General terms and conditions
DELTA PROJECTS GENERAL TERMS AND CONDITIONS
These Terms and Conditions, the “Terms”, together with the Agreement for Media buyers, constitutes the “Agreement” entered into between Delta Projects AB (“DELTA PROJECTS”) and Company (as defined in the Principal Terms) and set forth the rights and obligations of DELTA PROJECTS and Company. Each of DELTA PROJECTS and Company may be referred to herein individually as a “Party” or collectively as the “Parties”.
DELTA PROJECTS and Company may from time to time agree that Company may use DELTA PROJECTS Services available pursuant to the terms of this Agreement to buy Ads for the Company and its Advertisers.
“Ad Inventory” means the advertising space from Advertising Exchange, SSP or Publisher that DELTA PROJECTS make available through the Services for Advertisers to buy and display Ads.
“Ad Serving Technology” means DELTA PROJECTS’s proprietary Ad serving platform that enables media buyers, such as Company, to display, ad serve and track online activities.
“Advertisement” or “Ad” means an advertisement represented by text, graphics, audio or video, or by rich media such as movement, animation, flash or other promotional activity provided by Advertisers.
“Advertiser” means Company, or any entity (including direct advertisers, agencies, ad networks) that has contracted with Company to purchase, or to have Company purchase on its behalf, Ad Inventory for the purpose of displaying Ads.
“Bid Request” means the HTML encoded text, a single impression of Ad Inventory for purchase in real-time, sent from Advertising Exchange, SSP or Publisher to DELTA PROJECTS.
“Closing Price” means, with respect to a particular auction, the price specified by DELTA PROJECTS to Company.
“Company Bid” means the price offered by Company for a particular impression in the RTB auction, in response to a Bid Request.
“DMP Technology” means DELTA PROJECTS proprietary Data Management Platform that enables media buyers, such as Company, to collect, store and access first-, second- and third party data sources.
“DSP Technology” means DELTA PROJECTS proprietary Demand Side Platform that enables media buyers, such as Company, to bid real-time for the purchase of Ad Inventory from Advertising Exchange, SSP or Publishers.
“End-User” means any visitor to, or user of, any Publisher Web Site.
“Floor Price” means the minimum price for the placement of an Ad on a particular Ad Inventory as determined by a specific Publisher.
“Publisher” means an entity or an individual that owns or makes available website(s) or mobile application(s) for the purposes of offering for sale the Ad Inventory.
“Services” means the Technologies as defined herein and described under Section 3 below.
“Service Fee” the fee for using DELTA PROJECTS services will be a percentage of the Total Media Cost. This fee will be calculated on an impression level and be based on the services used in each impression.
“Total Media Costs” for the DSP and DMP means, with respect to a particular month, the aggregate of all of the Closing Price of Media expressed as Cost-per-mille, CPM, DELTA PROJECTS service fee and (if agreed upon) agency commission. Total Media Cost for the Ad Serving Technology means, with respect to a particular month, the aggregate net budget of all non-publisher paid impressions served.
- DELTA PROJECTS SERVICES
3.1. DSP Technology. The DELTA PROJECTS Service performs an auction with the available bids for each impression (request by an Advertiser to buy Ads). The proprietary DSP Technology creates a bid-based auction for Company to buy Ad Inventory on various Publisher Sites.
3.2 DMP Technology. The DELTA PROJECTS Service enables the collection, storage and analysis of first party data. The Service also includes a data marketplace and DELTA PROJECTS Audience Manager. The Audience Manager creates audiences that can be directly executed with the DSP Technology.
3.2 Big Data Technology. The DELTA PROJECTS Service is the aggregate of all data that is collected through DELTA PROJECTS own data partnerships and proprietary analytics tools. Features that currently use Big Data are: Profiles, Age/Gender/ Income classifiers, IP target lists and Viewability optimizer. DELTA PROJECTS will over time introduce new Big Data features.
3.4 Ad Serving Technology. The DELTA PROJECTS Service includes: Ad serving, website and campaign tracking (of impressions, clicks and orders). DELTA PROJECTS will make the Ad serving Platform available (as a self serviced solution) to the Company to create, deliver and manage digital advertising campaigns.
- ACCESS TO SERVICES
4.1. Access to DELTA PROJECTS Services. Subject to the terms and conditions of this Agreement, DELTA PROJECTS grants Company during the Term a revocable, limited, non-exclusive, non-transferable, non-sublicensable license to access and use the DELTA PROJECTS Services for the purpose of purchasing Ad Inventory, in accordance with the policies and requirements specified by DELTA PROJECTS from time to time. Except as expressly provided herein, Company shall not license, sublicense, sell, resell, lease, transfer, reverse engineer, decompile, disassemble, assign, distribute or otherwise exploit or make available the DELTA PROJECTS Services to any third party, without the prior written approval of DELTA PROJECTS, except to the extent that such restrictions are expressly prohibited by applicable law. Any attempt to sublicense, resell, transfer or assign shall be void and shall result in termination of this Agreement and be subject to reasonable compensation and liquidated damages at the sole discretion of DELTA PROJECTS. The DELTA PROJECTS Services shall be accessed only by authorized persons and individuals of Company.
4.2. DELTA PROJECTS Ownership. As between DELTA PROJECTS and Company, DELTA PROJECTS owns all right, title and interest in all software, databases, and any data or information shared with Company, including aspects related to the DELTA PROJECTS Service, any enhancements thereto and any material provided to Company by DELTA PROJECTS through the DELTA PROJECTS Service or otherwise, including but not limited to information regarding DELTA PROJECTS Confidential Information, and DELTA PROJECTS trademarks, copyrights, and logos, as such may be modified, upgraded and or enhanced from time to time for the purposes of providing the Services.
4.3. Contractual Relationship. To Company’s Advertisers (when applicable), DELTA PROJECTS remains a third party, provided that no contractual relationship is established between DELTA PROJECTS and the Advertisers. Company shall remain to DELTA PROJECTS the sole primary contact for supporting DELTA PROJECTS’s requests and services in connection with Company’s Advertisers. Further, all payments due to DELTA PROJECTS are due regardless of whether Company has collected payment from Advertisers or agents of those Advertisers.
4.4. Right to Reject Ads. Company acknowledges that DELTA PROJECTS is entitled to reject Ads in the event DELTA PROJECTS reasonably believes that such Advertisements do not comply with the Content Guidelines and generally are likely to bring a claim about which DELTA PROJECTS may be contractually obliged to indemnify an Advertising Exchange, SSP or Publisher.
- GENERAL PROVISIONS REGARDING FEES
5.1. General. If Company fails to pay the Total Media Costs invoiced to Company within the Due Date, DELTA PROJECTS shall reserve the right, in addition to its other remedies, to suspend Company’s participation in the DELTA PROJECTS Services until Company pays all overdue payments. To all past due amounts DELTA PROJECTS may charge interest which will equal to the maximum rate allowed by law.
5.2 Taxes. All amounts payable hereunder are exclusive of any value added tax (VAT), use or sales taxes or similar taxes. Except for taxes on DELTA PROJECTS’s income, Company agrees to pay all applicable taxes or charges imposed by any government entity in connection with Company’s use of the DELTA PROJECTS Services.
- PRIVACY AND USER DATA
6.1. Data Privacy. Data means all confidential and proprietary business data supplied or provided by or otherwise made available to DELTA PROJECTS and/or Company in connection with this Agreement, including information on new business models, pricing and any personal data (information relating to an identified or identifiable individual).
Each party shall maintain the confidentiality of the Data. Neither party shall reveal the data nor, without the prior written consent of the other disclose such data except for the purpose of performing its obligations under this Agreement. The parties shall take all precautions reasonably necessary to prevent an unauthorized disclosure or use of such data by employees or third parties.
7.1. Confidential Information. As used herein, “Confidential Information” means any non-public information, regardless of whether it is in tangible form, disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement and which is identified or marked as “confidential” or “proprietary” or which, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. DELTA PROJECTS Confidential Information includes, without limitation, the terms of this Agreement and any non-public information relating to the Service. Except as otherwise expressly permitted under this Agreement, the Receiving Party will not disclose any Confidential Information to third parties.
7.2. All information that DELTA PROJECTS collects through tracking at Company, their Advertisers website(s) or through activities conducted by, Company and/ or their Advertisers, referred to hereinafter as “Confidential Information”. DELTA PROJECTS agrees to hold Confidential Information separate from other information regardless of whether the information disclosed in writing, orally, digitally or otherwise. DELTA PROJECTS agrees to never use Confidential Information in their own or other clients’ online activities.
DELTA PROJECTS has the right to use Confidential Information in order to track online activities or to help Company and/or their Advertisers purchasing media or optimize their online activities. Confidential Information should only be disclosed to personnel who have direct need to know about it. The parties are entitled to share Confidential Information with personnel within their respective companies and / or any third party with whom the Customer cooperates to the extent necessary to fulfill obligations under all agreements signed between the parties.
7.3. Information shall not be deemed Confidential Information if the Receiving Party can show by competent evidence that such information: (a) was known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) became known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) became publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.
7.4. Each Party shall use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information during the Term and a period of three (3) years following the termination of this Agreement. Confidential Information may be disclosed only to: (a) employees and agents of the Parties that have a need to know such information in the course of their duties (and with respect to agents, who are under a contractual duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 7); (b) legal or financial advisors or potential acquirers of each of the Parties on a need to know basis (provided that such advisors and/or acquirers are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 7); (c) the applicable Publisher and/or Advertiser (provided that such Publisher and/or Advertiser are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 7); or (d) if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable prior written notice to the Disclosing Party (if legally permissible) and uses commercially reasonable efforts to cooperate with the Disclosing Party’s attempt to obtain a protective order). Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information that is in the possession of the Receiving Party.
- REPRESENTATIONS AND WARRANTIES
8.1. Mutual Representations and Warranties. Each Party hereto represents and warrants to the other Party that: (a) such Party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its representations, warranties, terms and conditions and (d) such Party shall conduct its business and perform hereunder in compliance with all applicable laws, rules and regulations.
8.2. Company’s Representations and Warranties. Company represents and warrants that:
(a) the Advertisements do not violate or infringe the intellectual property rights of any third party;
(b) it will pay DELTA PROJECTS the due payments under the terms of this Agreement regardless of whether Company has collected payment from Advertisers or agents of those Advertisers.
8.3. DELTA PROJECTS’s Representations and Warranties. DELTA PROJECTS represents and warrants that:
(a) it is the sole owner of the DELTA PROJECTS Services and has secured all necessary licenses, consents and authorizations for operation of the DELTA PROJECTS Service;
(b) it is in compliance with the applicable laws and regulations related to this Agreement.
9.1 Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING ITS PRODUCTS, SERVICES OR INFORMATION THEREON OR OTHERWISE RELATING TO THIS AGREEMENT AND/OR THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS OTHERWISE SET FORTH HEREIN, DELTA PROJECTS DOES NOT WARRANT THAT ITS PRODUCTS, SERVICES OR INFORMATION SHALL OPERATE UNINTERRUPTED OR ERROR-FREE.
10.1. By DELTA PROJECTS. DELTA PROJECTS shall defend, or settle any claim, demand, suit or proceeding (“Claim”) brought against Company by any third party arising out of a breach of any representation or warranty provided by DELTA PROJECTS under this Agreement. In addition to any Ad Inventory made available on Publisher Sites, if and to the extent that DELTA PROJECTS is indemnified by the Publisher with respect to the Content Guidelines or any such similar content (“Indemnified Inventory”), DELTA PROJECTS will pass through such indemnity to Company for third party Claims brought against Company alleging that the Indemnified Inventory does not comply with the Content Guidelines.
10.2. By Company. Company shall defend, indemnify and hold DELTA PROJECTS and its affiliates, and its respective directors, officers, employees, agents and representatives harmless from and against any and all liabilities, expenses (including reasonable attorneys’ fees), losses and damages relating to any third party claim arising out of: (a) a breach of Section 6 or of any representation or warranty provided by Company under this Agreement; (b) a claim that the Company Service or an Ad served on any Publisher Site infringes or misappropriates any third party intellectual property right; (c) a claim that an Ad is libelous or defamatory or otherwise violates the rights of any third party; or (d) or arising out of a violation of COPPA by Company with respect to Publisher Sites flagged as Children’s Sites.
10.3. Indemnification Procedures. The obligations of each Party (the “Indemnitor”) under this Agreement to defend, indemnify and hold harmless the other Party and its respective directors, officers, employees, agents and representatives (each an “Indemnitee”) shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
- LIMITATION OF LIABILITY
Liability for loss caused by Adserving activities, such as but not limited to; down time or loss of bought media should be limited to the amount invoiced for that activity by DELTA PROJECTS to Company.
EXCEPT WITH RESPECT TO CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY WHETHER IN TORT (INCLUDING FOR NEGLIGENCE), CONTRACT MISREPRESENTATIONS OR OTHERWISE FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF INCOME, LOSS OF CUSTOMERS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. EACH PARTY’S TOTAL AGGREGATE LIABILITY IN CONTRACT; TORT INCLUDING NEGLIGENCE; MISREPRESENTATION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR OBLIGATION OF THIS AGREEMENT SHALL BE LIMITED TO THE REVENUE ACTUALLY RETAINED BY DELTA PROJECTS UNDER THIS AGREEMENT IN THE LAST SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE; EVEN IF SUCH LOSSES RESULT FROM THE PARTY’S DELIBERATE PERSONAL REPUDIATORY BREACH OF THIS AGREEMENT.
12.1. Modification. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by both Parties.
12.2. Governing Law and Jurisdiction. In the event the parties are unable to resolve the dispute through negotiations, the dispute shall be conclusively determined through arbitration in accordance with the Swedish Arbitration Act applicable from time to time. Swedish law shall govern the Agreement.
12.3. Severability and Waiver. If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
12.4 Survival. Sections B, C, D and E of the Principal Terms and Sections 2 (“Definitions”), 5 (“General Provisions regarding Fees”), 6 (“Privacy and User Data”), 7 (“Confidentiality”), 8 (“Representations and Warranties”), 9 (“Disclaimer”), 10 (“Indemnification”), 11 (“Limitation of Liability”) and 12 (“Miscellaneous”) of these Terms will survive the expiration or termination of this Agreement.
12.5. Force Majeure. Neither Party shall be liable for delay or default in the performance of its obligations under this Agreement if such delay, stoppage or default is caused by conditions beyond its reasonable control which prevents or substantially limits performance, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, acts of God, or labor disputes. If a Party claims occurrence of the Force Majeure event, it will promptly notify the other Party of such in writing giving the reasons for, and the expected period of any delay or stoppage of the other Party’s performance. Either Party may, if the delay or default or stoppage caused by the Force Majeure event continues for more than thirty (30) continuous days, terminate this Agreement with immediate effect by giving written notice to the other Party and both Parties will be discharged from any future liability to perform and neither Party will be liable to the other Party for such termination or the consequences thereof.
12.6. Notices. All notices, requests, approvals, demands and other communications hereunder must be in writing and shall be deemed given: (a) if delivered personally, upon receipt; (b) if sent by email, on the day it is sent, if a business day, and otherwise, on the next following business day, unless the sending Party is notified that the email address is invalid; (c) if sent by facsimile, upon receipt by the sending Party of an error-free transmission report; or (d) if sent by overnight courier service, or mailed by certified or registered mail, return receipt requested, postage prepaid, upon receipt. Notices to Company must be sent to the address set forth on the first page of the Principal Terms. Notices to Delta Projects must be sent to:
Delta Projects AB
115 23 Stockholm
Either Party may change its address for notices by providing at least fifteen (15) days’ prior notice to the other Party in the manner set forth in this Section.
12.7. Cumulative Remedies. No rights or remedy herein conferred upon or reserved to either Party hereunder is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this Agreement, or under applicable law, whether now or hereafter existing.
12.8. Interpretation. Any headings contained in this Agreement are for convenience only and will not be employed in interpreting this Agreement. The Parties and their respective counsel have negotiated this Agreement. This Agreement will be interpreted fairly in accordance with its terms and conditions and without any strict construction in favor of or against either Party. This contract is written in English and, if it is translated into any other language, the English-language version shall control.
12.9. Further Assurances. The Parties hereby covenant and agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, the Parties shall promptly execute and deliver any further legal instruments and perform any acts, which are or may become necessary to effectuate the purposes of this Agreement.
The Parties herby agree, in accordance to above, to that DELTA PROJECTS processing information according to DELTA PROJECTS Data Processing Agreement (DPA) as presented in Delta projects DPA 1.0.
12.10. Binding Effect. This Agreement and its rights, privileges, duties and obligations shall inure to the benefit of and be binding upon each of the Parties, together with their respective successors and permitted assigns.
12.11. Assignment. Neither Party shall assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement to an acquirer of all or substantially all of such Party’s assets, stock or business (whether by sale, merger, reorganization, operation of law, or otherwise), without the other Party’s prior written consent.
12.12. Entire Agreement. This Agreement represents the entire understanding and agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes and terminates all previous and contemporaneous verbal or written negotiations, term sheets, agreements and understandings between the Parties with respect to such subject matter. This Agreement shall not be valid until executed by a duly authorized representative of each Party.