2MANYAPPS SRL is a company with legal seat in Piazzale delle Belle Arti 2, 00196 Rome, ITALY (“2MANYAPPS”) that acts, amongst other things, as agency for third party advertisers (“Advertised Companies”).
These terms and conditions (“Standard Terms”) shall be deemed incorporated by reference into any insertion order (the “Insertion Order” or “IO”) submitted by 2MANYAPPS as agency and shall govern the Insertion Order.
Contractual relations are established between 2MANYAPPS and you, the Publisher, and not between you and 2MANYAPPS’ advertising clients. For the purposes of this Agreement, “Publisher” shall mean both direct publishers and advertising networks.
The Standard Terms and Insertion Order shall be collectively referred to as the “Agreement”. In case of discrepancies between these Standard Terms and the terms in the Insertion Order, the terms in the Insertion Order shall prevail.
1. TERM OF AGREEMENT.
The Term of this Agreement commences on the Start Date set forth in the Insertion Order and terminates on the End Date set forth in the Insertion Order.
2. CANCELLATIONS / MODIFICATIONS VIA EMAIL.
Except as otherwise provided in the IO, 2MANYAPPS may cancel the IO, in whole or in part, by written notice (email valid) effective within 24 hours after the notice has been sent unless a different period was agreed on the IO (“Change Period”).
The same period applies for any requests of 2MANYAPPS to modify an existing campaign (email valid). Such modifications become valid upon unreserved confirmation by the other Party or when Publisher continues serving the campaign after expiry of the Change Period. Therefore, if Publisher does not agree with a modified offer, Publisher must stop the campaign in question.
3. ADVERTISING MATERIAL (THE “CREATIVE”).
(a) The Creatives including the links provided by 2MANYAPPS must not be changed without the prior written consent of 2MANYAPPS. 2MANYAPPS must approve the final Creative. 2MANYAPPS hereby grants to Publisher a limited, non – exclusive license to use, display, transmit and distribute the advertisement and all contents therein solely for the limited purpose of fulfilling the advertising services covered by this Agreement as specifically requested by 2MANYAPPS and only in accordance with the terms of this Agreement.
(b) If Publisher uses third parties to serve the advertisement hereunder (“Third Parties”), then Publisher shall be liable for such Third Parties complying with the obligations set forth in this Agreement.
(c) Except as expressly set forth in the Insertion Order, the specific positioning of advertisements by the Publisher shall be approved by 2MANYAPPS’ contact person listed in the Insertion Order.
(d) Publisher shall be liable for any unauthorized use of the Creative. Creatives must not be placed in any illegal environment or on media blacklisted by 2MANYAPPS.
(e) 2MANYAPPS reserves the right to suspend the use of any Creative at any time. In the event of such a suspension request, Publisher will take all necessary steps to terminate the use of such Creative and will return all copies of the Creative and Confidential Information (as defined below) to 2MANYAPPS.
4. GENERAL RULES & RESTRICTIONS.
(a) For a Deliverable to be “Valid”, it must meet all criteria stated in an IO and these Standard Terms as well as the following criteria:
(i) All information requested must be provided accurately in a way that 2MANYAPPS tracking mechanisms signal such lead; and
(ii) the underlying user action must have been carried out by a natural person and must not be automatically generated or otherwise in a manipulative way; and
(iii) fraud detection software does not flag such lead as fraudulent; and (iv) payment providers collecting payment from such lead have not flagged such lead as fraudulent.
(b) NO MISLEADING PRACTICES as for example untrue free offers, misleading competitions, click jacking, typo squatting, like jacking; no iframe masking, false redirects, illegal content lockers, spam, malware, spyware, adware, ransomware, scareware or any other deceptive practices. No free trials may be offered or implied without 2MANYAPPS ’s prior approval in writing. Any advertisement implying that user’s device may be infected with a virus and fake virus scans are strictly prohibited. No advertising in any illegal contexts as for example illegal file sharing or other copyright infringing pages, pages promoting or displaying pornography, racism, violence, hate speech or any other indecent, libellous, defamatory contents or other content unsuitable for children.
(c) 2MANYAPPS and Advertised Company shall not be responsible, nor be obliged to pay, for any campaigns with incorrect URL’s, subject lines and/or Creatives that have not been approved according to Section 3 and/or that were changed without the prior written approval of 2MANYAPPS.
(d) Clear records of any activity must be made available to 2MANYAPPS immediately if so requested by authorities or regulatory bodies or in cases where there is reasonable indication for a campaign being in breach of these Standard Terms. Publisher agrees to stop such campaigns immediately upon 2MANYAPPS’s request or when Publisher first becomes aware, whichever is earlier.
(e) 2MANYAPPS and Advertised Company shall not be responsible, nor be obliged, to pay for any runs starting after the “End Date”, or for any over-delivery unless agreed to in writing.
(e) 2MANYAPPS does not allow any first cookie to be overwritten for 24 hours if the second click has been activated by a user clicking on an advertising unit served by an adware of Publisher. Publisher may not alter or interfere with any 2MANYAPPS tracker link to the detriment of another publisher. A tracker link must only be activated via a click as defined by a deliberate action on behalf of the user to visit a clearly advertised website.
(f) Publisher must not use any 2MANYAPPS website as a “pop under” or “sub site”. Affiliate cookies must not be placed unless through a click which is defined as a deliberate user action.
(g) Daily traffic limits must not be exceeded without 2MANYAPPS’s consent.
(h) E-Mail Traffic. All “EMAIL” based traffic sent by Publisher must be 100% opt-in. Publisher must
provide opt-in information for any person who generates a spam complaint as a result of this traffic. In the event of a dispute, Publisher must provide all reasonably requested information and
materials necessary to show such compliance and server logs prior to payment.
(i) Clicks. 2MANYAPPS shall be credited for any low interval multiple clicks from the same source, i.e. double or multiple clicks with intervals of under three (3) seconds.
(j) If parties agreed upon a CPA (Cost per Action) rate, only new paid subscriptions will be counted as action.
(k) If Publisher is hosting the Creative, Publisher needs to adhere to all advertising production specifications provided by 2MANYAPPS. 2MANYAPPS will not pay for any traffic if the tracking tool or tracking link provided by 2MANYAPPS was not incorporated as requested by 2MANYAPPS.
(l) No Brand Bidding. Publisher is not allowed to deliver any ad units triggered by keywords using any trademarks of 2MANYAPPS or Advertised Company.
(m) No Adware or Spyware. Publisher will not engage in any Adware and/or Spyware activities, neither directly, nor through third parties.
(n) For each culpable breach of Section s 4 (b) and 4(l) of these Standard Terms, Publisher agrees to pay to 2MANYAPPS a penalty of one thousand euros, regardless if the breach was committed by Publisher or by a Third P arty sub-publisher. 2MANYAPPS reserves the right to claim higher damages, however, in such case the penalty amount will be offset.
5. PAYMENT TERMS.
(a) Payment as set forth in the Insertion Order shall be made to Publisher within 30 days of receipt of a proper invoice for the particular campaign to email@example.com that details the IO, the campaign invoiced, campaign duration, amount owed, the method and supporting data for assessing the amount owed, and payment instructions.
(b) Invoices must include all Deliverables subject to payment for the invoiced period, time frame and currency. 2MANYAPPS will not be liable to pay for any latent Deliverables that are not captured in the invoice. For instance, 2MANYAPPS shall not be liable to pay on a CPA basis for any latent Action that occurred in June after the June invoice was submitted to and paid by 2MANYAPPS.
(c) Traffic shall be billed separately for each separate Insertion Order.
(d) For up to three (3) months after receipt of the invoice for services, in case any Deliverable is found to be not Valid, Publisher shall either issue a refund to 2MANYAPPS or, provided there are still active campaigns and if mutually agreed within three (3) days, apply a credit to the next month’s invoice.
(e) Budgets agreed on an IO do not represent a binding commitment but a binding cap and must not be exceeded without prior written approval by 2MANYAPPS.
(f) In case a pre-paid budget has not been fully used, Publisher shall, at 2MANYAPPS’ choice, either pay back all overpaid amounts without delay or keep serving the Creatives until the prepaid amount has been fully used. Publisher will indicate promptly if it becomes aware that a pre-paid budget will likely not be used by the End Date.
(g) 2MANYAPPS shall not be obliged to make payment for any Deliverables or Actions (as defined below) which are not in accordance with campaign specifications, special instructions and with all other terms of this Agreement.
6. PUBLISHER REPORTING.
Publisher will, within two (2) business days of the start date on the IO, provide confirmation to 2MANYAPPS, either electronically or in writing, stating whether the components of the IO have begun delivery.
(a) Publisher shall provide 2MANYAPPS with monthly reports or online access to details regarding the number of Deliverables, like impressions delivered, click-troughs and related information for each campaign within 5 days after the end of the month. Publisher will provide 2MANYAPPS with tracking of Actions submitted by periodic reports and also will place tracking code(s) (sometimes known as “pixels”) on its website(s) with populated transaction variables, as reasonably requested by 2MANYAPPS in the IO.
(b) If 2MANYAPPS informs Publisher that Publisher has failed to deliver a report to 2MANYAPPS or has delivered an incomplete or inaccurate report, Publisher will cure such a failure within five (5) business days of receipt of such notice. Failure to cure may result in non-payment for all Actions for which data is incomplete or missing until Publisher delivers reasonable evidence of performance; such report will be delivered within 30 days of Publisher’s knowledge of such failure or, absent such knowledge, within 180 days of delivery of all Deliverables.
(c) If numbers reported by Publisher are higher than 2MANYAPPS’s numbers, the Parties shall negotiate a mutually agreeable basis for invoicing. If the discrepancy exceeds 10% over the invoice period and cannot be resolved within ten (10) business days and a good faith effort to facilitate the negotiation has been made, Publisher shall invoice based on 2MANYAPPS’s numbers.
(a) Publisher warrants that it will comply with applicable laws and regulations, particularly also including laws and regulations pertaining to advertising, these Standard Terms, the IO specifications including the special instructions on the IO and any other specifications communicated by 2MANYAPPS, and that the Creative is not placed in any illegal context.
(b) Publisher indemnifies 2MANYAPPS and Advertised Company against any and all claims from third parties in connection with any breaches of Publisher’s warranties given under this Agreement as well as any and all culpable breaches of Publisher’s obligations under this Agreement.
(c) Both Parties’ other claims under applicable law remain unaffected.
8. GENERAL PROVISIONS.
(a) Notices. All notices shall be in writing and addressed to the party to be served at the respective addresses or Email addresses set forth in the preamble of this Agreement.
(b) Entire Agreement. This Agreement, any schedules or exhibits hereto constitute the entire understanding and agreement between the parties relating to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written representation, understanding, agreement or communication relating thereto. 2MANYAPPS accepts no counter offer and/or other terms and conditions.
(c) Confidentiality. “Confidential Information” means materials, data, and other information concerning the operation, business, projections, market goals, financial affairs, products, services, customers and intellectual property rights of the other Party that may not be accessible or known to the general public. Confidential Information shall include, but not be limited to, the terms of this Agreement, the Creative and any incorporated third party intellectual property, and any information which concerns technical or financial details of 2MANYAPPS’ and advertised company’s operations. The Parties acknowledge that by reason of their relationship under this Agreement, they may have access to and acquire Confidential Information of the other Party. Each Party receiving Confidential Information (“Receiving Party”) agrees to maintain all such Confidential Information received from the other Party (“Disclosing Party”), both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party. The Receiving Party further agrees to use the Confidential Information only for the purpose of performing this Agreement. Notwithstanding the foregoing, the obligations set forth here in shall not apply to Confidential Information which:
(i) is or becomes a matter of public knowledge through no fault of or action by the Receiving Party;
(ii) was lawfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party;
(iii) subsequent to disclosure, is rightfully obtained by the Receiving Party from a third party who is lawfully in possession of such Confidential Information without restriction;
(iv) is independently developed by the Receiving Party without resort to the Confidential Information; or
(v) is required by law or judicial order, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such required disclosure and shall work with the Disclosing Party in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure.
(d) Amendments and Waiver. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only in the form of a non-electronic
record referencing this Agreement and signed by the Parties hereto.
(e) 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 (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond the reasonable control of such Party, in the event of judgments, cease and desist letters, declarations of discontinuance, preliminary injunctions, new legislation such as ordinances, statutes and legal acts, alterations of statutes, acts of the European Union, modifications of agreements with mobile service providers, modifications in connection with regulations, consumer protection agencies, voluntary self obligations or circumstances beyond the party’s reasonable control that occur individually or combined in the course of business provided that the Party relying upon this provision: (i) gives prompt written notice thereof, and (ii) takes all steps reasonably necessary to mitigate the effects of the force majeure event; provided further, that in the event a force majeure event extends for a period in excess of thirty (30) days in the aggregate, either Party may immediately terminate this Agreement upon written notice.
(f) Severability. In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.
(g) Assignment. Neither Party may assign or transfer this Agreement or any obligation hereunder without the prior written approval of the other Party, except that, upon written notice, a Party may assign or transfer to an entity acquiring all or substantially all of the assets of that Party, whether by acquisition of assets or shares, or by merger or consolidation. Any assignment in violation of this Section shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties.
(h) Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, joint venture, or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. Each Party shall bear its own costs and expenses in performing this Agreement.
(i) Governing Law. The Parties agree that this Agreement, and any disputes arising out of or related to this Agreement, shall be governed by, construed, and enforced in all respects in accordance with the laws of ITALY. For all disputes arising out of or related to this Agreement, the Parties submit to the exclusive subject matter jurisdiction, personal jurisdiction and venue of the courts of Rome, ITALY.
9. OTHER DEFINITIONS.
(a) The terms “Affiliate”, “CPA Deliverables” (“CPA”), “CPC Deliverables” (“CPC”), “CPL Deliverables” (“CPL”), “CPM Deliverables” (“CPM”), “Deliverables” and “Third Party” shall have the meaning as defined by The Interactive Advertising Bureau (IAB) in the IAB Standard Terms and Conditions Version 3.0 available under the following link: http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf.
(b) An “Action” means a Valid Lead or a Valid Click as defined above upon which the monthly total Cost-Per-Action invoice (“CPA Payment”) is based, dependent on the campaign type (CPM, CPA, CPC, CPL) as set forth in the IO.