Infigonia Group FZ-LLC (“Infigonia”, “us” or “we”) is pleased to provide you (“Advertiser”, “you” or “your”) the opportunity to participate as an “Advertiser” in our Ad Exchange (the “Marketplace”) and any other products or services we may provide you (collectively, the “Program”). Your participation in the Program is subject to entering into this Infigonia Advertiser Program Participation Agreement (the “Agreement”). In this Agreement, Infigonia and Advertiser shall each be individually referred to as a “party” and collectively as the “parties.” As more fully specified below, “Infigonia ” and “Advertiser” shall also include their respective affiliates, investors, partners, employees, agents and/or their designated assignees or entities.
This Agreement explains each party’s rights, duties, and respective obligations under the Program. By submitting and completing your registration on Infigonia ’s website or by otherwise participating in the Program, you agree and signify your acceptance to the terms of this Agreement.
For the avoidance of doubt, the terms “Advertiser” or “Advertisers” may include brands, third party agencies representing merchants, brands or publishers, advertising networks of any kind, including ad networks, publisher networks, website networks, and/or brokers, whether first or third party. By acceptance of this Agreement, Advertiser represents, warrants and undertakes that: (a) Advertiser shall be responsible to ensure that it enters into binding contractual arrangements with its relevant demand sources, advertisers, affiliates and/or any third party or parties (“Advertiser Partners”) on behalf of whom it enters into this Agreement (such as by bidding on click-throughs to such third party’s Website); (b) Advertiser has obtained all required authorizations whether from Advertiser Partners or any other third party or person, with regard to any traffic that Advertiser bids on (whether search, retargeting, push, domain, pop-up pop-under, RTB, display, native, browser extension, software traffic, or otherwise) or which is otherwise acquired through participation in this Agreement and at all times shall comply with the provisions of Section A(4) of this Agreement; and (c) Advertiser shall be held solely liable for the actions or omissions of its Advertiser Partners to the same extent that it is liable for its own actions or omissions under this Agreement, including for any payment obligations, whether or not these were collected, in full or in part, from its Advertiser Partners.
1. Marketplace Specific Terms.
1. Online Advertisements.
Infigonia Group FZ-LLC (“Infigonia “, “us” or “we”) is pleased to provide you (“Advertiser”, “you” or “your”) the opportunity to participate as an “Advertiser” in our Ad Exchange (the “Marketplace“) and any other products or services we may provide you (collectively, the “Program“). Your participation in the Program is subject to entering into this Infigonia Advertiser Program Participation Agreement (the “Agreement”). In this Agreement, Infigonia and Advertiser shall each be individually referred to as a “party” and collectively as the “parties.” As more fully specified below, “Infigonia ” and “Advertiser” shall also include their respective affiliates, investors, partners, employees, agents, and/or their designated assignees or entities.
This Agreement explains each party’s rights, duties, and respective obligations under the Program. By submitting and completing your registration on Infigonia ’s website or by otherwise participating in the Program, you agree and signify your acceptance to the terms of this Agreement.
For the avoidance of doubt, the terms “Advertiser” or “Advertisers” may include brands, third-party agencies representing merchants, brands or publishers, advertising networks of any kind, including ad networks, publisher networks, website networks, and/or brokers, whether first or third party. By acceptance of this Agreement, Advertiser represents, warrants and undertakes that: (a) Advertiser shall be responsible to ensure that it enters into binding contractual arrangements with its relevant demand sources, advertisers, affiliates and/or any third party or parties (“Advertiser Partners”) on behalf of whom it enters into this Agreement (such as by bidding on click-throughs to such third party’s Website); (b) Advertiser has obtained all required authorizations whether from Advertiser Partners or any other third party or person, with regard to any traffic that Advertiser bids on (whether search, retargeting, push, domain, pop-up pop-under, RTB, display, native, browser extension, software traffic, or otherwise) or which is otherwise acquired through participation in this Agreement and at all times shall comply with the provisions of Section A(4) of this Agreement; and (c) Advertiser shall be held solely liable for the actions or omissions of its Advertiser Partners to the same extent that it is liable for its own actions or omissions under this Agreement, including for any payment obligations, whether or not these were collected, in full or in part, from its Advertiser Partners.
2. License to Your Content.
You grant Infigonia a royalty-free, fully paid, transferrable, sublicensable, worldwide right and license to use, display, reproduce, compile, edit, make derivative works of and distribute any of your Advertiser Content (or any part of your Advertiser Content), any other related data and information you provide Infigonia or that is generated from your Advertiser Content, and any data or information you allow us to directly obtain from a website, exchange, browser extension or network owned or controlled by you, or that is otherwise properly licensed to you from a third party (“Website“), throughout or in connection with the Infigonia Network, for the purpose of enabling Infigonia to perform its obligations herein. The “Infigonia Network” includes a real-time bidding (“RTB”) exchange and XML ad platform, shopperhits.com, shoppingwaves.net and any and all websites we operate or control, websites for which we provide comparison-shopping content to, domains accessible through our Marketplace (directly or indirectly), as well as any other distribution or marketing channels, as determined by our sole and reasonable direction, including without limitation, email newsletters or other emails, or other media or services we or our affiliates offer to consumers from time-to-time, which are either operated and controlled by us or are otherwise licensed to us.
3. Advertising Charges and Payment.
You will be charged, and agree to pay, all charges incurred in connection with your participation in the Program, which shall be based on prepayment. You agree that charges will be based on the total number of impressions, Clicks, and/or other desired actions (as applicable to the Payment Model agreed upon between the parties), as solely calculated by Infigonia ’ tracking systems, multiplied by the amount you have agreed to bid for each mille impressions, Click and/or other desired action (as applicable). We may adjust our minimum bids or other bidding requirements from time to time on reasonable prior notice to you. You agree to pay all applicable charges for your participation in the Marketplace in U.S. dollars (in accordance with your agreed to payment plan and billing terms, including any applicable sales, use VAT or other similar taxes which are billed and/or owed in addition to the payment plan charges; collectively “Plan“). Infigonia ’ tracking systems, charges, and invoices shall be considered as final, binding, non-appealable, and accepted by you, and no other measurements or statistics of any kind shall be accepted or have any effect, and you will not be eligible for any refund, credit or other billing adjustments. Payment terms shall be prepaid exclusively.
4. Your Obligations.
You agree to follow all rules and guidelines for our Marketplace, as may be updated from time to time. You represent and warrant that:
- Neither the content on your Website(s), in any Advertiser Content you provide us nor any other materials you provide us, nor any content linked from the foregoing, will: (i) violate any federal, state or local law or regulation; (ii) infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (iii) breach any duty toward or violate the rights of any person or entity including, without limitation, rights of publicity or privacy, and or will result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (iv) be reasonably considered as false or misleading (such as by portraying nonexistent functionality (such as a non-operable “play” or “close” button), making false statements or claims, falsely implying affiliation with, or endorsement by another organization or service, misleading or tricking the user into interacting with the Advertiser Content, or impersonating system or browser warnings or error messages), defamatory, libelous, slanderous, threatening, harassing, violent, offensive, sexually explicit, obscene, or any content that promotes hatred or intolerance against others; (v) offer or disseminate any counterfeit or fraudulent goods (such as replicas or knockoffs), or services, schemes, investment opportunities or promotions or advice not permitted by law; (vi) promoting the use of drugs and drug paraphernalia, illegal substances or dangerous products (such as firearms or explosives), tobacco or alcohol products; and (vii) contain any Malicious Code;
- You have obtained all necessary permissions, authorizations, licenses, rights, or authorities to advertise or market your product, service, or offering, and such permissions, authorizations, rights, or authorities extend to your rights to bid on or otherwise acquire any and all types of traffic made available by the Program (whether search, domain, retargeting, browser extension, software traffic, pop-up, RTB, display, native, or otherwise) with respect to your Advertiser Content and any upstream third parties;
- The Advertiser Content that you provide us reflects products and services that you are able and willing to offer to customers, and that you will make any necessary changes if any information is not current or accurate;
- If the provision of your product or service involves the promotion of a browser extension, other offer promoted on an RTB basis, or any other type of offer or service, such browser extension, offer, or service is fully compliant with federal, state, local laws and regulations, and you represent and warrant that you have the full legal and actual authority to promote such offer or Advertiser Content; and
- Notwithstanding anything in this Agreement to the contrary, you shall at all times be responsible for offering and selling products featured on your Website(s), browser extension, access to or availability of your network, your exchange or your Advertiser Content, or otherwise making available your product or service including, without limitation, taking orders, fulfillment of orders, shipping, invoicing, product returns, replacement of products, customer service and payment of any and all taxes and other government charges;
- In addition to all other obligations set forth in this Agreement, Advertiser shall ensure that Advertiser and all Advertiser Content complies with the Program’s Advertiser Policies available in Appendix I, which may be revised by Infigonia from time to time (“Advertiser Policies”). Advertiser is solely responsible for the quality, safety, legality, truthfulness, intellectual property rights, reliability, appropriateness, integrity, and accuracy of the Advertiser Content and any configurations, settings, budgets, rates, campaign information, targeting information, and other criteria selected, inputted or provided by Advertiser.
“Malicious Code” shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users’ web or mobile navigation or intervenes with the end users’ control over the operating system, browser settings, browser functionality or webpage’s display.
Any actual or suspected violation of the above Section 4 of this Agreement or any suspected fraudulent, abusive or otherwise illegal content or activity by you is grounds for immediate termination of your participation in the Program and this Agreement.
2. General Program Terms and Conditions.
The following terms apply to our Program and any other Advertiser products or services we may provide you.
1. Account information and sufficient rights.
You represent that: (i) all information you provide or direct us to about your business, products, services, or otherwise, including without limitation, in our registration forms or process, order forms, and your Advertiser Content, is accurate, complete, and current, and kept up to date throughout the term of the Agreement; (ii) you have the necessary rights and authority to enter into and perform this Agreement, will comply with your obligations and representations and warranties as outlined in Section A(4) of this Agreement, and the person submitting or completing registration on Infigonia ’s website on your behalf has authority to enter into this Agreement; (iii) you are the registered owner of the Website, or otherwise have sufficient rights in the Website for the purpose of performing your obligations hereunder, including its content and domain name; (iv) you are at least eighteen (18) years old.
You grant to Infigonia and its affiliates (which include but are not limited to our direct and indirect subsidiaries and parent company (“Affiliates“)), the right to transmit, process, and maintain the personal and business information that you provide to us via the Program, and you further agree and hereby grant Infigonia and its Affiliates the right to use such information for Infigonia ’ and its Affiliates’ business purposes and share such information with selected third parties, including but not limited to Infigonia ’ agents, accountants, attorneys and other representatives for Infigonia ’ and its Affiliates’ business purposes.
Advertiser shall immediately notify Infigonia if there is any change in such information or security breach of the Account. Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password, and shall remain fully and solely responsible for any and all actions taken under the Account.
4. Balances/Inactive Accounts.
You will be required to fund your Account to pay for impressions, Clicks and/or actions, and other charges associated with our Program. It is your responsibility to keep your Account active and to terminate your account in the event you no longer wish to participate in the Program. If your Account is dormant for at least six (6) consecutive months, Infigonia reserves the right to charge a monthly $25 account administrative fee (“Administrative Fee“) against the balance of your Account. A “dormant account” is defined as one that has had no activity for 6 consecutive calendar months or longer (i.e. zero Clicks, zero conversions, zero referrals, zero referral earnings, and zero payments) as marked by Infigonia systems.
If we terminate your Account, we will refund you what is left in your Account as of the effective date of the termination. If you terminate your Account, termination is effective one (1) business day after we receive such notice (consistent with the terms below) and we will refund you what is left in your Account as of that date. Save for as described above, all payments are final and non-refundable.
6. Intellectual Property Rights.
- Our Program, the Infigonia Network, and our products, services, and content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, computer programs, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, “Infigonia Content”) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names, and trade dress that may appear in connection with the Program or Infigonia Network (including the service marks “Infigonia “, “Infigonia Network”, and “Shopperhits.com”) are owned by us, our licensors, or both (“Company Marks“). You do not acquire any right, title, or interest in any Infigonia Content or Company Marks and shall not use any of the same except as expressly permitted under this Agreement. We reserve any rights in and to the Infigonia Content or Company Marks not expressly granted in this Agreement.
- We acknowledge your right, title, and interest in and to your trademarks, service marks, trade names, and content on your Website(s) (“Advertiser Marks“). You reserve any and all rights in and to Advertiser Marks not expressly granted in this Agreement.
- Subject to the terms and conditions herein and for the term of this Agreement: (i) you grant Infigonia a nonexclusive, nontransferable, revocable, and royalty-free right and license to use the Advertiser Marks in connection with the Program, the content license in Section A(2) above, and for associated publicity and related purposes; and (ii) we grant you a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Company Marks solely in connection with the Program and subject to guidelines Infigonia may offer from time-to-time. Each party acknowledges and agrees that its use of the other’s marks will not create in such party any right, title, or interest in such marks and that all such use of the marks of the other party and the goodwill generated thereby will inure to the benefit of the other party.
- Infigonia may, in connection with the Infigonia Network and/or any Advertiser Content and/or Infigonia Content you place on your Website (e.g., medals, icons, etc.), collect certain information from you and/or users, such as IP addresses, user agent, browser data, etc. (“Analytics Data”). We may use, display, reproduce, compile, edit, sell and/or distribute Analytics Data in connection with our business. For the avoidance of doubt and notwithstanding anything in this or other agreements between the parties, Analytics Data is not considered your confidential or proprietary information.
- It is hereby clarified that the Data shall not include User Volunteered Data. “User Volunteered Data” is personally identifiable information collected from individual users by the Advertiser, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of the Advertiser.
You hereby agree to defend, indemnify and hold harmless Infigonia and its affiliates, licensees, vendors, contractors, agents, and employees (collectively, “Agents“), from any and all claims, damages, losses, suits, actions, demands, proceedings, expenses, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and costs, that may arise from your participation in the Program or any other Infigonia services, your breach of the terms of this Agreement, the use of the Advertiser Marks, any Advertiser Content or other materials that you provide us, any claim related to the Advertiser Content or use of the Website(s), or purchase or attempted purchase and/or use of any of your products or services made available through the Advertiser Content.
9. Warranty Disclaimers.
Infigonia makes no guarantee regarding the placement, positioning, specifications, dimensions, frequency, volume, ranking or timing of Advertiser Content delivery, and any editorial decisions related to the Advertiser Content and/or any third party content. Infigonia makes no representation as to the performance of any Advertiser Content and disclaims all representations, warranties and liability with respect to the success or return on investment of any Advertiser Content. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR OWN RISK. THE SERVICES OFFERED IN THE PROGRAM ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER Infigonia NOR ANY OF ITS AGENTS MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PROGRAM, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER Infigonia PRODUCT OR SERVICE, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. Infigonia HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS AGENTS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION: (I) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PROGRAM, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER Infigonia SERVICE, OR AS TO THE CUSTOMERS, IMPRESSIONS, CLICKS, ACTIONS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY THE PROGRAM, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (II) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Liability limitations.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ANY LIABILITY OF Infigonia OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES AND AGENTS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TO Infigonia FOR YOUR PARTICIPATION IN THE PROGRAM IN THE PRIOR THREE (3) MONTH PERIOD. IN NO EVENT SHALL Infigonia OR ANY OF ITS AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, DEFAMATION, OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE PROGRAM OR ANY BREACH OR ERROR BY Infigonia, WHETHER OR NOT YOU OR ADVERTISER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation on such damages shall apply whether or not Infigonia is able to correct any problem or error, and whether or not Infigonia has breached any warranty or obligation, or failure of the essential purpose of any other remedy, it being the intention of the parties to allocate the risk of such damages as provided herein in all circumstances, and you acknowledge that Infigonia would not have entered into this Agreement but for this limitation on such damages.
This Agreement will remain in effect until terminated by either party within forty eight (48) hours prior written notice to the other party. If you are dissatisfied with the Program or with any of the terms and conditions contained herein, your sole and exclusive remedy is to terminate your participation in the Program by giving us written notice as provided below. Notwithstanding anything contained in this Agreement to the contrary, we may, in our sole discretion, suspend or terminate your account and/or discontinue your participation in the Program or any other Infigonia service or product at any time. All decisions made by us in this matter will be final and you agree that we shall have no liability to you or anyone else with respect to such decisions. No Advertiser shall have any vested right or enforceable interest to participate in the Program. Notices. We may give general notices to participating Advertisers by postings on the Business Services portion of www.Infigonia.org (using commercially reasonable efforts to notify you via email of any such postings), and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to your email address, or otherwise by U.S. mail, overnight delivery service or in person. You may give notice to us by email to support@Infigonia.org, or otherwise by U.S. mail, overnight delivery service or in person. Section A (3) (Advertising Charges and Payment) shall survive termination of this Agreement.
12. Mandatory arbitration and dispute resolution.
- Explicitly excluding any payment obligations under Section A(3) to this Agreement, in the event of any dispute between the parties arising from or in any way related to this Agreement, appropriate representatives of each party shall meet, within thirty (30) days after the written request of either party, and attempt to negotiate or mediate a mutually-agreeable resolution before either party shall commence any arbitration proceeding or other legal action (as may be permitted by this Agreement). If such negotiation or mediation does not resolve the issue to the mutual satisfaction of the parties within sixty (60) days after such written request, then all disputes arising out of, relating to or connected with this Agreement will be exclusively resolved in the State of New York in New York city. Any arbitrator’s award may be enforced by a federal or state court located in New York city, NY. No arbitration proceeding or other legal action may be commenced regarding any disputes arising out of, relating to or connected with this Agreement more than one (1) year after the date that the alleged breach or other grounds for dispute originally occurred.
- For avoidance of doubt, Section B(13)(i) and/or any arbitration rights under this Agreement shall not apply to any dispute or claim arising of related to any payment obligations incurred in connection with this Agreement, which shall be exclusively settled by the competent courts in accordance with Section B(15).
13. Amendment; Additional Terms.
- In certain instances it may be necessary to update or modify this Agreement to reflect updates to our business practices and policies and for other reasons. We also may, in some instances, need to provide you with operating rules, guidelines, policies, or additional terms that govern your participation in our Program (“Additional Terms”). You agree that we may at any time provide you with Additional Terms, or update or modify this Agreement, as appropriate or necessary. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.
- In the event we modify this Agreement or any Additional Terms, we will send notice to you at the email address we have on file and by posting notice of such modifications in the Business Services portion of www.Infigonia.org. Unless you notify us within ten (10) days of the day we send the email notice to you or post the modifications consistent with this Agreement, whichever occurs last, you will be deemed to have accepted the new terms. Notwithstanding the foregoing, your continued participation in the Program after the posting of modifications to this Agreement and/or any Additional Terms will signify your assent to and acceptance of the new terms.
14. Choice of Law/Venue.
This Agreement shall be governed by and construed under the laws of the State of New York. The sole and exclusive jurisdiction and venue for any dispute under this Agreement shall be the appropriate state of New York. By submitting and completing your registration on Infigonia ’s website or otherwise signifying your acceptance of this Agreement, you and your Affiliates and/or Advertiser Partners irrevocably submit to the personal jurisdiction of such courts.
15. No Trial by Jury/Class Action.
Both parties hereby irrevocably waive any right to a trial by jury or to join claims with those of others in the form of a class action or similar procedural device for any dispute arising under this Agreement, whether brought in court or arbitration. If for any reason any court or arbitrator holds that the class action restriction set forth in his Section is unconscionable or unenforceable, then the terms of Section 10 shall not apply and the classwide dispute must be brought in court.
16. Independent Contractor.
Nothing in this Agreement is intended or should be construed to create a joint venture, partnership, franchise, agency, or similar legal arrangement between Infigonia and you or any other Advertiser or agency. Each of the parties are independent contractors under this Agreement.
If there is any conflict between the English version of this Agreement and any translated version we may provide, the parties agree that the English version will control in all instances. No waiver by either party of any breach or default under this Agreement shall be deemed a waiver of any other breach or default. Neither the course of conduct between any member nor trade practices shall act to modify any provision of this Agreement. The section headings used in this Agreement are for convenience only and shall not be given any legal import. If any part of this Agreement is deemed invalid, unlawful or unenforceable for any reason, the parties agree that only that part of the Agreement shall be stricken and that the remaining terms in this Agreement shall remain in full force and effect and in no way shall be affected, impaired or invalidated. You may not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. This Agreement (including any Additional Terms incorporated by reference) constitutes the entire agreement, and supersedes all previous written or oral agreements, between you and Infigonia in connection with the Program. Without limiting the foregoing, any Advertiser clickwrap or online agreement shall be ineffective to modify the terms of this Agreement, even if assented to by a representative of Infigonia after the execution of this Agreement; any such assent will be deemed a mere technical necessity to access Advertiser’s program and services governed by this Agreement and thus will have no binding effect. Advertiser hereby consents that Infigonia may assign, transfer or delegate this Agreement without notice to Advertiser. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.
No amendments or modifications may be made to this Agreement without the express written consent of Infigonia.
During the Term of the Agreement and for one (1) year thereafter, neither Advertiser nor any of its affiliates, directly or indirectly, either on behalf of itself or any third party, may with respect to any partner that Advertiser (or any of its affiliates) knows, reasonably should know, or subsequently learns has a relationship with Infigonia or has had a relationship with the other Infigonia during the Term: (a) take any action, or plan to take any action, with the purpose or effect of circumventing Infigonia relationship with such partner; (b) encourage any partner to reduce or terminate its relationship with Infigonia; (c) otherwise engage, or continue to engage, with such partner to provide products or services competitive with those offered by Infigonia; or (d) take any action with the purpose or effect of aiding any partner to violate any agreement it has or had with Infigonia, including without limitation any exclusivity provisions.
During the term of the Agreement and for two (2) years thereafter, neither Advertiser nor any of its Affiliates, directly or indirectly, either on behalf of itself or any third party, may knowingly solicit or engage in any communication with any current employee of Infigonia or its Affiliates, or any individual who was an employee or contractor of Infigonia, with the purpose or effect of inducing such person to terminate his or her employment with Infigonia or its Affiliates or compensating or engaging such person in any way to compete with the products or services of Infigonia. In the event that any provision of this Section 20 is held to be in any respect an unreasonable or unenforceable restriction, then such provision shall not be void or voidable, but shall be deemed reformed, or shall be deemed excised from this Agreement, as the case may require, in such jurisdiction and this Agreement shall be construed and enforced to the maximum time, geographic, product or service, or other limitations permitted by applicable law as if such provision had been originally incorporated herein as so modified or restricted, or as if such provision had not been originally incorporated herein, as the case may be.
The Parties agree that any breach of Advertiser’s obligations under Section 19 and/or 20 would result in irreparable injury, and that in the event of any breach or threatened breach hereof, Infigonia will be entitled to seek injunctive relief in addition to any other remedies to which Infigonia may be entitled, without the necessity of posting bond.
2021 Infigonia Group FZ-LLC
Appendix I: Infigonia ADVERTISER POLICIES
Effective May 1, 2021
Compliance with Applicable Laws and Industry Requirements
All advertisements, creative works, and other materials used in any advertisement placed through Infigonia’s platform must comply with all applicable laws, rules, and regulations, including but not limited to:
- Those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising;
- Not directly or indirectly, infringe upon any third party right including, without limitation to any intellectual property right, rights of privacy or publicity, or any other personal or proprietary right of any person or entity;
- Not, directly or indirectly, contain ,include or facilitate Prohibited Content;
- Without derogating from the generality of the above, comply with the following policies and guidelines (as applicable);
- Microsoft Malware Protection Center (“MMPC”) guidelines and evaluation criteria for “unwanted software” (available at: https://www.microsoft.com/security/portal/mmpc/shared/objectivecriteria.aspx).
- FTC’s guidelines Concerning the Use of Endorsements and Testimonials in Advertising (Specifically, §255.5: Disclosure of Material Connections), available at: https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement-endorsements/091005revisedendorsementguides.pdf.
- Advertised products or services must provide the following to the end user (e.g. on the product/service’s website, landing page, download page, product listing, as applicable):
- The name and contact details of the entity providing the product or service depicted in an Advertising Content:
- The terms and conditions under which such product or service are provided to end users (e.g. via an end user license agreement (“EULA”) or terms of service (“TOS”));
- If applicable, uninstall instructions;
- Restrictions may apply to an Advertiser’s/Advertiser Partners’ products and/or services depending on where in the world the products and/or services are promoted or sold. Advertisers/Advertiser Partners should understand and comply with any restrictions that apply to the products and/or services they are promoting. Advertiser hereby represents and warrants it shall be solely liable for compliance with any such restrictions.
Advertiser Content shall not shall include, link or redirect to any content that Infigonia deems in its sole discretion to be improper, including without limitation:
- Fraudulent, libelous, defamatory, abusive, violent, prejudicial, indecent, obscene, highly explosive subject matter, or any illegal subject matter or activities;
- Material that defames, abuses, or threatens physical harm to others, advocates or facilitates violence of any kind;
- Sexually explicit, pornographic or obscene (whether in text or in graphics) content or adult-oriented or age-restricted products or services without applicable or required age-verification services;
- Any materials that infringe or violate, or assist others to infringe or violate, any copyright, trademark or other intellectual property right of any other person or entity;
- Related to gambling, illegal drugs or drug paraphernalia, and dangerous Items (e.g. sale or promotion of weapons, firearms, ammunition, knives, brass knuckles, etc);
- “Hate Speech” or any content which contains content that is offensive, profane, threatening, harmful, harassing or discriminatory (whether based on age, race, ethnicity, creed, national origin, religion, gender, marital status, sexual orientation, physical disability or otherwise);
- Any incentive-based website, such as a lottery or sweepstakes site which rewards users for clicking on links;
- Fear or scare tactics such as falsely suggesting a negative consequence will occur if an end user doesn’t buy a product or service from an advertiser (e.g., exaggerating risk of computer viruses, identity theft or privacy, risk of property loss);
- Any content that violates any applicable policies (including this Advertising Policy) or the Advertiser Agreement;
- Any type of harmful applications or components which intentionally create or exploit any security vulnerabilities in an end user’s device, including without limitation: viruses, spyware, malware, Trojan horses, spamware, worms or any other malicious code or conduct;
- Any content which is targeted at or designed to appeal to minors;
- Unlawful or in violation of any law, regulation or directive, or illegal in any fashion according to applicable laws or that is infringing upon third party right.
Truth in Advertising
- Advertisers and Advertising Content, shall not make false, misleading, and/or unrealistic claims about their company, services, the costs associated with those services, and/or the results that end users, publishers, and/or any other party can expect.
- End users should not be misled, whether through any express or implied representation, into believing that advertising and/or promotional messages are independent, impartial, or not from the sponsoring advertiser itself. This includes, but is not limited to, the following prohibited actions:
- Making offers that are not actually available;
- Misrepresenting the relationship to/with any party;
- Making false, misleading, and/or unrealistic claims or claims that entice end users with an improbable result as to the likely outcome that an end user can expect, even if this result is possible (e.g., regarding weight loss or financial gain);
- Undertaking promotions that prompt end users to initiate a purchase, download, and/or other commitment without first providing end users with all relevant information and/or obtaining end users’ explicit consent;
- Representations of self, source, product, and/or service in a way that is not accurate, realistic, and/or truthful;
- Omitting or obscuring billing details such as how, what, and/or when end users will be charged for any purchase;
- Omitting or obscuring charges associated with financial services such as interest rates, fees, and/or penalties;
- Failing to display tax or license numbers, contact information, and/or physical address where relevant;
- Collecting donations under false pretenses; and
- “Phishing” or falsely purporting to be a reputable company in order to get end users to part with valuable personal or financial information.
Harassing or Abusive Tactics
Advertisers shall not use harassing, abusive, and/or untrustworthy tactics with end users, publishers, and/or any other party. This includes, but is not limited to the following:
- Harassing end users, publishers, and/or any other party to use services/products;
- Unauthorized downloads, including but not limited to automatic downloads, or such that were not initiated by the user, or any form of download, installation, or use of an end user’s device without such user’s informed and affirmative consent thereto; Advertised products or services (including related technology, functionality, features, components, advertising material of any kind and any other content therein) must not, directly or indirectly:
(a) download or install any program, feature, functionality or downloadable application or hide, disable, uninstall or otherwise interfere with other applications, browser/operating system functionality, or websites without the End User’s prior informed, express consent;
(b) impair with End User’s ability to change any preferences or settings;
- Using deceptive tactics to pressure end users, publishers, and/or any other party to use services;
- Sharing false information regarding any party;
- Deceptive use of any party’s brand to imply affiliation and/or endorsement;
- Abuse of third-party program certifications and/or incentives;
- Attempting to obstruct or circumvent Infigonia ’s efforts to enforce and/or check for compliance with its policies;
- Actions that Infigonia and/or the Publisher deem harmful to end users, publishers, and/or any other party.
- Infigonia may, in its sole discretion, prohibit or limit advertisements for products and/or services that it has identified as being prone to abuse by untrustworthy actors, that are of low quality, and/or that pose an unreasonable risk to end user safety and/or experience.
Privacy and Information Security
- The Advertiser is responsible for any tags, scripts, or other tracking technology placed on the Advertising Content. If the Advertiser engages a third-party vendor to collect personal information through tracking technology placed on an advertisement, the Advertiser is responsible for such third party’s compliance with applicable laws, rules, regulations and industry standards. If the Advertiser uses (or instructs Infigonia to use on the Advertiser’s behalf) any code and/or related tools, such as cookies, pixels, tags, web beacons or other tracking technology, in the collection of information from individuals in connection with an advertisement, the Advertiser shall abide by (and shall ensure that any third party service providers abide by) all laws, rules, regulations and industry standards regarding how such code and/or related tools are used (including, but not limited to required disclosures and extension of rights to end users) and how any personal information collected from such code is handled.
- To the extent Advertiser Content that includes Personal Information is sent by Advertiser or its Advertiser Partners through the Program and Advertiser’s use or participation in the Program involves transferring personal information outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the attached Data Protection Addendum shall apply to such Personal Information and be incorporated into this Agreement. To the extent Advertiser Content includes Personal Information derived from California residents or consumers, the terms of the attached California Consumer Privacy Act Addendum shall apply to such Personal Information and be incorporated into this Agreement. Under no circumstances will Infigonia be deemed a “data controller” or a “business” with respect to Customer Content under the Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data on the free movement of such data, and repealing Directive 95/46/EC (“General Data Protection Regulation”), the California Consumer Privacy Act of 2018 (“CCPA”), or any relevant or replacement law or regulation. “Personal Information” means any content processed by Infigonia pursuant to this Agreement, relating to an identified or identifiable natural person or household; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity.
- Advertiser Content is hosted and stored by Infigonia or its service providers in the United States or elsewhere as otherwise agreed to by Advertiser. In providing the Program, Infigonia or its service providers may process Advertiser Content, including, without limitation, any associated Personal Information, within the European Economic Area, the United States and in other countries and territories.
- In addition to the requirements specified earlier in this Agreement, Advertiser further agrees to comply with all applicable privacy, data protection, and consumer protection laws and regulations in connection with Advertiser’s use or participation in the Program, including but not limited to requirements of proper notice and consent regarding Personal Information and compliance with the General Data Protection Regulation and/or CCPA as applicable.
- Infigonia does not sell, lease, rent or otherwise share for consideration Advertiser Content and will share such content only under the following circumstances:
- (i) With select service providers who perform work on Infigonia’s behalf to provide the Program;
- (ii) To the extent needed to comply with laws or to respond to lawful requests and legal processes (provided that Infigonia will notify Advertiser if Infigonia has received a lawful request for Advertiser Content);
- (iii) To protect the rights and property of Infigonia, its agents, other Infigonia Advertisers, and others, including, but not limited to, enforcing Infigonia’s agreements, policies, and this Agreement;
- (iv) In an emergency, including to protect Infigonia’s information security or the personal safety of any person;
- (v) In connection with a sale or transfer of all or a part of Infigonia’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or
- (vi) As directed by Advertiser, including through its use of or participation in the Program.
- Infigonia stores, uses and accesses Advertiser Content for the limited purposes of:
(a) performing Infigonia’s obligations under this Agreement;
(b) responding to service issues and requests for support;
(c) complying with Advertiser’s instructions; and
(d) maintaining and improving the Program. Infigonia may also use Advertiser Content in a de-identified and aggregated form (“Aggregated Data”) for Infigonia’s own business purposes, including use, duplication, modification, and creation of derivative works regarding usage and performance of Aggregated Data. Aggregated Data does not directly or indirectly identify Advertiser, End Users, or individual data subjects. Infigonia shall own all right, title and interest to the Aggregated Data and any derivative works thereof.
- Infigonia provides Advertiser with access to Advertiser Content and the ability to delete such content upon request. Upon cessation or termination of Infigonia’s relationship with Advertiser, Infigonia has no obligation to maintain or provide any Advertiser Content and will promptly delete or destroy such content no longer in active use unless prohibited by law.
- Infigonia will maintain appropriate physical, technical and organizational controls designed to safeguard Advertiser Content within its cloud storage from unauthorized access, use or disclosure. These will include measures designed to store Advertiser Content on servers located in a physically secured location; and the use of firewalls, access controls and similar security technologies designed to protect Advertiser Content from unauthorized disclosure. Infigonia takes no responsibility and assumes no liability for any Advertiser Content other than its express security obligations in this section.
- Certain parts of the Program, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Advertiser is authorized to gain access to any Password-Protected Areas, Advertiser agrees that Advertiser is entirely responsible for maintaining the confidentiality of Advertiser’s password, and agrees to notify Infigonia if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Advertiser agrees that Advertiser is entirely responsible for any and all activities that occur under Advertiser’s account, whether or not Advertiser undertakes such activities. Advertiser agrees to immediately notify Infigonia of any unauthorized use of Advertiser’s account or any other breach of security in relation to Advertiser’s password or the Program that is known to Advertiser.
CCPA Service provider addendum
This CCPA Service Provider Addendum (the “Addendum”) forms a part of the Infigonia Group FZ-LLC (“Infigonia”) Advertiser Program Participation Agreement (“Agreement”) entered into between Advertiser (“Advertiser”) and Infigonia. In connection with the CCPA, Infigonia agrees to comply with the following provisions in connection with the Agreement.
Use Restrictions and Obligations:
- The parties hereby acknowledge and agree that for purposes of the program provided pursuant to the Agreement (“Services”), Infigonia shall be acting as a “Service provider” as such term is defined in the California Consumer Privacy Act of 2018, as amended (“CCPA”). Advertiser shall apply the provisions of the CCPA to Advertiser’s users located in California, United States.
- Infigonia shall retain, use, disclose and otherwise process “Personal Information,” as such term is defined in the CCPA, solely on behalf of Advertiser and solely for the specific purpose of providing the Services to Advertiser. For any users located in California, Infigonia shall not sell any Personal Information received or collected via the Services (the term “sell” is as defined in the CCPA). Notwithstanding the foregoing, Infigonia is permitted to combine Personal Information received from one or more entities to which it is a service provider, on behalf of such businesses, to the extent necessary to detect security incidents, or protect against fraudulent or illegal activity.
- Infigonia shall process any request by a natural person to access, update, revise, correct, object to processing or delete Personal Information or any similar request (each, a “Consumer Request”) made pursuant to the CCPA.
- If Infigonia receives a request from Advertiser regarding a Consumer Request, Infigonia shall, within three (3) business days of an applicable request from Advertiser: (i) delete or destroy all copies of Personal Information in any media relating to a particular natural person as directed by Advertiser; and (ii) provide a copy of the applicable Personal Information record in a portable and readily useable format as directed by Advertiser.
- Infigonia shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect Personal Information, which measures shall meet or exceed those required or contemplated under the CCPA.
Data protection and processing addendum
This GDPR Data Protection and Processing Addendum (“DPA”) forms part of the Infigonia Group FZ-LLC (“Infigonia”) Advertiser Program Participation Agreement (“Agreement”) entered into between Advertiser and Infigonia. In this Agreement, Infigonia and Advertiser shall each be individually referred to as a “party” and collectively as the “parties”.
The purpose of this DPA is to reflect the parties’ agreement with regard to the processing of personal data in accordance with the requirements of Data Protection Legislation as defined below. This DPA shall not replace or supersede any agreement or addendum relating to processing of personal data negotiated by Advertiser and as referenced in the Agreement, and any such individually negotiated agreement or addendum shall apply instead of this DPA.
In the course of providing the Infigonia Advertiser Program pursuant to the Agreement, Infigonia may, at the direction of Advertiser, be asked to process personal data on behalf of Advertiser. Infigonia agrees to comply with the following provisions with respect to any personal data submitted by or for Advertiser as part of the Program or collected and processed by or for Advertiser through the Program. Any capitalized but undefined terms herein shall have the meaning set forth in the Agreement.
Data Processing Terms
In this DPA, “Data Protection Legislation” means European Directives 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including the General Data Protection Regulation (Regulation (EU) 2016/679)), and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction. “Data controller”, “data processor”, “data subject”, “personal data”, “processing”, and “appropriate technical and organizational measures” shall be interpreted in accordance with applicable Data Protection Legislation; The parties agree that Advertiser is the data controller and that Infigonia is its data processor in relation to personal data that is processed in the course of providing the Program. Advertiser shall comply at all times with Data Protection Legislation in respect of all personal data it provides to Infigonia pursuant to the Agreement. The subject matter of the data processing covered by this DPA is the Program entered into by Advertiser through Infigonia’s website or access otherwise provided by Infigonia to Advertiser or as additionally described in the Agreement or the DPA. The processing may be carried out until the term of Advertiser’s participation in the Program ceases. Further details of the data processing are set out in Annex 1 hereto.
With respect of personal data processed in the course of providing the Program, Infigonia:
- shall process the personal data only in accordance with the documented instructions from Advertiser (as set out in this DPA or the Agreement or as otherwise communicated or notified by Advertiser to Infigonia (from time to time). If Infigonia is required to process the personal data for any other purpose provided by applicable law to which it is subject to, Infigonia will inform Advertiser of such requirement prior to the processing unless that law prohibits this on important grounds of public interest;
- shall notify Advertiser without undue delay if, in Infigonia’s good faith belief or opinion that Advertiser’s instruction for the processing of personal data infringes applicable Data Protection Legislation;
- shall implement and maintain appropriate technical and organizational measures designed to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of the personal data and having regard to the nature of the personal data which is to be protected;
- shall ensure that all Infigonia personnel required to access the personal data are informed of the confidential nature of the personal data and comply with the obligations sets out in this DPA;
- at the Advertiser’s request and cost (and insofar as is possible), shall assist the Advertiser by implementing appropriate and reasonable technical and organizational measures to assist with the Advertiser’s obligation to respond to requests from data subjects under Data Protection Legislation (including requests for information relating to the processing, and requests relating to access, rectification, erasure or portability of the personal data) provided that Infigonia reserves the right to reimbursement from Advertiser for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance;
- shall take reasonable steps at the Advertiser’s request and cost to assist Advertiser in meeting Advertiser’s obligations under Article 32 to 36 of that regulation taking into account the nature of the processing under this DPA, provided that Infigonia reserves the right to reimbursement from Advertiser for the reasonable cost of any time, expenditures or fees incurred in connection with such assistance;
- at the end of the applicable term of the Program, upon Customer’s request, shall securely destroy or return such personal data to Customer;
- may transfer personal data from the EEA to the US for the purposes of this DPA pursuant to the EU-US Privacy Shield provided that Infigonia maintains the appropriate certifications;
- shall allow Advertiser and its respective auditors or authorized agents to conduct audits or inspections during the term of the Agreement, which shall include providing reasonable access to the premises, resources and personnel used by Infigonia in connection with the provision of the Program, and provide all reasonable assistance in order to assist Advertiser in exercising its audit rights under this DPA. The purposes of an audit pursuant to this Clause include to verify that Infigonia is processing personal data in accordance with its obligations under the DPA and applicable Data Protection Legislation. Notwithstanding the foregoing, such audit shall consist solely of: (i) the provision by Infigonia of written information (including, without limitation, questionnaires and information about security policies); and (ii) interviews with Infigonia’s IT personnel. Such audit may be carried out by Advertiser or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality. For the avoidance of doubt no access to any part of Infigonia’s IT system, data hosting sites or centers, or infrastructure will be permitted.
If Infigonia becomes aware of any accidental, unauthorized or unlawful destruction, loss, alteration, or disclosure of, or access to the personal data that is processed by Infigonia in the course of providing the Program (an “Incident”) under the Agreement it shall without undue delay notify Advertiser and provide Advertiser (as soon as possible) with a description of the Incident as well as periodic updates to information about the Incident, including its impact on Advertiser Content. Infigonia shall additionally take action to investigate the Incident and reasonably prevent or mitigate the effects of the Incident;
The parties shall each provide information requested by the other party to demonstrate compliance with the obligations set out in this DPA.
Details of the Data Processing
Infigonia may, at the direction of Advertiser, process information to provide the Program and certain services pursuant to the Agreement. Infigonia shall process information sent by Advertiser’s end users identified through Advertiser’s implementation of the Program. As an example, in a standard programmatic implementation, to utilize the Program, Advertiser may allow the following information to be sent by default as “default properties”:
Types of Personal Data:
- Time zone
- Browser/ User Agent
- Browser Version
- Device or Mobile Device
- Mobile Device ID
- Current URL
- Initial Referrer
- Initial Referring Domain
- Operating System
- Referring Domain
- Screen Height
- Screen Width
- Search Engine
- Search Keyword
- UTM Parameters (ie. any UTM tags associated with the link a customer clicked to arrive at the domain)
- Last Seen (the last time a property was set or updated)
In the event of a conflict or inconsistency between this Addendum and the Agreement, the terms and conditions set forth in this Addendum shall govern and control.