Publisher Framework Agreement
The agreement is between friendly media s.r.o. (the “Company”) and you (the “Publisher”).
The Company owns, operates and provides the advertising platform on the internet named FriendlyBunny (the “Advertising platform”) which allows registered publishers to participate in partner programs (the “Programs”) of the customers of the Company (the “Advertisers”).
The Company wishes to use the Publisher’s advertising channels and its partner’s (the “Publisher’s partners”) advertising channels to promote, distribute and display the advertising materials of Advertisers. These Advertisers are companies which sell and market their products and services by means of advertising materials such as banners and links etc. over the internet.
The subject of business relation between the Company and the Publisher is the provision of media services by Publisher within Programs to support the Advertisers in the online sale of products and services based on performance.
The Company and the Publisher (together the “Parties”) have agreed to base their business relation on the following Publisher Framework Agreement (the “Agreement”). The Agreement, any and all executed Order Forms (esp. Insertion Orders), together with any addendums thereto, if any, will constitute the entire agreement between the Parties pertaining to the subject matter as mentioned above. The Agreement shall supersede all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof. In the event of any conflict between the terms of the Agreement and any Order Forms, the terms of the Agreement will govern, unless the Order Form both expressly provides otherwise and is signed by the Company.
Now therefore the Parties have expressly agreed as follows:
I. Definition of terms
- Account: An account is the legal access, which is attained by the Publisher according to its complete and accurate provision of the registration data, to the Advertising platform after the registration.
- Valid Click: A click is valid if a natural person, not identical or attributable to the Publisher, hereinafter referred to as the "user", voluntarily and consciously clicks on a hyperlink, which is attributable to the Publisher, for the Program, thus opening the Advertiser’s linked website. Repeated clicks or clicks which are made sequentially in a short time by the same user – even on different hyperlinks - are not valid. Forced clicks, for purposes other than learning the details of the advertised deal, which are connected with a compulsory action such as the sending of text message, the participation in a prize game or the use of the click in a paid e-mail system, are not permitted without the prior written approval of Company. If such permission has not been given then those clicks, produced as described above, are not counted as valid clicks. Valid clicks are to be recorded, verified and determined by the Company according to his own fair judgment.
- Valid Lead: A lead is valid if a user makes a valid click and then voluntarily and consciously conducts a defined action ("qualified action") on the Advertiser’s website. Valid leads are recorded and/or determined as valid clicks with the difference that, concerning the qualified action, these actions are recorded and verified for the Company by the Advertiser’s system and determined by the Company according to his discretion.
- Qualified Action: Qualified Action means any type of pre-agreed or predefined activity or result that is sought by the Company, e.g. the completion of an application, registration or other form by user.
- Media Services: Media Services means one or more of the online advertising services offered by the Publisher pursuant to an Order Form, including esp. its affiliate marketing or advertising network services.
- Advertising Channels: Advertising channels means one or more mediums, e.g. website, email, used or owned by the Publisher or by the Publisher’s partners to advertise the Programs offered.
II. Start and end of the contract relation
- The Agreement is valid indefinitely and is effective on the date of Publisher's registration to the Advertising platform. Both Parties have the right to terminate the Agreement in writing by mail or e-mail to other party mail or e-mail address. For the purpose of verification, the e-mail transmission log is to be provided upon demand.
- Each party is entitled to make termination for a good cause, esp. in the event of breach of the Agreement.
- Upon termination of the contractual relation, the Publisher shall remove all advertising materials (links, banners, etc.) from the advertising channels. As of the end of the Agreement, no further remuneration is to be paid even if successful advertisement continues.
III. Obligation and liability of the Company and limited liability
- After successful registration, the Company agrees to set up a separate account for the Publisher. With this account, the Publisher can review his current situation for the Programs offered at any time.
- The Company shall take all appropriate and economically justifiable measures to assure the operability and reliability of the Programs. However, the Company does not provide any guarantee that the single Program web pages are operating properly on the Publisher’s computer or on which of Publisher’s partners. The Company is also not liable for any impairments to the Programs unavailability due to technical faults and for any events of force majeure.
- The Publisher is responsible for the advertising channels, especially for respective content presentation. The Company did not have nor has any influence on the contents of the foregoing advertising channels and thus herewith expressly disassociates himself from their contents.
- The Publisher is always liable for its own actions. The Company is not liable for damages, which were caused by the Publisher, and claims resulting from these of any third parties. The Publisher expressly holds the Company harmless from such claims from third parties and to this extent The Publisher is obligated to pay in advance and to compensate for damages upon the first request of the Company.
- The Company is fully liable for damages which were caused intentionally or due to gross negligence by the Company or his agents. The Company is also liable according to liability provisions for the product and claims due to initial inability or to imputed impossibility. Should the Company culpably commit a material breach of contract then the liability to pay damages is limited to those damages which are foreseeable and typically occur. An obligation is an essential part of a contract if the fulfilment of such an obligation is necessary to attain the goal of the Agreement.
- In other respects, the Company will not be subject to any liability whatsoever (e.g. for the Publisher’s loss of profits, loss of data or interruptions or defects in the operation of the Advertising platform) regardless of the legal grounds. This specifically applies in particular when Program conditions change and/or Programs are discontinued during the advertising period. The Company’s liability limits and exclusions apply to his employees, representatives and agents. The Company accepts no responsibility and provides no guarantees concerning the product or products, which are sold on the Program page, and this includes the guarantee for the suitability of the products for the contractual or usual purpose, the non-violation of rights of third parties or other guarantees, which result from the fulfilment of the contract or a trade custom.
IV. Obligation and liability of Publisher
- The Publisher shall, under its own responsibility and under the observance of all statutory regulations and in particular the law on competition, advertise the Programs offered.
- If the Publisher operates its own advertising channels and if it provides advertising material of Advertiser on this advertising channels, then the Publisher is responsible for the development, the operation and the servicing of its advertising channels.
- Indemnification: The Publisher is responsible for insuring that no portrayal of violence, sexually explicit contents or discriminating statements or depictions with respect to race, gender, religion, nationality, disability, sexual tendency or age appear on the advertising channels. Publisher shall also insure that any material presented on the advertising channels does not violate the rights of any third party including, for example, copyrights and trademark rights, the general right to privacy or other rights and that the material presented on the advertising channels is not insulting or libellous or violates the law in another manner. The Publisher guarantees that the operation of the advertising channels completely fulfils the above requirements.
With respect to a campaign involving e-mails, the Publisher further represents and warrants to comply with all aspects of all state and federal laws and regulations including but not limited to any relevant rules on sending of unsolicited e-mails; and in particular will not submit a campaign for transmission of any E-mail: (a) with a "from line" that is materially false or misleading and does not accurately identify the person sending the E-mail; (b) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the E-mail; (c) that does not include a clear and conspicuous identification that the e-mail is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the Publisher; or (d) with any content that (i) infringes or violates any intellectual, proprietary or privacy rights; or (ii) is misrepresentative, defamatory or violates any applicable law or regulation. The Publisher also explicitly represents and warrants that he will not transmit a campaign including an e-mail to any individual that has requested not to receive any e-mails, provided that the e-mail falls with-in the scope of the request.
The Publisher agrees to defend, indemnify, and hold harmless the Company and its subsidiaries, owners, Advertisers and other affiliates, and its employees, licensees, service providers, and its respective owners, representatives, employees, contractors, officers and directors from all liabilities, claims, and expenses, including attorney’s fees that arise from any breach of this provision by the Publisher, by its representative, employee, contractor or agents or that is attributable to it in another way. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Publisher, in which event the Publisher will cooperate with the Company in asserting any available defenses.
- The Publisher or its representative agree to be 18 years of age or older on the date of creation an account on the Advertising platform. The Publisher or its representative agree to operate in a jurisdiction where participation in the Advertising platform does not violate any law, ordinance, regulation or standard.
- In the case of a violation or disregard of the Agreement, the Company reserves the right to block the access of the Publisher to his account. In this case, the commissions can be withheld until the clarification of the facts. Commissions, which were generated illegally or in contravention to the rules, which are defined on the Advertising platform, or in contravention to the Agreement, are forfeited.
- In case the user do not log in to our system or his account is without leads for 365 days, then all unpaid commissions are set to zero and account is marked as inactive.
V. Advertising measures
- The advertising for the Programs offered can basically be done in the form of news ticker, link and banner advertising. The Publisher is entitled to design banners and texts himself, but may only use these after receiving written approval from the Company.
- The Publisher is entitled to place advertising material at any point unless such placement violates the provisions of this agreement or is intends to impair the reputation or the valuation of the product or service, the brand or the business operations of the Company or the Advertiser. In these cases, the Company may demand a change of the placement.
- The sending of undesired e-mails with advertisement for the Programs offered to unknown persons is forbidden. The same applies to other advertising measures, which require the approval of the recipient for the receipt of the advertising, for example, by cell phone, telephone and fax etc. It is also forbidden to advertise in forums or newsgroups in the form of contributions to a discussion or other contributions.
- The Publisher is not to receive any remuneration for transactions made with his own tracking-ID. Therefore, the Publisher guarantees that he will not conclude any customer contract for himself using his own tracking ID with one of the Programs offered. In addition, Publisher ensures that he will not pass on his full or partial remuneration to end customers of the Advertiser.
- The Publisher guarantees that the advertising channels do not violate the rights of any third party and in particular rights to privacy, copyrights and trademark laws. In particular, the Publisher guarantees that the contents, which are provided on the advertising channels, do not violate the provisions of the Criminal Code and in particular that no content can be called up which is pornographic, morally harmful to youth or impair the development of children and youth or, which is included in the list of media morally harmful to youth, or which glorify war, is of a national socialistic nature, incite hatred and violence against segments of the population, incite violence or race hatred or content which is insulting, or is an instigation to commit a crime.
The Publisher shall pay the Company a contractual penalty of a lump sum of €1000.00 (to word: one thousand euros) for each individual violation if he conducts advertisement, which is attributable to him, in connection with the Company’s Program on advertising channels which violate the provisions of this paragraph. The right to additional damage claims by the Company is not affected by this. The contractual penalty is to be credited against any damage claims.
- The Publisher shall be immediately excluded from the Program in the event of breach of the Agreement. In this case, the Publisher’s account shall be immediately blocked and a deposit shall be withheld from the commissions accrued to date to cover legal fees and potential the Company and/or third party damage claims.
- Accrued commissions will be published in the account and could vary according to the Program, geographic location of the end customer, currencies exchange rate, Publisher’s advertising channel ranking and Company’s margins. By using the advertising materials provided or approved in writing by Company, the Publisher accepts the commission model displayed for the Program and the provided commission conditions.
- The Publisher states its acceptance of the commissions due by the Company for the rendered media services, which are made up of a fixed part calculated according to the criteria in subsequent point 3 describing how commissions due to the Publisher are calculated.
- Commissions due to the Publisher for rendered media services are calculated as described below, and the individual amount are negotiated with the Publisher according to its or its publishers advertising channel’s ranking
- a fixed fee for each valid click by single users and/or visitors on the Advertiser’s website;
- a fixed fee for each valid lead by single users and/or visitors on the Advertiser’s website;
- The Publisher states its awareness of the technological instruments and software used by Company to calculate the amounts due to the Publisher for the rendered media services and accepts them without any reserves.
- Special agreements for commissions must be made in advance in writing with the Company, esp. in Order Forms.
- Commissions are paid up to four times per month using the NET payment model specified within account. All payments under the Agreement shall be due only after the Company receives payment from the Advertisers, e.g. advertising beneficiary or media agency. Only amounts of the minimum specified within account or more are to be paid out. For amounts of less than the minimum specified within account, these are to be credited to the following month. The credit balance in the Publisher account is not to bear interest.
- Value-added tax is only paid, when due, if the Publisher is a business owner and has sent a copy of his business registration to the Company proving his valid tax number and complete address data. The Publisher has right to VAT payment as of the day in which all necessary business registration data is entered. No claim exists for the retroactive payment of the value-added tax. The Publisher is responsible for paying taxes on paid commissions.
- All payouts are made in accordance with the payment method selected by the Publisher in account. Associated and third party fees may apply to some payment methods. All such fees shall be borne by the Publisher and will be deducted from the corresponding payment and are subject to change at any time. The Publisher may change the selected payment method at any time.
- Any fees sustained by Company for returned payments due to incorrect and/or incomplete information will be deducted from your commission.
- In case of any reasonable suspicion of a material breach of this agreement, the Company shall be entitled to temporarily withhold payouts for the time of a respective investigation.
- Basically, misuse is any attempt to circumvent the Publisher’s system and the Company’s accounting system using technical or other means. Subject to written approval, this specifically includes tampering with the originally planned advertising materials offered by the Company and forcing the system to count or register successes, which did not actually take place in a business sense or were only faked, using technical or other means.
- The Company shall inform the Publisher as soon as possible on any suspicion of misuse. The Publisher shall promptly contribute to a full and true clarification of the facts.
- In cases of misuse, the Company reserves the right to block the access of Publisher to his account. In this case, the commissions can be withheld until the clarification of the facts. Commissions, which were generated illegally or in contravention to the terms of Program, which are defined on the Company’s websites, or in contravention to this Agreement, are forfeited.
- The Company reserves the right to initiate legal action against the Publisher in case of misusing the system.
IX. Changes to the Program
- The Company is entitled to change the terms of the Program, e.g. amount of the commission and serviceable geographic locations.
- The Company reserves the right to replace, change or discontinue, if applicable, voluntary services which go beyond the contractual obligation. The Publisher cannot derive any claim for the retention of such services from the use of these services.
X. Data Protection
- The Company shall observe all privacy regulations.
- The Company does not use the Publishers' data for any purposes other than those provided in this agreement.
- The Company shall not sell any address data or disclose any personal data to third parties.
XI. Jurisdiction and applicable law
- The agreement is subject to the law of the Slovakia.
- In relation to any dispute arising out of or in connection with this Agreement the courts of Slovakia shall have exclusive jurisdiction.
XII. General provisions
- Conflicting terms and conditions of the Publisher are invalid if not expressly agreed on in writing. Unilateral confirmations of the Publisher with reference to its terms and conditions are to be expressly objected to in any case.
- Changes or amendments to this agreement as well as subsidiary agreements must be confirmed in writing to be valid and such confirmation is to be by a legal representative or an employee of Company who has been appointed as a representative. The same applies to the revocation of this requirement to be in writing.
- Company is entitled to transfer the agreement with all rights and obligations by means of a declaration to a legal successor.
- If the agreement requires the written form for declarations of the Parties, then transmission by mail, fax or e-mail is intended. Declarations and invoices transmitted by e-mail are considered to have been received one week after the receipt on the Publisher’s e-mail account even if such e-mails were not opened.
- If individual provisions of agreement are or become entirely or partially invalid, then the validity of the remaining provisions or parts of such provisions of the agreement is not affected. Legal regulations are to replace the invalid or missing provision. Should no legal regulation be capable of replacing the invalid provision, the invalid provision is to be replaced by the provision the Publisher and the Company would have selected upon the appropriate consideration of their mutual interests, if they had been aware of the invalidity of the concerned provision of the agreement. If the agreement contains a loophole then this paragraph is to be applied accordingly or analogously.
- Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt.
Concluding Remark: The Publisher has carefully read and understood all the Agreement and agrees to its validity by registration.