These Terms and Conditions for Publishers (the “Terms and Conditions”) are incorporated by reference into each Publisher Insertion Order, which specifically refers to these Terms and Conditions, executed by and between ANTIPODES DIGITAL, S.L. (“Antipodes”) and Client. Each Insertion Order together with these Terms and Conditions, form the “Agreement”. In case of discrepancy between the Insertion Order and these Terms and Conditions, the Insertion Order will prevail.
1. SERVICES. Antipodes will facilitate transactions between the Client (Publisher) and third parties (Buyers) engaged in purchasing, creating and/or displaying ads on Client´s Sites and other digital properties owned and/or managed by Client (“Client´s Properties”), as well as manage and optimize Client’s advertising inventory located on the said Properties (the “Services”). Buyers shall purchase such advertising inventory to deliver promotion activity to the Client´s Properties (“Advertisements”). Advertisements will be provided in the format specified within the Insertion Order and, unless otherwise stated in the Insertion Order, will be displayed on a programmatic basis and will be sold on a CPM basis, according to the relevant Insertion Order, to those Buyers selected in Antipodes’ sole discretion.
Notwithstanding the preceding sentence, Client may by written notice to Antipodes elect to refrain from transaction with any such Buyer. “Buyers” means any party engaged in purchasing, placing and/or utilizing Client´s advertising inventory to deliver promotion activity on Client´s Properties, including without limitation, media, direct advertisers, agencies, ad exchanges and/or ad servers.
2. OBLIGATIONS. Client hereby agrees to cooperate with Antipodes to enable the provision of the Services, and comply with instructions provided by Antipodes to Client in connection with Antipodes’ provision of Services hereunder.Client will notify Antipodes at least 10 business days prior of any material changes to the Client´s Properties that would materially change the target audience or materially affect the size or placement of the Advertisements specified on the relevant Insertion Order. If Client has failed to provide such notification, Antipodes may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Advertisement delivered after such modification.
Client shall not attempt to reverse engineer, decompile or dissemble Antipodes´ advertising technology. When Client receives the relevant code, Client agrees to not alter the code in any way without the prior written permission of Antipodes. Client is solely responsible for all editorial aspects of the Client´s Properties where the Advertisement will be displayed. Antipodes has no right to control any aspects of the said properties.
Each Party shall comply with all applicable laws, rules and regulations relevant to the performance of its obligations under the Agreement, including but not limited to all relevant privacy and data protection regulations. In detail, at all times during the Term, Client will: (i) maintain a privacy policy conspicuously on the Client´s Properties that complies with applicable law and, at a minimum, includes information on the type(s) of data collected from users by the website, the Client Properties’ use of any such data and the types of technologies used by the website to collect such data (e.g., cookies, pixels or other similar technologies); (ii) provide a brief explanation within the Client Properties’ privacy policy explaining that Client works with third parties which Client allows to target and serve advertisements, and use cookies on the Client´s Properties, to collect non-personally identifiable data for use in connection with the delivery of such advertisements; and (iii) include a conspicuous link within the Client Properties’ privacy policy to allow users to opt-out of receiving targeted advertisements.
Client will (i) allow the display of ads without modification on the Client´s Properties and in the manner and location agreed with Antipodes; (ii) not prevent or inhibit the display of the ads in whole or in part; (iii) not place Advertisements on blank or invisible properties or on properties with no content or in any way deceptive to the users; (iv) not place Advertisements before, after or next to any defamatory, offensive, hate, pornography, obscene or unlawful content/language or next to content that violates any applicable law or regulation and/or violates any right of any third party. and (iv) not transmit any personally identifiable information about its users to Antipodes. Client´s Properties and Client’s other activities in connection with the Client’s use of the Services shall not contain, or contain links to, content promoting the use of illegal substances, pornography, content promoting illegal activity, racism, hate, “spam,” mail fraud, pyramid schemes, or investment properties or advice, not permitted by law; or content that is libelous, deceptive, fraudulent, misleading, obscene, defamatory, gambling related, hateful, unethical, contrary to public policy, or otherwise unlawful and shall be of a quality and design that allows Antipodes the opportunity to maximize its representation of the Client´s Properties.
Client acknowledges that Antipodes has no responsibility to review the content of the Client´s Properties.
A Client´s account will be created in connection with Client’s use of the Services (the “Account”), to be accessed and/or used solely by employees, agents, clients, and independent contractors of the Client who are explicitly authorized by Client to use the Services (each a “Permitted User”). Client acknowledges and agrees: (i) to keep, and ensure that Permitted Users keep all Account login details and passwords secure at all times; and (ii) to promptly notify Antipodes in writing if Client becomes aware of any unauthorized access or use of Client’s Account or the Services. Client shall ensure that the Permitted Users comply with the terms of the Agreement and shall be solely responsible for any breach of the Agreement by a Permitted User.
3. TERM. TERMINATION. CHANGES. The Agreement shall commence on the date of the Insertion Order and continue until terminated by the parties as provided herein (the “Term”). Notwithstanding the preceding sentence, either Party may cancel an Insertion Order at any time with two (2) business days notice (notice via email will be valid). Termination of this Agreement shall not relieve either party from payment obligations arising prior to such termination. For the shake of clarity and by way of example, if Antipodes cancels an Insertion Order, Antipodes shall only be responsible for the previously delivered impressions and revenue. No change, modification, alteration or addition of or to any provision of the Agreement shall be binding unless in writing and executed by or on behalf of both Parties by a duly authorized representative. Nonetheless, modifications of an Insertion Order shall be binding if made, acknowledged and accepted in writing (fax, letter, email) by an authorised representative of the Parties. Impression levels and CPMs can be adjusted through email confirmation.
If Antipodes, in its sole discretion, determines that Client has breached any of Client´s representations, warranties and/or obligations hereunder, Antipodes may immediately terminate this Agreement. Furthermore, in Antipodes’ sole discretion, Antipodes reserves the right to withhold any revenue if Client (i) breaches the Agreement, or (ii) engages in any deceptive or fraudulent activity, including, without limitation, clicks without referring URLs, extraordinarily high numbers of repeat clicks, fraudulent impressions generated by any person, robot, automated program or similar device, or any clicks from non-approved root URLs (as determined by Antipodes in its sole discretion).
4. CONSIDERATION. REPORTING. For all Advertising placed on Client´s Properties, Antipodes shall pay the Client a flat rate CPM, according to the relevant Insertion Order. Antipodes adjustments to revenue payout could include, but is not limited to costs associated with credit card fraud, advertising clawbacks, fraudulent impressions, origin and quality of the traffic, and accuracy and completeness of information required for campaign tracking. If any traffic relating to Client´s Properties is found to be purchased, invalid, misrepresentative or otherwise fraudulent in nature, Antipodes reserves the right to withhold any or all revenues due to the Client notwithstanding any contract term, course of dealing or understanding to the contrary. In the event that adjustments occur, Client will not be guaranteed the CPM rate defined on the relevant Insertion Order or any subsequent CPM rate changes notified by Antipodes via email.
Subject to the reception of a valid and complete invoice, all amounts due and owed to the Client by Antipodes shall be paid within 60 days as of the invoice date.
Antipodes may suspend any payment owed to the Client until the relevant amount is collected from the relevant/s buyers. A minimum threshold of $50/€50 is required to process payments to the Client. If the relevant amount does not exceed $50/€50, Antipodes shall withhold payment until such time when total payment owed to Client exceeds $50/€50. Antipodes will not carry any intermediary bank fees. Payments shall be done in the currency agreed in the relevant Insertion Order. Each Party is responsible for paying any taxes, duties, levies, tariffs and other governmental charges including, without limitation, VAT (collectively, “Taxes”) for which such Party is legally required by applicable law or authorities
Reporting on impression numbers and CPMs is based on Antipodes’ statistics. The average CPM to be paid to Client will always be equal to or above the CPM floor as specified on the Insertion Order. “Floor CPM” means the CPM designated on the Insertion Order under the heading “Floor CPM” (if any). The Floor CPM shall be calculated based on the monthly impressions actually served, as calculated in accordance with Antipodes´ transaction records for such month.
Client agrees that: (i) Antipodes will raise all invoices in respect of the revenue generated under each IO and all Taxes required by applicable law or authorities, as part of a self-billing arrangement; (ii) not to raise any invoices itself; (iii) to accept each self-billed invoice; and (iv) to immediately notify Antipodes in the event that it ceases to be registered for VAT, transfers its business as a going concerns or becomes registered for VAT under another VAT registration number.
Antipodes’ statistics on impression numbers will be binding for the Parties unless there is a discrepancy between Antipodes´ reported impression statistics and Client´s impression statistics of ten percent (10%) or higher. In that instance Parties shall work together in good faith to resolve such discrepancy. In the event that the Parties are not able to resolve such discrepancy, then the amount due to the Client shall be the amount equal to the amount calculated by Antipodes to be due to Client plus the amount calculated by the Client to be due to Client divided by two (2) and limited to the lesser of the following amounts: i) the latest invoice already paid by Antipodes to Client; or ii) $500/€500. Any amount payable by Antipodes to the Client will not accrue interests.
In this Agreement, “$” refers to U.S. Dollars.
5. REPRESENTATIONS & WARRANTIES. Client hereby represents and warrants to Antipodes that (a) this Agreement is a duly authorized, binding agreement of Client and all necessary actions of Client have been taken to authorize this Agreement. Client represents; (b) it owns all of the Client Sites and/or has the necessary authority to enter into this Agreement with respect to the Client Sites; (c) the URLs listed on the Insertion Order are the only URLs on which Advertisements shall run; (d) Client and each Client Site will comply with any and all applicable laws, rules and regulations (including but not limited to all relevant privacy and data protection regulations); and (e) that the Client Site(s) do not and will not contain: (i) any content that is defamatory, libelous, or that violates any applicable law or regulation, (ii) any content that infringes or violates any copyright, trademark, patent, right of publicity, right of privacy, moral right, or other right of any third party, (iii) nudity, pornography, or offensive graphics, content or language; (iv) hate material or inappropriate or controversial subject matter of any nature. In no event shall Antipodes pay to the Client any revenue that is derived from advertising on such websites.
Antipodes hereby represents and warrants to Client that this Agreement is a duly authorized, binding agreement of Antipodes and all necessary actions of Antipodes have been taken to authorize this Agreement.
Client understands and agrees that from time to time the Client´s Properties and/or the Advertisements may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which may undertake from time to time; or (iii) causes beyond the control of Antipodes or which are not reasonably foreseeable by Antipodes, including, without limitation, interruption or failure of telecommunication transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of sites or interfaces, properties congestion or other failures. Therefore, Antipodes cannot warrant that the Services will be provided error-free, uninterrupted, completely secure or virus-free and Client agrees not to hold Antipodes liable for any of the consequences of such interruptions.
Each party warrants that it has all necessary licenses, rights and clearances to perform its obligations under this IO (including, but not limited to, the Client obtaining all necessary rights, waivers and permissions from users to each Client´s Property).
EXCEPT FOR THE WARRANTIES HEREIN DESCRIBED, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY ANTIPODES. ANTIPODES DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT, AND FURTHER DISCLAIMS ALL WARRANTIES WITH REGARD TO THE RESULTS CLIENT MAY OBTAIN (INCLUDING THE PURCHASING OF CLIENT´S ADVERTISING INVENTORY) FROM ENTERING INTO THIS AGREEMENT. THE ANTIPODES SERVICES ARE AVAILABLE ON AN “AS-IS” BASIS AND ANTIPODES DISCLAIMS ALL WARRANTIES RELATED THERETO EXCEPT AS EXPRESSLY SET FORTH HEREIN. UNDER NO CIRCUMSTANCE SHALL ANTIPODES HAVE ANY LIABILITY TO CLIENT OR ANY THIRD PARTY EXCEPT FOR ANTIPODES’ INTENTIONAL MISCONDUCT.
6. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, NOR SHALL ANY PARTY BE LIABLE TO THE OTHER FOR DAMAGES DUE TO THE LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION, INCURRED BY EITHER PARTY ARISING OUT OF THIS AGREEMENT (PROVIDED THAT THIS LIMITATION SHALL NOT LIMIT CLIENT’S OBLIGATION TO INDEMNIFY HEREUNDER), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ANTIPODES OR ANY OF ITS AFFILIATES BE LIABLE TO CLIENT FOR AN AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY ANTIPODES PURSUANT TO THIS AGREEMENT.
7. INDEMNIFICATION. Client agrees to indemnify, defend, and hold harmless Antipodes (including its respective officers, directors, employees, shareholders, affiliates, representatives and agents) from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees) and damages arising out of or in connection with any (a) violation of applicable laws, rules or regulations; (b) products and/or services offered, sold or otherwise provided on the Client´s Sites, or otherwise contained in any content or promotional displays; (c) infringement of an intellectual property right or other right of any third party by Client, a Client Site or otherwise; (d) any claim by a third party arising out of or relating to Client’s actions, omissions, or obligations under this Agreement; (e) failure to publish or abide by its privacy policy or hosting or delivering content on any Client Site that is obscene, defamatory, illegal, deceptive, gambling- related or hateful; or (f) breach by Client of any representation, warranty, or covenant set forth in this Agreement. Antipodes agree to indemnify, defend, and hold harmless Client (including its respective officers, directors, employees, shareholders, affiliates, representatives and agents) from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees) and damages arising out of or in connection with Antipodes’ gross negligence or willful misconduct.
8. LICENSES. Subject to the terms of this Agreement, Client hereby grants to Antipodes a non-exclusive, non- transferrable, non-sublicense able, worldwide, royalty-free license to use Client’s trademarks, trade names and logos (the “Client Marks”) and for using the Client Marks in Antipodes’ presentations, marketing materials, client lists and web listings of clients. Client grants no other rights than are expressly granted hereunder, and Antipodes acknowledges Client’s exclusive ownership of the Client Marks. Antipodes agrees not to take any action inconsistent with such ownership. Client may terminate, in whole or in part, the Antipodes’ license granted under this section if, in Client’s sole discretion, such use does not meet such party’s then-current trademark usage policy or similar policies.
9. CONFIDENTIALITY: “Confidential Information” means any tangible and intangible non-public information in any form (including written information, oral statements and electronically stored data) which a party discloses (the “Discloser”) to the other party (the “Recipient”) including, without limitation, information relating to trade secrets, systems, know-how, products, processes (including manufacturing processes), inventions, computer software programs, marketing or sales techniques, financial condition, costs, business interests, initiatives, objectives, plans, strategies, customers, suppliers, lenders, underwriters, or employees, that is marked as confidential or identified at the time of disclosure as being confidential or is otherwise disclosed under circumstances that would lead a reasonable person to conclude that such information is confidential, excluding information that: (a) was in Recipient’s possession before receipt from the Discloser; (b) is in or enters the public domain without a breach of this Agreement; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; (d) is disclosed by the Discloser to a third party without a duty of confidentiality; or (e) is independently developed by Recipient without use of or reference to the Discloser’s Confidential Information. Recipient will protect the Confidential Information, for three (3) years from the date of disclosure, by using at least the same degree of care as it uses to protect its own Confidential Information, but no less than a reasonable degree of care, to prevent unauthorized use, disclosure or publication. Not limiting the foregoing, Recipient: (a) will not use, disclose, make available or reproduce the Confidential Information (or permit others to do so) except as expressly authorized in this Agreement; (b) will not disclose any such Confidential Information to anyone except employees and directors of Recipient to whom disclosure is necessary for the performance of the Agreement; and (c) will appropriately notify such employees and directors that the disclosure is made in confidence and will be kept in confidence in accordance with this Agreement. If Recipient becomes aware of any loss or unauthorized disclosure of Confidential Information, Recipient will promptly notify Discloser of such and use reasonable efforts to retrieve such Confidential Information. Recipient’s disclosure of Confidential Information pursuant to a judicial or administrative order will not be deemed to be a breach of this Agreement, provided Recipient (i) provides timely written notice of such order to the Discloser and (ii) reasonably cooperates with the Discloser’s efforts to contest or limit the scope of such order.
10. MISCELLANEOUS: Any Insertion Order entered into between the parties shall be deemed to incorporate these Terms and Conditions. The Agreement shall constitute the full Agreement between the Parties with respect to its subject matter and shall supersede any and all prior agreements and understandings relating thereto. The Parties are independent contractors and the Agreement does not establish an employer/employee relationship, joint venture, agency or partnership between the parties. Neither party shall assign any of its rights or obligations under this Agreement to any other entity without the other party’s prior written consent; provided that Antipodes may assign or transfer the Agreement and its rights/obligations under the Agreement to an entity acquiring all or substantially all of the assigning Antipodes’ assets, whether by acquisition of assets or shares or by merger or consolidation. Each party agrees to perform acts and to execute and deliver any further documents as may be reasonably necessary to carry out the intent and provisions of the Agreement. Notwithstanding anything else contained herein to the contrary, Antipodes shall not be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure of its performance arises by reason of any Act of God, actions of any government or any governmental body, acts of war, the elements, strikes or labor disputes, or other cause beyond the control of Antipodes. If any of the terms contained in this Agreement shall, for any reason, be held to be void or unenforceable, it shall not affect the validity or enforceability of any other term in this Agreement. The failure of either party to enforce at any time any of the provisions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either Party to enforce each such provision thereafter. The parties agree that this Agreement may be executed and delivered by electronic signatures and that the signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility. None of the parties will dispute the validity and enforceability of the Agreement for the mere fact of having been executed with electronic signatures. The Agreement may be executed and delivered (including by electronic means) in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Notices to be given or submitted by either Party to the other pursuant to this Agreement shall be in writing, by fax, mail or email and shall be sent to the address for each Party set forth on the relevant Insertion Order, or at such other address as shall be given by either Party to the other in writing. Notice shall be considered effective on the earlier of actual receipt or: (a) the day following transmission if sent by a facsimile or email followed by a written or electronic confirmation; (b) two (2) days after posting when sent via an express commercial courier; or (c) five (5) days after posting when sent via certified mail. This Agreement shall be governed by and construed under the laws of Spain without reference to principles and laws relating to the conflict of laws. The competent court of the city of Madrid (Spain), shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. Notwithstanding the foregoing, Antipodes may seek injunctive or other equitable relief in any jurisdiction in order to protect its property rights.