Advertiser Terms & Conditions
This Voban Performance Media Partner Network Advertiser Agreement ("Advertiser Agreement") governs the relationship between Voban Performance Media Partner Network ("Voban Performance Media Partner Network" or "we") and the entity accepting these terms ("Advertiser"), whereby Advertiser may obtain access to registered third party partners ("Partners") and publishers ("Publishers"), and related technology and software ("Ad Server"), to market customized advertisements and links provided by Advertiser and/or Voban Performance Media Partner Network ("Ads," as further defined below). The Voban Performance Media Partner Network, as well as the services provided by Voban Performance Media Partner Network in connection therewith (collectively "Services"), are further described in the Insertion Order ("IO") incorporated herein by reference (the IO, together with this Advertiser Agreement, the "Agreement"). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to "Advertiser" shall refer jointly to Advertiser as well as the applicable underlying client.
Voban Performance Media Partner Network/Services
In connection with the Services set forth in the Agreement, Voban Performance Media Partner Network shall undertake marketing campaigns with Advertiser (each an "Ad Campaign") whereby Voban Performance Media Partner Network will distribute Advertiser's proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, "Advertiser Ads") and/or, where applicable, Voban Performance Media Partner Network Ads (as defined below) through the Voban Performance Media Partner Network either:
on Publisher websites via the Ad Server for impressions-based Ad Campaigns ("CPM"); or
by Partners via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Voban Performance Media Partner Network commissions depending on the number of valid clicks, impressions, sales/actions ("CPA"), applications and leads ("Leads"), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, "Actions"). The applicable Actions, the fees due to Voban Performance Media Partner Network for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. Voban Performance Media Partner Network shall not be held liable or responsible for any actions or inactions of its Publishers or Partners.
Upon the execution of the Agreement, Advertiser must register on the Voban Performance Media Partner Network website and create a unique, password-protected account ("Account"). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser's Account , whether authorized by Advertiser or not. Advertiser must immediately notify Voban Performance Media Partner Network of any unauthorized use of Advertiser's Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Voban Performance Media Partner Network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
Unless stated otherwise in an IO, Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Voban Performance Media Partner Network shall assist in the development of Ads . The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Voban Performance Media Partner Network prepares on Advertiser's behalf (such portions hereinafter referred to as, the "Voban Performance Media Partner Network Ads" and together with the Advertiser Ads, the "Ads"). The parties understand and agree that Voban Performance Media Partner Network is the sole owner of any and all intellectual property rights associated with the Voban Performance Media Partner Network Ads, other than Advertiser's trademarks , logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Voban Performance Media Partner Network Ads.
Under no circumstances shall Voban Performance Media Partner Network be authorized to use the Ads other than in connection with Advertiser's Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to Voban Performance Media Partner Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. After the applicable Ad has been approved by Voban Performance Media Partner Network, Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Voban Performance Media Partner Network's prior express written consent. Notwithstanding the foregoing, Voban Performance Media Partner Network shall have sole discretion with respect to the creation of the "subject" and "from" lines used in its e-mailing of any Ads.
Voban Performance Media Partner Network reserves the right, in its sole discretion and without liability, to:
change any of its Ad Guidelines at any time; and
reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Voban Performance Media Partner Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, Voban Performance Media Partner Network's determination, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads ("Advertiser Products"), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Voban Performance Media Partner Network or any of its Publishers and/or Partners.
Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Voban Performance Media Partner Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Voban Performance Media Partner Network's receipt of Advertiser's cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Voban Performance Media Partner Network and/or its Partners and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where "Run of Partner Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Voban Performance Media Partner Network and/or its Partners and Publishers may determine, in their respective sole discretion.
Unless otherwise stated in writing by Voban Performance Media Partner Network, each Ad used by Voban Performance Media Partner Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Voban Performance Media Partner Network ("Ad Codes"). 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 Voban Performance Media Partner Network to be used in connection with any and all Ads. All determinations made by Voban Performance Media Partner Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Voban Performance Media Partner Network's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Partner or other third party.
The following terms apply to all Ad Campaigns transmitted via e-mail by Voban Performance Media Partner Network's Partners on behalf of Advertiser. Advertiser will ensure that any and all e-mail based Ads:
shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 ("CAN-SPAM") and any and all Federal Trade Commission implementing regulations;
must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and
must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery).
The rates for Actions shall be set forth in the applicable IO(s). Unless otherwise set forth in the applicable IO, (i) Voban Performance Media Partner Network will invoice Advertiser monthly, and (ii) payment will be due to Voban Performance Media Partner Network within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Voban Performance Media Partner Network may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5%) per year or the maximum amount permitted by law. In addition, Advertiser shall be liable to Voban Performance Media Partner Network for all attorneys' fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Voban Performance Media Partner Network and/or any of its Publishers or Partners.
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Voban Performance Media Partner Network for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
it rejects within five (5) days of its receipt thereof; and
both parties determine is not a Valid Action (as defined below). Where Voban Performance Media Partner Network determines that such Action is a Valid Action, Advertiser must pay for same. A "Valid Action" means an individual person that:
is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser's criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions ("Action Data") that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Voban Performance Media Partner Network, subject to any and all restrictions set forth herein ("Unaccepted Action Data"). Upon Advertiser's acceptance of a Lead/CPA-based Action (and payment to Voban Performance Media Partner Network therefor in accordance with payment terms set forth herein and in the applicable IO), Voban Performance Media Partner Network shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data.
Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Voban Performance Media Partner Network;
will not use the information contained in the Unaccepted Action Data to create any derivative product;
will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
will notify Voban Performance Media Partner Network as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Voban Performance Media Partner Network in the investigation and prosecution of any such unauthorized use or disclosure.
The Agreement shall continue until terminated. Each IO shall continue for the term set forth the IO. Either party may terminate the Agreement and/or any IO at any time with five (5) business days' prior written notice. Upon termination or expiration of the Agreement for any reason:
Advertiser will pay Voban Performance Media Partner Network all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 hereinabove;
any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
any and all Confidential Information or proprietary information of either party that is in the other party's possession or control must be immediately returned or destroyed.
Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
Warranty/Limitation of Liability
THE VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK, SERVICES, VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK ADS, ACTIONS AND AD CODES PROVIDED BY VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK DOES NOT WARRANT OR GUARANTEE ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK, SERVICES, VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK ADS, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK HAS NO LIABILITY, WHATSOEVER TO ADVERTISER OR ANY THIRD PARTY FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES, AND VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK'S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. VOBAN PERFORMANCE MEDIA AFFILIATE NETWORK SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.
Representation and Warranties
The parties agree to the terms in the General Data Protection Regulation Data Processing Addendum, which is incorporated into this Agreement.
Advertiser represents and warrants that:
it has the power and authority to enter into and perform its obligations under the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads (collectively, the “Advertiser Materials”) and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, "Laws");
it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Voban Performance Media Partner Network Ads, by Voban Performance Media Partner Network, its Publishers and Partners, as contemplated by the Agreement;
at all times, the Advertiser Materials and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
it will not disable "back" browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
Advertiser shall fulfill all commitments made in the Ads;
no Ad is targeted to end-users under the age of eighteen (18);
prior to loading any computer program onto an individual's computer including, without limitation, programs commonly referred to as adware and/or spyware, and cookies, Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program and/or cookies;
the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not and will not:
contain any misrepresentations or content that is defamatory;
contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
promote or support gambling or sweepstakes or contests; or
contain any "worm," "virus" or other device that could impair or injure any person or entity;
Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"); and
Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time.
Advertiser shall irrevocably defend, indemnify and hold Voban Performance Media Partner Network, its Publishers, Partners and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
Advertiser's breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
the Ads, Advertiser Products and/or Advertiser websites; and/or
any claim that Voban Performance Media Partner Network is obligated to pay any taxes in connection with Advertiser's participation hereunder.
For purposes of the Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing , technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
the material terms of the Agreement and/or any associated IO(s);
with respect to Voban Performance Media Partner Network, the Unaccepted Action Data and suppression lists; and
any information marked or designated by the Disclosing Party as confidential.
The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein.
Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
is generally available to or known to the public through no wrongful act of the receiving party;
was independently developed by the Receiving Party without the use of Confidential Information; or
was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party.
The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
Advertiser recognizes that Voban Performance Media Partner Network has proprietary relationships with its Publishers and Partners. Advertiser agrees not to circumvent Voban Performance Media Partner Network's relationship with such Publishers and Partners, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Voban Performance Media Partner Network hereunder from any Publisher and/or Partner that is known, or should reasonably be known, by Advertiser to have such a relationship with Voban Performance Media Partner Network, during the term of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Partners already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Voban Performance Media Partner Network shall be entitled to:
injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; and
any and all other remedies available to Voban Performance Media Partner Network at law or in equity.
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 Partner 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.
Assignment. Advertiser may not assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of Voban Performance Media Partner Network, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
an acquirer of all or substantially all of such party's equity, business or assets;
a successor in interest whether by merger, reorganization or otherwise; or
any entity controlling or under common control with such party.
Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of Washington. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to a court of competent jurisdiction located in King County, Washington, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence. Notwithstanding the foregoing Voban Performance Media Partner Network may modify any of the terms and conditions of this Agreement at any time by providing Advertiser with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to Advertiser, Advertiser may terminate this Agreement without penalty within such ten (10) business day period. Advertiser's continued use if the Services ten (10) business days after a change notice has been posted will constitute Advertiser's acceptance of such change.
Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Voban Performance Media Partner Network acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
IN WITNESS WHEREOF, Voban Performance Media Partner Network and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.
GDPR Data Processing Addendum
This General Data Protection Regulation Data Processing Addendum ("GDPR Addendum") is incorporated by reference into the Partner Network Advertiser Agreement by and between You (“Advertiser”), and Us (“Network” or Processor”), (collectively, the "Agreement"). This GDPR Addendum is entered into as of the date of the Advertiser Program Operating Agreement.
This GDPR Addendum sets out the terms that apply when Personal Data, as defined in the Data Protection Legislation, is processed by Network under the Agreement. The purpose of the GDPR Addendum is to ensure such processing is conducted in accordance with applicable laws, including EU Data Protection Legislation, and with due respect for the rights and freedoms of individuals whose Personal Data are processed.
Capitalized terms used but not defined in this GDPR Addendum have the same meanings as set out in the Agreement.
Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Applicability. This GDPR Addendum shall only apply to the extent Advertiser is established within the European Union (“EU”) or Switzerland or the United Kingdom and/or to the extent Network processes Personal Data of Data Subjects located in the EU or Switzerland or the United Kingdom on behalf of Advertiser.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This Section 1 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, the Advertiser is the data controller and Network is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
Without prejudice to the generality of clause 1.1, the Advertiser, as Controller, shall be responsible for ensuring that, in connection with Advertiser Personal Data and the Services, (i) it has complied, and will continue to comply, with all applicable laws relating to privacy and data protection, including EU Data Protection Legislation; and (ii) it has, and will continue to have, the right to transfer, or provide access to, the Personal Data to Network for processing in accordance with the terms of the Agreement and this GDPR Addendum.
Without prejudice to the generality of clause 1.1, Network shall , in relation to any Personal Data processed in connection with the performance by Network of its obligations under this agreement:
process that Personal Data only for the purposes set forth in the Agreement and Schedule 1 and only in accordance with the lawful, documented instructions of Advertiser, except where otherwise required by applicable law. Any processing required outside of the scope of these instructions (inclusive of the rights and obligations set forth under the Agreement) will require prior written agreement of the parties. Where Network is relying on laws of a member of the EU or EU law as the basis for processing Personal Data, Network shall promptly notify the Advertiser of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Network from so notifying the Advertiser;
ensure that it has in place appropriate technical and organizational measures, available for review and approval by the Advertiser , to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and Network complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
assist the Advertiser, at the Advertiser's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators. For the avoidance of doubt, Advertiser is responsible for responding to Data Subject request for access, correction, restriction, objection, erasure or data portability of that Data Subject's Personal Data;
notify the Advertiser without undue delay on becoming aware of a Personal Data breach;
upon termination or expiration of the Agreement, in accordance with the terms of the Agreement and within a reasonable amount of time, delete or make available to Advertiser for retrieval all relevant Personal Data in Network's possession; except to the extent that Network is required by any applicable law to retain some or all of such data. Network shall extend the protections of the Agreement and this GDPR Addendum to any such Personal Data and limit any further processing of such Personal Data to only those limited purposes that require the retention; and
maintain complete and accurate records and information to demonstrate its compliance with this Section 2.4.
The Advertiser consents to Network appointing third-party processors of Personal Data under this agreement, including TUNE (“Sub-processors”). Network confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially similar to those set out in this Agreement. As between the Advertiser and Network, Network shall remain fully liable for all acts or omissions of any Sub-processor appointed by it pursuant to this Section 2.5.
Network may, at any time on not less than 30 days' notice with email sufficing, add or make changes to the Sub-processors. Advertiser may object in writing to Network's appointment of a new Sub-processor within five (5) business days of such notice, provided that such objection is based on reasonable grounds relating to data protection. In such event, the parties will discuss such concerns in good faith with a view to achieving resolution. If Network cannot provide an alternative Sub-processor, or the parties are not otherwise able to achieve resolution as provided in the preceding sentence, Advertiser, as its sole and exclusive remedy, may terminate the Agreement.
Except as stated in this GDPR Addendum, the Agreement will remain in full force and effect. If there is a conflict between the Agreement and this GDPR Addendum, the terms of this GDPR Addendum will control.
Any claims brought under this GDPR Addendum shall be subject to the terms and conditions, including by not limited to, the exclusion and limitations set forth in the Agreement.
Schedule 1 Processing, Personal Data and Data Subjects
Details of Data Processing
Subject Matter: The subject matter of the data processing under this GDPR Addendum is the Advertiser Personal Data.
Duration: As between Network and Advertiser, the duration of the data processing under this GDPR Addendum is until the termination of the Agreement in accordance with its terms.
Purpose: The purpose of the data processing under this GDPR Addendum is the provision of the Services to the Advertiser and the performance of Network's obligations under the Agreement (including this GDPR Addendum) or as otherwise agreed by the parties in mutually executed written form.
Nature of the processing: Network provides performance marketing solutions and such other Services as described in the Agreement, which process Advertiser Personal Data upon the instruction of the Advertiser in accordance with the terms of the Agreement.
Categories of data subjects: Advertiser may submit Advertiser Personal Data to the Services, the extent of which is determined and controlled by Advertiser in its sole discretion, and which may include, but is not limited to, Personal Data relating to the following categories of data subjects:
Employees, agents, advisors, freelancers of Advertiser (who are natural persons); and/or
Advertiser's end-users authorized by Advertiser to use the Services.
Types of Personal Data: Advertiser may submit Advertiser Personal Data to the Services, the extent of which is determined and controlled by Advertiser in its sole discretion, and which may include, but is not limited to identification and contact data; financial information; and/or certain information about Advertiser's end users (such as IP address and device identifier).
Sensitive Personal Data (if applicable): Advertiser shall not send Network any Sensitive Personal Data (as defined in the Data Protection Legislation).