Termos e Condições 2017-05-11T07:41:15+00:00

Ampiri Terms and Conditions on Relations with Publishers

These Ampiri Terms and Conditions on Relations with Publishers will apply to all relations between glispa GmbH and Publisher who signed up to the Ampiri Platform. Glispa GmbH and Publisher agree to be legally bound as follows:

1. Definitions

a. “Account” means an online, password protected Publisher account allowing Publisher to manage its advertising revenues over the Ampiri Platform.

b. “Ad” means any advertisement, including any graphics, text, hyperlinks or other promotional content therein, provided by Advertiser.

c. “Ad Unit” means any or all of the following: individual Ad units, impressions, clicks, downloads or installs.

d. “Advertiser” means any client of Glispa that submits an Ad to the Ampiri Platform.

e. “Agreement” means the present agreement and any amendment or addendum thereto signed between Glispa and Publisher.

f. “Ampiri Ad Serving Solution” means the Ampiri Mediation Solution, as well as Ampiri Cross Promotion Solution and the Ampiri Direct Deals Solution.

g. “Ampiri Cross Promotion Solution” means the technical solution that is used by Glispa to serve Ads on behalf of Publishers. The solution allows Publishers to promote their own apps using their own Ad impressions.

h. “Ampiri Direct Deals Solution” means Glispa’s solution that connects Advertisers with Publishers so that Publishers may simultaneously run campaigns from Ad networks and Demand Supply Platforms (DSPs) alongside campaigns that Publishers have received directly from Advertisers.

i. “Ampiri Market Place” means the Real Time Bidding (RTB) platform for demand supply platforms (DSPs) or any demand partners that want to buy impressions in a programmatic manner.

j. “Ampiri Mediation Solution” means a single SDK that incorporates Ad network, SDKs and application program interfaces (APIs) to allow for the mediation between Ad networks on both, the demand and supply sides, with Glispa being included as one of multiple demand sources.

k. “Ampiri Platform” means the online platform developed, maintained and offered by Glispa to Publisher in connection with the Services, comprising both the Ampiri Ad Serving Solution and Ampiri Market Place solution.

l. “Confidential Information” means any and all data and information of a confidential nature, disclosed during the term of the Agreement by one party to the other party, as well as any information of which the receiving party knows or should know that the disclosing party regards such information as confidential, including but not limited to:

i. a party’s business plan, strategy, know how, marketing plans, finance, personally identifiable end user information, pricing, technology, personnel matters, trade secrets;

ii. the terms of the Agreement;

iii. any information marked or designated by the disclosing party as confidential.

Information is not Confidential Information if:

i. it was already publicly known when received by the receiving party;

ii. the information was known to the receiving party prior to receiving it from the disclosing party; or

iii. the receiving party has developed it independently.

m. “Dashboard” means the panel through which Publisher can set up its app and integrate Ad sources and through which Publisher can manage, optimize and analyze their Ad monetization strategy.

n. “Glispa” means glispa GmbH.

o. “Glispa Ad Network” means Glispa’s direct demand that is integrated by default into the Ampiri Mediation Solution.

p. “Inventory” means the elements of any Publisher Property that Publisher makes available via the Services for the placement of Ads.

q. “Irregular Events” means any of the following occurrences or activities, regardless of whether or not they are carried out by, condoned by, or known to Publisher at whatever given point in time:

i. fraud;

ii. impressions, clicks, installs or actions generated by false representation, duress or force;

iii. automated means to increase the number of impressions, clicks, installs or actions through tracking links or completion of any required information by use of spyware, use of steal ware or use of cookie-stuffing;

iv. impressions, clicks, installs or actions generated by offers of cash, prizes or anything else of value in exchange for services;

v. unless expressly agreed on otherwise, impressions, clicks, installs or actions generated by the use of the words “free”, “no cost”, “no charge”, or anything that means “free” or “with no obligation or participation”;

vi. impression data matches click data during any consecutive 24-hour period;

vii. more than 70% of installs during any consecutive 24-hour period are received within one hour from the initiated click; or

viii. the click to install rate amounts to less than 0.25% during any consecutive 24-hour period.

r. “Mainland China” means the geopolitical area under the direct jurisdiction of the People’s Republic of China. The term excludes Hong Kong, Taiwan and Macau.

s. “Payout” has the meaning explained in sections 5 lit. a and b below.

t. “Publisher” means a person who desires to make Inventory available via the Service for the placement of Ads.

u. “Publisher Network” means any entity which develops, owns or operates an app and/or site that Publisher made available to Ampiri Market Place, including, without limitation, Publisher itself, as well as any of its affiliates and/or subsidiaries.

v. “Publisher Property” means mobile applications and websites registered by Publisher over its Account over which Ads are served.

w. “SDK” means any software development kit developed by Glispa and the rights in which are vested in Glispa, as well as any third party components contained in such software development kit and any Update.

x. “Services” means the services provided by Glispa under section 3 of the Agreement.

y. “Update” means any change that Glispa has applied to the SDK, including but not limited to any of the following: an upgrade, patch, enhancement, or fix for the SDK that Glispa has provided to Publisher.

z. “User Activities” means activities of end users on the Platform relevant for the payment arrangement under the Publisher Agreement.

 

 

2. Warranties

a. Publisher warrants and represents that none of the materials posted on Publisher’s media or otherwise used in connection with the Agreement

i. are in violation of any applicable legal rules and regulations which may reasonably be considered to apply to the publication and/or dissemination of such materials;

ii. infringe the intellectual property or personal rights of any third party; and

iii. contain or link to any material which is harmful, threatening, defamatory, obscene, harassing, promotes discrimination, promotes illegal activities, or otherwise contains materials that may reasonably considered objectionable.

b. Publisher must comply and contractually require any third party within the Publisher Network to comply at all times with all applicable regulations and with standard industry practice, including but not limited to regulations and industry practice regarding:

i. child protection legislation, including the United States Children’s Online Privacy Protection Act 1998 (COPPA) (notwithstanding the requirement to also abide by other jurisdictions’ laws and legal rules), as well as industry standards;

ii. gambling legislation and industry standards; and

iii. privacy legislation and industry standards.

c. Publisher must comply and contractually require any third party within the Publisher Network to comply at all times with all applicable policies of third party platforms that distribute its Publisher Property, including the policies, rules and standards of Apple, Facebook, Microsoft and Google to mobile application developer policies, API terms and all other guidelines posted on respective websites.

 

 

3. Services

a. Glispa will use commercially reasonable efforts to provide the following Services:

i. provide the Ampiri Ad Serving Solution and Ampiri Market Place;

ii. host, maintain and make available the website www.ampiri.com, the Account and Dashboard;

iii. serve Ads provided by Advertisers for distribution to Publisher Property registered on the Account;

iv. make Glispa’s API available to deliver Ads to the Publisher Property; and

v. track Account data and make it available to Publisher.

b. Publisher may sign up to one or several of the following Ampiri Platform solutions:

i. Ampiri Ad Serving Solution; or

ii. Ampiri Market Place.

 

 

4. Sign up and approval process

a. Publisher must

i. establish an Account by completing the registration process.

ii. provide Glispa with accurate and complete information, including contact and payment information, corporate and tax official identification number, as well as with Publisher Property characteristics, and update this information by providing Glispa with the new information immediately once a change has occurred.

b. Publisher is solely responsible for submitting its Publisher Property characteristics and for keeping such information up-to-date.

c. Glispa may:

i. manage the Inventory;

ii. select the Ads to be delivered to the Publisher Property;

iii. identify, select and manage relationships with Advertisers;

iv. determine the terms under which Ads are distributed and marketed; and

v. take all actions regarding the foregoing provisions.

d. Publisher must keep its Account information up-to-date by promptly notifying Glispa of any changes in the Account information. Account access is provided on a password protected basis.

e. Publisher must keep access data strictly confidential and must not disclose such data to any third party without Glispa’s written approval in advance.

f. Publisher must not participate in any unauthorized use of the Account or any other access data.

g. Publisher must inform Glispa immediately if Publisher becomes aware of the fact that an unauthorized third party has gained access data or has used Publisher’s equipment, property or system.

h. If Publisher reasonably suspects that access data is known to an unauthorized third party or that Publisher’s equipment, property or systems have been used by a third party, then Glispa may either change the access data at its own discretion or block the Account.

i. At Glispa’s reasonably exercised discretion, pursuant to § 315(1) of the German Civil Code, Glispa may suspend, restrict, or cancel Publisher’s access to the Ampiri Platform or any part of it and/or to its Account.

 

5. Ampiri Market Place

a. Provided the Publisher has provided Glispa with a respective invoice, Glispa will pay Publisher the Payout due to Publisher for transactions entered into through Ampiri Market Place services within thirty days from delivery.

b. The Payout for each individual transaction entered into using Ampiri Market Place will be determined unilaterally by Glispa at Glispa’s reasonably exercised discretion, pursuant to § 315(1) of the German Civil Code, taking into account all relevant facts and circumstances, and, in particular, the net proceeds actually received by Glispa in connection with the required User Activities.

c. Glispa provides no assurance that Publisher will earn any particular Payout amount or that Publisher will recover any expenses that Publisher has made in fulfillment of its obligations under the Agreement.

d. Glispa will not be liable to pay any tax on the Payout, except where mandatory German and/or EU legislation provides otherwise.

e. Publisher is responsible for providing and maintaining accurate payment and contact information.

f. Publisher will bear all transaction costs in relation to payments made by Glispa to Publisher.

 

6. Ampiri Ad Serving Solution

a. The following subsections b and c apply to the use by Publisher of the Ampiri Ad Serving Solution.

b. The Ampiri Ad Serving Solution is provided to Publisher free of charge.

c. Unless where Glispa is expressly indicated as a demand source for a specific transaction mediated through the Ampiri Ad Serving Solution, Publisher earns a payment claim solely against the third parties indicated as relevant demand sources. On no account shall Glispa be held fully, or even partially, directly or subsidiarily, liable for the fulfillment of any remuneration, commission, compensation or any other monetary or non-monetary claim which Publisher may have against a third party advertiser under or in connection with a contract mediated through or with contract negotiations which have been handled using the Ampiri Ad Serving Solution.

d. Where Glispa is expressly indicated as a demand source for a specific transaction mediated through the Ampiri Ad Serving Solution, Publisher acquires claims against Glispa. Publisher’s claims will be based on cost per thousand impressions (CPM). Section 5 b shall apply mutatis mutandis to the present subsection.

 

7. Ad Units resulting from Irregular Events

a. Publisher must not deliver Ad Units resulting from Irregular Events.

b. Glispa will not pay for Ad Units resulting from Irregular Events.

 

8. Confidential information

a. The parties must not disclose any Confidential Information to any third party.

b. The receiving party must hold all Confidential Information in trust and confidence and, except as may be authorized by the disclosing party, must 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, except to those of its employees and professional advisers who need to know such information in order for the receiving party to perform its obligations hereunder and who have entered into a confidentiality agreement.

c. A disclosure is not a prohibited disclosure within the meaning of the Agreement if:

i. the disclosing party has expressly consented to the disclosure in writing prior to the disclosure;

ii. the disclosure is made to external advisors, auditors, attorneys or experts, provided that the respective receiving party is under a professional duty of confidentiality; or

iii. the disclosure is made in order to comply with a legal requirement or with a decision made by a competent court or arbitral tribunal, or a stock exchange or supervisory authority, or some other government authority, provided that (i) the disclosing party is made aware of the disclosure either prior thereto or as soon as possible subsequent thereto; and (ii) the receiving party has made reasonable efforts to maintain the information’s confidential character.

d. Following termination, each party must use reasonable commercial efforts to return or destroy the other party’s Confidential Information.

 

9. Data protection, data collection, processing and transfer of data

a. Within the scope of this contractual relationship, Publisher shall transfer inter alia the following data to Glispa for the purpose of advertisement:

i. device data;

ii. location data (if required and available);

iii. Publisher ID;

iv. app or site being used at the time of impression.

b. In the event that any transferred data under the present clause contains information concerning the personal or material circumstances of an identified or identifiable individual (personal data), Publisher warrants that the collection, processing and transfer of personal data comply with the applicable data protection law. In particular, Publisher warrants that:

i. Publisher will comply with its obligations as data controller under applicable data protection legislation;

ii. Publisher has published a conspicuous data protection and privacy policy that will be visible to the end user;

iii. Publisher has obtained the end user’s prior, specific and informed consent, approval, opt-in, waiver, authorization or clearance to collect, process or use the end user’s data as may be required by applicable laws, industry practice and standards and that such consent is sufficiently detailed in scope regarding the type of data collected, processed and used and regarding the purpose of the collection, processing and use;

iv. Publisher will obtain prior, specific and informed consent or opt-in regarding all functionalities of the SDK from the end user that uses a device containing the SDK;

v. Publisher will in particular obtain prior, specific and informed consent or opt-in from the end user who uses a device containing the SDK, to collect, process or use the end user’s location data, as well as data on apps stored or installed and data on how apps are used by end users, where applicable;

vi. Publisher will obtain consent or opt-in from the end user who uses a device containing the SDK before the end user engages in the download or install of the respective app;

vii. Publisher has provided clear and complete information to end users regarding collection, use and disclosure of user or device data;

viii. Publisher has notified the end user that the privacy and data protection laws in the countries in which the end user’s data may be collected, processed or used may vary from the laws in the country in which such end users live;

ix. Publisher has complied with the guidelines and terms of use of any promotional channels and app stores;

x. Publisher has complied with industry guidelines, local, national and European regulations on data protection and privacy laws; and

xi. Publisher has contractually obligated any third party (including, but not limited to, any agent, employee etc.) who handles personal data on behalf of Publisher to comply with all of the above;

xii. Publisher has advised the end user that the end user may withdraw his opt-in (opt-out) at any time by clicking on the link that Publisher will have obtained from the Ampiri Platform: www.ampiri.com.

xiii. Publisher has advised the end user that the end user may opt out of all interest based advertising by setting his mobile device accordingly, where this possibility is applicable.

c. Publisher must, in particular:

i. keep a written record of all of Publisher’s efforts to comply with section 9; and

ii. provide Glispa with proof of compliance under section 9 b., should Glispa request such proof.

 

10. Use of Software Development Kit

a. By downloading or using the SDK along with any documentation that accompanies it, Glispa grants Publisher a gratuitous, limited, worldwide, non-transferable, non-sub licensable, non-exclusive license to use the SDK solely for the purpose of using the Services.

b. Unless Glispa has given prior written approval, Publisher will not, either directly or indirectly, combine the SDK with other software such that Publisher restricts or charges for access to the SDK. If Glispa makes available and Publisher uses the SDK in compiled form, Publisher must not copy (except for backup purposes), decompile, disassemble, reverse engineer, modify, adapt, or create derivative works of the SDK, including runtime components and any other portions thereof. Publisher must not extract the source code of the SDK.

c. If Glispa releases an Update, Publisher must implement the Update within its application within a reasonable period of time from the time of release.

d. Publisher’s use of any components of the SDK that are licensed under an open source software license are governed solely by the applicable license for that software.

e. Glispa may revoke the license granted under the present clause at any time with immediate effect. Glispa may remove copies of the SDK at any time with immediate effect.

 

11. Publicity

Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.

 

12. Liability

a. Nothing in this Agreement shall limit or exclude the liability of either party, provided that the claims giving rise to liability arise out of:

i. infringements of life, body or health; or

ii. the assumption of a guarantee or of a procurement risk; or

iii. the Product Liability Act; or

iv. intentional or grossly negligent conduct of Glispa or of its statutory agent or other persons which Glispa may from time to time involve in the performance of its obligations towards Publisher; or

v. violations of material contractual duties the fulfillment of which is necessary in order for the contract to be duly performed and in the compliance with which the respective other Party typically places reasonable confidence (cardinal duties).

b. Unless where Glispa’s liability is unlimited under lit a. above, the liability of Glispa to Publisher, as well as the liability to Publisher of any of Glispa’s agents, employees or other persons which Glispa may, from time to time, involve in the performance of its obligations towards Publisher, shall, whether arising out of contract or statute, be limited to the amount that, taking into account the nature and type of the parties’ contract, in particular its volume, constitutes the damages that are typically foreseeable or, alternatively, EUR 50,000, whichever greater. On no account shall Glispa’s agents, employees or any other person which Glispa may involve in the performance of the parties’ contract or contracts be liable towards Publisher for
actions or omissions for which Glispa’s liability is excluded hereunder or shall quantum-wise be liable in excess of Glispa’s liability.

c. For the avoidance of doubt, contractual fulfilment claims to remuneration which the Publisher has against Glispa shall not be capped under the preceding sentence.

 

13. Indemnification

Publisher will indemnify and hold Glispa harmless from and against all claims (including reasonable attorney fees and costs) by any third party against Glispa due to infringement of the Publisher’s warranties and obligations under this Agreement. Publisher will be liable for any damage in this connection and the costs incurred by Glispa for legal action. This will not affect any further claims Glispa may have. Publisher shall – upon first demand by Glispa or any third party nominated by Glispa – make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.

 

14. Force majeure

Neither party will be responsible for delays caused by accidents, war, act of god, embargoes, or any other circumstances beyond its control.

 

15. Term and termination

The Agreement will begin to apply on the signup date and will remain in full force for as long as the Publisher uses the Ampiri Platform. The right to terminate for good cause remains unaffected.

 

16. Severability

If any provision of the Agreement should be held to be void, invalid or unenforceable, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby. Such provision or part thereof shall be treated as severable and shall be modified so as to be enforceable to the fullest extent allowed by law and shall be replaced by a provision that comes as close as possible in terms of economic and legal effect to the replaced provision. The same shall apply to gaps (if any).

 

17. Non waiver; Silence; Implied Conduct

a. Failure of either party to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver of such terms, covenants and conditions.

b. Silence on the part of one party does not in and of itself amount to acquiescence. However, reasonable inferences may be drawn from implied conduct in accordance with the applicable law, as well as the parties’ prior dealings and commercial customs and practices in general.

 

18. Modification

Glispa has the right to modify the Agreement by providing Publisher with two weeks’ notice by e-mail. Unless Publisher objects within the notice period, the modifications are deemed to have been approved by Publisher.

 

19. Successor

The Agreement will apply to any legal successors of the parties. In case of a legal succession, the parties will inform each other of that matter promptly.

 

20. Entire agreement

The Agreement will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement.

 

21. Governing Law and Jurisdiction

a. If Publisher is incorporated in either Germany, Austria, Belgium, Netherlands, Luxembourg, France, UK, Ireland, Sweden or Finland, the following applies:

i. Any disputes arising (i) out of or in connection with the Agreement or its validity; or (ii) out of or in connection with any past contract concluded between the parties must be resolved exclusively in the courts located in Berlin, Germany, and in accordance with the laws of Germany. If the local courts (“Amtsgerichte”) have jurisdiction ratione materiae, the local court of Mitte (Amtsgericht Mitte) in Berlin, Germany, will decide the dispute, unless a different German local court (Amtsgericht) has exclusive jurisdiction ratione loci. The prevailing party will be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of the Agreement, even if they are in excess of fees under the statutory fee schedule. The applicable substantive law is German law. Other tribunals may only be seized if (i) faced with an interim or enforcement matter and (ii) the other tribunal has jurisdiction to hear the case under its own rules.

ii. Any jurisdictional and choice-of-court agreements which the parties may have concluded prior to the signing of this contract are superseded by this clause. However, if proceedings are already pending when this contract is signed, the forum seized in the previous proceedings shall not become incompetent by virtue of this clause, provided that the jurisdictional basis of the previous proceedings is such that the decision to be rendered is, regardless of the actual place of enforcement, capable of being recognized in Germany.

b. If Publisher is incorporated in any EU Member State that is not mentioned in subsection a or if Publisher is incorporated in either Switzerland, Norway or Iceland, the following applies:

i. Any disputes arising (i) out of or in connection with the Agreement or its validity; or (ii) out of or in connection with any past contract concluded between the parties shall be finally settled in accordance with the arbitration rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law except for the purposes of interim measures or for enforcement. The place of the arbitration is Berlin, Germany. The number of arbitrators is one. The language of the arbitration is English. The applicable substantive law is German law.

ii. Any jurisdictional and choice-of-court agreements which the parties may have concluded prior to the signing of this contract are superseded by this clause. However, if proceedings are already pending when this contract is signed, the forum seized in the previous proceedings shall not become incompetent by virtue of this clause, provided that the jurisdictional basis of the previous proceedings is such that the decision to be rendered is, regardless of the actual place of enforcement, capable of being recognized in Germany.

c. If Publisher is incorporated in Mainland China, the following applies:

i. The UNIDROIT Principles of International Commercial Contracts (2010) are incorporated in this, as well as in all previous and future contracts between the parties, to the extent that they are not inconsistent with the other terms of the respective contract and the applicable law.

ii. Any dispute arising from or in connection with this contract as well as with any previous or future contract between the parties shall be submitted to the South China International Economic and Trade Arbitration Commission (SCIA) for arbitration. The losing party shall bear the reasonable expenses incurred in resolving the dispute including, but not limited to, arbitration fees and attorneys’ fees. The place of the arbitration is Shenzhen, PRC. The language of the arbitration shall be English. The number of arbitrators is: 1 (one). The Chairman of SCIA shall recommend a list of candidates for the
sole arbitrator for the parties to select from. Failing a joint nomination of the parties within fifteen (15) days from the date of receipt of such list by the parties, the sole arbitrator shall be appointed by the Chairman of SCIA.

d. If Publisher is incorporated in any country that is not the subject of subsections a to c, the following applies:

i. Any disputes arising (i) out of or in connection with the Agreement or its validity; or (ii) out of or in connection with any past contract concluded between the parties shall be finally settled under the rules of arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed in accordance with the said rules and without recourse to the ordinary courts of law except for the purposes of interim measures or for enforcement. The place of the arbitration is Berlin, Germany. The language of the arbitration is English. The applicable substantive law is German law.

ii. Any jurisdictional and choice-of-court agreements which the parties may have concluded prior to the signing of this contract are superseded by this clause. However, if proceedings are already pending when this contract is signed, the forum seized in the previous proceedings shall not become incompetent by virtue of this clause, provided that the jurisdictional basis of the previous proceedings is such that the decision to be rendered is, regardless of the actual place of enforcement, capable of being recognized in Germany.

 

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