Advertiser Terms and Conditions
Advertiser Terms and Conditions
These Terms and Conditions (“Agreement” or “Terms and Conditions“) are a legally binding and enforceable agreement between Avow GmbH located at Grimmstraße 23, 10967 Berlin, hereby referred to as “Company” and you (“Advertiser”).
“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” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, etc. as specified in the applicable Insertion Order,
“Advertiser” means any client of Avow GmbH which has entered into one or multiple Insertion Orders with Avow GmbH.
“Creative” means all creative assets included in Advertiser’s advertising material supplied to Avow.
“Insertion Order (IO)” means a binding document entered into by Advertiser and Avow GmbH that outlines promotion terms.
“Advertising Network” is a network of registered Publishers, OEMs and additional source of Inventory (“Media Partners”) run by the Company, utilizing related technology and software.
“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 by Company, properly licensed to Company or otherwise made available by Company, through the Advertising Network, Media Partners or other third parties, for the purpose of placing Content.
“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.
“End User” means human end user who interacts with the Media Partner’s Assets.
“Advertiser Code” means conversion and/or event name/identifier to map to the relevant action taken by the End User for tracking purposes
“Party” means the Company or the Advertiser.
“Parties” means the Company and the Advertiser.
“Data Protection Law” means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
“Company Data” means data collected on behalf of Company’s Media Partners and shared with the Advertiser subject to the Advertiser Agreement and for the purpose of providing the service, including without limitations, IDs.
“EU Data Protection Law” means the:
(i) EU General Data Protection Regulation (Regulation 2016/679) (“GDP”);
(ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy La);
(iii) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii);
(iv) any legislation replacing or updating any of the foregoing;
(v) any judicial or administrative interpretation of any of the above, including any binding guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority.
“Services” refer to all by Avow GmbH, in accordance with the terms of the Insertion Order, executed consulting, advertising published by Avow GmbH, other payable events, its assignments, publishers and/or Media Partner, whether on an hourly, sponsorship, CPA (Cost per Action), CPI (Cost per Install), CPL (Cost per Lead), CPC (Cost per Click) or e.g. CPM (Cost per thousand, e.g. impressions) basis.
“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.
“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.
“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).
“Third party fraud tool” means a third party ad fraud detection tool such as, but not limited to: 24metrics, mFilter, Scalarr, Machine.
“Platform” means the Company’s tracking and Media Partner management platform (Everflow or a similar provider).
- Tracking and Reporting
2.1 Unless otherwise stated in writing by Company, each Advertiser’s Content or link used by Company in connection with a specific campaign must include the transaction computer code or tracking link provided by Company.
2.2 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 Company to be used in connection with any and all Advertiser Content in order to track Actions.
2.3. Company’s services under this Agreement do not involve investigating or resolving any claim or dispute involving Advertiser and any third party.
2.4. In case Advertiser is working with multiple marketing suppliers, Advertiser will ensure that all campaigns that run through Company, will follow the last click wins model, meaning that an Action will be attributed to the marketing partner which generated the last click of the respective End User before the Acquisition took place or if the Advertiser enables View Through Impression Attribution where the last impression viewed on the device wins model, meaning that an Action will be attributed to the marketing partner which generated the last impression view of the respective End User before the Acquisition took place
2.5. When server-based tracking is employed in order to track Actions, Advertiser ensures all Actions are accurately tracked and timely reported to Company’s Platform, inclusive of accurate unique ID used by Company in the tracking URL.
2.6 The Avow Platform and/or a third party tracking and ad serving system will measure all Actions delivered to Advertiser.
2.7 Advertiser must provide Company with access to ad server statistics showing advertisement units viewed, click-throughs and/or Acquisitions via access to the tracking system employed by the Advertiser.
2.8 Avow reserves the right to rely on Advertiser’s reporting. Advertiser must pay Avow based on the numbers on the Mobile Measurement Platform chosen by the Advertiser.
2.9 Avow reserves the right to have an independent external auditor review any data reports from Advertiser’s backend system to verify accuracy.
2.10 If Advertiser employs a cookie-based tracking method, the minimum attribution window is thirty (30) days.
2.11 If there is under-delivery of volume levels, compared to specifications in the Insertion Order, Avow 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, Avow 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 defence against any remuneration claim of Avow. 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.
- Licenses and Creative
3.1 Advertiser grants Avow and its media partners a non-exclusive, non-transferable license to use Creative and all elements thereof solely for the purpose expressed in the Insertion Order, including implied licenses to copyrighted materials, Advertiser’s Trademarks and patents.
3.2 Advertiser must have all necessary licenses and clearances that are required for using the content contained in Creative.
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 Company or its Media Partners, as applicable, at their respective sole discretion; (iii) Company shall have no obligation to review the Advertiser’s Content.
- 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 a campaign, Advertiser must compensate Avow as follows:
4.2.1 Advertiser must identify precisely when the downtime occurred.
4.2.2 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.
4.2.3 Avow 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. Avow 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.
4.2.4 Advertiser must compensate Avow the average of the lost Acquisition estimate determined by Advertiser and the lost Acquisition estimate as determined by Avow.
- Data Protection and Processing
5.1. If the Services include any services in relation to the processing of Personal Data of Data subjects who are in the European Union, Avow GmbH will comply with all relevant provisions of the General Data Protection Regulation (“GDPR”).
5.3. Within the scope of this Agreement, Advertiser shall transfer inter alia the following data to Avow for the purpose of advertisement, billing and reporting:
- Device identifiers and data,
- Publisher ID,
- Ad campaign ID,
- Location data (if required and available),
- Demographic data (if required and available), and/or
- Event data. These data and other data, including additional tracking data and performance data required to optimize and further develop the services of Avow, may be transferred between the Parties as required for the execution of this Agreement.
- Raw log report from third party fraud tool (if used) and the MMP
5.4. In the event that any transferred data under the present Article 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, the 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;
- Taken all adequate technical and organizational measures for the protection of the received Personal Data against accidental or illegal destruction, loss, and/or unauthorized alteration, amendment, disclosure or access, especially if the processing of such data implies transmission thereof within a network, as well as against any form of illegal processing;
- 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.
5.5. Advertiser must, in particular:
- Keep a written record of all of Advertiser’s efforts to comply with this Article 5;
- Provide Avow with proof of compliance under Article 5.4.b., should Avow request such proof.
5.6. Avow will:
- Process Personal Data received from the Advertiser only in accordance with the instructions of the Advertiser;
- Take all adequate technical and organizational measures for the protection of the received Personal Data against accidental or illegal destruction, loss, and/or unauthorized alteration, amendment, disclosure or access, especially if the processing of such data implies transmission thereof within a network, as well as against any form of illegal processing;
- Notify the Advertiser of any unauthorized or unlawful disclosure or use of Personal Data of which Avow becomes aware; and
- At the request and option of the Advertiser, promptly return or safely destroy all Personal Data in Avow’s possession or control.
- Representations and Warranties
6.1 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 violate any applicable laws and regulations.
6.2 Company does not have any obligation to monitor any Content made available through or in connection with the Advertiser’s Content, and as a result, the Company is not responsible for the accuracy, completeness, appropriateness, or legality of such Content.
6.3 Company 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 Company or its Media Partners, at any time and without notice to Advertiser. Advertiser hereby acknowledges that Company is acting as an intermediary between Advertisers and Media Partners and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties.
6.4 Advertiser acknowledges and agrees that Company may collect information about End Users which includes, but is not limited to personally identifiable information as well as behavioral information for Company’s commercial or internal use.
6.5 Advertiser warrants and represents that when serving advertising content to End Users in connection with the Advertiser’s Content, Advertiser shall make commercially reasonable efforts to: provide the End User with disable functionalities that end the session of the promotional Content and do not trigger new promotional Content; and provide the End User with opt-out instructions.
6.6 Advertiser represents and warrants: (i) it will submit Advertiser Content in accordance with any technical specification provided by the Company; (ii) Any information the Advertiser provides the Company, 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 Company.
7.1 Avow will provide a monthly invoice based on the payment model agreed upon between both parties in the Insertion Order. Payment will be due within thirty (30) days of the last day of the billable month.
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 Company hereunder (and accordingly transfer to Company when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by Company to Advertiser (under any theory of liability).
7.4 The Company reserves the right to charge additional fees and interest for the delay of payments. A 2.5% interest on any overdue invoices past sixty 60 days will be charged. If Advertiser fails to make payment, Advertiser is responsible for all reasonable expenses, including attorneys’ fees, incurred by Company 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 the Company with accurate and complete billing information. If payment is made via a credit or debit card, Advertiser must give the Company the respective card details and authorizes the Company to charge all Payments incurred to the designated card and acknowledges that periodic (monthly) payments may be charged automatically and without separate authorization unless otherwise provided in an applicable Insertion Order.
- 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.
9.1 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, ii) body or health; or iii) the assumption of a guarantee or of a procurement risk; iv) or the German Product Liability Act; or v) intentional or grossly negligent conduct of Avow or of its statutory agent or other persons which Avow may periodically involve in the service of its obligations towards Advertiser; or vi) violations of material contractual duties, the fulfilment of which is necessary in order for the contract to be executed and in the compliance with which the respective other Party typically places reasonable confidence.
9.2 Unless where Avow’s liability is unlimited as stated, the liability of Avow to Advertiser, as well as the liability to Media partner of any agents of Avow, employees or other persons which Avow may, periodically, 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 is greater. On no account shall Avow’s agents, employees or any other person which Avow may involve in the performance of the parties’ contract or contracts be liable towards Advertiser for actions or omissions for which Company’s liability is excluded hereunder or shall quantum-wise be liable in excess of Company’s liability.
During the Term of this Agreement and for four (4) years after, each Party agrees that it will not disclose or use the Confidential Information of the disclosing party without the disclosing Party’s prior written consent. Confidential information is all 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 Ad description 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).
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.
12.1. Advertiser recognizes that Avow has proprietary relationships with Media Partners. Advertiser agrees not to circumvent, solicit or contract Company’s relationship with such Media Partners, or obtain services similar to the services performed by Company hereunder from any Media Partners that is known, or should reasonably be known, by Advertiser to have a relationship with Avow, during the term of the Agreement and for six (6) 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 Company shall be entitled to damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, for the previous twelve (12) month period. 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 Company has the right to prove that higher damages occurred.
Neither party must issue a press release or general public announcement that refer to the other party, without the other party’s consent.
- 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 Article 14.
14.2. Parties may terminate the Agreement upon mutual agreement in writing at any time, providing all obligations, Services and due payments have been fulfilled.
14.3. Advertiser may terminate this Agreement upon providing seven (7) business days’ notice in writing to Avow GmbH, however, Advertiser remains liable for all his obligations under this Agreement and for all due payments incurred prior to termination through the Services of Avow GmbH.
14.4. Avow GmbH may terminate the Agreement upon providing seven (7) business days’ notice in writing, however, Advertiser remains liable for all his obligations under this Agreement and for all due payments incurred prior to termination through the Services of Avow GmbH.
- Force Majeure
Neither party will be responsible for delays caused by acts of god, embargoes, war or any other circumstances beyond its control.
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.
Advertiser shall not be entitled to assign its rights or obligations under this Agreement without Avow’s prior written consent
- Governing Law
This 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, Company is entitled to file a claim at the domicile of Advertiser as well.
- Entire Agreement
This Agreement and the Insertion Order constitute the entire agreement between the Company 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. 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 or the Offer level Terms and Conditions, the Offer level Terms and conditions (if existent at the respective time) shall prevail, followed by the provisions of the Insertion Order and the terms provided herein.
- Changes to the Agreement
Company may make changes to the Agreement from time to time, at its sole discretion. The most current version will be posted on Company’s website. By continuing to access or use of the Company’s services, as described in this Agreement after the changes become effective, the Advertiser agrees to be bound by the revised Agreement.