AD4SCREEN S.A. («Company», located at 22 rue du 4 septembre, 75 002 PARIS, FRANCE) and “Advertiser”, enter into this Advertiser Agreement (“Agreement”) to establish the terms and conditions by which Advertiser may use of ALL ASPECTS of the Service made available by AD4SCREEN (collectively referred to in this agreement as the “Service”)
This agreement, in conjunction with the corresponding Release Order, shall constitute Advertiser, its Clients and Agents (herein collectively referred to as “Advertiser”) understanding that AD4SCREEN’s sole obligation is to promote the Advertiser’s products or services across the AD4SCREEN Network. The submission of a signed release order by Advertiser to AD4SCREEN is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. Any and all modifications to this release order are invalid unless acknowledged and accepted in writing by both AD4SCREEN and the Advertiser. Advertiser agrees that AD4SCREEN may, but is not obligated to, display creative across the entire AD4SCREEN advertising network or on specific site(s) AD4SCREEN may, at its option, modify the launch date of a campaign(s) if the creative are not delivered on time, there are delays due to 3rd party ad-serving, inventory fluctuation or other issues. All rates quoted herein, orally, or through written communications are only valid fourteen (14) days from date of such statement. If no agreement is reached within this time frame AD4SCREEN reserves the right to change rates.
Advertiser warrants, represents and agrees that it will not contribute, submit or make available through the Services, or use the Services in connection with, any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party.
Advertiser agrees that the Applications Advertiser promotes will not, to the best of Advertiser knowledge: (a) be racist, supportive of terrorist activities, defamatory, libelous, unlawfully threatening or unlawfully harassing; (b) contain nudity, violence, or offensive subject matter or contains a link to an adult website; (c) solicit personal information from anyone under eighteen (18) years of age without expressly complying with all applicable laws; (d) harass or advocate harassment of another person; (e) infringe any third party’s copyright, trademark, service mark, trade secret, or other proprietary rights or rights of publicity or privacy; (f) promote information, material, or content that Advertiser knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, libelous, obscene, scandalous, inflammatory, pornographic, or profane material, or any other content that could give rise to any civil or criminal liability under the law; (g) involve the transmission of “junk mail,” “chain letters,” unsolicited mass mailing, or “spamming”; nor (h) violate any law or regulation (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising).
AD4SCREEN reserves all rights with respect to the Service, and may pursue all legally available options under both civil and criminal laws (and may cooperate with law enforcement agencies) in the event of any violations.
Advertiser agrees to direct to Company and not to any publisher, as the case may be, all communications regarding any matter arising out of Advertiser’s use of the Services.
Advertiser understands that AD4SCREEN in due diligence cannot monitor all AD4SCREEN Partners mobile sites/services for appropriate content and AD4SCREEN may not be held responsible for the content of any Partner mobile site/services. If Advertiser reasonably determines that the placement of any advertisement by AD4SCREEN hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with mobile sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, then AD4SCREEN shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser’s notice thereof to AD4SCREEN; provided, however, that if AD4SCREEN reasonably believes that removal of an advertisement from a site/service will have a material impact on AD4SCREEN’s ability to deliver advertisements in accordance with the release order, AD4SCREEN may condition such compliance on Advertiser providing an extension of the campaign dates.
Advertiser agrees not to resell, market, or transfer any data regarding consumers gained through this campaign to any third party unless expressly permitted by AD4SCREEN in writing.
Advertiser guarantees that data regarding consumers gained by this campaign will be only used for legal purposes and Advertiser will indemnify, defend and hold harmless AD4SCREEN from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney’s fees) and losses which result from any claim of damages brought or sought against AD4SCREEN that alleges consumer data gained by this campaign was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on AD4SCREEN giving prompt written notice of any such claim. AD4SCREEN will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph shall survive the termination of this Agreement.
Advertiser will indemnify and hold AD4SCREEN, its parents, subsidiaries, affiliates, officers, directors, employees, suppliers, users or affiliates, harmless from and against any and all claims, liabilities, penalties, settlements, judgments, losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to (a) any claims that Advertiser has used the Service in violation of another party’s rights, in violation of any law, in violations of any terms of this Agreement, or (b) any content that Advertiser or anyone using Advertiser account may submit or access in the course of using the Service; (c) Advertiser use of, or inability to use, the Service; (d) Advertiser violation of the terms of this Agreement; and (e) any violation or failure by Advertiser to comply with all laws and regulations in connection with Advertiser use of the Service, whether or not described herein.
All payments will be made in advance unless agreed upon otherwise or credit is approved and AD4SCREEN is under no obligation to perform agreed upon services until payment is received.
If Advertiser fails to pay overdue invoices for previous campaigns, AD4SCREEN reserves the right to immediately terminate any active campaigns.
In the event Advertiser pays with credit card, Advertiser expressly agrees not to charge back on credit card account. Advertiser agrees to follow dispute resolution agreement as specified in section “MISCELLANEOUS” herein.
All payments must be made in EUROS. Advertiser understands and agrees that in no event, and under no circumstance will data provided by any AD4SCREEN representative constitute final billing numbers. Only invoices mailed directly to Advertisers and Agencies are to be construed as representative of billable amounts.
In case Advertiser decides to postpone a campaign within fifteen (15) days before the scheduled date of the campaign, Advertiser will be charged the amount of 10% of the value of the IO with a minimum of 1.000 Euros.
Once a new campaign date is agreed by both Advertiser and AD4SCREEN, each new postponement will be charged 10% of the value of the IO with a minimum of 1.000 Euros.
If Advertiser wishes to terminate the campaign early, Advertiser agrees to abide by the cancellation procedures set forth in section just below. Any cancellation notice will be based on the date the written notice was received by AD4SCREEN.
Any cancellation notice must be sent at least 7 days prior to the scheduled date of the campaign. In case of cancellation, Advertiser agrees to pay AD4SCREEN an indemnification, which will amount to 30% of the refund amount.
Any cancellation notice sent less than 7 days prior to the scheduled date of the campaign won’t be taken into account : in this case, Advertiser will be charged the full amount of the campaign.
AD4SCREEN is not liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond AD4SCREEN’s control affecting production or delivery in any manner.
Company may terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if Advertiser breaches any of the terms or conditions of this Agreement.
Advertiser acknowledges that termination and/or monetary damages may not be a sufficient remedy if Advertiser breaches this agreement and that AD4SCREEN will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach.
Upon termination of the Advertiser’s account, Advertiser ‘s right to use the Services will immediately cease and Advertiser will remove all Company code from Advertiser’s Mobile Properties. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
ADVERTISER represents and warrants to Company that (i) ADVERTISER is the owner of each Mobile Property ADVERTISER designates in connection with the use of Services or that ADVERTISER is legally authorized to act on behalf of the owner of such Mobile Property for the purposes of this Agreement, and (ii) ADVERTISER has all necessary right, power and authority to enter into this Agreement and to perform the acts required of ADVERTISER hereunder. ADVERTISER further represents and warrants to Company that each of ADVERTISER’s Mobile Properties and any material displayed therein: (a) comply with all applicable laws, statutes, ordinances and regulations; (b) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (c) are not hate-related in content.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or “priviledged”. Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes publicly known, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed or collected by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
Customer agrees that without expressed written consent of AD4SCREEN, at all times while Customer is employing the services of AD4SCREEN and for twenty four (24) months after contract period terminates, Customer will not, directly or indirectly, whether individually or as an officer, director, employee, consultant, partner, stockholder, individual proprietor, joint venturer, investor, lender, consultant or any other capacity whatsoever: solicit, divert hire, retain (including as a consultant) or encourage to leave the employment or contract period of AD4SCREEN and any employee or contractor of AD4SCREEN, or hire or retain (including as a consultant) any former employee of AD4SCREEN who has left the employment or contract period of AD4SCREEN within twenty four (24) months prior to such hiring or retention.
In the event that Customer does not respect this non-solicitation agreement, Customer commits to compensate AD4SCREEN by paying a compensation equal to thirty six (36) months of the last gross remuneration received by the concerned employee.
THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHER, AD4SCREEN AND ITS SUPPLIERS DO NOT MAKE, AND HAVE NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, AND ADVERTISER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
IN NO EVENT SHALL COMPANY, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO ADVERTISER OR ANY OTHER PERSON OR ENTITY, UNDER ANY THEORY, INCLUDING WITHOUT LIMITATION NEGLIGENCE, FOR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THE SERVICE OR ANY INFORMATION, CONTENT OR MATERIALS IN OR ACCESSIBLE THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, ACTUAL, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, THAT RESULT FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF AD4SCREEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
IN NO EVENT SHALL THE TOTAL LIABILITY OF AD4SCREEN OR ANY OF THE ABOVE-REFERENCED PERSONS OR ENTITIES OR THEIR SUPPLIERS, UNDER ANY THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED 50% OF THE NET AMOUNT PAID BY ADVERTISER TO COMPANY DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM. ADVERTISER CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
This Agreement constitutes the entire agreement between Advertiser and AD4SCREEN and governs Advertiser use of the Service, superseding any prior agreements between Advertiser and AD4SCREEN with respect to the Service.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control.
If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by Advertiser except with Company’s prior written consent.
This Agreement shall be governed by and construed in accordance with the laws of FRANCE without regard to the conflict of laws provisions thereof.
In the event of litigation arising from the interpretation or performance of the Agreement, the courts of PARIS (FRANCE) shall have sole jurisdiction even in case of multiple parties.
Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between this Agreement and any document incorporated herein by reference, this Agreement shall govern.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Advertiser does not have any authority of any kind to bind Company in any respect whatsoever.
Advertiser allows AD4SCREEN to use the Advertiser name, or any other distinctive sign belonging to Advertiser, as a business reference and in press releases indicating trade references. AD4SCREEN may also include the Advertiser name on a list of references intended to be provided to prospects of AD4SCREEN.