Terms
This nevaly Advertiser Terms & Conditions (“Advertiser Agreement”), shall govern the relationship between nevaly GmbH, Heinrich-Heine-Straße 15, 10179 Berlin (“nevaly) and the advertiser (“Advertiser”), whereby Advertiser may ob- tain access to the nevaly Advertising Network (“nevaly Advertising Network”) of registered third party affiliates and publishers (“Publishers”), and related technology and software (“nevaly Advertising Network”), to market customized advertisements and links provided by Advertiser and/or nevaly (“Ads” as further defined below). The nevaly Advertising Network, as well as the services provided by nevaly in connection therewith (“Services”), are further described in the Insertion Order (“IO”) which refers to these Advertiser Terms & Conditions (the IO, to- gether 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 Adverti- ser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer joint- ly to Advertiser as well as the applicable underlying client.
1. Nevaly advertising network/services
Advertiser agrees to accept and pay for, and nevaly agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, nevaly shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby nevaly will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mails, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, nevaly Advertising Net- work Ads (as defined below) through the nevaly Advertising Network either: on Publisher websites via the nevaly Advertising Network Ad Server for impressions-based (“ CPM”), click based (“CPC”) and action based (“CPA”) Ad Campaigns as defined below; or by Publishers via e-mail based marketing, search engine marketing, website based marketing and/or other online and mobile marketing means. In connection with such Ad Campaigns, Advertiser shall pay nevaly commissions depending on the number of valid clicks (“CPC”) or valid, compensable conversion events such as leads, down- loads, installs, users, paying users, active users or any other defined action or result generated on behalf of Advertiser as set forth in the subject IO (collectively, “ CPA ” or “Actions”; including CPC ). The applicable Ac- tions, the fees due to nevaly for each Action and other applicable terms and conditions of the Ad Campaigns en- tered into hereunder shall be specified in each IO. nevaly shall not be held liable or responsible for any actions or omissions of its Publishers.
2. Account
Upon the execution of the Agreement, Advertiser will register on the nevaly Advertising Network website and create a unique, password-protected account (“Account”). nevaly will manage this Account on behalf of Adver- tiser. In case Advertiser receives the login data to this Account, Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsible for any and all actions taken under Advertiser’s Account, if they were performed by Advertiser or authorized by him. The same applies to any actions taken under Advertiser’s Account if the login data to this Account was given to any third party by Advertiser. Advertiser must immediately notify nevaly of any unauthori- zed use of Advertiser’s Account. Advertiser is responsible for keeping the Account information provided to neva- ly current, complete and accurate, and Advertiser acknowledges and agrees that nevaly will have no responsibili- ty 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 nevaly or its Publishers 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 nevaly or any Publisher prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “ne- valy Advertising Network Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that nevaly or the respective Publisher is the sole owner of any and all intellectual property rights associ- ated with the nevaly Advertising Network Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the nevaly Advertising Network Ads. Under no cir- cumstances shall nevaly or the respective Publisher be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s). nevaly reserves the right, in its reasonable 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 nevaly. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where nevaly deems, in its reasonable 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 nevaly or any of its Publishers.
4. Placement
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by nevaly and/ or its Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particu- lar 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 Advertizing Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distri- bution that nevaly and/or its Publishers may determine, in their respective sole discretion.
5. Ad codes, Conversion tracking
Unless otherwise stated in writing by nevaly, each Ad or link used by nevaly in connection with a Campaign must include, in unaltered form, the special transaction tracking computer code or tracking link provided by neva- ly (“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 nevaly to be used in connection with any and all Ads in order to track actions such as installs, leads or other conversion events. nevaly’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Pub- lisher, Affiliate or other third party. If Advertiser is working with several marketing partners he has to ensure that for all campaigns run through ne- valy the “last cookie wins principle” applies, i.e. the conversion event will be attributed to the marketing partner which generated the last click of the respective user before the conversion event. In case so-called “server-to-server” tracking is employed in order to track the conversion events (“Actions”) de- fined in the IO, Advertiser has to ensure that all defined Actions are accurately tracked and timely reported to nevaly’s system including the correct unique click ID used by nevaly in the tracking URL . In case technical pro- blems or outages caused by either of the parties’ systems lead to a non-restorable loss of conversion data, one of the following methods should be used to determine the correct number and attribution of conversion events (applied in the order of their listing): “manual” matching of MAC addresses or any other unique identifiers that can be retrieved ex-post by the Publis- her and Advertiser in order to determine attribution and number of conversion events, or approximation based on historical conversion rate data (click-to-action) from nevaly’s system in the following preferential order: if available from the same campaign, or from the most comparable campaign for which historical data is available in nevaly’s system. “Comparable” means that the campaign should be closely comparable with regards to the defined conversion event (“action”), product and platform, chosen countries, advertising methods used and Publishers. Technical and Commercial Limitations; Changes; Availability Unless otherwise provided for in the Agreement, nevaly provides the nevaly Advertising Network through which it renders it services on an “AS IS” and “AS AVAILABLE” basis. nevaly offers the Advertiser use of its nevaly Advertising Network over the Internet subject to technical and commercial limitations as defined below. nevaly may modify the nevaly Advertising Network without prior notice. Therefore, the Advertiser is granted a right of use only for the then current version. The Advertiser may reduce or cease its use of the nevaly Adverti- sing Network in the event that it is modified.
Publisher Terms and Conditions
These Publisher Terms & Conditions (the “Agreement”) are made and entered into by and between nevaly GmbH, Heinrich-Heine-Straße 15, 10179 Berlin (“nevaly”), and you (“Publisher”), the party submitting an application to become an nevaly Publisher. The terms and conditions contained in this Agreement apply to the Publisher’s participation in nevaly’s Publisher program accessible at www.nevaly.com or through other websites or applications nevaly may make available (“Publisher Program”), being operated on nevaly’s own or third party service provider online platform (“nevaly Publisher Platform”). Each Publisher Program offer (an “Offer”) may be for any offering by nevaly or a third party (each such third party an “Advertiser”) and may link to a specific web site for that particular Offer (“Program Web Site”). Furthermore, each Offer may have additional terms and conditions on pages within the Publisher Program that are incorporated as part of this Agreement. By submitting an application or participating in an Offer, Publisher expressly consents to all the terms and conditions of this Agreement.
1. Enrollment In the publisher Program
Publisher must submit a Publisher Program application on nevaly’s website or otherwise. Publisher must accurately complete the application to become a Publisher (and provide us with future updates) and not use any aliases or other means to mask Publisher’s true identity or contact information. By filling in the application Publisher submits a binding offer to enter into a contract with nevaly according to the terms and conditions of this Agreement. After nevaly reviews Publisher’s application, nevaly will notify him of his acceptance or rejection to the Publisher Program, generally within two (2) business days. nevaly may accept or reject Publisher’s application at its sole discretion for any reason. nevaly offers its services to commercial Publishers only. Consumers are not eligible to become a Publisher.
2. Obligations of the parties
a) Subject to nevaly’s acceptance of Publisher and Publisher’s continued compliance with the terms and conditions of this Agreement, nevaly agrees as follows: nevaly will make available to Publisher via the Publisher Program graphic and textual links to the Program Web Site or a range of Program Web Sites (“Aggregation”) and/or other creative materials (collectively, the “Links”) which Publisher may display on web sites and apps owned or controlled by Publisher, in emails sent by Publisher and clearly identified as coming from Publisher and in online advertisements (collectively, “Media”). The Links will serve to identify Publisher as a member of nevaly’s Publisher Program and will establish a link from Publisher’s Media to the Program Web Site(s). In case of Aggregation, the selection of the respective Program Web Sites will be conducted by the Publisher; nevaly employees will only intervene manually in extraordinary cases, without however being obliged to do so; such manual intervention will be performed in Publisher’s and Advertiser’s interest. nevaly will credit to Publisher’s account with nevaly for each Qualified Action (the “Commission”) an amount as defined in the respective Offer’s description. A “Qualified Action” means an action as defined in the Offer’s description performed by an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by nevaly and (v) is not later determined by nevaly to be fraudulent, incomplete, unqualified or a duplicate. nevaly will pay Publisher any Commissions earned in a certain month 30 days after the end of this respective month, provided that Publisher’s account balance is currently greater than 50 EUR and the Publisher activates the payout button in the nevaly Publisher Platform. Accounts with a balance of less than 50 EUR cannot be paid out and will roll over to the next month, and will continue to roll over monthly until the minimum payout volume of 50 EUR is reached. Since nevaly will endeavor to pay out Commissions to the Publisher as early as possible, this cannot be done unconditionally. nevaly therefore reserves the right to charge back to Publisher’s account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. In case Publisher’s later account balance is lower than the due charge back amount Publisher is obliged to transfer the due amount back to nevaly upon request within no more than 7 business days. nevaly reserves the right to claim charge backs for up to 3 months after the respective Qualified Action has been performed by the user. nevaly also reserves the right to reclaim a payment at a later date within the statutory limitation periods if nevaly can show that the payment to the Publisher was not based on a payment claim due to a Qualified Action. In case nevaly is obliged to pay back monies already collected to Advertisers, banks, or payment providers, such monies are deductible in the month they are paid back. The same applies in respect of monies paid back to Advertisers, banks, or payment providers in the event that nevaly agrees to do so on a bona fide basis to settle a dispute, unless such settlement is not reasonable, and the Publisher contradicts in writing within 10 business days upon being informed. Circumstances which oblige nevaly to pay back monies to Advertisers include alleged abuse or other instances of fraud for which nevaly is not responsible, as well as refunds. Circumstances which oblige nevaly to pay back monies to payment providers or banks include credit card or debit card fraud committed by Publishers or their agents, and “Chargebacks”. Chargebacks mean any credit or debit card transactions that are returned for reimbursement of the cardholder’s account for any reason. Payment for Commissions is dependent upon Advertisers providing such funds to nevaly, and therefore, if an Advertiser does not provide sufficient funds, nevaly will pay the Commissions for the relevant Publisher Programs to all Publishers on a pro rata basis, if necessary. If the Advertiser does not provide sufficient funds to nevaly within 2 weeks, the Publisher shall be entitled to claim payment from the Advertiser directly and is obliged to do so before making any claim against nevaly. In this case, if requested to do so, nevaly shall assign its claims against the Advertiser to the Publisher in a sum equivalent to the amount due to the Publisher. The Publisher is not obliged to make a claim against the Advertiser directly if such claim is clearly without a chance of success due to the Advertiser being destitute. The Publisher shall be solely responsible for the payment of, and shall pay when due and indemnify nevaly against, all applicable taxes, including any VAT and other sales, use, excise or transfer taxes and other taxes associated with payments to Publisher under the Agreement (except for taxes assessed on nevaly’s net income). nevaly shall automatically generate a credit note on behalf of Publisher for all Commissions payable under this Agreement and shall remit payment to Publisher based upon that credit note. All tracking of Links and determinations of Qualified actions and Commissions shall be made by nevaly in its reasonable discretion. In the event that Publisher disputes in good faith any portion of a credit note, Publisher must submit that dispute to nevaly in writing and in sufficient detail within 14 days of the date on the credit note. If Publisher does not dispute the credit note as set forth herein, then Publisher agrees that it irrevocably waives any claims based upon that credit note. nevaly tracks for the Publisher all of Publisher’s Qualified Actions based on generally accepted industry methods and shows them live 24/7 in statistical reports in the nevaly system. If Publisher has an outstanding balance due to nevaly under this Agreement or any other agreement between the Publisher and nevaly, whether or not related to the Publisher Program, Publisher agrees that nevaly may offset any such amounts due to nevaly from amounts payable to Publisher under this Agreement. By and rendering the services according to this Agreement, nevaly acts only as an agent between the Advertiser and the Publisher. The Advertiser itself is solely responsible for submitting offers for Advertising Programs to the Publisher. nevaly has no influence in this regard and thus provides no guarantee that offers, and thus Advertising Programs, will be available in satisfactory quantity. nevaly does not allow Advertisers to transmit any Advertisement through the nevaly Publisher Platform to the Publisher that is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene, or to link their Advertisements to such content. Upon being informed thereof, nevaly shall promptly remove any Advertisement containing such content. The Publisher does not have any other claims against nevaly. nevaly shall use commercially reasonable efforts to block Links, from the collection of Links provided to the Publisher for display on the Media, from Blocked Domains. nevaly takes reasonable measures to protect its systems against viruses, spyware and other malicious code (together “Malicious Code”), and shall take reasonable measures to check, or have its Advertisers check, all Links delivered through its systems to the Publisher, for Malicious Code. However, the Publisher acknowledges that Malicious Code can never be completely prevented. It is the Publisher’s responsibility to protect all data stored on its systems against unauthorized access, and data loss. The Publisher shall make its users waive, as far as legally permissible, all potential claims against nevaly based on Malicious Code, and inform its users as to appropriate measures to protect their systems. Unauthorized third parties may send e-mails under the name of nevaly, without nevaly’s knowledge or consent, and such e-mails may contain Malicious Code or links to web content which, in turn, contains Malicious Code. nevaly cannot prevent such behaviour. The Publisher shall, therefore, recommend its users to check all incoming e-mail for Malicious Code prior to opening them. b) Publisher also agrees to: Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, Publisher’s Media. Ensure that all materials posted on Publisher’s Media or otherwise used in connection with the Publisher Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling where applicable), contains profanity or otherwise contains materials that nevaly informs Publisher that it considers objectionable (collectively, “Objectionable Content”). Accept that nevaly neither endorses nor approves of actions performed or content made available by the Publisher. Hold nevaly harmless of any third party claims alleging the Publisher Media contains illegal content. Not make any representations, warranties or other statements concerning nevaly or Advertiser or any of their respective products or services, except as expressly authorized herein. Make sure that Publisher’s Media does not copy or resemble the look and feel of the Program Web Site or create the impression that Publisher’s Media is endorsed by nevaly or Advertisers or a part of the Program Web Site, without prior written permission from nevaly. Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to Publisher’s business, Publisher’s Media or Publisher’s use of the Links. Comply with the terms, conditions, guidelines and policies of any third party services (if any) used by Publisher in connection with the Publisher Program, including but not limited to, email providers, social networking services and ad networks. Always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Publisher Program and the provision of such personally identifiable information to nevaly and Advertisers for use as intended by nevaly and Advertisers, further detailed in Sect. 16 of the Agreement. Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by nevaly or Advertiser, or as required by applicable laws regarding such Offers. Make sure to not place nevaly Publisher Programs on any online auction platform (i.e. eBay, Amazon, etc). c) The following additional program-specific terms shall apply to any promotional programs set forth below: Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by nevaly in writing. Any pop-ups/unders used for the Publisher Program shall be clearly identified as Publisher served in the title bar of the window and any Advertiser-side ad serving software used by Publisher shall only have been installed on an end-user’s computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted end user license agreement and the software be easily removed according to generally accepted methods. Publisher Network Campaigns. All Publishers that maintain their own Publisher networks and intend to broker nevaly’s offers through their network need prior written approval from nevaly. In case approval is granted, Publisher agrees to place the Links in its Publisher network (the “Network”) for access and use by those Publishers in Publisher’s Network (each a “Third Party Publisher “). If Third Party Publisher is itself a network (and thus working with further Third Party Publishers), then Publisher needs to get prior written approval from nevaly for each one of those Third Party Publisher Networks. Publisher agrees that it will expressly forbid any Third Party Publisher to modify the Links in any way. Publisher agrees to maintain its Network according to the highest industry standards. Publisher shall not permit any party to be a Third Party Publisher whose web site or business model involves content containing Objectionable Content. All Third Party Publishers must be in good standing with Publisher. Publisher must require and confirm that all Third Party Publishers affirmatively accept, through verifiable means, terms at least equivalent to those in this Agreement prior to obtaining access to the Links. Publisher shall promptly terminate any agreement with a Third Party Publisher who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Publisher with respect to the Links, Publisher shall promptly disclose to nevaly the identity and contact information for such Third Party Publisher. Publisher shall promptly remove any Third Party Publisher from the Publisher Program and terminate their access to future Offers of nevaly in the Network upon written notice from nevaly. Unless nevaly has been provided with all truthful and complete contact information for a Third Party Publisher and such Third Party Publisher has affirmatively accepted terms at least equivalent to those in this Agreement as recorded by nevaly, Publisher shall remain liable for all acts or omissions of any Third Party Publisher. Incentive Traffic: Publisher acknowledges that nevaly is a non-incentivized traffic network. This means, that Publisher is not allowed to provide incentives (e.g. virtual or real currency) to his or Publisher’s users for performing any actions resulting in a successful conversion event. Conversions achieved through providing incentives will therefore be treated as invalid and/or fraud and may lead to the exclusion of Publisher from nevalys’ network. This applies to all offers unless incentive traffic is explicitly approved in the offer description. nevaly may explicitly approve incentive traffic for certain offers in writing (e.g. via Email) on a case by case basis. Publisher will generally receive lower payouts for incentive traffic, details will be specified within the offer description or in separate Email. Unless otherwise agreed upon, Publisher may not use any self-generated creative assets that have not explicitly been approved by nevaly. Self-generated creative assets that do fully comply with the advertisers’ marketing message and brand identity and are therefore only adjusted variations of the creative material provided in the offer description will generally be approved.
3. Confidentiality
Except as otherwise provided in this Agreement or with the consent of nevaly, Publisher agrees that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning nevaly or any of nevaly’s Advertisers and/or partners provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Publisher for any purpose other than Publisher’s participation in the Publisher Program. Publisher shall especially not use any information obtained from the Publisher Program to develop, enhance or operate a service that competes with the Publisher Program, or assist another party to do the same. After and during the term of the Agreement, neither party will use for any purpose or disclose to any third party, any Confidential Information of the other party. Any exception to this must be obtained in advance. The foregoing restriction does not apply to information that has been developed independently by the receiving party without access to the other party’s Confidential Information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of this Sect. 3 by the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
4. Limited license & intellectual property
nevaly grants Publisher a nonexclusive, nontransferable, revocable right to use the Links and to access nevaly’s web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying Publisher’s Media as a participant in the Publisher Program and assisting in increasing sales through the Program Web Site. nevaly does not grant to the Publisher any license, express or implied, to the intellectual or industrial property of nevaly or its licensors, except for a limited right of use according to the terms and for the duration of the Agreement. Publisher may not alter, modify, manipulate or create derivative works of the Links or any nevaly graphics, creative, copy or other materials owned by, or licensed to, nevaly in any way. Furthermore, Publisher agrees not to modify, alter, create or copy derivative works of the provided data, information, content or software of the nevaly Publisher Platform. Publisher is only entitled to use the Links to the extent that Publisher is a member in good standing of the Publisher Program. nevaly may revoke Publisher’s license anytime by giving Publisher written notice. Publisher agrees that Publisher will use any data (including any usage data and compilations thereof), information or software, provided by nevaly to Publisher, only for the purpose of providing and optimizing Links for nevaly on Publisher’s Media according to the Agreement. Except as expressly stated herein, nothing in this Agreement is intended to grant Publisher any rights to any of nevaly’s trademarks, service marks, copyrights, patents or trade secrets. By registering, Publisher grants nevaly the right to name Publisher as a reference for nevaly’s services. This includes the right to use the Publisher’s logo on nevaly’s websites and show advertising best practices to other Publishers of nevaly. The Publisher may revoke this right at any time, in writing, for any future use. Publisher agrees that nevaly may use any suggestion, comment or recommendation Publisher chooses to provide to nevaly without compensation. All rights not expressly granted in this Agreement are reserved by nevaly. nevaly will retain all rights, title, and interests in and to the nevaly Publisher Platform (except for any licensed content and third-party Advertisements included therein), including all data (such as any usage data and compilations thereof), information and software related thereto. The Publisher acknowledges that the software, information, content and data related to the nevaly Publisher Platform (such as any usage data or compilations thereof) are protected for nevaly under copyright and similar rights and may contain trade secrets or other intellectual or industrial property owned or licensed by nevaly.
5. Termination
This Agreement shall commence on the date of nevaly’s approval of Publisher’s Publisher Program application and shall continue thereafter until terminated as provided herein. Each party has the right to terminate the Agreement at any time coming into effect entering into effect at midnight following the termination notification, unless otherwise agreed upon. Publisher may terminate Publisher’s participation in the Publisher Program at any time by sending written notice to Publisher’s account manager. nevaly may terminate Publisher’s participation in one or more Offers or this Agreement at any time and for any reason which nevaly deems appropriate with or without prior notice to Publisher by disabling the Links or providing Publisher with a written notice. The parties remain free to terminate the Agreement for cause at any time. In case nevaly is responsible for a termination of the Agreement for cause, all outstanding amounts shall be paid out, provided those amounts were earned through qualified actions as defined in §2.a.3. The Publisher shall not have any other claims, unless otherwise provided in the Agreement. nevaly may terminate the Agreement in particular for, but not limited to, the following reasons: – The Publisher culpably breaches any legal rule, or the Agreement, and such breach remains unremedied despite written notice (possibly via e-mail); a written notice is not required in case of a severe contravention, i.e. when it would be unreasonable that nevaly remains bound by the Agreement. – The Publisher encourages fraud (as defined in Sect. 8). – The Publisher has not used its account for six months despite a reminder. Cases in which it would be unreasonable for nevaly to remain bound by the Agreement generally include infringements of Sect. 2 b) 2., 2. b) 4., and 4.2 of the Agreement. In case nevaly rightfully declares termination for cause, nevaly is entitled to withhold 75 % percent of all Commission still payable to the Publisher as damages. The Publisher remains free to prove that no, or only substantially lower damages, were suffered. If there is no option to terminate the Agreement within the nevaly Publisher Platform, the termination has to be declared in writing. A termination for cause can only be declared in writing. E-mail is sufficient. Upon termination of Publisher’s participation in one or more Offers or this Agreement for any reason, Publisher will immediately cease all use of and delete all Links, plus all nevaly or Advertiser intellectual property, and will cease representing herself as an nevaly or Advertiser Publisher for such one or more Offers.
6. Remedies
In addition to any other rights and remedies available to nevaly under this Agreement and by law nevaly reserves the right to delete any actions submitted through Publisher’s Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to Publisher account if (i) nevaly determines that Publisher has violated this Agreement, (ii) nevaly receives any complaints about Publisher’s participation in the Publisher Program which nevaly reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Publisher Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach. In the event of a material breach of this Agreement, nevaly reserves the right to disclose Publisher’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Publisher’s actions.
7. Anti-Spam policy
Publisher must strictly comply with the law in regard to sending email and other messages. All emails sent in connection with the Publisher Program must especially include the appropriate party’s opt-out link. From time to time, nevaly may request – prior to Publisher sending emails containing linking or referencing the Publisher Program that Publisher submits the final version of Publisher’s email to nevaly for approval by sending it to Publisher’s nevaly representative and upon receiving written approval from nevaly of Publisher’s email the email may be transmitted to third parties. It is solely Publisher’s obligation to ensure that the email complies with the law. Publisher agrees not to rely upon nevaly’s approval of Publisher’s email for compliance with the law, or assert any claim that Publisher is in compliance with the law based upon nevaly’s approval.
8. Fraud
Publisher is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Publishers or falsify information in connection with referrals through the Links or the generation of Commissions or exceed Publisher’s permitted access to the Publisher Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks and/or actions through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. nevaly shall make all determinations about fraudulent activity in its reasonable discretion.
9. Representations and warranties
Publisher hereby represents and warrants that this Agreement constitutes Publisher’s legal, valid, and binding obligation, enforceable against Publisher in accordance with its terms and that Publisher has the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, nevaly represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to nevaly’s own business operations or nevaly’s proprietary products or services.
10. Modifications
Each log-in to the nevaly Publisher Platform is subject to the Agreement. The Agreement can be printed or saved on storage media. nevaly may make changes to the Agreement (including amendments) at any given time, for the future, if this should prove necessary (in particular to reflect changes in the nevaly Publisher Platform or changes in the legal framework applicable to it, such as new legislation or case-law) and provided the Publisher is not disadvantaged contrary to good faith. The Publisher will be notified of changes to the Agreement in appropriate form. nevaly will notify the Publisher on the nevaly Publisher Platform, or via e-mail. Changes to the Agreement will always be highlighted upon first login after the changes or amendments have been made. The Publisher may dispute changes to the Agreement within a time period of two weeks following receipt of the notification of the changes and the possibility of taking notice thereof. It is recommended that the Publisher submits its opposition in writing (for example via e-mail). The changes to the Agreement become binding in the event that the Publisher (i) does not dispute the changes within the above-mentioned time period or (ii) continues to use the nevaly Publisher Platform or (iii) continues to place Links on the Media, after having received the notification of the changes to the Agreement without having disputed the changes. nevaly will inform the Publisher about the possibility of disputing the changes and the legal consequences, especially the legal consequences of a lack of opposition, when notifying the Publisher about the changes to the Agreement. If the Publisher disputes the changes in time, each party may terminate the Agreement with one month’s prior notice unless termination is possible at any time according to Sect. 5. Until termination, the Agreement in their former version will govern the Publisher’s relationship with nevaly. The Publisher does not have any other claims against nevaly. In addition, nevaly may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Publisher agrees to promptly implement any request from nevaly to remove, alter or modify any Link, graphic or banner ad that is being used by Publisher as part of the Publisher Program. Unless otherwise provided in the Agreement, nevaly will usually communicate with the Publisher via e-mail. The Publisher shall make sure that it receives all e-mails sent by nevaly to the address submitted in the course of the application, or at a later date. The Publisher will in particular configure the spam filter accordingly and regularly check all incoming e-mail under this address. nevaly may choose any other appropriate means of communication.
11. Independent investigation
Publisher acknowledges that Publisher has read this Agreement and agrees to all its terms and conditions. Publisher has independently evaluated the desirability of participating in the Publisher Program and each Offer and is not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Publisher Program.
12. Claims based on defects
nevaly grants the Publisher access to the nevaly Publisher Platform in the then current version only (see Sect. 14). The Publisher cannot claim that a given state or functional range is maintained or achieved. The Publisher acknowledges that the nevaly Publisher Platform, as any other software, can never be completely free of bugs. Therefore, the nevaly Publisher Platform can only be considered to be defective if its usability is affected severely and for a significant period of time. This is especially the case if the mathematical calculation or the display of the Publisher’s Commission (see § 7) is incorrect, unless the error is negligible. The Publisher shall document any faults in the nevaly Publisher Platform, and report them in writing (along with a log of the error messages displayed, if applicable). Before reporting a potential bug, the Publisher will consult the instruction and other troubleshooting tools provided by nevaly (especially frequently asked question lists, forums and boards for troubleshooting). The Publisher will use its best efforts to support nevaly in any attempts to debug. The Publisher will notify nevaly of any faults, without undue delay upon discovery, in writing (fax, letter or e-mail). To comply with this, it is sufficient that the report is sent in time. If no notice has been given within this deadline, all claims based on such defects shall forfeit. nevaly is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by nevaly. The Publisher is liable for any costs incurred by nevaly based on incorrect reports by the Publisher, especially in the event that there is no defect, or the defect has been caused by the Publisher itself. nevaly does not assume any warranties.
13. Mutual indemnification
Publisher hereby agrees to indemnify, defend and hold harmless nevaly and Advertisers and their respective subsidiaries, publishers, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Publisher herein, (ii) any misuse by Publisher, or by a party under the reasonable control of Publisher or obtaining access through Publisher, of the Links, Offers or nevaly or Advertiser intellectual property, or (iii) any claim related to Publisher’s Media, including but not limited to, the content contained on such Media (except for the Links). nevaly hereby agrees to indemnify, defend and hold harmless Publisher and its subsidiaries, publishers, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on a claim that nevaly is not authorized to provide Publisher with the Links. The indemnifying party has the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party. The indemnified party agrees to cooperate with the indemnifying party’s defense of such claims.
14. Technical and commercial limitations; changes; availability
Unless otherwise provided for in this Agreement, nevaly provides the nevaly Publisher Platform on an “AS IS” and “AS AVAILABLE” basis. nevaly offers the Publisher use of the nevaly Publisher Platform over the Internet subject to technical and commercial limitations as defined below. nevaly may modify the nevaly Publisher Platform without prior notice. Therefore, the Publisher is granted a right of use only for the then current version. The Publisher may reduce or cease its use of the nevaly Publisher Platform in the event that those are modified. nevaly reserves its right to cease operation of the nevaly Publisher Platform at any time, without giving reasons or prior notice. Any balance owed to the Publisher will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement. nevaly undertakes to assure an availability of the nevaly Publisher Platform of 99% (ninety nine percent) as a yearly average. Periods during which the nevaly Publisher Platform are not available because of technical or other problems outside nevaly’s control (such as force majeure or third party fault) and periods during which routine maintenance works are carried out, are excluded from this. nevaly may restrict access to the nevaly Publisher Platform if required for network security, maintenance of network integrity and the prevention of severe malfunction of the network, the software or stored data. The Publisher’s rights in case of intent or gross negligence remain unaffected. Publisher shall inform nevaly in advance if Publisher anticipates or can anticipate any high damages in case of a non-availability of the Publisher Platform within a certain timeframe.
15. Limitation of liability
nevaly is not responsible for damages, unless they are caused intentionally or by gross negligence. Liability for breach of a cardinal obligation or an essential obligation is limited to the damage which could have been foreseen. A cardinal obligation is an obligation whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may normally trust. The damage which can be foreseen is limited to EUR 2,500.00 per Publisher. The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of nevaly and their members. The aforementioned limitations of liability determined in Sect. 15.1 to 15.4 do not apply to the liability for personal injury of life, body, and health. The limitation of liability pursuant to Sect. Sect. 15.1 and 15.4 does not apply in case the damage is the result of a breach of a cardinal obligation, an essential obligation or a guarantee. nevaly remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
16. Data Protection
The Publisher agrees to provide nevaly, and/or the Advertisers on request, with figures regarding delivery, the number of clicks, and other advertising-related data. The Publisher shall store all data reported by nevaly through the nevaly Publisher Platform (including user data and usage data) in conformity with all legal requirements. The Publisher shall not transmit any personal data (i.e. data allowing identification of an individual) to nevaly, unless data protection laws allow for such transmission. The Publisher shall duly inform the users of the Media about the cooperation with nevaly and its implications (Sect. 16.5 to Sect. 16.7), in a privacy policy or other appropriate form, and seek consent, if consent is required by law for nevaly and/or the Advertisers to perform the actions described in Sect. 16.5 to Sect. 16.7. The Publisher acknowledges that nevaly and/or the Advertisers may store user data and usage data, which they collect automatically or through forms filled in by the users. The Publisher acknowledges that nevaly and/or the Advertisers may use such data to optimize their offers and services, to better target users with Advertisements which better match their interests, and for statistical purposes, market research, and the promotion of their respective goods and services. The Publisher acknowledges that nevaly and/or the Advertisers may use e-mail addresses and other contact data submitted by the users for marketing and promotion, as far as allowed by applicable law.
17. Protection of login data
The Publisher shall keep all access data (login, passwords etc.) for the nevaly Publisher Platform (“Access Data”) strictly confidential. The Publisher shall promptly inform nevaly in case it learns or suspects that an unauthorized third person is in possession of the Access Data. In case nevaly has reason to believe that an unauthorized third party is in possession of Access Data, nevaly may, without assuming any responsibility to do so, and always acting in its sole discretion, change the Access Data without prior notice or block the respective account. nevaly will promptly inform the Publisher and will, upon request, communicate the new Access Data to the Publisher without undue delay. The Publisher cannot claim to have its initial Access Data restored. In case a third party uses, through the Publisher’s fault, the Publisher’s Access Data, the Publisher is liable for all such actions, and for damages. In such event, all access through the Publisher’s Access Data shall be considered as an access by the Publisher.
18. Governing law & miscellaneous
The courts of Berlin, Germany, shall have exclusive jurisdiction. The laws of the Federal Republic of Germany apply for all contracts concluded by nevaly on the basis of the Agreement and any claims arising therefrom, and for all claims related to the use of the nevaly Publisher Platform. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded. This Agreement contains the entire agreement between nevaly and Publisher with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Terms and conditions of the Publisher do not become part of the Agreement, unless nevaly has accepted them in writing. All or any of nevaly’s rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the nevaly Publisher Platform in a merger, acquisition or sale of all or substantially all of nevaly’s assets. The Publisher must not assign or transfer the Agreement or any or all of its rights thereunder without the prior written consent of nevaly. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. Except as set forth in the “Modifications” section above, this Agreement may not be modified without the prior written consent of both parties. Any changes, amendments or the abrogation of the Agreement (partly or entirely) require written form (letter, fax or e-mail); the requirement of written form can only be waived in written form. If any provision of this Agreement is held by a court of competent jurisdiction to be unlawful, void, invalid or inoperative, then in such jurisdiction that provision shall be deemed severable from the Agreement and the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. nevaly’s failure to act with respect to a breach by the Publisher does not waive nevaly’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by nevaly under the Agreement shall be deemed effective unless delivered in writing and signed by a duly appointed representative of nevaly. Section headings used in the Agreement are for convenience only and shall not affect the interpretation of the Agreement. The English version of the Agreement is decisive. By submitting and application to Publisher Program, Publisher affirms and acknowledges that Publisher has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If Publisher does not wish to be bound by this Agreement, Publisher should not submit an application to Publisher Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement. This Agreement was last revised December 2013
