Terms and Conditions Publisher
The following terms and conditions are entered into and between eGENTIC Asia Pacific Pte. Ltd. (hereinafter “eGENTIC”) and the publishing company (hereinafter “Publisher”), referred to individually as “Party” or collectively as “Parties”.
eGENTIC operates and manages an affiliate network (hereinafter “BigBangAds”) an advertising company (hereinafter “Advertiser”) and a Publisher may participate in.
The Advertiser wants its concrete advertising of its goods and services (hereinafter “Advertising Material”) to be shown through different ways of advertisements, including but not limited to banners, emails, iFrames and/or videos (hereinafter “Advertising Channel”).
By using BigBangAds the Advertiser can place his Advertising Material combined with the respective Advertising Channel and concrete financial conditions (hereinafter “Advertising Campaign”) in order to be picked and performed by a Publisher. Such an Advertising Campaign may be governed – beside this Agreement – by further specific conditions issued by the Advertiser (hereinafter “Campaign Terms”) which have to be observed by the Publisher picking and performing the concrete Advertising Campaign.
Picking and performing the Advertiser Campaign, the Publisher may publish the Advertising Material – by adhering the desired Advertising Channel – through banners and/or iFrames and/or videos that will be shown on the Publishers own websites and/or on third parties websites where banner and/or iFrame and/or video places have been booked and/or emails that may be sent by the Publisher or by third parties delegated by the Publisher and/or other networks operated by the Publisher (hereinafter “Publisher Media”) by adhering any restriction stated in the Campaign Terms. .
- The Publisher has to submit an application from the website www.big-bang-ads.com. The application has to be accurately completed. It is strictly forbidden to use any aliases or other means to mask Publisher´s true identity or contact information. The Publisher is obliged to provide eGENTIC with future updates. Finishing of the application process and transmitting the application constitutes the acceptance of our offer to conclude the Agreement. After eGENTIC has reviewed the application successfully, eGENTIC will notify Publisher of any acceptance by granting access to the Advertiser Campaigns. Access will be granted to so-called public Advertising Campaigns and private Advertising Campaigns. Public Advertising Campaigns can be picked directly by the Publisher, private Advertising Campaigns can be picked directly from or may be send to the Publisher. In cases of any rejection Publisher will be notified generally within two (2) business days. Furthermore eGENTIC may accept or reject Publisher´s application at its sole discretion for any reason. In case of a rejection any data filled in by the Publisher and transmitted to BigBangAds will be deleted. In case of a rejection no enforceable right could be derived, including without limitation any right of participation.
- For the avoidance of doubts by completing the application and giving its consent to this Agreement by ticking the check box the Publisher submits its acceptance for the conclusion of this Agreement regarding the participation in the BigBangAds.
- Furthermore and in case of promoting any Advertiser Campaign afterwards the Publisher expressly agreed to and accepts the specific Campaign Terms if any by concluding this Agreement. These Campaign Terms will become an incorporated part of this Agreement.
- Any Advertiser Campaign – with respect to which access have been granted – can be picked by the Publisher. Such Advertiser Campaigns are accompanied with the respective Campaign Terms. Publisher can also receive Advertising Campaigns via emailand/or messenger, e.g. Skype.
II. Obligations of the Publisher
- The Publisher ensures that all Publisher Media as well as the technical implementation of all Publisher Media (i) are not illegal, (ii) do not infringe upon the intellectual property of third parties, including without limitation trademarks and/or copyrights, and/or further third party rights and/or personal rights of any third party and (iii) do not contain or link to any material which is – including without limitation – harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling), promotes advertising for articles the distribution of which is entirely prohibited or the distribution of which is subject to restrictions that were disregarded when publishing, contains profanity or otherwise contains materials that Big Bang Ads informs you that it considers objectionable (hereinafter collectively “Objectionable Content”).
- Furthermore the Publisher ensures not to place any of the following forbidden forms of advertising: mass subscription (automatic entry websites and/or scripts), forced clicks, webhosting, image hosting, file sharing, user generated content without editorial control, misleading user flows (e.g. violating any applicable law, rules or regulations, including without limitation the causing of false impression regarding prize distribution and the use of incentives) and interstitial pages.
- It is not permitted to modify the Advertising Material without prior written permission from eGENTIC and/or the Advertiser. Written means and includes letter, fax, email and/or Skype. Additionally without prior written consent it is not permitted to advertise with any other advertising (self-) created by the Publisher or otherwise acquired that was not provided directly in Big Bang Ads and/or from the Advertiser and approved for this Agreement.
- Expressly it is not permitted to especially use and/or distribute viruses, ransom ware worms, trojan horses, rootkits, key loggers, dialers, spyware, illegal adware, malicious BHOs, rogue security software and other malicious programs.
- Any ad serving software used by Publisher shall only been installed on an end-user’s computer in a legally admissible manner, including without limitation that the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted and understandable end user license agreement and the software can be easily removed according to generally accepted methods. Ad serving software may be allowed in the respective Campaign Terms.
- The Publisher ensures not to make any representations, warranties or other statements concerning Big Bang Ads and/or eGENTIC and/or Advertiser or any of their respective products or services, except as expressly authorized herein, including without limitation any defamatory statement.
- According to point IX. of this Agreement the Publisher ensures not to place the brand of eGENTIC and/or Advertiser and/or BigBangAds on any platform and/or online platform, website and/or any other place without prior written consent of the respective trademark owner. The definition of written according to point II.3 applies. In general the Publisher ensures to not infringe any intellectual property rights of eGENTIC and/or the Advertiser, including without limitation trademarks and/or copyrights. The Publisher ensures to not copy or resemble the look and feel of eGENTIC´s and/or Advertiser´s website and/or create the impression that the Publisher Media is in any way associated to Big Bang Ads, eGENTIC and/or Advertiser, without prior written permission from eGENTIC and/or Advertiser. The definition of written according to point II.3 applies.
- The Publisher will comply with all (i) obligations, requirements and restrictions under this Agreement, (ii) laws, rules and regulations as they relate to the business of the Publisher, the Publisher Media and/or Publisher´s use of the Advertising Material, (iii) the terms, conditions, guidelines and policies of any third party services used by Publisher in connection with the BigBangAds, including but not limited to, email providers, social networking services and ad networks and (iv) Campaign terms if any.
- The Publisher accepts the obligation to pay to eGENTIC a contract penalty of EUR 5.000,00 for each culpable offence against this provision II. This regulation does not impair the right to assert a further claim to damage compensation.
- If a third party seeks to enforce a claim against eGENTIC and/or the Advertiser due to any Publisher Media and/or any offence against the provision II, the Publisher shall indemnify eGENTIC and/or the Advertiser against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.
- If a an Advertiser seeks to enforce a claim against eGENTIC due to any Publisher Media and/or any offence against the provision II by the Publisher, the Publisher shall indemnify eGENTIC against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.
III. Specific obligations of the Publisher for emailing, SMS and Publisher network campaigns and specific regulations with regard to Sub-Publishers
- Regarding email and/or SMS campaigns the Publisher guarantees that emails and/or SMS will be sent only to users who declared their consent to receive advertising emails and/or SMS from the Publisher, in which products of the Publisher and/or third parties are advertised, including without limitation that the user has consented in the receipt of so-called third party emails and/or SMS. In so doing, the Publisher ensures that the user gives his consent in a lawfully effective manner, depending on the statutory regulations and the judicature of the respective country the respective user has his residence in. The Publisher is obliged to prove that he has fulfilled these requirements and that he acts in compliance with the statutory regulations in case of eGENTIC´s request.
All emails sent in connection with the agreed Advertising Campaign must include an appropriate opt-out link and the statement of imprint/company information. All SMS sent in connection with the agreed Advertising Campaign must include the statement of imprint/company information. From time to time, eGENTIC may request Publisher to submit the final version of an email and/or SMS for approval to Big Bang Ads´ representative.
If available for email and/or SMS campaigns the Publisher has to download the list of suppression from BigBangAds. Publisher has to ask for this list and shall afterwards filter its email and/or SMS list by removing any entries appearing on the list of suppression and will only send emails and/or SMS to the remaining addresses on its email and/or SMS list. Furthermore Publisher is obliged to check other public country-specific suppression list, e.g. the Robinson list, and proceed in the same way mentioned above. The Publisher agrees that failure to download the list of suppression and/or disregard of any other public list before mailing may result in payment withholdings, removal or suspension from all or part of BigBangAds and/or Advertiser Campaigns, possible legal action and any other rights or remedies available to Big Bang Ads pursuant to this Agreement or otherwise.
The Publisher accepts the obligation to pay to eGENTIC a contract penalty of EUR 5.000,00 for each culpable offence against this provision III.1. This regulation does not impair the right to assert a further claim to damage compensation.
If a third party, including without limitation any user, seeks to enforce a claim against eGENTIC and/or the Advertiser due to any misuse and/or any offence against the provision III.1, the Publisher shall indemnify eGENTIC and/or the Advertiser against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.
If a an Advertiser seeks to enforce a claim against eGENTIC due to any offence against the provision III.1 by the Publisher, the Publisher shall indemnify eGENTIC against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.
Publisher must strictly comply with the country-specific applicable CAN-SPAM Act (hereinafter “Act“). It is solely Publisher´s obligation to ensure that the E-Mail complies with the respective applicable Act.
- In the case that Publisher operates an affiliate network (hereinafter “Network”) with third publishers (hereinafter “Sub-Publishers”) the Publisher guarantees to communicate this Agreement to the Sub-Publishers and to control its adherence, that means the Publisher commits himself to impose by contract on his Sub-Publisher the obligations stated in this Agreement. Publisher will be liable for the behavior of its Sub-Publishers, including without limitation that Publisher guarantees (i) that it will expressly forbid any Sub-Publisher to modify the Advertising Material in any way, (ii) to maintain its Network according to the highest industry standards, (iii) to not permit any party to be a Sub-Publisher whose website or business model involves content containing Objectionable Content, (iv) that all Sub-Publishers are in good standing with Publisher and that all Sub-Publisher accept, through verifiable means, the regulation in this Agreement prior to obtaining access to the Advertising Material, (v) that Publisher shall promptly terminate any Sub-Publisher who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement, (vi) in the event that Publisher suspects any wrongdoing by a Sub-Publisher with respect to the Advertising Material, Publisher shall promptly disclose to eGENTIC the identity and contact information for such Sub-Publisher and (vi) to promptly remove any Sub-Publisher from the respective campaign and terminate their access to future offers of Big Bang Ads in the Network.
The Publisher accepts the obligation to pay to eGENTIC a contract penalty of EUR 5.000,00 for each culpable offence against this provision III.2. This regulation does not impair the right to assert a further claim to damage compensation.
If a third party, including without limitation any user, seeks to enforce a claim against eGENTIC and/or the Advertiser due to any misuse and/or any offence against the provision III.2, the Publisher shall indemnify eGENTIC and/or the Advertiser against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense. Furthermore the Publisher is obliged to disclose to eGENTIC the identity and contact information for such Sub-Publisher. Upon being requested to do so the Publisher is obliged to assign to eGENTIC the claims arising as a result of the contract between the Publisher and the Sub-Publisher.
If a an Advertiser seeks to enforce a claim against eGENTIC due to any offence against the provision III.2 by the Publisher, the Publisher shall indemnify eGENTIC against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense. Furthermore the Publisher is obliged to disclose to eGENTIC the identity and contact information for such Sub-Publisher. Upon being requested to do so the Publisher is obliged to assign to eGENTIC the claims arising as a result of the contract between the Publisher and the Sub-Publisher.
IV. Obligations of eGENTIC
- eGENTIC operates BigBangAds and conducts its business with due care and diligence of a prudent and conscientious business man.
- eGENTIC shall provide the Advertising Campaigns as provided by the Advertiser itself. eGENTIC does not assess the advertisement provided by the Advertiser.
- In cases of any short-dated changes of the Advertising Material eGENTIC shall communicate those changes in BigBangAds as soon as possible and with undue delay.
- eGENTIC shall ensure that the Advertising Campaign is shown in a correct manner.
- eGENTIC will attempt to make BigBangAds available. In cases of any system failure of BigBangAds eGENTIC attempts to restore the functionality of the system as far as possible. In case of any system failure and/or system interruption no enforceable right could be derived.
- eGENTIC does not guarantee the constantly availability of BigBangAds and all actions connected with this availability, including without limitation the availability of the Advertising Material, the Advertiser´s landing page and the accounting system. In exceptional cases it might happen that some transactions might not be counted and/or recorded. No right could be derived against eGENTIC due to such interruptions.
- Advertiser provides the Advertising Material for the Publisher and entitles the Publisher to use the Advertising Material during the time of the specific campaign. eGENTIC has no influence regarding the transmission of rights of use. Please see also point IX of this Agreement.
- eGENTIC shall handle billing, payment and tracking according to point V of this Agreement.
V. Billing, payment and tracking
- Billing and payment will be separated into four (4) different entities: European Union, Asia Pacific, North America, and South America. Each Advertiser will be allocated to one of these entities, from whom the respective billing and payment to the Publisher will ensue. Any Advertising Campaign includes a code consisting of (i) a shortcut for the country the advertisement shall be shown in (ii) a shortcut referring to an internal identifier of an Advertiser and (iii) a shortcut referring to the entity the Advertiser is allocated to for billing and payment purposes (hereinafter “Geo-Code”). For the avoidance of doubts: a Geo-Code may have the following shortcuts AU_EXT_EU which means that the advertisement shall be shown in Australia, the Advertiser is an external one and the entity in the European Union shall be the allocated entity for billing and payment purposes. Possible shortcuts for the accounting/billing entity are: EU (European Union), AP (Asia Pacific), NA (North America) and SA (South America). That means billing and payment of the Publisher follow the Advertiser´s allocation. The respective billing entity is just visible through the Geo-Code. Any payment will be done in form of credit advices issued by the allocated billing entity. For each credit advice the Publisher will receive a respective document with the credit amount including performed Advertising Campaigns and detailed figures (hereinafter “Credit Note”) issued by eGENTIC.
For the avoidance of doubt the company name of the billing entity will be listed hereinafter:
- EU (European Union): eGENTIC GmbH
- AP (Asia Pacific): eGENTIC Asia Pacific PTE LTD.
- NA (North America): eGENTIC North America Corp.
- SA (South America): eGENTIC Brasil Geração Mundial de Leads Ltda.
- The level of payment (hereinafter collectively “Commission”) depends on the specific action, behavior and/or business transaction agreed in the Campaigns Terms and/or the Advertising Campaigns, for example whether a payment shall be done in cases of generated leads and shall be paid on CPL basis. Any Campaign Terms might be amended at any time and come into force immediately. A Publisher´s claim with regard to any continuation and/or performance of an Advertiser Campaign does not exist. Proxy traffic will be redirected to different external offers at eGENTIC´s sole discretion and no compensation will be paid for proxy traffic. Except of the Commission the Publisher has no right of refund for any other costs and expenses. A Commission will only be paid if (i) a specific action, behavior and/or business transaction – depending on the Campaign Terms and the Advertising Campaign – has come out attributable to Publisher´s promotional activity, (ii) the minimum amount according to V.3 has been reached, (ii) the specific action, behavior and/or business transaction has been tracked and recorded by eGENTIC and has been validated according to point V.4, (iii) any remuneration owed by the Advertiser to eGENTIC has been paid according to V.5 (iv) no proxy traffic has been delivered and (v) no misuse and/or violation appears according to the conditions of this Agreement.
- Any Commissions will be paid monthly, bimonthly or weekly, depending also on the specific Advertising Campaign and the Campaign Terms if any, provided that Publisher´s account is currently greater than EUR 500 net referring to the respective billing entity (hereinafter “Threshold”). As part of the commission payment the Publisher has to complete the entrepreneurial characteristic procedure which may differ depending on the respective country the Publisher has its residence in. For the avoidance of doubt any commission will only be paid by reaching the Threshold and passing the entrepreneurial characteristic successfully. Accounts with a balance lower than the Threshold will roll over to the next month or ending of the campaign, and will continue to roll over monthly until the Threshold is reached. If a Threshold will not be reached within two (2) years (last conversation day counts) the Publisher´s account shall be reset to zero. eGENTIC reserves the right to charge back to your account any previously paid Commission that are later determined to have not met the requirements to be qualified as Commission.
- All tracking shall be made by eGENTIC in its sole discretion. In the event that Publisher disputes in good faith any portion of a credit advice, Publisher must submit that dispute to eGENTIC in writing and in sufficient detail within seventy-two (72) hours of the date stated in the Credit Note. If Publisher does not dispute the accounting data as set forth in the Credit Note, Publisher agrees that it irrevocably waives any claims based upon that accounting data. Furthermore in order to receive any Commission the specific action, behavior and/or business transaction must be validated. Such validation will be done by the Advertiser and can be corrected by the Advertiser, including without limitation with due regard to the quality and authenticity of the specific action, behavior and/or business transaction, and with due regard to any reasons at the Advertiser´s sole discretion. Validation processes might have different periods of time depending on the respective Advertiser.
- Payment of Commissions is dependent upon Advertiser provides such funds to eGENTIC. Therefore Publisher agrees that eGENTIC shall only be liable to Publisher for Commissions to the extent that eGENTIC has received such funds from the Advertiser. Publisher hereby releases eGENTIC from any claim for Commissions if eGENTIC has not received such funds from the Advertiser.
- If Publisher has an outstanding balance due to Big Bang Ads under this Agreement or any other agreement between the Publisher and eGENTIC, whether or not related to BigBangAds, Publisher agrees that eGENTIC may offset any such amounts due to BigBangAds from amounts payable to Publisher under this Agreement.
- In addition to point II. of this Agreement any kind of misuse that means the attainment of specific action, behavior and/or business transaction – which triggers a Commission – through dishonest and/or forbidden practices infringing applicable law, this Agreement, Campaign Terms and/or the honest principle of BigBangAds is strictly forbidden. This includes without limitation (i) pretense of a specific action, behavior and/or business transaction, e.g. the unauthorized indication of false and/or nonexistent data in order to pretend any sale of products and/or services and/or registrations, (ii) any tracking manipulation, (iii) any use of Advertising Material that have not been displayed noticeably and/or that have been displayed contrary to Advertiser´s specification, (iv) any use of terms in search engines and/or advertising of the Publisher Media that are protected by trademark law in favor of eGENTIC, BigBangAds and/or the Advertiser and/or (v) using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with the generation of Commissions and/or (vi) exceeding Publisher´s access to BigBangAds.
- In cases of misuse eGENTIC is entitled to an extraordinary termination without any notice period and with immediate effect.
- The Publisher accepts the obligation to pay to eGENTIC a contract penalty of EUR 5.000,00 for each culpable offence against this provision V. This regulation does not impair the right to assert a further claim to damage compensation.
- If a third party seeks to enforce a claim against eGENTIC and/or the Advertiser due to any misuse and/or any offence against the provision V, the Publisher shall indemnify eGENTIC and/or the Advertiser against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.
- If a an Advertiser seeks to enforce a claim against eGENTIC due to any misuse and/or any offence against the provision V by the Publisher, the Publisher shall indemnify eGENTIC against any and all claims that might arise and also assume responsibility for paying appropriate costs for legal defense.
VII. Blocking and deactivation
In cases of suspicion of any Publisher´s offence against this Agreement eGENTIC at its sole direction is entitled to block and/or deactivate Publisher´s account for the duration of any review or irrevocably with immediate effect. In such cases Publisher will be informed without undue delay and the possibility of a Publisher´s statement will be given.
Except as otherwise provided in this Agreement or with the consent of eGENTIC, Publisher agree that all information, including without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning eGENTIC, BigBangAds and/or any Advertiser shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Publisher for any purpose other than Publisher´s participation in BigBangAds, except and solely to the extent that any such information is generally known or available to the public through a source other than the Publisher. Publisher shall not use any information obtained from BigBangAds to develop, enhance or operate a service that competes with BigBangAds, or assist another party to do the same.
IX. Limited License and Intellectual Property
- eGENTIC grants to Publisher a nonexclusive, nontransferable, revocable right to use and to access BigBangAds solely in accordance with the terms of this Agreement.
- Furthermore a respective nonexclusive, nontransferable and revocable right to use the Advertising Material for purposes of performing the Advertising Campaign is also granted by the Advertiser. Publisher is only entitled to use the Advertising Material to the extent necessary to perform its work and obligations under this Agreement.
- Publisher may not alter, modify, manipulate or create derivative works of the Advertising Material or any Big Bang Ads graphics, creative, copy or other materials owned by, or licensed to, eGENTIC in any way.
- The licenses may be revoked at any time by giving the Publisher notice. Except as expressly stated herein, nothing in this Agreement is intended to grant Publisher any rights to any of eGENTICs´ trademarks, service marks, copyrights, patents or trade secrets. All rights not expressly granted in this Agreement are reserved by eGENTIC.
This Agreement shall commence on the date of Publisher´s transmitted application and shall continue thereafter until terminated as provided herein. Publisher may terminate its participation by deregister at BigBangAds. eGENTIC may terminate the Publisher´s participation in one or more Advertising Campaigns and/or this Agreement at any time and for any reason which eGENTIC deems to be appropriate with or without prior notice to Publisher. Upon termination of Publisher´s participation in one or more Advertising Campaigns and/or this Agreement for any reason, Publisher will immediately cease all use of and delete all Advertising Material and connected links, plus all Big Bang Ads and/or eGENTIC and/or Advertiser intellectual property, and will cease representing itself as a Big Bang Ads member.
XI. Data Protection
- eGENTIC collects, processes and uses personal data in compliance with the applicable data protection law.
- Where required eGENTIC is entitled to collect, store and use personal data in order to enable Publishers access to BigBangAds and to perform the respective services.
- In particular eGENTIC collect, store and use those personal data indicated by the Publisher during the participation process. Furthermore the data will be used in order to get in contact with the Publisher. Any other processing and/or use of data only ensues according to an explicit consent of the Publisher or in cases eGENTIC is entitled to do so according to statutory regulations.
- The Publisher is entitled to allege its rights according to statutory data protection regulations, including without limitation to obtain information regarding the stored personal data.
- Publisher ensures to collect, process and use personal data in compliance with the applicable data protection law.
In addition to any other rights and remedies available to eGENTIC under this Agreement eGENTIC reserves the right to withhold and freeze any unpaid Commissions or charge back paid Commissions if (i) eGENTIC determines that Publisher has violated this Agreement, including without limitation any violation of the Publisher obligations according to point II. of this Agreement, any violation of any payment requirement according to point V of this Agreement and/or any violation of the misuse conditions stated in point VI of this Agreement, (ii) eGENTIC or an Advertiser receives any complaints about Publisher´s participation in BigBangAds which eGENTIC reasonably believes to violate this Agreement or (iii) any specific action, behavior and/or business transaction is later determined to have not met the requirements set forth in this Agreement. In the event of a material breach of this Agreement, eGENTIC reserves the right to disclose Publisher´s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Publisher´s actions.
XIII. Representations and Warranties, Limitation of Liability
- The Parties guarantee that they are entitled to conclude this Agreement.
- IN NO EVENT SHALL EGENTIC BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF BIGBANGADS, ADVERTISING MATERIAL, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF EGENTIC.
- IN CASES OF ANY MATERIAL AND FINANCIAL DAMAGE CAUSED BY NEGLIGENCE EGENTIC`S LIABILITY AND THOSE OF ITS AGENTS IS LIMITED TO THE VIOLATION OF ESSENTIAL CONTRACTUAL OBLIGATIONS, HOWEVER, LIMITED TO THE REASONABLY FORESEEABLE DAMAGES TYPICALLY ASSOCIATED WITH THIS KIND OF CONTRACT AT THE TIME OF CONCLUSION OF THE CONTRACT. ESSENTIAL CONTRACTUAL OBLIGATIONS ARE OBLIGATIONS THE PERFORMANCE OF WHICH SHAPES THE CONTRACT AND IN WHICH THE PARTNER MAY REASONABLY TRUST. THIS LIMITATION OF LIABILITY ALSO APPLIES IN CASES OF INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGE INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES AND GOODWILL.
XIV. Indemnification and Penalty
- Besides any indemnification stated in this Agreement Publisher hereby agrees to indemnify, defend and hold harmless eGENTIC and Advertiser and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Publisher herein, (ii) any misuse by Publisher, or by a party under the reasonable control of Publisher or by a party obtaining access of the Advertising Material, Advertiser Campaign or Big Bang Ads or eGENTIC and/or Advertiser intellectual property through Publisher, or (iii) any claim related to Publisher Media, including but not limited to the content contained on such Publisher Media.
- Besides any penalty stated in this Agreement Publisher hereby accepts to pay to eGENTIC a contract penalty of EUR 5.000,00 for each culpable offence against this Agreement.
eGENTIC may modify any and all provisions of this Agreement at any time by providing Publisher with a written notification. The definition of written according to point II.3 applies. If the Publisher does not confirm the modification Publisher´s continued participation in BigBangAds ten (10) business days after a change notice has been posted will constitute Publisher´s acceptance of such change. If the modifications are unacceptable to Publisher, Publisher may terminate this Agreement by deregister at BigBangAds after having finished all current Advertising Campaigns in accordance with the old regulations. Any deregistration can be done by sending an email to email@example.com. In addition, eGENTIC may change, suspend or discontinue any aspect of Advertising Material or remove, alter, or modify any tags, text, graphic or banner ad in connection with Advertising Material. Publisher agrees to promptly implement any request from eGENTIC to remove, alter or modify any link, graphic or banner ad that is being used by Publisher as part of BigBangAds.
XVI. Independent Investigation
Publisher acknowledges that Publisher has read this Agreement and agrees to all its terms and conditions. Publisher has independently evaluated the desirability of participating in BigBangAds and is not relying on any representation, guarantee or statement other than set forth in this Agreement.
XVII. Governing Law and Miscellaneous
- This Agreement is governed by the laws of Singapore. Singapore is the place of jurisdiction.
- Publisher may not assign all or any part of this Agreement without eGENTIC’s prior written consent. The definition of written according to point II.3 applies. eGENTIC may assign this Agreement at any time with notice to Publisher. Subject to that restriction, this Agreement will be binding on and enforceable against the Parties and their respective successors and assigns. eGENTIC´s failure to enforce Publisher´s strict performance of any provision of this Agreement will not constitute a waiver of eGENTIC´s right to subsequently enforce such provision or any other provision of this Agreement. Publisher shall be responsible for the payment of all attorney’s fees and expenses incurred by eGENTIC to enforce the terms of this Agreement.
- This Agreement contains the entire agreement between eGENTIC and Publisher with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral.
- Publisher agrees that eGENTIC shall not be subject to or bound by any Publisher insertion order and/or online terms and conditions that amend and/or conflict with and/or supplement this Agreement, regardless of whether eGENTIC “clicks through” or otherwise indicates its acceptance thereof. Expressly any general terms and conditions of the Publisher do not apply.
- If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the Parties.
- Each Party to this Agreement is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties.