General Terms for Eskimi DSP Services

Background

Eskimi owns and operates a real-time trading technology platform that enables media buyers to bid in real-time, in an auction-like format for the purchase of mobile digital advertising on websites and apps made available by online publishers and ad exchanges that Eskimi has a relationship with (such real-time trading technology platform hereinafter referred to as the “Demand Side Platform” or the “DSP”).

These General Terms are applied when the Clients use Eskimi DSP for bidding on Ad Inventory made available via the Eskimi DSP for displaying advertisements (“Ads”) for targeted audience.

These General Terms together with the Special Conditions envisaged in the Eskimi DSP Service Agreement signed by Eskimi and the Client, as well as any additional agreements and/or annexes constitute an entire agreement between the parties, under which Eskimi undertakes to provide the Services to the Client and the Client undertakes to use such Services.

Definitions

For the purpose of the Agreement the following capitalised words shall have the meaning set out below:
  1. “Ads” means advertisements that are displayed on the on the digital content resources (websites, apps, etc.) in the course of the provision of the Services.
  2. “Ad Inventory” means the amount of the advertising space that is made available via DSP for placement of Ads. 
  3. “Agency” means the Client, which acts as an agent for its clients of execution of their Campaigns via Eskimi DSP.
  4. “Agreement” means these General Terms, Special Conditions, and all annexes and additional agreement signed between Eskimi and the Client.
  5. Campaign” means the defined parameters and objectives of the advertising that the Client or Eskimi on behalf of the Client enters into the DSP using DSP functionality tools.
  6. Claims” means any claims, demands, suits or proceedings brought by a third party.
  7. "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated or identified as confidential or that should be reasonably understood as being confidential given the nature of the information and the circumstances surrounding the disclosure, including, but not limited to the terms and conditions of this Contract (including pricing), business and marketing plans, technology and technical information, product designs, trade secrets and business processes.
  8. CPA”/ “Cost Per Action” is an online advertising model, where the advertiser focuses on reaching a specified action (a purchase, a form submission, etc.) linked to the advertisement.
  9. CPC” / “Cost Per Click” is an Internet advertising model used to direct traffic to websites, where advertisers pay when the ad is clicked.
  10. CPM” / “Cost Per Mille” is a commonly used measurement in advertising, where advertisement is purchased based on what it costs to show it one thousand times.
  11. Creatives” means display banners, video ads, rich media ads or any other advertisement material acceptable for the DSP to show to end-users and provided by the Client or its client
  12. DMP”/ “Data Management Platform” means a part of the Eskimi’s DSP created to capture and store end-user data, Campaign data, browsing data, bid data, allow capping and additional targeting by using First Party Data and Third Party Data.
  13. First Party Data” means the data collected by the Client or its clients during the process of the Campaign using Eskimi DMP tags implemented in web sites and (or) landing pages.
  14. “IO” means the Insertion Order, which is the document signed and uploaded to the DSP by the Client establishing the main conditions of the Campaign (such as the promoted brands and/or products, the Campaign budget, billing parameters, etc.).
  15. Services” means the digital advertising services provided by Eskimi to the Client for execution of the Campaigns via Eskimi DSP and placing of the Campaign Ads on Ad Inventory. 
  16. “Special Conditions” means the terms and condition envisaged in Eskimi DSP Service Agreement signed between Eskimi and the Client or the terms and conditions accepted by the Client when ordering Services online.
  17. “Spend Bonus” means the type of client incentive based on the service usage volume provided by Eskimi to the Client in a form of additional budget to be spent on Services on Eskimi DSP. 
  18. Third Party Data” means the data collected by Eskimi as part of the DSP and DMP. Example of such data could be demographical information of the users, browsing history and segments created from raw data.

Campaign Management Process

  1. Eskimi shall execute Campaigns on DSP when the Insertion Order (IO) for the Campaign is signed and upload into the DSP by the Client.
  2. The Client will be provided with the DSP statistical dashboard where the Client can upload Campaigns, Creatives, define targeting and view their statistics in real time.
  3. Upon request of the Client Eskimi can provide ad operations resources for Campaign management, optimisation and targeting. 
  4. Campaign reports will be displayed in the dashboard and can be downloaded by the Client from the platform in the form of PDF at any time. Reports will serve as the basis for invoicing the Client.
  5. Campaigns can be run on DSP to achieve certain Campaign metrics (based CPC, CPA, CPL, CPI or other), but the basis of billing of the Client will be CPM.

Payments for Services

  1. Eskimi will issue the invoice for each Campaign carried out on the DSP every month for the previous month. Invoices will be dated on the last day of the previous month. 
  2. In case of prepaid Services, the invoice will be issued upon a receipt of the payment from the Client.
  3. If the Client does not submit any comments to the invoice within 5 calendar days from receiving it, it is assumed that invoice is fully accepted as correct.
  4. The standard payment term for Eskimi invoice is 30 (thirty) days from the date of the issue. If the different term in the Special Conditions is indicated, the provisions of the Special Conditions shall be applied.
  5. The Client shall be liable for any delays in payments according to the invoices issued by Eskimi and shall pay a daily interest rate indicated in the Special Conditions.
  6. In the event of non-payment Eskimi may transfer the debt of the Client to the third parties without any additional notice to or any prior consent from the Client.

Incentives

  1. Eskimi may provide Service volume incentives to the Client based on Client’s spending levels on DSP. 
  2. Upon reaching a certain spending level for Services the Client may become eligible for a Spend Bonus or other incentive, which will be provided pursuant to the terms and conditions of the annex or additional agreement to the Agreement.
  3. Eskimi shall be entitled not to apply or to cancel the incentives for the Client due to Client’s failure to meet it payment commitments or due to other breach of the Agreement. In the event of cancellation of the incentive to the Client Eskimi shall be intitled to invoice the Client for the discounts cancelled due to the breaches of Client’s commitment under the present Agreement.

Compliance of Ad Creatives

  1. The Client is solely responsible for the substantive content of each advertisement. The Client warrants and represents that it shall use commercially reasonable efforts to ensure that the Ad Creatives and landing pages do not contain or link to any content that: (a) violates any applicable law, rule or regulation, (b) promotes violence, the use of firearms, or unlawful subject matter or activities (e.g. discrimination of protected classes, hate crimes, P2P sites, or copyright protection circumvention sites, etc.), (c) violates any intellectual property right or other proprietary or privacy right of any third party, and (or) (d) is defamatory, libellous, deceptive, pornographic or sexually explicit.

Data Processing and Use

  1. For the purpose of providing the Services, Eskimi collects Third Party Data within DMP to allow demographic, segment targeting, and general system-wide retargeting. This data is owned by Eskimi and can only be used by the Client for better Ad targeting or measuring Ad performance. The Client may not sell, disclose, or use the Third Party data for any other purpose.
  2. The Client can collect user data from the other sources (mobile sites, internal systems, etc.) by including Eskimi DMP pixels or data collection codes. This data is collected as part of Campaign data and is referred to as First Party Data. By starting using Services the Client grants Eskimi a non-exclusive, royalty-free license and right during the term to use the First Party Data in connection with the Services provided in accordance with the Agreement.
  3. Eskimi shall treat the First Party Data as confidential and this data shall not be displayed to third parties or used in any other way except that Eskimi shall have the right to use and disclose First Party Data provided to Eskimi hereunder: (a) to operate the DSP, (b) to perform its obligations towards the Client, (c) for reporting and analytical purposes, (d) if and as required by court order, law or governmental or regulatory agency, and (e) as otherwise permitted with the Client’s prior written consent.
  4. The Third Party Data and the First Party Data is processed by Eskimi for the purpose of providing the Services in accordance with the Eskimi Data Protection Regulations. The Client agrees to implement and apply at least the same level of measures for data protection as undertaken by Eskimi. 

Privacy

  1. The Client agrees to fully comply with Eskimi Privacy Policy when using Services, as well as agrees to a undertake all necessary measures to disclose and inform the users about Client’s privacy commitments in relation to data collection, use and disclosure. The Client also agrees to disclose information about Eskimi as the supplier of the Services to the Client if such disclosure might be required under the applicable laws.
  2. The Client will ensure (and if the Client acts as Agency it will use all commercially reasonable measure to require its clients to do so) that on each website where First Party Data is being collected by the use of Eskimi DMP pixels, cookies, beacons or similar technology, such website displays a privacy policy disclosing such practice.
  3. The Client will ensure that Third Party Data obtained from Eskimi will not in any event be used to identify a particular end user. The Client will also not pass any First Party Data to Eskimi that Eskimi could use or recognize as personally identifiable information.
  4. To the extent that particular end user’s personal information, or any other data is collected by or on behalf of the Client from end users that click on or otherwise interact with an Ad, the Client represents and warrants that all appropriate consents and waivers have been or will be obtained from such end user.

Intellectual Property

  1. All intellectual property and other proprietary rights to the DSP belong to Eskimi. Eskimi does not issue any licence for DSP use to the Client under the Agreement, but rather acts as a Service provider to the Client using technological solutions and resources of the DSP.
  2. Eskimi owns and retains all right, title and interest in and to the DSP, all software, databases and other aspects and technologies related to the DSP, any enhancements, modifications or derivative works thereto, any materials made accessible to the Client by Eskimi through the DSP, such as through the user interfaces or otherwise, and all intellectual property and proprietary rights in and to all of the foregoing. The Client shall not use the DSP except as expressly provided for in this Agreement. The Client shall not reverse engineer, disassemble, reconstruct, prepare derivative works from, decompile, copy, or otherwise attempt to derive source code from the DSP or any aspect or portion thereof (except to the extent that such acts are permitted by applicable law), or alter or remove any identification, trademark, copyright or other notice from the DSP, nor will the Client authorise, permit or cause others to do so.

Indemnification

  1. The Client shall indemnify, defend and hold harmless Eskimi, its agents, officers, directors and employees from and against Claims brought against Eskimi by a third party arising from: (a) the Client’s use of the DSP in violation of these General Terms and/or Special Conditions, (b) an allegation that an Ad infringes or violates the rights of any third party, is defamatory, libellous, obscene, deceptive, or violates any applicable law, or (c) any inaccuracy in any of the Client’s representations or warranties contained herein. The Client shall pay Eskimi any damages finally awarded against Eskimi, and reasonable costs and expenses (including reasonable attorneys’ fees) directly attributable to such Claim. 
  2. Eskimi shall indemnify, defend and hold harmless the Client, its agents, officers, directors and employees from and against any Claims brought against the Client by a third party arising from: (a) a claim that the DSP, when used in accordance with the terms of this Contract, infringes any intellectual property right of any third party, or (b) any inaccuracy any of Eskimi representations or warranties contained herein. Eskimi shall pay the Client any damages finally awarded against the Client and reasonable costs and expenses (including reasonable attorneys’ fees) directly attributable to such Claim. 

Liability

  1. Each Party shall be liable to the other Party for the breach of their obligations under the Agreement and shall compensate the other Party for the damages caused by such breach.
  2. In no event shall either Party be liable to the other for any lost profits or special, punitive, incidental, consequential or other indirect damages, however caused and whether in contract, tort or under any theory of liability, and whether or not such Party has been advised of the possibility of such damages. Excluding payment obligations, in no event shall either Party’s aggregate liability to the other arising out of the Agreement exceed the lesser of: (a) USD 20,000 or (b) amounts payable to Eskimi in the period of three (3) months preceding the incident giving rise to the Claim. The above limitations shall apply notwithstanding the failure of the essential purpose of any remedy.
  3. The limitations on liability set forth in section 11.2 shall not apply to: (a) a breach of Section 12 of the General Terms (Confidentiality), (b) a claim for indemnification under section 10, or (c) the gross negligence; wilful or intentional misconduct; dishonesty; or fraudulent, criminal or malicious conduct of the Party seeking to limit its damages. 

Confidentiality

  1. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (b) was known to Receiving Party prior to its disclosure by Disclosing Party without restriction on use or disclosure; (c) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (d) is rightfully received from a third party without restriction on use or disclosure.
  2. Receiving Party shall not use Confidential Information of Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Contract. In addition, Receiving Party shall not disclose Confidential Information of Disclosing Party to any third party, except with Disclosing Party's prior written consent or as otherwise required by law or legal process. 
  3. Notwithstanding the foregoing, each Party may disclose the Confidential Information of the other Party to its employees, consultants or other agents who have a bona fide need to know such Confidential Information; provided, that each such employee, consultant or agent is bound by confidentiality obligations at least as protective as those set forth herein. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner in which it protects the confidentiality of its own confidential information of a similar kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
  4. If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if Disclosing Party wishes to contest the disclosure.
  5. Upon any termination of provision of Services, Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information for five (5) years and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information. 

Force majeure

  1. Excluding payment obligations, neither Party shall be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, DDOS attacks, or labour disputes or any other cyber-attack the effect of which could shut down the DSP or website.

Termination and Suspension of Services

  1. Eskimi may terminate the Agreement with the immediate effect by giving a written notice to the Client due to material breaches of the Agreement by the Client.
  2. Either Party may terminate the Agreement for convenience by giving a 30-day written notice to the other Party (email will suffice).
  3. Eskimi may suspend the Services by giving a written notice to the Client due to: (i) Client’s failure to fulfil its payment obligations; (ii) Client’s direct or indirect use of DSP and/or Services in a manner that could damage Eskimi DSP, disrupts it’s functionalities or that otherwise reflects unfavorably on the integrity reputation of Eskimi and/or its Services; (iii) Client’s failure to comply with it’s warranties and representations envisaged in the Agreement; (iv) Client’s breach of obligations envisaged in the section 6, 7, 8, 9, and 12 of the General Terms.

Governing Law

  1. The provision of Services shall be governed by the laws of the Republic of Lithuania if the Special Conditions does not provide otherwise.
  2. The Parties undertake to use their best efforts to resolve any disagreements or disputes arising out of or relating to the Agreement through amicable negotiations. Any dispute, controversy or claim arising out of or relating to Agreement, or any breach, termination or invalidity thereof shall be settled, in accordance with the procedure set out in the applicable laws.
  3. Disputes arising due to the breach of payment obligations by the Client shall be handed for settlement, by the choice of Eskimi, either to the courts of Client’s jurisdiction, or to the courts of jurisdiction of Eskimi, ensuring the most efficient litigation procedure for the Parties.

Publicity

  1. During the term of this Contract, each Party may use the other Party’s name and logo on its web site and in other promotional materials such as customer, vendor lists, or marketing, analytical and/or financial materials. 


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