Dated December 1st 2017
These Terms and Conditions for Advertisers (“Advertiser Terms”) are between Chartboost, Inc., (hereinafter referred to as/doing business as “Chartboost Influence”) and the advertising partner (hereinafter referred to as “Advertiser”).
Chartboost Influence operates a marketplace on https://app.chartboost.tv/ (hereinafter referred to as “the Chartboost Influence Network” or “the Chartboost Influence Platform”), which provides quality influencer marketing campaigns and related services (hereinafter “the Chartboost Influence Services”) for Chartboost Influence’s advertising partners.
The Chartboost Influence Platform allows Advertisers to market their personal computer (“PC”) , online or mobile games and game services (hereinafter referred to as “Advertiser’s Services”) on Influencer Channels (as defined below) through Creators (as defined below), which participate in the campaigns set up by the Advertiser, in accordance with the provisions of these Advertiser Terms and the respective Insertion Order (“IO”) and/or Line of Credit (“LOC”), which are incorporated into these Advertiser Terms. Collectively, these Advertiser Terms and the IOs and LOCs are referred to as the “Agreement.”
After successful registration on the Chartboost Influence Platform, the Creator(s) may incorporate or fully produce sponsored content (“Video Ad”, as further defined below) into the Creator Channel (as defined below), which then may result into a payment for an Action (as also defined below) according to the Agreement.
“Action” means a posted video, view, click, install, lead, sale, defined as a payment trigger as set forth in this Agreement;
“Video Ad” means the sponsored content inserted in the Creator Channel or the video itself in cases where it’s a fully dedicated video. The parties understand and agree that Creator(s) is the sole owner of any and all intellectual property rights associated with the Video Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Video Ads ( “Advertiser Video Ads Content”).
“Advertiser Media” – means the Advertiser´s Services and any website related thereto (landing page or app page in an app store), accessed by a User through the tracking URL on the Video Ad;
“Campaign” means the marketing campaign specified in an IO, which consists of the Video Ad that is distributed by the Creator on a Creator Channel;
“Campaign Terms” means any additional terms and conditions as agreed with the Creator as well as the Advertiser for a Campaign, such as start and end dates of a campaign, targeted countries, pricing model, campaign budget (cap), pay-out, as well as (traffic) restrictions, to be either imposed by Chartboost Influence as participation condition for a Campaign as set forth in a written and signed IO or LOC between Chartboost Influence and the Advertiser;
“Chartboost Influence Services” means the technical processing of the Campaign(s), which may include tracking, creating statistics, administration of advertiser ads, the administration of Creators as well as billing and payments through Chartboost Influence and / or Chartboost Influence´s agents and / or third party contractors; “Creator” means the person or group that produces and publishes Video Ads on Creator Channel.
“Creator Channel” means the advertising environment of Creator, which is owned or controlled by the Creator, including, but not limited to, video channels, websites, mobile sites, social media profiles, email newsletters, software, mobile applications for smartphones, tablets and other suitable devices;
“Intellectual Property Rights” means, all rights in, to, and under copyrights, trademarks, service marks, trade dress, patents, trade secret rights and any other similar rights of any type under the laws of any country or other governmental authority, including without limitation, all applications and registrations relating to the foregoing; “Pay (Cost) -per-install” means compensation for a successful installation of an app from an app store by a User of Advertiser’s Services (e.g. a mobile app), directed through the Video Ads on the Creator Channel;
“Pay (Cost) -per-view” means compensation per unique view by Users of the Video Ads on the Creator Channel.
“Flat fee” means compensation per unique Video Ad produced by Creator as set out in the Campaign Terms;
“Pay-outs” means the specific remuneration set out in the applicable Campaign Terms and / or elsewhere in the Agreement;
“User” means a natural person.
2. Scope of the Agreement
- During registration on the Chartboost Influence Network, Advertiser must create a unique password-protected account and provide the information requested by Chartboost Influence, fully and accurately (hereinafter “Account”).
- Advertiser shall be solely responsible for safeguarding and maintaining the confidentiality of its Account. Advertiser shall remain fully and solely responsible for any and all actions taken under its Account, whether authorized by Advertiser or not. Advertiser shall immediately inform Chartboost Influence of any unauthorized use of its Account.
- Advertiser shall be responsible for keeping its Account information current, complete and accurate. Chartboost Influence shall not be responsible or liable for any information or notice not delivered to Advertiser as a result of inaccurate account information.
- Chartboost Influence will provide the Chartboost Influence Services and any other services for any Advertiser solely as set forth in the Agreement.
- If the Advertiser is an advertising agency, a media buyer or any other media or advertising intermediary acting on behalf of another advertiser (hereinafter “the Client”), then the Advertiser shall make sure that the terms of the Agreement are also imposed on its Client and the Advertiser shall bear full responsibility to comply with the terms and conditions of the Agreement, regardless of any fault of the Client. The Advertiser shall in any case remain fully and solely reliable for any payments due to Chartboost Influence. In case of doubt, any reference to the Advertiser shall refer to the Advertiser as well as to the Client.
3. Chartboost Influence Services
- Chartboost Influence may assist and support the Advertiser in the creation and / or development of Video Ads, including, but not limited to, mediating between the Advertiser and Creator(s), subject to such assistance and support being set forth in the IO or a separate written and executed agreement between the Advertiser and Chartboost Influence.
- Chartboost Influence reserves the right, in its sole discretion, to modify, update, maintain or suspend the Chartboost Influence Network and/or the Chartboost Influence Platform (“Technical Measures”). Chartboost Influence will use reasonable efforts to notify the Advertiser at least 48 hours in advance of any Technical Measures that have a material impact on the Chartboost Influence Services provided to Advertiser. The Advertiser acknowledges that accessing and usage of the Chartboost Influence Network may be impossible or limited for the duration of the Technical Measures.
- The positioning, placement, frequency and other editorial decisions related to the Video Ads will be in accordance with the applicable Campaign Terms and shall be made by Chartboost Influence, in its sole discretion, unless otherwise agreed in the applicable IO Before the Video Ad is placed on the Creator Channel, the Advertiser may request Chartboost Influence and the Creator to make changes if the Advertiser reasonably believes that the current position of the Advertiser Ads will damage the Advertiser´s and the Advertiser´s Services reputation . Chartboost Influence shall not be liable to Advertiser for any claims against Chartboost Influence based on such movement or reposition.
4. Obligations of the Advertiser; Video Ads
- The Advertiser agrees that it is the legitimate and legal owner of the product or service that is being promoted on the Video Ad. The Advertiser must (a) be the sole owner of any Intellectual Property Rights with respect to such products or services; or (b) have full rights and license from the relevant Client to promote the products and services of such Client.
- The Advertiser shall spend the full Campaign budget set forth in the Campaign Terms, IO or LOC after they approve a Creator offer and the Creator has started production of the Video Ad.
- Chartboost Influence reserves the right to reject, omit, exclude or terminate any Video Ad for any reason at any time, with subsequent written notice (email shall be sufficient) to such Advertiser, whether or not such Video Ad was previously used.
- The testing of tracking pixels, -links or any other mechanism(s) (hereinafter referred to as “Tracking Measurements”) for observing and recording the performance of a Campaign will be the responsibility of the Advertiser.
- The Advertiser may provide general guidelines to the Creator(s) in relation to a campaign, provided that such guidelines do not conflict with the Agreement and / or applicable law. Any such guidelines must be stated in the Campaign Terms.
- Without limiting Section 3(3) above, Chartboost Influence may reject any Video Ad that is not in accordance with the Agreement and the applicable law, including but not limited to FTC regulations. The Advertiser may ask for edits on the Video Ad within a period of three (3) days after the Creator submits the Video Ad to Chartboost Influence, provided, however, Advertiser shall be responsible for any Pay-outs owed prior to or following such edits.
- The Advertiser hereby grants to Chartboost Influence a non-exclusive, worldwide, royalty-free, sub-licensable, transferable license to use, perform, reproduce, display, transmit, modify, copy and distribute the Video Ads in accordance with the Agreement.
5. Validation of Actions
- Unless otherwise agreed in an IO, the Advertiser´s Tracking Measurements shall be the system used to track applicable actions and to calculate Chartboost Influence´s remuneration under this Agreement. However, if Advertiser’s Tracking Measurement tracked numbers deviate from Chartboost Influence’s tracked numbers, Chartboost Influence has the right to audit the Advertiser’s numbers. The Advertiser shall therefore, at all times, during the term of the Agreement and for a period of three months thereafter, upon Chartboost Influence’s request grant Chartboost Influence access to the Advertiser’s Tracking Measurements system and relevant reports.
- All Actions shall be deemed irrevocably confirmed or cancelled no later than ten (10) days following the end of the month and thus be finally payable to Chartboost Influence as set out in the Agreement. Such time period between the date of the Action and such date is the “Validation Period”. If the Advertiser does not reasonably object to an Action within the Validation Period, such Action shall be deemed validated.
- To cancel an Action, the Advertiser must provide objective evidence that such Action is invalid. The Advertiser shall furnish Chartboost Influence with all relevant information and / or documentation, including, but not limited to, business records, and log files as well as any objections it may have on the Actions it has not validated, in order to allow Chartboost Influence to review if the invalidation by the Advertiser was complete and accurate. If the information provided is accurate and complete and objectively demonstrates that an Action is invalid, Chartboost Influence shall classify the relevant Action as cancelled. However, Chartboost Influence reserves the right to audit the given information during normal business hours of the Advertiser in order to review its classification at a later stage and subsequently reclassify the Action as valid if evidence demonstrates that such Action was valid.
- An Action shall be considered as being invalid, if it is generated automatically by a technical device and / or software (e.g. robot, spider, script).
- The Advertiser agrees to pay for the Chartboost Influence Services identified and set forth in the Agreement.
- Unless otherwise agreed in the applicable IO, the payment to Chartboost Influence shall be based on the Pay-outs for Actions and shall be due upon receipt.
- Chartboost Influence will invoice Advertiser for the full amount of the Campaign budget following execution of the applicable IO. All invoices may be submitted to the Advertiser electronically.
- The Advertiser shall pay to Chartboost Influence any applicable tax with respect to the Chartboost Influence Services. The Advertiser shall bear any and all banking fees related to payments by the Advertiser to Chartboost Influence.
- Unless otherwise agreed in the applicable IO, all payments to Chartboost Influence shall be made in US Dollars.
- Chartboost Influence may require Advertisers to pay sufficient amounts in advance for any particular Campaign(s) and/or provide evidence of Advertiser’s solvency and ability to pay.
7. Warranties, Indemnification, Disclaimer
- The Advertiser represents and warrants that
- it has the full power and authority to enter into and perform its obligations under the Agreement during its duration and shall comply with all applicable laws;
- With respect to Advertiser’s Services and Video Ads purchased by Advertiser:
- a. the Advertiser Video Ads Content and the Advertiser Services will comply with all applicable laws;
- b. no Advertiser Video Ads Content and / or Advertiser Services infringe Intellectual Property Rights of third parties, nor will the Advertiser induce Chartboost Influence and / or any Creator to infringe such rights by any means;
- c. the Advertiser Video Ads Content and Advertiser Services do not contain any falsehoods or misrepresentations or any content that is defamatory, violent, obscene, offensive (including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexual suggestive), promotes or supports illegal gambling or sweepstakes or contests or contains any “worm”, “virus”, “Trojan horse” or other code which could impair or injure any hardware, software, person or entity;
- d. The Advertiser Video Ads Content shall comply with the Federal Trade Commission (“FTC”) Guidelines (the “FTC Guidelines”) and the sponsorship disclosure best practices of Chartboost Influence set forth at https://answers.chartboost.com/en-us/articles/115001489534.
Advertiser shall indemnify Chartboost Influence from any and all third party claims arising out of Advertiser’s breach of any of the foregoing representations or warranties.
8. Limitation of Liability
- NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE ONLINE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY.
- Chartboost Influence’s total cumulative liability to Advertiser for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed the net amount paid by Advertiser to Chartboost Influence in the six month period immediately preceding the date of the claim.
9. Confidentiality, Publicity, and Data Use
- Each party agrees not to (a) use the other party’s Confidential Information for any purpose other than as permitted under this Agreement and (b) disclose the other party’s Confidential Information without the other partyʼs prior written consent. “Confidential Information” includes without limitation: (a) all software, technology, programming, specifications, materials, guidelines and documentation relating to the Chartboost Influence Network, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (b) any statistics relating to the performance of the Chartboost Influence Network; (c) any other information designated in writing by either party as “Confidential” or an equivalent designation; and (d) information disclosed under circumstances that a reasonable person should know such information is confidential. The foregoing restrictions in the paragraph do not apply to Confidential Information that has become publicly known through no breach by the receiving party, or information that has been (i) independently developed without access to the disclosing party’s Confidential Information as evidenced in writing; (ii) rightfully received by the receiving party from a third party; or (iii) required to be disclosed by law or by a governmental authority.
- Neither party will use the other party’s name and logo in any news release, public announcement, advertisement, or other form of publicity without the prior written consent of the other party (which includes email), except that either party may use the other party’s name and logo on such party’s website and in publicity that announces the parties are working together. In addition, Chartboost Influence may use any content used with the Chartboost Influence Network in any form of publicity.
10. Term and Termination
- The Agreement shall start on the date the Advertiser accesses the Chartboost Influence Services on the Chartboost Influence Platform (the “Effective Date”) and shall continue for an indefinite term, if not explicitly agreed otherwise in an IO.
- Either party may terminate the Agreement for convenience upon forty-eight (48) hours prior written notice to the other party.
- Upon termination of the Agreement for any reason whatsoever, or expiration of the Agreement, the Advertiser shall pay Chartboost Influence immediately all outstanding unpaid invoices and all amounts then due and owing as of the termination date and all outstanding IOs and LOCs will be terminated.
- The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Chartboost Influence acts as a limited agent of Advertiser for the sole purpose of performing the services set forth in applicable IO(s).
- This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof. Any claims, legal proceeding or litigation arising in connection with the Agreement will be brought solely in San Francisco County, California, and Advertiser consents to the jurisdiction of such courts.
- Neither partyʼs waiver of any default is a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the partiesʼ intention, and remaining provisions of the Agreement will remain in full effect.
- This Agreement shall not be modified except by Chartboost Influence posting modifications to this Agreement on this site or otherwise notifying Advertiser of such modifications in writing via the Chartboost Influence Network or otherwise. Any such modifications will become effective ten (10) days after such notice is given.
- Advertiser shall not assign any of its rights hereunder and any such attempt is void (except to Advertiser’s successor in the event of Advertiser’s merger, acquisition or sale of all or substantially all of Advertiser’s assets).
- Notwithstanding termination of this Agreement, the terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder shall survive and continue in effect.
- This Agreement shall be executed in the English language. If there is any discrepancy between the provisions of the English and another other language version of this Agreement, the provisions of the English version shall prevail and be used in interpreting this Agreement in all cases, and the provisions of any other language version shall not affect the interpretation of this Agreement.