Advertiser Terms and Conditions
Advertiser Terms and Conditions
Version: ATC201009
Date published: 25/02/2026
These Terms and Conditions (“Terms“) are incorporated by reference into the AVOW Insertion Order (“IO”) and are a legally binding and enforceable agreement between AVOW GmbH located at Oranienstr. 185, 10999 Berlin, hereby referred to as or “AVOW” and you, as Advertiser under the Insertion Order (“Advertiser”).
The Insertion Order, Terms and DPA together form the whole Agreement (“Agreement”).
1.Definitions
“Acquisition” means a user visiting an application store via AVOW tracking link, by downloading or by opening the application via a mobile device, as defined in the Insertion Order.
“Action” or “Actions” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, etc.
“Advertiser Code” means conversion and/or event name/identifier to map to the relevant action taken by the End User for tracking purposes
“Advertising Network” is a network of Media Partners run by AVOW, utilizing related technology and software.
“Business Day” means any day (other than a Saturday, Sunday, or public holiday) on which commercial banks are open for general business in Berlin, Germany.
“Campaign details” are the Advertiser Campaign(s)’ Name, Pricing type, Payout and Other details, as defined in the Campaign Description part of the IO or agreed periodically via Email between the Advertiser and AVOW.
“Content” means advertisements, graphics, data, text copy, links to third party sites, web pages, images, software code, technology, files, texts, photos, audio, video, and visuals.
“Company Assets” means software application, service or digital placements owned AVOW, properly licensed to AVOW or otherwise made available by AVOW, through the Advertising Network, Media Partners or other third parties, for the purpose of placing Content.
“Creative” means all creative assets included in Advertiser’s advertising material supplied to AVOW.
“Cost Per Download (CPD)” means the cost incurred by the Advertiser for each download of their application as recorded by the OEM.
"Data Protection Laws" means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other applicable country as agreed in writing between the Parties, including in the United States.
“Downtime” refers to any time period in which a technical failure has occurred disrupting the technical tracking connection supporting promotion between Advertiser, MMP and AVOW.
“Effective Date” is the date of countersignature of the Insertion Order.
“End User” means human end user who interacts with the Advertiser or Media Partner’s assets.
"EU Data Protection Laws" means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR.
"GDPR" means EU General Data Protection Regulation 2016/679.
“ID” means: (i) a unique identifier stored on an end-user’s device, (ii) a unique identifier generated on the basis of device information, (iii) a resettable advertising ID associated with a mobile device or an application; or (iv) IP Address.
“In-App events attribution postback window” means the period after an install, re-attribution, or re-engagement, during which an in-app event postback will be sent to AVOW.
“Party” means AVOW or the Advertiser.
“Parties” means AVOW and the Advertiser.
“California Consumer Privacy Act” or “CCPA” means the California Consumer Privacy Act of 2018.
“Media Partners” are publishers, Original Equipment Manufacturers (OEMs), Mobile Carriers, Internet Service Providers (ISPs) or other sources of direct or indirect inventory with which AVOW has a business relationship.
“Mobile Measurement Platform” or “MMP” means a platform that collects, organizes, and standardizes app data to deliver a uniform assessment of campaign performance metrics (such as, but not limited to: Appsflyer, Adjust, Branch, Kochava, Singular).
“Platform” means AVOW’s tracking and Media Partner management platform (Everflow or a similar provider).
“Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data of the other party. For the avoidance of doubt, any Personal Data Breach of the other Party’s Personal Data will comprise a Security Incident.
“Services” refer to all those provided by Avow, in accordance with the terms of the Insertion Order, including a range of advertising solutions and market consultations. These services performed for AVOW clients are offered on various payment models, or based on specific events that can include CPA (Cost per Acquisition), CPE (Cost per Engagement), CPD (Cost per Download), CPI (Cost per Install), CPL (Cost per Lead), CPC (Cost per Click) or e.g. CPM (Cost per thousand, e.g. impressions) basis.
“Third party fraud tool” means a third-party ad fraud detection tool such as, but not limited to: 24metrics, mFilter, Scalarr, Machine.
The terms "Controller", "Personal Data", "Personal Data Breach", "Processor", "Processing” shall have the same meaning as given to such words and expressions in the General Data Protection Regulation (2016/679) (“GDPR”).
2. Tracking and Reporting
Different terms apply to the Tracking, Reporting and Billing of different product lines offered by AVOW. Please refer to the below sections for the details on each of these product lines.
2.1 On Device Display for App Install Campaigns
2.1.1 Unless otherwise stated in writing by AVOW, each Advertiser’s campaign shall contain a valid Creative, which is provided by the Advertiser, as well as a tracking URL that will redirect users to the respective Appstore. The URL is extracted by the MMP chosen by the Advertiser. Each Action brought by Advertiser´s campaign promotion executed by AVOW shall contain a unique transaction identifier.
2.1.2 At no point and during the active time of the campaign will the Advertiser knowingly modify, disable or otherwise interfere with any Advertiser Codes and/or other technology and/or methodology required or made available by AVOW to be used in connection with any and all Advertiser Content in order to track Actions. In the event the Advertiser revokes or restricts AVOW’s access to the MMP while the campaign is live, AVOW reserves the right to bill the Advertiser for the affected period based on a pro-rata average. This calculation shall be determined by the daily volume of qualified actions or revenue generated during the seven (7) calendar days immediately preceding the loss of access.
2.1.3 In cases where the Advertiser is working with multiple marketing suppliers, Advertiser will ensure that all campaigns that run through AVOW will follow the attribution model and attribution window agreed by the Parties in writing.
2.1.4 Attribution and tracking is done by the Mobile Measurement Platform chosen by the Advertiser, unless otherwise agreed in writing by the Parties in the IO
2.1.5 For any Campaign, particularly those based on post-install events, the Advertiser shall provide AVOW with secure, timely, and non-manipulated access to all necessary data. This includes MMP dashboard access and if applicable, ad server statistics and backend data showing advertisement units viewed, click-throughs, and post-install event and revenue data, as required for AVOW to verify performance, conduct optimization, and validate billing. Failure to provide such access within the agreed timeframe may void any associated performance guarantees.
2.1.6 Billable Actions shall be determined based on the Actions shown in the Mobile Measurement Platform. Thus, notwithstanding any other tracking methodology, the data reported by the Advertiser's designated MMP shall be the sole authoritative source for calculating payable Actions/Events, unless an alternative reporting source was explicitly agreed upon and documented in the IO.
2.1.7 In the last click wins model, an Action will be attributed to the marketing partner which generated the last click of the respective End User before the Action took place or/and if the Advertiser enables View Through Impression Attribution, the attribution may also happen via an ad impressions that results in a user Action, without the user clicking on an Ad. In this case the user Action will be attributed to the marketing partner which generated the last impression viewed by the respective End User before the Acquisition/Action took place.
2.1.8 For campaigns where revenue is based on in-App events, the Billable actions for a given calendar month shall include: (i) the in-App events that occurred within that respective calendar month; and (ii) post attribution in-App events from base installations happened in previous months. Any changes related to the attribution window for in-App events postbacks must be agreed in writing between the Parties.
2.1.9 In case of termination of campaigns whose revenue model was based on in-App events, the Advertiser obligation to remunerate AVOW shall persist for a post termination period of thirty (30) calendar days. During this period, the Advertiser is required to compensate AVOW for all in-app Events duly attributed to the terminated campaign.
2.2 Dynamic Preload Ads
Dynamic Preload Ads are defined as a user acquisition method that installs the Advertiser's app directly onto an End User’s new device during the initial device setup or activation process, specifically requiring End User opt-in or consent.
2.2.1 The billable event is the successful installation and first launch of the Advertiser’s application on an End User’s device during the initial device setup process, subject to the End User's consent (“Preload Install”).
2.2.2 All campaigns utilizing Dynamic Preload Ads shall be tracked and measured exclusively by the Advertisers designated MMP. The final and binding attribution shall be determined solely by the MMPs tracking system or numbers, which shall apply its standard prioritization methodology. The Parties acknowledge that this service utilizes a Clickless Integration model. The designated attribution window for all billable actions under this model is sixty (60) days.
2.2.3 The Advertiser is contractually obligated to grant AVOW complete, unrestricted access to the MMP dashboard, providing full visibility into the billable metrics, including attributed installs, In-App Events, and all associated performance data necessary for reporting and billing.
2.2.4 If due to any reason, AVOW does not have direct access to MMP reports tracking billable transactions and campaign data, the Advertiser warrants to provide AVOW with relevant weekly data in the form of Screenshots showing visible data such as but not limited to number of installs, actions or any other metric agreed between the parties. The frequency of such reports can be modified and mutually agreed upon by the parties in writing.
2.2.5 AVOW shall invoice the Advertiser based exclusively on the number of Preload Installs reported by the MMP. The Advertiser explicitly agrees that the reported MMP figures are definitive, and no deductions, adjustments, or offsets will be made to the MMP's reported numbers for the purpose of invoicing.
2.2.6 The Media Partners engaged by AVOW to provide traffic for Dynamic preload Ads may continue to install and distribute the Advertiser’s software applications in compliance with all applicable terms and conditions of this Agreement for a certain period (the “Cool-Off Period”) after a campaign has been paused or this Agreement has been terminated or has expired.
The Cool-Off Period for Google Play Auto Install shall be, depending on the Media Partner as follows:
- 30 days for Installs delivered by Xiaomi
- 14 days for Installs delivered by Oppo, Oneplus or Realme
- 15 days for Installs delivered by Vivo
- 14 days for Installs delivered by Transsion
- 30 days for Installs delivered by Lenovo
- 14 days for Installs delivered by Honor
The Advertiser explicitly agrees to continue to pay consideration to AVOW for billable Actions occurred during the Cool-Off Period for Google Play Auto Install.
2.2.7 All Dynamic Preloads Ads campaigns are executed on a strictly non-deductible basis. Once a qualified action or installation is recorded and validated via the agreed reporting methodology, it shall be final and not subject to any deduction, reversal, or offset for any reason, including but not limited to allegations of 'ad fraud,' 'invalid traffic,' or 'non-compliant activity.
2.3 Branding/ Mobile Web campaigns
Branding Campaigns are focused on top-of-funnel metrics such as Brand Awareness, Video View Rate, Reach, Frequency, or specific Mobile Web conversion events (e.g., Sign-up, Add-to-Cart, Registration, Lead Generation) rather than mobile app installs.
2.3.1 Unless otherwise stated in writing by AVOW, each Advertiser’s campaign shall contain a valid Creative, which is provided by the Advertiser, as well as a tracking URL that will redirect users to the respective website, Advertisers landing page or Appstore. The URL is extracted by the Advertiser and should contain a unique transaction identifier.
2.3.2 The Advertiser shall be solely and exclusively responsible for the design, functionality, maintenance, and operation of the landing page(s) utilized in connection with the advertising campaigns. Furthermore, the Advertiser warrants that the landing page(s) are and will remain in full compliance with any and all applicable regulations, laws, licenses, and governmental requirements. AVOW shall not be held liable or responsible for any claim, loss, penalty, or liability whatsoever arising out of or related to the Advertiser’s landing page(s) or its compliance (or lack thereof) with applicable law.
2.3.3 Advertiser will not knowingly modify, disable or otherwise interfere with any Advertiser Codes and/or other technology and/or methodology required or made available by AVOW to be used in connection with any and all Advertiser Content in order to track Actions.
2.3.4 For all Branding and Mobile Web campaigns, where the agreed attribution model is the Last Click Attribution, the final determination of billable events shall be made through one of the following, as designated for the specific campaign: (a) MMP Links: Attribution shall be based on the tracking and reporting of the Advertiser’s designated MMP; (b) Agreed Tracking Link: Where the campaign directs traffic to a mobile web domain, attribution shall be based on a mutually agreed-upon tracking link or system.
2.3.5 The tracking link or reporting interface used for the campaign must be configured to provide full and complete visibility to AVOW to ensure transparency and proper billing. This visibility is mandatory for AVOW to verify performance metrics.
2.3.6 The final figures used for invoicing shall be the numbers conclusively displayed on the accessible dashboard provided by either the MMP platform (for MMP links) or the agreed-upon tracking link provider (for web traffic). The Advertiser agrees that these dashboard figures shall constitute the definitive basis for all billing under this clause.
2.3.7 If server-based tracking is employed in order to track Actions, Advertiser assumes the obligation to maintain and transmit data integrity. The Advertiser shall ensure that all Actions are accurately recorded tracked and timely delivered to AVOW’s Platform. This data transmission must explicitly incorporate the accurate, unique ID used by Company within the corresponding tracking URL.
2.3.8 If Advertiser employs a cookie-based tracking method, the minimum attribution window is thirty (30) days. Any attribution window different from 30 days requires prior written agreement between the Parties.
3. Licenses and Creatives
3.1 Advertiser grants AVOW and its Media Partners a non-exclusive, royalty-free, transferable, fully paid-up, sublicensable license to use, reproduce, modify, adapt, distribute, publish, translate, publicly display, store, tag and transmits the Creatives and all elements submitted through the Ad Services thereof solely for the purpose expressed in the Insertion Order, including implied licenses to copyrighted materials, Advertiser’s trademarks and patents.
3.2 Advertiser warrants that they have all necessary licenses and clearances necessary for the performance of obligations under the Agreement and the Advertisers Creatives, business, and data practice comply with all applicable laws, regulations, and guidelines, including but not limited to intellectual property rights, data protection and privacy laws.
3.3 Advertiser acknowledges and agrees that: (i) the Advertiser’s Content may be integrated to the Company Assets in conjunction with other content; (ii) unless otherwise stated in an applicable Insertion Order the frequency, positioning, order and placements of the Advertiser’s Content on the Company Assets shall be determined by AVOW or its Media Partners, as applicable, at their respective sole discretion; (iii) AVOW shall have no obligation to review the Advertiser’s Content.
3.4 To the extent that AVOW is required to produce, adjust, or modify the content or format of any Creatives for the Advertiser, such preparation or modification shall undergo a review and approval process by the Advertiser prior to use or publication. Upon the Advertiser’s confirmation or approval (conveyed via email, or other agreed written means), the Advertiser shall be deemed to have fully accepted the Creatives and shall assume sole and exclusive liability for their content, accuracy, and legal compliance.
4. Downtime / Tracking Disruption
4.1 Advertiser must immediately notify AVOW whenever it experiences downtime that affects its performance under this agreement.
4.2 If Advertiser’s site, app, landing page or tracking goes down during the time that a campaign is live with AVOW, Advertiser must compensate AVOW as follows:
4.2.1 Advertiser must identify precisely when the downtime occurred.
4.2.2 In such event of technical error or downtime, AVOW shall bill the Advertiser for the affected period based on the average daily volume of billable revenue recorded during the seven (7) days immediately preceding the onset of the error. This amount shall be calculated by multiplying said daily average by the duration of the downtime (pro-rated by day or hour), minus any billable revenue actually recorded during said downtime period.
5. Data Protection and Processing
5.1. If the Services and products described in section 2 include any services in relation to the processing of Personal Data, as such terms are defined under applicable legislation and regulations, including but not limited to the GDPR and CCPA, the Advertiser appoints AVOW to process Personal Data on its behalf. All terms and conditions relevant to the processing of Personal Data shall be governed by the AVOW Advertiser Data Processing Addendum (“DPA”). A current version of the DPA is available at https://avow.tech/advertiser-dpa and is incorporated herein by reference.
5.2 The DPA is an integral part of the Agreement. AVOW shall use commercially reasonable efforts to provide Advertiser with prior written notice of any material changes to this DPA. The parties acknowledge and agree that with respect to the processing of Personal Data, Advertiser is the entity that determines the purposes and means of processing (the "Controller" or "Business") and AVOW is the entity that processes Personal Data on behalf of the Advertiser (the "Processor" or "Service Provider").
5.3 Notwithstanding any specific terminology used in various Data Protection Laws (including but not limited to the GDPR and CCPA), the parties agree that AVOW’s obligations are defined by its functional role as an entity processing Personal Data solely on behalf of, and at the direction of, the Advertiser. Any reference in this Agreement to a specific regulatory role shall be deemed to include the equivalent role under any other applicable Data Protection Law.
5.4 Advertiser warrants that it complies with applicable data protection laws, regulations, and international standards of the countries and regions in which they operate. Advertisers also refer to regulatory agencies, customer requirements, industry best practices and have policies and processes in place to protect Personal Data.
5.5 The Parties acknowledge that no Personal Data will be shared between the parties in the case of Branding and Google PAI products, as defined in section 2. This will apply for Google PAI business only in cases when the Advertiser does not grant AVOW access to Raw Data reports in the MMP and does not share any other reports including Personal Data.
6. Representations and Warranties
6.1 Advertiser warrants that the Creatives, its products and services (a) do not violate any third party’s trade secret or intellectual property rights; (b) contain or promote material that: (i) is defamatory or obscene; (ii) is sexually explicit adult entertainment or product; (iii) that portrays any person in a false light; (iv) constitutes an invasion of any privacy right, or that violate any applicable laws and regulations; (v) contains viruses, worms, Trojans, error files, password cracking programs, malware or any program that might compromise security or privacy for the End Users; (vi) promotes firearms or tobacco product; (vii) contains or promotes federally regulated drug or narcotic; (viii) contains religious faith or service; (ix) promotes racial, heinous or defamatory content; (x) its products do not contain any back door program which may provide an unauthorized back door channel for a third party to access the products and; (xi) any other item that AVOW reasonably believes might damage AVOW’s brand or reputation.
6.2 AVOW does not have any obligation to monitor any Content made available through or in connection with the Advertiser’s Content, and as a result, AVOW is not responsible for the accuracy, completeness, appropriateness, or legality of such Content.
6.3 AVOW reserves the right, at its sole discretion and without liability, to reject or remove any Advertiser Content from the Company Assets. Advertiser acknowledges that any campaign may be terminated or suspended, whether by AVOW or its Media Partners, by giving a minimum notice of two (2) working days. Advertiser hereby acknowledges that AVOW is acting as an intermediary between Advertisers and Media Partners and as such AVOW shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties.
6.5 Advertiser represents and warrants: (i) it will submit Advertiser Content in accordance with any technical specification provided by AVOW ; (ii) Any information the Advertiser provides to AVOW, including contact information and payment information, will at all times be accurate and in full, and will be maintained at all times; (iii) Advertiser will not promote any mobile applications which are not available for download on the applicable Store. Upon application removal from the Store, Advertiser shall immediately inform AVOW.
6.6. Advertiser warrants (a) that is not a target sanctioned by any regulation or law promulgated by United Nations, United States, European Union and any other applicable authorities, including but not limited to EU Sanctions List, OFAC Specially Designated Nationals and Blocked Persons List, OFAC Consolidated Sanctions List, United Nations Sanctions List, Financial Sanctions List, Ineligible Firms and Individuals List (collectively, the “Sanctions Laws”); (b) Advertiser does not control, are not owned by, controlled by, under common control with, knowingly have transaction or cooperation with, or acting on behalf of any company or person that is the target of Sanctions Laws; (c) it is not a “foreign shell bank” and is not acting on behalf of a “foreign shell bank” or otherwise violating applicable anti-money laundering laws and regulations when executing this Agreement; (d)Advertiser’s entrance into this Agreement or consummation of the transactions contemplated hereby will not contravene Sanctions Laws and other applicable anti-money laundering laws or regulations.
6.7. Advertiser represents and warrants that: (a) it owns the software applications or has valid and sufficient rights to license the software application, free of any restrictions or liens on, or rights of possession held by third parties to, the software application; (b) there are no pending, threatened claims, demands or litigation relating to the software application; (c) the software application does not, to Advertiser’s best knowledge, infringe upon any Intellectual Property Right of any third party; (d) the software application and services comply with all applicable laws; (e) it has obtained all governmental licenses, certifications, qualifications or approvals needed to sell, market, promote, import, export or deliver the software application;
6.8. AVOW shall perform all obligations and services hereunder using personnel of required skill, experience, and qualifications, and in a professional, workmanlike manner, conforming to generally accepted industry standards.
6.9. AVOW warrants and represents that it is and shall remain in good standing, duly organized, and validly existing under the laws of its jurisdiction. AVOW further warrants that it has secured and shall maintain throughout the Term of this Agreement all necessary licenses, permits, registrations, regulatory approvals, and corporate power required to lawfully conduct its business operations and fully perform its obligations hereunder.
6.10 AVOW’s Services are provided in conjunction with third-party Original Equipment Manufacturers (OEMs) and Mobile Operating Systems. Advertiser acknowledges that such third parties may, at any time and without notice, change their technical specifications, advertising policies, or data privacy frameworks (e.g., tracking restrictions). AVOW shall not be liable for any campaign interruptions, performance degradation, or inability to deliver Services resulting from such third-party changes or restrictions.
7. Payment
7.1 AVOW will provide a monthly invoice based on the payment model agreed upon between both parties in the Insertion Order. The Advertiser shall confirm the monthly billing numbers before the fifth (5th) working day of the subsequent month. Should the Advertiser fail to provide confirmation or objection by the fifteenth (15th) working day of the subsequent month, AVOW is hereby authorized to issue the final invoice based exclusively upon the figures recorded on the applicable Mobile Measurement Platform (MMP) or AVOWs internal tracking if no MMP is being used. Payment will be due and payable within thirty (30) days following the last day of the billable calendar month. All payments will be made via bank transfer and in USD unless otherwise agreed. Each Party shall bear their own bank transfer fees.
7.2 Advertiser is to send to AVOW any disputes relating to the measurement or calculation of any Action by email specifying the reason for such objection and including evidence to support the objection, by the 5th of the calendar month following the month for which the invoice is to be issued. If no objection has been submitted within the foregoing time period, the Action shall be deemed as accepted by Advertiser and billed accordingly. Any portion of a charge not disputed in good faith must be paid in full.
7.3 Advertiser will have no right to setoff, withhold or otherwise deduct any amount owed to AVOW hereunder (and accordingly transfer to AVOW when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by AVOW to Advertiser (under any theory of liability).
7.4 AVOW reserves the right to charge additional fees and interest for the delay of payments. An interest of 2% per month will be charged on any overdue invoices past sixty (60) days, up to the maximum rate permitted by applicable law. If Advertiser fails to make payment, Advertiser is responsible for all reasonable expenses, including attorneys’ fees incurred by AVOW in collecting such amounts.
7.5 Advertiser is solely responsible for paying all applicable taxes, duties or charges that may be imposed by any applicable governmental regulation, or any authority governing taxation in connection with the Agreement.
7.6 All payments under this Agreement will be in U.S. Dollars unless agreed otherwise and inclusive of any applicable taxes, including or any other national, state or local tax, VAT.
7.7 Advertiser will provide AVOW with accurate and complete billing information, within five (5) days after signing the agreement.
7.8 AVOW reserves the right, to determine the invoicing methodology, including the issuance of either consolidated or separate invoices for different products and services provided under this Agreement.
8. No exclusivity
This Agreement shall not prevent AVOW from entering into similar Agreements with third parties, including other Advertisers within the same area of business as Advertiser, or from independently developing, using, selling, brokering or licensing products and/or services which are similar to those provided under this Agreement.
9. Liability
9.1 The total liability of AVOW for any culpable failure to fulfil the Agreement shall remain restricted to payment of direct loss, and is then subject to a maximum amount of the total fees paid by the Advertiser to AVOW during the three (3) month period immediately preceding the specific event or circumstances giving rise to the claim, excluding VAT.
9.2 AVOW shall not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages to Advertiser or any person (including without limitation, any payments for lost revenues, lost data, lost profits or loss of goodwill), whether foreseeable or not, for any cause whatsoever whether or not caused by AVOW negligence, even if AVOW has been pre-informed of the possibility of such loss or damages. Under no circumstances shall any projections or forecasts by AVOW be binding as commitments or promises by AVOW and/or give rise to any liability. In any case AVOW’s direct liability is limited to the total fees paid by the Advertiser to AVOW during the three (3) month period immediately preceding the specific event or circumstances giving rise to the claim.
9.3 AVOW does not deem itself liable for losses of whatever nature that are the result of a failure to provide support in time.
10. Confidentiality
10.1 For the purpose of this Agreement, "Confidential Information" shall mean all non-public information, including but not limited to, commercial, financial, operational, marketing, technical, and proprietary information, whether oral, written, or in any other form or medium, disclosed by the Disclosing Party to the Receiving Party. It shall also include information related to the business activities of the other Party, its media partners, clients, and entities with whom that Party does business, that may be obtained by either side from any source, whether that information is marked as confidential or is confidential by its nature, including the Campaign Details and the agreed pricing of the campaigns, all trade secrets, ideas, know-how, concepts, processes, techniques, research, data, plans, materials, product development and all other information of a confidential nature (in whatever form).
10.2 The Receiving Party agrees that it will not, during the term of this Agreement and for a period of four (4) years following its termination or expiration, use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party's prior written consent. The Receiving Party will use at least the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable standard of care.
10.3 The obligations of confidentiality shall not apply to information that: (a) Is or becomes publicly known through no fault of the Receiving Party; (b) Was rightfully in the possession of the Receiving Party prior to its disclosure by the Disclosing Party; (c) Is received by the Receiving Party from a third party without any obligation of confidentiality; (d) Is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information; and (e) Is required to be disclosed by law, regulation, or a court order, provided the Receiving Party gives the Disclosing Party prompt written notice of such requirement.
11. Indemnification
11.1 Advertiser agrees, at its own expense, to indemnify, defend and hold harmless AVOW, its employees, representatives, agents and Media Partners, against any and all expenses and losses of any kind arising out of or in connection with Advertiser's campaign or services for the Advertiser, 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.
11.2 Advertiser hereby indemnifies and holds AVOW harmless from and against all claims arising to any third party against AVOW due to infringement of warranties and obligations by Advertiser. Advertiser is liable for any damage in this connection and the costs incurred by AVOW for legal action. This shall not affect any further claims AVOW may have. Advertiser shall, upon instance and demand by AVOW or any third party nominated by AVOW, make whatever in-court or out-of-court declarations and provide whatever documents are required to defend against third-party claims.
11.3 Advertiser agrees to indemnify and hold harmless AVOW, its parent company, Affiliates and Media Partners and/or their officers and employees from any kind of losses, costs, expenses or liabilities, including reasonable attorneys’ fees and costs of settlement, arising out of or resulting from any claim by a third party that the Advertiser’s App, software, creatives, campaign materials, or Advertiser’s entry into or performance under this Agreement infringes, violates or otherwise improperly affects any of said third party’s Intellectual Property right(s); provided that AVOW (i) promptly notifies Advertiser of such claim; and (ii) allows Advertiser to control the defense of such claim and/or any related settlement negotiations, except that any settlement resulting in any additional obligation or liability of AVOW shall require AVOW’s approval, such approval not to be unreasonably withheld. Upon receipt of a claim from a third party alleging a breach of any Intellectual Property Right, Advertiser, in any event, shall provide reasonable assistance in evaluating such claim and in any subsequent defense or settlement thereof.
11.4 Notwithstanding any other provision of the Agreement or this Terms to the contrary, no limitation of liability or cap on damages agreed upon by the Parties shall apply to, or in any way limit, the Advertiser’s liability arising from or related to: (i) gross negligence or willful misconduct; (ii) any infringement, misappropriation, or violation of Intellectual Property Rights; or (iii) any breach of Data Protection obligations, including but not limited to data security breaches or non-compliance with applicable privacy laws.
12. Non-Circumvention
12.1 Advertiser recognizes that AVOW has proprietary relationships with Media Partners. Advertiser agrees not to circumvent, solicit or contract with such Media Partners, or obtain services similar to the services performed by AVOW hereunder from any Media Partner that is known, or should reasonably be known by Advertiser to have or have had a relationship with AVOW and that has been active on Advertiser’s campaigns, during the term of the Agreement and for twelve (12) months following termination or expiration of the Agreement.
12.2 Advertiser agrees that monetary damages for a breach of this section will not be adequate by themselves and that AVOW shall be entitled to damages from Advertiser in the amount equal to the higher of one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, for the previous twelve (12) month period or 50000 USD. If the period is shorter than twelve (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 AVOW has the right to prove that higher damages occurred.
13. Publicity
Neither party may issue a press release or general public announcement that refers to the other Party, without the other Party’s consent.
14. Term and termination
14.1 The Agreement shall commence on the Effective Date and will continue in force until terminated as set out below in this Clause 14.
14.2 Either Party can terminate this Agreement or pause individual advertising campaigns at any time for On Device Display Advertising, for any reason, with at least 24 (twenty-four) hours’ notice, if the termination request happens on a weekday and 48 (forty-eight) hours’ notice, if the termination request happens on the weekend by giving written (including e-mail) notice to the other Party. In case of any activity related to an in-App event business model, Advertiser remains liable for the payments based on the Cool-off period or postback attribution window agreed between the Parties, even after the termination has come into force.
16. Force Majeure
Neither Party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by circumstances outside their control (“Force Majeure Event”). A Force Majeure Event includes without limitation, acts of Nature, acts of war (declared or undeclared), explosions, civil disturbances, acts of terrorism, insurrection, riots, rebellion or sabotage, acts of federal, state, local or foreign governmental authorities or courts, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, failures or fluctuations in electrical power or telecommunications service or equipment, labor disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful. The Party so delayed or prevented from performing shall provide prompt notice of such event to the other Party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance. To the extent that a Force Majeure Event has continued for five (5) Business Days, Publisher and Advertiser both have the right to cancel the remainder of the Insertion Order without penalty.
17. Severability
If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.
18. Assignment
Advertiser shall not be entitled to assign its rights or obligations under the Agreement without AVOW's prior written consent.
19. Governing Law
The Agreement and any related matters shall be governed by the laws of the Federal Republic of Germany. The courts of Berlin, Germany shall have jurisdiction, to the exclusion of any other court; however, AVOW is entitled to file a claim at the domicile of Advertiser as well.
20. Entire Agreement
20.1 These Terms, the DPA, the Insertion Order and any Campaign Details agreed via Email constitute the entire agreement between AVOW and Advertiser with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
20.2 Without derogating from the generality of the foregoing, in the event that the terms of this agreement are in conflict to the terms of the Insertion Order, the terms of the Insertion Order shall prevail, followed by the provisions of the terms provided herein and the ones in the DPA. For the avoidance of doubt, any Campaign Details agreed via Email shall only refer to performance and fraud considerations and shall not have the power to vary any of the provisions of the Terms or the DPA.
21. Changes to the Agreement
AVOW may amend these Terms by providing written notice to Advertiser via email. Such changes shall be deemed accepted unless Advertiser objects in writing within fourteen (14) days of receipt of the notice.