1) PARTIES
The purpose of this document is to memorialise the terms (the “Terms“) by which MobVision’s Mobile Advertising Solution – Adultmoda or its subsidiaries (“Adultmoda“) and the (“Advertiser“) have agreed to work together (the “Agreement“).
2) AGREEMENT DETAILS
This Agreement is non-exclusive, meaning that the Advertiser can use other ad networks in conjunction with Adultmoda.
3) DATE (“Effective Date“)
The Effective Date is the date you are activated as an Advertiser.
4) DEFINITIONS
Impressions (“CPM“)
Adultmoda offers advertisers the ability to pay on a cost-per-thousand (“CPM“) structure. Ad views are aggregated on into groups of one thousand impressions and payments are calculated for each one thousand ads shown.
Click-through (“CPC“)
Adultmoda offers advertisers the ability to pay on the cost-per-click (“CPC“) basis. A click is counted when a visitor to a Publisher’s WAP site clicks on an Ad.
Ads (“Ad, Ads“)
Refers to all ads that are served onto Publisher’s WAP sites – including, but not limited to, text links and banners.
WAP Site(s) (“WAP Site(s)“)
Refers to all WAP sites, mobile internet sites, mobile web sites, and mobile applications which are publishing Adultmoda ads.
Publisher(s)
Refers to the companies that are running Adultmoda ads on their mobile internet sites using the Adultmoda mobile advertising solution.
Network
Refers to the Adultmoda mobile advertising solution.
ROI
Return On Investment.
Rate card
Current CPC and CPM rates at which bookings can be made.
5) TERMS
(5.1) Adultmoda reserves the right to refuse service to any new or existing Advertiser for any reason, in its sole discretion. Adultmoda shall have absolute discretion as to whether or not it accepts a particular customer or site for participation in the Adultmoda ad Network.
Your registration with Adultmoda indicates you understand and accept these Terms. Any companies you resell to, agencies, partners, and affiliates using your Adultmoda account are your responsibility and are bound by these terms.
(5.2) Your Ads and Content/Services
(5.2.1) Your Ads: You are solely responsible for your advertising image creation, advertising text and for the content of all ads and ensuring their accuracy, even for those ads generated by your customers, affiliates, or partners. You agree Adultmoda is not responsible for anything whatsoever regarding your ads. You warrant that you are authorised to advertise these items/products/services/brands yourself, and on behalf of your customers or partners.
Adultmoda DOES NOT accept ads that contain, or promotion of content/services that contain anything which is, or can be construed as: (i) morally questionable, (ii) illegal, (iii) illegal drugs promotion, (iv) racism, (v) provocative political, (vi) provocative religious, (vii) malware or virus, (viii) fraudulent or suspicious, (viiii) not in line with the regulations as set by PhonepayPlus.
Your Ad Campaigns and Targeting: You are solely responsible for the setting up of your ad campaigns on Adultmoda. The targeting set on your campaigns is solely your responsibility. Adultmoda accepts no responsibility for ad campaigns that deliver incorrectly because targeting was set incorrectly.
You are solely responsible for using the correct destination URLs for your Ads.
Adultmoda has no obligation to review the Ads, your targeting, or your destination URL.
(5.2.2) Your Site/Content/Services:
Adultmoda is not responsible for anything regarding the wap sites and landing pages you link through to, or services/products/brands that you are advertising. Adultmoda has no obligation to review your WAP site(s), Content/Services, or billing methods.
You agree you are solely responsible for your WAP site(s), billing, product(s), and/or service(s) advertised using Adultmoda.
You agree you are solely responsible for age verification for your WAP site(s) and Content/Services.
You agree that you are solely responsible for, and adhere to, the regulations, guidelines, and policies relating to advertising, promoting, and selling adult or gaming content in the countries you target with your advertising.
(5.3) Bookings and Payment
(5.3.1) You understand that all advertising must be paid in advance. Funds will not be allocated to your Adultmoda account until payment has cleared into our bank account. Advertiser is responsible for all payments transaction charges including bank charges and Credit Card charges. CPC and CPM charges are exclusive of VAT/taxes.
(5.3.2) Adultmoda may change its rates at any time without prior notice. All current bookings will be honoured at the rate they were booked unless agreed in writing with Adultmoda. You will receive an invoice with details of your booking.
(5.3.3) Allocating your Funds: You understand you can move funds between campaigns and that the CPC/CPM rate will be set at the current rate card at the time you move the funds, unless identified on the invoice.
(5.3.4) Adultmoda reserves the right to set and negotiate specific payment terms and rates on a customer-by-customer basis.
(5.3.5) Adultmoda may, at its sole discretion, offer payment terms. If you are offered such payment terms all invoices must be paid on time. You agree that all your ad campaigns will be paused by Adultmoda if payment is not received on time, and they will remain paused until payment is received and cleared. You will also be liable to 2.5% interest per day for late payments. This will be deducted from your Adultmoda account balance.
(5.4) Statistics
Adultmoda owns all data collected by or through Adultmoda’s code and/or any or all reports, results, and/or information created, compiled, analysed and/or derived by Adultmoda from such data (collectively, “Data“). All Data shall be deemed Adultmoda’s Confidential Information. Any use by Advertiser of such Data shall be only as expressly permitted in this Agreement and in strict compliance with Adultmoda’s confidentiality policy. Certain Data is presented to Advertiser within their Adultmoda statistics interface. Adultmoda’s technology and systems will be the official counter for determining delivery of clicks or impressions for each campaign. No other measurements or statistics of any kind shall be accepted by Adultmoda or have any effect under this Agreement. You accept Adultmoda’s impression and click count as final. Whilst Adultmoda makes every effort to keep statistics error free, the Advertiser acknowledges that Adultmoda does not guarantee the statistics will be error free all of the time. If Adultmoda discovers a fault then Adultmoda will provide Advertiser with an explanation and an adjustment as the case may be. In the event Advertiser disagrees with any such calculation, Advertiser shall submit a support ticket immediately to Adultmoda, detailing, with reasonable specificity, Advertiser’s objections to calculations. Thereafter, Adultmoda will provide Advertiser with further explanation or, if such calculations are determined by Adultmoda to be incorrect, an adjustment, of the numbers with explanation or adjustment, as the case may be. This shall be final and binding. In the event that no adjustment is necessary, Advertiser shall reimburse Adultmoda for its expenses in responding to Advertiser’s requests under this section.
(5.5) Publishers
(5.5.1) Advertiser understands that Adultmoda operates as a blind network and does not disclose the names or URLs of the Publishers in the Network.
(5.5.2) Publishers may remove or reject advertisements at their discretion.
(5.5.3) Advertisements placed on the Network may be subject to additional terms and conditions as are imposed by Publishers.
(5.5.4) You understand and agree that Publishers make no guarantee of traffic levels and only offer inventory figures as a guide.
(5.6) Cancelation and Termination.
(5.6.1) If you have no funds remaining in your Adultmoda account balance you may cancel this Agreement at any time by submitting a support ticket.
(5.6.2) If you have funds remaining in your Adultmoda account balance you may cancel any ad booking by submitting a support ticket. You will receive a refund for unused funds. No refund will be made for clicks or impressions already delivered. The refund will be by bank transfer. You understand that the refund will incur an admin fee of £25 and you also understand you are liable to pay for all bank charges associated with the refund.
(5.6.3) You may pause a campaign at any time.
(5.6.4) You may stop a campaign at any time and allocate your funds to other Adultmoda campaigns.
(5.6.5) Adultmoda may at any time, at its sole discretion, terminate your campaign, terminate this agreement, or cancel any ad campaign. Adultmoda will notify you via email of any such termination or cancellation, which shall be effective immediately. You will receive a refund for un-used funds. No refund will be made for clicks or impressions already delivered.
(5.7) Traffic Limitations
(5.7.1) Advertiser understands and agrees that from time to time the Adultmoda services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Adultmoda may undertake from time to time; or (iii) causes beyond the control of Adultmoda or which are not reasonably foreseeable by Adultmoda, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of WAP sites or interfaces, network congestion or other failures. While Adultmoda will attempt to provide the services on a continuous basis, Advertiser acknowledges and agrees that Adultmoda gives no guarantee of the availability of the services on a continuous or uninterrupted basis. Terms of this agreement are subject to Adultmoda hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.
(5.7.1) Advertiser understands that inventory levels may change depending on market conditions and booking at a certain rate does not guarantee a certain level of inventory.
(5.7.1) Adultmoda makes no guarantee regarding the levels of impressions or clicks that are available to you, nor any guarantee of the length of time it may take to deliver your campaigns. If you have been given such figures before running a campaign you understand that they are offered merely as a guide.
(5.7.1) Adultmoda makes no guarantee that any targeting set will work in every case or that the campaigns will start or finish on exactly the times required. Adultmoda will not be held responsible for any mis-placed ads, or targeting which goes a miss. Targeting and timings for campaigns are done on a ‘best effort’ basis.
(5.7.1) Adultmoda does not guarantee the quality of the click throughs or impressions. You agree to not hold Adultmoda responsible for a poor ROI or conversion rate from your click throughs, and there will be no refunds issued in such a case.
(5.7.1) Advertiser agrees that all capping and auto top-up of campaigns is on a ‘best effort’ basis. Adultmoda will not be held responsible for capping which over runs.
6. GENERAL
(6.1) Representations and Warranties: Advertiser represents and warrants that the content/services advertised, the ads, and destination URLs: (1) are owned by or licensed to Advertiser; (2) do not violate any law, statute, ordinance, treaty or regulation; (3) do not infringe in any manner on any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (4) do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (5) are not false, deceptive or misleading; (6) are not defamatory, libellous, slanderous or threatening; and (7) are free of viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, spyware and other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system, data or personal information. Advertiser also represents, warrants and covenants that: (i) Advertiser has the power and authority to enter into and perform its obligations under this Agreement; (ii) Advertiser shall not be in violation of any obligation, contract or agreement by entering into this Agreement, by performing its obligations hereunder or by authorising and permitting Adultmoda to perform the services hereunder; (iii) Advertiser shall comply with all of the terms and conditions of this Agreement, as amended from time to time; (iv) all information provided by Advertiser to Adultmoda, posted on the ads and their WAP sites by Advertiser is truthful, accurate and complete, and is not misleading in any way; (v) Adultmoda is hereby authorised by Advertiser to perform all the services described hereunder with respect to Advertiser. Advertiser grants Adultmoda and the Publisher the right to transmit the Ads to the WAP sites.
(6.2) Applicability: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any rights not expressly granted in this Agreement are reserved by Adultmoda, and all implied licenses are disclaimed. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. Adultmoda reserves the rights to amend any part of this Agreement, at any time.
(6.3) PR and Marketing: No press releases; promotional or merchandising materials; or general public announcements shall be made without the mutual consent of both Parties.
(6.4) Remedy: If any Advertiser violates or refuses to partake in their responsibilities, or commits fraudulent activity against Adultmoda, Adultmoda reserves the right to take appropriate legal action to cover its damages.
(6.5) Assignment: No rights or obligations under this Agreement may be assigned by Advertiser or Adultmoda without the prior written consent of the other Party.
(6.6) Ability to Enter into Agreement: By executing this Agreement, Advertiser warrants that Advertiser (or Authorised Representative of Advertiser) is at least 18 years of age, and that there is no legal reason that Advertiser cannot enter into this binding Agreement.
(6.7) Confidentiality: Each party agrees not to disclose Confidential Information of the other party without prior written consent except as provided herein. “Confidential Information“ includes (i) ads, prior to publication, (ii) submissions or modifications relating to any advertising campaign, (iii) click through rates or other statistics, (iv) all commercial information about campaigns, (v) any technical information, (v) any information about Adultmoda and MobVision (vi) any other information designated in writing as “Confidential.“ It does not include information that has become publicly known through no breach by a party, or has been (i) independently developed without access to the other party’s Confidential Information; (ii) rightfully received from a third party; or (iii) required to be disclosed by law or by a governmental authority.
(6.8) Non-Circumvention: During the term of this Agreement and for a period of six months beginning on the end date of the Campaign, Advertiser agrees that it will not contract with, solicit, recruit or encourage, directly or indirectly, any Publisher that is known by Advertiser to be an Adultmoda Publisher, or Wap site affiliate, for purposes of providing Advertisements directly through such Publisher.
During the term of this Agreement and for a period of six months beginning on the end date of the Campaign, Advertiser may not contact Adultmoda’s affiliates, clients, partners, staff or contractors directly or indirectly (e.g. through an advertising agency or other similar competing advertising network) to solicit the business of said affiliates, clients, partners, staff or contractors.
If an Adultmoda Publisher, who is currently publishing, or has previously published, an Adultmoda ad campaign, approaches Advertiser directly with regards to mobile advertising, the Advertiser must refuse to work directly with them, and refer the Publisher back to Adultmoda unless agreed otherwise in writing with Adultmoda.
In the event of the circumvention, directly or indirectly, Adultmoda shall be entitled to a legal monetary compensation equal to the maximum fee it should have realised, for a six month period, from such a transaction plus any and all expenses, including legal fees, incurred to enforce this provision for a period of six months.
(6.9) Relationship of Parties: This Agreement does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency among the parties, and the parties hereby acknowledge that no other facts of relations exist that would constitute, create, or give to effect any such relationship between them.
(6.10) Notices: Except as expressly set forth herein, any notices to be given by pursuant to this Agreement shall be in writing and sent by Adultmoda support ticket. The receipt of such notice shall constitute the giving of notice thereof. Any notice to be given to Advertiser pursuant to this Agreement may be sent by email to Advertiser’s email address as identified in Advertiser’s account information. The sending of such notice shall constitute the giving of notice thereof.
(6.11) Damages: In no event shall either party be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, loss of use, or loss of profits arising there under or from the provision of services.
(6.12) Waiver: No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
(6.13) Indemnification: Both parties will at all times indemnify and hold harmless the other Party from and against any and all losses arising out of any breach of any representation, warranty or obligation hereunder, or any alleged breach of any representation, warranty or obligation to any other party.
(6.14) Severability: If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity of any or all of the remaining portions thereof.
(6.15) Legal Fees: If any action in law or in equity is necessary to enforce this Agreement, the prevailing party will be entitled to reasonable legal fees and costs and expenses in addition to any other relief to which such party may be entitled.
(6.16) Force Majeure: Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party.
(6.17) Limitation of Liability
Adultmoda SHALL NOT HAVE ANY LIABILITY TO THE ADVERTISER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT Adultmoda’S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE VALUE OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION.
(6.18) Governing Law: This Agreement will be governed by and construed under the laws of England and Wales without regard to the conflicts of law provisions thereof. Any action relating to this Agreement must be brought in the courts located in England and Wales and Advertiser irrevocably consents to the jurisdiction of such courts.
