DCYPHER MEDIA B.V.
Having its registered office at the Science Park Eindhoven, Ekkersrijt 5001, 5692 EB Son en Breugel, The Netherlands
Registered with the Chamber of Commerce under number 65032969
Article 1. Definitions
- Ad(s) or Advertisement(s): text-based, graphical, interactive, rich media and video, or other online advertisements, including, without limitation, banners, buttons, towers, skyscrapers, pop-ups, pop-unders and video advertisements or similar.
- Advertiser: the natural person or legal entity that has decided to enter into this Agreement and that has decided to assign DCypher Media B.V. to provide the Services in accordance with the provisions of this Agreement.
- Agreement: this terms and conditions agreement entered into by DCypher Media B.V. and Advertiser, arranging all contractual matters between the Parties.
- Campaign: an Advertisement campaign as defined by the Advertiser.
- CPA: cost per action
- CPC: cost per click
- CPI: cost per install
- CPL: cost per lead
- CPM: cost per mille
- DCypher Media: the company providing the Service(s) as Publisher to the Advertiser and counterparty to the Agreement with Advertiser and user of these terms and conditions within the meaning of article 6:231 under b of the Dutch Civil Code.
- Effective Date: the date of signature of this Agreement.
- Insertion Order (“IO”): an order granted to DCypher Media by Advertiser on the basis of which DCypher Media will place an Ad via the Service and which arranges the specification of the Services and is part of the Agreement.
- Party: Advertiser or DCypher Media.
- Parties: Advertiser and DCypher Media jointly.
- Personal Data: personal data as defined in the Data Protection Act 1998 (based on and implements the EC Directive (95/46/EC) on data protection), which may be accessed, processed or created as part of the Services.
- Services: all by DCypher Media, in accordance with the terms of the Insertion Order, executed consulting, advertising published by DCypher Media, other payable events, its assignments, publishers and/or affiliates, whether on an hourly, sponsorship, CPM, CPI, CPC, CPL or CPA basis.
- Tracking Method: the reporting and/or tracking procedures currently used by DCypher Media to measure traffic, performance and related data.
- User Activities: activities of end users applying the incentive mechanism and/or all other activities relevant for the payment arrangement under this Agreement and/or an Insertion Order subject to this Agreement.
Article 2. General
- The present terms and conditions are applicable to any and all offers, Agreements and Service of DCypher Media with an Advertiser, of whatever nature, unless this applicability is fully or partly expressly excluded in writing and/or unless expressly stipulated otherwise.
- This Agreement concerns the rights and obligations of each Party with respect to the Services agreed between the Parties via an Insertion Order sent by Advertiser and agreed on by DCypher Media. Advertiser understands that the sole obligation of DCypher Media is to execute the Services. The Effective Date of these terms and conditions is the date set forth in the Agreement. These terms and conditions will remain effective until both Parties agree otherwise in writing.
- Should one or more provisions of the present terms and conditions or of any other Agreement concluded with DCypher Media be in breach of a mandatory statutory provision or any applicable legal provision then the relevant provision shall expire and shall be replaced by a new, legally permissible and comparable provision to be established by DCypher Media.
- Advertiser with whom the present terms and conditions were contracted once is deemed to implicitly agree with the applicability of these terms and conditions to an Agreement concluded with DCypher Media at a later date.
- In case of a discrepancy between the content of an Agreement concluded by and between Advertiser and DCypher Media and the present terms and conditions the content of the Agreement shall prevail.
Article 3. Services
- DCypher Media shall carry out on behalf of Advertiser the Services as defined in the Insertion Order.
- DCypher Media does not guarantee: (i) the placement, positioning or the timing of delivery of any Ad, or (ii) the number (if any) of impressions, publications, conversions or clicks on any Ad in respect of the Services.
Article 4. Obligations of the Parties
- DCypher Media must comply with the Insertion Order, including all advertising placement restrictions and requirements, to create a reasonably balanced delivery schedule and provide the Services within the scope of the Insertion Order. Any exception must be approved by Advertiser in writing.
- DCypher Media is responsible for displaying and administrating all active Campaigns and, except as otherwise provided herein, tracking and calculating associated Campaign payments owed to DCypher Media. Except as otherwise provided herein, DCypher Media shall compile, calculate and electronically deliver data to the Advertiser regarding the Campaign including but not limited to, the applicable spend/costs of the Campaign.
- DCypher Media represents and warrants having all necessary permits, licenses, and clearances to place the Advertiser’s ads and links on its’ sites and on its’ affiliates sites and to sell the inventory represented in the Insertion Order subject to this terms and conditions.
- Advertiser represents and warrants having all necessary intellectual property rights, licenses and clearances to use the content contained in its Ads and advertising materials and accepts and acknowledges the full responsibility in the event that the Ads and/or Advertising Materials in a Campaign would be deemed illegal in any jurisdiction.
- DCypher Media will allocate all its resources to deliver the highest quality services to Advertiser, however, can at any moment or period, not guarantee non-occurrences of fraudulent traffic and/or re-brokering and/or underscoring of requested performances. Parties will closely and diligently work together to maximize the results of the Services, whilst not adversely affecting the subject campaign’s execution, payments and activities.
- Advertiser will be solely responsible for creating, managing, editing, reviewing, cancelling and otherwise controlling the advertising banners, display creatives, text advertisements and other materials issued to DCypher Media. DCypher Media agrees that it will only use the materials provided by Advertiser and no changes or alterations are permitted unless Advertiser has provided prior written approval. DCypher Media is obligated to ensure that its affiliates and third party distributors only use the creative materials approved and provided by the Advertiser.
- Ad delivery shall comply with the guidelines stated in the Insertion Order and/or that are provided separately in writing via e-mail or digital file format.
- Advertiser is fully responsible for informing DCypher Media on any KPI’s per each campaign provided to DCypher Media.
- In the event that Advertiser is violating the Insertion Order guidelines, the following rules are applicable: (i) ads that run in violation of the guidelines, if DCypher Media is notified by Advertiser of such violation within 3 business days of the violation, shall be non-billable; (ii) after Advertiser notifies DCypher Media in writing that specific Ads (placements or creative units) are in violation of the guidelines, DCypher Media will make commercially reasonable efforts to correct within forty-eight (48) hours such violation. In the event that DCypher Media cannot correct the violation within forty-eight (48) hours, Advertiser, upon conclusion of seventy-two (72) hours from the notice of such violation, may immediately cancel such IO, without penalty.
Article 5. Reporting
- Reporting will be based on the numbers of Services as shown by DCypher Media's own tracking methods, usually done by implementing a “tracking pixel” together with Advertiser or by counting the delivered impressions or clicks to the Advertiser’s Campaign(s). DCypher Media shall ensure that such “tracking pixel” does not collect personal information and that it shall not distribute or trigger any malicious software that may harm either Advertiser’s or end-users’ equipment.
- The following information must be included for all returned CPA-CPL and CPI Actions: Transactional identification number, Publisher identification number (SubID), date/time stamp, incoming IP.
- DCypher Media will provide confirmation to the Advertiser, either electronically or in writing, stating whether an advertising Campaign has been initiated and begun delivery.
- Advertiser agrees and acknowledges that all tracking of User Activities will be determined solely by the DCypher Media’s Tracking Method. The total sum of events, impressions, clicks, leads, sales, installs, conversions and revenue count is to be based solely on DCypher Media's statistics. No other measurements or statistics of any kind shall be accepted by DCypher Media or have any effect under the Agreement. Advertiser further agrees and acknowledges that the determinations of DCypher Media with respect to the Tracking Method, payments and fees are final. DCypher Media takes commercially reasonable measures to ensure that its Tracking Method at any point shall meet technical industry standards, but it cannot guarantee the absolute accuracy of the Tracking Method. If discrepancies occur, the parties will negotiate in good faith an amiable solution, otherwise DCypher Media’s numbers will be decisive.
- Any User Activities determined by Advertiser to be “invalid” "fraudulent" or "unauthorized" shall be reported (excel reports not accepted) to DCypher Media within seven (7) days of the sale, otherwise the User Activities shall be considered valid by the Advertiser. In the event that Advertiser and DCypher Media encounter such activities, both parties agree to work diligently to resolve matters.
Article 6. Payment
- Unless otherwise stated in the Insertion Order, DCypher Media will invoice Advertiser at the end of each month for all User Activities generated by DCypher Media for the corresponding month. Unless otherwise agreed by DCypher Media , Advertiser shall transfer to Publisher the due payment in full of each invoice within thirty (30) days of receipt of DCypher Media’s invoice.
- After the expiry of the stipulated payment term the Advertiser shall be in default by operation of law without any further notice of default being required.
- As from the moment of default the Advertiser shall be liable to pay interest on the due and payable amount equal to 1% per month, unless the statutory commercial interest is higher in which instance the statutory commercial interest shall apply. As from that moment any and all judicial and extrajudicial costs that DCypher Media incurs in order to obtain satisfaction – both in and out of court – shall be at the expense of the Advertiser. In that case the Advertiser shall be liable to pay compensation equal to at least 15% of the outstanding amount with a minimum of € 150.00 (in words: one hundred and fifty euros). Should the costs actually incurred and to be incurred by DCypher Media exceed the aforementioned amount then these costs shall equally qualify for compensation.
- If the Advertiser does not comply with its payment obligations in a timely fashion then DCypher Media shall be authorized to suspend the obligations entered into vis-à-vis the Advertiser regarding delivery and/or performance of activities until the payment has been made or sufficient security has been provided for the same. The same already applies prior to the moment of default if DCypher Media may within reason assume that there are reasons to doubt the creditworthiness of the Advertiser.
- In case of liquidation, insolvency, debt management or suspension of payment of the Advertiser or a relevant application or petition the claims of DCypher Media and the obligations of the Advertiser vis-à-vis DCypher Media shall immediately fall due.
- If the Advertiser has, on any account whatsoever, one or more counterclaims vis-à-vis DCypher Media then the Advertiser waives its setoff right. Said waiver of the setoff right is also applicable if the Advertiser applies for (provisional) suspension of payment or is declared insolvent.
- Advertiser agrees that it shall be solely liable for payment to DCypher Media. Further, Advertiser represents and warrants that it will furnish payment on all undisputed invoices. For any disputed invoice, Advertiser will promptly inform DCypher Media of the good faith reason for the dispute and will pay any undisputed portion in accordance with the Agreement and the Insertion Order. The parties will cooperate in good faith to promptly resolve any disputed invoiced amounts. DCypher Media’s failure to invoice Advertiser shall not constitute the waiver of any amount due to DCypher Media by Advertiser.
Article 7. Rejection rights
- DCypher Media reserves the right within its discretion to reject or remove from its Publisher’s websites, applications and or games, any Ads that do not comply with these terms and conditions or that in DCypher Media's sole judgment, do not comply with any applicable law, regulation or other judicial or administrative order(s) from representative authorities. In addition, Publisher reserves the right within its discretion to reject or remove from its Publisher’s websites, applications and or games any Ad(s) which would bring, or may tend to bring, disparagement, ridicule, or scorn upon DCypher Media, its Publishers or any of its affiliates, developers or other business partners, or deemed otherwise inappropriate in its sole discretion.
- In the case that Publisher suspects that Advertiser’s Account has been used in an invalid or fraudulent manner or if Advertiser has provided any information that is untrue or inaccurate, not current or incomplete, the account may be deactivated effective immediately and without prior notice to the Advertiser pending further investigation and, without limiting obligations to make all the due payments in accordance with this Agreement.
- Publisher reserves sole judgment in determining invalid or fraudulent activity of the Advertiser and the Advertiser agrees to be bound by these determinations. When invalid or fraudulent activity is detected, it is the obligation of the Advertiser to prove to DCypher Media that the Advertiser and its Ad Campaign(s) have not infringed the restrictions as mentioned in this Agreement. Advertiser will not withhold any due payments to DCypher Media. Advertiser has the obligation to provide satisfactorily evidence that it has not engaged in invalid or fraudulent activity.
Article 8. New partners
Delivery of high quality services is the driver of success for all professional firms. Quality service is important to maintaining client satisfaction, delivering value for money and establishing professional reputation. DCypher Media therefore follows a meticulous client acceptance procedure as follows:
- Primary acceptance following a due diligence on the prospective partner, including company / private person background check which can include but is not limited to: financial status; all entity, location, financial and banking information; business history; legal history; online accounts. Upon primary acceptance DCypher Media collaborates with the partner up to a maximum of Euro 5,000 conditional to proven conversions and/or delivery and compliance with the present terms and conditions;
- Full acceptance upon proven partner collaboration track-record for a minimum period of three (3) calendar months without any issues. Upon full acceptance DCypher Media collaborates with the partner unlimitedly.
Article 9. No exclusivity
This Agreement shall not prevent DCypher Media from entering into similar Agreements with third parties, including other Advertisers within the same area of business as Advertiser, or from independently developing, using, selling, brokering or licensing products and/or services which are similar to those provided under this Agreement.
Article 10. Indemnification
Advertiser agrees to indemnify and hold DCypher Media, its Publishers, affiliates, subsidiaries, successors and assigns harmless for any and all claims, actions, judgments or liabilities arising out of or in connection with Advertiser's Campaign or Services for the Advertiser, any breach of this Agreement by Advertiser and/or of any representation, warranty or provisions of this Agreement and these terms and conditions.
Article 11. Limitation of liability
- The total liability of DCypher Media for any culpable failure to fulfil an Insertion Order shall remain restricted to payment of direct loss, and is then subject to a maximum amount of the price, excluding VAT, stipulated for that Insertion Order.
- DCypher Media shall not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages to Advertiser or any person (including without limitation, any payments for lost revenues, lost data, lost profits or loss of goodwill), whether foreseeable or not, for any cause whatsoever whether or not caused by DCypher Media negligence, even if DCypher Media has been pre-informed of the possibility of such loss or damages. Under no circumstances shall any projections or forecasts by DCypher Media be binding as commitments or promises by DCypher Media and/or give rise to any liability. In any case DCypher Media’s direct liability is limited to the amount of the agreed Services from the Insertion Order.
- DCypher Media does not deem itself liable for losses of whatever nature that are the result of a failure to provide support in time.
Article 12. Non-disclosure
- DCypher Media and Advertiser shall preserve as confidential all information related to the business activities of the other Party, its Publishers, affiliates, clients, and entities with whom that Party does business, that may be obtained by either side from any source, whether that information is marked as confidential or is confidential by its nature, including the Ad description and the pricing of the Ad, set forth in the Insertion Order, all trade secrets, ideas, know-how, concepts, processes, techniques, research, data, plans, materials, product development and all other information of a confidential nature (in whatever form) constitute together the “Confidential Information”.
- DCypher Media and Advertiser shall hold all Confidential Information in trust and confidence and shall not disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other person, unless specifically authorized in writing.
- DCypher Media and Advertiser shall limit access and disclosure of the Confidential Information to its personnel on a "need to know" basis only and where such personnel are aware and have agreed to comply with the confidentiality obligations set out in these terms and conditions.
- Confidential Information does not include any particular information that DCypher Media and/or Advertiser can demonstrate (i) is currently in the public domain, (ii) was previously known as to be free from any obligation (iii) was or is publicly disclosed by or on behalf of DCypher Media and/or Advertiser.
- At any time at the request and option of DCypher Media and Advertiser, both Parties agree to promptly: (i) return the Confidential Information; or (ii) destroy or permanently erase the Confidential Information (in whatever form it is recorded).
Article 13. Personal Data
If the Services include any services in relation to the processing of Personal Data, DCypher Media will comply with all relevant provisions of the Data Protection Act 1998, and: (i) process Personal Data only in accordance with the instructions of the Advertiser; (ii) take all appropriate measures to ensure that the Personal Data is kept secure and is not subject to any unauthorized processing, loss, destruction or damage; (iii) notify the Advertiser of any unauthorized or unlawful disclosure or use of Personal Data of which DCypher Media becomes aware; (iv) at the request and option of the Advertiser, promptly return or safely destroy all Personal Data in DCypher Media's possession or control.
Article 14. Term and termination
- The Agreement shall commence on the Effective Date and will continue in force until terminated as set out below in this Article 14.
- Parties may terminate the Agreement upon mutual agreement in writing at any time, providing all obligations, Services and due payments have been fulfilled.
- Advertiser may terminate this Agreement upon providing thirty (30) business days’ notice in writing to DCypher Media, however, Advertiser remains liable for all his obligations under this Agreement and for all due payments incurred prior to termination through the Services of DCypher Media.
- DCypher Media may terminate the Agreement upon providing seven (7) business days’ notice in writing, however, Advertiser remains liable for all his obligations under this Agreement and for all due payments incurred prior to termination through the Services of DCypher Media.
- If either Party is in material breach of this Agreement and such breach is not cured within five (5) business days of being notified in writing of the breach, then the other Party may immediately terminate this Agreement and have no liability for any payment related to the Services after the breach notice has been provided to the other Party.
Article 15. Execution and delivery period
- All (delivery) dates specified by DCypher Media are established to the best of its ability on the basis of information in its hands prior to entering into the Agreement.
- Any agreed or indicated delivery or execution dates are never regarded as deadlines unless expressly stipulated otherwise in the Agreement. In the event that an agreed or indicated delivery or execution period is passed, the Advertiser must therefore issue a written notice of default to DCypher Media, at the same time offering DCypher Media an opportunity to resume implementation of the Agreement within a reasonable period. DCypher Media does not accept liability in any circumstances if any delivery or execution period is exceeded.
Article 16. Assignment
- DCypher Media shall be entitled, in whole or in part, to assign its rights and obligations under this Agreement to a company within the same de jure or de facto group or companies as DCypher Media without Advertiser's prior consent.
- Advertiser shall not be entitled to assign its rights or obligations under this Agreement without DCypher Media's prior written consent.
Article 17. Force majeure
Neither Party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by circumstances outside their control (“Force Majeure Event”). A Force Majeure Event includes without limitation, fire, flood, water, the elements, acts of God, acts of war (declared or undeclared), explosions, civil disturbances, acts of terrorism, insurrection, riots, rebellion or sabotage, acts of federal, state, local or foreign governmental authorities or courts, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, failures or fluctuations in electrical power or telecommunications service or equipment, labor disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful. The Party so delayed or prevented from performing shall provide prompt notice of such event to the other Party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance. To the extent that a Force Majeure Event has continued for five (5) business days, DCypher Media or Advertiser has the right to cancel the remainder of the IO without penalty.
Article 18. Governing law and disputes
- This Agreement and the ensuing relationship between the Parties shall be construed in accordance with and governed by Dutch law.
- Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by Courts of the Netherlands, location Eindhoven.
Article 19. Entire agreement and variation
- This Agreement sets forth the entire understanding and agreement of the Parties and supersedes any and all prior oral or written agreements or understandings between the Parties as to the subject matter and may be changed only by a subsequent agreement in writing signed by both Parties.
- The Parties are independent contractors and expressly acknowledge that no agency, partnership, joint venture or employer-employee relationship is intended or created hereby.
- This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors and assigns. In the event of any inconsistency between the terms of an IO and this Agreement in respect of the Services, then the terms of the IO shall prevail to the extent of any inconsistency.
- DCypher Media reserves the right to amend these terms and conditions and Agreement. The Advertiser shall be informed of such amendments by e-mail or through the information being made available on DCypher Media’s website. The Advertiser shall be deemed to have received such notice within two (2) weeks of the notice being sent by e-mail or made available on DCypher Media's website. Where the Advertiser shall be entitled, within thirty (30) calendar days from the date of dispatch of the e-mail or, where appropriate, thirty (30) calendar days from the amendment being published on the website, provided that the changes have an adverse effect, that could not be considered a minor, on the Advertiser, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Advertiser within the aforementioned time, the Advertiser shall be deemed to have accepted the new terms and conditions.