TERMS AND CONDITIONS
This ComboStrike Advertiser Terms & Conditions (“Advertiser Agreement”), shall govern the relationship between ComboStrike GmbH, Rosenstr. 17, 10178 Berlin (“ComboStrike) and the advertiser (“Advertiser”), whereby Advertiser may obtain access to the ComboStrike Advertising Network (“ComboStrike Advertising Network”) of registered third party affiliates and publishers (“Publishers”), and related technology and software (“ComboStrike Advertising Network”), to market customized advertisements and links provided by Advertiser and/or ComboStrike (“Ads” as further defined below). The ComboStrike Advertising Network, as well as the services provided by ComboStrike in connection therewith (“Services”), are further described in the Insertion Order (“IO”) which refers to these Advertiser Terms & Conditions (the IO, together with this Advertiser Agreement, the “Agreement”). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to Advertiser as well as the applicable underlying client.
1. Combo Strike Advertising Network/Services
Advertiser agrees to accept and pay for, and ComboStrike agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, ComboStrike shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby ComboStrike will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mails, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, ComboStrike Advertising Network Ads (as defined below) through the ComboStrike Advertising Network either:
1. on Publisher websites via the ComboStrike Advertising Network Ad Server for impressions-based (“ CPM”), click based (“CPC”) and action based (“CPA”) Ad Campaigns as defined below; or
2. by Publishers via e-mail based marketing, search engine marketing, website based marketing and/or other online and mobile marketing means. In connection with such Ad Campaigns, Advertiser shall pay ComboStrike commissions depending on the number of valid clicks (“CPC”) or valid, compensable conversion events such as leads, downloads, installs, users, paying users, active users or any other defined action or result generated on behalf of Advertiser as set forth in the subject IO (collectively, “ CPA ” or “Actions”; including CPC ). The applicable Actions, the fees due to ComboStrike for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. ComboStrike shall not be held liable or responsible for any actions or omissions of its Publishers.
Upon the execution of the Agreement, Advertiser will register on the ComboStrike Advertising Network website and create a unique, password-protected account (“Account”). ComboStrike will manage this Account on behalf of Advertiser. In case Advertiser receives the login data to this Account, Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsible for any and all actions taken under Advertiser’s Account, if they were performed by Advertiser or authorized by him. The same applies to any actions taken under Advertiser’s Account if the login data to this Account was given to any third party by Advertiser. Advertiser must immediately notify ComboStrike of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping the Account information provided to ComboStrike current, complete and accurate, and Advertiser acknowledges and agrees that ComboStrike will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that ComboStrike or its Publishers shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that ComboStrike or any Publisher prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “ComboStrike Advertising Network Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that ComboStrike or the respective Publisher is the sole owner of any and all intellectual property rights associated with the ComboStrike Advertising Network Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the ComboStrike Advertising Network Ads. Under no circumstances shall ComboStrike or the respective Publisher be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s). ComboStrike reserves the right, in its reasonable discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by ComboStrike. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where ComboStrike deems, in its reasonable discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon ComboStrike or any of its Publishers.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by ComboStrike and/or its Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Advertizing Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that ComboStrike and/or its Publishers may determine, in their respective sole discretion.
5. Ad Codes, Conversion Tracking
Unless otherwise stated in writing by ComboStrike, each Ad or link used by ComboStrike in connection with a Campaign must include, in unaltered form, the special transaction tracking computer code or tracking link provided by ComboStrike (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by ComboStrike to be used in connection with any and all Ads in order to track actions such as installs, leads or other conversion events.
ComboStrike’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
If Advertiser is working with several marketing partners he has to ensure that for all campaigns run through ComboStrike the “last cookie wins principle” applies, i.e. the conversion event will be attributed to the marketing partner which generated the last click of the respective user before the conversion event.
In case so-called “server-to-server” tracking is employed in order to track the conversion events (“Actions”) defined in the IO, Advertiser has to ensure that all defined Actions are accurately tracked and timely reported to ComboStrike’s system including the correct unique click ID used by ComboStrike in the tracking URL . In case technical problems or outages caused by either of the parties’ systems lead to a non-restorable loss of conversion data, one of the following methods should be used to determine the correct number and attribution of conversion events (applied in the order of their listing):
- 1. “manual” matching of MAC addresses or any other unique identifiers that can be retrieved ex-post by the Publisher and Advertiser in order to determine attribution and number of conversion events, or
- 2. approximation based on historical conversion rate data (click-to-action) from ComboStrike’s system in the following preferential order:
- a. if available from the same campaign,
- b. or from the most comparable campaign for which historical data is available in ComboStrike’s system. “Comparable” means that the campaign should be closely comparable with regards to the defined conversion event (“action”), product and platform, chosen countries, advertising methods used and Publishers.
6. Technical And Commercial Limitations; Changes; Availability
Unless otherwise provided for in the Agreement, ComboStrike provides the ComboStrike Advertising Network through which it renders it services on an “AS IS” and “AS AVAILABLE” basis.
ComboStrike offers the Advertiser use of its ComboStrike Advertising Network over the Internet subject to technical and commercial limitations as defined below.
ComboStrike may modify the ComboStrike Advertising Network without prior notice. Therefore, the Advertiser is granted a right of use only for the then current version. The Advertiser may reduce or cease its use of the ComboStrike Advertising Network in the event that it is modified.
ComboStrike reserves its right to cease operation of the ComboStrike Advertising Network at any time, without giving reasons or prior notice. Any balance owed to the Advertiser will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement.
ComboStrike undertakes to assure an availability of the ComboStrike Advertising Network of 99% (ninety-nine percent) as a yearly average. Periods during which the ComboStrike Advertising Network is not available because of technical or other problems outside ComboStrike’s control (such as force majeure or third party fault) and periods during which routine maintenance works are carried out, are excluded from this. ComboStrike may restrict access to the ComboStrike Advertising Network if required for network security, maintenance of network integrity and the prevention of severe malfunction of the network, the software or stored data. The Advertiser’s rights in case of intent or gross negligence remain unaffected. Advertiser shall inform ComboStrike in advance if Advertiser anticipates or can anticipate any high damages in case of a non-availability of the Advertising Network within a certain timeframe.
The rates for Actions shall be set forth in the applicable IO(s). These rates may be changed by mutual agreement via email. ComboStrike will invoice Advertiser once monthly. Unless otherwise set forth in the applicable IO, payment will be due to ComboStrike within ten (10) days of the date appearing on each invoice.
In connection with CPA -based Ad Campaigns, Advertiser will pay ComboStrike for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
- 1. it rejects within seven (7) days after the end of the specified month; and
- 2. both parties determine is not a Valid Action (as defined below). A “Valid Action” means that the action
- a. was not performed by a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
- b. in the case of CPA -based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified.
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon three (3) business days’ prior written notice. The right to an extraordinary termination of this Agreement for good cause remains unaffected.
Upon termination or expiration of the Agreement for any reason:
- 1. Advertiser will pay ComboStrike all amounts then due and owing as of the termination date within ten (10) days as set forth in Section 6 hereinabove;
- 2. any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
- 3. 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 kept confidential stated out in §13.
9. Warranty/Limitation Of Liability
- 1. ComboStrike is not responsible for damages, unless they are caused intentionally or by gross negligence.
- 2. Liability for breach of a cardinal obligation or an essential obligation is limited to the typical damage which could have been foreseen. A cardinal obligation is an obligation whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may normally trust.
- 3. The aforementioned limitations of liability do not apply to the liability for personal injury of life, body, and health or in case the damage is the result of a guarantee. ComboStrike remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
- 4. The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of ComboStrike and their members.
10. Representation And Warranties
Advertiser represents and warrants that:
- 1. it has the power and authority to enter into and perform its obligations under the Agreement;
- 2. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances;
- 3. it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, ComboStrike Advertising Network Ads, by ComboStrike, the Publishers, as contemplated by the Agreement;
- 4. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
Each party agrees to indemnify and hold the other party harmless from and against any losses, costs, liabilities and expenses, including reasonable attorneys’ fees, arising out of any third party claims resulting from the breach of obligations or the warranties made by such party in the Agreement. The indemnifying party has the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party. The indemnified party agrees to cooperate with the indemnifying party’s defense of such claims.
12. Claims Based On Defects
ComboStrike grants the Advertiser access to the ComboStrike Advertising Network in the then current version only. The Advertiser cannot claim that a given state or functional range is maintained or achieved. The Advertiser acknowledges that the ComboStrike Advertising Network, as any other software, can never be completely free of bugs. Therefore, the ComboStrike Advertising Network can only be considered to be defective if its usability is affected severely and for a significant period of time.
The Advertiser shall document any faults in the ComboStrike Advertising Network, and report them in writing (along with a log of the error messages displayed, if applicable). The Advertiser will use its best efforts to support ComboStrike in any attempts to debug.
The Advertiser will notify ComboStrike of any faults, without undue delay upon discovery, in writing (fax, letter or e-mail). To comply with this, it is sufficient that the report is sent in time. If no notice has been given within this deadline, all claims based on such defects shall forfeit.
ComboStrike is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by ComboStrike.
ComboStrike does not assume any warranties.
No party shall disclose any Confidential Information of the other party during the term of this Agreement and for a period of time of five years following the termination or expiration of this Agreement. For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
- 1. a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
- 2. the material terms of the Agreement and/or any associated IO(s);
- 3. any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall 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, company or entity, except to those of its employees and professional advisers:
- a. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
- b. who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein.
- 4. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
- a. is generally available to or known to the public through no wrongful act of the receiving party;
- b. was independently developed by the Receiving Party without the use of Confidential Information; or
- c. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
14. Non Circumvention
- 1. Advertiser recognizes that ComboStrike has proprietary relationships with the Publishers. Advertiser agrees not to circumvent ComboStrike’s relationship with such Publishers, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by ComboStrike hereunder from any Publishers that is known, or should reasonably be known, by Advertiser to have such a relationship with ComboStrike, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship.
- 2. Advertiser agrees that monetary damages for a breach, or threatened breach, of this Section will not be adequate by themselves and that ComboStrike shall be entitled to liquidate damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, as applicable, for the prior twelve (12) month period. If the respective period is shorter than 12 months, the amount due will be calculated based on the true duration of the partnership to an equivalent of 12 months. Advertiser has the right to prove that no or only substantial lower damages occurred and ComboStrike has the right to prove that higher damages occurred.
15. Force Majeure
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Advertizing Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
16. Changes To The Agreement
- 1. ComboStrike may make changes to the Agreement (including amendments) at any given time, for the future, if this should prove necessary (in particular to reflect changes in the ComboStrike Advertising Network or changes in the legal framework applicable to it, such as new legislation or case-law) and provided the Advertiser is not disadvantaged contrary to good faith.
- 2. The Advertiser will be notified of changes to the Agreement in appropriate form. ComboStrike will notify the Advertiser on the ComboStrike Advertising Network or via e-mail.
- 3. The Advertiser may dispute changes to the Agreement within a time period of two weeks following receipt of the notification of the changes and the possibility of taking notice thereof. It is recommended that the Advertiser submit its opposition in writing (for example via e-mail).
- 4. The changes to the Agreement become binding in the event that the Advertiser (i) does not dispute the changes within the above-mentioned time period or (ii) continues to use the ComboStrike Advertising Network or (iii) continues to place IOs, after having received the notification of the changes to the Agreement without having disputed the changes.
- 5. ComboStrike will inform the Advertiser about the possibility of disputing the changes and the legal consequences, especially the legal consequences of a lack of opposition, when notifying the Advertiser about the changes to the Agreement.
- 6. If the Advertiser disputes the changes in time, each party may terminate the Agreement with one month’s prior notice unless termination is possible at any time according to § 8 or the IO. Until termination, the Agreement in their former version will govern the Advertiser’s relationship with ComboStrike. The Advertiser does not have any other claims against ComboStrike.
- 1. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party. However, all or any of ComboStrike’s rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the ComboStrike Publisher Platform in a merger, acquisition or sale of all or substantially all of ComboStrike’s assets.
- 2. The Agreement shall be construed in accordance with and governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded.
- 3. The courts of Berlin, Germany, shall have exclusive jurisdiction.
- 4. By registering, you grant ComboStrike the right to name the Advertiser as a reference for ComboStrike’s Services. This includes the right to use the Advertiser’s logo on ComboStrike’s websites. The Advertiser may revoke this right at any time, in writing, for any future use.
- 5. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. Email shall be sufficient if explicitly stated so in this Agreement. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
- 6. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect. This also applies if the Agreement is incomplete.
- 7. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, employment, franchise or joint venture between the parties.
IN WITNESS WHEREOF , ComboStrike and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.