PUBNATIVE MOBILE PUBLISHER AD OPTIMIZATION AGREEMENT TERMS AND CONDITIONS
PubNative GmbH, Greifswalder str. 212, 10405 Berlin, Germany (”PubNative”) operates a mobile ad publishing platform fully focused on native advertising (the “Platform”). Advertisers use PubNative to distribute advertising throughout PubNative’s publisher network.
1.1 These Publisher Terms & Conditions (“T&C”) govern the provision of advertising optimization services including inventory management, yield optimization, mediation and support services (the “Services”) offered by PubNative to its publishing partners (the “Publishers” or “you”). The exact features and services are described on the PubNative website. Publisher is a party connected to PubNative’s network that owns advertising space (“Direct Publisher”) or that directly or indirectly controls advertising space of a third party such as for example Ad Networks, Advertising Agencies, SSPs (each hereinafter an “Agency”). PubNative acts in its own name and on its own behalf and therefore, your contractual partner is PubNative, not PubNative’s Advertiser.
1.2 Specific terms of related to the serving of advertisements such as for example budget, territory, term, inventory, block list and others are agreed through the options available on the Platform or by way of insertion order (“IO”).
1.3 From time to time, the parties may agree on and/or modify certain terms in writing (email sufficient). Such changes and modifications are agreed if one party proposes a change and the other party confirms it unconditionally. They become effective (a) once the party having to implement the change confirms it has done so to the other party or (b) upon expiry of the agreed Out Clause period (see section 2.8 below), whichever is earlier.
1.4 In order to use the PubNative services, Publishers are required to register at the Platform. You can either register using the PubNative self-service procedure or PubNative will support your registration process by creating an account for you. You warrant that all information and data you provide during the registration process and otherwise in the course of this Agreement is true, accurate and complete and that you will always keep your account data up to date. PubNative will provide you with a personal login and password. You must not pass on your login data to any third party. You are fully responsible and liable for all activities under your account. If you register on behalf of your employer or any other entity, you represent and warrant that you have full legal authority to do so and to oblige your employer or such entity to this Agreement.
1.5 By using PubNative’s services, you declare that you accept these T&C and the fact that no other terms and conditions apply. If you do not agree to these T&C, you cannot use the PubNative service. A binding contract about the use of the PubNative service in accordance with these T&C is closed when PubNative following your registration either sends a confirmation note (email sufficient), or when you and PubNative sign an IO, or when PubNative starts serving advertising to Publisher, whichever is earlier.
1.6 These T&C, any IO and any other individual agreement between Publisher and PubNative together are referred to as the “Agreement”. In case of any collisions, the terms of an individual agreement (see section 1.3) prevail over the terms of an IO, and the terms of an IO or an individual agreement prevail over the terms of these T&C.
2. The Services
2.1 “Creatives” means advertising materials that may contain texts, graphics, images, sounds, videos, any other content or links to the aforementioned. Creatives contain tracking means such as for example ad tags, pixels or others which are used to identify the relevant source of traffic. Creatives have to be used as delivered and must not be altered or modified unless with PubNative’s prior approval in writing.
2.2 Publishers are required to connect to PubNative via PubNative’s proprietary application protocol interface (“API”). Unless agreed otherwise, all relevant information and data required for the ad serving for example Creatives, tracking data such as links, ad tags and others and will be transmitted through the API.
2.3 “Specs”, i.e. all specifications related to the distribution of advertisements such as for example term, targeting requirements, revenue sharing and pricing, maximum budget, traffic restrictions and others as agreed from time to time are material terms of this Agreement. Traffic that is not strictly compliant with the Specs will not be remunerated. If you are an Agency, you are fully responsible for the compliance of your sub-publishers with the Specs and all other terms of this Agreement.
2.4 PubNative grants you the limited, worldwide, royalty-free, non-assignable and non-exclusive right to use the Creatives for the contractual purpose of placing them in the agreed types of advertising space only. If you are an Agency, this includes the right to pass the Creatives on to your sub-publishers. Furthermore, PubNative grants you a limited, worldwide, royalty-free, non-assignable and non-exclusive license to use the PubNative APIs solely for the purposes of this Agreement. You must not modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the PubNative APIs or any part thereof. All rights not granted to you are expressly reserved by PubNative.
2.5 Your right to store any data received from PubNative terminates automatically as soon as such data has served the contractually agreed purpose unless and to the extent that you have a right to store such data for a longer period under applicable law.
2.6 PubNative is not responsible for the commercial success of Publisher’s use of the Services. Publisher acknowledges that, unless expressly agreed otherwise, PubNative will make available the Services in PubNative’s sole discretion and that therefore, PubNative is not obliged to distribute any advertisements to Publisher at all.
2.7 The Platform generally operates on a 24/7 basis with a yearly availability of 95%.
2.8 PubNative reserves the right to suspend or cancel the Services or parts of the Services at any time in its sole discretion without incurring any liability to Publisher. In such case, Publisher will stop display of the concerned advertising immediately and in any event within a maximum of 24 hours following PubNative’s notice (“Out Clause”). If the suspension or cancellation was due to a breach or an alleged breach of Publisher, Publisher’s compliance with the foregoing sentence does not cure such breach and PubNative’s rights with regard to such breach remain unaffected.
2.9 This Agreement shall have a term of twelve (12) months beginning on the Effective Date (the “Initial Term”), unless terminated earlier as provided in this Agreement. This Agreement will renew automatically for subsequent twelve (12) month terms (“Renewal Terms”) unless notice of non-renewal is received at least thirty (30) days prior to the expiration of the then-current term, or unless terminated sooner by the mutual agreement of both parties or otherwise in accordance with this Agreement. The Initial Term and Subsequent Terms (if any) shall be referred to collectively as the “Term”. The right of either party to terminate this Agreement extraordinarily in accordance with applicable law remains unaffected. Any and all provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and remain binding upon and for the benefit of the parties, their successors and permitted assigns.
3. Additional Publisher Obligations & Indemnification
3.1 Publisher agrees to provide available advertising inventory, to install and incorporate the technology, including any updates, fixes or patches provided by PubNative from time to time, in the Media Property (as defined below), and to maintain throughout the Term (as defined below) all software codes and tags necessary for PubNative to serve advertising. As a Publisher, it is your responsibility to ensure that you own or control the advertising space where the Creatives are being displayed such as sites, applications and any other media (the “Media Property”) in a way that you are entitled to display advertising as agreed under this Agreement.
3.2 Publisher must ensure that the Media Property is in compliance with applicable laws and regulations and does not infringe with the rights of any third party. Furthermore, you ensure that no advertising is displayed on any Media Property that is not in compliance with any additional policies and restrictions that PubNative will communicate to you from time to time.
3.3 Publisher must not alter, modify or otherwise interfere with the operation of any of the advertising, and particularly, without limitation, Publisher must not manipulate the results of any advertising campaign by for example, without limitation, generating automated or otherwise incorrect actions, installs, leads, clicks and impressions or by engaging into any other product-unrelated, deceptive or misleading practices (“Misuse”). Publisher agrees that there is a first indication of infringement or manipulation if there is an unusual high number of clicks, or if a large number of clicks originates from IP addresses or device IDs which are under control of Publisher or in case of unusual high conversion or churn rates. Publisher will monitor its traffic in order to be able to recognize any Misuse as soon as possible and will inform PubNative promptly.
3.4 The parties agree that any breach against the foregoing sections 3.1 – 3.3 is a material breach. In case of such breach, PubNative is entitled to terminate the Services or the affected parts of the Services with immediate effect. Furthermore, PubNative reserves the right to exclude Publisher from the Platform without incurring any liability to Publisher, and no revenue share or other remuneration will become due.
3.5 If there is a suspicion that Publisher is in breach, PubNative shall be entitled to retain payment to Publisher until it is verified that the traffic in question is compliant.
3.6 Publisher will indemnify PubNative from any damages and losses including legal fees that PubNative may incur in connection with a breach or alleged breach of sections 3.1 – 3.3 above.
3.7 Nothing in this section 3 is intended to limit any other rights PubNative may have with regard to any breach of this Agreement under applicable law, all such rights being expressly reserved.
4. Payment, Tracking, Reporting, Tax
4.1 PubNative collects advertising revenues from Advertisers. The parties will share the revenue generated from the distribution of advertising to Publisher’s Media Property. PubNative’s fee is up to (a) 30% of Net Advertising Revenue (as defined below) when revenue is shared with Direct Publishers and up to (b) 40% of Net Advertising Revenue (as defined below) when revenue is shared with Agencies/Ad Networks.
4.2 “Net Advertising Revenue” shall mean the total revenues collected by PubNative from the Advertisers in consideration of the sale of advertising space on Publisher’s Media Property, less any charges for taxes, refunds, ad serving fees, bidder fees, revenue share, and advertising agency fees, if any.
4.3 The parties may separately agree on payouts to be calculated using one of the following payment models:
“CPA” means inventory sold on a cost per acquisition basis.
“CPI” means inventory sold on a cost per install basis.
“CPC” means inventory sold on a cost per click basis.
“CPL” means inventory sold on a cost per lead basis.
“CPM” means inventory sold on a cost per thousand impressions basis where impression means that a Creative is displayed.
Where applicable, the parties may define the specifics of certain deliverables, as for example an “install” or a “lead” on the applicable IO or in accordance with section 1.3.
4.4 PubNative reserves the right to determine in its sole and reasonable discretion and charge an additional fee of up to 10% of the Net Advertising Revenues or of the revenues to be shared according to one of the models stated in section 4.3 above, as the case may be, in cases of incremented operational and handling efforts caused by Publisher. If Publisher does not agree with such determination by PubNative, Publisher’s sole remedy shall be the right to terminate this Agreement. Where PubNative can provide proof of even higher costs, such costs may also be charged to Publisher.
4.5 PubNative uses commercially reasonable efforts to collect revenues from Advertisers. Publisher acknowledges and agrees (a) that in cases where revenue collection is delayed PubNative will make payout on the payment date following the actual collection and (b) that if and to the extent revenue collection fails Publisher’s payout will be adjusted accordingly.
4.6 Publisher will provide PubNative with all information required for determining the performance of Publisher’s services. In particular, without limitation, Publishers shall use and implement all agreed tracking means and refrain from any action that may interfere with the agreed tracking. Furthermore, at PubNative’s request, Publisher will furnish any additional information PubNative may reasonably request in order to verify the compliance of Publisher’s services with this Agreement also including the Specs such as for example detailed information with regard to the Media Property.
4.7 Based on the tracking results, PubNative will create a final report and make it available to Publisher. Reports will be made available on a monthly basis. Publisher will invoice PubNative based on PubNative’s reports. PubNative’s reports are deemed accepted by Publisher if Publisher does not object them within ten days following the making available of a report.
4.8 If there is a discrepancy of greater than ten per cent (10%) between PubNative’s reports and the data of Publisher, the parties will work together in good faith in order to verify the relevant data and agree on a final report. However, where the reasons for the discrepancy cannot be clarified within 14 days, Publisher will invoice PubNative based on PubNative’s report except to the extent that Publisher can prove that PubNative’s data is wrong.
4.9 PubNative is entitled to apply charge-backs when payouts made to Publisher subsequently transpire to be in excess of the amount actually due to Publisher. In such case, PubNative shall be entitled to set-off the charge-back amounts against other payments due to Publisher.
4.10 Where prepayment is agreed, Publisher is entitled to invoice PubNative upon campaign start. In any event, Publisher is only entitled to the remuneration determined in accordance with sections 4.1 – 4.9 above. Therefore, Publisher will pay back any overpaid amounts immediately at PubNative’s request. PubNative shall be entitled to set off such amounts against any claims Publisher may have by way of written notice (email sufficient).
4.11 All amounts agreed are net, that means value added taxes (if applicable) will be invoiced in addition. PubNative will pay Publisher within 35 days of the receipt of a correct invoice. If payout in any given month is less than USD 100, the payment will not be made until the total revenue share is accumulated to reach or over USD 100.
4.12 Publishers may have access to live reporting within the Platform. Displayed results are preliminary. Final results are determined as agreed in sections 4.1 to 4.9 above.
4.13 Each party shall be responsible for and pay its own income taxes, sales and use taxes, value-added taxes, and any other taxes, license or registration fees, duties, and other similar assessments or charges levied or imposed by any jurisdiction as a result of the execution of this Agreement, the performance of any obligations under this Agreement or the transfer of any property, rights or any other grant under the terms of this Agreement. Where required by law, the invoicing party shall itemize applicable taxes on its invoices.
5. Confidentiality & Data Protection
5.1 Each party shall keep confidential and shall not without the prior consent in writing of the disclosing party copy or disclose to any third party the content of any documents or information (whether of a commercial, financial or technical nature or which is identified as being confidential) acquired from the other party in connection with the Agreement (as defined below). Each party shall copy and use the same solely for the purposes of the Agreement. The foregoing obligations shall not apply to any information which (a) is within the public domain at the time of disclosure or later becomes part of the public domain through no fault of the receiving party; or (b) was known to the receiving party prior to disclosure by the disclosing party as proven by the written records of the receiving party; or (c) is disclosed to the receiving party by a third party who did not obtain such information, directly or indirectly, from the disclosing party.
5.2 PubNative shall be entitled to include Publisher’s name and logo in its list of references, product presentations, press releases and related material.
5.3 Publisher’s right to use the data obtained through its use of the Services is limited to verifying the performance of the distributed advertising. All other use of such data is prohibited. This section does not apply, however, to data obtained by Publisher itself on its own sites.
5.5 To the extent permitted by applicable law PubNative may store and use aggregate information derived from the delivery of the Services for the purpose maintaining aggregate audience reports and advertising analytics, provided that there shall be no reference to Publisher as the source of any such information and that such information is in no way attributed to Publisher.
6. Limitation of Liability
6.1 Except where PubNative has given a warranty, and for breaches of “Material Obligations” (as defined below), PubNative’s liability under this Agreement shall only be limited to cases of intentional or grossly negligent acts. “Material Obligations” means all obligations (a) which are essential for achieving the purpose of the particular agreement and (b) on the fulfilment of which a contractual party is regularly able to rely.
6.2 If PubNative breaches a Material Obligation and such breach is not grossly negligent or intentional, the liability of PubNative shall be limited to the damages that under regular circumstances would have been foreseeable.
6.3 The foregoing limitation shall also apply to damages in form of useless expenses and lost profits.
6.4 The limitations of liability agreed in the sections above shall (a) also apply in favour of PubNative’s representatives and vicarious agents; (b) not apply in cases of personal death or injury and regarding PubNative’s compulsory liability under the German product liability act and German telecommunications law.
6.4 Damage claims are subject to a limitation period (German: “Verjährung”) of one year.
6.5 Within the limits of applicable law, the parties are free to agree on further limitations of liability by way of individual agreement.
7.1 Publisher hereby agrees to indemnify, defend and hold harmless PubNative against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on any breach of this Agreement.
7.2 PubNative’s rights under applicable law with regard to any breaches of Publisher remain unaffected.
8. Changes to these T&C
8.1 PubNative reserves the right to amend these T&C from time to time in order to cover changes to the Services as for example the adding or removing of certain features or to adjust these T&C and the Services to changes in applicable laws and regulations and to adjust the parties’ obligations accordingly. PubNative will inform Publisher in writing (email sufficient) at least two weeks in advance of (a) such changes, (b) of Publisher’s right to object such changes and (c) of the fact that unless Publisher objects, such updated T&C will become effective upon expiry of the two weeks’ period. The foregoing only applies to changes that are not material to the Agreement i.e. that they do not affect the parties’ rights and obligations in a way that the original understanding between the parties is more than just insignificantly affected.
8.2 If Publisher objects to a proposed change of these T&C, the then agreed version of the T&C will remain in effect. However, either party will be entitled to terminate the Agreement with two weeks’ notice.
9.1 Publisher covenants that during the term of this Agreement and for a period of one (1) year after its end, it will not solicit, attempt to solicit, induce or attempt to induce any of PubNative’s advertising customers for which PubNative has provided Creatives to Publisher in order to enter into agreements with such advertising customers about the performance of services similar to the services performed to PubNative under this Agreement.
9.2 For each concerned advertising customer for which Publisher is in breach of section 9.1 above, PubNative shall be entitled to liquidate damages from Publisher. The amount of liquidated damages will be determined by multiplying the monthly average receivable by Publisher from the concerned advertising partner by 12. In order to determine the monthly average, the month in which PubNative first objected Publisher’s action plus the eleven months preceding this month will be taken into account. If the breach has been going on for a shorter period, the monthly average will be calculated based on such shorter period. If Publisher can prove that PubNative’s actual damages were lower than the liquidated damages amount, then Publisher shall only be obliged to pay to PubNative such lower amount instead of the liquidated damages. If PubNative can prove that its actual damages are higher than the liquidated damages amount, then Publisher shall be obliged to pay such higher amount instead of the liquidated damages amount.
9.3 Sections 9.1 and 9.2 shall not apply where Publisher can show for any of the concerned advertising customers that Publisher has been working with them prior to the beginning of the relationship between Publisher and PubNative.
10.1 This Agreement shall be governed and construed by and under German law except for that body of laws relating to conflicts of laws. Place of jurisdiction shall be Berlin.
10.2 Neither party shall be entitled to assign its rights and obligations under this Agreement without prior written approval by the other party except that PubNative may assign the rights and obligations under this Agreement to its affiliated parties upon notice to Publisher.
10.2 Publisher shall not be entitled to offset its payment claims against the payment claims of PubNative unless such claims of Publisher are uncontested or have been legally established in a final court decision or otherwise.
10.3 In the event a court of competent jurisdiction holds a provision of this Agreement to be contrary to applicable law, the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent of the parties.
v 1.6 / 01 March 2016