1. Applicability 1.1 These Terms and Conditions read with the Publisher Insertion Order (together, the “Agreement”) shall govern the contractual relationship between a Publisher providing a Campaign to Admolly, as defined below. 1.2 By completing the registration procedure with Admolly affiliate network, the Publisher agrees to have read all the applicable terms and be legally bound by this Agreement.
2. Definitions 2.1 In this Agreement the following terms, indicated with a capital, whether single or plural, will have the following meaning.
3. General 3.1 Admolly is, among others, in the business of operating as a marketing agency that brings together Advertisers and Publishers and for the provision of these services Admolly charges a fee to the Advertiser. 3.2 This Agreement shall be exclusively governed by the laws of the Netherlands. All controversies, disputes or claims arising out of or relating to the Agreement will be exclusively and finally settled by the competent civil court in Amsterdam, the Netherlands. 3.3 If at any time any provision in this Agreement is or becomes illegal, void or invalid for any reason whatsoever, such invalidity shall not affect the validity of the remainder of this Agreement and such invalid provision shall be replaced by another provision which, being valid in all respects, shall have an effect as close as possible to that of the replaced provision. 3.4 Any amendment or modification to this Agreement must be made in writing and signed by a duly authorized representative of each party. 3.5 the parties hereto are independent contractors. There is no relationship of partnership, employment, franchise or joint venture between the parties.
4.8 The Publisher warrants either that the rights to all information and content on the Publisher's website belong to the Publisher or that the owner of the rights to the information and content on the Publisher's website has given his explicit permission to their publication there. The Publisher also warrants that the information and content on the Publisher's website do not infringe any rights of third parties, including IP Rights, or harms the good name and reputation of Admolly and/or its associated Advertisers and that such information and content is not offensive, prohibited or questionable in any way. 4.9 The Publisher shall ensure that the Campaigns are not placed in any context or any internet website that harms the good will or reputation of Admolly and/or the Advertiser. Such sites include but are not limited to sites that promote illegal, misleading, harmful, racist, crime-inducing, terrorism-supporting, abusive content and/or practices. 4.10 In case of a violation of this section, the Publisher shall provide all information necessary in connection with such investigation to Admolly and is obliged to pay a contractual penalty for any infringement, to be determined by Admolly according Admolly’s reasonable discretion in each case. The penalty for each case of violation will depend of the amount of campaigns and damage incurred, but not less than EUR 10,000.
5. IP Rights and License 5.1 All IP Rights relating to the Advertisement Materials, Campaigns, Admolly ́s service and website are owned by Admolly, the Advertiser and/or their licensors. Nothing in this Agreement constitutes the transfer of any IP Rights from Admolly to the Publisher. The Publisher is solely granted a license as described in this Agreement. 5.2 Admolly grants the Publisher a non-exclusive, non-transferable, during the term of this Agreement only, revocable license and right to display the advertisement relating to a Campaign, including all Advertisement Materials in accordance with the Agreement. 5.3 The Publisher may engage third parties to perform the obligations according to the terms of this Agreement. Should Publisher elect to supply all or any of the services by any third party, Publisher shall be liable for the quality of such services and for any delay in or failure to supply the services.
6. Fees 6.1 For the services to be rendered by the Publisher, Admolly agrees to pay for the valid, qualified Transactions generated by the Publisher which are not in conflict with the Agreement and provided that Advertiser has fulfilled its payment obligation for the Transaction to Admolly. 6.2 Approval of Transactions is at the Advertiser’s discretion and will be based on criteria drawn up in advance by the Advertiser. 6.3 The Advertiser may decide that the Publisher may not claim the relevant commission in the event that the Visitor returns the product and/or cancels the Transaction. In that event, the Publisher will receive no commission. 6.4 For the purpose of effecting payments, Admolly shall provide the Publisher with billing numbers regarding Transactions within seven (7) business days after each billable month or any other billing period set forth between the parties. The Publisher may dispute such numbers within the next five (5) business days. The recorded Transactions provided by Admolly are binding for the Publisher, unless Publisher proves the contrary. 6.5 The Publisher agrees that its traffic is monitored for fraud and might be scrubbed accordingly. In case of artificial Transactions, fake/fraud Transactions, technically-faulty Transactions, and any other kind of illegitimate services, Admolly shall alert the Publisher regarding such Transactions and will not be held liable for the payment of the invalidated Transactions. 6.6 The Publisher will issue Admolly with invoices at monthly intervals, or at any other such interval agreed upon between the parties. Payments shall be made to the Publisher within thirty (30) calendar days from the date that the invoice is received by Admolly. 6.7 All payments shall be effected by Admolly via bank transfer, or the method agreed upon between the parties, according to the details specified in the invoice. All bank commissions, fees, and duties for money transfer shall be paid by the Publisher. 6.8 Admolly shall, at all times, be entitled to offset any amount owed to a Publisher against any amount owed by the Publisher to Admolly for whatever reason.
7. Term and Termination 7.1 This Agreement shall commence upon the date that the Agreement is signed by both parties and shall remain in full force and effect until terminated as set forth hereunder. 7.2 Each party is entitled to terminate the Agreement taking into account a notice period of one (1) month. 7.3 Admolly is entitled to terminate this Agreement and/or suspend the Publisher from Admolly ́s service or from a certain Advertiser ́s Campaign if:
7.4 Upon suspension of the Publisher from a particular Campaign, the Publisher shall immediately delete all links to that particular Advertiser. 7.5 Upon termination or expiration of the Agreement for any reason, the Publisher shall immediately cease to use the service and delete all links to Advertisers. Admolly will pay to the Publisher all amounts then due and owing as of the termination date within thirty (30) days upon the receipt of the invoice. In case of pre-payment all unspent funds are subject to refund to Admolly within thirty (30) days after the end of Campaign. Any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate and any and all Confidential Information or proprietary information of either party that is in the other party's possession or control must be immediately returned or destroyed. 7.6 Notwithstanding the termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement shall survive and remain in effect in accordance with their terms.
8. Representations and Warranties 8.1 The Publisher represents and warrants to Admolly that:
9. Liability 9.1 The Publisher shall be fully responsible and liable for the development, maintenance and performance of its channel and/or marketing activities, as well as its content. The Publisher shall be liable for any damage suffered by Admolly or the Advertiser as a consequence of any breach of this Agreement, unlawful act or otherwise. 9.2 In the event Admolly is obliged to compensate damages, the total, aggregate liability of Admolly due to an attributable breach of its obligations, including the breach of a warranty (in Dutch: “toerekenbare tekortkoming”) and/or any unlawful act (in Dutch: “onrechtmatige daad”) or otherwise, is limited to compensation for direct damages, with a maximum of EUR 10,000 . Any liability of Admolly for consequential damages (in Dutch: “gevolgschade”), including – but not limited to – loss and/or damage of data, loss and/or damage to (third party) software, loss of profit, loss of business, loss of anticipated savings, loss of goodwill or reputation, or any other similar financial loss, or damage as a result of claims from third parties, is fully excluded. 9.3 Admolly shall not be liable for the Advertisement Material provided by the Advertiser and the use of Advertisement Material by the Publisher. 9.4 The Publisher shall indemnify Admolly against any claims for damages or other claims for compensation, including fines issued by competent authorities, arising from the contents of the Publisher's website, its marketing activities or any incorrect information given to Admolly by the Publisher. The Publisher shall also indemnify Admolly against and compensate Admolly for any other damages or costs caused by the Publisher's improper, negligent or unauthorised use of Admolly's service, use and distribution of Advertisement Materials and technical problems or loss of data caused by the Publisher.
10. Confidentiality 10.1 A party (the “Disclosing Party”) may, from time to time, disclose to the other party (the “Receiving Party”) certain information relating to the Disclosing Party’s business or customers, affiliates, subsidiaries, agents, or employees; business and marketing plans, processes, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (all collectively referred to as the “Confidential Information”). The Disclosing Party and the Receiving Party acknowledge that Confidential Information will be provided at the sole discretion of the Disclosing Party, and nothing in this Agreement obligates the Disclosing Party, it directors, agents or employees to disclose or grant to the Receiving Party access to any Confidential Information. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party covenants and agrees (a) to use the Confidential Information only for the purposes expressly contemplated in this Agreement; (b) that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, or agent of the Receiving Party without the prior written consent of the Disclosing Party, which may be unreasonably and arbitrarily withheld. 10.2 The Receiving Party acknowledges that the Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Receiving Party agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of the Disclosing Party. The undertakings and obligations of each party under this section shall not apply to any information which it can establish it: (i) became publicly known through no action on the Receiving Party’s part; (ii) was known by the Receiving Party prior to receipt; (iii) was independently developed by the Receiving Party; (iv) was approved for public release by the Disclosing Party’s written authorization; or (v) was required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Disclosing Party is notified immediately of such required disclosure and given the opportunity to seek a protective order. Unless the Advertiser has provided its prior, express written consent, the Publisher will keep (the terms of) the Agreement strictly confidential, and may not make any unauthorized disclosure of the same to any person.