TERMS AND CONDITIONS
The following terms and conditions (this "Agreement") is a legal agreement between S2i Digital Media ("S2i Digital Media"), and PUBLISHER. PUBLISHER and S2i Digital Media may also be individually referred to herein as a "Party" and collectively as "Parties."
1.) Service: The Service is the collection of technical and communications services provided by S2i Digital Media to provide PUBLISHER with tools, knowledge and reporting to promote user propositions, primarily through the use of Advertisements. PUBLISHER will use the Advertisement to generate commissionable actions by users, as described in the affiliate portal or as provided directly by S2i Digital Media. “Commissionable Actions” means any Clicks, Conversions, Impressions, Events or Leads or other negotiated actions that PUBLISHER has delivered which attract a monetary commission. "Advertisement" means the Creatives provided through the Service, including any copy including questions and or text ads, links, graphic, sound, video, data feeds, programming code and/or other content that comprises the advertisement, as well as the websites to which an advertisement is linked if applicable. S2i Digital Media hereby grants to PUBLISHER during the Contract Period a non-exclusive, royalty-free, worldwide right and license by all means and in any media, whether now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Advertisement and all its constituent parts.
2.) Qualified Lead Definition (Qualified Leads): Qualified Leads are prospects who meet S2i Digital Media’s screening criteria as described through the Service and who provide their complete contact data. PUBLISHER will be paid on a delivered per lead basis defined by the Terms & Conditions provided through the Service or directly by S2i Digital Media. In the case of any dispute between the parties as to the number of Qualified Leads, S2i Digital Media’s numbers will control.
3.) Commissionable Action Validation Procedure:
S2i Digital Media will verify each Commissionable Action, which may take the form of Clicks, Conversions, Impressions, Events, Qualified Leads and negotiated actions delivered by the PUBLISHER. Upon receipt, all commissionable actions will be checked for data validity (i.e. containing valid data inputs for the fields specified through the Service) and uniqueness of data (i.e. that the Qualified Leads are not present in S2i Digital Media’s database for the designated Advertisement in the past 60 days). Subject to any applicable laws, S2i Digital Media reserves the right to send an auto-responder to all respondents re-confirming their request for information. Any objections from respondents (about the email, or the offer) will be raised to the PUBLISHER.
4.) Creative Changes: Editing of S2i Digital Media’s Creatives is strictly controlled by the terms of the Service, unless given prior written approval from S2i Digital Media. Creatives includes, but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign including survey questions and answers. Any changes to Creative, without prior written permission will result in the loss of payment for commissionable actions. PUBLISHER warrantes that no changes will be made that would denigrate, degrade, dispute or otherwise injure S2i Digital Media’s reputation or Service.
5.) Compliance: S2i Digital Media will actively monitor PUBLISHER activity using a combination of its proprietary software and third-party monitoring services. It is the obligation of PUBLISHER to prove to S2i Digital Media that they are not committing fraud. In the case of a dispute, S2i Digital Media will hold PUBLISHER payment in ‘Pending Status’ until PUBLISHER has satisfactorily provided evidence that PUBLISHER is not defrauding the system. S2i Digital Media flags accounts that: Have click-through rates that are much higher than industry averages and where solid justification is not evident; Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined by our S2i Digital Medias or Use fake redirects, automated software, and/or fraud to generate clicks or leads. If PUBLISHER is unable to prove to S2i Digital Media that PUBLISHER is not committing fraud, PUBLISHER will forfeit its entire commission for all programs and PUBLISHER’s account will be terminated. S2i Digital Media reserves sole judgment in determining fraud.
6.) Advertising Guidelines: PUBLISHER may, in its complete discretion, reject, cancel or remove at any time any Advertisement from the service for any reason without prior notice to S2i Digital Media. PUBLISHER may not forego any obligations to S2i Digital Media until resolution of any outstanding issues between both parties is completed.
7.) Term & Target Launch: Term & Target Launch will be defined through the Service, either through the portal provided or directly with S2i Digital Media. No actions shall be recorded or paid for if they do not comply with the terms of the Service. Agreement may continue thereafter by mutual consent but may be terminated by either party for any reason whatsoever. All legitimate moneys due to PUBLISHER will be paid during the next billing cycle. If PUBLISHER defrauds the system, then payment is revoked as determined solely by S2i Digital Media.
8.) Payment: PUBLISHER will invoice S2i Digital Media on a monthly basis at the payout rates reflected in the Service. The invoice will reflect delivery of final commissionable action numbers that are based upon numbers reported by S2i Digital Media to PUBLISHER pursuant to the terms of this Agreement.
9.) Payment Term: S2i Digital Media shall make all payments to PUBLISHER within 30 days of the Invoice Date. All payments made to PUBLISHER do not include, and PUBLISHER shall pay, any sales, use or similar tax associated with such payment. All past due amounts shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is greater. Parties shall keep, maintain and preserve, for the term of this Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder (the “Relevant Records”). Either party shall have a right at least once per calendar year to audit the Relevant Records of the other party for the purpose of verifying fulfillment of party’s payment obligations pursuant to this Agreement. Each audit will be conducted at a place agreed to by the parties, during the normal business hours, with at least ten (10) business days prior written notice to party to be audited. Auditing party shall pay the fees and expenses of the audit, unless the audit reveals a payment discrepancy of more than ten percent (10%) of all payments due in any consecutive six (6) month period, in which case audited party shall pay the reasonable fees and expenses of the audit, and shall immediately pay to auditing party all amounts found to be due.
10.) S2i Digital Media Representations and Warranties. The execution, delivery, and performance of this Agreement by S2i Digital Media has been duly approved by its board of directors or managing partners/members, and no further corporate action is necessary on the part of S2i Digital Media to consummate the transactions contemplated by this Agreement.
11.) PUBLISHER Representations and Warranties: Publisher represents and warrants that:
12.) Other Obligations: PUBLISHER shall:
13.) Confidentiality: The terms of this Agreement are confidential and shall not be disclosed to any third party except where required by law. All information submitted by end-user customers pursuant to this Agreement is proprietary to and owned by S2i Digital Media. Such customer information is confidential and may not be disclosed by S2i Digital Media or PUBLISHER. In addition, PUBLISHER acknowledges that all non-public information, data and reports received from S2i Digital Media hereunder or as part of the services hereunder is proprietary to and owned by S2i Digital Media. (“Confidential Information”). PUBLISHER agrees not to disclose the terms of this Agreement, including the commission value, to any third party without the express written consent of S2i Digital Media, and that such constitutes Confidential Information. All Confidential Information is or may be protected by copyright, trademark, trade secret and other intellectual property law, as appropriate. PUBLISHER agrees not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information in any manner. These non-disclosure obligations shall survive the termination of this Agreement for a period of five (5) years. This section does not bind S2i Digital Media or PUBLISHER in the event such information is required to be disclosed by operation of law. If a request is made of PUBLISHER to disclose such information, PUBLISHER must immediately inform S2i Digital Media via written notice sufficiently promptly to allow S2i Digital Media to seek a Protective Order prior to the time commanded to produce or disclose such Confidential Information, and PUBLISHER agrees to cooperate in whatever way S2i Digital Media requests to attempt to protect that information from disclosure by operation of law. Subject to prior approval by PUBLISHER, S2i Digital Media may publicly announce its contractual relationship with PUBLISHER, which includes being on a listing of S2i Digital Media publishers in general corporate materials and in industry standard press releases.
14.) Disclaimer of Warranties: S2i Digital Media provides its sites and the sites of its Affiliates and Partners, and all its services and the services of its Affiliates and Partners, as performed hereunder, on an "AS IS", "WHERE IS" and "AS AVAILABLE" basis. S2i Digital Media disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranty and merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance.
15.) Limitations of Liability: In no event shall S2i Digital Media be liable for any special, indirect, incidental or consequential damages (including, without limitation, for breach of contract, warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits, arising out of or in connection with this agreement. Under no circumstances shall S2i Digital Media be liable to PUBLISHER or any third parties for an amount greater than the amounts paid by S2i Digital Media to PUBLISHER during the prior three months.
16.) Indemnification: Each party agrees to indemnify, defend and hold harmless the other party and its employees, agents, officers and directors, against any and all claims, causes of actions, judgments, demands, damages, losses or liabilities, including costs and expenses (including reasonable attorneys fees and costs of suit), arising out of or relating to (a) any claim based upon infringement of copyright, trademark, patent, or trade secret or other intellectual property right of any third party; (b) any claim, representation, or statement made in the Advertisement; (c) any breach of any representation or warranty contained in this Agreement.
17.) Dispute Resolution: If any dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: State of California, Los Angeles County. Any costs and fees other than attorneys’ fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: State of California, Los Angeles County. The Parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is absolutely necessary to enforce this Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys’ fees, costs and expenses. This Agreement will be governed by the laws of the State of California.
18.) No Assignment: Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
19.) Independent Contractor: Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party’s prior written consent.
20.) Severability: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
21.) Entire Agreement; Modification: This constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral, regarding the subject matter. No modification, course of conduct, amendment, supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both parties.
22.) Agreement in Counterparts: This agreement may be signed by S2i Digital Media and PUBLISHER in counterparts, and facsimile signatures shall have the same force and effect as an original signature.
23.) Data Protection
Data Protection Clauses
1.1 In this Exhibit A, the following terms shall have the following meanings and shall be construed accordingly:
1.1.1 "S2i Digital Media Personal Data" means any Personal Data Processed by PUBLISHER on behalf of S2i Digital Media pursuant to or in connection with this Agreement;
1.1.2 "DP Law" means the GDPR, the E-Privacy Directive (2002/58/EC), and all other applicable laws and regulations relating to the Processing of Personal Data, including any legislation that implements or supplements, replaces, repeals, and/or supersedes any of the foregoing;
1.1.3 "GDPR" means the EU General Data Protection Regulation 2016/679;
1.1.4 “Privacy Shield” means the Privacy Shield scheme and principles operated by the United States Department of Commerce, as approved by the European Commission Implementing Decision (EU) C(2016) 4176 of 12 July 2016, or any replacement scheme and principles approved by the European Commission for that purpose from time to time;
1.1.5 "Standard Contractual Clauses (Processors)" means the standard contractual clauses for the transfer of Personal Data from the EEA to Data Processors established in third countries as set out in the Annex to European Commission Decision 2010/87/EU, (or any subsequent clauses that may amend or supersede such standard contractual clauses; and
1.1.6 "Subprocessor" means any person (including any third party, but excluding an employee of PUBLISHER or any employee of its sub-contractors) appointed by or on behalf of PUBLISHER to Process S2i Digital Media Personal Data on behalf of PUBLISHER in connection with this Agreement.
1.2 The terms, "Data Controller", "Data Processor", "Data Protection Impact Assessments", "Data Subject", "Personal Data", "Personal Data Breach", "Processing", "Special Categories of Personal Data" and "Supervisory Authority" shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
1.3 The word "include" shall be construed to mean include without limitation, and cognate terms shall be construed accordingly.
2. PROCESSING OF S2i Digital Media PERSONAL DATA
2.1 The Parties acknowledge and agree that for the purposes of DP Law, S2i Digital Media is the Data Controller and PUBLISHER is the Data Processor of any S2i Digital Media Personal Data Processed by PUBLISHER on behalf of S2i Digital Media in connection with its provision of services to S2i Digital Media.
2.2 Each of the Parties warrants and undertakes that it shall comply with all applicable obligations which may arise under DP Law in connection with the Processing of S2i Digital Media Personal Data as contemplated under this Agreement.
2.3 S2i Digital Media shall ensure that:
2.3.1 it is entitled to transfer the relevant S2i Digital Media Personal Data to PUBLISHER so that PUBLISHER and each Subprocessor may lawfully use, Process and transfer the S2i Digital Media Personal Data in accordance with this Agreement on S2i Digital Media's behalf; and
2.3.2 the relevant third parties have been informed of, and, to the extent required under DP Law, have given their consent to, such use, Processing, and transfer as required by all applicable DP Law.
2.4 Exhibit B sets out certain information regarding PUBLISHER’ Processing of S2i Digital Media Personal Data under this Agreement as required by Article 28(3) of the GDPR. Each Party may make reasonable amendments to Exhibit B by written notice to the other Party from time to time as that Party reasonably considers necessary to meet those requirements. Nothing in Exhibit B (including as amended pursuant to this clause 2.4) confers any right or imposes any obligation on any Party.
2.5 PUBLISHER shall:
2.5.1 not Process S2i Digital Media Personal Data other than as contemplated under this Agreement or on S2i Digital Media’s documented instructions and solely for the purposes of providing its services to S2i Digital Media unless Processing is required by any applicable DP Law to which PUBLISHER is subject, in which case PUBLISHER shall to the extent permitted by any applicable DP Law inform S2i Digital Media of that legal requirement before the relevant Processing of that S2i Digital Media Personal Data;
2.5.2 promptly notify S2i Digital Media if PUBLISHER believes that S2i Digital Media’s instructions infringe DP Laws;
2.5.3 ensure that all its personnel who have access to S2i Digital Media Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
2.5.4 taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, PUBLISHER shall in relation to S2i Digital Media Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including the measures referred to in Article 32(1) of the GDPR;
2.5.5 not transfer any S2i Digital Media Personal Data outside of the European Economic Area without S2i Digital Media’s prior written consent unless otherwise explicitly stated in this Exhibit B;
2.5.6 assist S2i Digital Media, taking into account the nature of the Processing and information available to PUBLISHER, in responding to any request from a Data Subject and in ensuring compliance with its obligations under DP Law with respect to security of Processing, breach notifications, Data Protection Impact Assessments and consultations with Supervisory Authorities or regulators relating to S2i Digital Media Personal Data Processed by PUBLISHER;
2.5.7 notify S2i Digital Media without undue delay after becoming aware of a Personal Data Breach;
2.5.8 at the written direction of S2i Digital Media, delete or return all S2i Digital Media Personal Data and copies thereof to S2i Digital Media on termination of this Agreement unless required by the DP Laws or any applicable law to which PUBLISHER is subject to store the S2i Digital Media Personal Data; and
2.5.9 maintain and make available to S2i Digital Media on request all information necessary to demonstrate compliance with this Exhibit B, and shall allow for and contribute to reasonable audits and access, including inspections, by S2i Digital Media or an auditor mandated by S2i Digital Media in relation to the Processing of S2i Digital Media Personal Data by PUBLISHER or any Subprocessor as required by Article 28(3)(h) of the GDPR.
3.1 S2i Digital Media hereby generally authorizes PUBLISHER to appoint Subprocessors in connection with this Agreement.
3.2 With respect to each Subprocessor appointed by PUBLISHER, PUBLISHER shall:
3.2.1 ensure that the arrangement between PUBLISHER and the Subprocessor is governed by a written contract including terms which offer at least the same level of protection for S2i Digital Media Personal Data as those set out in this Exhibit B and meet the requirements of Article 28(3) of the GDPR; and
3.2.2 be fully liable to S2i Digital Media for the acts or omissions of such Subprocessor in relation to any Processing of S2i Digital Media Personal Data Processed on behalf of PUBLISHER.
3.3 Where PUBLISHER proposes any changes concerning the addition or replacement of any Subprocessor, it shall notify S2i Digital Media in writing as soon as reasonably practicable prior to implementing such change specifying:
3.3.1 the name of any Subprocessor which it proposes to add or replace;
3.3.2 the Processing activity or activities affected by the proposed change;
3.3.3 the reasons for the proposed change; and
3.3.4 the proposed date for implementation of the change.
3.4 If within ten (10) days of receipt of a notice under clause 3.3 above S2i Digital Media (acting reasonably and in good faith) notifies PUBLISHER in writing of any objections to the proposed change, the parties shall use their respective reasonable endeavors to resolve S2i Digital Media’s objections. Where such resolution cannot be agreed within ten (10) days of PUBLISHER’ receipt of S2i Digital Media’s objections, the Parties agree that the original change of Subprocessor proposed by PUBLISHER (as specified under Clause 3.3 above) shall be deemed to have been accepted by S2i Digital Media.
4. INTERNATIONAL DATA TRANSFERS
4.1 The Parties agree not to transfer any S2i Digital Media Personal Data outside the European Economic Area without complying with, and executing, the Standard Contractual Clauses (Processors) (as may be amended, updated, replaced or reissued from time to time), unless:
4.1.1 the Party to which the transfer is made is certified under the Privacy Shield, in which case such transfer and any subsequent Processing of S2i Digital Media Personal Data shall be made in accordance with that Party’s valid Privacy Shield certification registered with the US Department of Commerce and the obligations and requirements of the Privacy Shield; or
4.1.2 the transfer is made to a third country, a territory or one or more specified sectors within that third country, or an international organization, that has been deemed to provide an adequate level of protection for personal data by the European Commission (in accordance with Article 45 of the GDPR).
Details of Processing of S2i Digital Media Personal Data
For the purposes of Article 28(3) of the GDPR:
The S2i Digital Media Personal Data transferred may concern the following categories of Data Subjects:
Categories of Personal Data
The S2i Digital Media Personal Data transferred may concern the following types / categories of Personal Data:
Special Categories of Personal Data
The S2i Digital Media Personal Data transferred will not concern any Special Categories of Personal Data or Personal Data relating to criminal conviction and offences.
Nature / Purpose of Processing
The S2i Digital Media Personal Data transferred is to be Processed by PUBLISHER as necessary to perform its services pursuant to this Agreement and as further instructed by S2i Digital Media in writing.