Terms and Conditions
Services. Subject to the advertiser (including its affiliates, clients, agents or anyone else on its or on their behalf, all hereinafter collectively referred to as “Advertiser”) execution and compliance with the Agreement, Brightcom will promote the Advertiser’s advertisements, products or services by transmitting images, text, videos and/or any other materials provided by the Advertiser (“Advertiser Content”), via Brightcom’s publishers network in accordance with the campaign guidelines set forth in the IO (collectively referred as the “Services”).
Payment. The Advertiser must provide Brightcom with access to an online dashboard which shall detail the number of views transpired, and the Payments to be made by Advertiser to Brightcom (“Report”). If the Advertiser fails to provide the Report within this period, Brightcom reserves the right to invoice the Advertiser based upon its own media performance data. Brightcom will invoice Advertiser monthly in accordance with the Reports and the total payment due to Brightcom for the Services (“Payment(s)”). Payment must be paid by Advertiser in US Dollars or New Israeli Shekels, all in accordance with the payment terms stipulated in the IO. All ancillary fees (i.e. wire transfer fees, check clearing fees etc.) shall be borne by Advertiser. Advertiser shall remain solely responsible and liable for the timely remittal of any and all Payments due to Brightcom regardless of Advertiser’s collection of payment from its downstream advertisers. Each party shall pay all applicable taxes or fees imposed by any government authority in connection with the Agreement
Brightcom reserves the right to demand that payment shall be made in advance. All prepayments will be credited against Advertiser’s debt to Brightcom. Any outstanding amount shall bear interest at the rate of 1.5% per month from the invoice due date until fully paid by the Advertiser.
Term and Termination. The term of this Agreement will commence upon the Effective Date and will continue until terminated by either party or as detailed in the respective IO (the “Term”). Either party may terminate this Agreement at any time, with or without cause, by giving the other party at least twenty-four (24) hours prior written notice. In the event of termination of this Agreement, Advertiser shall remain liable for any Payment due under this Agreement for Services delivered by Brightcom and such obligation to pay shall survive any termination of this Agreement. Upon the expiration or termination of the Agreement, all licenses granted hereunder shall immediately terminate, and Advertiser shall immediately cease any and all use of the Services.
Intellectual Property. Advertiser shall retain all right, title and interest in and to the Advertiser’s Content. During the campaign, Advertiser grants Brightcom a limited nonexclusive license to use the Advertiser’s Content in accordance with this Agreement. Brightcom shall own all right, title and interest in and to any content, design or software provided by Brightcom. This Agreement does not transfer or convey any right, title or interest in any Advertiser Content provided by Advertiser or any associated intellectual property rights. Furthermore, Advertiser does not retain any right, title and interest in and to any created ads, multimedia images, graphics, text, data or other objects created or originated by Brightcom, and may not use it for any other purpose other than for the purpose of providing the Services hereunder.
Representations and Warranties. Each party warrants and represents to the other party that it: (i) is duly organized and validly existing under the laws of its state of incorporation (ii) owns all right, title, and interest in its business, and in the content provided hereunder, as applicable, as necessary in order to run the Campaign contemplated by this Agreement; (iii) has full power and authority to execute this Agreement and to perform its obligations hereunder.
Advertiser hereby represents and warrants that the Advertiser Content shall (a) comply with all applicable laws rules and regulations; (b) not infringe any copyright, trade secret, or other intellectual property right of any third party; (c) contains any of the following categories: Graphic or explicit violence; Adult, sexual, or obscene content; Discriminating, offensive, or profane material or hate content; Weapons, weapon accessories, or ammunition; Illegal drugs or drug paraphernalia; Tobacco or tobacco accessories; Spyware, malware, viruses, illegal hacking, or other materials that are intended to damage or render inoperable software or hardware; P2P file sharing, torrenting, or other content violating or infringing upon any third-party intellectual property rights; Counterfeit goods; Illegal products, activities, or services; Content offering traffic generation or promoting fraudulent traffic; Content pertaining to particular religions or spirituality, or advocating the superiority of a specific race/ethnic group, national origin, color, religion, sex, sexual orientation, language; Alcohol; Gambling or online casinos (if there is the ability to cash out in real currency); Lotteries; Pharmaceutical or health products and services, including prescription medications; Abuse support; Substance abuse; Content promoting or containing links that are disparaging Brightcom..
Limitation of Liability. Except as set forth in this agreement, in no event will either party or its subsidiaries, shareholders, directors, affiliates, officers, employees, agents, successors and permitted assignees be liable to the other party or any third party for any special, incidental, consequential, exemplary or punitive damages, including to any damages for the use or inability to use the services or any part thereof, lost data, lost profits, loss of goodwill, lost revenue, service interruption, system failure or costs arising out of or in connection with this agreement, the service or any part therein under any theory of liability, including for contract or tort (including products liability, strict liability and negligence), and whether or not the party was or should have been aware or advised of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy stated herein. In no event shall either party’s aggregate liability for any claim arising out of or related to this agreement, to the fullest extent possible under applicable law, exceed the amount paid by advertiser to Brightcom in the six (6) month period prior to the date of the relevant claim.
Indemnification. Each party shall defend, indemnify, and hold the other party harmless from and against any suit, proceeding, assertion, damage, cost, liability, or expense (including court costs and reasonable attorney fees), incurred as a result of a claim by a third party against such party or its affiliates, licensors, suppliers, officers, directors, employees or agents arising from, associated with or connected with such party’s breach of any of its representations or warranties set forth in this Agreement.
|Miscellaneous. This Agreement does not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. Advertiser may not, without the prior written consent of Brightcom, assign this Agreement, in whole or in part which shall not be unreasonably withheld. The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity. This Agreement shall be interpreted according to the laws of the State of New York without regard to or application of conflict-of-law rules or principles. Any dispute relating to or arising from this Agreement shall be settled in the sole jurisdiction of the applicable courts in New York. This Agreement shall constitute the entire agreement between Publisher and Advertiser with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby. This Agreement may be amended only by written agreement signed by both parties. No failure of either party to exercise or enforce any rights under the Agreement shall act as a waiver of subsequent breaches. In the event any provision of the Agreement is for any reason held invalid, illegal or unenforceable, the parties will begin negotiations for a replacement provision and the remaining provisions of the Agreement will be unimpaired. If either Party is prevented from performing any of its obligations under the Agreement due to any cause beyond the party’s reasonable control, including, without limitations, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers (a “Force Majeure Event”) the time for that Party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Advertiser will not be excused from the payment of any sums of money owed by Advertiser to Brightcom. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting the Agreement in construing or interpreting the provisions hereof.
Exhibit A- Data Processing Agreement
This DPA only applies to the extent that EU Data Protection Law (as defined below) applies to the Processing of Personal Data under this Agreement, including if (a) the Processing is in the context of the activities of an establishment of either party in the EEA or (b) the Personal Data relates to Data Subjects who are in the EEA and the Processing relates to the offering to them of goods or services or the monitoring of their behavior in the EEA by or on behalf of a party. Notwithstanding the above, this DPA and the obligations hereunder do not apply to aggregated reporting or statistics information a party may collect from end users or provide to the other party.
- “Data Protection Law” means any and all applicable privacy and data protection laws and regulations (including, where applicable, EU Data Protection Law) as may be amended or superseded from time to time.
- “Controller“, “Processor“, “Data Subject“, “Personal Data“, “Processing” (and “Process“), “Personal Data Breach” and “Special Categories of Personal Data” shall have the meanings given in EU Data Protection Law.
- “Company Data” means data collected on behalf of Company’s publishers and shared with the Advertiser subject to the Agreement and for the purpose of providing the service, including without limitations, IDs.
- “EU Data Protection Law” means the (i) EU General Data Protection Regulation (Regulation 2016/679) (“GDPR”); (ii) the EU e-Privacy Directive (Directive 2002/58/EC), as amended (e-Privacy Law); (iii) any national data protection laws made under, pursuant to, replacing or succeeding (i) and (ii); and (iv) any legislation replacing or updating any of the foregoing.
- “IDs” means: (i) a unique identifier stored on an end-user’s device, (ii) a unique identifier generated on the basis of device information, (iii) a resettable advertising ID associated with a mobile device or an application; or (iv) IP Address.
- “Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data of the other party. For the avoidance of doubt, any Personal Data Breach of the other Party’s Personal Data will comprise a Security Incident.
2. RELATIONSHIP OF THE PARTIES
The parties agree and acknowledge that with respect to the Processing of Company Data, the Company is the Data Controller and the Advertiser is the Data Processor. Each party shall be individually and separately responsible for complying with the obligations that apply to it subject to the Data Protection Law. The subject-matter and duration of the Processing carried out by the Processor in connection with the Agreement, the nature and purpose of the Processing, the type of Personal Data and categories of Data Subjects are described in Annex A.
3. PROCESSING AND PROTECTION OF PERSONAL DATA
- Each party shall Process Personal Data in compliance with applicable Data Protection Law, industry standards and its obligations herein. Without derogating from the general or specific terms herein, the Advertiser hereby warrants and confirms it is compliant with EU Data Protection Law.
- In respect of the Processing of Personal Data by Advertiser in connection with the Agreement where EU Data Protection Law applies, the Advertiser is responsible for and shall comply with applicable Data Protection Law and agrees that it shall: (a) treat all Company Data processed by it on behalf of the Company as confidential and ensure that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (b) cooperate as requested by the Company and implement appropriate technical and organizational measures to enable Company to comply with any exercise of rights by a Data Subject under applicable Data Protection Law in respect of Personal Data processed by Company under the Agreement (including, without limitation, deletion of a Data Subject’s Personal Data); (c) not access or transfer outside the EEA any Personal Data without the prior written consent of the Company; (d) provide the Company with reasonable resources and assistance as are required by the Company pursuant to Articles 32 to 36 of the GDPR; (e) by Company’s sole disclosure, delete all the Company Data following the completion of the Processing, and delete existing copies unless European Union or Member State law requires storage of such; (f) make available to the Company at its request all information necessary to demonstrate compliance with the obligations herein and under Article 28 of the GDPR, including without limitation, provide the Company with a written description of the technical and organizational methods employed by Advertiser and its Sub- Processors (if any) for the Processing of Personal Data; and (g) immediately inform the Company if, in the its opinion, an instruction from the Company infringes applicable Data Protection Law.
4. NOTIFICATION OF SECURITY INCIDENT
The Advertiser will notify the Company without undue delay, and, in any event within forty-eight (48) hours, upon becoming aware that an actual Security Incident has occurred. The Advertiser will, as soon as possible, provide the Company with at least the following information with respect to the Security Incident: (a) a description of the cause and nature of the Security Incident including the categories and approximate numbers of Data Subjects concerned and the categories and approximate number of Personal Data records concerned; (b) the measures being taken to contain, investigate and remediate the Security Incident; (c) the likely consequences and risks for the Company and its Data Subjects as a result of the Security Incident; and (d) any mitigating actions taken and a proposed plan to mitigate any risks for Data Subjects as a result of the Security Incident. Further, the Advertiser shall (i) immediately and without delay, take necessary steps to contain, remediate, minimize any effects of the Security Incident and to identify its cause; (ii) co-operate with the Company and provide the Company with applicable assistance and information as it may reasonably require in connection with the mitigation of the Security Incident; and (iii) immediately notify the Company in writing of any request, inspection, audit or investigation by a Supervisory Authority.
5. TECHNICAL AND ORGANIZATIONAL MEASURES
The Company has implemented appropriate technical and organizational measures to protect the Personal Data as detailed herein: http://brightcom.com/security-policy/. The Advertiser shall implement and maintain the technical and organizational measures and take all other measures required pursuant to Article 32 of the GDPR including all organizational and technical security measures necessary to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of Company Data, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing, and in any event, with respect to the Company Data the security measures implemented are at least as strict as the Company’s.
The Advertiser may engage with Sub-Processors and notified in writing to Company prior to this DPA. In the event the Advertiser requires to engage with additional or replace an existing Sub-Processor to process Personal Data, it shall notify the Company in writing of any intended use or replacement of a Sub-Processor (email notification to the DPO at: [email protected] shall be sufficient) within thirty (30) days of the engagement or replacement of the Sub-Processor concerned, unless the Company objects in writing to the proposed use or replacement of the relevant Sub-Processor within thirty (30) days of receipt of the email notification (in which case Advertiser shall not use or replace the Sub-Processor concerned in relation with the Company Data. The Advertiser shall (i) only use a Sub-Processor that has provided sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the GDPR and this DPA and ensure the protection of the rights of Data Subjects; and (ii) impose, through a legally binding contract between Advertiser and Sub-Processor, the same data protection obligations as set out in this DPA. The Advertiser acknowledges and agrees that if any Sub-Processor fails to fulfil its obligations in the contract between the Advertiser and Sub-Processor, Advertiser shall remain fully liable to the Company for the performance of the Sub-Processor’s obligations.
Upon reasonable request of the Company, the Advertiser will submit its data processing facilities, data files and documentation as reasonably needed by the Company for the purpose of auditing or inspecting the Advertiser to ensure compliance with the warranties and undertakings under this DPA (“Audit”). The Audit will be conducted (i) by the Company or any independent or impartial inspection agents or auditors agreed between the parties; and (ii) by providing reasonable notice and during regular business hours. The request will be subject to the extent permitted under applicable law.
DETAILS OF PROCESSING ACTIVITIES
Processing carried out for the purpose of providing the services as detailed in the Agreement and specifically for the purpose of placing advertisement within the digital assets of Company’s partners (i.e., publishers, suppliers, etc.)
Categories of data and Types of Personal Data
Special categories of data
Solely for the purpose of providing the Service.