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Terms & Conditions for Advertisers

TERMS AND CONDITIONS FOR ADVERTISERS

WHEREAS:Parties have executed an insertion order referencing this Agreement and therefore the Terms and Conditions as stipulated hereunder shall apply between Parties for the performance of that insertion order (hereinafter “IO”) unless specifically altered by such IO.

1.APPLICABILITY

1.1. These terms and conditions are applicable to all requests, orders, offers and agreements in which this Agreement is referenced.

1.2. This Agreement shall only be deviated from by agreement in writing, subject to BOLEH GMBH reserving the right to change these terms and conditions upon prior written notice of 2 (two) weeks.

1.3. Any general terms and conditions of the Advertiser, howsoever incorporated, shall be excluded.

1.4. The Agreement shall only be binding on BOLEH GMBH when signed by the authorized signatory individual(s).

2. DEFINITIONS

“Advertisement” means a promotional message (including any code embedded therein) that may consist of text, graphics, audio and/or video or any combination thereof and that is displayed on online media inventory for the purpose of publicizing an Advertiser’s products or services, provided by Advertiser, including but not limited to any advertisements provided by Advertiser on behalf of an third party client of Advertiser, as may be further defined in an IO.

“Advertiser” means the entity as referred to as such in the IO;

“Affiliated Company” means any third party under the effective control of a Party to this Agreement or under common control of a Party to this Agreement. Effective control in the foregoing sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies, or actions of an entity through the exercise of ownership or voting rights;

“Agreement” means this Terms and Conditions together with the applicable IO;

“Campaign” means the actions of BOLEH GMBH in fulfilling its obligations to Advertiser under this Agreement;

“Channel(s)” means the media as referred to in the IO;

“CPA” or “Cost Per Acquisition” means the fee paid by Advertiser to BOLEH GMBH for each sale of Advertiser’s service or product to a customer resulting from BOLEH GMBH’s performance of its obligations under this Agreement;

“CPC” or “Cost Per Click” means the fee payable by Advertiser to BOLEH GMBH for each customer click on Advertisement resulting from BOLEH GMBH performance of its obligations under this Agreement;

“CPL” or “Cost Per Lead” means the fee payable by Advertiser to BOLEH GMBH for each customer lead provided to Advertiser resulting from BOLEH GMBH’s performance of its obligations under this Agreement;

“CPM” or “Cost Per Mille” means the fee payable by Advertiser to BOLEH GMBH for each impression of an Advertisement to a potential customer resulting from BOLEH GMBH’s performance of its obligations under this Agreement;

“Deliverables” means the type(s) and amount(s) of results to be delivered (e.g. CPA. CPC, CPL and/or CPM) by BOLEH GMBH to Advertiser, as set forth in an IO.

“Effective Date” means the date stated under such heading in the IO, in absence of which it shall be the date of the last signature of the IO.

“End Date” means the date stated under such heading in the IO;

“IO” means insertion order executed between Parties referencing this Agreement.

“Party” means either the Advertiser or BOLEH GMBH severally and “Parties” means both the Advertiser and BOLEH GMBH jointly;

“BOLEH GMBH” or “BOLEH” means BOLEH GMBH ;

“Territory” means the (parts of) countries referred to as such in the IO;

3. ADVERTISEMENT LICENSE, SPECIFICATION, CONTENT AND RESTRICTIONS

3.1. Grant of License: For the purpose of this Agreement, Advertiser hereby grants to BOLEH GMBH the worldwide, non-exclusive, royalty-free right and license to use and reproduce, copy, distribute and display, in any medium now known or hereafter developed, the Advertisement and related materials and metadata submitted by Advertiser to BOLEH GMBH.

3.2. Advertisement Specification: Advertiser agrees to comply with and deliver all Advertisements in accordance with the technical specifications provided by BOLEH GMBH to enable proper display of such Advertisement in connection with this Agreement. Advertiser will be solely responsible for any and all costs Advertiser incurs for the production and delivery of the Advertisement in accordance with such specifications and for any programming related to the same which Advertiser elects to undertake. BOLEH GMBH reserves the right, in its sole discretion, to change any of its Advertisement specification at any time.

3.3. Advertisement Content: Advertiser is fully responsible for the content of the Advertisement and for compliance of the Advertisement with all applicable laws and regulations (including but not limited to the applicable privacy and marketing laws and regulations). For the avoidance of doubt, Advertiser shall also be fully responsible for all third party client Advertisements provided by Advertiser hereunder. To the fullest extent permitted by law, and subject to any liability under the applicable data protection law, BOLEH GMBH shall exclude any liability with regard to the content of the Advertisement as communicated.

3.4. Advertising Restriction: Notwithstanding the above, BOLEH GMBH reserves the right, in its sole discretion, without notice and without liability, to reject, omit, exclude, remove or terminate any Advertisement for any reason at any time.

4. PROPRIETARY RIGHTS

4.1. As between the Parties, Advertiser hereby agrees that BOLEH GMBH owns and retains all right, title and interest in its services, Campaigns, its systems, all software, databases and other aspects and technologies related to its services and systems, any enhancements, modifications or derivative works thereto, any materials made accessible to Advertiser by BOLEH GMBH through its systems or services (subject to section 4.2 below) or otherwise, and all intellectual property and proprietary rights in and to all of the foregoing.

4.2. If and insofar BOLEH GMBH is requested by Advertiser to design any Advertisements on behalf of Advertiser, BOLEH GMBH hereby agrees that Advertiser shall own all rights, title and interest to such Advertisement, including but not limited to the intellectual property rights of such design under the condition that during the Campaign this Advertisement shall exclusively be used for the Campaign and not for any other purposes, including but not limited to the use of the Advertisement by Advertiser itself and/or by any third parties that advertise Advertiser’s services. Such Advertisement shall have to be approved in writing by Advertiser, and Advertiser shall be solely responsible and liable for the content of such Advertisement and for compliance of the Advertisement with all applicable laws and regulations. Advertiser hereby holds harmless BOLEH GMBH from any and all claims (including but not limited to third parties claims) in this respect.

5. REPORTING AND PAYMENT

5.1. Reporting: Unless otherwise agreed in the IO BOLEH GMBH shall report the amount of Deliverables to Advertiser within 7 (seven) days of the end of each fortnightly (2 calendar weeks) period. Such reported amounts shall be conclusive between Parties unless Advertiser can provide incontestable evidence of its incorrectness. If BOLEH GMBH permits Advertiser to host the Advertisement in a CPA campaign, Advertiser shall permit BOLEH GMBH to place tracking codes on the Advertisement and BOLEH GMBH’s reporting generated from such tracking code will be binding on Advertiser.

5.2. Fraud Claims: To the extent Advertiser believes Fraud has occurred in any advertising by BOLEH GMBH, Advertiser must notify BOLEH GMBH within 48 hours of closing of each (lead/) transaction and provide competent evidence of such fraudulent activities to the satisfaction of BOLEH GMBH. Failure of Advertiser to notify BOLEH GMBH of any fraudulent activity within 48 hours of closing of each (lead/) transaction shall waive any right or claim of Advertiser against BOLEH GMBH. Advertiser shall not be entitled to any chargebacks for any lead unless agreed to by BOLEH GMBH in writing.

5.3. Credit evaluation: Upon signature of this Agreement, BOLEH GMBH will conduct an evaluation of Advertiser’s credit status. BOLEH GMBH’s provision of services is contingent to (i) successful completion of such credit evaluation and (ii) there being no material changes to Advertiser’s credit status during the term of this Agreement.

5.4. Fees: In consideration for the Deliverables, Advertiser shall pay BOLEH GMBH the fees as stipulated in IO. All stated fees are exclusive of VAT, withholding taxes and/or any other taxes that may be assessed by any jurisdiction. If VAT, withholding taxes or any other taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, Advertiser will pay those taxes to ensure that BOLEH GMBH receives the full amount invoiced to Advertiser without offset or deduction.

5.5. Payment: Unless otherwise agreed in the IO, BOLEH GMBH may invoice Advertiser on a bi-weekly basis in arrears or, when this Agreement is terminated, at such date of rightful termination. Advertiser shall pay invoices within 14 (fourteen) days of receipt, to the bank account as stipulated therein. In case parties agree that Advertiser shall pay for the Deliverables in advance, and such paid fees are related to the quantity of Deliverables, then Advertiser may, as necessary and applicable, at the end of the term of this Agreement issue a corrective invoice to BOLEH GMBH for fees unduly paid, and BOLEH GMBH shall return such overpaid amount within 30 (thirty) days of invoice date.

5.6. Late payment: If payment is not made timely, BOLEH GMBH may, at its option, immediately terminate this Agreement or suspend this Agreement until full payment has been made. Interest shall accrue on any past due amounts at the rate of the greater of 2% per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to BOLEH GMBH for all attorneys’ fees and other costs of collection to collect such unpaid amounts.

6. REPRESENTATION AND WARRANTIES

6.1. Advertiser’s representations and warranties: Advertiser hereby represents and warrants to BOLEH GMBH that: (i) Advertiser has the power and authority to enter into and perform its obligations according to the terms of this Agreement; (ii) Advertiser has no restrictions that would impair its ability to perform its obligations and grant all rights contemplated by this Agreement; (iii) Advertiser has not and will not enter into any agreement that is inconsistent with its obligations hereunder; (iv) none of the Advertisements will violate any rights of any third party including but not limited to intellectual property rights; ( v) none of the Advertisements will violate any applicable Act, law, regulation and/or code of conduct; (vi) Advertiser will not in any way collect and/or store personal identifiable data of end-users of its Advertisements without the explicit consent of the end-user and site. For avoidance of doubt, this consent is not automatically provided by BOLEH GMBH (vii) none of the Advertisements will, when viewed or clicked on by a customer, cause such customer’s computer to download any software application; (viii) an Advertisement will not be and/or link to any content that is defamatory, fraudulent, obscene, misleading or otherwise illegal; and (ix) none of the Advertisements will contain any viruses, Trojan horses, trap doors, back doors, Easter Eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage or interfere with BOLEH GMBH’s services. For the avoidance of doubt and without limitation, the aforementioned representations and warranties are also applicable where Advertiser is acting on behalf of a third party client of Advertiser.

6.2. BOLEH GMBH’s Representation and Warranties: BOLEH GMBH hereby represents and warrants to Advertiser that BOLEH GMBH: (i) has the power and authority to enter into and perform its obligations according to the terms of this Agreement; and (ii) has no restrictions that would impair its ability to perform its obligations contemplated by this Agreement.

6.3. Disclaimer EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN BY BOLEH GMBH AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, ARE SPECIFICALLY EXCLUDED BY BOLEH GMBH TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. BOLEH GMBH DOES NOT WARRANT THE RESULTS OF USE OF BOLEH GMBH’S SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY CAMPAIGN, AND ADVERTISER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.

7. INDEMNIFICATION AND LIMITATION OF LIABILITY

7.1. Indemnification by Advertiser: Advertiser shall defend, indemnify and hold harmless BOLEH GMBH, its Affiliated Companies and their respective officers, directors, employees and agents against any and all losses, damages, liabilities, claims, costs and expenses, including reasonable attorneys’ fees, arising out of or in connections with any breach of Advertiser’s representations, warranties or obligations set forth in this Agreement.

7.2. Indemnification by BOLEH GMBH: BOLEH GMBH shall defend, indemnify and hold harmless Advertiser, its Affiliated Companies and their respective officers, directors, employees and agents against any and all losses, damages, liabilities, claims, costs and expenses, including reasonable attorneys’ fees, arising out of or in connections with any breach of BOLEH GMBH’s representations, warranties or obligations set forth in this Agreement.

7.3. Limitation of Liability: Except in the case of indemnification against third party claims pursuant to section 7.1 or 7.2, in no event shall either party be liable for any direct, indirect, consequential, incidental or special damage, cost, loss or expense of any nature suffered by Advertiser in the execution of this Agreement to the maximum extent allowed by the law. Notwithstanding the foregoing, BOLEH GMBH’s liability for any and all claims arising under this Agreement shall in aggregate not exceed the fees paid under this Agreement in the preceding 3 (three) months.

8. CONFIDENTIALITY

8.1. Parties agree that any and all information, as present now or in the future, which is or may be a trade secret or of a confidential nature (in whatever media) regarding the operations, products, finance, marketing, customers, administration, maintenance, technology, research and development, future inventions and policies of either Party and its Affiliated Companies, including the existence and contents of this Agreement, and all notes, memoranda, records and writings relating to the Campaign, shall be confidential information (together “Confidential Information”). Both Parties shall treat Confidential Information with the strictest confidence and secrecy and none of the Confidential Information shall be disclosed to any third party or used for purposes other than those of this Agreement.

8.2. The restrictions in sub-clause 8.1 above do not apply to Confidential Information:
a) that is, or has, after disclosure to the receiving Party, entered into the public domain otherwise than as a result of a breach of confidentiality of the receiving Party; or
b) that is properly and lawfully in the possession of the receiving Party prior to the time that it was disclosed by or acquired from, and was not acquired in any way directly or indirectly from, the disclosing Party and/or its Affiliates or any of its or their respective directors, officers, employees or advisers (as evidenced by the written records or such person or persons) and provided that such information is not known to be subject to any other duty of confidentiality owed to or by the disclosing Party and/or its Affiliated Companies; or
c) the disclosure of which is required by law or the rules of any applicable regulatory organization provided that, in such case, disclosure shall only be made to the extent reasonably necessary to comply with relevant law or rule and the disclosing Party shall be informed of the requirement such that the disclosing Party may apply for an injunction to prevent its disclosure; or
d) that the disclosing Party has authorized the receiving Party in writing that the Confidential Information may be made public by the receiving Party.

8.3. The provisions of this clause 8 shall survive the termination of this Agreement and remain in force for 2 (two) subsequent years.

9. DATA PROTECTION

9.1. Compliancy Advertiser: Advertiser hereby agrees to comply with all applicable privacy Acts, laws and regulations. Advertiser acknowledges and agrees that as far as BOLEH GMBH is processing the Advertiser data on behalf of Advertiser and that, if, and to the extent, required by applicable data protection legislation, Advertiser will inform third parties of the processing of Advertiser data and ensure that any required third parties have given their consent to such processing. When Advertiser is using cookies Advertiser will arrange informed consent and provide opt out possibility for the users of its advertisements. By no means Advertiser shall collect or store personal identifiable data without explicit consent of the users of its advertisements which shall be arranged by the Advertiser.

9.2. Privacy Policy: Advertiser hereby agrees that the Advertiser website(s) and any other application which is advertised through the BOLEH GMBH network will feature a privacy policy, linked conspicuously from the Advertiser’s home page that (a) discloses Advertiser’s privacy practices including the use of a third party for the serving of its Advertisements , (b) identifies the collection (via cookies, advertiser ids and web beacons) and use of information gathered in connection with the Advertisements; (c) provides the customer with instructions as to opting out from such collection; and (d) complies with all applicable privacy Acts, laws and regulations.

10. NON-SOLICITATION

10.1. Advertiser recognizes that BOLEH GMBH has proprietary relationships with the affiliates and other third party publishers that participate in BOLEH GMBH’s advertising network and/or otherwise provide advertising inventory to BOLEH GMBH. During the term of the Campaign and 6 months thereafter Advertiser shall not solicit affiliates and/or other third party publishers that participate in BOLEH GMBH’s advertising network to either work directly with Advertiser or through an alternate affiliate supplier.

10.2 Advertiser understands and agrees that Advertiser’s breach of the provision of clause 10.1 would cause serious financial damage to BOLEH GMBH which damages would be difficult of exact proof. Accordingly, Advertiser agrees to pay BOLEH GMBH a sum equal of € 50,000 as liquidated damages for each and every breach of the aforementioned article, such notwithstanding the right of BOLEH GMBH to claim its actual damages.

11. TERM & TERMINATION

11.1. Term: This Agreement will commence at the Effective Date and continue in full force and effect until the End Date. In absence of an end date the Agreement can be terminated by either party upon prior written notice of 30 (thirty) days.

11.2. Termination of a Campaign: Advertiser may terminate or suspend any Campaign upon providing to BOLEH GMBH notice in accordance with the Agreed Out period specified in the IO.

11.3. Termination for Cause: Each Party may terminate this Agreement with immediately effect by written notice to the other Party where the other Party is in breach of a material term of this Agreement, has been served with a notice to remedy this breach, and has not affected a remedy to this breach within 14 (fourteen) days.

12. MISCELLANEOUS

12.1. No Exclusivity: Each Party shall carry out its commitments under this Agreement in a manner that reflects favorably upon the good name and goodwill of the other Party. The Parties agree that the commitments under this Agreement are not exclusive and that either Party may enter into similar agreements with third parties, including either Party’s competitors, subject to clause 10.1.

12.2. Agency, Partnership, and Joint Venture Excluded: Nothing in this Agreement shall create a relationship between the Parties of agency, partnership, or joint venture.

12.3. Force Majeure: Neither Party shall be held responsible or liable for any losses, direct or indirect damages, costs and/or expense arising out of any delay or failure in performance of any part of this Agreement due to any act of God, act of governmental authority, act of the public enemy or due to war, riot, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack or shortage of electrical power, failure of performance by any third party hosting service or equipment provided or maintained by others, including general performance of the Internet itself, or any other cause beyond the reasonable control of the Party delayed.

12.4. Entire Agreement: This Agreement constitutes the entire agreement between the Parties, and merges all prior and contemporaneous communications with respect to the agreement between the Parties.

12.5. Severability/Waiver: If any provision of this Agreement proves to be or becomes invalid or unenforceable under any of the applicable laws, then such provision shall be deemed modified to the extent necessary to render such provision valid and enforceable; if the provision may not be so altered, it shall be severed and the remainder of Agreement shall remain in full force and effect. No waiver of any breach of provision of this Agreement shall constitute a waiver of any other breach or any provision hereof, and no waiver shall be effective unless made in writing signed by an authorized representative of the waiving party.

12.6. Rights of third parties: Nothing in this Agreement confers or purports to confer on a third party any benefit or any right to enforce a term of this Agreement.

12.7. Assignment and Subcontracting: No rights or obligations arising under this Agreement may be assigned, transferred, subcontracted, or otherwise disposed of without the prior written consent of the Parties. Any attempt to do so is void. However, this Agreement may be transferred, assigned and/or delegated by either Party without prior written consent (i) to a person or entity who acquires or has acquired all or substantially all of this Party’s assets, stock or business by sale, merger or otherwise and (ii) to an Affiliated Company of this Party.

12.8. Independent contractor: Advertisers relationship with BOLEH GMBH will be that of an independent contractor and BOLEH GMBH shall be solely responsible for determining the method, details and means of performing the Campaign.

12.9. Notices: All notices, authorizations and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the mail, postage prepaid, certified or registered, return receipt as requested; or (ii) sent by air express courier (e.g. DHL) charges prepaid, return receipt requested; and addressed as set forth in the IO under the heading “Notices”, or in the absence thereof at the address of the party provided therein. Alternatively, regarding the scope of the Campaign or in case of a change in these terms and conditions, notices shall also be deemed given when sent by e-mail with a personalized acknowledgement of receipt. For avoidance of doubt, invoices addressed to Advertiser shall be sent to the address as provided in the IO.

12.10. Applicable law and dispute solution: This Agreement and any disputes pertaining to it will be governed and construed in accordance with laws of Germany and Parties submit to the jurisdiction of the courts of Berlin, Germany.

Data Processing Agreement for Advertisers

DATA PROCESSING AGREEMENT BOLEH GMBH FOR DATA CONTROLLERS

Processor and Data Controller hereinafter referred to collectively as „Parties“ and separately as „Parties“;
IN CONSIDERATION OF:

A. that Processor is a company active in the field of that Data Controller is a company active in the field of media buying, customer acquisition and conversion management

B. that Processor provides certain services to Data Controller;

C. that Processor may, in connection with services referred to in Section A, have access to Personal Data and Processor might process this Personal Data;

D. Data Controller as such might qualify as Data Controller within the meaning of Article 4 (7) of the AVG and Processor as such might qualify as Processor within the meaning of Article 4 (8) of the AVG;

E. Whereas, in so far as the processing of the Personal Data qualifies as such within the meaning of Article 4 (8) of the AVG, the Parties wish to make arrangements for the Processing of Personal Data referred to in Section B, in line with Article 28 (3) of the AVG;

HAVE AGREED AS FOLLOWS:

2. DEFINITIONS

This Data Processing Agreement means:

„Agreement“ the commercial agreement between Data Controller and Processor, upon request of either party to be attached as Annex I to this Data Processing Agreement, including Processor’s general terms and conditions;

„AVG“ REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND THE COUNCIL of 27 April 2016 on the protection of natural persons in connection with the processing of personal data and on the free movement of those data and repealing Directive 95/46 / EC (General Data Protection Regulation);

„Data Breach“ a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed;

„Data Processing Agreement “ this Agreement;

„EEA“ European Economic Area;

„Personal Data“ any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

„Processing“ any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

„Third parties“ legal entities or private persons who are used by any Processor in any Processing (including but not limited to any suppliers and group companies of Processor).

2. RELATIONSHIP TO THE AGREEMENT

This Data Processing Agreement is part of the Agreement. In the event of a contradiction between the provisions of this Data Processing Agreement and the Agreement regarding the processing of data, the provisions of this Data Processing Agreement shall prevail, provided that provisions in this Data Processing Agreement are deemed to be supplementary to the Agreement in so far as they contain any rule for any subject that is not settled in the Agreement.

3. PROCESSING BY PROCESSOR

3.1 The Processor hereby undertakes to process Personal Data at all times solely for the performance of the Agreement or this Data Processing Agreement, on behalf of Data Controller and subject to the terms of the Agreement and this Data Processing Agreement. Processor acknowledges and accepts the control of Personal Data remains with Controller and that it is in no case free to use the Personal Data for his or her own purposes and that he is obliged to follow the reasonable instructions of Data Controller with respect to the Processing (including instructions for the destruction of Personal Data).

3.2 Data Controller shall at all times control the Personal Data; Processor is therefore obliged to provide Data Controller access to the Personal Data Processing as soon as possible following a request thereto from Data Controller.

3.3 The Processor is obliged to ensure that each Processing complies with all applicable laws and regulations applicable to the Processing of Personal Data.

3.4 The Processor is obliged to, within 2 months of termination of the Agreement, transmit all such of the Personal Data processed by him, to the Data Controller or destroy such Personal Data, following at least one written request thereto. The Processor shall confirm in writing that all relevant Personal Data are carried over or destroyed. In the event the Processor is subjected to certain (other) more extended legal retention periods with regards to the Personal Data processed under this agreement, it shall inform Data Controller accordingly, and destruction shall take place taking these retention period(s) into account.

3.5 The foregoing article 3.4 applies to (transmitting or destroying) all Personal Data provided by Data Controller, including, at least – but not limited to – (copy of) physical documents and electronic storage on data carriers, computers or (cloud) servers).

3.6 Upon request Processor shall give Data Controller (or a designated representative), the opportunity to check the destruction of Personal Data by Processor.

4. SECURITY

4.1 The Processor shall take all reasonable technical and organizational security measures to protect the Personal Data against destruction, loss or any form of unlawful processing (including unnecessary collection and further processing).

4.2 To prevent unauthorized persons from gaining access to data processing systems in which Personal Data are Processed (physical access control), Processor shall take measures to prevent physical access, such as security personnel and secured buildings.

4.3 To prevent data processing systems being used without authorization (system access control) the following may, among other controls, shall be applied: authentication via passwords, document authorization processes and/ or two factor authentication.

5. AUDIT

5.1 Data Controller has the right to (once) audit compliance with the terms of the Agreement and this Data Processing Agreement, at its own expense, only by a certified and independent Register EDP Auditor („RE“), with due observance of a notice period of 4 weeks. At Data Controller’s request, Processor shall provide assistance with the audit, at costs,

5.2 The audit referred to in this article shall in any case be limited to the access to data from other Processors. Data Controller and Processor will configure the audit in such manner that it will not result in violation of any obligations Processor has regarding other Data Controllers.

6. CONFIDENTIALITY

6.1 The Processor hereby undertakes not to disclose any Personal Data (or other sorts of data) relating to this Data Processing Agreement or any of Data Controller’s activities to third parties without the prior written consent of Data Controller.

6.2 The provisions of Article 6.1 do not apply to the extent that the Personal Data or other information referred to therein:

-is already public otherwise than by violation of the provisions of article 6.1

-is provided or disclosed for the purpose of the normal performance of the Agreement or this Data Processing Agreement;

-is provided or made public under the law (including tax regulations).

6.3 Without prejudice to Article 9.1 Processor is specifically required to:

-to inform all employees and all third parties of the confidential nature of the Personal Data;

-to ensure that all of its employees and all third parties in respect of Processor have the same confidentiality obligations as apply to Processors under this Data Processing Agreement.

7. INFORMATION AND REPORTING OBLIGATION

7.1 If any Authority (including, but not limited to, the Personal Data Authority) requests the Processor to provide Personal Data, Processor is required to:

-Notify the Data Controller immediately of the receipt of the relevant request prior to the disclosure of the relevant Personal Data;

-Observe the reasonable instructions of Data Controller regarding providing of the Personal Data in question except in so far any legal provisions obstructs Processor from doing so.

7.2 Processor shall, with due regard to the nature of the processing, provide, by means of appropriate technical and organizational measures, the Controller, as far as possible, with assistance in fulfilling the duty to answer requests for the exercise of the rights of persons mentioned in Chapter III AVG.
If any party which (data) is involved in the Processing makes any claims, including – but not limited to – any single complaint and/ or a sole request for access to, correction, removal or transferability of Personal Data, Processor will:

-Notify the Data Controller without delay of the receipt of the relevant notices;

-to follow the reasonable instructions of the Data Controller in connection with the communication and settlement thereof strictly and carefully.

7.3 In the event of an Data Breach in the systems used by Processor is required to:

-Notify the Data Controller immediately, by describing the nature, extent and possible consequences thereof, specifying the (technical and organizational) measures that should be taken by Processor and Data Controller to restore the Personal Data protection and, as far as possible, limit the negative impact of the incident concerned;

-Enable Data Controller to (i) further investigate the Infringement and (ii) timely and completely comply with her legislative obligations in respect of the Infringement (including at least – but not limited to – its obligations to make notifications as referred to in Articles 33 and 34 of the AVG);

-Except in so far not having received other instructions from the Data Controller, immediately take all (technical and organizational) measures that may reasonably be required from him to restore the security of the Personal Data and, to the extent possible, the negative to remove the consequences of the infringement in question;

-Strictly and carefully implement the reasonable instructions from Data Controller in connection with the Infringement;

-Inform the Data Controller of any new developments related to the Infringement and all measures undertaken by the Processor itself.

7.4 The Processor acknowledges and accepts that the Data Controller has the duty to make notifications regarding any Data Breaches (including, in any case – but not exclusively – the notifications provided for in Articles 33 and 34 of the AVG).

7.5 The Processor guarantees that he has implemented appropriate protocols and procedures to ensure that he is able to fulfill his obligations under this Article 7; At the first request of Data Controller, Processor will provide a description of those protocols and procedures related to Data Controller.

8. INDEMNITY AND LIABILITY

8.1 Data Controller indemnifies Processor for all claims (including – but not limited to – any claims from any Authority such as, for example, the Personal Data Authority) in connection with any infringement and / or the processing of Personal Data, in so far as they are the consequence of non-timely or incomplete fulfillment of the Processor’s obligations as defined in this Data Processing Agreement or the AVG.

8.2 Processor’s liability for damage suffered by Data Controller is subject to what parties agreed upon in the general terms and conditions.

9. OUTSOURCING ACTIVITIES

9.1 The Processor is permitted to outsource (any part of) the Processing to any third party (including Third parties).

9.2 Subcontracting from (any part of) Processing to one or more third parties does not in any way affect the Processor’s responsibility to comply with the provisions of this Data Processing Agreement, nor to any liability of Processor for damage resulting from non-compliance with the provisions of this Data Processing Agreement.

10. ASSISTANT SUBORDINATES AND HELPERS

10.1 Processor is only allowed to provide Personal Data to those Employees and Third parties for whom disclosure of the Personal Data is required in performing work for the proper performance of the Agreement by the Processor. At the first request of Data Controller, Processor to Data Controller will provide an overview of the relevant employees and Third parties.

10.2 The obligations arising from Processing from this Data Processing Agreement shall apply equally to employees and Third parties who are aware of the Personal Data under the authority of Processor; The processor undertakes to ensure that all such employees and third parties accept the relevant obligations as their own obligations.

11. PROCESSING IN THE EUROPEAN UNION

The Processor is only allowed to process the Personal Data in the European Union. For Processing by Processor outside the European Union, prior written permission from Data Controller is required.

12. FINAL PROVISIONS

12.1 Changes to this Data Processing Agreement are valid only when made in written form and signed by both Data Controller and Processor.

12.2 This Data Processing Agreement is governed by German law.

12.3 All disputes relating to, arising out of or relating to (the explanation or interpretation of) this Agreement may only be submitted to the court in Berlin.

Terms & Conditions for Publishers

TERMS AND CONDITIONS FOR AFFILIATES & CAMPAIGN PUBLISHERS

WHEREAS: Parties have executed an insertion order referencing this Agreement and therefore the Terms and Conditions as stipulated hereunder shall apply between Parties for the performance of that insertion order unless specifically altered by such IO.

1.APPLICABILITY

1.1. These terms and conditions are applicable to all requests, orders, offers and agreements in which this Agreement is referenced.

1.2. These conditions shall only be deviated from by agreement in writing, subject to Advertiser reserving the right to change these terms and conditions upon prior written notice of 2 (two) weeks.

1.3. Any general terms and conditions of the Party dealing with Advertiser, howsoever incorporated, shall be excluded.

The Agreement shall only be binding on Advertiser when signed by the authorized signatory individual(s

2. DEFINITIONS

“Ads” means advertisements, including the artwork, banners or graphics, provided by Advertiser, including but not limited to any advertisements provided by Advertiser on behalf of any third party client of Advertiser, as may be further defined in an IO.

“Affiliate” means any third party under the effective control of a Party to this Agreement or under common control of a Party to this Agreement. Effective control in the foregoing sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies, or actions of an entity through the exercise of ownership or voting rights;

This “Agreement” means this Purchasing Agreement for Online Media and the applicable IO and Annex;

“Campaign” means the actions of Publisher in fulfilling its obligations to Advertiser under this Agreement;

“Channel(s)” means the media as referred to in the IO;

“CPA” or “Cost Per Acquisition” means the fee payable by Advertiser to Publisher for each completed and valid sale of Advertiser’s service or product to a customer resulting from Publishers performance of its obligations under this Agreement;

“CPC” or “Cost Per Click” means the fee payable by Advertiser to Publisher for each valid customer click on Advertiser’s Ad resulting from Publishers performance of its obligations under this Agreement;

“CPL” or “Cost Per Lead” means the fee payable by Advertiser to Publisher for each valid customer lead provided to Advertiser resulting from Publishers performance of its obligations under this Agreement;

“CPM” or “Cost Per Mille” means the fee payable by Advertiser to Publisher for each valid impression of Advertiser’s Ad to a potential customer resulting from Publishers performance of its obligations under this Agreement;

“Deliverables” means the type(s) and amount(s) of results to be delivered (e.g. CPA. CPC, CPL and/or CPM) by Publisher to Advertiser, as set forth in an IO.

“Effective Date” means the date stated under such heading in the IO, in absence of which it shall be the date of the last signature of the IO.

“End Date” means the date stated under such heading in the IO;

“IO” means insertion order executed between Parties referencing this Agreement.

„Intellectual Property Rights“ means any patents, trademarks, service marks, registered designs (including applications for any of the foregoing), copyright in all works created under this Agreement on behalf of Advertiser and eligible for copyright, including, without limitation, literary or artistic works, or software programs of which it may be the author and which were or are created, compiled, devised or brought into being during the course and scope of Publishers work for Advertiser, design rights, know-how, trade and business names and any other similar protected rights in any country;

“Party” means either the Advertiser or Publisher severally and “Parties” means both the Advertiser and the Publisher jointly;

“Advertiser” means the entity as referred to as such in the IO;

“Publisher” means the entity as referred to as such in the IO;

“Territory” means the (parts of) countries referred to as such in the IO

3. OBLIGATIONS

3.1. Scope of the Agreement: From time to time Parties may negotiate IO’s under which Publisher shall deliver Ad(s) to Channel(s) targeting only the Territory for the benefit of Advertiser. Each IO shall specify: (a) the Deliverables; (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent (if applicable), (d) the start and end dates of the Campaign.

3.2. Ads: Publisher has no right to change, make additions to or derive from Ads as provided by Advertiser.

3.3. Reporting: Unless otherwise agreed in the IO Advertiser shall report the amount of Deliverables to Publisher within 14 (fourteen) days of the end of each calendar month. Such reported amounts shall be conclusive between Parties unless Publisher can provide incontestable evidence of its incorrectness.

3.4. Change procedure: Publisher shall comply with any request of Advertiser to make changes to the Campaign within 24 (twenty four) hours notice thereto:
a) providing that the change requested is of a nature that it will not cause Publisher more than nominal inconvenience and expense to implement; or
b) where changes requested by Advertiser will cause more than nominal inconvenience and expense Publisher will inform Advertiser of this fact within 24 (twenty four) hours of such notice for change and provide Advertiser with an estimate of the work, time, and cost required to implement the changes. Advertiser may accept such additional cost by issuing an IO.

3.5. Fee changes: Advertiser may alter the fee payable for the Deliverables by providing Publisher 8 (eight) hours notice of the new prices. Publisher may either:
a) accept the prices; or
b) terminate the Agreement before the new prices apply; or
c) enter into negotiations with Advertiser to agree on alternative pricing, providing, however, that the new prices will apply from the date stipulated by the Advertiser.

3.6. Additional Terms and conditions: Publisher undertakes to comply with and be bound by the “Annex to Terms and Conditions Publishers” attached as Annex to this Agreement. Additionally, Publisher undertakes to have the person or entity having control over the Channel(s) where the Ads shall be published, its publishers of advertisements comply with the “Annex to Terms and Conditions Publishers”.

4. PAYMENT

4.1. In consideration for the Deliverables, Advertiser shall pay Publisher the fees as stipulated in IO. Any Deliverables relating to an advertisement of a third party client of Advertiser shall be payable to Publisher once payment from this third party client has been received by Advertiser.

4.2. All stated fees are exclusive of VAT and/or any other sales related taxes.

4.3. Publisher may invoice Advertiser on a monthly basis in arrears or, when this Agreement is terminated, at such date of rightful termination. Advertiser shall pay undisputed invoices within 30 (thirty) days of the date of invoice, to the bank account as stipulated therein.

4.4. Publisher shall send invoices to Advertisers name as stipulated in the IO to the address:

boleh gmbh, Bleibtreustrasse 51, 10623 Berlin, Germany
or, alternatively: finance@matthias-associates.com

In case parties agree that Advertiser shall pay for the Deliverables in advance, and such paid fees are related to the quantity of Deliverables, then Advertiser may, as necessary, issue a corrective invoice to Publisher for fees unduly paid, and Publisher shall return such overpaid amount within 30 (thirty) days of invoice date.

4.5. Advertiser may offer direct financial incentives to the Channel owner, which shall not be subject to
deduction, commission, or adjustment by Publisher. Publisher will pass all incentives through to the recipient Channel owners promptly.

4.6. Advertiser and Publisher may agree that the Channel owner receive a fixed percentage of the price paid to Publisher for the Deliverables and/or a minimum price per Deliverable.

5. INDEMNIFICATION

5.1. Advertiser shall defend, indemnify and hold Publisher harmless against all claims for breach of copyright, trademarks, or image rights and the losses, direct damages, costs and expenses including all reasonable legal fees claimed or incurred by Publisher directly as a result of use of material(s) provided by Advertiser for publishing, provided that (i) Publisher has strictly adhered to all terms and conditions stated in this Agreement (including for the avoidance of doubt, all Additional terms and conditions as referred to in clause 3.6 hereof), and (ii) Publisher shall promptly notify the Advertiser in writing of such claim, and (ii) Advertiser shall be entitled to take sole control of the defence and settlement of the claim at its own cost and expense, including using attorneys or other third parties of its choice, and (iii) Publisher will cooperate with Advertiser in the defence of the claim.

6. CONFIDENTIALITY

6.1. Parties agree that any and all information, as present now or in the future, which is or may be a trade secret or of a confidential nature (in whatever media) regarding the operations, products, finance, marketing, customers, administration, maintenance, technology, research and development, future inventions and policies of Advertiser and its Affiliates, including the existence and contents of this Agreement, and all notes, memoranda, records and writings made by Publisher relating to the Campaign, shall be confidential information (together “Confidential Information”). Publisher shall treat Confidential Information with the strictest confidence and secrecy and none of the Confidential Information shall be disclosed by Publisher to any third party or used for purposes other than those of providing the Campaign to Advertiser.

6.2. The restrictions in sub-clause 6.1 above do not apply to Confidential Information:
a) that is, or has, after disclosure to Publisher, entered into the public domain otherwise than as a result of a breach of confidentiality of Publisher; or
b) that is properly and lawfully in the possession of Publisher prior to the time that it was disclosed by or acquired from, and was not acquired in any way directly or indirectly from, Advertiser and/or its Affiliates or any of its or their respective directors, officers, employees or advisers (as evidenced by the written records or such person or persons) and provided that such information is not known to be subject to any other duty of confidentiality owed to or by Advertiser and/or its Affiliates; or
c) the disclosure of which is required by law or the rules of any applicable regulatory organization provided that, in such case, disclosure shall only be made to the extent reasonably necessary to comply with relevant law or rule and Advertiser shall be informed of the requirement such that Advertiser may apply for an injunction to prevent its disclosure; or
d) that Advertiser has authorized the Publisher in writing that the Confidential Information may be made public by Publisher.

6.3. The provisions of this clause 6 shall survive the termination of this Agreement and remain in force in perpetuity.

7. LIABILITIES & INDEMNIFICATION

7.1. Publisher assumes full responsibility for the performance and good working of the Campaign. In the event of a breakdown of the service offering, Publisher will take all reasonable steps to bring the equipment and Campaign back into working.

7.2. Except in the case of intend, willful misconduct or non-compliance with any of the terms of (the Annex to) this Agreement of Publisher, Publisher shall not be liable for any indirect, consequential, incidental or special damage, cost, loss or expense of any nature suffered by Advertiser in the performance of the Campaign.

7.3. Advertiser shall not be liable for any direct, indirect, consequential, incidental or special damage, cost, loss or expense of any nature suffered by Publisher in the execution of this Agreement to the maximum extend allowed by the law. Notwithstanding the foregoing, Advertiser’s liability for any and all claim arising under this Agreement shall in aggregate not exceed the fees paid under this Agreement in the preceding 3 (three) months.

8. REPRESENTATIONS AND WARRANTIES

8.1. Publisher hereby represents and warrants to Advertiser that: (i) Publisher has the power and authority to enter into and perform its obligations according to the terms of this Agreement; (ii) Publisher has no restrictions that would impair its ability to perform its obligations and grant all rights contemplated by this Agreement; (iii) Publisher has not and will not enter into any agreement that is inconsistent with its obligations hereunder; (iv) in providing its obligations under this agreement it will attain standards of care and skill as high as any currently available in the same industry as that of the Publisher and that all Publishers’ personnel, agents and sub-contractors will have the experience and qualification appropriate for any tasks they perform hereunder; and (v) Publisher will act in accordance with all relevant laws and binding codes of conduct applicable to the Campaign.

8.2. Without limiting the generality of the foregoing, for Campaigns using (e-mail) database marketing as Channel, Publisher represents and warrants that all personal data has been collected and processed in accordance with any applicable Privacy Acts, laws and regulations and that all data subjects have given their explicit consent as defined in EU Directive 95/46 and EU Directive 2002/58 for receiving communication for commercial purposes in accordance with the provisions of this Agreement and the IO(s) and agrees to defend, indemnify and hold Advertiser harmless from any liability, claims, damages, fines, penalties, costs, demands and expenses (including costs of defence, settlement and reasonable legal fees) arising from or related to any violation in this respect.

8.3. Advertiser hereby represents and warrant to Publisher that Advertiser: (i) has the power and authority to enter into and perform its obligations according to the terms of this Agreement; and (ii) has no restrictions that would impair its ability to perform its obligations contemplated by this Agreement.

8.4. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN BY EITHER PARTY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, ARE SPECIFICALLY EXCLUDED BY THE PARTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. TERM & TERMINATION

9.1. Term: This Agreement will commence at the Effective Date and continue in full force and effect for a period of 24 months and shall automatically renew thereafter for a period of 24 months unless terminated in accordance with this Agreement by either parties.

9.2. Termination for Convenience: Advertiser may terminate this Agreement for convenience on providing Publisher with 30 days prior written notice.

9.3. Termination of a Campaign: Advertiser may terminate or suspend any Campaign upon providing to Publisher notice in accordance with the Agreed Out period specified in the IO.

9.4. Termination for Cause: Each Party may terminate this Agreement with immediately effect by written notice to the other Party where the other Party is in breach of a material term of this Agreement, has been served with a notice to remedy this breach, and has not affected a remedy to this breach within 14 (fourteen) days.

9.5. Termination for Regulatory Change: Advertiser may terminate this Agreement by written notice and with immediate effect and with no penalty if a governmental or regulatory change significantly impacts the ability of Advertiser to provide services or materials to customers responding to Ads delivered by Publisher.

9.6. Consequences of Termination: Within 48 (forty eight) hours of termination of the Agreement Publisher shall have any and all links to Ads removed from the Channel(s). The clauses as listed hereafter shall survive the termination or expiration of this Agreement: 3.3, 4, 5, 6, 7, 9.6, 10 and 11.

10. NON-SOLICITATION

10.1: Publisher recognizes that Advertiser has proprietary relationships with third party clients that place advertisements in Advertiser’s advertising network and/or otherwise provide advertisements to Advertiser. During the term of the Campaign until 6 months thereafter Publisher shall not solicit these third party clients to either work directly with Publisher or through an alternate Advertiser.

10.2 Publisher understands and agrees that Publisher’s breach of the provision of clause 10.1 would cause serious financial damage to Advertiser which damages would be difficult of exact proof. Accordingly, Publisher agrees to pay Advertiser a sum equal of € 10,000 as liquidated damages for each and every breach of the aforementioned article, such notwithstanding the right of Advertiser to claim its actual damages.

11. MISCELLANEOUS

11.1. No Exclusivity. Each Party shall carry out its commitments under this Agreement in a manner that reflects favourably upon the good name and goodwill of the other Party. The Parties agree that the commitments under this Agreement are not exclusive and that either Party may enter into similar agreements with third parties, including either Party’s competitors.

11.2. Agency, Partnership, and Joint Venture Excluded: Nothing in this Agreement shall create a relationship between the Parties of agency, partnership, or joint venture.

11.3. Force Majeure: Neither Party shall be held responsible or liable for any losses, direct or indirect damages, costs and/or expense arising out of any delay or failure in performance of any part of this Agreement due to any act of God, act of governmental authority, act of the public enemy or due to war, riot, flood, civil commotion, insurrection, labour difficulty, severe or adverse weather conditions, lack or shortage of electrical power, failure of performance by any third party hosting service or equipment provided or maintained by others, including general performance of the Internet itself, or any other cause beyond the reasonable control of the Party delayed.

11.4. Entire Agreement: This Agreement constitutes the entire agreement between the Parties, and merges all prior and contemporaneous communications with respect to the agreement between the Parties.

11.5. Severability/Waiver: If any provision of this Agreement proves to be or becomes invalid or unenforceable under any of the applicable laws, then such provision shall be deemed modified to the extent necessary to render such provision valid and enforceable; if the provision may not be so altered, it shall be severed and the remainder of Agreement shall remain in full force and effect. No waiver of any breach of provision of this Agreement shall constitute a waiver of any other breach or any provision hereof, and no waiver shall be effective unless made in writing signed by an authorized representative of the waiving party.

11.6. Rights of third parties: Nothing in this Agreement confers or purports to confer on a third party any benefit or any right to enforce a term of this Agreement.

11.7. Assignment and Subcontracting: No rights or obligations arising under this Agreement may be assigned, transferred, subcontracted, or otherwise disposed of without the prior written consent of the Parties. Notwithstanding the foregoing, Advertiser may assign the rights and obligations arising under this Agreement to its Affiliates.

11.8. Independent contractor: Advertisers relationship with Publisher will be that of an independent contractor and Publisher shall be solely responsible for determining the method, details and means of performing the Campaign.

11.9. Notices: All notices, authorizations and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the mail, postage prepaid, certified or registered, return receipt as requested; or (ii) sent by air express courier (e.g. DHL) charges prepaid, return receipt requested; and addressed as set forth in the IO under the heading “Notices”, or in the absence thereof at the address of the party provided therein. Alternatively, regarding the scope of the Campaign, notices shall also be deemed given when sent by e-mail with a personalized acknowledgement of receipt. For avoidance of doubt, invoices addressed to Advertiser shall be sent to the address as provided in clause 4.4 above.

11.10. Applicable law and dispute solution: This Agreement and any disputes pertaining to it will be governed and construed in accordance with laws of Germany and Parties submit to the jurisdiction of the courts of Berlin, Germany.

12. ANNEX TO TERM & CONDITIONS – PUBLISHERS

Advertiser (meaning the entity whose products or services are promoted in connection with these terms and conditions), in contracting for Channel Owner’s (your) services in the provision of deliverables, either directly or indirectly through a network of Channel Owners, requires that Channel Owner (you) adheres to the following terms and conditions with respect to Channel Owner’s (your) relationship to Advertiser and presentation of the text and graphics promoting Advertisers goods or services (the Advertiser’s advertisements).
In participating in any Advertiser advertising or marketing campaign Channel Owner fully accepts and agrees to the terms and conditions as set out in this document.

1. ADVERTISEMENTS WILL NOT BE PLACED ON WEBSITES OR OTHER ONLINE MEDIUMS WHICH

1.1. Displays pornographic or other adult-oriented material – unless approved in the IO;

1.2. Advocate, facilitate, or encourage copyright or other intellectual property rights infringement, or any other actions prohibited by law;

1.3. Promote peer-to-peer network, illegal file sharing, or illegal file downloading;

1.4. Promote violence, hate crimes, discrimination, exploitation, or vilification against any race, religion, sexual, orientation, disability, ethnicity, nationality, age, gender, gender identity, or political affiliation;

1.5. Displays material of a libelous, obscene, objectionable, or defamatory nature, or which is otherwise contrary to good business practice or public policy;

1.6. Promote the use of firearms, explosives, alcohol, tobacco, or illegal drugs or other controlled substances;

1.7. Promote multi-level marketing, pyramid schemes, or mail fraud, or provide investment advice other than that of a qualified professional investment adviser;

1.8. Are oriented primarily towards viewers under the age of 16; or

1.9. Would otherwise reflect poorly on Advertiser.

2. IN PLACING ADVERTISEMENTS OR GENERATING DELIVERABLES CHANNEL OWNER WILL NOT:

2.1. Send unsolicited commercial email (SPAM);

2.2. Utilise any form of adware, malware, or spyware;

2.3. Utilise ActiveX, Java, DotNet, or other scripts or software mechanisms to remove or limit an internet user’s control of their web browser;

2.4. Generate pop-under ads or multiple pop-up ads – unless approved in the IO;

2.5. Display the advertisements in any way such that portions of the advertisement are obscured;

2.6. Utilize any form of fishing, spamming, spidering, or robots to collect personal information or otherwise invade an internet user’s privacy;

2.7. Collect information supplied by a customer to Advertiser;

2.8. Engage in any misleading or deceptive conduct, especially in relation to the price or subscription character of Advertiser’s service;

2.9. Represent themselves as being in any way connected with Advertiser or any other third party referred to in the advertisements;

2.10. Make representations or warranties of any kind with regard to the products or services offered by Advertiser;

2.11. Provide any misleading or incorrect information about Advertiser or its products; or

2.12. Utilize any other methods of advertising that would reflect poorly on Advertiser.

3. IN RELATION TO THE ADVERTISEMENTS PROVIDED BY ADVERTISER CHANNEL OWNER WILL NOT:

3.1. Alter the advertisement in any way;

3.2. Use advertisements of their own creation, or that of a third party;

3.3. Cache or locally store any advertisement, graphic, text, or audio track, or fragment thereof, made available by Purchaser; or

3.4. Obtain any rights in or to the advertisements or any trademark or other intellectual property of Advertiser or any other third party.

4. CHANNEL OWNERS WILL BE FURTHER RESTRICTED IN NOT:

4.1. Acting in breach of applicable national laws or applicable codes;

4.2. Generating false clicks, subscriptions, or deliverables;

4.3. Urging third parties to generate false clicks, subscriptions, or deliverables; or

4.4. Performing other acts that will result in an unwarranted increase in Channel Owner’s commission.

5. IF CHANNEL OWNER ACTS IN BREACH OF THE REQUIREMENTS SET OUT IN THIS DOCUMENT ADVERTISER WILL BE ENTITLED TO:

5.1. Immediately terminate Channel Owner’s relationship with Advertiser;

5.2. Withhold any accrued and unpaid commissions attributable to Channel Owner; and

5.3. Require Channel Owner to refund all commissions paid to Channel Owner for deliverables generated while Channel Owner was in breach of the terms and conditions set out in this document.

CHANNEL OWNER FURTHER FULLY INDEMNIFIES AND HOLDS HARMLESS ADVERTISER AGAINST ANY CLAIMS, LIABILITIES, LOSSES, DAMAGES, INJURIES AND EXPENSES, HOWSOEVER INCURRED AND OF WHATEVER NATURE, WHICH RESULT FROM CHANNEL OWNERS BREACH OF ANY OF THE TERMS AND CONDITIONS SET OUT IN THIS DOCUMENT.

Any dispute arising in connection with the terms and conditions set out in this document will be subject to German law. Channel Owner and Advertiser submit to the nonexclusive jurisdiction of the courts of Berlin, Germany.

Data Processing Agreement for Publishers

DATA PROCESSING AGREEMENT BOLEH GMBH FOR PROCESSORS

Processor and Data Controller hereinafter referred to collectively as „Parties“ and separately as „Parties“;
IN CONSIDERATION OF:

A. that Data Controller is a company active in the field of online marketing, media buying, customer acquisition and conversion management;

B. that Processor provides certain services to Data Controller in order for Data Controller to meet its commercial obligations mentioned under A above;

C. that Processor may, in connection with services referred to in Section A, have access to Personal Data and Processor might process this Personal Data;

D. Data Controller as such might qualify as Data Controller within the meaning of Article 4 (7) of the AVG and Processor as such might qualify as Processor within the meaning of Article 4 (8) of the AVG;

E. Whereas, in so far as the processing of the Personal Data qualifies as such within the meaning of Article 4 (8) of the AVG, the Parties wish to make arrangements for the Processing of Personal Data referred to in Section B above, in line with Article 28 (3) of the AVG;

HAVE AGREED AS FOLLOWS:

2. DEFINITIONS

This Data Processing Agreement means:

„Agreement“ the commercial agreement between Data Controller and Processor, upon request of either party to be attached as Annex I to this Data Processing Agreement, including Processor’s general terms and conditions;

„AVG“ REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND THE COUNCIL of 27 April 2016 on the protection of natural persons in connection with the processing of personal data and on the free movement of those data and repealing Directive 95/46 / EC (General Data Protection Regulation);

„Data Breach“ a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed;

„Data Processing Agreement “ this Agreement;

„EEA“ European Economic Area;

2. RELATIONSHIP TO THE AGREEMENT

This Data Processing Agreement is part of the Agreement. In the event of a contradiction between the provisions of this Data Processing Agreement and the Agreement regarding the processing of data, the provisions of this Data Processing Agreement shall prevail, provided that provisions in this Data Processing Agreement are deemed to be supplementary to the Agreement in so far as they contain any rule for any subject that is not settled in the Agreement.

3. PROCESSING BY PROCESSOR

3.1 The Processor hereby undertakes to process Personal Data at all times solely for the performance of the Agreement or this Data Processing Agreement, on behalf of Data Controller and subject to the terms of the Agreement and this Data Processing Agreement. Processor acknowledges and accepts the control of Personal Data remains with Controller and that it is in no case free to use the Personal Data for his or her own purposes and that he is obliged to follow the reasonable instructions of Data Controller with respect to the Processing (including instructions for the destruction of Personal Data).

3.2 Data Controller shall at all times control the Personal Data; Processor is therefore obliged to provide Data Controller access to the Personal Data Processing as soon as possible following a request thereto from Data Controller.

3.3 The Processor is obliged to ensure that each Processing complies with all applicable laws and regulations applicable to the Processing of Personal Data.

3.4 The Processor is obliged to, within 2 months of termination of the Agreement, transmit all such of the Personal Data processed by him, to the Data Controller or destroy such Personal Data, following at least one written request thereto. The Processor shall confirm in writing that all relevant Personal Data are carried over or destroyed. In the event the Processor is subjected to certain (other) more extended legal retention periods with regards to the Personal Data processed under this agreement, it shall inform Data Controller accordingly, and destruction shall take place taking these retention period(s) into account.

3.5 The foregoing article 3.4 applies to (transmitting or destroying) all Personal Data provided by Data Controller, including, at least – but not limited to – (copy of) physical documents and electronic storage on data carriers, computers or (cloud) servers).

3.6 Processor is obliged to provide Data Controller (or a designated representative), the opportunity to check the destruction of Personal Data by Processor.

4. SECURITY

4.1 The Processor shall take all appropriate technical and organizational security measures to protect the Personal Data against destruction, loss or any form of unlawful processing (including unnecessary collection and further processing).

4.2 To prevent unauthorized persons from gaining access to data processing systems in which Personal Data are Processed (physical access control), Processor shall take measures to prevent physical access, such as security personnel and secured buildings.

4.3 To prevent data processing systems being used without authorization (system access control) the following may, among other controls, shall be applied: authentication via passwords, document authorization processes and/ or two factor authentication.

4.4 To ensure that persons entitled to use a data processing system only have access to the Personal Data to which they have privilege of access, and that Personal Data cannot be read, copied, modified or removed without authorization in the course of Processing Personal Data is accessible and manageable only by proper authorized staff, direct database query access is restricted and application access rights are established and enforced.

5. AUDIT

5.1            Data Controller has the right to (once) audit compliance with the terms of the Agreement and this Data Processing Agreement, at its own expense, by a certified and independent Register EDP Auditor („RE“) or any other auditor it considers appropriate, with due observance of a notice period of 2 weeks.  At Data Controller’s request, Processor shall provide assistance with the audit, free of charge

5.2            The audit referred to in this article shall in any case be limited to the access to data from other Processors. Data Controller and Processor will configure the audit in such manner that it will not result in violation of any obligations Processor has regarding other Data Controllers.

6. CONFIDENTIALITY

6.1            The Processor hereby undertakes not to disclose any Personal Data (or other sorts of data) relating to this Data Processing Agreement or any of Data Controller’s activities to third parties without the prior written consent of Data Controller.

6.2            The provisions of Article 6.1 do not apply to the extent that the Personal Data or other information referred to therein:

-is already public otherwise than by violation of the provisions of article 6.1

-is provided or disclosed for the purpose of the normal performance of the Agreement or this Data Processing Agreement;

-is provided or made public under the law (including tax regulations).

6.3 Without prejudice to Article 9.1 Processor is specifically required to:

-to inform all employees and all third parties of the confidential nature of the Personal Data;

-to ensure that all of its employees and all third parties in respect of Processor have the same confidentiality obligations as apply to Processors under this Data Processing Agreement.

7. INFORMATION AND REPORTING OBLIGATION

7.1 If any Authority (including, but not limited to, the Personal Data Authority) requests the Processor to provide Personal Data, Processor is required to:

-Notify the Data Controller immediately of the receipt of the relevant request prior to the disclosure of the relevant Personal Data;

-Observe the reasonable instructions of Data Controller regarding providing of the Personal Data in question except in so far any legal provisions obstructs Processor from doing so.

7.2 Processor shall, with due regard to the nature of the processing, provide, by means of appropriate technical and organizational measures, the Controller, as far as possible, with assistance in fulfilling the duty to answer requests for the exercise of the rights of persons mentioned in Chapter III AVG.
If any party which (data) is involved in the Processing makes any claims, including – but not limited to – any single complaint and/ or a sole request for access to, correction, removal or transferability of Personal Data, Processor will:

-Notify the Data Controller without delay of the receipt of the relevant notices;

-to follow the reasonable instructions of the Data Controller in connection with the communication and settlement thereof strictly and carefully.

7.3 In the event of an Data Breach in the systems used by Processor is required to:

-Notify the Data Controller immediately, by describing the nature, extent and possible consequences thereof, specifying the (technical and organizational) measures that should be taken by Processor and Data Controller to restore the Personal Data protection and, as far as possible, limit the negative impact of the incident concerned;

-Enable Data Controller to (i) further investigate the Infringement and (ii) timely and completely comply with her legislative obligations in respect of the Infringement (including at least – but not limited to – its obligations to make notifications as referred to in Articles 33 and 34 of the AVG);

-Except in so far not having received other instructions from the Data Controller, immediately take all (technical and organizational) measures that may reasonably be required from him to restore the security of the Personal Data and, to the extent possible, the negative to remove the consequences of the infringement in question;

-Strictly and carefully implement the reasonable instructions from Data Controller in connection with the Infringement;

-Inform the Data Controller of any new developments related to the Infringement and all measures undertaken by the Processor itself.

7.4 The Processor acknowledges and accepts that the Data Controller has the duty to make notifications regarding any Data Breaches (including, in any case – but not exclusively – the notifications provided for in Articles 33 and 34 of the AVG).

7.5 The Processor guarantees that he has implemented appropriate protocols and procedures to ensure that he is able to fulfill his obligations under this Article 7; At the first request of Data Controller, Processor will provide a description of those protocols and procedures related to Data Controller.

8. INDEMNITY

Processor indemnifies Data Controller for all claims (including – but not limited to – any claims from any Authority such as, for example, the Personal Data Authority) in connection with any infringement and / or the processing of Personal Data, in so far as they are the consequence of non-timely or incomplete fulfillment of the Processor’s obligations as defined in this Data Processing Agreement or the AVG.

9. OUTSOURCING ACTIVITIES

9.1            The Processor is not permitted to outsource (any part of) the Processing to any third party (including Third parties) without the prior written consent of Data Controller. If Data Controller grants approval for the outsourcing of (any part of) the Processing to one or more third parties, Processor is required to conclude an agreement with the third party (s) concerned, imposing the same obligations as those that Processor must comply with on the basis of this Data Processing.

 9.2           Subcontracting from (any part of) Processing to one or more third parties does not in any way affect the Processor’s responsibility to comply with the provisions of this Data Processing Agreement, nor to any liability of Processor for damage resulting from non-compliance with the provisions of this Data Processing Agreement.

10. ASSISTANT SUBORDINATES AND HELPERS

10.1          Processor is only allowed to provide Personal Data to those Employees and Third parties for whom disclosure of the Personal Data is required in performing work for the proper performance of the Agreement by the Processor. At the first request of Data Controller, Processor to Data Controller will provide an overview of the relevant employees and Third parties.

10.2          The obligations arising from Processing from this Data Processing Agreement shall apply equally to employees and Third parties who are aware of the Personal Data under the authority of Processor; The processor undertakes to ensure that all such employees and third parties accept the relevant obligations as their own obligations.

11. PROCESSING IN THE EUROPEAN UNION

 The Processor is only allowed to process the Personal Data in the European Union. For Processing by Processor outside the European Union, prior written permission from Data Controller is required.

12. FINAL PROVISIONS

12.1 Changes to this Data Processing Agreement are valid only when made in written form and signed by both Data Controller and Processor.

12.2 This Data Processing Agreement is governed by German law.

12.3 All disputes relating to, arising out of or relating to (the explanation or interpretation of) this Agreement may only be submitted to the court in Berlin.

Legal Disclaimer

Matthias & Associates is a divison of:

boleh gmbh
Timo Matthias
Bleibtreustrasse 51
10623 Berlin
Germany
E-Mail: info (at) matthias-associates.com

VAT ID: DE307670874
TAX ID: 27/235/50037
Company Registration No.: HRB 179296 B

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