Last Updated: July 25, 2016
Hyper Ad Exchange (‘Company’) is a corporation MAELICO LTD., existing under the laws of the Republic of Cyprus, under incorporation number HE350887, welcomes You (‘Advertiser’) to use Hyper Ad Exchange’s online software located at website http://hyperadx.com (‘Native Ad Platform’) in accordance with the terms of this Hyper Ad Exchange Services Agreement for Advertisers.
Native Ad Platform provides You (‘Advertiser’) opportunities to advertise goods and / or services on third party’s Mobile Network Resources by launching online Advertising Campaign(s) and define the requirements of Advertising Campaign(s) choosing among CPA, CPI, CPC, CPL, CPM models.
This Advertiser Agreement is an official proposal (‘Offer’) issued by Company to enter into a services agreement between Advertiser and the Company on the terms as described herein. This Offer, the applicable insertion order (‘IO’) and the applicable selections made by Advertiser in its personal User’s account (‘User’s account’) shall be collectively referred to as ‘this Agreement’.
By registering for User’s account on the Native Ad Platform you are deemed to have executed this Agreement electronically, effective on the date you enter your Account via your login and password.
Your User’s account registration constitutes an acknowledgement that You are able to electronically receive, download, and print this Agreement, any amendments and other information from Company.
By accessing and using any part of the Native Ad Platform described herein, You agree to and consent to be bound by all of the terms of this Agreement. If You do not agree to all of the terms of this Agreement, You may not access and/or use any part of the Native Ad Platform.
1.1. For the purposes of this Advertiser Agreement, the following terms shall have the following meanings:
‘Ad’ means any advertisement provided by the Advertiser or on behalf of Advertiser to Company;
‘Ad Tag’ means Company’s and/or Publisher’s instruction(s) and Publisher's code(s) for the purpose of integration of advertising;
‘Advertiser’ means the User of the Native Ad Platform and Company’s services who desires to distribute and advertise his goods and services through Campaigns on the Native Ad Platform;
‘Advertising Campaign’ means a specific advertising program, which is available through Native Ad Platform, under which Ads should be delivered on Mobile Network Resources for the benefit of the Advertiser;
‘Creative’ means promotional advertising materials in different graphical forms for display advertising (including but not limited to text advertising, text links, banners, buttons, videos, graphics and other similar online media) placed through the Native Ad Platform to Mobile Network Resources, which have direct hypertext links to the relevant Advertiser’s Product(s) and are accessible and "clickable" via mobile telecommunication networks with the help of customers’ mobile devices;
‘IO’ means a mutually agreed insertion order, which may specify terms of Campaigns;
‘Mobile Network Resources’ means the websites, mobile applications, mobile content, and/or other promotional platforms and/or software that is accessible via mobile telecommunication networks and customers’ mobile devices, which are not owned, operated, or controlled by Company, but on which Company has a contractual right to serve Ads and Creatives;
‘Native Ad Platform’ means a unique software, which is the exclusive property of Company and is used to accommodate Advertising Campaign(s) on third party Mobile Network Resources;
‘Product’ means proprietary software applications, websites, or any other software, information, content, brands, trademarks or other materials developed and/or owned by Advertiser that are sold, streamed, transmitted, are available for download or are otherwise made available to any consumers, customers, or other end users via mobile telecommunication networks with the help of customers’ mobile devices;
‘Publisher’ means the entity, which allows its Mobile Network Resources and/or other traffic sources to include Creative and to permit the traffic between the Publisher and the programs pursuant to this Advertiser’s License Agreement.
‘Qualified Event’ means an affirmative action (e.g., impressions, clicks, or other desired actions) of an Advertiser’s customer, agreed upon by Advertiser and Company according to an Internet-based advertising model chosen via Native Ad Platform;
‘Qualified Event Price’ means the price that the Advertiser agrees to pay Company for 1 (One) completed Qualified Event;
‘Tracking link’ means link, which Advertiser provides for Advertising campaign;
‘User’s account’ means provided by Company online point of interaction through which Advertiser may use the Native Ad Platform, manage Advertising Campaign(s).
2. Company’s Services to Advertiser
2.1. Advertiser may use Native Ad Platform to advertise Products. Company hereby provides Advertiser the ability to i) upload files with Ads conforming to the technical requirements of the Native Ad Platform; ii) set up the Qualified Event of each Advertising Campaign; iii) set up the Qualified Event Price of each Advertising Campaign; iv) monitor Advertising campaign(s); v) modify the acquirer requirements of Advertising Campaign(s), Qualified Event and Qualified Event Price; vi) observe the information about available Publishers with different internet-based advertising models (such as CPA, CPI, CPC, CPL, CPM) and to determine which Publisher(s) Advertiser will be serviced by; vii) stop each Advertising Campaign upon at least twenty-four (24) hours prior written notice or email unless otherwise specified on the applicable IO(s); viii) use other technical abilities in accordance with the Native Ad Platform Technical descriptions and Tutorials provided at: http://hyperads.github.io/docs/
2.2. The abilities listed in Article 2.1 of this Agreement are provided through the User’s account or with the help of Company’s technical support, which is determined in Company’s sole discretion depending on the technical availabilities of the Advertiser.
3. Use of the Native Ad Platform.
3.1. In order to use Native Ad Platform Advertiser confirms that he is a legal entity or self-employed person and provides Company with the valid content and valid profile information including but not limited to legal entity’s name, legal entity’s address, company registration ID, VAT and/or other tax ID, country of residence, duly authorized representative, duly authorized representative’s email, support email, and any other information, which Company may reasonably require.
3.2. Advertiser warrants that all Products including software applications, websites, or any other software, information, content, brands, trademarks or other materials, Creative(s), information about Product(s), belongs to the Advertiser or that the legal owner is been informed of the usage and the display of this information and Creative(s) for the purposes of this Agreement. Furthermore, Advertiser warrants that all this this information and Creative(s) are correct and agrees to notify Company immediately in the event of any changes of them.
3.3. Advertiser is responsible for his own account usage (e.g. login, authorization and authentication data, security tokens etc.) and activity and declares to keep this information confidential. All information and Creative(s) provided by the Advertiser will be treated with utmost care as can be read in the data protection section. In case Advertiser expects any misuse of its account or breach of its security he will directly and immediately contact Company.
4. Limits on Company liability
4.1. Company shall not be liable for costs and damages for the Advertiser incurred by the Advertiser arising out of this Agreement unless caused directly by the negligence of Company in providing its service. Company shall not in any circumstances be liable for indirect or consequential damages and costs incurred by the Advertiser for any reason whatsoever.
4.2. Company will not be liable for defects in the service, interruptions in the accessibility to the service, infringements on data or loss of data on the information handling system, defects in the security system or viruses or other harmful software components in Company service or for any damage caused by viruses or components to the service, the Publisher software and/or the Advertiser's website. Company shall not be liable for any error in the implementation of the links on the Advertisers' website or for the specified function of the links.
4.3. Company shall not be liable if Publisher, which has registered Site(s) at the Platform, do not fulfill their obligations according to their placements and Company shall not be liable in any way for any agreements made directly between the Advertiser and such Publisher.
5. Insertion orders (IO)
5.1. From time to time, the parties may execute IO(s) that will be accepted as set forth in Article 5.3. of this Agreement
5.2. The IO(s) may specify: (i) the type(s) and amount(s) of Qualified Event, (ii) the price(s) for such Qualified Event, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the Advertising Campaign, and (v) other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
5.3. Acceptance of the IO will be deemed the earlier of (i) written (which, unless otherwise specified, for the purposes of this Advertiser’s License Agreement, will include paper, fax, User’s account or e-mail communication) approval of the IO by Advertiser and Company, or (ii) the display of the first Ad impression or Qualified Event through the Native Ad Platform, unless otherwise agreed on the IO.
5.4. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
6. Payment Terms
6.1. Advertiser shall pay Company for all Qualified Events, purchased through the Native Ad Platform during a calendar month, within 30 days of the month following the month of purchase unless otherwise specified on the applicable IO(s).
6.2. All reported numbers for the purposes of billing are based on Advertiser’s ad server reports or third party tracking partners. If there is a discrepancy of greater than ten per cent (10%) between Advertiser’s reports and the data of Company, the parties will work together in good faith in order to verify the relevant data and agree on a final report.
6.3. For any delay in payment, Advertiser is liable also to pay a daily interest of 0,1% on the amount of past due payments upon receipt of a written request of Company, however without exceeding 25% of the outstanding amount, unless otherwise specified on the applicable IO(s).
6.4. For the purposes of the Payment Terms described herein, the invoice is: (a) received by Advertiser if it is physically delivered to the addressee; (b) deemed to have been received to Advertiser if it is delivered at the email, provided by Advertiser.
6.5. Company will collect the amounts realized from Advertiser and will pay the entitled amount to Publishers as being displayed in the Native Ad Platform’s statistics.
7. Advertising Campaign(s) Reporting
7.1. In order to track Qualified Events Advertiser agrees to set up the conversion tracking with Native Ad Platform: implement the special transaction tracking computer code on the Product(s) or server side and provide Company with a Tracking link including all required macroses before the start of Advertising Campaign. If Advertiser uses third party tracking systems, he agrees to choose Company as a partner for all Advertising campaigns, which run through Native Ad Platform, and generate the relevant Tracking link for Company.
7.2. Advertiser ensure that he will not knowingly modify, circumvent, impair, disable or otherwise interfere Tracking link(s) or Tag(s), otherwise Advertiser has to pay Company under this Agreement and the applicable IO(s) is calculated as an average conversion value for the period of such prohibited termination.
7.3. Company may suggest Advertiser to re-write Tracking link(s) and Tag(s) on the Product(s) in order to obtain the best value for Advertising Campaign(s).
7.4. In order to obtain the best value for Advertising Campaign(s) Advertiser agrees to provide Company with Advertising Campaign(s) reports at least as often as weekly, either electronically or in writing, unless otherwise specified on the applicable IO. Reports will be broken out by day and summarized by creative execution, impressions, clicks, spend/cost, or other requested information.
7.5. If Advertiser refuses to pay for some Qualified Events in case of fraud suspicion, he should provide the report with the information specified in Article 6.6. of this Agreement and with the additional information with all sub_id of Qualified Events, which were rejected by Advertiser, within 15 days after Advertiser obtained the Qualified Event, otherwise all Qualified Events are considered valid and Advertiser should pay for all of them.
7.6. If Advertiser breaches the terms of Advertising Campaign’s termination, the remuneration, which Advertiser has to pay Company under this Agreement and the applicable IO(s) is calculated as an average conversion value for the period of such prohibited termination.
8. Intellectual Property and Intellectual Property Rights
8.1. Company Intellectual Property Rights:
8.1.1. All exclusive rights and ownership of the software ‘Native Ad Platform’, including but not limited to algorithms, source code, object code, specifications, visual interfaces and technical documentation, any database or other information used in ‘Native Ad Platform’ software are and shall remain the sole and exclusive property of Company.
8.1.2. Advertiser agrees that he shall not use Native Ad Platform for purposes beyond the scope hereof and he shall not, at any point in time, make or assert any claim whatsoever to any Intellectual Property Rights of Company, and shall not violate, misappropriate, or infringe any copyright, patent, design, trademark, trade secret, privacy or publicity rights, or any proprietary, Intellectual Property Rights or other legal right of Company. Advertiser further agrees that he shall not attempt to register at any point in time any Intellectual Property Rights or other similar rights that may amount to infringement or result in any other violation of the rights, title or interest of Company.
8.2. Advertiser Intellectual Property Rights:
8.2.1. All exclusive rights, title and interest to the promotional products are and shall remain the sole and exclusive property of Company. Advertiser grants no ownership hereunder to Company or any third party of any portion of the promotional products. All creatives provided are copyrighted materials and proprietary assets of their respective owners and should only be used for the specific advertiser and campaign designated in this Advertiser’s License Agreement.
8.2.2. Company agrees that it shall not edit or modify the submitted Ads, creatives or other Advertiser’s content in any way without Advertiser’s approval.
8.2.3. Advertiser hereby grants Company, and all Publishers inscribed in the Native Ad Platform and potential Publishers, the right to display and distribute Advertisers name, logo, trademarks, all Creative, links and other copyrighted materials that Advertiser provides to Company in order to promote Advertisers' participation in Native Ad Platform.
9.2. Advertiser acknowledges and agrees that it is his responsibility to disclose to his customers and users of the privacy practices and policies with respect to the information and personally identifiable information (“PII”) collected from such users and customers through the Native Ad Platform.
10.1. Regarding the topic of confidential information, both Parties agree to exercise an equivalent degree of care in protecting the confidentiality of Confidential Information as that which it uses to protect its own information of like sensitivity and importance.
Which can be summarized as:
- To take proper an all reasonable measures to ensure the confidentiality of such Confidential Information;
- To use Confidential Information only for the Proper Use;
- To permit access to such Confidential Information only to such of its employees (including employees of affiliated companies controlled by the Recipient) and to identified consultants or outside advisors on a need‐to‐know basis. In the case of identified consultants or outside advisors and upon request of Discloser, Recipient shall obtain a written acknowledgement of this Agreement and a commitment to be bound by its terms as though the consultants or outside advisor were a party hereto;
- Not use the Confidential Information in the design or manufacture of its products or in the design of its processes or in any other manner without the prior written consent of Discloser; The use of information relevant to campaigns or with any other commercial interest may be used in the context of the Company service in order to stimulate commercial transactions.
10.2. The Advertiser hereby agrees that Company may provide all information that the Advertiser displays in the Company platform to its Publishers and other commercial partners. Furthermore, Company may use data or statistics obtained by campaigns on Advertisers websites for all purposes like data studies, trend analysis, commercial presentations and etc.
11. Term and Termination
11.1. The Advertiser is entitled to terminate this Agreement upon 20 business days advance notice in written form (Email, Standard Mail or any other written form). The Advertiser will delete all further reference to Native Ad Platform and it's services and agrees to compensate Company for all outstanding results or campaign performance or any future booked campaigns to the full amount within days after termination
11.2. Company is entitled to terminate this Agreement or temporary halt the Agreement immediately for the entire Company service or parts of it in case of:
- Fraud or any illegal activity in any way by the Advertiser;
- The Advertiser has not booked any results or running campaigns for 6 months;
- The content or context of the Advertiser is no longer appropriate.
11.3. Company will notify Advertiser by email in case his account will be terminated or put on temporary halt, in this situation the Advertiser is required to take all reference and running campaigns directly of his Site and agrees to compensate Affiliate for all outstanding results or campaign performance or any future booked campaigns to the full amount within days after termination.
11.4. This Agreement expires immediately on termination.
12.1. The Advertiser shall keep Company indemnified against any claims for damages or other claims for compensation arising from the contents of the Advertiser's website or any incorrect information given to Company by the Advertiser. The Advertiser shall also compensate Company for any other damages or costs caused by the Advertiser's improper, negligent or unauthorized use of Company service and technical problems or loss of data caused by the Advertiser on platform or on any website to which the Advertiser is linked by Company.
13. Assignment of this Agreement
13.1 The Advertiser may not assign or pledge his rights or obligations under this Agreement in whole or in part to any third party without the prior written consent of Company.
14. No warranties
14.1 Except as expressly set forth in this agreement the service provided "as is" without warranties, expressed, implied or statutory, with regard to the service, fitness for a particular purpose, title and no infringement, legitimacy of traffic.
15.1 If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not affect the other provisions of this Agreement and the unenforceable or invalid provision shall be construed to be amended in order to avoid such enforceability or invalidity while preserving as closely as possible the intent of the Parties.
16. Governing law
16.1 This Agreement shall be construed and enforced in accordance with the laws of Cyprus. All disputes arising from this Agreement shall be finally settled by the competent Courts in Nicosia.
17.1. Company reserves the right to amend this Agreement, modify, amend, change Native Ad Platform Services at any time, and it is your responsibility to review this Agreement for any changes.
When Company makes changes to this Agreement, the ‘last updated’ date at the top of this Agreement will be revised.
17.2. You continue use Native Ad Platform after any changes or revisions to this Agreement will signify the assent to and acceptance of the revised Agreement’ conditions.
17.3. This Agreement contains the entire agreement of the parties concerning the subject matter hereof and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter.
17.4 You warrant and represent at all times that You have full power and authority to enter into this Agreement and to carry out the provisions hereof.
17.5 If you are entering into this Agreement on behalf of a company or other organization, you hereby warrant and represent that:
- You are authorized to enter into this Agreement on behalf of such company or other organization;
- it is duly organized and validly existing and in good standing under the laws of its incorporation;
- it has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof;
- it is duly authorized to execute and deliver this Agreement and duly authorized to perform its obligations and exercise its rights hereunder;
- the execution, delivery and performance of this Agreement does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
Reg No: HE 350887
Legal Address: Elassonos, 7, 1st floor, Kato Polemidia, 4153, Limassol, Cyprus