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Terms & Conditions of Use
PUBLISHER TERMS AND CONDITIONS
The following terms and conditions (together with any applicable Insertion Order or other terms agreed in writing between the parties referred to as the "Agreement") constitute a legal agreement between Ram One Limited (registered in England with company number 3849121 and registered office at 258 Merton Road London SW18 5JL - "Advortis"), and the Publisher identified in the Insertion Order. Publisher and Advortis may also be individually referred to herein as a "Party" and collectively as "Parties." Provisions in an Insertion Order or other applicable written terms shall prevail over any conflicting provision in these terms and conditions.
1. Service: Publisher will display the Advertisement and perform lead generation services as further described in Insertion Orders. "Advertisement" means the advertisement in any form including without limitation banner ads, audiovisual, email, editorial features, including any copy including questions and answers, from and subject line and/or text ads, graphic, sound, video, programming code and/or other content that comprises the advertisement, as well as the websites and links to which an advertisement is linked if applicable.
2. Qualified Lead Definition (Qualified Leads): Qualified Leads are prospects who meet Advortis screening criteria as described in the Insertion Order and who provide their complete contact data. Unless otherwise expressly agreed in writing, Publisher will be paid on a delivered per lead basis defined as when a Qualified Lead agrees through a pre-approved opt-in method to be contacted. In the case of any dispute between the Parties as to the number of Qualified Leads, Advortis numbers will control.
3. Lead Validation Procedure: Advortis will verify each Qualified Lead delivered by the Publisher. Upon receipt, all Qualified Leads will be checked for data validity (i.e. containing valid data inputs for all fields specified in the Insertion Order) and uniqueness of data (i.e. that the Qualified Leads are not present in Advortis database for the designated Advertisement in the past 60 days). Advortis reserves the right to send an auto-responder to all respondents re-confirming their request for information. Any objections from respondents (about the email, or the offer) will be raised to the Publisher.
4. Intellectual property rights: Advortis hereby grants to Publisher during the Contract Period a non-exclusive, royalty-free, worldwide right and license to use, reproduce, distribute, publicly perform, publicly display and digitally perform each Advertisement and all its constituent parts by the agreed means and in the agreed media, in accordance with the terms of the Agreement. All copyrights, trademarks, other intellectual property rights, know-how and any other rights associated with the Advertisements and services, including but not limited to software and the tracking technology, are exclusively owned by Advortis and/or Advortis third party licensors or advertisers. No rights or licenses of any kind are transferred or granted to Publisher with the exception of the limited rights of use and publication expressly set out in the Agreement.
5. Creative Changes: Editing, copying, re-use or repurposing of Advortis Advertisement is strictly prohibited, without prior written approval from Advortis. Any changes to Advertisements, without prior written permission will result in the loss of payment of Leads.
6. Data and Privacy Compliance: Each Party shall comply with all applicable laws and regulations in relation to the processing of personal data processed in the course of such Party’s performance under the Agreement. Publisher undertakes, warrants and represents that during the entire Contract Period for each Agreement:
(a) Publisher’s business and performance under the Agreement will be carried out in accordance with all applicable personal data protection laws (including for EU users, the EU General Data Protection Regulation), regulations and binding industry standards, and Publisher has kept all necessary records and made all necessary notifications, disclosures and filings;
(i) has provided the individuals with all required information including without limitation the categories of data, the purposes for which it will be processed, and its recipients, in a legally compliant and easily assessible privacy notice or policy;
(ii) has obtained and recorded all required consents or other valid legal basis to collect, process and provide to Advortis and Advortis advertisers such data for such purposes (or, where any consents were obtained by a third party, will ensure that they were properly obtained and have not been withdrawn);
(iii) will record and communicate to Advortis where such legal basis no longer exists and other rights exercised by users that affect Advortis or Advortis’s advertisers’ use of data.
Notwithstanding any other provision in an Agreement, Publisher will indemnify and hold Advortis and Advortis’s advertisers harmless against any claims, fines, loss or damage, costs or expenses incurred caused by Publisher's breach of any matter referred to in this clause.
7. Anti-fraud Compliance: Advortis will actively monitor Publisher activity using a combination of its proprietary software and third party monitoring services. In the event of unusual or suspect activity, it is the obligation of Publisher to prove to Advortis that they are not committing fraud. Advortis will hold Publisher payment in ‘Pending Status’ until Publisher has satisfactorily provided evidence that Publisher is not defrauding the system. Advortis flags accounts that: Have click-through rates that are much higher than industry averages and where solid justification is not evident; Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined by Advortis advertisers or; Use fake redirects, automated software, and/or fraud to generate clicks or leads. If Publisher is unable to prove to Advortis that Publisher is not committing fraud, Publisher will forfeit its entire commission for all programs and Publisher’s account will be terminated. Advortis reserves sole judgment in determining fraud.
8. Advertising Guidelines: Publisher may, in its complete discretion, reject, cancel or remove at any time any Advertisement from the service for any reason without prior notice to Advortis. Publisher must notify Advortis following the rejection, cancellation or removal of any Advertisement from the service within 24 hours. Advortis may require removal or suspension of any campaign at any time on 24 hours prior notice to Publisher.
9. Contract Period: Contract Period will initially be one (1) month from the target launch of the initial campaign as noted in the Insertion Order. The Contract Period may continue thereafter by mutual consent (email being sufficient) but may be terminated by either Party for any reason whatsoever by written notice to the other Party.
10. Payment: Publisher will invoice Advortis on a monthly basis at the payout rates reflected in the Insertion Order. The invoice will reflect delivery of final Qualified Lead numbers that are based upon numbers reported by Advortis to Publisher pursuant to the terms of the Agreement.
11. Payment Terms: Advortis shall make all payments to Publisher within 30 days of the invoice date. All payments made to Publisher include all costs, expenses and taxes associated with Publisher’s performance of the Agreement, except for any applicable VAT which if required Publisher shall add to Publisher’s invoices. All past due amounts shall accrue interest at the statutory rate for commercial contracts applicable in the UK. Parties shall keep, maintain and preserve, for the term of each Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder (the “Relevant Records”). Either Party shall have a right at least once per calendar year to audit the Relevant Records of the other Party for the purpose of verifying fulfilment of that Party’s payment or other obligations pursuant to the Agreement. Each audit will be conducted at a place agreed to by the Parties, during the normal business hours, with at least ten (10) business days prior written notice to Party to be audited. Auditing Party shall pay the fees and expenses of the audit, unless the audit reveals a payment discrepancy of more than ten percent (10%) of all payments due in any consecutive six (6) month period, in which case audited Party shall pay the reasonable fees and expenses of the audit, and shall immediately pay to auditing Party all amounts found to be due.
12. Publisher Representations and Warranties: Publisher represents and warrants that: (1) no email addresses or other personal data used by Publisher in connection with this Agreement were obtained through email harvesting or dictionary attacks; (2) Publisher will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Advortis, such as pre-population of forms or mechanisms not approved by Advortis); (3) Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the site tags, source codes, links, pixels, modules or other data provided by or obtained from Advortis that allows Advortis to measure ad performance and provide its services and (4) all of Publisher’s business and efforts associated with this Agreement comply with all applicable laws, regulations and binding codes of practice, including without limitation in relation to commercial communications, distance selling, advertising, processing of personal data, e-privacy, and anti-bribery, and (5) Publisher is not a party to any other agreement that conflicts with its obligations or performance under any Agreement including with regard to the resources required to carry them out and the protection of Advortis’s Confidential Information. Publisher will not engage in or promote any illegal activities of any kind in association with this Agreement.
13. Other Obligations: Publisher shall:
A. NOT PROVIDE Incentivized traffic. This includes but is not limited to any spoofing, redirecting or trafficking from adult related websites in an effort to gain traffic or websites that are point, lottery, coupon or rewards based and encourage users to click on Advertisements or use Advertisements to generate revenue for users to win points, get rewards, or other any other incentive.
B. NOT PROVIDE leads generated from content, email or websites that are not subject matter related to the category of the Advertisement represented. Such websites must be content-based (not a list of links or advertisements), be written in English, receive a minimum unique page views per month as may be specified by Advortis from time to time, have a top-level name and must not infringe on any personal, intellectual property or copyrights. This can be waived only by SPECIFICALLY providing the name of the proposed website to Advortis.
C. Be able to provide the name of the website where the lead was generated. This information is only delivered to Advortis upon request, but MUST be made available in case there is a dispute or problem with the lead.
D. NOT PROVIDE inappropriate content, which includes, but is not limited to, content that (i) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives or inappropriate language, (ii) promotes violence or the use of illegal substances or activities such as how to build a bomb, counterfeiting money, software pirating or copyright circumvention (iii) promotes illegal or unethical activity, racism, hate, "spam", mail fraud, gambling, sweepstakes, pyramid schemes, or illegal advice (iv) is otherwise prohibited by applicable laws, regulations or binding codes of practice; and/or (v) in Advortis’s sole decision, will or may bring Advortis and/or its associated Advertisers negative publicity.
E. At no time, engage in, disseminate, promote or otherwise distribute any Advertisement through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable).
14. Confidentiality: Each Party shall keep all non-public business information of the other Party (“Confidential Information”) confidential, not disclose it to any third party, and not use for any purpose other than the performance of each Agreement. In particular the following constitute “Confidential Information” of Advortis: (a) The terms of the Agreement (including without limitation CPA rates or other commercial terms); (b) All information submitted by end-user customers pursuant to the Agreement; (c) Non-public information, data and reports provided by Advortis hereunder or as part of the Services hereunder. These non-disclosure obligations shall survive the termination of the Agreement for a period of five (5) years. This clause does not bind a receiving Party to the extent Confidential Information is required to be disclosed by operation of law, regulation or regulatory or judicial order. A Party in receipt of a request to disclose Confidential Information of the other Party must immediately inform the other Party in writing and cooperate if the other Party seeks to protect that information from disclosure. Subject to prior approval by Publisher, Advortis may publicly announce its contractual relationship with Publisher, which includes being on a listing of Advortis publishers in general website and corporate materials and in industry standard press releases.
15. Warranties: Advortis provides its sites and the sites of its affiliates and partners on an "as is," “where is” and "as available" basis. Save for the express terms of each Agreement, Advortis excludes all other terms of any kind, whether express or implied, including in particular in relation to the Advertisements and any revenue that Publisher could receive under the Agreement.
16. Force Majeure: If a Party is prevented or delayed from performing under an Agreement by an event of force majeure, except in relation to its obligations in relation to legal compliance, confidentiality or intellectual property protection, such performance shall be excused for the duration of the force majeure. The affected Party shall inform the other Party in writing of the force majeure and resume performance as soon as practicable. If the force majeure event continues for 30 days or more, then the other Party may terminate the relevant Agreement by written notice.
17. Limitations of liability: Subject to the remainder of this clause, Advortis shall not be liable for any special, indirect, incidental or consequential damages (including, without limitation, for breach of contract, warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits, arising out of or in connection with any Agreement. Under no circumstances shall Advortis be liable to Publisher or any third parties for an amount greater than the amounts paid by Advortis to Publisher under the applicable Insertion Order. Nothing in the Agreement shall exclude or limit the liability of any Party for: (a) fraud including fraudulent representation; (b) death or personal injury caused by that Party’s negligence; or (c) any other liability that may not be so limited or excluded under applicable law.
18. No Assignment: Neither Party shall have the right to assign, delegate or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder without requiring consent. Any prohibited assignment shall be null and void.
19. Independent Contractor: Each Party is an independent contractor. Nothing in any Agreement shall create a partnership, joint venture, principal-agent, employer-employee, or any other relationship between them.
20. Severability: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
21. Entire Agreement; Modification: This constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral, regarding the subject matter. No failure or delay by a Party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver. No modification, course of conduct, amendment, supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the Parties unless made in writing and duly signed by both Parties.
22. Dispute Resolution: These Terms and Conditions and all Agreements will be governed by the laws of England. The Parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with these Terms and Conditions and all Agreements.