provided by the other party.
4.3. Neither party shall: (i) contest, or assist others to contest the other Party's rights or interests in and to the such Party's property and all applications, registrations or other legally recognized interests therein, or any element, derivation, adaptation, variation or name thereof; or (ii) seek to register, record, obtain or attempt to pursue any Proprietary Rights or protections in or to the other Party; or (iii) remove, obscure or alter any notices of proprietary rights or disclaimers appearing in or on the other Party's property.
5. Restrictions on Use
Advertiser shall not, or not allow any third party, to: (i) infiltrate, hack, copy, create derivative works of, reverse engineer, decompile, or disassemble or otherwise attempt to interfere with the proper operation of the Company Assets, or any part thereof for any purpose and shall not simulate or derive any source code or algorithms from the Company Assets; (ii) represent that it possess any proprietary interest in the Company Assets, or remove any notices or copyright information from the Company Assets; (iii) attempt to sell, resell, sublicense, modify, transfer, lease, assign, pledge, or share its rights under this Agreement; (iv) use any robot, spider, or other device to retrieve, index, scrape, data mine, or in any way gather information, Content, or other materials from the Company Assets; (v) take any action, directly or indirectly, to contest the Company's intellectual property rights or infringe them in any way; (vi) except as specifically permitted in writing by the Company, use the name, trademarks, trade-names, and logos or other proprietary rights of the Company; (vii) use the Company Assets for any Prohibited Activity or other unlawful, harassing, intrusive or abusive activities, or for any unauthorized purposes.
6. Term and Termination
6.1. This Agreement shall become effective as of the Effective Date, as specified in the Insertion Order, and shall remain effective until terminated pursuant to this section and as further provided in the accompanying Insertion Order (the "Term").
6.2. Either Party may terminate this Agreement; upon Two (2) days prior written notice to the other Party.
Following the termination of the Agreement, any provisions of the Agreement that in order to fulfill their purpose need to survive the termination of the Agreement, shall survive.
6.3. In the event of any termination:
6.3.1. Advertiser will pay Company all the Considerations amounts due and owing as of the termination date within seven (7) days according to terms of this Agreement;
6.3.2. Neither party will be liable to the other party or any other person or entity for damages resulting from the termination of the Agreement;
6.3.3. Each Party will have no obligation to maintain any information stored in its data centers related to the other Party;
6.3.4. Without derogating from the foregoing and subject to the terms of this Agreement, upon termination, all rights, licenses and obligations of the Parties shall cease, except that all obligations that accrued prior to the Effective Date of termination and remedies for breach of this Agreement shall survive.
6.3.5. Confidential Information of either party which is in the possession of the other party shall be immediately returned. If the Confidential Information is not returned, it should be maintained confidential in accordance with article 14.
7. Mutual Representations and Warranties
Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (iii) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms; (iv) it is the owner or has all legal rights and interest in its software, components, material or Content; and (v) to the best of its knowledge its software, components, material or services does not infringe or misappropriate the intellectual property or other proprietary rights of any third party when used by the other Party in accordance with the terms of this Agreement.
8. Company Representations and Warranties
8.1. Company hereby represents and warrants that it has the skills and will use reasonable efforts to perform its obligations hereunder as best as commercially possible. Company does not have any obligation to monitor any Content made available through or in connection with the Advertiser's Content, for any purpose and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of any such Content.
8.2. Company reserves the right, at its sole discretion and without liability, to reject or remove any Advertiser Content from the Company Assets. Advertiser acknowledges that any campaign may be terminated or suspended, whether by Company or its Media Partners, at any time and without notice to Advertiser. Advertiser hereby acknowledges that Company is acting as an intermediary between Advertisers and Media Partners and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties.
9. Advertiser Representations and Warranties
9.1. Advertiser hereby represents and warrants that: (i) any and all activities or obligations it undertakes in connection with the Agreement shall be performed in compliance with all applicable laws, rules and regulations, including, without limitation, privacy laws; (ii) the Advertiser's Content is in compliance with all applicable laws, rules and regulations as well as industry best practices, including, without limitation, the Children's Online Privacy Protection Act of 1998 ("COPPA") and CAN-SPAM Act of 2003 ("CAN-SPAM"); (iii) it owns or has the valid legal right or license to use and distribute the Advertiser's Content to the extent required or contemplated hereunder, and the Advertiser's Content do not and will not, during the term of the Agreement, infringe or violate any third party's Proprietary Rights or any other right of any person or entity, including but not limited to intellectual property rights, privacy and publicity rights, and shall fully comply with any third-party licenses, permits, guidelines and authorizations required. Advertiser is solely responsible for the Advertiser Content or technology that may be reached or linked via the Advertiser's Content; (iv) Company will not be responsible for any discrepancy or misleading actions with respect to the Advertiser's Content; (v) Advertiser's Content, related services and any other materials used by it in connection with or in relation to this Agreement will not contain, use or promote any Prohibited Content or engage, encourage or utilize any Prohibited Activity, as reasonably deemed by the Company to its sole discretion. Advertiser further represents that it employs all necessary monitoring and review procedures for the purpose of complying with the aforesaid.
9.2. Advertiser further represents and warrants that: (i) it shall submit the Advertiser Content in accordance with any technical specification provided by the Company; (ii) Any information the Advertiser provides the Company (including contact information or payment information) will at all times be complete and accurate, and will be maintained up-to-date at all times; (iii) it will not promote any mobile applications which are not available for download on the applicable Store. Upon removal of such application from the Store, Advertiser shall promptly inform Company of such occurrence and immediately cease to run the campaign associated with such application; (iv) it will not use the Company Assets to Sell, re-sell, lease, rent, sublicense, distribute, display or make any other use of Service or the Inventory, except as expressly permitted hereunder; (v) Copy, crawl, index, cache or store any information derived by Company, except as expressly permitted hereunder, or otherwise use robots, spiders, scraping or other technology to access or use the Company Assets to obtain any information beyond what Company provides Advertiser under the Agreement.
9.3. Advertiser acknowledges and agrees that Company may collect information about End Users which includes but is not limited to personally identifiable information as well as behavioral information for Company’s commercial or internal use.
9.4. Advertiser warrants and represents that when serving promotional Content to the End User in connection with the Advertiser's Content, Advertiser shall make commercially reasonable efforts to: (i) provide the End User with disable functionalities (e.g., close button, "X", etc.) that close the promotional Content and do not trigger new promotional Content; (ii) provide the End User with instructions concerning opt-out mechanisms.
10. Company's Assets
10.1. Subject to a two (2) business day's prior written notice, Company reserves the right, at its sole discretion, to add additional guidelines or requirements during the term hereof in the event the industry guidelines shall be updated.
10.2. Company shall have the right, at its sole discretion, to remove the Advertiser's Content from the Company Assets if: (i) Company receives a complaint from any third party regarding the Advertiser's Content, or any related Content; (ii) Company reasonably believes that promoting the Advertiser's Content will have an adverse impact on the Company Assets or Company’s reputation; (iii) the Advertiser's Content is in violation of the Agreement; (iv) the Advertiser's Content is in breach of any applicable law, rule or regulation, or industry best practices; or (v) the Advertiser's Content breaches any third party's right. Advertiser acknowledges and agrees that Company will not be liable for any damages or costs resulting from or connected to the removal of the Advertiser's Content in any manner to Advertiser or to any other third party.
10.3. Company represents and warrants that: (a) it shall make reasonable efforts to comply with all applicable laws, rules and regulations, including but not limited to, laws governing privacy, data collection, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right; (b) Company Assets, including among others, all Content provided therein do not and will not: (i) infringe upon misappropriate or otherwise violate Proprietary Rights of any third party, or infringe upon any applicable law; (ii) contain any virus, worms, Trojan horses, or any other computer code, files or programs designed to interrupt, hijack, malware, spyware, spam-ware, destroy, limit or adversely affect the functionality of any computer software, mobile device, hardware, network or telecommunications equipment.
11.1. Unless specified otherwise in the applicable Insertion Order, Company will provide a monthly invoice based on the Consideration model agreed upon between the parties. Payment will be due within seven (7) business days of the date appearing on each invoice.
11.2. Advertiser must timely pay all Considerations due to the Company, as specified in the Insertion Order, pursuant to the terms set out in the applicable Insertion Order(s) executed by the Parties.
11.3. All Considerations shall be calculated as detailed in the Insertion Order.
11.4. Advertiser shall submit to Company any disputes relating to the measurement or calculation of any Action, in writing or by email specifying the reason for such objection, including providing reasonable proof, by the 10th of the calendar month following the month in which the invoice was issued. If no such dispute has been made within the foregoing time period, the Action shall be deemed as accepted by Advertiser and billed accordingly. Any portion of a charge not disputed in good faith must be paid in full.
11.5. Advertiser will have no right to setoff, withhold or otherwise deduct any amount owed to Company hereunder (and accordingly transfer to Company when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by Company to Advertiser (under any theory of liability).
11.6. The Company reserves the right to charge additional fees and interest for the delay of payments. The Company will charge 40 EURO surcharge per invoice, plus the maximum interest rate legally possible according to German Law (gem. § 288(1,2) BGB), for each delayed invoice. In the event of any failure by Advertiser to make payment, Advertiser will also be responsible for all reasonable expenses (including attorneys' fees) incurred by Company in collecting such amounts.
11.7. Advertiser is solely responsible for paying all applicable taxes, duties or charges imposed or that may be imposed by any applicable governmental agency, political subdivision thereof or any authority therein having power to tax in connection with the Agreement.
11.8. All payments under this Agreement will be in U.S. Dollars unless agreed otherwise and inclusive of any applicable taxes, including or any other national, state or local tax expressly VAT.
11.9. Advertiser will provide the Company with accurate and complete billing information including a valid credit or debit card or any other payment method as further detailed in the applicable Insertion Order. If payment is made via a credit or debit card, Advertiser authorizes the Company to charge all Considerations incurred to the designated card and acknowledges that periodic (monthly or annual) Considerations may be charged automatically and without separate authorization unless otherwise provided on an applicable Insertion Order.
12. Disclaimer of warranties
12.1. To the maximum extent permitted by law, without derogating of any of the terms of this Agreement, the Company Assets are provided on an "as is" and "as available" basis, without warranties or conditions of any kind, either express or implied, including, without limitation, any warranties or conditions of title, performance, non-infringement of third party rights, merchantability or fitness for a particular purpose. In addition, Company does not represent or warrant that: (i) the Company Assets or any part therein will be error free or that any errors will be corrected or (ii) that the operation of the Company Assets or any part therein will be uninterrupted.
12.2. Each Party further expressly disclaims that the Advertiser's Content and/or Company Assets will be error-free or without interruption or that any errors in the Advertiser's Content and/or Company Assets be corrected, or that any information contained therein will be accurate or complete, without derogating of any of the terms of this Agreement.
12.3. Without derogating of any of the terms of this Agreement, to the extent the Advertiser's Content and/or Company Assets incorporates any third party materials or software that belongs to one or more third parties, then the materials or software are provided "AS IS" and subject to the terms and restrictions of the applicable third party. Each Party makes no warranty whatsoever regarding the third party materials or software, without derogating of any of the terms of this Agreement.
13. Limitation of Liability
13.1. To the extent permitted by law, in no event shall either Party be liable to the other Party for lost profits or business opportunities, loss of use, loss or inaccuracy of data, cost of procurement of substitute goods or services, software, systems or services, or for special, incidental, indirect, punitive or consequential damages, however caused, and under any theory of liability, whether for breach of contract, tort (products liability, strict liability and negligence), or otherwise, arising from or related with the Agreement, whether or not the Party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy stated herein.
13.2. Without derogating from any of the foregoing, in no event will the Company's aggregate liability for any Claim arising out of or related to the Agreement, to the fullest extent possible under applicable law, exceed the monthly average of Consideration made under this Agreement with respect to three (3) months preceding any Claim under which such liability shall arise. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or other damages, so the above limitations and exclusions may not apply.
13.3. No action arising under or relating to this Agreement, regardless of its form, may be brought by either Party more than three (3) month after the cause of action has accrued and in any event no later than three (3) months after the expiration and/or termination of this Agreement. The foregoing limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between the parties.
13.4. Company remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
14.1. Except as otherwise set forth in this Agreement, each Party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and its shareholders, directors, officers, employees and agents ("Indemnified Party"), from and against all Claims, and for all Losses that result or arise from Claims, commenced or prosecuted by any third party against the Indemnified Party, which in whole or in part, arise from or is related to a Claim of a third party for a breach of the Indemnifying Party's representations under this Agreement, reduced to a final adverse, non-appealable judgment made by a court of competent jurisdiction and actually borne by the Indemnified Party.
14.2. The Indemnified Party will: (i) promptly notify the Indemnifying Party of any Claim; (ii) provide the Indemnifying Party, at the cost of the Indemnifying Party, reasonable information and assistance in defending the Claim; and (iii) give the Indemnifying Party control over the defense and settlement of the Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior written approval, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Indemnified Party will not be required to allow Indemnifying Party to assume the control of the defense of a Claim, in which case the Indemnified Party will assume the control at Indemnifying Party's costs, to the extent that the Indemnified Party determines that: (1) such Claim relates directly to the Company Assets (if the Advertiser is the Indemnifying Party), or to the Advertising Content (if the Company is the Indemnifying Party); or (2) the relief sought against the Indemnified Party is not monetary damages; in addition, the Indemnified Party may join in the defense of any Claim at its own expense.
During the Term of this Agreement and thereafter, each Party agrees that it will not disclose or use the Confidential Information of the disclosing party without the disclosing Party's prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the Term and for a period of five (5) years thereafter to prevent the disclosure of the other Party’s Confidential Information other than to its employees, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section. The Confidentiality obligations herein shall survive any termination or expiration of this Agreement.
16.1. Advertiser recognizes that Company has proprietary relationships with Media Partners. Advertiser agrees not to circumvent Company's relationship with such Media Partners, or to otherwise solicit, purchase, contract for or obtain services similar to the services performed by Company hereunder from any Media Partners that is known, or should reasonably be known, by Advertiser to have such a relationship with Company, 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 Media Partners already provided such services to Advertiser prior to the date of the first Insertion Order executed by the parties, then Advertiser shall not be prohibited from continuing such relationship.
16.2. Advertiser agrees that monetary damages for a breach, or threatened breach, of this section will not be adequate by themselves and that Company shall be entitled to liquidate damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, as applicable, for the prior twelve (12) month period. If the respective period is shorter than 12 months, the amount due will be calculated based on the true duration of the partnership to an equivalent of 12 months. Advertiser has the right to prove that no or only substantial lower damages occurred and Company has the right to prove that higher damages occurred.
17. Independent Contractors
The Parties hereto are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the Parties, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party shall have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.
18. 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 Advertising 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.
19. Changes to the Agreement
Company may make changes to the Agreement from time to time, at its sole discretion. The most current version will be posted on Company's website. By continuing to access or use of the Company's services, as described in this Agreement after the changes become effective, the Advertiser agrees to be bound by the revised Agreement.
Each Party may not assign any of its rights or obligations hereunder without the prior written consent of the other Party and assignments in violation of the foregoing shall be void.
If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of this Agreement shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
22. Governing Law
This Agreement and any matters related hereto shall be governed by, and construed in accordance with laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for International Sale of Goods and German International Private Law are excluded. The courts of Berlin, Germany shall have exclusive jurisdiction, to the exclusion of any other court; however, Company is entitled to file a claim at the domicile of Advertiser as well.
23. Entire Agreement
This Agreement and applicable Insertion Order constitute the entire agreement between the Company and Advertiser with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Without derogating from the generality of the foregoing, in the event that the terms of this Agreement are in conflict to the terms of any other agreement, provision, quote, order, acknowledgment, or other communications between the parties, the terms provided herein shall prevail over such conflicting terms (even if the conflicting terms are incorporated in a written instrument signed by the parties herein after the execution of this Agreement unless the Parties specifically referred in such instrument to the name and date of this Agreement and to the amendment of its terms and conditions).
The captions and headings in this Agreement have been inserted for convenience only and shall not be deemed to limit or otherwise affect any of the provisions of this Agreement.
25. No waiver
No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the other Party. No waiver or consent by either Party to deviate from the provisions of this Agreement shall operate as a waiver of any subsequent right.
Advertiser Agreement was last revised June 2017
Media Partner Terms & Conditions
This Media Partner Terms & Conditions (the “Agreement") is made and entered into by and between AppLift GmbH, Rosenstr. 17, 10178 Berlin (“AppLift"), and you (“Media Partner" or “her"/"she"), the party submitting an application to become an AppLift media partner. The terms and conditions contained in this Agreement apply to your participation in AppLift's media partner program accessible at partner.staging3.applift.com or through other websites or applications AppLift may make available (“Media Partner Program"), being operated on AppLift's own or third party service provider online platform (“Advertising Platform"). Each Media Partner Program offer (an “Offer") may be for any offering by AppLift or a third party (each such third party a “Client") and may link to a specific web site for that particular Offer (“Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Media Partner Program that are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
1. Enrollment in the Media Partner Program
- You must submit a Media Partner Program application from our website. You must accurately complete the application to become an media partner (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Media Partner Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
- Media Partner must accurately complete the application to become a Media Partner (and provide us with future updates) and not use any aliases or other means to mask Media Partner's true identity or contact information.
- By filling in the application Media Partner submits a binding offer to enter into a contract with AppLift according to the terms and conditions of this Agreement.
- After AppLift reviews Media Partner's application, AppLift will notify him of his acceptance or rejection to the Media Partner Program, generally within two (2) business days.
- AppLift may accept or reject Media Partner's application at its sole discretion for any reason.
- AppLift offers its services to commercial Media Partners only. Consumers are not eligible to become a Media Partner.
2 Obligations of the Parties
a) Subject to our acceptance of you as a media partner and your continued compliance with the terms and conditions of this Agreement, AppLift agrees as follows:
- AppLift will make available to Media Partner via the Media Partner Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links") which Media Partner may display on web sites and apps owned or controlled by her, in emails sent by Media Partner and clearly identified as coming from her and in online advertisements (collectively, “Media"). The Links will serve to identify Media Partner as a member of AppLift's Media Partner Program and will establish a link from her Media to the Program Web Site.
- AppLift will pay Media Partner for each Qualified Action (the “Commission") an amount as defined in the respective Offer's description. A “Qualified Action" means an action as defined in the Offer's description performed by an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by AppLift and (v) is not later determined by AppLift to be fraudulent, incomplete, unqualified or a duplicate.
- AppLift will pay Media Partner any Commissions earned monthly, provided that her account balance is currently greater than 100 USD. Accounts with a balance of less than 100 USD will roll over to the next month, and will continue to roll over monthly until 100 USD is reached. Since AppLift will endeavor to pay out Commissions to the Media Partner as early as possible, this cannot be done unconditionally. AppLift therefore reserves the right to charge back to Media Partner's account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. In case Media Partner's later account balance is lower than the due charge back amount she is obliged to transfer the due amount back to AppLift upon request within no more than 7 business days. AppLift reserves the right to claim charge backs for up to 3 months after the respective Qualified Action has been performed by the user. AppLift also reserves the right to reclaim a payment at a later date within the statutory limitation periods if AppLift can show that the payment to the Media Partner was not based on a payment claim due to a Qualified Action.
- In case AppLift is obliged to pay back monies already collected to Clients, banks, or payment providers, such monies are deductible in the month they are paid back. The same applies in respect of monies paid back to Clients, banks, or payment providers in the event that AppLift agrees to do so on a bona fide basis to settle a dispute, unless such settlement is not reasonable, and the Media Partner contradicts in writing within 10 business days upon being informed. Circumstances which oblige AppLift to pay back monies to Clients include alleged abuse or other instances of fraud for which AppLift is not responsible, as well as refunds. Circumstances which oblige AppLift to pay back monies to payment providers or banks include credit card or debit card fraud committed by Media Partners or their agents, and “Chargebacks". Chargebacks mean any credit or debit card transactions that are returned for reimbursement of the cardholder's account for any reason.
- Payment for Commissions is dependent upon Clients providing such funds to AppLift, and therefore, if a Client does not provide sufficient funds, AppLift will pay the Commissions for the relevant Media Partner Programs to all Media Partners on a pro rata basis, if necessary. If the Client does not provide sufficient funds to AppLift within 2 weeks, the Media Partner shall be entitled to claim payment from the Client directly and is obliged to do so before making any claim against AppLift. In this case, if requested to do so, AppLift shall assign its claims against the Client to the Media Partner in a sum equivalent to the amount due to the Media Partner. The Media Partner is not obliged to make a claim against the Client directly if such claim is clearly without a chance of success due to the Client being destitute.
- The Media Partner shall be solely responsible for the payment of, and shall pay when due and indemnify AppLift against, all applicable taxes, including any VAT and other sales, use, excise or transfer taxes and other taxes associated with payments to Media Partner under the Agreement (except for taxes assessed on AppLift's net income).
- AppLift shall automatically generate an invoice on behalf of Media Partner for all Commissions payable under this Agreement and shall remit payment to Media Partner based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by AppLift in its reasonable discretion.
- In the event that Media Partner disputes in good faith any portion of an invoice, Media Partner must submit that dispute to AppLift in writing and in sufficient detail within 14 days of the date on the invoice. If Media Partner does not dispute the invoice as set forth herein, then Media Partner agrees that it irrevocably waives any claims based upon that invoice.
- In the event that Media Partner is also tracking Qualified Actions and Media Partner claims a discrepancy, Media Partner must provide AppLift with Media Partner 's reports within three (3) days after 30th day of the calendar month, and if AppLift's and Media Partner 's reported statistics vary by more than 10% and AppLift reasonably determines that Media Partner has used generally accepted industry methods to track Qualified Actions, then AppLift and Media Partner agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then AppLift's numbers shall govern.
- If Media Partner has an outstanding balance due to AppLift under this Agreement or any other agreement between the Media Partner and AppLift, whether or not related to the Media Partner Program, Media Partner agrees that AppLift may offset any such amounts due to AppLift from amounts payable to Media Partner under this Agreement.
- By and rendering the services according to this Agreement, AppLift acts only as an agent between the Client and the Media Partner. The Client itself is solely responsible for submitting offers for Advertising Programs to the Media Partner. AppLift has no influence in this regard and thus provides no guarantee that offers, and thus Advertising Programs, will be available in satisfactory quantity.
- AppLift does not allow Clients to transmit any Advertisement through the Advertising Platform to the Media Partner that is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene, or to link their Advertisements to such content. Upon being informed thereof, AppLift shall promptly remove any Advertisement containing such content. The Media Partner does not have any other claims against AppLift. The Media Partner acknowledges that AppLift does not constantly control all Advertisements and the respective links, as Clients have the possibility to upload Advertisements.
- The Media Partner can request AppLift to block Links from a list of specified Clients (“Blocked Clients"). Such list may be updated by the Media Partner at any time. The updated list becomes binding for AppLift only once the Media Partner has transmitted it to AppLift through electronic tools provided by AppLift. In the event that Links from Blocked Clients is displayed by the Advertising Platform on the Media, the Media Partner shall inform AppLift without undue delay, and provide appropriate documentation.
- AppLift shall use commercially reasonable efforts to block Links, from the collection of Links provided to the Media Partner for display on the Media, from Blocked Domains.
- AppLift takes reasonable measures to protect its systems against viruses, spyware and other malicious code (together “Malicious Code"), and shall take reasonable measures to check, or have its Clients check, all Links delivered through its systems to the Media Partner, for Malicious Code. However, the Media Partner acknowledges that Malicious Code can never be completely prevented. It is the Media Partner's responsibility to protect all data stored on its systems against unauthorized access, and data loss. The Media Partner shall make its users waive, as far as legally permissible, all potential claims against AppLift based on Malicious Code, and inform its users as to appropriate measures to protect their systems.
- Unauthorized third parties may send e-mails under the name of AppLift, without AppLift's knowledge or consent, and such e-mails may contain Malicious Code or links to web content which, in turn, contains Malicious Code. AppLift cannot prevent such behaviour. The Media Partner shall, therefore, recommend its users to check all incoming e-mail for Malicious Code prior to opening them.
b) Media Partner also agrees to:
- Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, Media Partner's Media.
- Ensure that all materials posted on Media Partner's Media or otherwise used in connection with the Media Partner Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling where applicable), contains profanity or otherwise contains materials that AppLift informs Media Partner that it considers objectionable (collectively, “Objectionable Content").
- Accept that AppLift neither endorses nor approves of actions performed or content made available by the Media Partner.
- Hold AppLift harmless of any third party claims alleging the Media Partner Media contains illegal content.
- Not make any representations, warranties or other statements concerning AppLift or Client or any of their respective products or services, except as expressly authorized herein.
- Make sure that Media Partner's Media does not copy or resemble the look and feel of the Program Web Site or create the impression that Media Partner's Media is endorsed by AppLift or Clients or a part of the Program Web Site, without prior written permission from AppLift.
- Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to Media Partner's business, her Media or her use of the Links.
- Comply with the terms, conditions, guidelines and policies of any third party services (if any) used by Media Partner in connection with the Media Partner Program, including but not limited to, email providers, social networking services and ad networks.
- Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by AppLift or Client, or as required by applicable laws regarding such Offers.
- Make sure to not place AppLift ads on any online auction platform (i.e. eBay, Amazon, etc).
c) The following additional program-specific terms shall apply to any promotional programs set forth below:
- Email Campaigns. For all email campaigns, Media Partner must – if available – download the “Suppression List" from the Offers section of AppLift. Media Partner shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. AppLift will provide an opt-out method in all Links, however, if any opt-out requests come directly to Media Partner, Media Partner shall immediately forward them to AppLift at firstname.lastname@example.org. Media Partner's emails containing the Links may not include any content other than the Links, except as required by applicable law.
- Media Partner agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Media Partner Program, possible legal action and any other rights or remedies available to AppLift pursuant to this Agreement or otherwise. Media Partner further agrees that it will not mail or market to any suppression files generated through the AppLift network, and that doing so may result in Commission withholdings, removal or suspension from the Media Partner Program, possible legal action and any other rights or remedies available to AppLift pursuant to this Agreement or otherwise.
- Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by AppLift in writing. Any pop-ups/unders used for the Media Partner Program shall be clearly identified as Media Partner served in the title bar of the window and any client-side ad serving software used by Media Partner shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted end user license agreement and the software be easily removed according to generally accepted methods.
- Media Partner Network Campaigns. All Media Partner s that maintain their own Media Partner networks and intend to broker AppLift's offers through their network need prior written approval from AppLift. In case approval is granted, Media Partner agrees to place the Links in its Media Partner network (the “Network") for access and use by those Media Partners in Media Partner's Network (each a “Third Party Media Partner “). If Third Party Media Partner is itself a network (and thus working with further Third Party Media Partners), then Media Partner needs to get prior written approval from AppLift for each one of those Third Party Media Partner Networks. Media Partner agrees that it will expressly forbid any Third Party Media Partner to modify the Links in any way. Media Partner agrees to maintain its Network according to the highest industry standards. Media Partner shall not permit any party to be a Third Party Media Partner whose web site or business model involves content containing Objectionable Content. All Third Party Media Partners must be in good standing with Media Partner. Media Partner must require and confirm that all Third Party Media Partners affirmatively accept, through verifiable means, terms at least equivalent to those in this Agreement prior to obtaining access to the Links. Media Partner shall promptly terminate any agreement with a Third Party Media Partner who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Media Partner with respect to the Links, Media Partner shall promptly disclose to AppLift the identity and contact information for such Third Party Media Partner. Media Partner shall promptly remove any Third Party Media Partner from the Media Partner Program and terminate their access to future Offers of AppLift in the Network upon written notice from AppLift. Unless AppLift has been provided with all truthful and complete contact information for a Third Party Media Partner and such Third Party Media Partner has affirmatively accepted terms at least equivalent to those in this Agreement as recorded by AppLift, Media Partner shall remain liable for all acts or omissions of any Third Party Media Partner.
- Incentive Traffic: Media Partner acknowledges that AppLift is a non-incentivized traffic network. This means, that Media Partner is not allowed to provide incentives (e.g. virtual or real currency) to his or her users for performing any actions resulting in a successful conversion event. Conversions achieved through providing incentives will therefore be treated as invalid and may lead to the exclusion of Media Partner from AppLifts' network. This applies to all offers unless incentive traffic is explicitly approved in the offer description. AppLift may explicitly approve incentive traffic for certain offers in writing (e.g. via Email) on a case by case basis. Media Partner will generally receive lower payouts for incentive traffic, details will be specified within the offer description or in separate Email.
- Unless otherwise agreed upon, Media Partner may not use any self-generated creative assets that have not explicitly been approved by AppLift. Self-generated creative assets that do fully comply with the advertizers' marketing message and brand identity and are therefore only adjusted variations of the creative material provided in the offer description will generally be approved.
3. Confidentiality, Non-Circumvention
- Except as otherwise provided in this Agreement or with the consent of AppLift, Media Partner agrees that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning AppLift or any of AppLift's clients and/or partners provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Media Partner for any purpose other than her participation in the Media Partner Program.
- Media Partner shall especially not use any information obtained from the Media Partner Program to develop, enhance or operate a service that competes with the Media Partner Program, or assist another party to do the same.
- After and during the term of the Agreement, neither party will use for any purpose or disclose to any third party, any Confidential Information of the other party. Any exception to this must be obtained in advance.
- The foregoing restriction does not apply to information that has been developed independently by the receiving party without access to the other party's Confidential Information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of this Sect. 3 by the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
- Media Partner explicitly agrees to withhold completely from entering into a business relation with or from approaching AppLift's clients either directly or through third parties with regard to user acquisition or performance marketing services for the term of this Agreement and a period of time of six months after the end of this agreement.
- Any direct or indirect business relations between Media Partner and AppLift's clients with regard to the above named services have to either involve AppLift as intermediary or require AppLift's prior written consent.
- This also extends to any other companies founded, in whole or in part held, controlled or administered directly or indirectly by Media Partner, as long as Media Partner is able to prevent such actions against the interests of AppLift.
- Media Partner is personally responsible to follow this commitment and must not use any means to circumvent his obligation.
- Breach of this clause will result in a contractual penalty to be determined by an independent court in AppLifts' residential country and should not be less than twice the financial loss caused through this unauthorized action with a minimum fee of 750,00 EUR.
- An obligation to reimburse damages will thereby not be excluded. This also applies to any rights granted to AppLift by Sect. 87 ff. German Commercial Code (Handelsgesetzbuch, HGB).
- In case Media Partner can prove having entered into a business relation with AppLift's client (the advertiser) before entering into a business relation with AppLift, this clause should not be enforced.
4. Limited License & Intellectual Property
- AppLift grants Media Partner a nonexclusive, nontransferable, revocable right to use the Links and to access AppLift's web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying Media Partner's Media as a participant in the Media Partner Program and assisting in increasing sales through the Program Web Site. AppLift does not grant to the Media Partner any license, express or implied, to the intellectual or industrial property of AppLift or its licensors, except for a limited right of use according to the terms and for the duration of the Agreement.
- Media Partner may not alter, modify, manipulate or create derivative works of the Links or any AppLift graphics, creative, copy or other materials owned by, or licensed to, AppLift in any way. Furthermore, Media Partner agrees not to modify, alter, create or copy derivative works of the provided data, information, content or software of the Advertising Platform.
- Media Partner is only entitled to use the Links to the extent that she is a member in good standing of the Media Partner Program. AppLift may revoke Media Partner's license anytime by giving her written notice. Media Partner agrees that she will use any data (including any usage data and compilations thereof), information or software, provided by AppLift to her, only for the purpose of providing and optimizing Links for AppLift on her Media according to the Agreement.
- Except as expressly stated herein, nothing in this Agreement is intended to grant Media Partner any rights to any of AppLift's trademarks, service marks, copyrights, patents or trade secrets.
- By registering, Media Partner grants AppLift the right to name her as a reference for AppLift's services. This includes the right to use the Media Partner's logo on AppLift's websites and show advertising best practices to other Media Partners of AppLift. The Media Partner may revoke this right at any time, in writing, for any future use. Media Partner agrees that AppLift may use any suggestion, comment or recommendation she chooses to provide to AppLift without compensation.
- All rights not expressly granted in this Agreement are reserved by AppLift. AppLift will retain all rights, title, and interests in and to the Advertising Platform (except for any licensed content and third-party Advertisements included therein), including all data (such as any usage data and compilations thereof), information and software related thereto. The Media Partner acknowledges that the software, information, content and data related to the Advertising Platform (such as any usage data or compilations thereof) are protected for AppLift under copyright and similar rights and may contain trade secrets or other intellectual or industrial property owned or licensed by AppLift.
- This Agreement shall commence on the date of AppLift's approval of Media Partner's Media Partner Program application and shall continue thereafter until terminated as provided herein.
- Each party has the right to terminate the Agreement at any time with immediate effect, unless otherwise agreed upon. Media Partner may terminate her participation in the Media Partner Program at any time by sending written notice to her account manager. AppLift may terminate Media Partner's participation in one or more Offers or this Agreement at any time and for any reason which AppLift deems appropriate with or without prior notice to Media Partner by disabling the Links or providing her with a written notice.
- The parties remain free to terminate the Agreement for cause at any time.
- In case AppLift is responsible for a termination of the Agreement for cause, all outstanding amounts shall be paid out, provided those amounts were earned through qualified actions as defined in §2.a.3. The Media Partner shall not have any other claims, unless otherwise provided in the Agreement.
- AppLift may terminate the Agreement in particular for, but not limited to, the following reasons:
- The Media Partner culpably breaches any legal rule, or the Agreement, and such breach remains unremedied despite written notice (possibly via e-mail); a written notice is not required in case of a severe contravention, i.e. when it would be unreasonable that AppLift remains bound by the Agreement.
- The Media Partner encourages fraud (as defined in Sect. 8).
- The Media Partner has not used its account for six months despite a reminder.
- Cases in which it would be unreasonable for AppLift to remain bound by the Agreement generally include infringements of Sect. 2 b) 2., 2. b) 4., and 4.2 of the Agreement.
- In case AppLift rightfully declares termination for cause, AppLift is entitled to withhold 50 % percent of all Commission still payable to the Media Partner as damages. The Media Partner remains free to prove that no, or only substantially lower damages, were suffered.
- If there is no option to terminate the Agreement within the Advertising Platform, the termination has to be declared in writing. A termination for cause can only be declared in writing. E-mail is sufficient.
- Upon termination of Media Partner's participation in one or more Offers or this Agreement for any reason, she will immediately cease all use of and delete all Links, plus all AppLift or Client intellectual property, and will cease representing herself as an AppLift or Client Media Partner for such one or more Offers.
- In addition to any other rights and remedies available to AppLift under this Agreement and by law AppLift reserves the right to delete any actions submitted through Media Partner's Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to Media Partner account if (i) AppLift determines that she has violated this Agreement, (ii) AppLift receives any complaints about her participation in the Media Partner Program which AppLift reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Media Partner Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach.
- In the event of a material breach of this Agreement, AppLift reserves the right to disclose Media Partner's identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by her actions.
7. Anti-Spam Policy
- Media Partner must strictly comply with the law in regard to sending email and other messages. All emails sent in connection with the Media Partner Program must especially include the appropriate party's opt-out link. From time to time, AppLift may request – prior to Media Partner sending emails containing linking or referencing the Media Partner Program that Media Partner submits the final version of her email to AppLift for approval by sending it to her AppLift representative and upon receiving written approval from AppLift of her email the email may be transmitted to third parties.
- It is solely Media Partner's obligation to ensure that the email complies with the law. Media Partner agrees not to rely upon AppLift's approval of her email for compliance with the law, or assert any claim that she is in compliance with the law based upon AppLift's approval.
- Media Partner is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Media Partners or falsify information in connection with referrals through the Links or the generation of Commissions or exceed her permitted access to the Media Partner Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks and/or actions through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud.
- AppLift shall make all determinations about fraudulent activity in its reasonable discretion.
9. Representations and Warranties
- Media Partner hereby represents and warrants that this Agreement constitutes her legal, valid, and binding obligation, enforceable against her in accordance with its terms and that Media Partner has the authority to enter into this Agreement.
- Subject to the other terms and conditions of this Agreement, AppLift represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to AppLift's own business operations or AppLift's proprietary products or services.
- Each log-in to the Advertising Platform is subject to the Agreement. The Agreement can be printed or saved on storage media.
- AppLift may make changes to the Agreement (including amendments) at any given time, for the future, if this should prove necessary (in particular to reflect changes in the Advertising Platform or changes in the legal framework applicable to it, such as new legislation or case-law) and provided the Media Partner is not disadvantaged contrary to good faith.
- The Media Partner will be notified of changes to the Agreement in appropriate written form (possibly via e-mail). AppLift will notify the Media Partner on the Advertising Platform, or via e-mail. Changes to the Agreement will always be highlighted upon first login after the changes or amendments have been made.
- The Media Partner may dispute changes to the Agreement within a time period of two weeks following receipt the notification of the changes and the possibility of taking notice thereof. It is recommended that the Media Partner submits its opposition in writing (for example via e-mail).
- The changes to the Agreement become binding in the event that the Media Partner (i) does not dispute the changes within the above-mentioned time period or (ii) continues to use the Advertising Platform or (iii) continues to place Links on the Media, after having received the notification of the changes to the Agreement without having disputed the changes.
- AppLift will inform the Media Partner about the possibility of disputing the changes and the legal consequences, especially the legal consequences of a lack of opposition, when notifying the Media Partner about the changes to the Agreement.
- If the Media Partner disputes the changes in time, each party may terminate the Agreement with one month's prior notice unless termination is possible at any time according to Sect. 5. Until termination, the Agreement in their former version will govern the Media Partner's relationship with AppLift. The Media Partner does not have any other claims against AppLift.
- In addition, AppLift may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Media Partner agrees to promptly implement any request from AppLift to remove, alter or modify any Link, graphic or banner ad that is being used by Media Partner as part of the Media Partner Program.
- Unless otherwise provided in the Agreement, AppLift will usually communicate with the Media Partner via e-mail. The Media Partner shall make sure that it receives all e-mails sent by AppLift to the address submitted in the course of the application, or at a later date. The Media Partner will in particular configure the spam filter accordingly and regularly check all incoming e-mail under this address. AppLift may choose any other appropriate means of communication.
11. Independent Investigation
- Media Partner acknowledges that she has read this Agreement and agrees to all its terms and conditions.
- Media Partner has independently evaluated the desirability of participating in the Media Partner Program and each Offer and is not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Media Partner Program.
12. Claims Based on Defects
- AppLift grants the Media Partner access to the Advertising Platform in the then current version only (see Sect. 14). The Media Partner cannot claim that a given state or functional range is maintained or achieved. The Media Partner acknowledges that the Advertising Platform, as any other software, can never be completely free of bugs. Therefore, the Advertising Platform can only be considered to be defective if its usability is affected severely and for a significant period of time. This is especially the case if the mathematical calculation or the display of the Media Partner's Commission (see § 7) is incorrect, unless the error is negligible.
- The Media Partner shall document any faults in the Advertising Platform, and report them in writing (along with a log of the error messages displayed, if applicable). Before reporting a potential bug, the Media Partner will consult the instruction and other troubleshooting tools provided by AppLift (especially frequently asked question lists, forums and boards for troubleshooting). The Media Partner will use its best efforts to support AppLift in any attempts to debug.
- The Media Partner will notify AppLift of any faults, without undue delay upon discovery, in writing (fax, letter or e-mail). To comply with this, it is sufficient that the report is sent in time. If no notice has been given within this deadline, all claims based on such defects shall forfeit.
- AppLift is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by AppLift.
- The Media Partner is liable for any costs incurred by AppLift based on incorrect reports by the Media Partner, especially in the event that there is no defect, or the defect has been caused by the Media Partner itself.
- AppLift does not assume any warranties.
13. Mutual Indemnification
- Media Partner hereby agrees to indemnify, defend and hold harmless AppLift and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Media Partner herein, (ii) any misuse by Media Partner, or by a party under the reasonable control of Media Partner or obtaining access through Media Partner, of the Links, Offers or AppLift or Client intellectual property, or (iii) any claim related to Media Partner's Media, including but not limited to, the content contained on such Media (except for the Links).
- AppLift hereby agrees to indemnify, defend and hold harmless Media Partner and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that AppLift is not authorized to provide Media Partner with the Links.
- The indemnifying party has the right, at the indemnifying party's expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party. The indemnified party agrees to cooperate with the indemnifying party's defense of such claims.
14. Technical and Commercial Limitations; Changes; Availability
- Unless otherwise provided for in this Agreement, AppLift provides the Advertising Platform on an “AS IS" and “AS AVAILABLE" basis.
- AAppLift offers the Media Partner use of the Advertising Platform over the Internet subject to technical and commercial limitations as defined below.
- AppLift may modify the Advertising Platform without prior notice. Therefore, the Media Partner is granted a right of use only for the then current version. The Media Partner may reduce or cease its use of the Advertising Platform in the event that those are modified.
- AppLift reserves its right to cease operation of the Advertising Platform at any time, without giving reasons or prior notice. Any balance owed to the Media Partner will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement.
- AppLift undertakes to assure an availability of the Advertising Platform of 95% (ninety percent) as a yearly average. Periods during which the Advertising Platform are not available because of technical or other problems outside AppLift's control (such as force majeure or third party fault) and periods during which routine maintenance works are carried out, are excluded from this. AppLift may restrict access to the Advertising Platform if required for network security, maintenance of network integrity and the prevention of severe malfunction of the network, the software or stored data. The Media Partner's rights in case of intent or gross negligence remain unaffected.
15. Limitation of Liability
- AppLift is not responsible for damages, unless they are caused intentionally or by gross negligence.
- Liability for breach of a cardinal obligation or an essential obligation is limited to the damage which could have been foreseen. A cardinal obligation is an obligation whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may normally trust.
- The damage which can be foreseen is limited to EUR 2,500.00 per Media Partner.
- The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of AppLift and their members.
- The aforementioned limitations of liability determined in Sect. 15.1 to 15.4 do not apply to the liability for personal injury of life, body, and health. The limitation of liability pursuant to Sect. Sect. 15.1 and 15.4 does not apply in case the damage is the result of a breach of a cardinal obligation, an essential obligation or a guarantee. AppLift remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
16. Data Protection
- The Media Partner agrees to provide AppLift, and/or the Clients on request, with figures regarding delivery, the number of clicks, and other advertising-related data.
- The Media Partner shall store all data reported by AppLift through the Advertising Platform (including user data and usage data) in conformity with all legal requirements.
- The Media Partner shall not transmit any personal data (i.e. data allowing identification of an individual) to AppLift, unless data protection laws allow for such transmission.
- The Media Partner acknowledges that AppLift and/or the Clients may store user data and usage data, which they collect automatically or through forms filled in by the users.
- The Media Partner acknowledges that AppLift and/or the Clients may use such data to optimize their offers and services, to better target users with Advertisements which better match their interests, and for statistical purposes, market research, and the promotion of their respective goods and services.
- The Media Partner acknowledges that AppLift and/or the Clients may use e-mail addresses and other contact data submitted by the users for marketing and promotion, as far as allowed by applicable law.
17. Protection of Login Data
- The Media Partner shall keep all access data (login, passwords etc.) for the Advertising Platform (“Access Data") strictly confidential. The Media Partner shall promptly inform AppLift in case it learns or suspects that an unauthorized third person is in possession of the Access Data.
- In case AppLift has reason to believe that an unauthorized third party is in possession of Access Data, AppLift may, without assuming any responsibility to do so, and always acting in its sole discretion, change the Access Data without prior notice or block the respective account. AppLift will promptly inform the Media Partner and will, upon request, communicate the new Access Data to the Media Partner without undue delay. The Media Partner cannot claim to have its initial Access Data restored.
- In case a third party uses, through the Media Partner's fault, the Media Partner's Access Data, the Media Partner is liable for all such actions, and for damages. In such event, all access through the Media Partner's Access Data shall be considered as an access by the Media Partner.
18. Governing Law & Miscellaneous
- The courts of Berlin, Germany, shall have exclusive jurisdiction.
- The laws of the Federal Republic of Germany apply for all contracts concluded by AppLift on the basis of the Agreement and any claims arising therefrom, and for all claims related to the use of the Advertising Platform. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded.
- This Agreement contains the entire agreement between AppLift and Media Partner with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Terms and conditions of the Media Partner do not become part of the Agreement, unless AppLift has accepted them in writing.
- All or any of AppLift's rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the Advertising Platform in a merger, acquisition or sale of all or substantially all of AppLift's assets. The Media Partner must not assign or transfer the Agreement or any or all of its rights thereunder without the prior written consent of AppLift. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.
- Except as set forth in the “Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. Any changes, amendments or the abrogation of the Agreement (partly or entirely) require written form (letter, fax or e-mail); the requirement of written form can only be waived in written form.
- If any provision of this Agreement is held by a court of competent jurisdiction to be unlawful, void, invalid or inoperative, then in such jurisdiction that provision shall be deemed severable from the Agreement and the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.
- Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
- AppLift's failure to act with respect to a breach by the Media Partner does not waive AppLift's right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by AppLift under the Agreement shall be deemed effective unless delivered in writing and signed by a duly appointed representative of AppLift.
- Section headings used in the Agreement are for convenience only and shall not affect the interpretation of the Agreement.
- The English version of the Agreement is decisive.
- By submitting and application to Media Partner Program, Media Partner affirms and acknowledges that she has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If Media Partner does not wish to be bound by this Agreement, she should not submit an application to Media Partner Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
General Terms and Conditions for Raffles
Participating in a Raffle offered by the Promoter on social media (Facebook etc.) is subject to the following Terms and Conditions as well as to any additional terms and conditions indicated in the details of the raffle:
1. Entry and Entry Requirements
1.1 The purchase of a product or service or the subscription to a newsletter is not a requirement for entry into a Raffle nor does it increase an Entrant's chance of winning.
1.2 If you (“Entrant" or “You") wish to enter into the Raffle, follow the instructions in the social media post.
1.3 Entry is open only to persons over 18. Entry can be made in the Entrant's own name or company's name. Entry is not open to employees of AppLift and all other persons engaged in developing/carrying out the Raffle (e. g. agencies, consultants, and suppliers), their immediate families and members of their households.
1.4 It is a mandatory requirement for valid entries that, when required, all personal details provided by the Entrant are true and correct.
1.5 AppLift is entitled to exclude any Entrant from participating in the Raffle who manipulates, or tries to manipulate, the entry process or the draw, or violates the Terms and Conditions or public morality, or otherwise tries to influence the Raffle in any unfair or dishonest manner. 1.6 Entry into the Raffle is free.
1.7 Only one entry per person is allowed.
2. How the Draw is carried out
2.1 The lucky winner will be chosen at random from all entries which fulfil the entry requirements. AppLift reserves the right to verify whether or not the entry requirements have been fulfilled.
2.2 The prize(s) available is/are specified on the social media posting. The description and image of the prize provided are merely symbolic and not binding. No cash alternatives will be offered. The winner's entitlement to the prize is not transferable.
2.4 All winners will be notified after the draw date either by email to the email address provided or by post to the postal address provided.
2.5 The winner shall within 30 days after notification (i) contact AppLift to receive their prize if he/she is instructed to do so when notified on Facebook. Otherwise the prize shall be deemed as unclaimed and a supplementary winner may be drawn.
AppLift shall be liable only for damages caused by wilful or grossly negligent conduct. This limited liability shall not apply to damages resulting from damage to life, body and/or health, or from the violation of any material obligation. Liability for a negligent violation of any material obligation shall be limited to foreseeable damages.
4. Premature Termination of the Raffle
4.1 AppLift reserves the right to end or suspend the Raffle at any time without prior notice. This shall apply, in particular, if the proper operation of the Raffle cannot be guaranteed due to technical reasons (e. g. viruses in the computer system; manipulation or errors affecting the hardware and/or software), or due to legal reasons.
4.2 Save as provided in Section 3 above, the Entrant cannot claim performance or damages if the Raffle is terminated prematurely pursuant to Subsection 4.1.
5. Data Protection
5.1 Being a responsible entity as defined by the German Federal Data Protection Act, AppLift collects, processes, and uses, all personal data disclosed to AppLift in connection with the Raffle only in compliance with the applicable laws and regulations referring to data protection. For the purpose of these Terms and Conditions, Personal Data include the following personal data You provide in connection with the Raffle: first name and last name, date of birth, street address, postal code, place, country, and email address, as well as data which are created in connection with your entry, such as your status as an Entrant or winner if applicable. AppLift will not disclose your personal data to any third party. Your personal data will be collected, processed and used exclusively for the purpose of carrying out the Raffle.
5.2 You are entitled by law to request free information about the personal data We have stored in relation to your person, and to request that We correct, block or delete these personal data. Please contact AppLift if You want to claim any of these rights referred to above.
5.3 If You request that your personal data be deleted before the Raffle is completed, your entry into the Raffle is deemed to be terminated as well. In that case, You are no longer eligible for a prize.
5.4 If You use our Website for your entry or in connection with the Raffle, the data protection regulations for using our Website shall also be applicable.
6. Consent to Usage of Winner's Name in Publicity
Your personal data may be used in accordance with this Section 6 in addition to the usage of your personal data provided for in Section 5. Your consent as specified below is given voluntarily and will not influence your entry into the Raffle or your chance of winning.
The Entrant agrees to his/her first name, last name, place of residence and the prize awarded being made publicly available by AppLift if he/she wins for the purpose of publicity, in particular on AppLift's Website or in Social Media marketing (including Facebook and Twitter). The Entrant may revoke his/her consent at any time. No extra compensation is paid for giving this consent.
The Promoter of the Raffle under these Raffle Draw Terms and Conditions is AppLift, Rosenstrasse 17, 10178 Berlin.
8. Additional Provisions
8.1 The Raffle Terms and Conditions and the legal relationship between the Entrants and AppLift are governed exclusively by German law, to the exclusion of private international law and the UN Sales Convention.
8.2 If any provision of the Raffle Terms and Conditions is or becomes invalid, this shall not affect the validity of the remainder of the provisions. The invalid provision shall be replaced by the applicable legal provision.
8.3 Any recourse to the courts of law is excluded.
This Agreement was last revised July 2013