PUBLISHER TERMS AND CONDITIONS
DEFINITIONS & INTERPRETATION
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;“Ad Campaign” means the campaign of advertisements booked using Wagawin by an Advertiser who offers to pay a certain amount per view of the ad or in case of a performance based campaign upon installation of an applications advertised, upon registration for an advertised service, upon download of an advertised software, upon clicking an advertisement or any other parameter agreed between Advertiser and Wagawin.“Ad Fee” means the fee payable to the Publisher for the distribution of the Content based on the Floor eCPM as well as the payment parameter of each individual Ad Campaign.“Terms” means the principal terms agreed between Wagawin and Publisher in which the parties determine the specific terms related to the publishing of Content through the Application, such as the Floor-CPM and any limitations regarding the Content (e.g. limitation to certain industries, certain Advertisers or countries) 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, as well as any websites 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;“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;“Floor eCPM” means the effective costs per mille floor amount, the minimum payment the Publisher is willing to accept for 1000 completed ad views without regard if the ad campaign is paid per view, per installation, per registration, per lead, per download etc. A view is only counted if it is a completed view of the ad in its entirety not including any incomplete views or clicks on the ad that are not viewed at all. The Parties acknowledge that in case of performance based marketing due to the different performance parameters for the payment of an ad viewed, Wagawin’s software will require a certain time to provide the right ad campaigns to the Publisher in order to meet the Floor eCPM, individual payment may therefore be below the Floor eCPM. If Wagawin fails to meet the Floor eCPM in two consequtive months, Publisher shall be entitled to terminate the Agreement without notice period.“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” means Wagawin GmbH Possartstraße 6, 81679 München, Germany“Wagawin Properties” means the properties as specified in Sub-Clause 3.1.“User” means any end-user of the Application, who downloads/streams/uses the Application together with the Content.
- Reference to Clauses and Sub-Clauses are to those of these Terms and Conditions.
- 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.
- In these Terms and Conditions, unless the context otherwise requires, the following expressions shall have the following meanings:
COMMENCEMENT & APPLICATION
- These Terms and Conditions will take effect from the completion of the registration process on wagawin.com and shall last for an unlimited period unless terminated by either party.
- Wagawin offers its products and services specifically to entrepreneurs and hereby expressly excludes any consumers from entering into any publishing agreement under these terms and conditions.
- Wagawin does not accept any terms and conditions of any Publisher and hereby expressly refused any such terms and conditions.
- The Parties will agree on the Terms using either the settings provided on the Wagawin website or individual agreement between the Parties.
WAGAWIN PROPERTIES AND CONTENT
- 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 as provided from time to time (the “Content”).
- Wagawin makes available to Publisher the Wagawin Properties and the Content pursuant to these Terms and Conditions.
- Publisher will use the Content in an Application pursuant to these Terms and Conditions and the Terms.
Publisher will in accordance with the Terms agreed between the Parties from time to time with
respect to each Application (to the extent relevant):
- publish the Application with the Content by utilizing the current version of the SDK. Wagawin reserves the right to review the Application before it makes Content available to the Publisher. Once the Publisher has integrated the Wagawin SDK in its Application and has registered the Application on the Wagawin website, agreeing on the Terms, Wagawin will – subject to a review of the Application – make the Content available to the Publisher as it is available;
- further make available the Content via the Application as content based on the eFloor-CPM agreed becomes available;
- 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;
- host the Application with the Content, if possible, on servers located within the European Union which are resilient and secure, and which are able to connect to mobile devices; if the hosting on servers in the European Union is not possible, Publisher will at least keep required legal standards of European Data Protection Law.
Publisher shall ensure that there is notification as required under the applicable law in the
Application offering that
- end-users will be contracting with Publisher and not with third parties or advertisers;
- Publisher permits third parties to advertise within the Application;
- Publisher collects and uses information about how end-users using the Application together with the Content including tracking data;
- Publisher transfers such anonymous usage and tracking data to third parties (Wagawin and Advertisers) and, if provided by law, that
- Publisher obtains an affirmative opt-in where legally required from each end-user consenting the collection and transfer of usage and tracking data to third parties (Wagawin and Advertisers) and that Publisher maintains documentation establishing such opt-in consents.
GRANT OF RIGHTS
Subject to these Terms and Conditions, Wagawin grants to Publisher the limited, non-exclusive,
non-transferable and revocable right (or license), during the Term to:
- pre-install and/or embed the Content into the Application (“on device”, in whole or in part) on one or more mobile devices;
- display and publish the Content within the Application;
- reproduce, digitise and use the Content within the Application for the purposes described in the Sub-Clauses above.
Wagawin further grants to Publisher the non-exclusive, non-transferable and revocable right (or
- use the SDK to enable Publisher to use the Content in the Application pursuant to these Terms and Conditions.
- 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.
- 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.
- Wagawin does not warrant that the operation of the Content in the Application will be fault free or free of interruptions. Wagawin intends to make the Content delivery service available on a yearly average of 95% of the time.
- 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.
- Subject to these Terms and Conditions, Publisher grants to Wagawin the right (or license), during the Term to measure user data and share such user data with Advertisers for the purpose set out in Clause 5.
- 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.
- 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.
- Subject to these Terms and Conditions, Wagawin grants to Publisher the limited, non-exclusive, non-transferable and revocable right (or license), during the Term to:
Publisher shall make accessible not customer specific (anonymous) usage and tracking data in order to enable Wagawin to use such data for the purpose of acquiring new advertisers for Publisher’s Applications and to evaluate the pricing for Content distributed through the Applications. 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, make accessible further anonymous data such as age and gender of end users.
REVENUE SHARE AND PAYMENT TERMS
- Wagawin shall pay to Publisher the Ad Fee based on the individual parameters of the respective Ad campaign. Wagawin may in its sole discretion pay a higher eCPM than the Floor eCPM from time to time; as detailed above the eCPM may be lower than the Floor eCPM for technical reasons depending on the information collected about the Publisher’s Application. Wagawin shall calculate Publisher´s share and shall send to Publisher a statement which shows in reasonable detail the calculation of such Revenue Share. For the avoidance of doubt, Wagawin shall not be obliged to provide a detailed list of every view of any Ad Campaign in the scope of the standard report; though upon request of Publisher may make such information available.
- The Ad Fee shall become due once the respective Advertiser has made the payment for the distribution of the Content to Wagawin,, thought Wagawin may in its sole discretion pay an advance on the Ad Fee without waiving any reimbursement claim in case any Advertiser does not fully pay the fees due.
- Wagawin shall report on any Ad Fees earned during each calendar month as well as any Ad Fee due and remit such due Ad Fee to Publisher within sixty (60) days following the end of the calendar month. To the extent Wagawin pays Publisher ahead of collections from any Advertiser, Wagawin shall have a right to recapture payments to Publisher in the event Advertiser fails to pay Wagawin amounts due related to completed Ad campaigns. In case that the balance of amounts payable to the Publisher is less than one hundred US dollar ($ 100), the balance will be carried forward to the following calendar month until the balance of amount exceeds US dollar ($ 100). After termination of the agreement the reports on the Ad Fees are provided within sixty days from each calendar quarter, though the minimum payment balance of US dollars 100 shall not be applicable. Wagawin shall remit payments to the address and contact information provided by Publisher after registering for a Publisher account on the Wagawin website.
- Wagawin shall be entitled to deduct any taxes on the payments to the Publisher claimed by local tax authorities (withholding taxes) and to make the tax payments to the local tax authorities unless the Publisher provides a valid exemption from such withholding taxes. Wagawin shall upon request of the Publisher provide the Publisher with the respective receipts to enable the Publisher to claim a tax refund.
- Any Ad Fees are calculated based on the payment criteria of the individual Ad Campaign as logged by Wagawin. Neither any views or other payment criteria calculated by the Publisher nor by the Advertiser shall be relevant for the Ad Fees. Wagawin may duly reduce such logged Ad Fees if it has reasonable suspicion that the views or other payment criteria have been manipulated and that ads have either not been viewed by any consumer or that such views, download, installations, registration or other actions have been bought or facilitated by third party and not been made by normal consumers.
INTELLECTUAL PROPERTY RIGHTS & DATA PROTECTION
- 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, trademarks, 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 the Wagawin Properties and is the owner or duly licensed to distribute the Content pursuant to these Terms and Conditions.
- 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.
- 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.
- 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.
WARRANTIES & INDEMNITIES
Each party warrants and represents to the other party that:
- it is entitled to enter into this agreement and any further agreement hereunder and perform its obligations set out in these Terms and Conditions;
- by entering into this Agreement or any agreement hereunder, it is not breaching any other agreement to which it is party;
- it shall perform its obligations under these Terms and Conditions in accordance with all legislation and regulation; and
- 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.
Wagawin warrants to Publisher that:
- he is the owner or authorised licensee of the Content and is entitled to enter into this agreement or any agreement hereunder and grant the licenses set out in these Terms and Conditions, and that the use of the Content in the manner contemplated by this agreement or any agreement hereunder shall not infringe the Intellectual Property or other rights of any third party;
- 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;
Publisher warrants to Wagawin that:
- he has the requisite corporate authority to enter into this agreement or any agreement hereunder with Wagawin and perform its obligations under these Terms and Conditions, and that neither this agreement nor any agreement hereunder does conflict with any other agreement or obligation by which he is bound; and
- 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;
- 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;
- 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;
- he has put in place appropriate restrictions as required under applicable Youth Protection laws and regulations;
- the Application will not contain any viruses or other computer programming routines that may damage or detrimentally interfere with any computer or telecommunications network.
- 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.
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
- 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;
- 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
- any damage to any Content caused by Publisher (including damage to software and/or data) including without limitation, software, data or Content replacement costs.
The indemnities given in this Clause 8 are subject to the following:
- Wagawin will promptly inform Publisher in writing of such claim, demand or suit and Publisher will fully cooperate in the defence 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
- 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.
- 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 this agreement or any agreement hereunder.
- 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.
- Each party warrants and represents to the other party that:
LIMITATION OF LIABILITY
- Wagawin shall only have an unlimited liability for damages if it or its agents acted wilfully 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 fulfilment of which the Publisher can rely.
- Wagawin´s liability for simple negligence is always limited to the foreseeable damage in case of a violation of significant contractual duties.
- 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) where the information is already known to, or obtained by independent means, or independently developed, by the recipient; (iii) is already in the public domain through no fault of the recipient; (iv) the recipient receives from a third person free to make such disclosure without breach of any legal obligation; or (v) 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. User data falling under the provision of Clause 5 of these Terms and Conditions may be made available to current and potential Advertisers solely for the purpose of acquiring new Content.
TERMINATION & CONSEQUENCES
In addition to any other remedy available at law or in equity, either Party may terminate the
Agreement immediately upon written notice:
- 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
- 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).
- Each Party may terminate this agreement by written notice (email sufficient) of 30 days. Such termination shall include any agreements hereunder or any running Applications in operation at that time.
- 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) unless it is legally obliged to retain copies or if such copies are part of regular data backups. In such cases the confidential and proprietary information is to be accessed for the purpose required under law or to restoration of lost data.
- 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.
- In addition to any other remedy available at law or in equity, either Party may terminate the Agreement immediately upon written notice:
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
- notify the other Party of such fact and of the period of its continuance and consequences which are expected; and
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.
- 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:
- For Wagawin, use the address detailed in the imprint of wagawin.com with an email copy to the indicated email address, and
- For Publisher, use the address provided in the Publisher area of wagawin.com, including any email address.
- 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.
- 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.
- 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.
- 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.
- 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.
- Modifications. Wagawin reserves the right to change or revise these Terms and Conditions if Wagawin considers such steps necessary due to additions to Wagawin’s services or software or based on changes in the applicable laws. Any change or amendment will be announced to Publisher under his contact address via e-mail 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 receipt of the announcement regarding the changes. 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, than the change or amendment shall be deemed accepted. Publisher will be informed of these rights and legal consequences in the announcement.
- Mediation: The EU commission offers an internet platform for online mediation of conflicts (OS-Platform). The platform is intended as central place for the settlement of conflicts relating to contractual obligation resulting from online contracts. The platform is available under http://ec.europa.eu/consumers/odr/. Wagawin is not willing to take part in any such mediation with its contractual partners.
- Controlling Law and Jurisdiction. The Agreement together with these Terms and Conditions will be governed by German law, excluding its conflict of laws principles as well as CISG. Both Parties submit to the exclusive jurisdiction of the courts of Munich, as far as they are merchants as defined in the German Mercantile Act (“Handelsgesetzbuch”), public legal entities or a public estate.
- Notice details: