PUBLISHER TERMS AND CONDITIONS
1. DEFINITIONS & INTERPRETATION
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions shall have the following meanings:
“Advertiser” means any third party who is a client of Wagawin and who pays to advertise or otherwise be featured in an Application;
“Agreement” means the principal contract agreed between Wagawin and Publisher in which the parties determine the specific terms related to the subject matter, such as the Initial Date, the Content, the Wagawin Revenue Share, the term etc. and based on these Terms and Conditions.
“Application” means a downloadable Application (App) in format, including, but not limited to, mobile downloads, such as iPad, iPhone and Android downloads, which is provided by Publisher utilising the current version of the SDK of Wagawin, where available, and which must have passed prior acceptance tests;
“Content” means the Wagawin’s content as specified in Sub-Clause 3.1 offering to be provided by Wagawin through the Application to an end-user using a mobile device;
“Damages” has the meaning as defined in Sub-Clause 8.4;
“Initial Date” means the date as set out in the Agreement.
“Intellectual Property Rights” means any patents, copyright, design right, trademark, service mark, logo, database right, trade secret, patent applications, rights in inventions, know-how and/or other present or future intellectual property right of any type;
“Publisher” means a customer of Wagawin desiring to make the Content available in an Application.
“Software Development Kit” or “SDK” means the proprietary library of codes and documentation connected therewith provided by Wagawin, which is available on the website of Wagawin and which can be added by Publisher in the Application in order to use the Content in the Application;
“Wagawin Properties” means the properties as specified in Sub-Clause 3.1.
“Wagawin Revenue Share” means the payment to be made by Wagawin to Publisher as detailed in the Agreement;
“Territory” means the regional scope of application for these Terms and Conditions as set out, as the case may be, in the Agreement;
“User” means any end-user of the Application, who downloads/streams/uses the Application together with the Content.
1.2 Reference to Clauses and Sub-Clauses are to those of these Terms and Conditions.
1.3 Words importing gender shall include all genders; words denoting the singular shall include the plural; words denoting persons include incorporated and unincorporated bodies, and in each case vice versa.
2. COMMENCEMENT & DURATION
These Terms and Conditions will take effect from the Initial date and shall last for an unlimited period unless specified in the Agreement.
3. WAGAWIN PROPERTIES AND CONTENT
3.1 Wagawin owns and operates, inter alia, the website at www.wagawin.de and www.wagawin.com and other software and technology applications including the SDK, properties, content, information and other data (“the Wagawin Properties”) together with advertisements of an Advertiser such as, but not limited to, images, graphics, texts, videos and other promotional content (the “Content”).
3.2 Wagawin has agreed to make available to Publisher the Wagawin Properties and the Content pursuant to these Terms and Conditions.
3.3 Publisher will use the Content in an Application pursuant to these Terms and Conditions.
3.4 Publisher will (to the extent relevant):
(a) publish the Application with the Content by utilizing the current version of the SDK. The Application must be provided on or before the Initial Date. Thereafter, the Application with the Content needs to pass quality assurance (QA) tests before its launch. The envisaged Launch Date may be defined in the Agreement;
(b) further make available the Content via the Application by the Initial Date;
(c) be responsible for the technical infrastructure including the Application for all streaming demands and/or downloads by end-users of the Content and keeping the Application up-to-date in accordance with Wagawin’s reasonable instructions and requirements;
(d) host the Application with the Content, if necessary and if the General Data Protection Regulation (GDPR) so requires, on servers located within the European Union which are resilient and secure, and which are able to (aa) connect to mobile devices and (bb) safeguard all technical and legal standards necessary to protect personal data according to the GDPR; if the hosting on servers in the European Union is not possible, Publisher will at least keep required technical and legal standards of the GDPR.
3.5 Wagawin shall use its reasonable endeavours to meet the style, standard and technical requirements and guidelines of the Publisher and be of satisfactory quality.
3.6 Publisher shall ensure that there is clear and prominent notification in the Application offering that
(a) end-users will be contracting with Publisher and not with third parties or advertisers;
(b) Publisher permits third parties to advertise within the Application;
(c) Publisher collects and uses information about how users using the Application together with the
Content including tracking data;
(d) Publisher processes personal data of users in accordance with the General Data Protection Regulation (GDPR), especially that Publisher will implement appropriate technical and organizational measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimization, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of users;
(e) Publisher transfers such usage and tracking data to third parties (Wagawin and Advertisers) and, if provided and legally possible by law, especially by the GDPR that
(f) Publisher obtains an express and affirmative opt-in from each user consenting the collection, processing and transfer of usage and tracking data to third parties (Wagawin and Advertisers) and that Publisher maintains documentation establishing such opt-in consents;
(g) Publisher provides users with all necessary information according to Art. 12, 13 and 14 GDPR, in particular all information necessary in order to ensure that any consent by users is freely given.
4. GRANT OF RIGHTS
4.1 Subject to these Terms and Conditions, Wagawin grants to Publisher the limited, non-exclusive, nontransferable and revocable right (or license), during the Term to:
(a) pre-install and/or embed the Content into the Application (“on device”, in whole or in part) on one or more mobile devices;
(b) display and publish the Content within the Application;
(c) reproduce, digitise and use the Content within the Application for the purposes described in the SubClauses above.
4.2 Wagawin further grants to Publisher the non-exclusive, non-transferable and revocable right (or license) to
(a) use the SDK to enable Publisher to use the Content in the Application pursuant to these Terms and Conditions.
(b) use the Wagawin logo, the company name, company logo, and trademarks of Wagawin for promotional purposes, both online and offline including (but not limited to) in the Application, on the internet as well as in connection with the presentation of the Content. This right shall include respective usage rights for excerpts from the Content (e.g. screenshots, videos or sound files) specifically provided by Wagawin for the aforementioned purposes.
4.3 Except as set out in these Terms and Conditions, no other use, copying, display or distribution, in any form of the Content in the Application, in whole or in part, by Publisher is permitted without the prior written consent of Wagawin.
4.4 Wagawin does not warrant that the operation of the Content in the Application will be fault free or free of interruptions and Wagawin shall have no liability to the Publisher for any failure of the Application whether this arises from a technical fault or other failure of mobile devices or otherwise.
4.5 Wagawin reserves the right to take down, remove or delete the Content in the Application, with or without notice in the event Wagawin finds or determines in its sole discretion that Publisher’s designated Application violates one or more restrictions specified in these Terms and Conditions. This right to take down is critically important for Wagawin to ensure the goodwill and reputation of Advertisers.
4.6 Subject to these Terms and Conditions, Publisher grants to Wagawin the right (or license), during the Term to:
(a) publish and distribute the Content in the Application;
(b) promote and market the Content in the Application on behalf of Advertisers;
(c) measure user data and share such user data with Advertisers for the purpose set out in Clause 5 and in accordance with the data-protection principles according to the GDPR.
4.7 Publisher acknowledges and agrees that the Content needs to be tailored to specific quality standards. Both parties intend to make available the Content on a broad product basis. However, Wagawin is not obliged to provide the Content for all potential Applications and Publisher is under no obligation to make available the Application on specific mobile devices.
4.8 Nothing under these Terms and Conditions should be construed as imposing any form of obligation on Wagawin to promote, market, advertise or by any other method increase publicity of Content through the Application.
5. USER DATA
Publisher shall ensure and make accessible not customer specific (anonymous) usage and tracking data in order to enable Wagawin to use such data. This information is an important source for evaluating and determining how Content is being used. In particular Publisher shall make accessible anonymous and aggregated information, if measured, such as, but not limited to, the number of registered users, number of services or transactions (e.g. Videos, Clicks) activated or consumed or the average viewing time of the Content in the Application, as well as data identifying the end-user´s device, operating system on which the Application was running, the geographical location of the service and any other anonymous and aggregated usage information. Publisher may, in its sole discretion and in accordance with applicable data protection law, especially the GDPR, make accessible further anonymous data such as age and gender of end users.
6. REVENUE SHARE AND PAYMENT TERMS
Wagawin shall pay to Publisher the Wagawin Revenue Share as set forth and agreed in the Agreement. Wagawin shall calculate Publisher´s share and shall send to Publisher a statement which shows in reasonable detail the calculation of such Revenue Share.
7. INTELLECTUAL PROPERTY RIGHTS & DATA PROTECTION
7.1 Wagawin is the worldwide owner of, or is authorised to use, all copyright and all other intellectual property rights in whatever material or media (whether or not registered) including, without limitation, database and compilation rights, patents and business secrets, trade marks, trade names and logos, registered designs and other design rights, rights in animation and moving images, models, scores and algorithms, rights in computer software, know-how, and all other industrial, commercial or property rights and any applications for the protection or registration of those rights and all renewals and extensions existing in any jurisdiction (the “Intellectual Property”) in their respective materials and properties used and included in the Content and pursuant to these Terms and Conditions.
7.2 Wagawin agrees that all Intellectual Property Rights in the Application (except the Wagawin Properties and the Content) shall remain with the Publisher and its licensors. Vice versa, Publisher agrees that all Intellectual Property Rights in the Wagawin Properties and the Content shall remain with Wagawin and its licensors.
7.3 Publisher shall remain responsible for obtaining all licences, clearances, permissions, waivers, approvals or consents required in order to publish and distribute the Application and for paying any and all royalties payable to third parties in relation to the streaming/ download and reception of the Application supplied under these Terms and Conditions.
7.4 If the Application involves the collection or processing (including storing and using) of personal data, Publisher shall ensure compliance with all applicable legal and regulatory requirements, especially the data-protection principles according to the GDPR as set out in section 3.6 of these Terms and Conditions.
7.5 In particular, Publisher shall take all appropriate technical and organizational measures, taking into account the state of the art, the implementation costs and the nature, the scope, circumstances and purposes of the processing of personal data in order to ensure an appropriate level of protection of personal data of users according to the GDPR.
8. WARRANTIES & INDEMNITIES
8.1 Each party warrants and represents to the other party that:
(a) it is entitled to enter into the Agreement and perform its obligations set out in these Terms and Conditions;
(b) by entering into the Agreement, it is not breaching any other agreement to which it is party;
(c) it shall perform its obligations under these Terms and Conditions in accordance with all legislation and regulation; and
(d) its use of the other party’s Intellectual Property shall not be derogatory to or critical of the other party or any officer, director, agent, employee, partner, parent or subsidiary of the other party.
8.2 Wagawin warrants to Publisher that:
(a) he is the owner or authorised licensee of the Content and is entitled to enter into the Agreement and grant the licenses set out in these Terms and Conditions, and that the use of the Content in the manner contemplated by the Agreement shall not infringe the Intellectual Property or other rights of any third party;
(b) he has all necessary right, title and interest in the Content and its trade marks in order to grant the license set out in these Terms and Conditions;
8.3 Publisher warrants to Wagawin that:
(a) he has the requisite corporate authority to enter into the Agreement with Wagawin and perform its obligations under these Terms and Conditions, and that the Agreement does not conflict with any other agreement or obligation by which he is bound; and
(b) he shall comply with all relevant laws and regulatory requirements, and obtain and maintain for the Term all permits and licenses applicable or necessary for the performance of its obligations under these Terms and Conditions;
(d) use of the Application as contemplated under these Terms and Conditions does not and will not violate or infringe upon any laws, regulatory requirements or codes, or the Intellectual Property Rights, moral rights or other proprietary rights of any third party;
(e) the Application does not include any material which is harmful, inaccurate, pornographic, abusive, obscene, threatening, defamatory, seditious or contrary to public policy or insulting to the public or to a section of the public, or which encourages illegal activities or promotes software or services which deliver unsolicited e-mail;
(f) he has put in place appropriate restrictions on the Application to prevent access by children to material being inappropriate for their age, for example by pin code or other mechanism;
(g) the Application will not contain any viruses or other computer programming routines that may damage or detrimentally interfere with any computer or telecommunications network.
8.4 Publisher agrees to defend, indemnify and hold harmless Wagawin and Advertisers, from and against any and all liabilities, damages, awards, settlements, losses, claims and expenses, including reasonable legal fees and costs of investigation (“Damages”), arising out of or relating to the breach of any of its warranties under these Terms and Conditions.
8.5 Publisher will indemnify and hold Wagawin and Advertisers harmless from and against any and all Damages suffered, incurred or sustained by Wagawin or Advertisers as a result of or in connection with:
(a) any action, claim or proceeding made or brought by any person alleging that the provision of any part of the Application, use or possession of any part of the Application in accordance with these Terms and Conditions infringes the Intellectual Property Rights or moral rights of any person except to the extent that such losses and liabilities arise as a result of any act or omission by Wagawin and/or Advertisers;
(b) any loss, damage, costs, expenses and liabilities that Wagawin or Advertisers may suffer or incur as a result of a breach by the Publisher of the provisions of Clause 10 (Confidentiality); and
(c) any damage to any Content caused by Publisher (including damage to software and/or data) including without limitation, software, data or Content replacement costs.
8.6 The indemnities given in this Clause 8 are subject to the following:
(a) Wagawin will promptly inform Publisher in writing of such claim, demand or suit and Publisher will fully cooperate in the defense of such claim provided that failure to give prompt notice will not relieve Publisher of any liability hereunder (except to the extent Publisher has suffered actual material prejudice by such failure); and
(b) Wagawin will not agree to the settlement of any such claim, demand or suit prior to a final judgment thereon without the consent of Publisher which shall not be unreasonably withheld.
8.7 The indemnities given in these Terms and Conditions shall apply whether or not legal proceedings are instituted, and if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination. The said indemnities shall survive the termination of the Agreement.
8.8 Notwithstanding the above, a Party shall promptly bring to the attention of the other, as the case may be, any information coming to its attention, that the provision of any part of the Application and/or the Content pursuant to these Terms and Conditions may infringe any Intellectual Property Rights, moral rights or other rights of a third party. In such event, the Parties shall mutually decide whether the provision of the Application and/or the Content or any part of them in question ought to be suspended until the matter is resolved.
9. LIMITATION OF LIABILITY
9.1 Wagawin shall only have an unlimited liability for damages if he acted willfully or with gross negligence. In the event of any violation of significant contractual duties, Wagawin shall also be liable in the event of simple negligence. Significant contractual duties (cardinal duties) in accordance with the law are only such duties which facilitate the proper execution of the Agreement and such duties on the fulfillment of which the Publisher can rely.
9.2 Wagawin´s liability is always limited to the foreseeable damage in case of a violation of significant contractual duties. The typical foreseeable damage shall be no more than 10.000,- Euros (in words: ten thousand Euros).
9.3 Nothing in these Terms and Conditions shall be construed to limit or exclude any Party’s liability for death or personal injury caused by such Party or its employees or contractors, for fraudulent misrepresentation or fraud or in case of liability in accordance with the Product Liability Act.
Both Parties agree not to, and shall ensure that their employees, agents and advisors do not, disclose to third parties, nor use for any purpose other than as contemplated in these Terms and Conditions, any confidential or proprietary information arising or disclosed pursuant to these Terms and Conditions (including but not limited to the terms of these Terms and Conditions, the Parties’ trade secrets, User Data and information not generally known to the public such as business plans, strategies, practices, products, personnel and finances), except: (i) with the prior written permission of the Party to whom such information belongs; (ii) anonymous user data falling under the provision of Clause 5 of these Terms and Conditions; (iii) where the information is already known to, or obtained by independent means, or independently developed, by the recipient; (iv) is already in the public domain through no fault of the recipient; (v) the recipient receives from a third person free to make such disclosure without breach of any legal obligation; or (vi) the disclosure by both Parties to an affiliated company (in the meaning of sections 15 et seqq AktG) of either Party. This Clause 10 shall survive the termination of this Agreement for three (3) years after such termination. Notwithstanding the foregoing, a recipient may disclose confidential information of the other Party if required to do so by law, court order or request by any government or regulatory authority. In any of those events, the recipient will in advance and promptly inform the other Party about the requirement of respectively the request for disclosure. Notwithstanding the foregoing, Wagawin may communicate the general nature of the relationship between the parties and identify and announce Publisher as a participating party for the services subject to the Agreement to third parties, especially to Advertisers and potential Advertisers and for promotional purposes.
11. TERMINATION & CONSEQUENCES
11.1 In addition to any other remedy available at law or in equity, either Party may terminate the Agreement immediately upon written notice:
(a) if the other Party breaches any warranty or material obligation of these Terms and Conditions and where such breach is curable fails to cure the breach within fourteen (14) days from the receipt of a written request to cure from the non-breaching Party; or
(b) if the other Party ceases or threatens to cease to carry on all or a substantial part of its business, or becomes insolvent, or makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for its business or the Party’s property, or an order is made for the winding up of it (other than for the purposes of amalgamation or reconstruction).
11.2 Wagawin may terminate the Agreement immediately upon written notice to the Publisher if the licenses from Advertisers to produce and publish the Content are revoked, suspended or withdrawn for any reason whatsoever; or
11.3 Promptly upon termination of the Agreement and in any event within 30 days of termination each Party shall, if requested by the other Party, return or destroy all confidential and proprietary information referred to in Clause 10 (Confidentiality).
11.4 Upon termination of the Agreement and upon the instruction of Publisher, Wagawin shall either completely and irrevocably delete or return back to Publisher all personal data collected by Wagawin, unless Wagawin is obliged or entitled by law, in particular by the GDPR, to further store and use the personal data concerned.
11.5 The termination of the Agreement for any reason whatsoever shall not affect any rights or liabilities that have accrued prior to or upon termination, nor shall it affect any Clauses or Sub-Clauses which are intended expressly or impliedly to continue after termination.
12. FORCE MAJEURE
12.1 A Party will not be liable to the other for any delay in or failure to perform its obligations as a result of any cause beyond its reasonable control. The Party so affected shall as soon as practicable:
(a) notify the other Party of such fact and of the period of its continuance and consequences which are expected; and
(b) take all reasonable action to minimise the consequences of the relevant events and to resume due performance of the obligations excused as soon as practicable.
If such delay or failure continues for at least three (3) months, the non-delaying or non-failing Party will be entitled to forthwith terminate the Agreement by notice in writing, in which event no Party shall have any claim against the other in respect of such termination.
13.1 Notice details:
(a) For Wagawin, use the address on the front page of the Agreement marked for the attention of the individual set out in the Agreement with an email copy to the indicated email address, and
(b) For Publisher, use the address set out on the front page of the Agreement marked for the attention of the individual set out in the Agreement.
A Party may change its address for notice by providing written notice of such change to the other Party pursuant to this Clause 13.1.
13.2 Assignments. This Agreement will be binding upon and inure to the benefit of the Parties, their respective personal representatives, and permitted successors and assigns. Publisher may not assign or otherwise transfer any of its rights or duties under these Terms and Conditions without the prior written consent of Wagawin. If Publisher subcontracts the performance of any or all of its obligations under these Terms and Conditions, Publisher shall remain liable to Wagawin for the performance of its obligations under these Terms and Conditions.
13.3 Interest. Any payment that is not made on the due date shall bear interest at the rate of 1% per annum above the base lending rate of the European Central Bank calculated on a daily basis from the date on which such payment fell due until the date of payment.
13.4 Amendments, Waivers. These Terms and Conditions, including this provision, may not be amended, modified or superseded, unless expressly agreed to in writing by both Parties. No provision of these Terms and Conditions may be waived except by an instrument in writing signed by the Party against whom the waiver is to be effective. The failure of either Party at any time or times to require full performance of any provision of these Terms and Conditions will in no manner affect the right of such Party at a later time to enforce the same.
13.5 Severability. If any provision or term of these Terms and Conditions, not being of a fundamental nature, is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of these Terms and Conditions will not be affected.
13.6 Entire Agreement. These Terms and Conditions contain the Parties’ entire understanding and supersedes all prior agreements in connection with the subject matter of these Terms and Conditions provided that nothing in this Sub-Clause will exclude any liability for fraud.
13.7 Modifications. Wagawin reserves the right to change or revise these Terms and Conditions if Wagawin considers such steps necessary. Any change or amendment will be announced in a suitable manner at least four weeks prior to its effective date. In general, the information about the change or amendment is announced by e-mail and / or on the website of Wagawin. Publisher reserves the right to object to any change or amendment within four weeks after the date of publication / notification of the announcement. In case of a timely objection, both Parties are entitled to terminate the Agreement pursuant to the termination provisions pursuant to these Terms and Conditions. If Publisher does not object within the said time period or if Publisher continues to use the services set out in the Agreement, then the change or amendment shall be deemed accepted. Publisher will be informed of these rights and legal consequences in the announcement.
13.8 Controlling Law and Jurisdiction. The Agreement together with these Terms and Conditions will be governed by German law, excluding its conflict of laws principles. Both Parties submit to the exclusive jurisdiction of the courts of Munich.