AdGem Publisher Terms & Conditions
These Terms and Conditions (the “Agreement”) are between AdGem LLC (“AdGem”) and you a developer of applications, or, if you represent an entity or other organization, that entity or organization (in either case, “you”, “your”, “Customer”, or “Publisher”).
AdGem provides a mobile application marketing advertising network platform (the “AdGem Platform”), which may be accessed through the website located at https://adgem.com/ and through various other websites operated by AdGem (each a “AdGem Website“) or using mobile and online applications provided by and on behalf of AdGem (each, an “AdGem Application,” and each AdGem Website and AdGem Application treated as a part of the “AdGem Platform” for purposes of this Agreement).
The AdGem Platform provides users the ability to access certain software referred to as the AdGem SDK, for serving advertisements, interactive features, or advertising content (“Advertisements”) to users (“End Users”) of Publisher’s proprietary mobile application (“Publisher Application”) (collectively, the delivery of Advertisements by AdGem through the Publisher Application, and any accompanying functionality or features, in accordance with this Agreement shall be referred to as the “Services”).
You are the owner or licensed operator of the Publisher Application, and wish that AdGem provide you with Advertisements for the purpose of displaying such Advertisements through the Publisher Application, and in return AdGem may provide you with the Payment (as defined below), all subject to and in accordance with the terms and conditions set forth in this Agreement. AdGem is willing to provide you with a license to access or use the Services as set forth in this Agreement if you agree to be bound by the terms and conditions of this Agreement.
Please carefully read the terms and conditions of this Agreement. By clicking “I accept the terms in this agreement” button, or by otherwise downloading, accessing, installing, or using the Services, you acknowledge that you have read this Agreement and agree to be bound by the terms and conditions of this Agreement. If you do not agree to be bound by the terms and conditions of this Agreement, AdGem is not willing to grant you any rights or licenses to access or use the Services, and you may not download, access, install, or use the Services. This Agreement will be entered into as of the date you first download, access, install, or use the Services (the “Effective Date”).
- Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
- Modifications. AdGem reserves the right, at any time, to modify the AdGem Platform or any Services, with or without notice to you, by making those modifications available on the AdGem Platform. AdGem also reserves the right, at any time, to modify this Agreement. AdGem will inform you of the presence of any changes to this Agreement by posting those changes on the AdGem Platform or by providing you with notice through the AdGem Platform. Any modifications will be effective immediately upon posting on the AdGem Platform or delivery of such notice through the AdGem Platform. You may terminate this Agreement as set forth below if you object to any such modifications. However, you will be deemed to have agreed to any and all modifications through your continued use of the AdGem Platform or any Services following such notice period.
3.1 Users. Access to and use of the Services may require that you establish an account (an “Account“) on the AdGem Platform. Approval of your request to establish an Account will be at the sole discretion of AdGem. If you are an organization, you may authorize designated employees within your organization to use and access Services on your behalf through your Account (you and each such individual, as applicable, a “User” of your Account). If you are an individual, then you may use and access Services through your Account as the sole User of the Account. Each user identification and password for your Account (each, “Account ID”) is personal in nature and may be used only by you or, as applicable, the User to whom the Account ID is issued.
3.3 Responsibilities. You are solely responsible for all access to and use of your Account (whether authorized or unauthorized), including all Services accessed through your Account. AdGem may deem any actions taken through your Account to have been authorized by you. You are responsible for compliance, and the compliance any other Users of your Account, with this Agreement. You will ensure the security and confidentiality of each Account ID and will notify AdGem immediately if any Account ID is lost, stolen, or otherwise compromised. You acknowledge that you are fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified, or shared through the use of each Account ID (whether lawful or unlawful). You acknowledge that any orders made or other transactions completed through your Account will be deemed to have been lawfully completed by you. In no event will AdGem be liable for the foregoing obligations or the failure by you to fulfill such obligations.
3.4 Account Authority. If you are an organization, then the individual who establishes your Account (the “Account Authority”) will have control over your Account. If you are an individual, then you will be the Account Authority for your Account, unless you designate a different Account Authority as specified below. AdGem may deem the Account Authority to have full authority for all decisions relating to your Account, including: (a) addition or removal of Users; (b) permissions to access your Account; (c) disputes regarding your Account; (d) notices and other communications relating to your Account; and (e) any other decisions that may be required regarding your Account. There must be one and only one Account Authority for each Account at all times. The initial Account Authority must be designated in the initial request to establish an Account. If an initial Account Authority is not designated, the individual requesting to establish an Account shall be deemed the initial Account Authority for that Account. The Account Authority may be changed: (i) by an email sent to AdGem from the registered email address of the current Account Authority; (ii) by bona fide legal written notice provided to AdGem by one of your corporate officers; or (iii) as separately directed and acknowledged by AdGem. It is your responsibility to properly designate a new Account Authority whenever appropriate. In the event of a dispute where multiple persons claim to be the rightful Account Authority, AdGem reserves the right, at its sole discretion, to: (1) suspend all access to your Account until an Account Authority is properly designated to AdGem’s sole satisfaction; or (2) terminate your Account and delete your Registration Information.
- Services. Subject to the terms and conditions of this Agreement, AdGem grants to you a non-exclusive, non-sublicensable, non-transferable, limited license to access and use the Services solely to display Advertisements on a Publisher Application that is within your control and responsibility. AdGem may, in our sole discretion, at any time: (1) determine the scope of the Services, including, the Advertisements that are available to you; and (2) modify, replace, or make any other changes to, or discontinue, the Service (or any part thereof). AdGem does not have any obligation to monitor any Advertisements which are available as part of the Services. You shall display the Advertisements on the Publisher Application according to the terms of this Agreement, including any placement requirements and technical specifications provided by AdGem, to enable proper display of such Advertisements. You shall not add, modify, alter, or delete content, text, or appearance of the Advertisement without AdGem’s prior written approval.
- The AdGem Platform permits you to access certain Advertisements through the Services. Your access to and utilization of the Advertisements may be governed by the terms of Additional Terms you have entered into with AdGem regarding the Advertisements (whether in connection with receiving access to the Advertisements or Services or otherwise). If you have not entered into any such separate agreement with AdGem regarding the Advertisements, you receive a non-exclusive, non-transferable, non-sublicensable, limited license to access and view the Advertisements solely through the Services using the AdGem Platform. If you would like to utilize the Advertisements in a manner that is not expressly granted in this Section, you must enter into additional terms with AdGem providing you with those rights.
- Marketing. You agree that AdGem may: (1) feature the Publisher Application in different marketing collateral and as part of promotional campaigns, including newsletters, case studies and press releases; and (2) identify you as a user of the Services. For that purpose, you agree to grant us a limited, worldwide, non-sublicensable, non-exclusive license to use your trademarks, trade names, and associated logos (“Publisher Marks”) solely to engage in the marketing and promotional activities set forth herein. All rights which are not expressly granted herein are reserved by you. We shall not make any use of the Publisher Marks, in whole or in part, in any manner that is not expressly permitted under this Agreement or without your written consent.
7.1 AdGem Proprietary Rights. The AdGem Platform, Services, and Advertisements may be utilized and accessed by Publisher solely as expressly set forth in this Agreement. As between the parties, AdGem and its third party providers retain all right, title, and interest in and to the AdGem Platform, Services, and Advertisements, and all modifications, enhancements, improvements, updates, upgrades, or new versions thereof or derived therefrom, and all worldwide IPR therein or relating thereto. All rights in and to the foregoing not expressly granted hereunder are reserved by AdGem and its third party providers. The AdGem name and logo, and all names and logos displayed on the AdGem Platform, through the Services, or in any Advertisements, are trademarks or service marks of AdGem and its advertisers or third party providers. Except for your rights to use the AdGem Platform, Services, and Advertisements under this Agreement, you are granted no right or license to use any such trademarks or service marks. Any use of such trademarks or service marks without AdGem’s express written consent is strictly prohibited.
7.2 Third Party Software. The Services may include software owned by third parties (“Third Party Software”). You agree that your rights as to Third Party Software are subject to the terms of any additional third party licenses that may accompany or otherwise be provided in connection with the Third Party Software (“Third Party Licenses”). Any Third Party Software not subject to a Third Party License is subject to the terms of this Agreement and the owners of any such Third Party Software are third party beneficiaries of this Agreement.
7.3 Publisher Proprietary Rights. The Publisher Application and Publisher Marks may be utilized and accessed by AdGem solely as expressly set forth in this Agreement. Except for those portions that are owned by AdGem as described in Sections 7.1 and 7.2, you and your third party providers (if any) retain all right, title and interest in and to the Publisher Application and Publisher Marks, and all modifications, enhancements, improvements, updates, upgrades, or new versions thereof or derived therefrom, and all worldwide IPR therein or relating thereto. All rights in and to the foregoing not expressly granted hereunder are reserved by you and your third party providers (if any).
7.4 No Support or Maintenance. AdGem is under no obligation to provide to you with any updates, upgrades, new versions, or new releases (collectively, “Updates”) of or to the Services, to correct any defects or errors in the Services, or to otherwise provide support or maintenance for the Services. Notwithstanding the foregoing, should AdGem elect to provide you with any support or maintenance for the Services, such support and maintenance will be pursuant to AdGem’s then-current standard support and maintenance terms. Any Update of or to the Services provided by AdGem will be treated as part of the “Services” for purposes of this Agreement. Upon receipt of any such Update, you must discontinue your use of any prior version of the Software.
7.5 IPR. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
- Services Access. You will not utilize or access the Services for any purpose not expressly set forth in this Agreement. You will not and will not permit any third party to: (1) obtain or attempt to obtain any data, information or content from the Services that have not been intentionally made publicly available either by their public display on the Services or through their accessibility by a visible link on the Services; (2) use any automated device, script, software, program, tool, algorithm, process or methodology (or any manual process having similar processes or functionality) to interact with the Services; (3) violate the security of the Services or attempt to gain unauthorized access to the Services; (4) interfere or attempt to interfere with the proper operation of the Services; (5) take or attempt any action that may impose an unreasonable or disproportionately large load or burden on the Services or otherwise damage, disable, overburden or impair the Services; (6) use or access the Services to intimidate or harass any other people or entities; (7) upload to the Services or provide to AdGem any code or device capable of or intended to interrupt, harm or damage the Services or the operation of the Services.
- Additional Restrictions. You recognize and agree that the AdGem Platform, Services, Advertisements, and all hardware, software and other technology used to operate the Services (“Technology”) are the property of AdGem and contain valuable assets and proprietary information of AdGem. Accordingly, except as may be expressly permitted in this Agreement, you will not, and will not permit any third party to: (1) copy or reproduce the Technology; (2) modify, translate, adapt, alter, or create derivative works from the Technology; (3) merge the Technology or any component thereof with any other software or content; (4) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, databases, data structures or method of operation of the Technology; (5) transfer, distribute, sublicense, rent, lease, sell, or loan the Technology or access thereto (or to any component thereof) to any third party; (6) use the Technology for the business needs of another person or entity, including without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; (7) remove, bypass or circumvent (or attempt to remove, bypass or circumvent) any electronic or other form of protection measure in place to regulate or control access to the Technology; (9) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Technology; (10) utilize the Technology for any purpose that is illegal in any way advocates illegal activity or violates any applicable laws, rules, or regulations (“Laws”), including any Laws related to advertising to children or marketing; or (11) otherwise use or access the Technology for any purpose not expressly permitted under this Agreement.
10.1 Payment Terms. Notwithstanding anything else to the contrary set forth in the Agreement, you acknowledge and agree that AdGem shall have no obligation to pay you any amount (“Payment”) with respect to amounts generated as a result of: (a) your breach of any of the terms and conditions of the Agreement; or (b) your breach of any applicable Laws. AdGem may withhold or offset (as AdGem deems appropriate, in its sole discretion) the relevant portion of any Payment due to you or any portion of any Payment previously received by you in respect of any matter under subsection (a) and (b) of this Section.
10.2 Calculation. Calculation of the Payment shall be in accordance with the Dashboard and will be based on the tracking and reporting performed by AdGem through the AdGem Platform, then adjusted for any credits or chargebacks communicated to you by AdGem. Unless otherwise specified, delivery of the Payment shall be made within 30 days after the end of each calendar month, in U.S. Dollars by electronic funds transfer.
10.3 Disputes. If you wish to dispute the calculation of the Payment, you will provide AdGem with a written notice (via e-mail to the address set forth in the AdGem Platform) specifying the reasons for the dispute with as much detail as possible (the “Dispute Notice”), by no later than 7 days of delivery of the applicable calculations to you, whether provided in a report or otherwise. If such Dispute Notice is not delivered to AdGem within the applicable timeframe, such calculations shall be deemed accepted and agreed by you. Following receipt of a Dispute Notice, the parties will cooperate, in good faith, in order to resolve any such dispute.
10.4 Dashboard and Reports. Your Account includes a dashboard where you will be able to view reports regarding the number of impressions, clicks, rates, and your then current estimated Payment (the “Dashboard”). You acknowledge and agree that the Dashboard is provided to you for convenience purposes only and AdGem is not liable for any unavailability or inaccuracy, temporary, or otherwise, of the Dashboard. You acknowledge and agree that the manner in which the Dashboard reports are generated (the “Reports”), including without limitation, the manner in which the Payment is calculated and presented therein may be modified or altered by AdGem at any time without prior notice to you. To dispel all doubt, the Reports shall be considered a part of AdGem’s Confidential Information.
10.5 Taxes. You acknowledge and agree that you will pay all applicable taxes, including without limitation, value-added, customs fees, import duties, or other taxes and duties imposed by any governmental authority imposed on you with respect to the Payment. Furthermore, you agree to refund AdGem any Payment that was paid to you and is subject to chargeback or other fees AdGem may have paid following delivery to you.
- Publisher’s Obligations.
11.1 Publisher Application. You represent and warrant that: (a) you are the owner or the legal licensee of the Publisher Application, including: (i) the names or pictures of persons included in the Publisher Application; (ii) any Publisher Marks, copyrighted material, or depictions of trademarked or service marked goods or services available therein; and (iii) any testimonials or endorsements contained in any Publisher Application; (b) you are duly and fully authorized to be bound by this Agreement and have all consents necessary to use the Publisher Application; and (c) the execution and delivery of this Agreement, and your performance of your obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which you are a party or any of your affiliates are a party or violate any rights of any third parties arising therefrom.
11.2 Intellectual Property Rights and Prohibited Activities. You represent and warrant that: (a) the Publisher Application, including its content, is wholly owned by you or is validly and lawfully licensed to you, and does not infringe or violate any applicable laws or any right of any person, including any IPR, and you are fully permitted to make any use of Publisher Application and its content, including any use as may be required or advisable under this Agreement or with respect to the AdGem Platform; and (b) the Publisher Application and content displayed therein shall not include, endorse, or advocate any content or feature that: (i) encourage conduct that would be considered a criminal offense or could give rise to civil liability; (ii) would be a violation of applicable Laws, or Google’s, Apple’s, or Amazon’s policies applicable to publishers; or (iii) would be considered harmful, misleading, deceptive, fraudulent, unfair, immoral, indecent, pornographic, obscene, sexually explicit material, excessively profane, racist, ethnically offensive, threatening, excessively violent, defamatory, hate speech, gambling, discriminatory, malware, illegal drugs or arms trafficking, alcohol, tobacco, prescription drugs or weapons. Additionally, the content of Publisher’s Media shall be subject to AdGem’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include, promote or link to the following:
- Pornographic material, including any material appealing to the prurient interests
- Racial, ethnic, political, hate-mongering or otherwise objectionable content;
- Investment, money-making opportunities or advice not permitted under law;
- Gratuitous violence or profanity;
- Material that defames, misrepresents, abuses, or threatens physical harm to others;
- Promotion of illegal substances or activities such as, but not limited to, illegal online gambling, how to build a bomb, counterfeiting money, etc.;
- Software Pirating;
- Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;
- Infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
- Any illegal activity whatsoever; and
- Links to any affiliate networks
11.3 Fraud Monitoring. AdGem actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things:
- Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of AdGem;
- Have ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported;
- Have shown fraudulent leads as determined by the Advertisers;
- Have used any incentives to procure clicks or leads, without the prior written consent of AdGem;
- Have provided leads obtained other than through intended consumer action. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior; or
- Use fake redirects, automated software, and/or other fraudulent mechanisms in any way.
If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by AdGem or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by AdGem, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Publisher Application or associated media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to AdGem, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, AdGem reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher.
11.4 Compensation of End Users. You represent and warrant that you shall compensate End Users for clicking on any Advertisements or other commercial materials or provide any other incentives or benefits as specified by AdGem or as described in the Advertisements. As a condition of AdGem providing Player Support for Publisher’s users on the AdGem offerwall, any time AdGem indicates to Publisher that the user should be provided with a specified amount of currency, the Publisher shall compensate user accordingly. Publisher failure to reward users in this way as specified by AdGem shall be considered a breach of this agreement by Publisher.
- AdGem Obligations. Subject to this Agreement, AdGem will make the AdGem Platform available to you. AdGem use reasonable and appropriate data security measures to maintain the security and confidentiality of the data and information that is part of the Account, but AdGem does not and cannot guarantee that storage of any data pertaining to you, the Publisher Application, or End Users will be secured at all times, and AdGem will not be responsible for any unauthorized access to or alteration to your or any other person’s personal information from or in connection with the Account or Publisher Application.
- DISCLAIMER. Except as expressly provided in Section 12, the AdGem Platform, services, and advertisements are provided “AS IS” without any warranty of any kind. to the maximum extent permitted by law, AdGem specifically disclaims all other warranties, express or implied, oral or written, arising by law or otherwise, relating to this Agreement or to the AdGem Platform, services, and advertisements, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement. AdGem does not warrant that the AdGem Platform, services, and advertisements will be accurate, current, or complete, that the AdGem Platform, services, and advertisements will meet your needs or expectations, or that the operation of the AdGem Platform, services, and advertisements will be error free or uninterrupted. AdGem provides all Content as a service to You. accuracy cannot be guaranteed. AdGem reserves the right, at its sole discretion, to modify certain characteristics of the Content including, but not limited to, watermarking and dimensions.
- Liability Limitation. AdGem, and its third party providers, shall not be liable for any indirect, consequential, exemplary, punitive, or incidental damages, including, without limitation, lost revenue or profits, lost opportunity, or lost data or access to data, arising from or related to this Agreement or to the AdGem Platform, services, and advertisements, even if AdGem has been advised of the possibility of such damages. AdGem’s total cumulative liability arising from or related to this Agreement or the AdGem Platform, services, and advertisements is limited to $10,000. certain jurisdictions do not permit the limitation or exclusion of incidental damages, so this limitation may not apply to You. use of and access to the AdGem Platform, services, and advertisements is solely at your own risk.
- You will indemnify, defend, and hold harmless AdGem, and its third party providers, subsidiaries, affiliates, and subcontractors, and their respective owners, officers, directors, employees, and agents, from and against any and all direct or indirect claims, damages, losses, damages, liabilities, expenses, and costs (including reasonable attorneys’ fees) arising from or out of: (1) your use of the AdGem Platform, Services, or Advertisements for any purpose; (2) your actual or alleged breach of any provision of this Agreement; or (3) any liability arising from any End User’s use or access to the AdGem Platform, Services, or Advertisements. AdGem will provide you with notice of any such claim or allegation, and AdGem has the right to participate in the defense of any such claim at its expense.
- Term and Termination. This Agreement will begin on the Effective Date and will continue in perpetuity until it is terminated as set forth herein (the “Term”). Either party may terminate this Agreement upon 5 days’ prior written notice, for any reason and without liability. AdGem may also suspend or discontinue access to the AdGem Platform or Services, or your Account, at any time, with or without notice to you, upon any actual or suspected breach of this Agreement. Upon expiration or termination of this Agreement, all rights granted to you under this Agreement shall immediately cease and you will: (1) discontinue all utilization of and access to the AdGem Platform or Services; (2) remove and delete all copies of the AdGem Platform or Services from all computer storage devices or other media in your possession or control; and (3) provide AdGem a written certification that you have complied with all of your obligations under this Agreement. Any Advertisements will not be accessible (and will be forfeited) after any expiration or termination of this Agreement. AdGem will not be liable to you or any person for the termination of this Agreement or termination of your access to your Account. Furthermore, AdGem will have no obligation to maintain any information stored in AdGem’s data centers related to you or to your Account or to forward any information to you or any person following the effective date of termination of this Agreement. Following the termination of this Agreement or suspension of your Account, any information which is related to your Account may no longer be accessed by you. Sections 1, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 shall survive any expiration or termination of this Agreement.
- Audit. At AdGem’s request, you will provide assurances acceptable to AdGem that you are using the AdGem Platform, Services, and Advertisements consistent with the terms of this Agreement. Upon notice, AdGem may inspect your records, accounts, and books relating to the use of the AdGem Platform, Services, and Advertisements to ensure that the AdGem Platform, Services, and Advertisements is being used in accordance with this Agreement.
- The AdGem Platform and Services may include content, metadata, and other confidential and proprietary information of AdGem that a reasonable person would know is the confidential or proprietary information of AdGem given the circumstances (“Confidential Information”). You will not use any Confidential Information for any purpose not expressly permitted hereunder and will disclose Confidential Information only to your employees and permitted sublicensees who have a need to know for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than your duty hereunder. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of similar nature and with no less than reasonable care.
- Usage Data.AdGem will have the right to collect, extract, compile synthesize, and analyze data or information resulting from your use of or access to the AdGem Platform and Services (“Usage Data”). To the extent any Usage Data is collected by AdGem, the Usage Data will be solely owned by AdGem and may be used by AdGem for any lawful business purpose without a duty of accounting to you.
- Equitable Relief. You acknowledge and agree that due to the unique nature of the AdGem Platform and the Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow you or third parties to unfairly compete with AdGem resulting in irreparable harm to AdGem, and therefore, that upon any such breach of this Agreement or threat thereof, you will not oppose any attempt by AdGem to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm (and agrees to support the waiver of any requirement that AdGem be required to post a bond prior to the issuance of any such injunction or other appropriate equitable relief).
- Any notices to AdGem relating to this Agreement shall be in writing and delivered by personal delivery or U.S. certified mail (return receipt requested) to the address provided below and will be effective upon receipt by AdGem:
ATTN: LEGAL DEPT
All notices to you relating to this Agreement shall be delivered by personal delivery, electronic mail, facsimile transmission or by U.S. certified mail (return receipt requested) to the address for you in your Account, and will be deemed given upon personal delivery, 5 days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.
22.1 Entire Agreement. This Agreement consists of these terms and conditions, all of which are incorporated herein and made a part of this Agreement. Unless otherwise amended by any Additional Terms, this Agreement represents the entire agreement and understanding between you and AdGem as to the matters set forth herein and will exclusively govern your access to or use of the Services. This Agreement will supersede any oral or written proposal, agreement or other communication between you and AdGem regarding your access to or use of the Services. Your acceptance of this Agreement is expressly limited to the terms and conditions set forth herein. Any additional or inconsistent terms provided by you in any other documents such as a purchase order will not have any legally binding effect on AdGem. This Agreement may be modified only by a binding written instrument entered into by you and AdGem.
22.2 Waiver. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
22.3 Severability. If any provision of this Agreement is determined to be invalid or unenforceable, such provision will to the extent possible be deemed amended by limiting and reducing it to the minimum extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall continue to be valid and enforceable and will be liberally construed to carry out the provisions and intent hereof. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of such provision in any other jurisdiction, nor will the invalidity or unenforceability of any provision of this Agreement with respect to any person affect the validity or enforceability of such provision with respect to any other person.
22.4 Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned or transferred by you (by operation of law or otherwise) without the prior written consent of AdGem. This restriction on assignment or transfer shall apply to assignments or transfers by operation of law, as well as by contract, merger, or consolidation. Any attempted assignment or transfer in violation of the foregoing will be null and void.
22.5 Independent Contractors. The parties hereto are and shall remain independent contractors, and nothing contained herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.
22.6 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
22.7 Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, U.S.A., without regard to conflicts of law principles that would require the application of the laws of any other state or jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the federal courts or state courts for Denver County, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
Exhibit A – Data Protection Addendum
The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
The following obligations shall only apply to the extent required by Data Protection Laws (as defined below) with regard to the relevant Personal Data (as defined below) received from or on behalf of the other party, if applicable.
1.1. “Affiliate”means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Customer or AdGem respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
1.2.“Controller,” “Processor,” “Data Subject,” “Processing,” “Supervisory Authority,” “Personal Data Breach,” and “Special Categories of Personal Data”shall have the same meaning as in the applicable Data Protection Law.
1.3.“Data Protection Laws” means (a) the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”); and (b) the EU General Data Protection Regulation 2016/679 (“GDPR”), as well as any other applicable national rule and legislation on the protection of personal data in the European Union that is already in force or that will come into force during the term of this Agreement, including any measure, guideline and opinion issued by the data protection authorities, the Working Party under Article 29 of Directive 95/46/EC, the European Data Protection Board under Article 63 et seq. of the GDPR and any other competent authority, and any other data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA.
1.4.“EEA” means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en.
1.5.“Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.
1.6.“Restricted Transfer” means the onward transfer of Personal Data that is located in the EEA to another party in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission.
1.7. “Standard Contractual Clauses” means the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to Controllers established in third countries (controller-to-controller transfers, Set II).
1.8. “Subprocessor” means any Processor appointed by either party acting as a Processor to the other party acting as Controller to Process Personal Data on behalf of the other party acting as Controller or such party’s Affiliate.
- Processing of Personal Data as Processor. Except as provided in Section 2 and when acting as a Processor to Customer, AdGem shall not Process Personal Data other than on Customer’s documented instructions unless Processing is required by Data Protection Laws to which AdGem is subject, in which case AdGem shall to the extent permitted by Data Protection Laws inform Customer of that legal requirement before Processing Personal Data. For the avoidance of doubt, the Agreement and any related Order entered into by Customer shall constitute documented instructions for the purposes of this Addendum.
- Consent for the Processing of Personal Data. As AdGem does not have a primary relationship with any Data Subject using or accessing Customer offerings, Customer shall be responsible for: (a) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Customer’s use and disclosure and AdGem’s Processing of Personal Data; and (b) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Personal Data to AdGem and to permit the processing of such Personal Data by AdGem for the purposes of performing AdGem’s obligations under the Agreement or as may be required by Data Protection Laws. Customer shall notify AdGem of any changes in, or revocation of, the permission to use, disclose, or otherwise process Personal Data that would impact AdGem’s ability to comply with the Agreement, or applicable Data Protection Laws.
- Each party shall take reasonable steps to ensure that individuals that process Personal Data are subject to obligations of confidentiality or are under an appropriate obligation of confidentiality.
- Each party shall implement and maintain all appropriate technical and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the Processing and the nature of the Personal Data, and to prevent unauthorized or unlawful Processing of Personal Data, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Data.
- Each party hereby grants the other party general authorization to engage Subprocessors in connection with performing its obligations under the Agreement (including website hosting providers, credit card processors, marketing professionals, network infrastructure operators, providers of anti-fraud reporting services, analytics service providers, and other outsourced providers), provided that such party shall in each case ensure that: (a) such party enters into a written agreement with such Subprocessors that includes materially the same obligations as those in this Addendum; (b) such party remains fully responsible for such Subprocessors Processing activities under the Agreement; (c) such Subprocessors implement appropriate technical and organization security measures to protect Personal Data; and (d) such Subprocessors provide sufficient guarantees that such Subprocessors will Process Personal Data in a manner that will meet the requirements of applicable Data Protection Laws.
- Data Subject In the event a party receives a request from a Data Subject for Personal Data related to such Data Subject as permitted by any Data Protection Laws (a “Data Subject Request”), such party shall not share, transfer, disclose, or otherwise provide or permit access to Personal Data without the other party’s prior written consent. If either party receives a Data Subject Request relating to Personal Data in its control or possession, it shall promptly (and in any event within 5 days): (a) provide the other party with all information relating to the Data Subject Request; (b) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of Personal Data and the rights of the relevant Data Subject; and (c) provide any assistance reasonable requested by such party to take such steps.
- Personal Data Each party agrees to notify the other party without undue delay after becoming aware of the Personal Data Breach and to take reasonable steps to mitigate the impact of any Personal Data Breach that may impact the other party. To the extent a party seeks the assistance of the other party related to the investigation of a Personal Data Breach, the other party shall reasonably cooperate with such requesting party to: (a) determine the scope and severity of the Personal Data Breach; and (b) provide timely information and cooperation as the requesting party may require to fulfill the requesting party’s reporting and notification obligations under Data Protection Laws. Unless such party is required to give notice to individuals under Data Protection Laws, such party shall not give notice to individuals in respect to a Personal Data Breach, except with the prior written approval of the other party.
- Data Protection Impact Assessment and Prior To the extent that a party considers that the Processing of Personal Data requires a data protection impact assessment to be undertaken or requires assistance with any prior consultations to any applicable Supervisory Authority, following written request from such party, the other party shall use reasonable commercial efforts to provide relevant information and assistance to the requesting party to fulfil such request.
- Deletion or Return of Personal Data. Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement, or at any time following the other party’s request, each party shall, at the other party’s option, delete or return all Personal Data and all copies to the other party.
- Relevant Records and Audit Each party shall make available to the other party on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by the requesting party of any premises where the Processing of Personal Data takes place in order to assess compliance with this Addendum. The parties shall reasonably cooperate in respect of any such audit in compliance with the obligations under this Addendum. The party that receives such request shall promptly inform the requesting party if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations. The requesting party agrees that: (a) audits may only occur during normal business hours, and where possible only after reasonable notice (not less than 20 days’ advance written notice); (b) audits will be conducted in a manner that does not have any adverse impact on the other party’s normal business operations; and (c) the audit will comply with standard safety, confidentiality, and security procedures of the other party.
- International Data Transfer. In the event that either party initiates a Restricted Transfer of Personal Data, the parties shall enter into the Standard Contractual Clauses which terms shall take precedence over those in this Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer or Personal Data to an entity located outside the EEA, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (a) the data exporter becoming a party to them; (b) the data importer becoming a party to them; and (c) commencement of the relevant Restricted Transfer.
- Warranties and Indemnity. Each party represents and warrants that it will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data. Each party (an “Indemnifying Party”) shall defend (through its own counsel), indemnify and hold harmless the other and the other’s officers, directors, employees, agents, representatives, service providers and affiliates (an “Indemnified Party”) from and against all liabilities, damages, losses, costs and expenses, including attorneys’ fees and other legal expenses (“Losses”), arising directly or indirectly from or in connection with any claims, actions or proceedings involving any alleged breach by the Indemnifying Party of its representations and warranties contained herein. In any defense with respect to any matter covered by this paragraph, the Indemnified Party may participate with counsel of its own choosing at its expense and the Indemnifying Party will not agree to any settlement which imposes any obligation or liability on the Indemnified Party without such Indemnified Party’s prior written consent, (such consent not to be unreasonably withheld or delayed). Each party shall promptly inform the other of any third party claims, actions, or proceedings to which it becomes aware that involves the other party as a result of this Addendum.
- LiabilityThe liability of the parties under or in connection with this Addendum will be subject to the exclusions and limitations of liability in the Agreement.
- General Terms. Any obligation imposed under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Adde This Addendum shall be governed by the governing law of the Agreement. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (a) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (b) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.
Last Updated: February 2, 2021