Advertiser / Agency Agreement

  1. PREAMBLE

 

1.1 For the purposes of this Agreement, “Capsulclick” means one of its legal entities specified in the relevant Insertion Order signed between the parties hereof.

 

1.2 TO ACCEPT THESE TERMS AND CONDITIONS AND CREATE AN ADVERTISER ACCOUNT, AN INDIVIDUAL MUST BE AN ADULT OF LEGAL AGE OF MAJORITY IN THE COUNTRY IN WHICH THE ACCOUNT IS REGISTERED. THE INDIVIDUAL WHO PROVIDES INFORMATION PURSUANT TO THE PROGRAM AND ACCEPTS THIS AGREEMENT HAS FULL LAWFUL POWER AND AUTHORITY TO ENTER INTO AND CARRY OUT THE TERMS OF THIS AGREEMENT (INCLUDING FULL LEGAL CAPACITY TO ACT ON BEHALF OF A LEGAL ENTITY IN CASE ADVERTISER IS A LEGAL ENTITY), AND IS LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS ON THE ACCOUNT, INCLUDING THE ACTIONS OF CHILDREN AND ANYONE ELSE WITH ACCESS TO IT.

 

1.3 These Terms and Conditions (the “Agreement”) shall govern the relationship between Capsulclick and any and all Advertisers (the “Advertiser”) who registered with the Website to enjoy Capsulclick’s services. This Agreement governs the relationship between Capsulclick and the Advertiser as this is identified in all Insertion Orders, in respect to the placing of such Insertion Orders (hereinafter referred to as the “IO”). It is hereby acknowledged between both parties that both this Agreement and the IO form and constitute a single document.

 

WHEREAS, Capsulclick provides the Advertiser with the services specified herein, without limitation, through its website (“the Website”) or in any other manner which is in its sole discretion proper for such services.

 

WHEREAS, the Advertiser pays compensation to Capsulclick for its services as it is stated herein.

 

NOW THEREFORE, the Advertiser’s use of and access to the Website is considered its consent to be bound by this Agreement, Privacy Policy and any additional rules and guidelines that Capsulclick may post on the Website. In case, a particular campaign (including budget, term, offer details) set out in any IO had expired and the parties have not terminated their cooperation and continue collaboration, conditions of this Agreement and that particular IO shall stay in effect until the cancellation or termination of this Agreement unless changed by the parties via email communication or by signing a separate IO. If the Advertiser does not agree to be bound by this Agreement and Privacy Policy then it becomes impossible for Capsulclick to provide services to the Advertiser until a new Agreement is negotiated and signed by the parties.

 

PLEASE NOTE that Capsulclick may change this Agreement and Privacy Policy at any time and may provide notice thereof to the Advertiser. Nevertheless, Capsulclick recommends that the Advertiser periodically visit the Website to review this Agreement and Privacy Policy. Unless there is a signed agreement stating otherwise, by using the Website after Capsulclick posts any changes, the Advertiser agrees to accept those changes, whether or not they have been expressly agreed upon between the parties.

  1. DEFINITIONS
 

2.1 “Advertiser” means an individual or a company paying for the advertisement as set in the applicable Insertion Order and these Terms and Conditions.

 

2.2 “Advertising Material” stands for any material used to promote a brand, products, or services, such as interstitial ads, ad banners, badges, buttons, text links and so forth.

 

2.3 “Campaign” means all advertising of a given product or service of the Advertiser by Capsulclick within a specific IO.

 

2.4 “IO” hereinafter stands for a mutually agreed Insertion Order that incorporates these Terms and Conditions, under which Capsulclick will deliver Traffic to a product or service of the Advertiser.

 

2.5 “Traffic” hereinafter means Internet users who are subject to the particular Campaign.

  1. INSERTION

3.1 Subject to the terms and conditions of this Agreement, and provided that the IO has been approved by Capsulclick in writing, Capsulclick hereby undertakes to embark on all commercially reasonable efforts to supply the services and to undertake the campaign described as this is described in the IO (collectively referred to as the “Campaign(s)”).

 

3.2 The Advertiser shall thoroughly fill in or provide Capsulclick with all necessary details required by the IO, including the Advertiser’s bank details.

 

3.3 Capsulclick does not guarantee the placement, positioning or the timing of delivery of any Advertising Material, or the certain quantity and quality of Traffic, publications, conversions or clicks on any Advertising Material. The promoting, positioning and distribution of the Advertising Material shall be at the sole discretion of Capsulclick, unless such timing, positioning and distribution is specifically provided for in the IO and agreed between the parties, and Capsulclick will not be prohibited from also carrying Advertising Material for any product or business competitive to the product or business of the Advertiser.

 

3.4 Capsulclick reserves at any time the right to reject, suspend or cancel any Campaign and/or to reject any Advertising Material which in the opinion and/or discretion of Capsulclick is not deemed suitable and appropriate for publication for any reason. Capsulclick reserves the right to reject, suspend, postpone or cancel any Advertising Material which in the opinion of Capsulclick may expose Capsulclick into criminal and/or civil liability and/or any other form of liability. Furthermore, Capsulclick might refuse, reject, suspend or cancel any Campaign if in its opinion it is deemed to be offensive or objectionable.

  1. PAYMENT

4.1 For these services to be rendered by Capsulclick, the Advertiser hereby pledges, covenants and agrees to pay to Capsulclick for all the valid transactions generated by Capsulclick, regardless of the campaign term set out in the IO, and any additional payments which are to be agreed upon between the parties.

 

4.2 For the purpose of effecting payments, the Advertiser shall provide Capsulclick with billing numbers within 5 (five) business days after each billable month or any other billing period agreed upon between the parties. If Advertiser fails to provide Capsulclick with such report within the aforesaid timeframe, then Capsulclick shall issue and send an invoice based on Capsulclick’s billing numbers. Capsulclick reserves the right to dispute the Advertiser’s billing numbers within the next 5 (five) business days. In case of discrepancies, billing numbers from Capsulclick’s tracking platform shall prevail unless the Advertiser can soundly prove the discrepancy arose from Capsulclick’s own mistake. After agreeing upon the billables, Capsulclick shall issue the Advertiser with invoices at monthly intervals, or at any other such intervals which are set forth in the IO and/or agreed between the parties. The Advertiser hereby promises, agrees and covenants to effect payment of the amounts mentioned in the invoices. Such amounts may include – without limitation – all applicable and pertinent sales, use, excise and/or any other taxes, without set-off. Such amounts might also include abatements, compensations or deductions, all in accordance with the terms of this Agreement and the additional terms set out in the IO. Payment, unless there is an agreement to the contrary, shall be made to Capsulclick within 15 (fifteen) calendar days, unless different payment terms have been agreed upon by the parties in the applicable IO, from the date that the invoice is issued and sent by Capsulclick to the Advertiser.

 

4.3 All payments hereunder shall be effected by the Advertiser via a bank transfer to the account of Capsulclick according to bank details, specified in the invoice. All bank commission and duties for money transfer shall be paid by the Advertiser. Other payment methods such as Payoneer, Paxum, Paypal etc. are also acceptable if agreed upon by the respective parties.

 

4.4 The Advertiser acknowledges and agrees that any credit card and related billing and any other payment information that the Advertiser provides to Capsulclick may be shared with companies who work on our behalf such as payment processors and/or credit agencies solely for the purpose of checking credit and/or effecting payment to Capsulclick and serving the Advertiser’s account. Capsulclick shall not be liable for any use or disclosure of such information by such third party.

 

4.5 Undisputed overdue payments will accrue interest at the rate of 24% (twenty-four percent) per annum or in any case at the maximum rate permissive by the law. Interest rate shall begin to accrue after 15 (fifteen) calendar days or other payment term agreed upon by the parties in the applicable IO, from the date on which the invoice (for which payment is due) was issued and sent to the Advertiser, up and until final settlement of the said invoice and it shall be calculated on a daily basis, unless there is a written agreement to the contrary.

 

4.6 Where applicable and in order to observe, monitor and record the performance of any campaign, Capsulclick might ask the Advertiser to place Capsulclick’s tracking pixel(s) or any other necessary mechanisms for the purpose of observing, monitoring and recording the performance of any campaign (collectively referred to as the “Tracking Tools”). Such placement and testing shall be the sole responsibility of the Advertiser. Even in the event that the Advertiser fails to correctly place the Tracking Tools on the IO website or where the Tracking Tools will not be recording valid leads or actions, the Advertiser hereby acknowledges and accepts that it will pay for each and every lead or action generated and recorded by Capsulclick, unless such lead and/or action is determined to be fraudulent or invalid (as this is defined in the applicable IO). Any disputes over invoices shall be made to Capsulclick within 5 (five) calendar days from the date that the invoice is issued and sent by Capsulclick to the Advertiser. Thereafter, all invoices are accepted and must be paid.

  1. CONTENT

5.1 The Advertiser hereby agrees to grant to Capsulclick and its affiliated marketers a non-exclusive, worldwide, royalty free license and right to use, perform, reproduce, display, transmit, modify, copy and distribute the advertisement, including all content, trademarks, images, trade names and brand features (collectively, the “Advertising Material”) and any trademark, logos, and graphics of the Advertiser in accordance with the IO and this Agreement.

 

5.2 Capsulclick reserves at any time the right to reject, suspend or cancel any campaign and/or to reject any advertising material, which in the opinion and/or discretion of Capsulclick is not deemed suitable and appropriate for publication for any reason. Furthermore, Capsulclick reserves the right to reject, suspend, postpone or cancel any advertisement, which in the opinion of Capsulclick may expose Capsulclick into criminal and/or civil liability and/or any other form of liability. Furthermore, Capsulclick might refuse, reject, suspend or cancel any Campaign if in its opinion it is deemed to be offensive or objectionable.

 

5.3 For the avoidance of any doubt, Capsulclick shall not be liable for the content of Advertising Materials, provided by the Advertiser or created and utilized by the Affiliate, for direct or indirect, foreseeable and/or non-foreseeable damages caused by or resulting from the inappropriateness and/or unlawfulness of the content of Advertising materials. Capsulclick disclaims all liability and responsibility for such matters.

 

5.4 The timing, positioning and distribution of the Advertising Material for any Campaign(s) shall be at the sole discretion of Capsulclick, unless such timing, positioning and distribution is specifically provided for in the IO and agreed between the Parties.

  1. REPRESENTATIONS, WARRANTIES AND COVENANTS

6.1 The Advertiser hereby represents, acknowledges and warrants that: (i) it has the legal capacity and authority to enter into and be bound by the present Agreement and the IO; (ii) it is entitled to use and also permit Capsulclick to use, reproduce, transmit and display the Advertising Material and (iii) the Advertising Material is not and will not in any way:

 

(a) violate any third-party copyright, trademark, trade name trade secret or other form of intellectual property;

 

(b) violate any applicable laws rules and/or regulations;

 

(c) contain false or deceptive advertising or any machine-readable code including but not limited to any virus, Trojan-horse or other self-executing program;

 

(d) contain any content that can be classified as defamatory, obscene, misleading, deceptive, fraudulent or otherwise inappropriate, or

 

(e) violate any applicable law or regulation and particularly in respect to the offering of sweepstakes, gambling, promotions etc.

 

The Advertiser hereby accepts that if it is in breach of any of the above representations, acknowledgments and warranties, then Capsulclick has the right to immediately terminate without any liability the present Agreement and the IO and take any other necessary step and/or action deemed appropriate.

 

6.2 The Advertiser covenants, agrees and undertakes that:

 

(a) it will, at all times, comply with all laws applicable in the jurisdiction where the Advertiser is situated or otherwise conducts its business;

 

(b) it will, at all times, comply with the terms of this Agreement and the IO;

 

(c) it will at all times comply with legal provisions pertaining to spam;

 

(d) it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from Capsulclick; and

 

(e) it will, within 5 (five) business days from the end of each billing period (as defined in the IO) deliver to Capsulclick a report of its data and statistics relating to the Campaign(s).

 

6.3 In the event that the IO provides for or otherwise permits marketing by electronic mail, the Advertiser agrees to deliver its suppression list for each email campaign to Capsulclick immediately upon execution of the IO and thereafter to provide an updated suppression list for each campaign not less than once in every 72 (seventy-two) hour period of time for the duration of the Campaign.

  1. NON-COMPETITION

7.1 During the term of this Agreement and for a period of 1 (one) year thereafter, the Advertiser will not seek, in any way, to undermine the business standing and goodwill of Capsulclick, and in particular, the Advertiser will not, directly or indirectly: (i) solicit or entice or attempt to solicit or entice any of the employees of Capsulclick to enter into employment service with the Advertiser or a competitor of Capsulclick; or (ii) directly or indirectly enter into any agreement or contract, written or otherwise, with any affiliate/sub-affiliate/contractor of Capsulclick without the prior written approval by an authorized party at Capsulclick.

 

7.2 The Advertiser agrees and understands that Capsulclick has incurred significant expense forming Capsulclick’s affiliate network and in providing services for the benefit of its Clients, and Advertiser agrees and understands that in the event of a breach by the Advertiser of this section, the Advertiser shall pay Capsulclick as liquidated damages an amount equal to the amount paid by the Advertiser to Capsulclick within 6 (six) billable months preceding such breach. The liquidated damage remedies provided herein in this section shall not preclude Capsulclick from seeking injunctive relief. Additionally, in the event of breach of this section by Advertiser in the form of solicitation or enticing of employees of Capsulclick or any other person who provides services to Capsulclick, the Advertiser shall pay additional liquidated damages in the amount equal to the total of all payments made by Capsulclick to such employee/any other person who provides services to Capsulclick during last 3 calendar years directly preceding such breach.

  1. TERMINATION

8.1 This Agreement has been entered into for an indefinite period of time until terminated by either party in accordance with clauses 8.2 and 8.3 of this Agreement. If Capsulclick has not rendered the services for any period of time within duration hereof this cannot be considered a breach of the Agreement and result in any losses or damages to the Advertiser.

 

8.2 Either party may terminate this agreement and cancel the IO without providing a reason for such termination, by giving a 2 (two) working days’ written notice to the other party. In such case any undisputed amounts owed by the Advertiser, must be settled within 15 (fifteen) working days from the date that the termination becomes effective.

 

8.3 Capsulclick might also immediately terminate this Agreement and the IO by means of a written notice to the Advertiser, in cases where Capsulclick considers that the Advertiser has been in breach of any of the terms of this Agreement and the IO or if it is considered that the Advertiser has acted and/or the Campaign has been managed in a way which: (i) is in contravention and/or violation of applicable laws, by-laws, rules and regulations, (ii) is defamatory, obscene, misleading, deceptive, fraudulent or otherwise inappropriate; or (iii) might harm the good reputation of Capsulclick, its Directors, affiliates or any other person and/or body for which Capsulclick is in law responsible.

  1. CONFIDENTIALITY

9.1 Either party (hereinafter the “Disclosing Party”) may, from time to time, disclose to the other party (hereinafter the “Receiving Party”) certain information relating to the Disclosing Party’s business or customers, affiliates, subsidiaries, agents, or employees; business and marketing plans, processes, strategies and methods which may not be standard industry practice or which are not generally known in the industry and/or to any section of the public; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (all collectively referred to as the “Confidential Information”). The Disclosing Party and the Receiving Party hereby agree and acknowledge that such Confidential Information will be provided at the sole discretion of the Disclosing Party, and nothing in this Agreement obligates the Disclosing Party, its directors, agents or employees to disclose or grant to the Receiving Party access to any Confidential Information. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party hereby promises, pledges, covenants and agrees: (i) to use the Confidential Information only for the purposes expressly contemplated in this Agreement; (ii) that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, or agent of the Receiving Party without the prior written consent of the Disclosing Party. The Receiving Party acknowledges that the Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Receiving Party agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of the Disclosing Party, with the exception that 1 (one) copy may be made for backup and archival purposes only. The undertakings and obligations of each party under this Section shall not apply to any information which it can established to have: (i) become publicly known through no action on the Receiving Party’s part; (ii) been known by the Receiving Party prior to receipt; (iii) been independently developed by the Receiving Party; (iv) been approved for public release by the Disclosing Party’s written authorization; or (v) been required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Disclosing Party is notified immediately of such required disclosure and given the opportunity to seek a protective order.

 

9.2 Unless Capsulclick has provided its prior, express written consent, the Advertiser will keep the IO and the terms of the Agreement strictly confidential, and may not make any unauthorized disclosure of the same to any person.

 

9.3 The confidentiality non-disclosure provisions shall survive this Agreement for a period of 3 (three) years.

  1. PROPERTY OF CONTENT

10.1 All Website content as text, graphics, user interface, visual interfaces, photographs, trademarks, logos, artwork and computer code, including but not limited to the design, structure, selection, coordination, expression and arrangement of such content is owned, controlled or licensed by Capsulclick, and is protected by trade dress, copyright and trademark laws, and various other intellectual property rights and unfair competition laws.

 

10.2 No part and no content may be copied, reproduced, republished, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Capsulclick’s express prior written consent.

 

10.3 The Advertiser may use information about the Website and our services provided that it: (i) does not remove any proprietary notice language in all copies of such documents, (ii) uses such information only for personal, non-commercial informational purpose and does not copy or post such information on any networked computer or broadcast it in any media, (iii) makes no modifications to any such information, and (iv) does not make any representations or warranties related to Capsulclick.

  1. GENERAL

11.1 Neither party may assign this Agreement and the IO without the express written consent of the other. Notwithstanding the foregoing, however Capsulclick is able – and if this is deemed appropriate – may broker or assign this Agreement and the IO at any time, in part or in whole, to an affiliate marketer with whom Capsulclick has entered into its standard agreement. Such an assignment may be effected without seeking the prior written consent of the Advertiser, but the Advertiser might be notified of such an occurrence at the discretion of Capsulclick.

 

11.2 Capsulclick reserves the right to include the Advertiser’s name in any advertisement, publication, press release or promotional material, without seeking the Advertiser’s prior consent. In case that promotional materials will need to be produced by Capsulclick, Capsulclick may request from the Advertiser and the Advertiser will supply Capsulclick with at least 1 (one) digital copy of art and/or other possible promotional materials produced that may be copied, printed, and/or distributed at conferences, signings, mailings, trade shows, etc.

 

11.3 Capsulclick DOES NOT GUARANTEE THAT THE ADVERTISER OR ANY THIRD-PARTY WILL BE ABLE TO ACCESS Capsulclick’S WEBSITE AT ANY PARTICULAR TIME. Capsulclick’S SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS. EXTERNAL FACTORS AND/OR FACTORS BEYOND Capsulclick’S CONTROL MIGHT CAUSE SERVICE DISRUPTIONS AT TIMES FOR WHICH Capsulclick MIGHT NOT HAVE ANY POWER OVER.

 

11.4 Capsulclick SHALL NOT BE LIABLE TO THE ADVERTISER (WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE) FOR ANY LOSS OF OR CORRUPTION TO DATA OR COMPUTER FILES, LOSS OF USE, LOST BUSINESS, LOSS OF ANTICIPATED SAVINGS OR REVENUES, LOSS OF PROFITS, LOSS OF CONTRACTS OR BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, OR DAMAGE TO REPUTATION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

 

11.5 WITH THE EXCEPTION OF: (i) EACH PARTY’S DUTIES OF INDEMNIFICATION AND CONFIDENTIALITY, AND (ii) ANY CLAIM BETWEEN THE PARTIES AS TO THE OWNERSHIP OR PROTECTION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (WHICH TERM INCLUDES, BUT IS NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF THE LEGAL THEORY, WHETHER A THEORY OF CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE.

 

11.6 TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW, Capsulclick’S LIABILITY UNDER THIS AGREEMENT SHALL BE CAPPED AND LIMITED TO THE TOTAL AMOUNT PAYABLE TO Capsulclick BY THE ADVERTISER FOR THE BILLING PERIOD IN WHICH THE ISSUE OCCURRED.

 

11.7 The Advertiser agrees that Capsulclick shall not be liable for: (i) any delays in the delivery and/or non-delivery of any Advertising Material and/or Traffic; (ii) anything affecting the production of an Advertising Material in the event of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition beyond the control of Capsulclick; (iii) consequential damages of any nature whatsoever; and/or (iv) errors or omissions in the Advertising Material as it is exhibited to the public.

 

11.8 Any notice or other communication given or made in order to comply or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered by e-mail to the address of the parties set forth in the IO and shall be deemed to have been duly given or made upon successful transmission of the email unless otherwise mutually agreed by parties.

 

11.9 This Agreement shall be governed by the laws of the country in which proceedings commenced (the lex fori). Courts located in Capsulclick’s country of incorporation in the meaning of the Sub-Clause 1.1 of this Agreement shall have non-exclusive jurisdiction over the disputes arising under this Agreement.

 

11.10 The Advertiser hereby irrevocably waives, to the fullest lawful extent, all rights to trial by jury in any proceeding relating to this Agreement. Without prejudice to the generality of the foregoing, the parties have agreed that any disputes over this Agreement may also be resolved under the mediation procedure at Capsulclick’s option.

 

11.11 If any litigation, arbitration, mediation and/or debt collection is absolutely necessary to enforce this Agreement or the terms thereof, Capsulclick shall be entitled to reimbursement by the Advertiser for all reasonable fees, costs and expenses to the fullest extent, including without limitation attorneys’ and collection expenses.

 

11.12 This Agreement and the IOs constitutes the entire agreement between the parties with respect to the Campaigns noted in the IOs and supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written between the Parties.

 

11.13 This Agreement is intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof and supersedes all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof.