The following terms and conditions (“Advertiser Terms and Conditions”) govern the placement and delivery of advertising as set forth in the Insertion Order submitted by the Advertiser. The Advertiser Terms and Conditions and any associated Insertion Order or Insertion Orders are collectively referred to herein as the “Advertiser Agreement”.
This Agreement is entered by and between JustPremium BV, a company incorporated in the Netherlands with registered number 54711746 and whose registered office is Stationsplein NO 410, Schiphol Oost, 1117 CL the Netherlands (“JustPremium”) and the company named as advertiser in the Insertion Order (“Advertiser”) and/or the agency listed in the Insertion Order for such Advertiser (“Agency”), if any. Hereinafter, to the extent there is no Agency listed in the Insertion Order, the term “Agency” shall be cancelled, or shall be read as “Advertiser”, whichever is appropriate.
Additionally, this Agreement will benefit and may be performed by any affiliate of JustPremium, including without limitation JustPremium Ltd, JustPremium Inc, and JustPremium GMBH and any other direct or indirect subsidiary of Coolconcepts BV now existing or hereafter formed (individually and collectively, “JustPremium Affiliates”).
This document, when incorporated into an Insertion Order, represents the parties’ common understanding for doing business.
For the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged, JustPremium and JustPremium Affiliates, on the one hand, and the Advertiser and/or Agency, on the other hand, agree as follows:
“Ad” means any advertisement provided by Agency on behalf of an Advertiser.
“Advertising Materials” means video, rich media creative and/or other advertising materials required for any Ad.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPC Deliverables” means Deliverables sold on a cost per click basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“Deliverable” or “Deliverables” means the inventory delivered by JustPremium (e.g., impressions, clicks, or other desired actions).
“Insertion Order” or “IO” means a mutually agreed insertion order that incorporates these Terms, under which JustPremium will deliver Ads on Sites for the benefit of Agency or Advertiser.
“JustPremium Players” means a video or rich media content player which is proprietary to JustPremium.
“JustPremium Publisher Network” means Network properties specified on an IO that are not owned, operated, or controlled by JustPremium, but on which JustPremium has a contractual right to serve Ads.
“Linked Content” means material to which users can link through an Ad.
“Network Properties” means publisher’s websites, mobile applications, media players, mobile content, and/or other properties available for serving Ads.
“Policies” means advertising criteria or specifications made conspicuously available by JustPremium, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with JustPremium’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Network Properties.
“Terms” means these Standard Terms and Conditions.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, JustPremium, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
- INSERTION ORDERS AND INVENTORY AVAILABILITY
IO Details. From time to time, JustPremium and Agency may execute IOs. As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent by Juistpremium on behalf of Advertiser pursuant to the IO, (iv) the start and end dates of the campaign. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
Availability; Acceptance. JustPremium does not guarantee availability but will make commercially reasonable efforts to notify Agency, as soon as possible, if the specified Network Properties are not available.
Revisions. Revisions to accepted IOs are only valid if made in writing and acknowledged by the other party in writing.
- AD PLACEMENT AND POSITIONING
Compliance with IO. JustPremium will comply with the IO, including all Ad placement restrictions, and, will create a reasonably balanced delivery schedule. JustPremium will provide, within the scope of the IO, an Ad to the Network Properties specified on the IO when such Network Properties are visited by an internet user. Any exceptions will be approved by Agency in writing.
Changes to Site. JustPremium will use commercially reasonable efforts to provide Agency notification of any material changes to the Network Properties that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO.
Technical Specifications. JustPremium will submit or otherwise make electronically accessible to Agency final technical specifications.
Editorial Adjacencies. JustPremium acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO. JustPremium will use commercially reasonable efforts to comply with this. Should Ads appear in violation of the category stated on the IO, Advertiser’s sole and exclusive remedy is to request in writing that JustPremium remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. After Agency notifies JustPremium that specific Ads are in violation of the Guidelines, JustPremium will make commercially reasonable efforts to correct such violation within 24 hours.
- PAYMENT AND PAYMENT LIABILITY
Invoices. The initial invoice will be sent by JustPremium upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO
Payment Date. Agency will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO.
Payment Liability. In the case of any Agency listed on the Insertion Order, JustPremium will hold Agency and Advertiser jointly and severally liable for payments.
Confirmation of Campaign Initiation. JustPremium will, within two (2) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
Reporting. If JustPremium is serving the campaign, JustPremium will make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO.
Tracking. Reporting on performance and delivery, including without limitation views or engagements of Ads is handled by JustPremium based on its numbers and measurement processes as determined in its sole discretion. Such measurement processes will also be used for invoicing advertising fees under an Insertion Order (“Controlling Measurement”).
The Advertiser or Agency may, at its or their cost, use a third party to track an Ad upon JustPremium’s prior written consent, which shall be given or withheld at JustPremium’s sole discretion. JustPremium may condition any consent upon Advertiser or Agency agreeing to use an established and reputable ad tracking mechanisms and services that it may approve at its sole determination. If the Controlling Measurement is higher than the measurement by such other third party ad tracking mechanism by more than 10% over the invoice period, the parties will facilitate a reconciliation effort between JustPremium and third party measurement mechanism.
If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, the Advertiser or Agency sole right and remedy shall be either to (a) consider the discrepancy an under-delivery to be remedied by a makegood flight, where delivery of such makegood will be measured by such third party ad tracking mechanism, or (b) pay the invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- CANCELLATION AND TERMINATION
Without Cause. Unless designated on the IO as non-cancellable, Advertiser and/or Agency may cancel the entire IO, or any portion thereof, with 14 days’ prior written notice to JustPremium. Advertiser will remain liable to JustPremium for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by JustPremium or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, JustPremium will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
For Cause. Either JustPremium or Advertiser and/or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then JustPremium may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by JustPremium to Agency, then JustPremium may terminate the IO and/or placements associated with such breach upon written notice.
Notification of Under-delivery. JustPremium will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if JustPremium believes that an under-delivery is likely.
Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and JustPremium will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. In no event will JustPremium provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- DELIVERING OF ADVERTISING MATERIALS
The Advertiser will, at its sole cost and expense, create and deliver all Advertising Materials according to technical specifications provided by JustPremium or JustPremium Affiliates.
With limited exceptions, such Advertising Materials will be served or displayed by JustPremium Players. The Advertiser may delegate such obligations to any Agency listed on the Insertion Order, but shall remain responsible for the Advertising Materials delivered.
If the delivered Advertising Materials do not conform to JustPremium’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, then JustPremium, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming Advertising Materials are corrected, or (ii) the late-arriving Advertising Materials are received; in any case, JustPremium may begin to charge the Advertiser on the Insertion Order start date on a pro rata basis based on the full Insertion Order for each full day the Advertising Materials are not received.
- ADVERTISER AND AGENCY REPRESENTATIONS AND WARANTIES
The Advertiser, and any Agency listed on the Insertion Order on its behalf, is responsible for any liability arising out of or relating to any Ad and Advertising Materials provided by the Advertiser or Agency hereunder and any Linked Content.
The Advertiser represents and warrants that no part of the Ad, Advertising Materials or Linked Content will: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libellous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
The Advertiser, and any Agency listed on the Insertion Order on its behalf, further represents and warrants that the product or service that is being promoted through any campaign hereunder is not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
Further, Agency, if any is listed in the Insertion Order, represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Advertiser Terms and Conditions and the Insertion Order, and that all of Agency’s actions related to these Advertiser Terms and Conditions and each Insertion Order will be within the scope of such agency, and
Agency will defend, indemnify, and hold harmless JustPremium, JustPremium Affiliates and its and their affiliates and representatives from claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from Agency’s alleged breach of the foregoing sentence.
JustPremium reserves the right to reject or remove the placement of any Ad (or any part of any associated Advertising Materials) or URL link embodied within an Ad at any time in the event JustPremium determines in its sole reasonable discretion that such Ad or Linked Content does not meet its standards or comply with the Insertion Order or with any applicable law, rules, regulation, industry guidelines or policies, or other judicial or administrative order, or that such Ad (or associated Advertising Materials) or Linked Content is unlawful or inappropriate or may tend to bring, disparagement, ridicule, or scorn upon JustPremium or any of the JustPremium Affiliates or any of the publishers or their sites in the JustPremium publisher network. JustPremium also reserves the right to demand third party verification for any claims made in any Ad and to terminate this Advertiser Agreement in the event that such verification is not promptly provided or is unsatisfactory, in JustPremium’s sole discretion.
- DISCLAIMER OF WARRANTIES
JUSTPREMIUM AND JUSTPREMIUM AFFILIATES PROVIDE THEIR SITE AND THE SITES OF ITS AND JUSTPREMIUM AFFILIATES’ PUBLISHERS AND OTHER PARTNERS IN THE JUSTPREMIUM PUBLISHER NETWORK, AND ALL OF ITS AND THEIR SERVICES, AS PERFORMED OR CONTEMPLATED HEREUNDER OR UNDER ANY INSERTION ORDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR JUSTPREMIUM PLAYER, JUSTPREMIUM’S AND ANY JUSTPREMIUM AFFILIATES’ SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS REASONABLY PRACTICABLE. EACH OF JUSTPREMIUM AND EACH JUSTPREMIUM AFFILIATE DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE AND WE HEREBY EXPRESSLY EXCLUDE ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW.
- LIMITATIONS OF LIABILITY
IN NO EVENT SHALL JUSTPREMIUM OR ANY JUSTPREMIUM AFFILIATE BE LIABLE BE LIABLE UNDER THIS AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ADVERTISER AGREEMENT INCLUDING ANY INSERTION ORDER (EVEN IF JUSTPREMIUM OR SUCH JUSTPREMIUM AFFILIATE WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING). UNDER NO CIRCUMSTANCES SHALL JUSTPREMIUM AND JUSTPREMIUM AFFILIATES TOGETHER BE LIABLE TO THE ADVERTISER, AGENCY OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY THEM UNDER THE RELEVANT INSERTION ORDER IN RELATION TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, JUSTPREMIUM AND/OR JUSTPREMIUM AFFILIATES SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
Each of the Advertiser and any Agency agrees to indemnify, defend, and hold harmless JustPremium and JustPremium Affiliates and its and their affiliates, directors, officers, agents and representative and its and their publishers and other partners in the JustPremium publisher network for and from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (a) the acts or omissions or breach of this Advertiser Agreement by the Advertiser or such Agency as applicable (including Advertiser’s Representations and Warranties set forth above), (b) the content or subject matter of any Ad or Advertising Materials, or (c) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including without limitation relating to any end user or other data that it may collect or have collected in relation to the Ads placed according to the Insertion Order.
JustPremium agrees to indemnify, defend, and hold harmless the Advertiser for any claims, liabilities, costs and expenses (including reasonable legal fees) made against the Advertiser by a third party or parties as a result of acts of gross negligence or wilful misconduct by JustPremium.
- CONFIDENTIAL INFORMATION
The parties may not disclose Confidential Information. “Confidential Information” means any and all non-public information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information but in no event less than reasonable care. The receiving party will promptly return, provide a copy of, or destroy the other party’s Confidential Information upon request of the other party. Confidential Information does not include any information that (a) was already in the public domain; (b) becomes part of the public domain through no fault of the receiving party; (c) was already in possession of the receiving party; or (d) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information under judicial or governmental order, the receiving party will promptly notify the disclosing party in order to allow such party to seek confidential treatment.
This Advertiser Agreement, including these Advertiser Terms and Conditions and associated Insertion Order(s), sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a written addendum signed by both parties may change this.
This Advertiser Agreement will be governed and construed in accordance with the laws of the Netherlands. The Advertiser and JustPremium agree to submit to the exclusive jurisdiction of the courts of the Netherlands. If any provision of this Advertiser Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Advertiser may not assign this Advertiser Agreement without the prior written consent of JustPremium. JustPremium may freely assign this Advertiser Agreement either (x) in whole or in severable part, to any JustPremium Affiliate at any time (including without limitation such that the assigning entity has no further rights and obligations and the assignee entity assumes all rights and obligations or such that both the assignee and assignor have full rights and obligations severally under this Advertiser Agreement) or (y) in connection with any corporate reorganization, stock purchase, merger, or sale of all or substantially all of the business and assets associated with the subject matter of the Advertiser Agreement. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. JustPremium Affiliates shall be third party beneficiaries under this Advertiser Agreement including each Insertion Order and other than the JustPremium Affiliates there are no third party beneficiaries.
The parties to this Advertiser Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Advertiser Agreement. This Advertiser Agreement may be executed by electronic signature (including click wrap) or by facsimile, and may be executed in counterparts.