This Advertisers Agreement („Agreement“) between you as the Advertiser („Advertiser“) and BITTERSTRAWBERRY HOLDING AG, Gaiserstrasse 129, 9050 Appenzell, Switzerland (hereinafter „BSHAG“), are the binding terms and conditions under which the Advertiser may operate as a non-exclusive Advertiser of BSHAG.
BY SIGNING UP AS AN ADVERTISER, THE ADVERTISER HEREBY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS EACH OF THE PROVISIONS SET FORTH HEREIN; THAT THE ADVERTISER HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL OF THEIR OWN CHOICE AND HAD TO HAVE EACH OF THE PROVISIONS SET FORTH HEREIN FULLY EXPLAINED BY SUCH COUNSEL; AND THAT THIS AGREEMENT IS ENTERED INTO FREELY, VOLUNTARILY, AND WITHOUT ANY DURESS OR UNDUE INFLUENCE OF ANY NATURE BY, OR ON BEHALF OF, ANY PERSON OR ENTITY.
1.1 BSHAG accepts an Advertiser at its sole discretion. BSHAG only accepts Advertisers with the age of at least 18 (eighteen) years.
1.2 Upon acceptance as an Advertiser by BSHAG, BSHAG will set-up an Advertiser’s account for administrative, legal and financial purposes.
1.3 During the term of this Agreement BSHAG engages Advertiser as a non- exclusive Advertiser and Advertiser agrees to be engaged as such.
1.4 Advertiser agrees to provide Advertising content including images and text in connection with various Advertising Campaigns to be run by BSHAG on behalf of the Advertiser on mobile websites and/or applications.
1.5 Approved Advertisers remunerate BSHAG based on the successful delivery of a specific campaign including, as applicable, the display of an Ad, an end user clicking on an Ad, or an end user completing some action (including but not limited to sales/installs/leads) after viewing or clicking on an Ad.
1.6 Approved Advertisers shall be permitted to run campaigns. As applicable, each Campaign shall specify the information necessary for BSHAG to run the Campaigns for the Advertiser. The information requested may be modified from time to time, but will generally include but not be limited to, the name and category, the maximum amount spend both daily and in total, the start and end dates, targeted geographical location and audience(s). BSHAG has to be informed about relevant changes at all times be e-mail.
1.7 The Advertiser may pause or terminate a particular Campaign if desired so and has to notify BSHAG at least 72hours before such pause or termination. When such an event occurs, the Advertiser must notify BSHAG promptly. All costs made prior to the notification and pause or termination of the Campaign, are to be redeemed by BSHAG.
2.1 BSHAG will provide confirmation to the Advertiser, either electronically or in writing, stating whether an Ad Campaign has been initiated / begun delivery.
2.2 BSHAG will monitor delivery of the ads, and will notify the Advertiser either electronically or in writing as soon as possible if BSHAG believes that an under-delivery or under performance is likely.
2.3 BSHAG must comply with the IO, including all ad placement restrictions, requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO ads to mobile website(s) and/or application(s), including all types of mobile traffic sources.
2.4 Advertiser shall provide BSHAG with accurate reports and shall compile, calculate and electronically deliver data to BSHAG regarding the Campaign including but not limited to, the applicable spends/costs of the Campaign.
2.5 BSHAG’s figures and calculations regarding the Advertisers and its Campaigns shall be final and binding: provided that BSHAG reserves the right to correct such figures. Should the Advertiser have any questions regarding the data provided by BSHAG, a written request for clarification must be provided by the Advertiser within 3 (three) days of receipt of the Advertisers / Campaign data.
3.1 Advertiser’s Ad Campaign(s) must not promote, advocate, facilitate or otherwise include any of the following:
3.2 BSHAG reserves the right within its discretion to reject or remove from its Publisher’s mobile websites any Ads that do not comply with its policies, including but not limited to the eligibility and content policies set-out in Section 3.3 above, or that in BSHAG’s sole judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, BSHAG reserves the right within its discretion to reject or remove from its Publisher’s mobile websites, any Ads which would bring, or may tend to bring, disparagement, ridicule, or scorn upon BSHAG or any of its affiliates, developers or other business partners, or it otherwise deems inappropriate in its sole discretion.
3.4 BSHAG reserves the right to actively monitor Ads, traffic, events, revenues, spend/costs and other Campaign related activities for invalid activity.
4.1 Either party may terminate this Agreement without cause with immediate effect at any time.
4.2 If the Agreement is terminated, the Advertiser must cease to use the licenses, sites and services of BSHAG immediately.
4.3 BSHAG is entitled at its sole discretion to terminate its websites and services at any time without notice.
5.1 BSHAG’s commission for running Ad Campaigns on behalf of the Advertiser will be specified in the IO either in written and/or email before the actual start of the Campaign.
5.2 The initial invoice will be sent by BSHAG upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Advertiser’s billing address as set forth on the IO and will include information reasonably specified by BSHAG, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO.
5.3 Advertiser will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth in the IO. BSHAG may notify Advertiser that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser.
6.1 All materials, documents, data, software, information and inventions supplied to Advertiser by or on behalf of BSHAG shall be and remain the sole and exclusive property thereof. All such property shall be delivered to BSHAG by Advertiser, immediately upon demand, or destroyed, as may be requested.
6.2 BSHAG owns all copyrights, trademarks, intellectual property rights, know-how or any other rights connected to the services, websites or software necessary for the execution of this Agreement.
The Advertiser shall not for any reason, carry on, or be engaged in, or be concerned with, or interested in, or employed by, any person or company engaged in or concerned with or interested in a business which is the same as, or substantially similar to, or in competition with, the businesses of BSHAG.
The Advertiser commits himself, for the duration of the contractual relationship to treat the contents of this Agreement and all information obtained relating to the execution of this Agreement as confidential, and not to make this accessible to any third parties, except where this is required for the proper execution of the Agreement, which includes the approval of this Agreement by the supervisory boards of the contracting parties, or in connection with the acquisition of stock/shares in one of the contracting parties by seriously interested parties, and/or where this is required for obtaining authorizations/approvals from the authorities, or where this takes place in the scope of the normal reporting procedures within the affiliated group of companies and the affiliates are bound to confidentiality. This does not apply to information that is or subsequently becomes public knowledge, or where the contracting parties are obliged to disclose the information contained in the Agreement by applicable legislation or other regulations. Insofar as information is passed on to third parties, this passing on of information is to be limited to the minimum elements/facts required in terms of the previously mentioned exceptions, and these third parties are to commit themselves in writing to maintaining the confidentiality of the information received.
BSHAG SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES TO THE ADVERTISER OR ANY PERSON (INCLUDING WITHOUT LIMITATION, ANY PAYMENT FOR LOST REVENUES, LOST DATA, LOST PROFITS OR LOSS OF GOODWILL), WHETHER FORESEEABLE OR NOT, FOR ANY CAUSE WHATSOEVER WHETHER OR NOT CAUSED BY BSHAG’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EVEN IF ADVERTISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. UNDER NO CIRCUMSTANCES SHALL ANY PROJECTIONS OR FORECASTS BY BSHAG BE BINDING AS COMMITMENTS OR PROMISES BY BSHAG AND/OR GIVE RISE TO ANY LIABILITY.
Advertiser agrees to fully indemnify, defend and hold BSHAG, including any of their respective affiliates, officers, directors, partners, employees, and agents, harmless from and against any proceeding, action or claim that may arise out of or relate to Advertiser ́s involvement in BSHAG ́s Advertiser program or any breach of this Agreement by Advertiser, including, but not limited to, any and all damages, claims, losses and/or expenses (including reasonable attorneys’ fees and costs) incurred by BSHAG arising out of any such proceeding, action or claim. BSHAG shall have the right to defend any action through counsel of its own choosing at Advertisers sole expense.
BSHAG shall not be liable or responsible for any failure or inability to perform or delay caused by reason of one or more so called “force majeure” contingencies (e.g. any act of God, fire, earthquake, hurricane, natural disaster, strike, labor disturbance, civil commotion, acts of Government, any Law, action of any labor union or association affecting a Party or the industry within which the Party is engaged, delays in the delivery of materials or supplies, terrorist attack, any act of sabotage, etc.). The impacted obligation shall be extended hereunder for a period equal to the duration of any such contingencies to the extent that such contingencies interfere with or disrupt a Party’s exercise of its Rights hereunder.
12.1 All changes or amendments to this Agreement must be in writing. This requirement of the written form also applies to notifications, ancillary agreements and subsequent contractual changes, except where this is specifically stipulated otherwise for individual components. The waiver of the written form requirement must be put in writing. Insofar as the Agreement does not explicitly stipulate exceptions for individual components and statements of intent, a notification by means of telecommunication does not satisfy the requirement of the written form.
12.2 There are no ancillary verbal agreements.
12.3 In the event of the Advertiser becoming bankrupt or being placed in liquidation, whether voluntary or compulsory or reaching a compromise with its creditors or failing to satisfy any judgment debt, BSHAG shall be entitled, to cancel this Agreement with immediate effect without prejudice to those rights and obligations accrued prior to such bankruptcy.
12.4 The Parties hereby agree that no agency, joint venture or partnership is created thereby, that no franchise agreement is created hereby and that neither Party shall allege in any proceedings that a franchise agreement is created by this Agreement or exists between the Parties, and that neither Party shall incur obligations in the name of the other party without the other Party’s prior written consent. The Parties shall act and at all times shall be independent contractors.
12.5 All notices or other communications which are required or permitted hereunder shall be in writing and shall be sufficiently given if (a) delivered personally or (b) sent by registered or certified mail, postage prepaid, or (c) sent by overnight courier with a nationally recognized courier, or (d) sent via e-mail with confirmation of receipt in writing in any of the foregoing manners. If sent by registered mail, postage prepaid, notice shall be considered delivered three (3) business days after the date of mailing, and if sent by any other means set forth above, notice shall be considered delivered upon receipt thereof. Either Party may by notice to the other Party change address to which notice or other communications to it are to be delivered or mailed.
12.6 The section and paragraph headings herein are for convenience only and shall not be interpreted to limit or affect in any way the meaning of the language contained herein.
12.7 This Agreement shall be binding upon the Parties hereto and their respective successors and permitted assigns.
12.8 Each person executing this Agreement in a representative capacity warrants that he or she is duly authorized by the person or entity he or she represents to enter into this Agreement on behalf of that person or entity.
12.9 This Agreement is personal and may not be assigned to any third parties without the prior written consent of the other party.
12.10 This Agreement is subject to the laws of Switzerland, with exclusion of the United Nations Convention on Contracts for the international sale of goods. This also applies to all sundry claims that are related to this contract, in particular those arising from tortious acts.
12.11 Jurisdiction for all court cases arising from this contract is BSHAG ́s main place of business.
12.12 In the event that individual provisions of this Agreement are wholly or partially ineffective or unfeasible, or that they subsequently lose their legal validity or become unfeasible, the validity of the remaining provisions of this Agreement will remain unaffected. In the case of the invalidity of a provision of this Agreement, the parties agree to replace this provision by a provision that most closely resembles the economic/commercial intention of the invalid provision. The same holds true should a loophole be identified in the Agreement. The contracting parties will replace the invalid provision or loophole immediately with a valid provision.