ADVIEW MOBILE EXCHANGE PUBLISHER TERMS OF SERVICE
This Publisher Terms of Service, by and between SHANGYOUJIA TECHNOLOGY (HK) LIMITED, a Hong Kong company, with office located at FLAT/RM A 20/F SEABRIGHT PLAZA, 9-23 SHELL STREET NORTH POINT, HONG KONG (“AdView”) and the entity set forth in the SERVICE ORDER FORM (“Publisher”), shall govern AdView’s provision of the AdView Services as defined hereunder.
Subject to the terms and conditions set forth herein, the Publisher wishes to benefit from technological services offered by AdView, permitting the Publisher to sell its advertising inventory to Advertisers, by real time bidding, on its mobile applications. The Service Order Form, these Terms of Service and EU Data Processing Addendum comprise the Agreement.
Article 1 - Definitions
“Ad” means the graphic, audio, or video advertising to be displayed on the Publisher’s mobile applications, in different formats accepted by AdView.
“Ad Placement” means any location on the Publisher’s mobile applications where an Ad can be displayed.
“Ad Inventory” means the total Ad Placements the Publisher has available. Inventory can be guaranteed (premium), or non-guaranteed.
“AdView APIs” means the proprietary Application Programming Interface developed by AdView for communications between Publisher and AdView’s ad serving servers.
“AdView SDKs” means the proprietary Software Development Kit developed by AdView and will be inserted in the mobile application.
“AdView Tags” means ad call URLs, or any other computer code provided by AdView that identifies an Ad Placement.
“AdView Service” means the technical platform made available to the Publisher to enable it to sell its Ad Inventory to Advertisers, via the Demand Side Partners, or Approved Partners, in real time.
“AdView Interface” means the software suite, platform, tools, and online services that AdView makes available to Publishers.
“Adjusted Gross Revenues” means income received from Advertisers on behalf of the Publisher, less the expenses, reimbursements, and commissions defined herein.
“Ad Serving” means the Service, which technically routes the Ad, and displays it on the Publisher’s App.
“Advertiser” means the final advertiser, advertising agency, Trading Desk, and/or any other entities.
“App” means the mobile application and/or any other advertising environment connected to Internet, previously approved by AdView.
“Approved Partners” means the Ad Placement selling platforms, such as the Exchange Platforms, ad networks, and/or other SSP (Supply Side Platforms), with which AdView forms business relations for consideration on behalf of the Publisher, permitting the Publisher to benefit from a wider portfolio of Advertisers.
“Demand Side Partners” or “DSP” means the partner(s) acting as the Advertiser’s sub-agent(s), with a bidder to bid on the AdView Service.
“Direct Deals” means agreements, identified by a given number (called Deal ID), entered into directly between a publisher/AdView and an Advertiser, which are substituted for Real Time Bidding.
“Open Auction” means a category of Real Time Bidding that is open to any bidder.
“Private Auction” means a category of Real Time Bidding reserved for certain Advertisers based on pre-established criteria identified by a Deal ID.
“Publisher Policies” means the content guidelines and policies, available at https://www.adview.com/policy/publisherContent-protocol (which may be amended periodically), for any content on the Publisher Apps.
“Real Time Auction”, or “Real Time Bidding” (“RTB”) means the bidding service allowing Publishers to sell their Ad Inventory in real time, or near real time, to Advertisers for the price the Advertisers declare on the Service they are willing to pay to display an Ad on an available given Ad Placement at a given moment.
“User” means a person visualizing an Ad on a mobile device, smartphone, tablet.
Article 2 - AdView Services
AdView shall use its best efforts to provide the following Services to the Publisher:
- Provide Tags, SDKs or APIs to the Publisher;
- Provide access to the AdView Interface, which permits the Publisher to manage its inventory;
- Allow the sale by Real Time Bidding of Ad Placements through the AdView Interface, in accordance with the criteria available on the Interface;
- Provide access to reporting tools;
2.1. Tags/SDKs/APIs and Ad placement
The Publisher shall place the Tags, insert the SDKs or integrate the publisher APIs provided by AdView on the relevant Spaces on its Apps, which must first have been approved by AdView. The Publisher agrees to comply with all Ad placement restrictions, or channels specifications, in accordance with the highest industry standards, and/or upon AdView’s request.
The Publisher shall not incentivize Users to click on an Ad, or artificially generate impressions, or clicks. AdView may perform anti-fraud checks and audits of the Publisher’s traffic. In the event of any fraudulent or anomaly activity identified by industry-recognized tools, for example, White Ops, Pixalate, Impact/Forensiq, Protected Media, etc. AdView shall cashback the Publisher for amounts wrongly received.
The Publisher agrees that the Ads shall be fully and clearly visible to Users. Ads shall be ad served by AdView itself, or through a Publisher or third-party ad server previously approved by AdView.
2.2. Multi-Level Auction.
In connection with a multi-level auction run directly by or on behalf of Publisher and not directly by AdView, Publisher shall: (a) determine the winning bid on a reasonable basis that treats all bidders equally; (b) use only information available prior to the bid request for the auction to set the bid floor for a specific advertising impression in the auction; and (c) keep AdView informed as to the material characteristics of such multi-level auction (including, without limitation, first versus second price auction, server versus client side, and timeout thresholds) and immediately update AdView in the event of changes in such material characteristics.
2.3. AdView Interface
The AdView Interface consists in a technical inventory management tool that allows the Publisher to determine the rules and formats for displaying advertising campaigns on its Apps, access a real-time data analysis tool, and access reporting.
The Publisher shall access online reporting through the AdView Interface. These reports may include, without limitation, the number of ad impressions, the number of clicks, bid prices, winning prices, and income generated.
An access code allows the Publisher to access the AdView Interface. The Publisher shall ensure this code is kept confidential, and shall promptly inform AdView in the event of unauthorized access to the Service.
The Publisher is responsible for defining its advertising content exclusions on the AdView Interface. AdView shall set up the blacklist, on a best efforts’ basis, and shall request Approved Partners to implement the Publisher’s block list on their own platforms. Nevertheless, the Publisher acknowledges and agrees that AdView will not be able technically to review the content of the Ads prior to their display on the Publisher’s Apps. If the Publisher notices the presence of an Ad that contravenes applicable regulations, it shall immediately take note of the “Buyer ID”, or any other identifier allowing the campaign in question to be isolated, in order to identify the relevant DSP and Trading desk.
2.4 Fulfillment of Advertising requests
AdView does not provide any guarantee as to its ability to respond to all advertising requests sent to its servers by the Publisher, as its response depends upon the existence and the amount of Advertisers’ bids on the AdView Interface, and/or the Approved Partners’ ability to sell these Ad Placements on their platforms. AdView’s role is limited to aggregating the bids of Advertisers on the Service, and activating Approved Partners within its Interface to enable the sale of Spaces on their own platforms. The Publisher instructs AdView to enter into any agreement with such Approved Partners, in return for consideration, that permits the range of Advertisers likely to bid on the Publisher’s Ad Inventory to be increased.
AdView shall monitor Ads in order to detect malicious, or fraudulent technical devices, on a best efforts’ basis.
Optionally, AdView shall offer a data analysis function permitting the Publisher to conduct real-time analysis of performance per format, and performance of DSP, and/or Approved Partners App by App. This data analysis also enables validation of floor prices, and analysis of real time bidding.
The Publisher acknowledges and agrees that the price to pay for a given Ad Placement by the winning bidder will amount the second-best bid, plus an amount of one US$ cent, or the floor price (in the event there is no intermediary bid). If Space is sold by the Approved Partners, the Publisher acknowledges and agrees that the commercial terms of the relevant Approved Partner may apply.
2.5. Availability of the Service
The Publisher agrees that, from time to time, the AdView Services and Interface may be unavailable, or inoperable for the following reasons: (i) maintenance, or repair procedures; (ii) interruption, or failure of the telecommunications network; (iii) hostile network attacks. The Publisher also agrees that the Agreement is subject to hardware, software, and bandwidth traffic limitations, and/or any other technical constraint coming from a DSP, or resulting from the commercial terms of an Approved Partner.
The Publisher also acknowledges and agrees that the Approved Partners may cease performance of their service without prior notice, at any time and without any justification. Smart Ad Server will make reasonable commercial efforts to enter into and renew agreements with Approved Partners.
Article 3 - Publisher obligations
3.1. App approval
The Publisher’s Apps are subject to prior approval by AdView. AdView reserves the right to reject, or exclude any App at any time.
In order to gain approval, or maintain such approval of an App, AdView may require, at any time, the Publisher to provide a description of the App(s), for example, ad placement screenshot, average CTR, etc. In the event any answers are unsatisfactory, the AdView Service may be suspended on the App. The Publisher shall promptly inform AdView of any change, or anticipated change to its App(s), or its audience, that could impact its Ad Inventory.
The AdView Interface allows the Publisher to determine the level of transparency it wishes to offer real time Advertisers. The Publisher shall remain solely liable for its choices under applicable law, and shall indemnify and hold harmless AdView therefrom. Nevertheless, AdView is entitled to disclose the names of the Publisher’s Apps to the Approved Partners.
The AdView Interface allows the Publisher to set up and access AdView’s service. In this case, the Publisher agrees to comply with the terms of service, which shall be provided on: https://www.adview.com/policy/terms
3.2. App content requirements
The Publisher covenants that its Apps do not contain, and do not redirect users to any of the following content: pornographic material, incitement to racial hatred, violence, discrimination based on race, sex, religion, or nationality, hacking material, promotion of any kind of abuse on Internet, and more generally, any illegal activity, counterfeiting, infringement of privacy, defamation, or any other content deemed inappropriate, or harmful to the reputation of AdView, its Approved Partners, or Advertisers.
3.3. Implementation of IAB app-ads.txt
The Publisher warrants to support IAB Tech Lab’s app-ads.txt initiative by publishing the app-ads.txt file on its official website listed on the iOS App store for iOS apps or Google play for Android apps, and adding AdView and its selected partners as the authorized buyers.
3.4. Integration of AdView’s IAB Tech Lab’s Open Measurement (OM) SDK supported SDKs
The Publisher warrants to make its best efforts to integrate with AdView’s IAB Tech Lab’s OM SDK supported SDKs for facilitating third-party measurement providers, for example, MOAT, IAS and DoubleVerify, access to measurement data. Apps that integrate the OM SDK can send measurement signals to an API, the Open Measurement Interface Definition (OMID). Measurement providers can place tags that collect these signals.
The Publisher warrants that it shall comply, on its Apps, with all applicable laws and regulations, including any laws relating to advertising, telecommunications, privacy, and unfair trade practices, and with regulations concerning the protection of personal data, and consumer protection, and that its Apps shall not damage third-party rights. The Publisher shall indemnify, hold harmless, and defend, in any manner, AdView, and/or its Approved Partners, or Advertisers, in connection with any complaint and/or legal action, from and against any damages and expenses (including reasonable attorneys’ fees) incurred by AdView and/or its Approved Partners, or Advertisers resulting from the Publisher’s App(s).
Article 4 - Data Protection
The Publisher and AdView are jointly responsible for processing the data collected from Users to be used in the sale of Ad Placements. AdView is also responsible for processing in that it: (i) defines the relevant functionalities of the Service, and collects and processes the data for its proper implementation; (ii) compiles anonymous statistics with data from other publishers for research and development, and marketing purposes; (iii) transfers this data to DSP and Approved Partners, and to its sub-contractors for the purpose of providing the Service; and (iv) discloses any data if required by law, or a valid court order, or by a governmental authority.
The Parties shall maintain an appropriate level of physical, electronic, and administrative security to protect the collected data, and prevent its accidental, or unlawful destruction, or its loss, alteration, or unauthorized disclosure, or access. The Publisher agrees that the data collected may be transferred to the United States in the performance of the Service, and shall inform the Users of this fact.
4.1. Publisher Privacy Compliance
Publisher shall obtain all legally required consents, licenses, and permissions, including applicable opt-ins and opt-outs, from End-Users for any data collection, use, disclosure, and transfer resulting from the placement of Ads hereunder. Publisher’s collection, use, disclosure, and transfer of End-User Information hereunder shall comply with all applicable laws, rules, and regulations.
4.3. Children’s Privacy
If the Publisher Applications are directed to children under the age of thirteen (13), or if Publisher collects information from children under age of thirteen (13) (collectively referred to as “Children’s Content”), Publisher must comply with the Children's Online Privacy Protection Act ("COPPA") at all times. In addition, AdView requires Publisher to immediately notify AdView by sending an email to firstname.lastname@example.org or contacting the AdView account manager in the event Publisher uses the Services in connection with Children’s Content. Should Publisher choose not to notify AdView, AdView will assume that Publisher is not using the Services in connection with Children’s Content and is compliant with COPPA. AdView will not actively monitor the Publisher Properties for Children’s Content and compliance with COPPA. Therefore, AdView disclaims liability for Publisher’s failure to comply with this Section.
4.4. Data Ownership.
Publisher and AdView understand that as between the Parties, each Party owns all data such Party collects. Such data includes without limitation: information provided by End-Users in response to an Ad and any reports created, compiled, analyzed, or derived by a Party with respect to such End-User information, including (as to AdView) any information collected or received through a TAG, API or SDK.
Article 5 - Intellectual property rights
5.1. AdView grants the Publisher the right to use the AdView Interface solely for the purpose of performing the Agreement, and for the term of the Agreement.
5.2. The Publisher shall not distribute the Service or the Interface, or sell, sublicense, reproduce, publish, display, or perform them, or prepare derivative works.
5.3. The Publisher shall refrain from copying, modifying, selling, or displaying in any manner any Ad, and shall indemnify AdView from and against the same.
5.4. AdView shall indemnify the Publisher from and against any and all damages, losses, and liabilities arising from any third-party complaint, or legal action due to a breach of its intellectual property rights on account of the use by the Publisher of the AdView Interface pursuant hereto (except when such infringement results from an Ad). Consequently, AdView shall indemnify and hold harmless the Publisher from and against any amounts finally awarded. AdView’s obligation to indemnify is subject to the following conditions: (a) The Publisher shall promptly notify AdView of the existence of a complaint, or legal action; and (b) The Publisher shall reasonably cooperate with AdView and/or the Approved Partners in connection with such legal action. Furthermore, AdView may, at its sole discretion, and at its expense (i) give the Publisher the right to continue using the AdView Services; (ii) replace or modify the AdView Interface to make it non-infringing; and/or (iii) terminate this Agreement.
Article 6 – Measurement and payment
6.1. Winning bids, impressions, and any other data collected, or transmitted via the Service shall be measured by the AdView Interface, and/or the DSPs and/or the Approved Partners, as a function of the commercial agreements entered into by AdView. The Publisher acknowledges and agrees that the records on AdView servers shall be the authoritative default records, and where appropriate, the data available on the servers of the DSPs and/or the Approved Partners. In the event there is a discrepancy between AdView’s data and those of the Approved Partners, or the DSPs, AdView shall use its best efforts to identify the source of the discrepancy.
Should the Publisher dispute the statistics, figures, or calculations, it shall send a written and detailed request to AdView in this regard. The Publisher acknowledges and agrees that the Publisher’s statistics may differ from those of AdView, that even with research, any potential difference may not always be able to be explained, and that any such discrepancy shall not constitute a valid reason for challenging AdView’s calculations, or the payments made.
6.2. Payment: During the term of this Agreement, Publisher shall upload the signed or sealed invoice and apply for the payment on AdView’s dashboard from 6th to 11th every month. AdView shall pay the Publisher the Adjusted Gross Revenues, less the percentage of commission rates due to AdView, defined in the Service Order Form, within sixty (60) days following the date of receipt of the Publisher’s invoice. Adjusted Gross Revenues is defined as follows: amounts actually received by AdView from Approved Partners and Advertisers, net of (i) commissions paid to Approved Partners; (ii) taxes; (iii) reimbursements to Advertisers; and (iv) the outstanding amounts due from Advertisers for which advance payment has been made to the Publisher.
The Publisher acknowledges and agrees that AdView shall proceed with recovery of the amounts due on a best effort’s basis.
6.3. The Publisher shall be paid monthly. All accounts will be settled in US$s, but income calculations may vary according to the currency used by the Approved Partner to collect the amounts due from the Advertisers, and transfer them to AdView. No payment shall be made to the Publisher for any amount less than 250 US$s, any such amount being carried over to the following payment period. AdView reserves the right to withhold payments from the Publisher in the event it breaches any of its obligations pursuant hereto. The Publisher expressly recognizes and agrees that AdView can cashback the corresponding paid amount due to fraud activities detected and identified by industry-recognized tools.
6.4. Costs; Taxes. Except as otherwise expressly provided hereunder, each Party will be responsible for all costs and expenses incurred by such Party in connection with the performance of its obligations under this Agreement. Publisher shall pay all applicable taxes or fees imposed by any government authority in connection with Publisher’s use of the Services.
Article 7 – Limitation of warranties and liability of AdView:
7.1. Limitation of liability: AdView is not liable for the acts and/or omissions of any Advertiser, or Approved Partner, or for Advertisers’ Apps, or the content of Ads made available on the Service, or in the event of the insolvency of an Advertiser.
7.2. The Publisher acknowledges that AdView’s role is to offer a real time bidding platform, and to provide the Publisher with the Bids issued by the DSP and Approved Partners. In the event of proven liability on the part of AdView the total amount of damages due from AdView shall not exceed the amount of commission due from the Publisher to AdView in respect of the six months of Service preceding the month during which the damage occurred. No action, or proceeding shall be brought against AdView or AdView’s directors, officers, shareholders, employees, agents, representatives, parents, subsidiaries, successors, or assignees more than one (1) year after the date on which the alleged facts occurred, or were discovered.
Article 8 – indemnification
8.2. By AdView. AdView hereby indemnifies and agrees to defend and hold harmless Publisher, and its directors, officers, employees, agents, and representatives, from and against any and all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs, or expenses (“Infringement Claim”), including without limitation reasonable attorneys’ fees and the costs of any investigation, directly or indirectly arising from any claim that the Services infringe any third-party intellectual property right, provided that the relevant Infringement Claim: (a) does not arise from any modification to the Services made by the Publisher that is not under the approval or direction of AdView, and (b) does not arise from the combination of the Services with other products or technology not approved or provided by AdView. For the avoidance of doubt, AdView shall have no obligation hereunder to the extent that any such Infringement Claim arises out of or relates to any third-party materials, or the modification or combination of the AdView Ad Services with any products or technology not approved, directed, or provided by AdView (“Third-Party Materials”), to the extent that no allegation of infringement or infringement would have occurred but for such Third-Party Materials. If and to the extent that AdView is indemnified by its Advertisers with respect to the Publisher Policies, (“Indemnified Ad Content”), AdView will pass through such indemnity to Publisher for third-party claims brought against Publisher alleging that the Indemnified Ad Content does not comply with the Publisher Policies.
8.3. Indemnification Procedure. The obligations of each Party (the “Indemnitor”) under this Agreement to defend, indemnify, and hold harmless the other Party and its respective directors, officers, employees, agents, and representatives (each an “Indemnitee”) shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify, and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (such consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
Article 9 – Confidentiality
Confidential Information means any and all information provided under the Agreement, in any form whatsoever, disclosed by one party (the disclosing party) to the other party (the receiving party). Each party shall use Confidential Information received from the disclosing party solely in connection with the purposes of this Agreement. The receiving party agrees to maintain the confidentiality of the Confidential Information. Confidential Information shall not include information: (i) that is part of the public domain through no act, or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use; or (iii) that the receiving party had in its possession prior to the date of signature of this Agreement. Upon termination of this Agreement, the Publisher shall destroy any Confidential Information provided under this Agreement.
Nevertheless, the parties reserve the right to refer to the existence of the Agreement for marketing and commercial reasons.
Article 10 – Duration and Termination
The performance of the Agreement shall start on the Effective Date as set forth in the Service Order Form, for a one-year term. Either party may terminate this Agreement with one (1) months’ notice prior to the annual expiry date. Failing such termination, the Agreement will be automatically renewed for a further one-year period.
Either Party may terminate the Agreement in the event the other Party breaches one of its material obligations (including the compliance of content of the Publisher’s Apps), when such breach has not been fully remedied within 30 days of the first presentation of a notification.
Article 11 – Miscellaneous
Authority: Each party represents and warrants that it possesses the required rights, powers, and legal capacity to enter into this Agreement.
Notices: All notices and other communications required or permitted to be given to a Party pursuant to this Agreement shall be in writing, and shall be deemed duly given (a) on the date delivered if personally delivered, (b) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party at the address set forth below, or (c) on the business day following the day of facsimile or email transmission;
Assignment: No party shall be entitled to assign any rights, or obligations arising under this Agreement without the prior written consent of the other party.
Entire Agreement: This Agreement comprises the Service Order Form, the Terms of Service, EU Data Processing Addendum ,AdView’s policy on personal data, which is available at the following address: https://www.adview.com/policy/privacy, and the Approved Partners’ commercial conditions.
Counterparts: This Agreement may be executed and delivered in counterparts, (which may be exchanged by email, PDF, and/or facsimile), each of which shall be deemed an original. Such facsimile or electronic execution and delivery shall have the same force and effect as delivery of an original document with original signatures.
Relationship of the Parties: The Parties are independent contractors, and nothing contained in this Agreement shall be deemed to create a joint venture, partnership, fiduciary, or other similar relationships between the Parties. Each Party has sole responsibility for its activities and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.
Force Majeure: Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event. “Force Majeure Event” means (a) floods, earthquakes, or other similar elements of nature or acts of God; (b) riots, civil disorders, rebellions or revolutions in any country; or (c) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans, or other reasonable precautions.
Severability: In the event that any provision of the Agreement is held invalid or unenforceable the parties agree to replace such provision by a similar provision that reflects the intention of the parties, in accordance with applicable law, and the other provisions shall remain in full force and effect.
Waiver: Failure to require strict performance by the other party of any provision shall not affect a party's right to require strict performance thereafter. A waiver by either party of a breach of any provision shall not imply the waiver either of the provision itself, or of any subsequent breach.
Applicable Law: This Agreement shall be governed by and construed in accordance with Hong Kong law.
The parties agree to submit any litigation arising out of, or relating to this Agreement exclusively to the competent courts within the jurisdiction of the Hong Kong Court of Appeal.
AdView Mobile Exchange Publisher EU Data Processing Addendum
This Data Processing Addendum ("Addendum") is entered into by and between SHANGYOUJIA TECHNOLOGY(HK) LIMITED. ("AdView") and the party identified in the signature block below (“Publisher”), and forms part of all agreements between the parties relating to the subject matter of this Addendum (each an “Agreement”).
The terms in this Addendum shall only apply to the extent AdView collects or otherwise processes Data (including Personal Data) protected or otherwise regulated by EU Data Protection Law. Capitalized terms used in this Addendum shall have the meaning given to them in the main body of the Agreement unless otherwise defined in this Addendum.
IT IS AGREED:
"Controller" means the entity that determines the purposes and means of the processing of Personal Data.
"Data" has the meaning given to it in Section 2 of this Addendum.
"Demand Partners" means AdView's media buying clients, including but not limited to demand side platforms, ad exchanges, agencies, agency trading desks and ad networks.
"EU Data Protection Law" means (i) prior to May 25, 2018, the EU Data Protection Directive (Directive 95/46/EC), and on and after May 25, 2018, the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national laws made under or pursuant to (i) or (ii) (in each case, as superseded, amended or replaced).
"Personal Data" means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable EU Data Protection Law.
"Privacy Requirements" means all applicable international, federal, national and state data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines that apply to the processing of Data (including Personal Data) that is the subject of this Addendum (including where applicable (i) the rules, codes and guidelines of the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI); and (iii) EU Data Protection Law (in each case, as amended, superseded or replaced.
"Privacy Shield" means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of July 12, 2016 and by the Swiss Federal Council on January 11, 2017, respectively.
"Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016 (as may be amended, superseded or replaced).
"Publisher Property" means the websites, mobile applications and/or other digital media properties owned or operated by the Publisher and accessible through the AdView Services.
"AdView Services" shall mean the services provided by AdView to Publisher in accordance with and as described in the Agreement.
"Tracking Technologies" means cookies, mobile SDKs, browser cache, unique identifiers, web beacons, pixels and/or similar tracking technologies.
"data subject", "processing" (and "process") shall have the meanings given to them in EU Data Protection Law.
3. Relationship of the parties: The parties acknowledge that to the extent the Data contains Personal Data, each party shall process such data as a separate and independent Controller and in AdView's case, only for the Permitted Purposes. In no event will the parties process Personal Data under this Addendum as joint Controllers and as such, each party shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under the Privacy Requirements. Nothing in the Agreement (including this Addendum) shall limit AdView from collecting or using data that AdView would otherwise collect and process independently of Publisher's use of the AdView Services.
4. Publisher's Responsibilities:
4.1. Obtaining Consent: Publisher represents and warrants that it: (a) has obtained all necessary permissions and valid consents from the relevant data subjects on behalf of AdView and applicable Demand Partners in accordance with Privacy Requirements to lawfully permit AdView and all applicable Demand Partners to collect, process and share Data via the AdView Services for the purposes contemplated by the Agreement (including this Addendum); and (b) deploy Tracking Technologies in order to collect Data in connection with the performance of the AdView Services; and (b) shall, at all times, make available, maintain and make operational on the Publisher Properties (i) a mechanism for obtaining such consent from data subjects in accordance with the requirements of the Privacy Requirements; and (ii) a mechanism for data subjects to withdraw such consent (opt-out) in accordance with the Privacy Requirements.
4.2. Consent Records: Publisher shall maintain a record of all consents obtained from data subjects as required by the Privacy Requirements, including the time and data on which consent was obtained, the information presented to data subjects in connection with their giving consent, and details of the mechanism used to obtain consent. Publisher shall maintain a record of the same information in relation to all withdrawals of consent by data subjects. Publisher shall make these records available to AdView promptly upon request.
4.3. Notice Requirements: Publisher represents and warrants that it shall conspicuously post, maintain and abide by a publicly accessible privacy notice within the Publisher Properties from which the Data is collected that satisfies the requirements of the Privacy Requirements and the Agreement (including this Addendum). Without prejudice to the generality of the foregoing, such notice shall at a minimum include the following information: the type of Personal Data collected by AdView and its Demand Partners and the purposes of processing thereof; the categories of individuals who will have access to the Personal Data; where applicable, the legitimate interests pursued by AdView and/or its Demand Partners; the identity of the Controller(s); and/or and any other information required to comply with the information and transparency requirements of the EU Data Protection Law.
4.4. Prohibited Data Sharing: Publisher shall not include or launch any Publisher Property on any of the AdView Services if such Publisher Property is directed at any data subject that is deemed a child under applicable EU Data Protection Law , and Publisher shall flag within the AdView Services or inform AdView in writing prior to launching any of such Publisher Properties on any of the AdView Services; and/or pass to AdView or its Demand Partners any Personal Data of any data subject that is deemed a child under applicable EU Data Protection Law.
4.5. Noncompliance: If Publisher is unable to comply with its consent and notice obligations under the Agreement (including this Addendum) in respect of the Data, Publisher shall promptly notify AdView and Publisher may elect to perform any one or all of the obligations provided Publisher does not prevent AdView from performing such obligations.
5. Co-operation and Data Subject Rights: The parties shall, on request, provide each other with all reasonable and timely assistance (at their own expense)to enable the other party to comply with its obligations under the Privacy Requirements, specifically in order to enable the other party to respond to: (i) any request from a data subject to exercise any of its rights under EU Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) in relation to the Data ("Data Subject Rights"); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. Each party shall promptly inform the other if it receives any request directly from a data subject to exercise a Data Subject Right in relation to the Data.
6. International Transfers: To the extent that AdView processes (or causes to be processed) any Personal Data protected by EU Data Protection Law and/or originating from the EEA (including the United Kingdom) and/or Switzerland ("EEA Personal Data") in a country outside of the EEA and/or Switzerland (as applicable), it shall first take all such measures as are necessary to ensure an adequate level of protection for such EEA Personal Data in accordance with the requirements of EU Data Protection Law. For these purposes, the parties acknowledge and agree that AdView shall provide adequate protection for any EEA Personal Data by virtue of AdView having self-certified its compliance with the Privacy Shield Framework. AdView agrees to protect EEA Personal Data in accordance with the requirements of the Privacy Shield Principles.
7. Security: Both parties shall implement appropriate technical and organizational measures to protect the copy of the Data in their possession or control (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data.
8.1. Except for the changes made by this Addendum, the Agreement remain unchanged and in full force and effect. If there is any conflict between any provision in this Addendum and any provision in the Agreement, this Addendum controls and takes precedence. With effect from the effective date, this Addendum is part of, and incorporated into the Agreement.
8.2. To the extent there are any prior agreements with regard to the subject matter of this Addendum, this Addendum supersedes and replaces such prior agreements.
8.3. This Addendum shall survive termination or expiry of the Agreement. Upon termination or expiry of the Agreement AdView may continue to process the Data provided that such processing complies with the requirements of this Addendum and the Privacy Requirements.
8.4. Each party reserves the right to suspend, or terminate this Addendum should the other party breach this Addendum and such breach cannot be remedied (if remediable) within a reasonable period.
8.5. This Addendum may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. This Addendum may be executed via a recognized electronic signature service or delivered by facsimile transmission, or may be signed, scanned and emailed, and any such signatures shall be treated as original signatures for all applicable purposes
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed by their authorized representative effective as at the date both parties sign this Addendum below.