Terms & Conditions
This MGine Digital LLC Advertiser Agreement ("Advertiser Agreement"), shall govern the relationship between MGine Digital LLC (" MGine Digital LLC" or "we") and the Advertiser ("Advertiser"), whereby Advertiser may obtain access to the Affiliate Network (" MGine Digital LLC") of registered third party affiliates ("Affiliates") and publishers ("Publishers"), and related technology and software (" MGine Digital LLC Ad Server"), to market customized advertisements and links provided by Advertiser and/or MGine Digital LLC ("Ads," as further defined below). The MGine Digital LLC, as well as the services provided by MGine Digital LLC in connection therewith ("Services"), are further described in the Insertion Order ("IO") attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the "Agreement"). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to "Advertiser" shall refer jointly to Advertiser as well as the applicable underlying client.
1.MGine Digital LLC/Services
Advertiser agrees to accept and pay for, and MGine Digital LLC agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, MGine Digital LLC shall undertake marketing campaigns with Advertiser (each an "Ad Campaign") whereby MGine Digital LLC will distribute Advertiser's proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, "Advertiser Ads") and/or, where applicable, MGine Digital LLC Ads (as defined below) through the MGine Digital LLC either:
Upon the execution of the Agreement, Advertiser must register on the MGine Digital LLC website and create a unique, password-protected account ("Account"). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser's Account, whether authorized by Advertiser or not. Advertiser must immediately notify MGine Digital LLC of any unauthorized use of Advertiser's Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that MGine Digital LLC will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
2.Account
Upon the execution of the Agreement, Advertiser must register on the MGine Digital LLC website and create a unique, password-protected account ("Account"). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser's Account, whether authorized by Advertiser or not. Advertiser must immediately notify MGine Digital LLC of any unauthorized use of Advertiser's Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that MGine Digital LLC will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
3.Ads
Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that MGine Digital LLC shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that MGine Digital LLC prepares on Advertiser's behalf (such portions hereinafter referred to as, the "MGine Digital LLC Ads" and together with the Advertiser Ads, the "Ads"). The parties understand and agree that MGine Digital LLC is the sole owner of any and all intellectual property rights associated with the MGine Digital LLC Ads, other than Advertiser's trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the MGine Digital LLC Ads. Under no circumstances shall MGine Digital LLC be authorized to use the Ads other than in connection with Advertiser's Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to MGine Digital LLC for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining MGine Digital LLC's prior express written consent, after the applicable Ad has been approved by MGine Digital LLC. Notwithstanding the foregoing, MGine Digital LLC shall have sole discretion with respect to the creation of the "subject" and "from" lines used in its e-mailing of any Ads. MGine Digital LLC reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by MGine Digital LLC. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where MGine Digital LLC deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads ("Advertiser Products"), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon MGine Digital LLC or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and MGine Digital LLC shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of MGine Digital LLC's receipt of Advertiser's cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.
4.Placement
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by MGine Digital LLC and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where "Run of Affiliate Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that MGine Digital LLC and/or its Affiliates and Publishers may determine, in their respective sole discretion.
5.Ad Codes
Unless otherwise stated in writing by MGine Digital LLC, each Ad used by MGine Digital LLC in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by MGine Digital LLC ("Ad Codes"). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by MGine Digital LLC to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to payMGine Digital LLC a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser's inability to provide such information, in the alternative. All determinations made by MGine Digital LLC in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, MGine Digital LLC's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
6.E-mail Marketing
I. The following terms apply to all Ad Campaigns transmitted via e-mail by MGine Digital LLC's Affiliates on behalf of Advertiser. Any and all e-mail based Ads:
II. shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 ("CAN-SPAM") and any and all Federal Trade Commission implementing regulations;
III. must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and
IV. must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). MGine Digital LLC may make available, at a MGine Digital LLC-designated FTP site ("FTP Site"), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by MGine Digital LLC's Affiliates for Advertiser under applicable IO(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by MGine Digital LLC, or send its suppressed e-mail addresses to MGine Digital LLC via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then MGine Digital LLC may conclude that no such addresses exist. The suppression list and login provided by MGine Digital LLC are deemed to be Confidential Information of MGine Digital LLC, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.
7.Payments
The rates for Actions shall be set forth in the applicable IO(s). MGine Digital LLC will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to MGine Digital LLC within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, MGine Digital LLC may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to MGine Digital LLC for all attorneys' fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by MGine Digital LLC and/or any of its Publishers or Affiliates pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
8.Leads/CPA/Unaccepted Actions
I. In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay MGine Digital LLC for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
II. it rejects within five (5) days of its receipt thereof; and
III. both parties determine is not a Valid Action (as defined below). Where MGine Digital LLC determines that such Action is a Valid Action, Advertiser must pay for same. A "Valid Action" means an individual person that:
IV. is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
V. in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
VI. in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser's criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions ("Action Data") that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of MGine Digital LLC, subject to any and all restrictions set forth herein ("Unaccepted Action Data"). Upon Advertiser's acceptance of a Lead/CPA-based Action (and payment to MGine Digital LLC therefor in accordance with payment terms set forth herein and in the applicable IO), MGine Digital LLC shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
VII. will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
VIII. will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by MGine Digital LLC;
IX. will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
X. will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
XI. will notify MGine Digital LLC as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to MGine Digital LLC in the investigation and prosecution of any such unauthorized use or disclosure.
9.Term/Termination
I. The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days' prior written notice. Upon termination or expiration of the Agreement for any reason:
II. Advertiser will pay MGine Digital LLC all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 hereinabove;
III. any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
IV.any and all Confidential Information or proprietary information of either party that is in the other party's possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
10.Warranty/Limitation of Liability
THE MGine Digital LLC, SERVICES, MGINE DIGITAL LLC ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED By MGINE DIGITAL LLC UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, MGINE DIGITAL LLC MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MGINE DIGITAL LLC DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. The MGINE DIGITAL LLC, SERVICES, MGINE DIGITAL LLC ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MGINE DIGITAL LLC HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND MGINE DIGITAL LLC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. MGINE DIGITAL LLC HAS NO LIABILITY FOR ADVERTISER'S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND MGINE DIGITAL LLC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER'S USE OF THE MGINE DIGITAL LLC, SERVICES, MGINE DIGITAL LLC ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. MGINE DIGITAL LLC MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALLMGINE DIGITAL LLC BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF MGINE DIGITAL LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MGINE DIGITAL LLC WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND MGINE DIGITAL LLC'S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, MGINE DIGITAL LLC'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID To MGINE DIGITAL LLC BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. MGINE DIGITAL LLC SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.
11.Representation and Warranties
I. Advertiser represents and warrants that:
II. it has the power and authority to enter into and perform its obligations under the Agreement;
III. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, "Laws");
IV. it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, MGine Digital LLC Ads, by MGine Digital LLC, its Publishers and Affiliates, as contemplated by the Agreement;
V. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
VI. it will not disable "back" browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
VII. Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
VIII. for CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser's website page where an end-user is directed when such end-user clicks on the Ad, fills in a registration form or takes a similar action in connection with the Ad) contains a prominent link to Advertiser's privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end users regarding Advertiser's use, collection and disclosure of their personal information;
IX. Advertiser shall fulfill all commitments made in the Ads;
X. no Ad is targeted to end-users under the age of eighteen (18);
XI. prior to loading any computer program onto an individual's computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser's privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
XII. the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
XIII. contain any misrepresentations or content that is defamatory;
XIV. contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
XV. promote or support gambling or sweepstakes or contests; or
XVI. contain any "worm," "virus" or other device that could impair or injure any person or entity;
XVII. Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time.
12.Indemnification
I. Advertiser shall irrevocably defend, indemnify and hold MGine Digital LLC, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
II. Advertiser's breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
III.the Ads, Advertiser Products and/or Advertiser websites; and/or
IV. any claim that MGine Digital LLC is obligated to pay any taxes in connection with Advertiser's participation hereunder.
13.Confidentiality
I. For purposes of the Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
II. a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
III. the material terms of the Agreement and/or any associated IO(s);
IV. with respect to MGine Digital LLC, the Unaccepted Action Data and suppression lists; and
V. any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
VI. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
VII. who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
VIII. is generally available to or known to the public through no wrongful act of the receiving party;
IX. was independently developed by the Receiving Party without the use of Confidential Information; or
X. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
14.Non-Circumvention
I. Advertiser recognizes that MGine Digital LLC has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent MGine Digital LLC's relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by MGine Digital LLC hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with MGine Digital LLC, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that MGine Digital LLC shall be entitled to:
II. injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;.
III. liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
IV. any and all other remedies available to MGine Digital LLC at law or in equity.
15.Force Majeure
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
16.Miscellaneous
I. Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
II. an acquirer of all or substantially all of such party's equity, business or assets;
III. a successor in interest whether by merger, reorganization or otherwise; or
IV. any entity controlling or under common control with such party.
V. Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of New York. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State court of competent jurisdiction, located in New York County, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
VI. Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
VII. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
VIII. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that MGine Digital LLC acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
Data Protection Addendum
Effective Date of Data Protection May 25, 2018
We refer to the affiliate Terms located at https://mgine.offerslook.com/index.php?r=advertiser/site/signup (“Agreement”) which You have accepted to avail Mgine Digital LLC’s advertising services as a affiliate (referred as “You” or “Advertiser”).
Until 25 May 2018, the Data Protection Act 1998 (the “DPA”) is the key piece of legislation governing data protection. The General Data Protection Regulation (the “GDPR”), is a new piece of legislation which will largely supersede the DPA on 25 May 2018. The GDPR will then apply to the processing that is carried out under the Agreement for any Personal Data related to Data Subjects in the European Union (“EU”).
The GDPR requires data processing contracts – such as the Agreement – to contain additional provisions regulating the processing Personal Data of Data Subjects based on EU. Therefore, the parties agree to add the data protection Segment, set out below to the Agreement with effect from 25 May 2018 (the “Variation Date”). These terms of the data protection Segment shall be deemed to be incorporated within the Agreement.
This data protection Segment makes reference to the “Model Contract Clauses”, produced by the European Commission, which are incorporated into this data protection Segment as if they had been set out in full. The full legal name for the Model Contract Clauses is: “The EU-controller to Non-EU/EEA processor model contractual clauses annexed to European Commission Decision C(2010)”.
Except as set out in this data protection Segment, the Agreement and any other agreements already in place between us shall continue in full force and effect; In the event of any conflict or inconsistency between this data protection Segment and the terms and conditions of the Agreement, this data protection Segment shall prevail; and To the extent that this data protection Segment does not address project-specific data mechanics or specific details relevant to data processing already set out in the Agreement (such as a particular type or frequency of data transfer), those project specific mechanics will remain in place, save that they shall be interpreted to give full effect to the provisions of this data protection Segment and the GDPR.
This data protection Segment (including the Model Contract Clauses, particularly at clauses 9 and 11.3) and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation (a “Claim”) shall be governed by and interpreted in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any Claim.
Please accept or sign and return the data protection Segment to acknowledge your agreement of these terms.
If you do not accept these terms, we will discontinue any EU user related transactions with your applications/mobile websites. Additionally, please do not share any EU user data with us. However, if you continue to use our services, you will be deemed to have accepted these terms.
Definitions:
“Controller”, “Data Subject”, “Personal Data”, “Processor” “Processes/Processing” shall each have the meanings given in the applicable Data Protection Legislation.
“Data Protection Legislation” means the European Union’s General Data Protection Regulation (2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy as amended, re-enacted, replaced or superseded from time to time, including, where applicable, the mandatory guidance and codes of practice issued by the United Kingdom’s Information Commissioner.
“Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to any Personal Data transmitted, stored or otherwise processed. “affiliate” is the organization to whom this letter is addressed.
Each party acknowledges that:
Mgine Digital LLC shall Process the Personal Data for the purposes of (a) optimizing mobile online advertising campaigns across its ad network whether owned, operated or controlled by Mgine Digital LLC including but not limited to the programmatic channel; (b) interest based targeting of Mgine Digital LLC ad campaigns or other survey based services; (c) data-targeted ad inventory forecasting; (d) providing its customers, partners and relevant third parties with data as part of campaign reporting and performance (e) enrichment, creation of audience profile/segments including sharing with data partners for enrichment purposes. affiliate further acknowledges that Mgine Digital LLC may need to transfer Personal Data outside of EU in the context of Processing.
the processing shall continue, for the duration of this agreement;
the processing concerns the following Personal Data:
user device identifier;
IP address;
User-agent or such device information;
Fine location;
Persistent online identifiers (such as IDFA, ADID, GPID etc.,)
It is acknowledged that both Parties are under certain recordkeeping obligations under the Data Protection Legislation, and agree to provide the other Party with all reasonable assistance and information required by the other Party to satisfy such record keeping obligations.
In the event of any Personal Data breach (actual or suspected) involving the affiliate or a sub-Processor, the affiliate shall (at no cost to Mgine Digital LLC):
notify Mgine Digital LLC of the Personal Data breach without undue delay (but in no event no later than 24 hours after becoming aware of or first suspecting the Personal Data Breach);
provide Mgine Digital LLC without undue delay (and wherever possible, no later than 48 hours after becoming aware of or first suspecting the Personal Data Breach) with such details as Mgine digital LLC may require in relation to:
the nature and impact of the Personal Data Breach, including the categories and approximate numbers of Data Subjects and Personal Data, records concerned;
any investigations into such Personal Data Breach;
the likely consequences of the Personal Data Breach; and
any measures are taken, or that the affiliate will take to address the Personal Data Breach, including to mitigate its possible adverse effects and prevent the re-occurrence of the Personal Data Breach or a similar breach, provided that, (without prejudice to the above obligations) if the affiliate cannot provide all these details within such timeframes, it shall, before the end of this timeframe, provide Mgine Digital LLC with reasons for the delay and when it expects to be able to provide the relevant details (which may be phased), and give Mgine Digital LLC regular updates on these matters.
Joint Controller Requirements: The Parties shall, in their respective capacities as joint Controllers:
at no cost to the other Party, record and then refer to the other Party promptly (and in any event within 5 Business Days of receipt) any Data Subject request or complaint which is made under Data Protection Legislation in relation to the affiliate’s processing;
at its cost and expense, provide such information and cooperation and other assistance as a Party reasonably requests in relation to a Data Subject request or complaint made under Data Protection Legislation within the timescales reasonably required by Mgine Digital LLC;
implement and maintain a program to ensure that all Processing at its end and transmission of Personal Data is safeguarded and secure;
implement a legally adequate privacy policy in accordance with the Data Protection Legislation, and enact all other compliance requirements as applicable to the affiliate’s business;
maintain, monitor and review records of user activities, exceptions, faults and privacy in relation to the relevant Personal Data; and
ensure information security events are produced, maintained, monitored and reviewed on an ongoing basis.
ensure that the affiliate’s relevant technical solutions are configured such that the default settings protect Data Subject privacy;
affiliate Requirements: affiliate shall:
seek consent from the Data Subject to the standard required by the Data Protection Legislation to collect, Process, transmit or use their Personal Data as contemplated by the Agreement including as enumerated in section MUTUAL OBLIGATIONS WHEN PROCESSING DATA;
in the event that the consent to handle Personal Data is withdrawn by the Data Subject, the affiliate shall notify Mgine Digital LLC without undue delay (but in any event no later than 24 hours after becoming aware of the consent being withdrawn);
allow for audits conducted by Mgine Digital LLC or another auditor mandated by Mgine digital LLC for the purpose of demonstrating compliance by the affiliate with its obligations under the Data Protection Legislation and under this Agreement;
indemnify, defend and hold harmless Mgine Digital LLC against and from all loss, liability, damages, costs (including legal costs), fees, claims and expenses arising out any third party claims which Mgine Digital LLC may incur or suffer by reason of any breach of this data protection Segment by the affiliate;
Mgine Digital LLC DATA ANALYTICS
The affiliate acknowledges that Mgine Digital LLC:
will add the Personal Data it processes in the context of its advertising services, and in respect of such use Mgine Digital LLC is a joint Controller; and
is free to use meta-data, statistics and such other information derived from the Personal Data it receives from the affiliate which cannot be identified as originating or deriving directly from such Personal Data and cannot be reverse-engineered by a third party such that it can be so identified, for any purpose whatsoever.
MODEL CONTRACT CLAUSES
When You are a Controller, the Model Contract Clauses require us to set out more detail about what data You are transferring to us and why, as well as how we keep that data secure. We have set this out in the sections below. Description of our data processing for You
In the event when either party Processes Personal Data on behalf of the other the parties will execute appropriate data processing agreement. Description of security measures
Restriction of access to buildings, data centers and server rooms as necessary.
Adequate locks on all doors.
Monitoring of unauthorized access.
Written procedures for employees, contractors, and visitors covering confidentiality and security of information.
Restricting access to systems depending on the sensitivity/criticality of such systems.
Use of password protection where such functionality is available.
Maintaining records of the access granted to which individuals.
Ensuring prompt deployment of updates, bug-fixes and security patches for all systems.
IN WITNESS WHEREOF, MGine Digital LLC and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.