Terms & Conditions

Optima Media Advertiser Agreement

  1. Introduction

This Advertiser Agreement (the « Agreement”) is made between Optima Media S.L., a company registered in Spain, with CIF n° B67228635 having its registered office at Calle Vilamarí, 88-88, 08015 Barcelona (“The Company”) and you (the “Advertiser”) whereby shall market customized advertisements and linked provided by the Advertiser (“Ads”; as further defined below).

  1. Definitions

For the purpose of this Agreement, the following capitalized terms shall have the meaning ascribed to them hereunder.

Ads: has the meaning given in section 3;

Advertiser: has the meaning given in the Preamble and the IO;

Advertiser Ads: has the meaning set out in section 3;

Advertiser Products: has the meaning set out is section 3.

Business day: any day which is not a Saturday or Sunday, Christmas Day, or a bank holiday in any part of Spain.

Business hours: means from 9am to 6pm Monday to Friday

Campaign: Campaign listed in the Insertion Order in the Campaigns and specifications table.

Commencement Date: date the Agreement shall come to existence

Confidential Information: has the meaning set out in section 16;

Conversion: It is an action on which the commercial deal is based, for example, if the commercial deal is CPA, CPL, conversion is respectively action, lead.

CPA: Cost Per Action. This is the payment model following which the Advertiser pays for a specific action, namely registration. CPA is sometimes also referred to as CPL. The action is registration, or another action as described in the Advertiser Agreement.

CPL: Cost Per Lead. See CPA.

Landing page: The Provided URL in combination with the Tracking Code, the Campaign registration page where Visitors are able to sign up.

Lead: means a Visitor clicking through Advertiser Ads and visiting the Advertiser website regardless of whether the Visitor subsequently completes a transaction;

Data Subject: means an identifiable natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

DOI: Double opt in.

GDPR: means the General Data Protection Regulation 2016/679 that sets guidelines for the collection and processing of personal information of individuals within the European Union (EU).

Personal Data: means any information that relates to an identified or identifiable living individual.

Processing: shall be given the same meaning as in the GDPR and, for the avoidance of doubt, hence mean to e.g.: perform an operation or set of operations, whether by automatic means, such as accessing, collecting, recording, registering, organizing, storing, structuring, adapting or altering, deleting, retrieving, consulting, using, disclosing (or otherwise making available) by transmission, dissemination or otherwise, aligning or combining, blocking or destruction of Personal Data.

SOI: Single opt in.

IO: means the Insertion Order. Agreement relating to the advertisement terms and details of a Campaign.

Services: shall mean the services provided by the Company to the Advertiser identified and set forth in this Advertiser Agreement.

Third Country: means any countries outside of the territory of the member states of the European Union, the European Economic Area or the countries which the European Commission has found to guarantee an adequate level of data protection.

Visitor: means any person or entity who clicks on the Advertiser Ads.

Weekly: means an entire week from Monday to Sunday

  1. Optima Media Services

The Company shall provide to the Advertiser the Services set forth in the Agreement. In connection with the Services, the Company shall undertake marketing campaigns with Advertiser (each an “Ad Campain“) by way of distributing Advertiser’s materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, emails, graphic files and similar online media (“Advertiser Ads“) through media placements available on the company owned web assets.

  1. Ads
    1. The Advertiser is the sole owner of any and all property rights with regards to its Ads including but not limited to its own Ads (the “Ads“), logos, trademarks, copyrights, except the portions of the Ads prepared by the Company on the Advertiser’s behalf (“Optima Media Ad“). The Optima Media Ad shall remain the entire property of the Company. Under no circumstances shall the Company be authorized to use the Advertiser’s Ads other than in connection with the Campaign. The Advertiser shall submit its Ads to Optima Media for approval before the commencement of the Campaign set forth in the applicable IO and shall not modify it in any manner whatsoever without the prior consent of the Company once approved.
    2. The Advertiser ensures that all Ads (i) are not illegal, (ii) do not infringe upon the intellectual property of third parties, including without limitation trademarks and/or copyrights, and/or further third party rights and/or personal rights of any third party and (iii) do not contain or link to any material which is – including without limitation – harmful, threatening, defamatory, obscene, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling, advertising for financial and investment products without appropriate licenses), promotes advertising for articles the distribution of which is entirely prohibited or the distribution of which is subject to restrictions that were disregarded when publishing, contains profanity or otherwise contains materials that the Company informs you that it considers objectionable.
      The Company may, at its sole discretion, suspend and refuse any type of Ads falling within the scope of this clause.
    3. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and The Company, subject to the provision 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.
  2. Placement

The positioning, placement, frequency and other editorial decisions related to Ads shall be made by the Company and/or its in its sole discretion. Notwithstanding the foregoing, 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, the Ads may appear at any point of placement and/or distribution that the Company may determine, in their respective sole discretion. The Company is only subject to an obligation of means concerning the placement or distribution of the Ad Campaign on the Company owned web assets. The Company has no obligation of result concerning the traffic of the Ad Campaign.

  1. Ad Code

Unless otherwise stated in writing by the Company, each Ad used by it in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by the Company (“Ad Codes“). Advertiser shall 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 the Company to be used in connection with any and all Ads. Concerning such Ad Codes, due to technical constraints that the Company cannot directly manage, the Company is only subject to an obligation of means. In connection with CPA based Ad Campaigns, if conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information Advertiser agrees to pay the Company a price based on the average value of the conversion rate for a previously agreed period. All determinations made by the Company in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding. Notwithstanding the foregoing, The Company’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and Any third party.

  1. Reporting
    1. Prepayment: The Company shall, when reaching 80% of the agreed budget, request the Advertiser to provide their internal statistics via Email in order to process the next prepayment.
    2. Payments
      1. Weekly: Every Monday, the Company shall request that the Advertiser provide their internal statistics via Email.
      2. Bimonthly (from 1-15 and from 16-30/31):  The Company shall request that the Advertiser provide their internal statistics via Email:
        1. On the next business day following the 15th of the month for 1-15 statistics.
        2. On the 1st day of the following month for the previous month’s 16-30/31 statistics.
      3. Monthly: The Company will request that the Advertiser provide their internal statistics via Email on the first day of each month.
    3. Requirements: Advertiser is required to deliver the statistics within forty-eight (48) hours of the request by the Company or supply a login to their platform in order for the Company to check the statistics.
      The Advertiser shall be required to implement “Sub-id” or “Pixel” tracking to offer the Company accurate reporting.
      Updated reporting must be made available to the Company by the Advertiser on a daily basis either through a login to a platform or via spreadsheet sent by email.
      Invoices are sent by the Company and payment is done by Advertiser in the agreed terms.
  2. Payment
    1. Authorized method of payment. Invoices shall be paid by Advertiser according to the payment terms mentioned on the IO upon the receipt of the invoice by wire transfer, e-payment, paypal or paxum.
    2. Dispute: In the event that Advertiser wishes to dispute the correctness of an invoice, this must be done immediately upon receipt of the invoice but in no event later that within seven (7) working days after the invoice date. If no disputes are made within this time period, the invoice shall be deemed to be accepted by Advertiser.
      The quality of the Service in a subjective sense and the fact that the invoice is based on the Optima Media Statistics, will never give rise to a dispute.
      Undisputed overdue payments will accrue interest at the rate of 15% per annum. The Company may elect at its option to charge interest at the statutory rate under Law 3/2004 on combating late payments in commercial transactions in the alternative. Interest rate shall begin to accrue after fourteen (14) calendar days as from the date on which the invoice (for which payment is due) was issued and sent to the Advertiser, up and until final settlement of the said invoice and shall be calculated on a daily basis.
      In the event of non-payment within the time period agreed on in the IO, Advertiser is in breach of the Advertiser Agreement and the Company has the right to suspend the Services immediately and shall send Advertiser a notification of breach with a remedy period of seven (7) working days (notification will be sent by email). If payment is received within seven (7) working days of the notification of breach date, The Company will resume the Services. If payment is not received within the remedy period of seven (7) working days, The Company has the right to terminate the Advertiser Agreement in accordance with section 11. Advertiser will be liable and will reimburse the Company for any reasonable evidenced costs (made) and/or damages related to the late or non-payment by Advertiser. Furthermore, the Company has the right to demand prepayment by Advertiser in the future or alter the payment conditions in any manner.
      In the event that Advertiser activated a monthly budget, the Advertiser shall notify the Company by Email when 80% of budget is spent.
    3. Value-Added Tax (VAT) 
      1. If the services are subject to VAT under the applicable tax jurisdiction, VAT in the respective statutory amount shall be added to the agreed price and, if Optima Media is the tax debtor of such VAT amounts, paid together with the agreed price by Advertiser to the Company.
      2. If Advertiser is required by any law or regulation to make any withholding or deduction from payments to the Company on the account of taxes, the Advertiser shall, together with the relevant payment, pay such additional amount as will ensure that the Company receives an amount equal to the sum it would have received if no such withholding or deduction had been required. in such case, upon Advertiser’s request, the Company shall provide Advertiser with such available information and documents as reasonably necessary for obtaining an exemption from the withholding or deduction of amounts or for a refund of the amounts to be withheld by Advertiser on the account of taxes under the applicable tax jurisdiction.
  3. Leads/CPA/Unaccepted actions
    1. In connection with Leads and CPA-based Ad Campaigns, Advertiser shall pay the Company for all Actions generated, provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that it rejects within seven (7) working days of its receipt thereof; the percentage of unaccepted lead cannot exceed 5%; and both parties determine that the Lead/CPA-base Action is not a Valid Action (as defined below).
      “Valid Action” means an action by 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 and:
      1. In the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; an
      2. In the case of Leads-based Campaigns, the individual has submitted information that meets all of Advertiser’s criteria as set forth in the applicable IO.
    2. 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 Confidential Information of the Company, 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 the Company therefore in accordance with payment terms set forth herein and in the applicable IO), the Company 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.
    3. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
      1. Shall not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
      2. Shall not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by the Company;
      3. Shall not use the information contained in the Unaccepted Action Data to create any interactive on-line, CDROM or other derivative product;
      4. Shall not publicly display the information contained in the Unaccepted Action Data on the Internet; and
      5. Shall notify the Company 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 the Company in the investigation and prosecution of any such unauthorized use or disclosure.
  4. Data Protection
    1. In the frame of the Optima Media Insertion Order the parties might process Personal Data of individuals within the European Union under the conditions set out by the GDPR:
      1. In the processing of personal data, Advertiser shall be the data controller and the Company shall be the data processor unless otherwise specified in the applicable IO. 
      2. Advertiser agrees to:
        (a) create and maintain a record of its processing activities in relation to this Agreement;
        (b) not process the personal data for any purpose other than the purpose the data was collected for and to perform its obligations under this agreement, if Advertiser cannot provide such compliance it will notify the Company without undue delay who will cease processing the personal data related to this Agreement immediately;
        (c) not disclose the personal data to any person other than to its employees as necessary to perform its obligations under the Agreement;
      3. The Company and Advertiser shall ensure that all employees and other representatives accessing personal data are aware of this clause and have received comprehensive training on Data Protection Regulations and are bound by a commitment of confidentiality.
      4. The Company ensures that it stores data in the European Economic Area.
      5. Both parties undertake to implement the adequate security measures to protect the Personal Data collected, in the framework of Optima Media Insertion Order signed, against fraudulent, abusive, unauthorized or unlawful use or destruction and shall provide proof of the measures, when required, and to evaluate at regular intervals the adequacy of such security measures, amending these measures where necessary.
      6. The Company guarantees to keep a full list of all employees, subcontractors, agent or any other persons who play a role in the collection, processing or can access by any means the data and shall provide such list to the Advertiser whenever requested.
      7. The Company shall not transfer the data collected on behalf of Advertiser to any third countries, unless express authorization of the Data Subject, and if it enters into a contract with the recipient of the data, containing the model clause approved by the European Commission and, has obtained the corresponding authorization from the supervisory authority.  
      8. Advertiser shall provide the Company the contact details of its Data Protection Officer (DPO) or any staff member with that role. The Company undertakes to provide any information and collaborate with Advertiser whenever requested. 
      9. In the case the Advertiser is not established in the European Union, the Advertiser shall designate in writing a representative in the European Union.
      10. The Company undertakes to obtain the necessary consent of the Data Subject prior to the collection of any personal data, including a clear and unambiguous method of withdrawal of consent and should be able to demonstrate this consent to Advertiser whenever requested.
      11. The Company guarantees the availability of a privacy policy to the Data Subject whenever it collects personal data. Without the acceptance and consent of the Privacy Policy by the Data Subject, The Company shall not collect personal data. 
      12. The Company and Advertiser shall without undue delay, notify the other party about any legally binding request for disclosure of the personal data by a data subject, a judicial or regulatory authority unless otherwise prohibited, such as the obligation under criminal law to preserve the confidentiality of a judicial enquiry.
      13. The Company undertakes to take the necessary and appropriate measures in case of a breach of Personal Data and shall inform the Advertiser within a maximum period of 24 hours detailing the violation and the impact for the Data Subject and shall make sure that such breach will not happen again.
      14. The Company shall only process the personal data only according to documented instructions of the Advertiser.
      15. The Company guarantees that it has the means and shall take all necessary measures to allow the Advertiser to respond to reasonable requests from the Data Subject (in relation with their rights according to articles 12 to 22 of the GDPR).
    2. To ensure the performance of the agreement both parties will act as the controller of the other party’s Company Personal Data, for the purposes set out in the Optima Media Privacy Policy.
  5. Terms and Termination

The Agreement shall begin on the Commencement date and shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon 48 hours’ prior written notice.

Upon termination or expiration of the Agreement for any reason:

  1. Advertiser shall pay the Company all amounts then due and owing as of the termination date upon receipt of the invoice as set forth in section 7 hereinabove;
  2. Any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease ad terminate; and
  3. Any and all Confidential or proprietary Information must be immediately return to the other party or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination shall survive and remain in effect in accordance with their terms.
  1. Warranty and limitation of liability
    1. Any and all services (ads, ad guidelines, actions, ad codes, etc) provided by the Company under this Advertiser Agreement and/or any applicable IO are supplied on an “as is” and “as available” basis. To the fullest extent permitted by law, the Company 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, the Network does not warrant or guaranty actions, conversion rates and/or response rates and/or response rates. The Company, services, Optima Media ads, ad guidelines, actions and/or Ad Codes may contain bugs, errors, problems or other limitations. The Company has no liability, whatsoever, to Advertiser or any third party, for any other party’s security methods and privacy protection procedures and 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. The Company has no liability for Advertiser’s use of, or inability to use, the ad guidelines or applicable actions and the Company disclaims any and all warranties, express and/ or implied, that Advertiser’s use of the Company services, Optima Media ads, ad guidelines and/or actions will be uninterrupted or error-free. In no event shall the Company be responsible for any consequential, special, punitive or other indirect damages including, without limitation, loss of data, lost revenue or profits, even if the Company has been advised of the possibility of such damages. Notwithstanding anything contained herein to the contrary, the Company’s liability under any cause of action shall be limited to the amounts paid to the Company by Advertiser during the six (6) months preceding the fact that triggered the Company’s liability. 
    2. DISCLAIMER: For no reasons whatsoever, shall the Company be liable with regards of the editorial content of the Advertiser website, the Advertiser Ads, the Advertiser Products and the Campaigns.
    3. Nothing in the Agreement or in any IO shall exclude or limit the liability of the Company or any of its employees, agents or subcontractors for death or personal injury resulting from their own negligence, fraud or fraudulent misrepresentation.
  2. Cooperation between the parties
    1. The parties hereby agree that the success of the Services and the performance of this Advertiser Agreement requires good cooperation and consultation and implies the availability and competence of resources. As such, each Party declares that it has the necessary resources for the proper performance of its tasks under this Agreement. As the result of this collaboration, the Advertiser shall, as soon as the IO is signed, provide the Company a complete description of the Advertiser Product and with the information and documentation required for the execution of the Services.
    2. The Advertiser shall immediately inform the Company of any modification of the above-mentioned information, in particular in the event of technical and/or substantial modification of the Advertiser website which could have an impact on the distribution of the Campaign and/or traffic it is likely to generate (i.e: in case of a change of domain name). The Advertiser shall also provide the Company with any required assistance to enabling it to perform the Services. Any delay by the Advertiser in providing the above-mentioned information automatically suspends the obligations of the Company under this Agreement. Therefore, the Advertiser undertakes to be particularly diligent and responsive to any requests for information and/or validation of the Company concerning the terms, conditions of performance and contents of the Services, and finally the follow-up of the latter. In this respect, the Advertiser is informed that all information, requests, clarifications, requests for validation relating directly or indirectly to the performance of the Services will be addressed to him via e-mail. If the Advertiser fails to respond to this request within forty-eight (48) hours, the Advertiser is deemed to have irrevocably validated the Company application, including the compliancy of the Services.
  3. Representation and warranties
    1. Advertiser represents and warrants that:
      1. It has the power and authority to enter into and perform its obligations under this Agreement;
      2. It is solely responsible for the editorial content of the Advertiser website, the Advertiser Ads, the Advertiser Products and the Campaigns and is the sole person in charge of the information that it communicates in order to realize the Services subscribed.
      3. It owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Optima Media Ads, as contemplated by the Agreement;
      4. At all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads 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;
      5. It will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
      6. Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
      7. For CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser’s website page where an end-user is directed when such end-user clicks on the Ad, fills in a registration form or takes a similar action in connection with the Ad) contains a prominent link to Advertiser’s privacy policy, which policy shall fully complies with the Data Protection Regulation and provides, at a minimum, adequate notice, disclosure and choices to end users regarding Advertiser’s use, collection and disclosure of their personal information;
      8. Advertiser shall fulfil all commitments made in the Ads;
      9. No Ad is targeted to end-users under the age of eighteen (18);
      10. Prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
      11. In the case where the Company is hosting the website landing page and collecting data for the Advertiser, the Company shall not be liable for no reasons whatsoever of the use made by the Advertiser of these information.
    2. The Ads, Advertiser Products, any Advertiser website linked to from the Ads are under the editorial responsibility of the Advertiser. In this respect, the Advertiser represents and warrants that the Ads, Advertiser website and the Advertiser Products do not:
      1. contain any misrepresentations or content that is defamatory;
      2. 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;
      3. contain any content that violate third-party’s interest, reputation and/or intellectual property rights;
      4. contain any “worm,” “virus” or other device that could impair or injure any person or entity;
      5. violate any applicable national, European and International advertising laws;
    3. In addition, the Advertiser warrants that:
      1. It has carried out thorough and enforced monitoring of the Ads and the Campaign and will immediately provide the Company with any comments and/or observations to ensure full compliancy of related Ads and/or Campaign;
      2. It shall immediately notify the Company of any third-party notification and/or claim with reference to the Ads and/or the Campaign.
    4. In case of breach of any of these obligations, and without this list being exhaustive, the Advertiser acknowledges and agrees that the Company has the right to refuse, unilaterally and without prior notice, access to all or part of the Services. The Advertiser is solely responsible for violations and / or breaches of the applicable regulations with respect to both the Network or any third party, as well as any damages that may arise from these violations and/or failures. Accordingly, Advertiser shall assume sole responsibility for and shall consequently indemnify the Company and/or any third party for any and all claims and/or demands of any nature arising out of the violation by the Advertiser of any obligations under this Agreement. The Advertiser shall indemnify the Company and/or third parties for all direct and indirect damages resulting from such violations and/or breaches.
    5. The Advertiser also irrevocably waives the Company liability in connection with the distribution and/or promotion of the   Campaigns, including the traffic that they are likely to generate, excluding an autonomous action that may result from a failure of the Company in the performance of the Services.
  4. Mutual Indemnification

Each party shall indemnify, defend, and hold harmless other party and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents from and against any and all liabilities, claims, losses, lawsuits, judgments, and/or expenses (including reasonable attorney fees and costs), arising either directly or indirectly from any act or failure to act by any of its officers or employees, which may occur during or which may arise out of the performance of this Agreement.

  1. Confidentiality

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:

  1. 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;
  2. the material terms of the Agreement and/or any associated IO(s);
  3. with respect to the Company, the Unaccepted Action Data and suppression lists; and
  4. 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:
  5. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
  6. 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:
  7. Was independently developed by the Receiving Party without the use of Confidential Information; or
  8. 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. Notwithstanding the cessation of discussions, or the successful completion of a potential business relationship, Confidential Information shall remain confidential pursuant to the terms and provisions of this Agreement for a period of 3 (three) years from the date of mutual execution of this Agreement.
  1. Force Majeure

Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, epidemic, accident, explosion, casualty, act of God, act of terrorism, lockout, strike, labor controversy or threat thereof, riot, insurrection, civil disturbance or commotion, boycott, disruption of the public markets, war or armed conflict (whether or not officially declared), sabotage, act of a public enemy, embargo, delay of a common carrier, the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law; provided that the party relying upon this paragraph shall have given the other party written notice thereof promptly and, in any event, within five (5) calendar days of discovery thereof shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure upon which such notice is based.

  1. Miscellaneous
    1. Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, 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.
    2. Modification. The Advertiser Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the Advertiser Agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Advertiser 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 Advertiser Agreement, the IO shall take precedence.
    3. 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.
    4. 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, the Company acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s). In witness whereof, the Company and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.
    5. Entire Agreement. This Agreement constitutes the entire Advertiser Agreement between the parties and supersedes all previous Advertiser Agreements between the Parties relating to its subject matter. No other representation or statement, whether or not in writing shall form a term of this Advertiser Agreement.  Nothing in this clause shall limit or exclude any liability for fraud.
    6. Notification. Any notice given under this Agreement shall be in writing and delivered or mailed to the addresses of the Parties given above or to any other address notified.  Notices shall be considered given: (a) where sent by hand or courier, upon receipt; (b) where sent by certified mail, return receipt requested, on the second working day following the date of mailing; (c) where sent by fax (subject to retention by the sending Party of confirmation of successful transmission), 4 hours after the time of successful transmission; and (d) by email, upon confirmation of the email by the other party.
    7. Choice of Law/Venue. The interpretation construction and effect of this Agreement shall be construed in all respects in accordance with the law of Spain and the parties agree to submit to the nonexclusive jurisdiction of the courts of Spain. 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 the exclusive jurisdiction of the Spanish courts, and further agrees to comply with all the requirements necessary to give such court jurisdiction. The Parties shall use commercially reasonable efforts to resolve disputes. 
  2. Divisibility clause

This contract is divisible. Each delivery made hereunder: 1) shall be deemed to arise from a separate contract, and 2) shall be invoiced separately and any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein without reference to and notwithstanding any defect of default in delivery of any other instalment.

Last updated on the 13th of November 2018