GENERAL TERMS AND CONDITIONS
These General Terms and Conditions are made by and between Bidstack Limited, registered company number 09835625, whose registered address is 201 Temple Chambers, 3-7 Temple Avenue, London, EC4Y 0DT ('Bidstack'), and the advertiser or advertising agency, if the corresponding Insertion Order ('IO') is executed by the advertising agency, (the 'Advertiser' or an 'Advertising Agency'), each a 'Party' and together the 'Parties'.
1.1 These General Terms and Conditions allow Bidstack to place dynamic native in-game advertising (the 'Advertising') as provided by the Advertiser to Bidstack, promoting the Advertiser's services and/or products under the Advertiser's trademarks, logos and designs (the 'Advertising Creative'), on select mobile, desktop and console games (the 'Game') published by the individual game's publisher (the 'Publisher') for the Term specified below.
2. BIDSTACK SERVICES
2.1 Subject to the Terms, Bidstack agrees to provide Advertising inventory, at its discretion, to the Advertiser during the Term, as per the corresponding IO.
2.2 Bidstack further agrees to provide services to the Advertiser, relating to the installation, integration and incorporation of the Advertising and Advertising Creative into the Game during the Term (the 'Bidstack Services'), as agreed in the corresponding IO. The Bidstack Services, as provided to the Advertiser, may include, amongst other services, ad serving, tracking, campaign managements and the provision of certain data in reporting.
2.3 Bidstack agrees to serve and deliver, within specific Advertising inventory, the agreed Advertising in the Game via the Bidstack Services. Bidstack reserves the right to suspend the Bidstack Services at any time and without prior notice, or remove or block any Advertising that gives Bidstack a reason or reasonable cause of concern as to such Advertising, Advertising Creative, or use. Bidstack shall not be responsible for any lost revenue to the Advertiser that results, either directly or indirectly, from suspension or removal of the Bidstack Services pursuant to this clause 2.3.
3. ADVERTISER RESPONSIBILITIES
3.1 Subject to the Terms, the Advertiser agrees to provide Bidstack with Advertising materials for the purpose of the creation of the Advertising Creative to be integrated and displayed in the Game, according to Bidstack specifications as provided by Bidstack from time to time and within the required time specified in the corresponding IO.
3.2 The Advertiser hereby represents and warrants, and shall ensure that, all elements of the Advertising Creative created, transmitted, transferred or otherwise provided by the Advertiser shall comply with:
3.2.1 all applicable laws, rules, and regulations, including the Children's Online Privacy Protection Act ('COPPA') where applicable, and all laws regarding intellectual property rights;
3.2.2 all requirements or restrictions outlined in the corresponding IO - including prohibitions against the collection of certain information from users of child-directed games or restrictions on the types of content to be displayed to users of such game; and
3.2.3 the 'Self-Regulatory Program for Children's Advertising' as provided by the Children's Advertising Review Unit, where applicable.
4. FEES & PAYMENTS
4.1 During the Term, the Advertiser shall pay Bidstack the amounts agreed between the Parties and as specified on the corresponding IO.
4.2 Bidstack shall be solely responsible for any costs or expenses it incurs in connection with the provision of the Bidstack Services or any performance of its obligations under these Terms, including, without limitation, expenses associated with any costs of operating and maintaining the Bidstack Services.
5. BIDSTACK DATA
5.1 'Bidstack Data' refers to the data already residing, generated, collected, or provided by Bidstack to Advertisers, such as, but not limited to, users' device ID, age, location, gender, IP-address, and including its Publisher data, but excluding any Personal Identifiable Information.
5.2 'Personal Identifiable Information' refers to the type of information that specifically identifies a user, such as the user's name, address, email address, telephone number, photograph, geolocation information, credit card information and/or any username.
5.3 In these Terms, any reference to the 'Territory' means the territory of the Advertising campaign as described and defined in the corresponding IO.
5.4 Use of Bidstack Data:
5.4.1 Licences: subject to compliance with the Terms, Bidstack grants to the Advertiser a non-exclusive, personal, non-transferable, non-sublicensable right to use the Bidstack Data in the Territory during the Term as per the corresponding IO.
5.4.2 Restrictions: Bidstack reserves all rights not expressly granted hereunder.
In particular, the Advertiser agrees and acknowledges that the Advertiser is not allowed to collect, store, analyse, use, sell, distribute, or otherwise disclose Bidstack Data to create or supplement user profiles or to transfer the Bidstack Data to any third-party without Bidstack's prior written approval, or to target users in other ad inventories than the Bidstack ad inventory.
5.5 Ownership: Except for the licence explicitly granted in these Terms, Bidstack holds all right, title and interest in the Bidstack Data.
5.7 The Advertiser hereby represents and warrants that the Advertiser has complied with all advertising self-regulatory guidelines, as currently existing or as promulgated in the future in the Territory. The Advertiser shall at all times comply with COPPA whilst performing its obligations under these Terms and the corresponding IO. The Advertiser shall not use to allow the use of the Bidstack data for the purposes of targeting Advertising or collecting Personal Identifiable Information to users under 13 (thirteen) years old.
5.8 Upon notice from Bidstack of claims from any third-party (including but not limited to consumers, self-regulatory bodies and regulators) regarding the Advertiser's or Bidstack's collection, receipt, and/or use of the Bidstack Data, each Party shall provide to the other any reasonable cooperation, assistance and information that it may require as necessary to enable Bidstack to investigate and resolve the matter.
6. RESERVATION OF RIGHTS
6.1 The Advertiser hereby grants to Bidstack a non-exclusive and non-transferable right to deploy and use worldwide (or other specified location, if this differs as per the corresponding IO) the Advertising Creative during the Term pursuant to the limited rights expressly granted and as specifically set forth in these Terms. The Advertiser further grants to Bidstack the right to display the advertising Creative on the Website and within promotional materials designed and distributed by Bidstack for the Term.
6.2 Bidstack is the exclusive owner of all right, title, and interest in and to all software, databases and other aspects and technologies related to the Bidstack Services, specifically the Bidstack Platform and Bidstack Dashboard, and any enhancements made thereto. The Advertiser acknowledges that Bidstack shall retain all proprietary rights in the Bidstack Services, including all software, source codes, modifications, updates and enhancements thereof, and any other trademarks and logos which are owned or controlled by Bidstack and made available to the Advertiser under these Terms.
7. WARRANTY & DISCLAIMER
7.1 Bidstack represents and warrants to the Advertiser that:
7.1.1 it has or will continue to have throughout the Term, full right, title and authority to enter into and perform the Bidstack Services under these Terms;
7.1.2 it has or will obtain and has or will comply with all necessary consents, permissions and licences required under all relevant regulations and statutes in connection with these Terms and corresponding IO and shall comply with all relevant laws and regulations with affect these Terms;
7.1.3 it has made, and undertakes that at all times during the Term it will maintain, any notification and registration required under the Data Protection Act 1998 and/or any other relevant legislation and regulations that relate to the performance of its obligations under these terms;
7.1.4 it is financially sound and technically capable of performing its obligations under these Terms and employs sufficient numbers of skilled employees;
7.1.5 that it shall not do anything that may affect the goodwill and reputation of the Advertiser;
7.1.6 to the best of Bidstack's knowledge, it currently has no restrictions that would impair or negatively affect its ability to perform the Bidstack Services under these Terms; and
7.1.7 performance of the Bidstack Services hereunder shall be in compliance with all applicable laws, rules and regulations.
7.2 The Advertiser represents and warrants to Bidstack that:
7.2.1 all Advertising Creatives and Advertising Creative materials provided to Bidstack to be used for Advertising are either original to the Advertiser or the Advertiser has all necessary rights for using the Advertising for the purposes described herein;
7.2.2 If an Advertiser, that it has or will continue to have throughout the Term full right, title and authority to enter into and perform its obligations under these Terms;
7.2.3 if an Advertising Agency, that it has or will continue to have throughout the Term full right, title and authority to enter into and perform its obligations under these Terms;
7.2.4 it has made, and undertakes that at all times during the Term it will maintain, any notification and registration required under the Data Protection Act 1998 and/or any other relevant legislation and regulations that relate to the performance of its obligations under these terms;
7.2.5 it is financially sound and technically capable of performing its obligations under these Terms and employs sufficient numbers of skilled employees;
7.2.6 that it shall not do anything that may affect the goodwill and reputation of Bidstack;
7.2.7 to the best of the Advertiser's knowledge, it currently has no restrictions that would impair its ability to perform its obligations under these Terms;
7.2.8 the Advertising Creative shall not contain any of the following content: indecent, obscene or pornographic material; hate speech; highly controversial or immoral content; drugs; cigarettes and content associated with smoking; content that promotes violence; content that violates any applicable law, regulation or otherwise; and content that disparages, ridicules, derogates, harasses, threatens, defames, or libels any third-party or any product or service provided by a third-party;
7.2.9 the Advertising Creatives must not contain or proliferate viruses, spyware, adware or malicious code and shall not otherwise overburden, disrupt, damage, or impair the mobile content and games provided by Bidstack and to third parties;
7.2.10 the Advertising Creative shall not contain any content related to video, mobile, desktop or console games;
7.2.11 the Advertising Creative is legal to distribute, does not and shall not in the future, infringe on any third-party intellectual property right (including, without limitation, trademarks, patents, copyrights, rights of publicity, moral rights, or any other third-party right) and does not otherwise violate any applicable law or regulation; and
7.2.12 performance of the Advertiser's obligations hereunder shall be in compliance at all times with all applicable laws, rules and regulations. Notwithstanding the foregoing, Advertising Creatives advertising alcohol are restricted or prohibited with respect to the laws or regulations of the specific country in which the Advertising Creative is to be delivered, and the Advertiser represents and warrants that it shall not target people under the legal drinking age according to such laws or regulations in its Advertising Creative.
7.3 EXCEPT FOR THE FOREGOING, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS OF A PARTICULAR PURPOSE. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT OR THESE TERMS.
8.1 In this clause 8, ‘Confidential Information’ means all technical, commercial and financial information, product information, trade secrets, know-how and all information relating to the plans, intentions, market opportunities, transactions, affairs and/or business of a Party and its Group companies and/or it’s (or their) customers and/or suppliers;
8.2 Each Party shall keep secret and confidential all Confidential Information of the other and shall not (and shall procure that its employees and/or officers shall not) copy, use or disclose any such information to any third-party, other than as may be necessary to comply with its obligations under these Terms or the corresponding IO.
8.3 The obligation of confidence shall not apply where the Confidential Information:
8.3.1 is required to be disclosed by operation of law;
8.3.2 was in the possession of the recipient prior to disclosure by the other Party;
8.3.3 is subsequently acquired from a third-party without any obligation of confidence;
8.3.4 is or becomes generally available to the public through no act or default of the recipient; or
8.3.5 is disclosed on a confidential basis for the purposes of obtaining professional advice.
8.4 This clause shall continue in force notwithstanding the expiry of the Term, or if termination occurs before the Term, whatever the reason for such termination.
9. LIMITATION OF LIABILITY
9.1 Neither Party shall be liable to the other for damages in contract, tort or otherwise (including but not limited to any liability for any negligent act or omission) for any indirect, incidental, special or consequential loss (which expression shall include but not be limited to loss of revenue, business, contracts, anticipated savings, profits or wasted expenditure) arising out of or in connection with the performance of its obligations under these Terms or any breach of any clause of these Terms.
9.2 Either Party’s maximum total liability to the other in contract, tort or otherwise (including but not limited to any liability for any negligent act or omission) for damages which are not otherwise limited or excluded in these Terms howsoever arising out of or in connection with the performance of its obligations or any breach thereof under these Terms shall be limited, in respect of all incidents or occurrences arising during the Term, on a cumulative basis, to the amount specified in the corresponding IO.
9.3 EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, BIDSTACK AND THE ADVERTISER HEREBY DISCLAIM ALL CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN RESPECT OF THE ADVERTISING, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ARISING FROM A COURSE OF DEALING.
9.4 The exclusions and limitations in clause 9 shall apply to the fullest extent permissible at law, but does not exclude liability for: death or personal injury caused by the negligence of either Party or their respective officers, employees, contractors or agents; fraud or fraudulent misrepresentation; or any other liability which may not be excluded by law.
10.1.Each Party agrees to indemnify and hold the other Party harmless from any liability, damages, costs, and expenses, including reasonable solicitor's fees, resulting from a claim, settlement, or proceeding brought by a third-party (a 'Third-Party Claim') and relating to:
10.1.1 a breach of any material obligation, representation, or warranty provided by Bidstack under these Terms; and
10.1.2 any Advertising Creative that is found by a court to have infringed or misappropriated any third-party intellectual property right. The Advertiser will promptly notify Bidstack in writing of any such claim, and will hold Bidstack harmless against such claim.
10.2.The Advertiser agrees to defend, indemnify and hold Bidstack harmless from any liability, damages, costs and expenses, including reasonable solicitor's fees, resulting from a Third-Party Claim and relating to:
10.2.1 a breach of any material obligation, representation, or warranty provided by the Advertiser under these Terms, including, without limitation, any warranty, representation, or responsibility provided in either clause 3 ('Advertiser's Responsibilities') or clause 7.2 (the Advertiser's Warranties);
10.2.2 a claim that the Advertising Creative or related content infringes or misappropriates any third-party intellectual property right; or
10.2.3 a claim that the Advertising Creative or related content is libellous or defamatory or otherwise violates the rights of any third-party, or violates any law, regulation or other judicial or administrative action. In these Terms, 'related content' relates to any website, landing-page, click-through landing page or related material that the Advertising Creative is related to, links to, or is otherwise associated with. Bidstack shall promptly notify the Advertiser in writing of any such claim. Bidstack shall give the Advertiser sole control over the defence and settlement of any such claim, except that the Advertiser shall not agree to any settlement or compromise that would require Bidstack to make any payments or bear any obligations unless the Advertiser obtains Bidstack's prior written approval. Bidstack shall give the Advertiser reasonable assistance in such defence, at the Advertiser's expense.
11. TERM & TERMINATION
11.1. These Terms shall continue until terminated by either Party, provided that the term for any specific piece of Advertising Creative will be governed by the terms of the corresponding IO applicable to that Advertising Creative.
11.2. These Terms, and any corresponding IO, may only be terminated with 60 (sixty) days written notice to the other Party, if the other Party has materially breached the Terms and fails to remedy such breach within 15 (fifteen) days of receipt of notice by the non-breaching Party, setting forth in reasonable detail the nature of the breach.
11.3. Bidstack may immediately suspend the placement of the Advertising Creative in the Game if it has a good faith belief that the Advertiser is in violation of clause 3 or clause 7.2 above. Any and all provisions or obligations contained in these Terms which by their nature or effect are required or intended to be observed or performed after termination of these Terms will survive the expiration or termination of these Terms, and remain binding upon and for the benefit of the Parties, their successors, and permitted assigns.
12. PROTECTION AND PROCESSING OF PERSONAL DATA
12.1.Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under any Data Protection legislation in force at the time.
12.2.Where one Party, as part of the fulfilment of its obligations under this Agreement, processes personal data as a data processor (the 'Processor') on behalf of the other Party acting as a data controller (the 'Controller'):
12.2.1 the Processor shall:
a. unless required by the laws of any member of the European Union or by the laws of the European Union applicable to the Processor, act only on instructions from the Controller when processing personal data provided to it under this Agreement, and keep records of all such processing;
b. comply with the Controller's instructions in relation to the processing of personal data as such instruction are given and varied from time to time by the Controller;
c. at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
d. not transfer any personal data outside the European Economic Area without the Controller's prior written consent; and
e. immediately notify the Controller if it receives any complaint, notice or communication which related directly or indirectly to the processing of personal data under this Agreement, provide full cooperation and assistance in relation to any such complain, notice, or communication.
12.2.2 the Controller may from time to time serve on the Processor an information notice requiring the Processor, within such time and in such form as is specified in the information notice, to give to the Controller such information as the Controller may reasonably require relating to:
a. compliance by the Processor or by its sub-contractors with the Processor's obligations to the Controller under this Agreement in connection with the processing of personal data; and
b. the rights of data subjects, including but not limited to subject access rights.
12.2.3 The Processor shall provide to the Controller on request a copy of all personal data held by it pursuant to this Agreement in the format and on the media reasonably specified by the Controller, and shall promptly inform the Controller if any such data is lost or destroyed or becomes damaged, corrupted or unusable. The Processor will restore such data at its own expense.
13.1.All notices and requests in connection with these Terms shall be deemed given when personally delivered, 24 (twenty-four) hours when e-mail is used, or 3 (three) days after being sent by first class post.
14.1.Each Party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. These Terms and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the Parties hereto and their respective heirs, successors, assigns, and personal representatives.
14.2.Neither Party shall have any authority or power to bind the other Party or to contract in the name of the other Party or to create a liability against the other in any way or for any purpose unless expressly authorised pursuant to this Agreement. Nothing in this Agreement shall constitute or be deemed to constitute, a partnership between the Parties, or to constitute either Party as an agent of the other.
14.3.Neither Party intends that any term of this Agreement shall be by virtue of the Contracts (Rights of Third Parties) Act 1999 enforceable by any person who is not a party to this Agreement.
14.4.Neither Party shall assign these Terms in whole or part without the prior written consent of the other Party except that either Party may assign these Terms in connection with a merger, reorganisation or sale of a substantial part of the assets or business to which these Terms relate.
14.5.Notwithstanding the foregoing, the Advertiser may not assign these Terms to a direct competitor of Bidstack without Bidstack's prior written consent.
14.7.No changes, modifications or waivers are to be made to these Terms unless evidenced in writing and signed for and on behalf of both Parties.
14.8.Each of the provisions contained in these Terms shall be construed as independent of every other such provision. If any portion of these Terms is held to be unenforceable, that portion shall be restated, eliminated or limited to the minimum extent necessary so that these Terms shall reflect as nearly as possible the original intention of the parties, and the remainder of these Terms shall remain in full force and effect.
14.9.No press statements or releases concerning the existence of or subject matter of these Terms or any corresponding IO may be made by either Party without the prior written approval of the other.
15. LAW & JURISDICTION
15.1.This Agreement shall be governed by and construed in accordance with English law. The English courts shall have exclusive jurisdiction to determine any disputes which may arise out of, under, or in connection with this Agreement.