LAST MODIFIED December 11, 2017
These terms (“Publisher Terms”) along with the Master Services Agreement (the “MSA”) collectively form the agreement (together the “Agreement”) entered into by and between JustPremium BV a private company with limited liability registered in the Trade Register of the Chamber of Commerce in the Netherlands with registration number: 54711746, (“JustPremium”) and the entity set forth on the Master Service Agreement (“Publisher”) and shall govern the Publisher’s access to and use of the Marketplace owned and operated by JustPremium for High Impact Display and Video Ads including JustPremium’s established relationships with Demand Side Platforms, (Agency) Trading Desks, Agencies, Direct Advertisers, Ad Networks and Publishers who participate in the JustPremium Marketplace (the “Services”). JustPremium and Publisher may be referred to individually as a “Party” and collectively as the “Parties.”
Please read these Publisher Terms carefully.
- Access to and Using the Services
Publisher’s use of the Services is subject to JustPremium’s approval of a JustPremium account (an “Account”). JustPremium shall have the right to refuse or limit Publisher’s access to the Services.
By enrolling in JustPremium’s Services, Publisher accepts the Agreement and permits JustPremium to serve advertisements and other content (“Ads”) to Publisher’s owned and operated websites, mobile applications, media players, mobile content, and/or other properties approved by JustPremium (“Publisher’s Advertising Inventory or Properties” together and each individually a “Property”) JustPremium may refuse to provide the Services to any Property for any reason. Any Property that is a software application and accesses our Services may require preapproval by JustPremium in writing.
Publisher may use the Services only as permitted by the Agreement and any applicable laws. Without limiting the foregoing, such use may not:
- Interfere with the Services or try to access them using a method other than the interface and the instructions that JustPremium provides,
- Impermissibly place a piece of code where an Ad is due to be displayed (“Ad Tags”) outside of or in addition to the positions and websites set forth in the applicable confirmation and instruction email sent by JustPremium to Publisher for an advertising campaign to be run on the Services (the “Authorized Positions”); JustPremium shall pay Publisher only for impressions that are delivered on the Authorized Positions,
- Place Ad Tags on sites containing content which is unlawful or reasonably understood to be inappropriate content, which includes but is not limited to pornographic material, gambling, alcohol, weapons, racist content, content inciting violence, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent or tortious content,
- Serve Ad Tags in toolbars and/or downloadable applications or,
- Violate the Agreement or the law.
JustPremium reserves the right to exclude websites that are in violation of the Agreement.
JustPremium will not pay Publisher any Revenue Share in connection with Ads which have been served on Properties which violate the Agreement and/or applicable law.
In order to continuously improve the features and functionality of the Service, JustPremium may, from time to time, modify and update the Service or a part thereof and may cease to provide the JustPremium Services in whole or in part. You acknowledge further that the Service may also be temporarily unavailable for maintenance or other reasons subject to industry standard downtimes.
- Changes to the Publisher Terms
JustPremium reserves the right, at any time, to update and change any or all of these Publisher Terms, in its sole discretion. If JustPremium does so, it will post the modified Publisher Terms on this page. Continued use of the Services by Publisher thirty (30) days after any such changes have been made shall constitute consent to such changes. If a change has a material adverse impact on Publisher, Publisher must notify JustPremium within 30 days after being informed of that change that it does not agree with the change and Publisher may cancel its Account. Publisher is responsible for regularly reviewing the most current version of these Publisher Terms, which are currently available at: http://justpremium.com/publisher-terms-eu/. When JustPremium changes these Publisher Terms, it will modify the “Last Modified” date above.
- Revenue (share)
Subject to the requirements for payment set forth in this section, Publisher will receive a payment of the Net Revenue Share, on the net payment terms set forth in the MSA, related to the number of times an Ad is displayed on Publisher Properties (“Ad Impressions”).
Reporting related to Ad Impressions shall be made available to Publisher online. Publisher acknowledges and accepts that JustPremium’s online reporting is an estimate and that the final measurements upon which Net Revenue payments are to be made may need to be adjusted at the end of each calendar month to account for, specific contractual provisions, statistical errors, and adjustments required by the purchasers of the Publisher Advertising Inventory.
JustPremium shall calculate the Net Revenue for which payment is due hereunder based solely on tracking of Ad Impressions (and related records and measurements) as compiled and maintained by JustPremium, related third party ad servers or the demand-side partners and participants utilizing the Services to place Ads on Publisher Properties. In the event Publisher disputes the applicable tracking measurements and the amount in dispute is greater than 10% of the total Net Revenue for the applicable billing period, then the Parties will facilitate a reconciliation effort between two sets of server data and each party agrees to work in good faith to resolve the dispute within fifteen (15) days from the date the dispute arose. JustPremium may withhold payment of the disputed amount(s) of the invoice, and shall remit to Publisher the undisputed amount(s) in a timely manner. If the discrepancy cannot be resolved even though JustPremium has made a good faith effort to facilitate the reconciliation effort, JustPremium’s liability shall be no greater than 110% of the amount recorded by JustPremium’s measurements.
“Net Revenue Share” is the payment amount to Publisher based on the amount of revenue actually received by JustPremium for Ad Impressions served by JustPremium on Publisher’s Properties during the relevant calendar month as measured by JustPremium, net of value added taxes, other duties, associated third-party or governmental fees, revenue generated through Artificial Traffic, impressions, clicks or other invalid transactions or data fees.
JustPremium shall not be obliged to pay any Revenue Share to Publisher for any Ad Impressions or any other action which, pursuant to JustPremium reasonable assessment, may be: (i) based on Artificial Traffic, (ii) originating from Publisher’s IP addresses or computers or networks under Publisher’s control; or (iii) Ad Impressions for which JustPremium does not collect revenue from advertiser or party who initiated purchase for Publisher’s Advertising Inventory on the JustPremium Marketplace. You acknowledge that any participation or attempted participation or violation of any of the foregoing is a material breach of the Agreement.
“Artificial Traffic” shall mean invalid, automated, deceptive or fraudulent Ad Impressions, which may, without limitation, be generated by or originating from any person or entity which may originate without limitation from automatic openings, spiders, robots, automated programs, browser toolbar, adware or spyware, requests in e-mail or chat rooms, or script generators.
Unless otherwise agreed, in case the Parties have agreed on any prepayments or advances of the Revenue Share, such prepayment shall be set off against any Revenue Share accrued to Publisher under the Agreement until the prepayment has been fully recouped. In case of expiry or termination of the Agreement prior to the full recoupment of the prepayment, Publisher shall repay to JustPremium the un-recouped amount of the prepayment immediately upon such expiry or termination.
JustPremium shall pay to Publisher the applicable Revenue Share according to the terms set forth in the Master Service Agreement, if the amount of outstanding receivables accumulated in or before the relevant month (“Balance”), is EUR 50 or more. In the event that the Agreement is terminated, JustPremium shall pay Publisher any outstanding Revenue Share balance within 60 days from the termination of the Agreement, provided that JustPremium has collected the Net Revenue attributable to the applicable Publisher Revenue Share payments. If such fees have not been collected by JustPremium within 60 days of the termination of the Agreement, it will make the outstanding Revenue Share payments for Publisher’s Advertising Inventory on the JustPremium platform payable to Publisher, within three business days of its receipt thereof. All amounts shall be payable in Euros unless agreed otherwise.
Before sending the Revenue Share payment, within 45 days from the end of the relevant billing period, JustPremium will provide Publisher with a statement setting forth the estimated Revenue Share to be paid. Publisher acknowledges and agrees that such estimate is not binding and is subject to change, and that the actual Revenue Share payable to Publisher shall be finally determined only after JustPremium has collected the revenue attributable to the Ad Impressions delivered on Publisher’s Advertising Inventory through the JustPremium platform.
The agreed Revenue Share is exclusive of any taxes or other official duties, which may be deducted from the Revenue Share. Publisher agrees to pay all applicable taxes or charges imposed by any government entity in connection with its use of the JustPremium Service or receipt of the Revenue Share excluding JustPremium’s income taxes. In case JustPremium has an obligation to pay withholding tax or other official charges based on the Revenue Share, JustPremium shall deduct corresponding amounts from actual payments made to Publisher.
Each Party shall be liable for its own applicable official charges as well as charges imposed by the bank or other credit institution engaged by the Party to send and receive payments under this Agreement. For the avoidance of any doubt, JustPremium applies so-called shared bank charges to any payments under the Agreement, i.e. JustPremium is responsible only for the fees charged by JustPremium’s bank.
To ensure proper payment, Publisher is responsible for providing and maintaining accurate contact and payment information in its Account.
- Intellectual Property; Brand Features
Other than as set out expressly in the Agreement, neither Party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s licensors.
If JustPremium provides Publisher with tools in connection with the Services, it grants Publisher a non-exclusive, non-sublicensable license for use of such tools. This license is for the sole purpose of enabling Publisher to use the Services as provided by JustPremium, in the manner permitted by the Agreement.
JustPremium grants Publisher a non-exclusive, non-sub-licensable license to use JustPremium’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (“Brand Features”) solely in connection with Publisher’s use of the Services and in accordance with the Agreement. JustPremium may revoke this license at any time. Any goodwill arising from Publisher’s use of JustPremium’s Brand Features will belong to, or as applicable, be assigned to JustPremium. Publisher may not copy, modify, distribute, translate, sell, or lease any part of the Services or included software, nor may it reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission. Publisher will not remove, obscure, or alter JustPremium’s copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any JustPremium services, software, or documentation. Subject to prior written approval of Publisher, JustPremium may include Publisher’s name and Brand Features on its websites and in its presentations, documentation, marketing materials, customer lists and financial reports.
- Privacy, Compliance and Data
- Publisher and JustPremium agree to comply with all applicable laws, including but not limited to user privacy and data security laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority including those related to privacy, consumer choice and opt-outs, cookies, personally identifiable information and data transfer and use.
Each Party acknowledges that during the performance of its obligations under this Agreement, it may disclose Confidential Information (as defined below) to the other Party. “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. Confidential Information may include, without limitation, business plans and proposals, projections, financial, sales, and marketing information, databases, drawings, designs, schematics, know-how, models, mock-ups, research, software programs, processes, customer lists, customer names, and any other personal or proprietary data or technology, procedure, or service under development by a Party or its clients, as well as all drafts, copies, summaries, and extracts of any Confidential Information, whether or not any of the foregoing information is so marked. Confidential Information also includes information disclosed to a Party by third parties. The receiving party agrees that it will not disclose any Confidential Information to anyone except an employee, agent, or advisor who has a need to know same, and who is bound by confidentiality obligations at least as protective as are those in this section, and that it will not use Confidential Information for any purpose not permitted under this Agreement. 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 prior to the time of disclosure to the receiving party; (b) becomes part of the public domain through no fault of the receiving party, without confidentiality restrictions, at the time of disclosure by the disclosing 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, if legally permissible in order to allow such party to seek confidential treatment.
- Term, Termination and Liquidated Damages
- Term: The Term of the Agreement shall be as set forth in the Master Services Agreement (the “Term”).
- With the exception of pre-paid Agreements which shall be non-cancellable until all amounts pre-paid by JustPremium to Publisher have been fulfilled as delivered Ad Impressions.
- Except as set forth above, either Party may terminate this Agreement with or without cause upon 24 hours notice to the other Party. Publisher shall effect such termination by removing the relevant Ad Tags from its Properties.
- If Publisher breaches the Agreement or JustPremium suspends or terminates Publisher’s Account, Publisher will not be allowed to create a new Account.
- In light of the difficulties in estimating the damages for an early termination of this Agreement or an applicable MSA for pre-payment Agreements, JustPremium and Publisher hereby agree that amounts pre-paid by JustPremium to Publisher that remain outstanding as of the early termination date (i.e. not fulfilled as Ad Impressions and therefore outstanding amounts Publisher owes to JustPremium), if any, shall be received by JustPremium as liquidated damages and not penalties and are in addition to all other rights of JustPremium. The parties further acknowledge that (i) the amount of loss or damages likely to be incurred is incapable or is difficult to precisely estimate, (ii) the amounts specified in this subsection bear a reasonable relationship to, and are not plainly or grossly disproportionate to, the probable loss likely to be incurred by JustPremium in connection with such an early termination by Publisher.
- Publisher’s Indemnities. Publisher shall indemnify, defend and hold harmless JustPremium, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys’ fees and expenses), incurred due to third party claims, arising or resulting from or caused by (a) any grossly negligent act or omission or willful misconduct of Publisher; or (b) any material breach of any representation, warranty, or covenant by Publisher. Publisher shall promptly notify JustPremium of all claims and proceedings related thereto of which Publisher becomes aware.
- JustPremium’s Indemnities. JustPremium shall indemnify, defend and hold harmless Publisher, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys’ fees and expenses), incurred due to third party claims, arising or resulting from or caused by (a) any grossly negligent act or omission or willful misconduct of JustPremium; or (b) any material breach of any representation, warranty, or covenant or by JustPremium. JustPremium shall promptly notify Publisher of all claims and proceedings related thereto of which JustPremium becomes aware.
- Representations; Warranties; Disclaimers
- Each party represents and warrants to the other that: (i) it has full power and authority to enter into the Agreement; (ii) entering into or performing under the Agreement will not violate any agreement it has with a third party or any third-party rights; (iii) all of the information provided by it to the other party is correct and current; (iv) that the Services in the case of JustPremium and the Properties in the case of Publisher, will handle data and obtain consent for all advertising served thereon in compliance with all applicable rules, laws and regulations; (v) and the Services in the case of JustPremium and the Properties and the Publisher content thereon in the case of Publisher will not infringe or violate the patents, copyrights, trademarks, intellectual property rights, rights of publicity, rights of privacy, moral rights, music performance, or any other right of any third party.
- Publisher represents and warrants that: (i) the Properties will not contain any content that is misrepresentative, defamatory, deemed offensive or that violates any applicable law or regulation; (ii) Publisher owns or has all applicable rights to the content on the Properties and (iii) that it shall not do, directly or indirectly, any of the following:(1) intentionally place Ads on blank web pages or on web pages with no content; stack Ads or place Ads on non-approved websites or applications (2) modify, disable or re-direct links provided by JustPremium or through the Service or in any way impede or impair JustPremium’s ability to track the Ads and Impressions (3) unless specifically approved by JustPremium in writing, send Ad Tags to any Third-Party trafficking team, Third-Party yield optimization company, or any other Third Party (4) unless specifically approved by JustPremium in writing, resell any Ads to other websites, applications, media companies, publishers, or any other Third Parties (5) use the following methods of generating visitor interest in Properties or Ads (the violation of which would constitute a material breach to this Agreement): automatic refreshing of browsers to call Ads, autospawning of browsers; robots, spiders, auto reloading, meta refreshers, automatic redirecting of visitors; blind text links; misleading links, incentivized clicks, forced clicks or any other method that may lead to artificially high numbers of Ad Impressions; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the advertiser to which the applicable Ad relates, or any derivative of any such trademark, service mark, or brand name (“Advertiser Marks”), or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on websites, applications or within emails.
- JustPremium represents and warrants that: (i) JustPremium owns or has all applicable rights to the Service; (ii) JustPremium has the rights to use the Ads inserted on the Properties.
JUSTPREMIUM PROVIDES THE SERVICES AND OTHER INFORMATION AND CONTENT PROVIDED OR USED IN CONNECTION WITH THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OTHER THAN AS SET-FORTH HEREIN, JUSTPREMIUM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. JUSTPREMIUM DOES NOT MAKE ANY WARRANTY THAT THE SERVICES WILL MEET PUBLISHER REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; JUSTPREMIUM DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, PROFITABILITY, LOSS OF PROSPECTIVE ADVERTISING FEES, AVAILABILITY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICES. JUSTPREMIUM SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE NUMBER OR QUALITY OF ADS THAT MAY BE SENT TO THE SITES OR PROPERTIES, OR THE ADVERTISING CAMPAIGN FEES THAT PUBLISHER MAY EARN FROM THE SERVICE.
IN NO EVENT WILL JUSTPREMIUM BE LIABLE FOR LOSS OF ANTICIPATED PROFITS, BUSINESS, REVENUE, GOODWILL OR OTHER LOSSES INCURRED IN CONNECTION WITH USE OF THE SERVICES PROVIDED HEREUNDER OR THE FAILURE OF SUCH, SUCH CLAIMS BEING EXPRESSLY WAIVED OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECTLY OR INDIRECTLY ARISING FROM THE SERVICES.
- Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, and/or CONFIDENTIALITY OBLIGATIONS, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THE AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (ii) EACH PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT IS LIMITED TO THE NET AMOUNT RECEIVED AND RETAINED BY THAT PARTICULAR PARTY IN CONNECTION WITH THIS AGREEMENT DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
Each Party acknowledges that the other Party has entered into the Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the Parties.
Entire Agreement; Amendments. The Agreement is our entire agreement relating to your use of the Services and supersedes any prior or contemporaneous agreements on that subject. This Agreement may be amended (i) in a writing signed by both parties that expressly states that it is amending the Agreement.
Independent Contractors. The parties are independent contractors and the Agreement does not create an agency, partnership, or joint venture.
Governing Law; Venue. This Agreement shall be governed by and construed in accordance with Dutch laws. All disputes arising out of or in connection with these Publisher Terms shall be settled by the courts of Amsterdam, the Netherlands, which will have exclusive jurisdiction in respect of any such disputes.
Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
Communications. In connection with your use of the Services, we may contact you regarding service announcements, administrative messages, and other information. You may opt out of some of those communications in your Account settings. For information about how to contact JustPremium, please visit our contact page.