STANDARD TERMS AND CONDITIONS ON RELATIONS WITH ADVERTISERS
These standard terms and conditions for advertisers outline the framework for mobile media buys. They represent the parties’ common understanding for conducting business. While each individual Insertion Order entered into or to be entered into by the parties constitutes a separate legal transaction, the present standard terms and conditions govern all Insertion Orders. Unless otherwise agreed upon, these standard terms and conditions for advertisers shall also govern contracts concluded between the parties in the past and shall supersede any clauses in such past contracts which may conflict with the contents of the present agreement.
- “Acquisition” means a user visiting an application store via NFTDroper’s tracking link, by downloading or by opening the application via a mobile device, as defined in the Insertion Order.
- “Advertiser” means any client of NFTDroper which has entered into one or several Insertion Order(s) with NFTDroper .
- “Creative” means all creative included in Advertiser’s advertising material.
- “NFTDroper” means NFTDroper .
- “Insertion Order” means any insertion order entered into by Advertiser and NFTDroper while running NFTDroper’s advertising campaigns.
- NFTDroper’s tracking and ad serving system or a third party tracking and ad serving system will measure all Acquisitions delivered by NFTDroper to Advertiser.
- Advertiser must pay NFTDroper based on the tracking or ad serving system or the Advertiser’s backend numbers, whichever is greater, provided that Advertiser’s backend numbers have been validated by a certified tracking attribution entity or have been validated by server to server integration. If Advertiser is using a cookie-based counting method, the minimum attribution window is 30 days.
- If there is under-delivery of volume levels, as set forth in the Insertion Order, NFTDroper will use commercially reasonable efforts to ensure delivery in accordance with the Insertion Order. Predictability, forecasting and conversions for CPA, CPI, CPL deliverables may vary. Unless otherwise agreed in writing, NFTDroper does not contract for a specific conversion, billability or profitability rate of the campaign. Advertiser may not raise the allegation that the campaign did not meet Advertiser’s actual or alleged conversion, billability, profitability, or other quality expectations, as a defense against any remuneration claim of NFTDroper. Rather, the parties’ campaign-specific acquisition definitions shall be deemed exhaustive. Advertiser is solely responsible for ensuring that the contents and the technical parameters of the campaign will meet the legal, regulatory as well as any pertinent third-party requirements in any of the target jurisdictions.
- NFTDroper will use commercially reasonable efforts to comply with the stipulated restrictions with respect to ad placements.
Representations and warranties
Advertiser warrants that Creative, its products and services do not:
- violate any third party’s trade secret or intellectual property rights;
- contain material that is defamatory or obscene, that portrays any person in a false light, constitutes an invasion of any privacy right, or that otherwise violates any third party rights; or
- violate any applicable laws and regulations.
- Advertiser must provide NFTDroper with access to ad server statistics showing advertisement units viewed, click-throughs and/or Acquisitions obtained on a weekly basis. Advertiser must provide NFTDroper with access to the tracking provider’s dashboard.
- NFTDroper has the right to rely on Advertiser’s reporting.
- NFTDroper reserves the right to have an independent auditor review any data reports from Advertiser’s backend system to verify accuracy.
- Advertiser grants NFTDroper a non-exclusive, non-transferable license to use Creative and all elements thereof solely for the purpose contemplated by the Insertion Order.
- Advertiser must have all necessary licenses and clearances that are required for using the content contained in Creative.
- NFTDroper may reject Creative if Creative is deemed inappropriate.
- NFTDroper will send an invoice to Advertiser on a monthly basis, showing delivery of the preceding month.
- Advertiser must transfer payment within 15 days from the last day of the billable month. Advertiser shall be deemed to have acknowledged owing to NFTDroper any invoiced amount unless Advertiser communicates to NFTDroper within ten business days from receipt of the invoice a justified objection in writing or by e-mail. NFTDroper undertakes to specifically draw the attention of Advertiser to the intended significance of Advertiser’s non-objection; a corresponding alert will be contained in every invoice.
- All invoiced amounts are net of taxes and transfer costs. If payments are due in connection with the present agreement, these payments must be made in the currency which the parties have agreed upon.
- In accordance with applicable ISO standards, Advertiser must apply SWIFT payment instruction code SHA when making a SWIFT payment to NFTDroper. NFTDroper will only pay the incoming transfer charge. Advertiser will pay the outgoing transfer charge.
- If Advertiser is more than 30 days past due in paying amounts owed, Advertiser is liable for:
- collection costs, including, without limitation, reasonable attorney fees which will usually be in excess of fees under statutory fee schedules by multiple times and must be reimbursed regardless;
- default interest on the respective outstanding claim until full and final payment; and
- penalties for late payment. The amount of the penalty is computed by multiplying the debit positions on which the respective outstanding account balance is based by 0.025 for each full calendar week (Monday through Sunday) which has elapsed since the claim has become overdue. The penalty is capped at the amount reached after 30 calendar weeks of the penalty period.
Pre-litigation and/or pre-arbitration collection (supra (i)) costs are credited towards penalty amounts (supra (iii)), if any.
- Acceptance of partial or advance payments by NFTDroper does not constitute a waiver of any of its rights or remedies. NFTDroper may claim payment of a penalty which has become due even if the principal amount has intermittently been paid wholly or in part. NFTDroper may at all times require that reasonable advance payments be made in order for campaigns to be initiated or resumed. An agreement or practice of the parties whereby Advertiser makes advance payment to NFTDroper must not be construed in such a way as to limit the volume of a campaign to the amount of the advance payment.
- Advertiser may not set off NFTDroper’s claims against alleged counter-claims or exercise a right of retention with regard to NFTDroper s claims in view of alleged counter-claims save if such counter-claims are undisputed or have been established with judicature effect by way of a decision which is recognized in Israel.
- Advertiser must notify NFTDroper whenever it experiences downtime that affects its performance under the present agreement.
- If Advertiser’s site or landing page goes down during a campaign, Advertiser must compensate NFTDroper as follows:
- Advertiser must identify precisely when the downtime occurred.
- Advertiser must check its server log for Acquisitions generated per hour during the three hours before errors started to occur and three hours after errors were resolved. Advertiser must determine lost Acquisitions on the basis of the average number of Acquisitions generated per hour of normal service minus the average number of sales generated during the downtime period, multiplied by the number of hours of downtime.
- NFTDroper will check their system for average revenue generated during the three hours before errors started to occur and the three hours after errors were resolved. NFTDroper will determine lost revenue on the basis of the average amount of revenue generated per hour of normal service minus the average amount of revenue generated during the downtime period, multiplied by the number of hours of downtime. Lost Acquisitions would be the lost revenue divided by the payout per Acquisition.
- Advertiser must pay NFTDroper the average of the lost Acquisition estimate determined by Advertiser and the lost Acquisition estimate determined by NFTDroper.
Data protection, data collection, processing and transfer of data
- Within the scope of this contractual relationship, Advertiser shall transfer inter alia the following data to NFTDroper for the purpose of advertisement, billing and reporting:
- device data
- publisher ID
- ad campaign ID
- location data (if required and available)
- demographic data; or
- event data.
- 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), Advertiser warrants that the collection, processing and transfer of personal data comply with the applicable data protection law. In particular, Advertiser warrants that Advertiser has:
- obtained the end user’s 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 and industry practice and standards;
- 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;
- complied with industry guidelines, local, national and European regulations on data protection and privacy laws; and
- contractually obligated any third party (including, but not limited to, any agent, employee etc.) who handles personal data on behalf of Advertiser to comply with all of the above.
- Advertiser must, in particular:
- keep a written record of all of Advertiser’s efforts to comply with section 8; and
- provide NFTDroper with proof of compliance under section 8 b., should NFTDroper request such proof.
- NFTDroper maintains and controls all Publisher contact and account management. Advertiser must not contact Publisher without NFTDroper’s prior consent.
- Advertiser must not circumvent NFTDroper directly or indirectly under any circumstances for the duration of any campaign, as well as the three months that follow the termination of such campaign. In particular, Advertiser warrants and represents that it will not enter into any negotiations and/or contracts with a Publisher provided it is known to Advertiser that the entity in question is a Publisher. For the purpose of the interpretation of this article, it is insignificant whether it was the Publisher or whether it was Advertiser which took the initiative to negotiate and/or contract with Advertiser.
- Advertiser is released from its obligation under lit. b above once the contractual relationship with NFTDroper has been ongoing continuously for at least 5 (five) consecutive years.
Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.
- Nothing in this Agreement shall limit or exclude the liability of either party, provided that the claims giving rise to liability arise out of:
- infringements of life, body or health; or
- the assumption of a guarantee or of a procurement risk; or
- the German Product Liability Act; or
- intentional or grossly negligent conduct of NFTDroper or of its statutory agent or other persons which NFTDroper may from time to time involve in the performance of its obligations towards Advertiser; or
- 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).
- Unless where NFTDroper’s liability is unlimited under lit a. above, the liability of NFTDroper to Advertiser, as well as the liability to Publisher of any of NFTDroper’s agents, employees or other persons which NFTDroper may, from time to time, involve in the performance of its obligations towards Advertiser, 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, 50,000.00 EUR, whichever greater. On no account shall NFTDroper’s agents, employees or any other person which NFTDroper may involve in the performance of the parties’ contract or contracts be liable towards Advertiser for actions or omissions for which NFTDroper’s liability is excluded hereunder or shall quantum-wise be liable in excess of NFTDroper’s liability.
- Advertiser agrees, at its own expense, to indemnify, defend and hold harmless NFTDroper, its employees, representatives, agents and affiliates, against any and all expenses and losses of any kind (including reasonable attorney fees and costs) incurred by NFTDroper in connection with any claims, administrative proceedings or criminal investigations of any kind arising out of the publication of the advertisement and/or any defamation, privacy violation, false or deceptive marketing practices.
- Advertiser hereby indemnifies and holds NFTDroper harmless from and against all claims arising to any third party against NFTDroper due to infringement of the aforementioned warranties and obligations (under section 8.b)) by Advertiser. Advertiser is liable for any damage in this connection and the costs incurred by NFTDroper for legal action. This shall not affect any further claims NFTDroper may have. Advertiser shall – upon first demand by NFTDroper or any third party nominated by NFTDroper – make whatever in-court or out-of-court declarations and provide whatever documents are required or appropriate to defend against third-party claims.
Neither party will be responsible for delays caused by accidents, war, act of god, embargoes, or any other circumstances beyond its control.
Term and termination
- The present Standard Terms and Conditions will begin to apply to the relationship between NFTDroper and Advertiser on the date of signing of an Insertion Order referring to them, and they will remain in full force for as long as any Insertion Order is in effect between the parties thereto. The right to terminate for good cause remains unaffected.
- The present agreement must be terminated by providing written notice to the other party.
- Insertion Orders which specify the end of the campaign as “open” shall expire ipso facto once two years have elapsed since their conclusion unless the Parties agree otherwise.
If any provision of 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).
Non waiver; Silence; Implied conduct
- 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.
- 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.
NFTDroper has the right to modify the present agreement and any Insertion Order made subject to the present agreement, by providing Advertiser with two weeks’ notice by e-mail. Unless Advertiser objects within the notice period, the modifications are deemed to have been approved by Advertiser.
The present 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.
The Insertion Order and the underlying 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 Insertion Order.
Governing law and jurisdiction
- The present Standard Terms and Conditions shall be governed by the law stipulated in the Insertion Order or Insertion Order entered into between NFTDroper and Advertiser.
- If there are multiple Insertion Orders between NFTDroper and Advertiser which are in full force and effect at the same point in time, and if they contain incompatible provisions on the governing law,
- if one of the Insertion Orders provides for the application of German law, or if none of the Insertion Orders provides for any law, then the present Standard Terms and Conditions shall be governed by German law;
- otherwise, these Standard Terms and Conditions shall be governed by the law designated in the most recent Insertion Order.
- Disputes arising under and/or in connection with these Standard Terms and Conditions shall be resolved pursuant to the stipulations contained in the Insertion Order and/or Insertion Orders entered into between NFTDroper and Advertiser.
- If there are multiple Insertion Orders between NFTDroper and Advertiser which are in full force and effect at the same point in time, and if they contain incompatible provisions on the resolution of disputes, then these Standard Terms and Conditions may be invoked before any court or tribunal which may have jurisdiction under any of the Insertion Order(s) or otherwise.