terms-and-conditions

Standard Terms And Conditions For Digital Marketing Services – Publishers

Preamble

For the purpose of this Agreement, “OCEADS” means OCEADS SAS., a company incorporated under the laws of France with its registration number 888443900.

There standards Terms and Conditions For Publisher outline the terms between OCEADS SAS and Publishers who have sign up to the OCEADS platform. This document, when incorporated into an insertion order, represents the parties’ common understanding for doing business and shall be collectively referred to herein as the “Agreement“. Furthermore, each Offer may have additional terms and conditions on pages within the Affiliate Program and 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.

OCEADS may change this Agreement and Privacy Policy at any time and shall provide notice to the Advertiser. However, OCEADS recommends that the Advertiser periodically visits the Website to review this Agreement and Privacy Policy. Unless a signed agreement stating otherwise is in place, by using the Website after OCEADS posts any changes, the Advertiser agrees to accept those changes, whether or not they have been expressly agreed upon between the parties.

Definitions.

Unless otherwise specified, capitalized terms used in this Agreement have the meanings given to such terms in this Section 1.

“OCEADS” means OCEADS SAS

“Advertiser”means any client or agency which has entered into an agreement with OCEADS SAS.

“Publisher” means a person or a company willing to make available their inventory to OCEADS SAS for monetisation.

“Co-Registration” means the relationship between Publisher or its sub publisher and OCEADS SAS that involves the exchange of consumer information. In the relationship, the consumer information is treated as a sales lead for OCEADS. The Publisher or its sub publisher collects consumer information through a registration process on the website and the consumer opts-in to receiving marketing communications from third party advertisers.

“Commissions” means the Volume respectively multiplied by the Payout Rate as specified by this Agreement.

“CPA” (Cost Per Action) means a business model that calculates digital marketing payments according to OCEADS specified “actions” in response to an ad beyond simply clicking on it, including but not limited to subscriptions, email sign-ups, activations, sales leads and purchases.

“CPC” (Cost Per Click) means a business model that the publisher is paid each time a visitor clicks on a given Creative and thereby being directed to a selected mobile webpage. No matter what action is taken at the selected mobile webpage, all that matters with this business model is that the Creative was clicked.

“CPI” (Cost Per Installation) means a business model that calculates digital marketing payments according to the amount of installations. An installation is counted when a visitor downloads, installs and opens the application, mobile game or other products through clicking on the Creative promoted by Publisher, as determined by OCEADS tracking technology.

“CPM” (Cost Per Mille) means a business model that the payments are calculated and made for each one thousand impressions. For this purpose, “impressions” means a measure of the number of times a Creative is seen. Without prejudice to any other terms of this Agreement, an impression occurs each time a unique visitor hits to a selected website, and this will be counted as an impression.

“Creative” means materials of any type used under this Agreement, including, but not limited to, buttons, banners, text-links, Videos, pop-ups, pop-unders and text to be displayed for the purpose of digital marketing.

“Disclosing Party” means the Party disclosing or providing Confidential Information (either directly or through such Party’s Representatives) to the Recipient or the Recipient’s Representatives.

“Flight Dates” means a period of time starting with the Commencement Date and ending with the End Date as specified in the IO.

“Fraudulent Activities” means by way of example only and not limited to: (i) use, encourage or facilitate others to use optimization services and/or software to fraudulently inflate impressions, clicks or other user actions or information regarding user actions; (ii) generate or facilitate actions that are based on fraudulent or deceptive practices, including the or use of deceptive implementation methods, robots or other automated tools to generate unintended user actions or encourage or facilitate any illegitimate user actions; (iii) mislead users to click on the Creative; (iv) in any way minimize or obstruct the display of any Creatives, or edit, modify, filter or change the order of the information contained in any Creatives; (v) edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by OCEADS; or reverse engineer, decompile or disassemble any software components of the digital marketing services provided by OCEADS; (vi) offer or provide any unauthorized incentives (financial or otherwise) to end users; (vii) blind text links; or (viii) use unsolicited email or inappropriate newsgroup postings to promote Websites.

“Governmental Authority” means any governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing.

“Intellectual Property Rights” means on a worldwide basis, any and all now known or hereafter known (i) rights associated with works of authorship including copyrights and moral rights, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patent rights and other industrial property rights, (v) intellectual and industrial property rights of every other kind and nature and however designated, whether arising by operation of law or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter existing, made, or in force (including any rights in any of the foregoing).

“Payout Rates” means the average cost of an action, which is specified in the IO and may vary considerably according to the applicable business model.

“Publisher Media” means a search engine, website, application, or other media specified on an IO that are owned, operated, or controlled by Publisher, or on which Publisher is otherwise legally authorized to act in the manner contemplated by this Agreement.

“Publisher Network” means any entity affiliated to Publisher making available their inventory to OCEADS for monetisation thought Publisher, including, without limitation, Publisher itself.

“Recipient” means the Party receiving the Confidential Information (as such term is defined in Section 6) either directly or indirectly through such Party’s Representatives from the Disclosing Party or the Disclosing Party’s Representatives.

“Representatives” means, with respect to a particular Party, such Party’s (i) Associated Entities, (ii) officers, directors and employees, (iii) attorneys, accountants and financial advisors, and (iv) officers, directors and employees of such Party’s Associated Entities, who shall each be legally obligated to observe and perform the obligations of such Party and to keep and treat the Disclosing Party’s Confidential Information received hereunder in a manner consistent with the terms hereof.

“Payout Rates” means the average cost of an action, which is specified in the IO and may vary considerably according to the applicable business model.

Publisher” means a publisher affiliated with Publisher running OCEADS SAS campaign

“Volume” means (i) the inventory (e.g., the amount of clicks, impressions, installations or other desired actions) where the CPC, CPM, CPI or CPA business models apply, (ii) the amount of other deliverables as specified in the IO.

2. Implementation.

2.1 License Grants. Subject to the terms and conditions of the Agreement, OCEADS hereby grants to Publisher a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sub-licensable, license to use the Ads solely in accordance with the details set forth in the IO. The License will immediately and automatically terminate if Publisher does not comply with any of its obligations hereunder. All rights which are not expressly granted herein are reserved by OCEADS. Publisher may not make any use of the Ads in whole or in part in any manner not expressly permitted by the Agreement. Moreover, solely for the purpose of Service, OCEADS hereby grants Publisher a limited, royalty free, non-transferable, non-exclusive right to use OCEADS trademark, trade name, service mark and domain name, and any visual representations thereof, including logos, designs, symbols, word marks, images, colors and color combinations, trade dress and characters, and any other publicity rights or indicia of ownership owned or used by OCEADS or its Associated Entities.

2.2 IO Details. During the Term of this Agreement, the Parties may from time to time sign new IOs subject to the terms of this Agreement. As applicable, each IO will specify: (i) the Volume and business model; (ii) the Payout Rate; (iii) the budget; (iv) the Commencement Date and End date of the campaign; (v) for any co-registration lead generation campaigns, data fields constituting a valid co-registration lead as set forth in Section 2.4; and (vii) the identification of the Parties. Other items that may be included are, but are not limited to, reporting requirements, any special Creative delivery scheduling and specifications concerning ownership of data collected. Revisions to confirmed IOs will be made in writing (which, unless otherwise specified, for purposes of this Agreement, will include paper or e-mail communication) and acknowledged by the other party in writing.

2.3 Revisions. Revisions to confirmed IOs will be made in writing (which, unless otherwise specified, for purposes of this Agreement, will include paper or e-mail communication) and acknowledged by the other party in writing.

2.4 Co-Registration Campaigns. With respect to any lead generation co-registration campaigns (“CoRegistration Campaigns), it is OCEADS responsibility to confirm that the data fields delivered match the data fields enumerated on the applicable IO (“Co-Reg Leads”). In the event there is a maximum amount of Co-Reg Leads that OCEADS can reject with respect to such Co-Registration Campaign, such maximum amount (“Maximum Rejected Leads”) shall be delineated in the IO and OCEADS agrees to pay for all of the Co-Reg Leads in excess of the Maximum Rejected Leads. Further, OCEADS must report any discrepancies related to such Co-registration Campaigns in writing to Publisher, including any proof of server bounce response for any disputed CoReg Leads no later than seven (30) days of the occurrence. Publisher may test the data with fictitious names to ensure the functionality of the data, to ensure the consumer experience (at no cost to OCEADS or Advertiser), as well as to assure compliance with the previous sentence. All Co-Registration Campaigns, including any co-registration forms and Creative, shall be in compliance with all applicable laws, rules and regulations and this Agreement.

2.5 Restrictions.

Publisher shall not:

(a) By accessing the Services, store, transmit, distribute, disseminate, publish or post any content in such a way as to breach any applicable Law, OCEADS policy or guideline, or to infringe the rights (in particular, the Intellectual Property Rights) of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;

(b) By accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items on to any OCEADS or third party systems;

(c) Share, display or disclose any Creative that may be considered to contain the following content: (i) any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality; (ii) any content that promotes firearms, bombs and other weapons or how-to guides for any of the above, pornography, criminal activity, or activity that violates other’s rights; (iii) any content that contains false, misleading or deceptive representation (as determined by OCEADS at its sole discretion); (iv) any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent); (viii) any content that has the potential to create liability for OCEADS or cause OCEADS to violate the requirements of or to lose the services, in whole or in part, of other Internet service providers.

3. Commissions, Payments, Taxes and Costs.

3.1 Reporting. The Commissions will be solely based upon the Volume compiled by OCEADS tracking and reporting system. OCEADS will provide the Publisher with a report the 15th of every following month, unless otherwise agreed in the IO, detailing the Volume in relation to the campaigns. Publisher agrees to accept the OCEADS report as the official basis for measuring the Volume and acknowledges that it shall not be entitled to any further information on the Volume. Publisher further acknowledges that in some cases, OCEADS will need to make adjustments to reported statistics due to specific contractual provisions (e.g., Fraudulent Activities), statistical errors, or third party tracking provided by Advertiser.

3.2 Invoices. Unless OCEADS has prepaid, Publisher will issue the invoices on a [monthly] basis upon its receipt of the reports aforementioned in Section 3.1 from OCEADS. Invoices will be sent to OCEADS’s billing address as set forth on the IO including company name, campaign name and any number or other identifiable reference stated as required for invoicing on the IO. The invoice shall cover only those inventory that meet the criteria specified in this Agreement. Publisher must send the invoices in time, otherwise OCEADS shall not bear any liability of late payment therein.

3.3 Payments. OCEADS shall pay the Commissions in full to Publisher within [30] days after receiving the invoice from Publisher. All amounts payable to Publisher under this Agreement will be paid in US Dollars to Publisher bank account below. Publisher may update its bank account information from time to time during the Term by providing OCEADS with the update.Publisher is liable for updating its bank information in OCEADS Affiliate Portal. Any Commissions for re-issued payment due to wrong banking information will be charged to Publisher. The payment of the Commissions by OCEADS to the Publisher is dependent upon the respective Advertiser providing such funds to OCEADS, and therefore, Publisher agrees that OCEADS shall only be liable to Publisher for Commissions to the extent that OCEADS has received such funds from the Advertiser. The publisher must have generated at least 250 USD in order to be paid the commissions.

3.4 Withholding Payments. Publishers that commit Fraudulent Activities, as defined herein, will not be entitled to any compensation. If OCEADS SAS, in its sole discretion, determines that Publisher has engaged in Fraudulent Actions, OCEADS SAS may, in addition to any and all other remedies, withhold, and refuse to pay, any compensation that may otherwise have been due and owing to Publisher and suspend or terminate this Agreement. OCEADS SAS reserves the right to require that proceeds from accounts with Fraudulent Actions will be refunded to Advertisers. Additionally, OCEADS SAS reserves the right to disclose details relating to the Fraudulent Actions, including the identity of the violating Publisher without further notice. Fraudulent Actions shall be defined as actions generated or enhanced through deceptive or misleading practices, methods or technologies including, but not limited to, the use of any spyware, stealware, cookie-stuffing, adware, device, program, robot, iframes, hidden frames, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear like an individual, real live person

3.5 Taxes, Costs. Each Party shall be liable for making payment of any and all applicable taxes, including but not limited to withholding tax, value added tax, sales taxes, duties, Commissions, levies or surcharges (including where applicable any universal service fund or similar surcharges) imposed by, or pursuant to the laws, statutes or regulations of any government agency or authority.

3.6 Wire Transfer Fees. Any Fees regarding to the money transfer shall be born on Publisher except Fees from OCEADS’s side.

4. Warranties, Indemnities, and Limitation of Liability.

4.1 Warranties. Both parties hereby represent that they are authorized to enter into this Agreement. Except as expressly set forth in this Agreement, neither party makes and each party specifically disclaims any representations or warranties, express or implied, including any warranty of merchantability, fitness for a particular purpose, title and non-infringement, and warranties implied from course of dealing or performance.

4.2 Publisher’s Representations. Publisher represents and warrants that it has and will have full power and authority to fulfill all of its obligations hereunder and in doing so it will not breach any existing contractual obligations with third parties and that it is authorized to bind any third parties necessary to create and fulfill the specified obligations.

4.3 Indemnification.

4.3.1 Publisher will indemnify and hold OCEADS harmless from and against all claims (including reasonable attorney fees and costs) by any third party against OCEADS due to infringement of the Publisher’s warranties and obligations under this Agreement. Publisher will be liable for any damage in this connection and the costs incurred by OCEADS for legal action. This will not affect any further claims OCEADS may have. Publisher shall – upon first demand by OCEADS or any third party designated by OCEADS – make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.

4.3.2 The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.

4.4 Limitation of Liability. Excluding each party respective obligations under Section 4, damages that result from a breach of Section 6, or intentional misconduct by OCEADS or Publisher, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.

5. Cancellation, Term and Termination.

5.1 Term. This Agreement shall become effective from the Effective Date and shall remain effective for a period of one (1) year (“Term”). The Parties agree to discuss in good faith additional collaboration opportunities during the Term. If both OCEADS and Publisher provides a notice of non-renewal in writing at least thirty (30) days prior to the expiry of the Term, this agreement will automatically renew, on current terms, for one additional year term.

5.2 Termination. This Agreement may be terminated: (a) by OCEADS by providing 30 days´ prior written notice to Partner, or (b) by the written consent of both parties, or (b) when either Party has a receiver, manager, administrator, or other encumbrancer appointed over any of its undertaking or assets or goes into liquidation or bankruptcy or enters into any agreement with its creditors or ceases to cease to carry on its business, whether on account of debt or otherwise.

5.3 Cancellation of the IO. Unless agreed in the Insertion Order as non-cancellable, either Publisher or OCEADS may cancel the entire Insertion Order, or any portion thereof, by providing the other party with no less than two (2) business days´ prior written notice. During the Term, in the event of breach of this Agreement or an Insertion Order by a Party , the non-breaching Party may immediately terminate this Agreement by written notice to the Breaching Party if the Breaching Party fails to cure the breach within thirty (30) days of receipt of written notice from the non-breaching Party.

6. Confidentiality.

6.1 Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.

6.2 Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.

6.3 Privacy Policies. Publisher will post on its respective Websites its privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Publisher to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party. Publisher agrees to comply with all applicable privacy laws and OCEADS’s Privacy Policy available at OCEADS’s official website (https://www.oceads.com/privacy-policy/). Due to the rapidly evolving technologies on the Internet, OCEADS reserves the right to occasionally update this Privacy Policy. All revisions will be posted to this Official Website.

6.4 Compliance with Law. OCEADS and Publisher will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.

7. Force Majeure.

7.1 Generally. Excluding payment obligations, OCEADS will not be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”).

7.2 Related to Payment. If OCEADS’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the OCEADS’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then OCEADS will make every reasonable effort to make payments on a timely basis to Publisher, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve OCEADS from any of its obligations as to the amount of money that would have been due and paid without such condition.

7.3 Cancellation. If a Force Majeure event has continued for five (5) business days, OCEADS/Publisher has the right to cancel the remainder of the IO without penalty.

8. General.

8.1 Notices. Unless prior written notice of a change of address is given by the relevant Party, all correspondence between the Parties, including the delivery of a duly and properly executed version of this Agreement, shall be delivered either in person, by express courier, facsimile transmission, registered mail or email with read receipt, to the following correspondence address:

Advertiser : OCEADS SAS

Address: 55 Rue Hutellier,

60290 Laigneville

France

Telephone: +33 616945164

E-mail: privacy@oceads.com

Contact Person: Hervé Degauchy

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8.2 Claims. All claims, instructions, consents, designations, notices, waivers, and other communications in connection with the Agreement will be in writing to the address specified above. Such notifications will be deemed properly given to the other party (a) when received if delivered personally or by a recognised courier service, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail

8.3 Assignment.Neither party may assign any of its rights under this Agreement without the prior written consent of the other party, except that either party may assign this Agreement in connection with a change of control transaction, provided the acquirer has agreed in writing to comply with and be bound by all of the acquiree’s obligations hereunder. Any assignment or transfer or attempt to assign or transfer of this Agreement or the rights granted herein without the written consent of the other Party shall be void.

8.4 Governing Law. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of France. OCEADS and Publisher agree that any Claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in France, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.

8.5 Dispute Resolution. Publisher and OCEADS agree that any disputes arising out of in connection with the Insertion Order or this Agreement shall be referred to mediation, and the parties will endeavor in good faith to agree to the location of the mediation and the identity of the mediator. Should a dispute arise between the Parties in connection with this Agreement, the Parties agree that such and all disputes arising from the implementation of or in connection with this Agreement, including questions regarding its existence, validity or termination, shall be settled, referred to and finally resolved in France by the France International Arbitration Centre, under its Rules of Arbitration for the time being in force, which rules are deemed to be incorporated by reference to this section. The arbitration shall be conducted in English by three (3) arbitrators appointed in accordance with the said Rules. The award shall be final and binding on both Parties. Expenses of the arbitrator(s) shall be divided equally between the parties. Each Party irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in any such court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

8.6 Governing Language. This Agreement is executed in English. If necessary, it may be translated into other languages. However, if there’s any conflict, ambiguity or discrepancy between the English version and a version in any other language, the French version shall prevail.

8.7 Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.

8.8 Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.

8.9 Survival. Sections 3, 4, 6 and 8 will survive termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.