Publisher Terms And Conditions – 2019

These Terms and Conditions apply to your participation with Traffic Panda’s Affiliate Program. By signing up as a Publisher on our website you agree to be bound by these Terms and Conditions. In order to become a Publisher, you must accurately complete the signup form (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. In order to be eligible for Publisher approval, your websites and/or ads cannot infringe on any personal, Intellectual Property or copyrights including but not limited to racial, ethnic, political, hate-mongering or otherwise objectionable content, gratuitous violence or profanity; cannot promote illegal substances or activities, or any questionable or controversial subject matter. After we review your application, we will notify you of your acceptance or rejection to our Affiliate Program. We may accept or reject your application at our sole discretion for any reason.

1. APPLICABILITY
Publishers performance of its obligations under this Agreement;
“Deliverables” means the type(s) and amount(s) of results to be delivered (e.g. CPA. CPC, CPL and/or CPM) by Publisher to Traffic Panda, as set forth in an IO. “Effective Date” means the date stated under such
1.1. These terms and conditions are applicable to all requests, orders, offers and agreements related to Traffic Panda.
1.2. These conditions shall only be deviated from by
agreement in writing, subject to Traffic Panda reserving the right to change these terms and conditions upon prior written notice of 2 (two) weeks.
1.3. Any general terms and conditions of the Party dealing with Traffic Panda, howsoever incorporated, shall be excluded.
1.4. The Agreement shall only be binding on Traffic Panda when signed by the authorized signatory individual(s).
heading in the IO, in absence of which it shall be the date of your acceptance as a Publisher in the Traffic Panda Affiliate Program.
“End Date” means the date stated under such heading in the IO;
“IO” means insertion order executed between Parties referencing this Agreement.
“Intellectual Property Rights” means any patents, trade marks, service marks, registered designs (including applications for any of the foregoing), copyright in all works created under this Agreement on behalf of Traffic Panda and eligible for copyright, including, without limitation, literary or artistic works, or software programs of which it may be the author and which were or are created, compiled, devised or brought into being during the course and scope of Publishers work for Traffic Panda, design rights, know-how, trade and business names and any other similar protected rights in any country;
“Party” means either the Traffic Panda or Publisher severally and “Parties” means both the Traffic Panda and the Publisher jointly;
“Publisher” means the entity as referred to as such in the IO
“Territory” means the (parts of) countries referred to as such in the IO;

2. DEFINITIONS
“Ads” means advertisements, including the artwork, banners or graphics, provided by Traffic Panda, including but not limited to any advertisements provided by Traffic Panda on behalf of any third party client of Traffic Panda, as may be further defined in an IO.
“Affiliate” means any third party under the effective control of a Party to this Agreement or under common control of a Party to this Agreement. Effective control in the foregoing sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies, or actions of an entity through the exercise of ownership or voting rights;
This “Agreement” means these Terms and Conditions and the applicable IO;
“Campaign” means the actions of Publisher in fulfilling its obligations to Traffic Panda under this Agreement; “Channel(s)” means the media as referred to in the IO; “CPA” or “Cost Per Acquisition” means the fee payable by Traffic Panda to Publisher for each completed and valid sale of Traffic Panda’s service or product to a customer resulting from Publishers performance of its obligations under this Agreement;
“CPC” or “Cost Per Click” means the fee payable by Traffic

3. OBLIGATIONS
3.1. Scope of the Agreement: From time to time Parties may negotiate IO’s under which Publisher shall deliver Ad(s) to Channel(s) targeting only the Territory for the benefit of Traffic Panda. Each IO shall specify: (a) the Deliverables; (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent (if applicable),
Panda to Publisher for each valid customer click on Traffic Panda’s Ad resulting from Publishers performance of its obligations under this Agreement;
“CPL” or “Cost Per Lead” means the fee payable by Traffic Panda to Publisher for each valid customer lead provided to Traffic Panda resulting from Publishers performance of its obligations under this Agreement;
“CPM” or “Cost Per Mille” means the fee payable by Traffic Panda to Publisher for each valid impression of Traffic Panda’s Ad to a potential customer resulting from
(d) the start and end dates of the Campaign.
3.2. Ads: Publisher has no right to change, make additions to or derive from Ads as provided by Traffic Panda.
3.3. Reporting: Unless otherwise agreed in the IO Traffic Panda shall report the amount of Deliverables to Publisher within 14 (fourteen) days of the end of each calendar month. Such reported amounts shall be conclusive between Parties unless Publisher can provide incontestable evidence of its incorrectness.
Publisher Terms And Conditions – 2019
3.4. Change procedure: Publisher shall comply with any request of Traffic Panda to make changes to the Campaign within 48 (forty eight) hours notice thereto:
1. a) providing that the change requested is of a nature that it will not cause Publisher more than nominal inconvenience and expense to implement; or
2. b) where changes requested by Traffic Panda will cause more than nominal inconvenience and expense Publisher will inform Traffic Panda of this fact within 24 (twenty four) hours of such notice for change and provide Traffic Panda with an estimate of the work, time, and cost required to implement the changes. Traffic Panda may accept such additional cost by issuing an IO.
3.5. Fee changes: Traffic Panda may alter the fee payable
for the Deliverables by providing Publisher 2 (two) business days notice of the new prices. Publisher may either:
1. a) accept the prices; or
2. b) terminate the Agreement before the new prices
apply; or
3. c) enter into negotiations with Traffic Panda to
agree on alternative pricing, providing, however, that the new prices will apply from the date stipulated by the Traffic Panda.

4. PAYMENT
4.1. Should Traffic Panda reasonably believe that Publisher has violated this Agreement, has failed to fulfill its responsibilities, or has committed any fraudulent activity, Traffic Panda shall immediately notify Publisher, in writing, thereof. If, at the conclusion of a reasonably diligent investigation, Traffic Panda has provided satisfactory written evidence that Publisher has, in fact, engaged in fraud and/or breached this Agreement, Traffic Panda reserves the right to withhold payment and take appropriate legal action. Publisher expressly agrees to cooperate with Traffic Panda during the course of and in furtherance of such an investigation and to provide Traffic Panda with any information which may assist therein, to the extent that such information is not privileged, confidential, and/or proprietary to Publisher. Traffic Panda must notify Publisher of any alleged breach or fraudulent activity within fifteen (15) days of discovery. 4.2. All stated fees are exclusive of VAT and/or any other sales related taxes.
4.3. Publisher may invoice Traffic Panda on a monthly basis in arrears or, when this Agreement is terminated, at
such date of rightful termination. Traffic Panda shall pay undisputed invoices within 30 (thirty) days of receipt, to the bank account as stipulated therein.
4.4. Publisher shall send invoices to Traffic Panda’s name as stipulated in the IO to finance@trafficpanda.com.
4.5. In case parties agree that Traffic Panda shall pay for the Deliverables in advance, and such paid fees are related to the quantity of Deliverables, then Traffic Panda may, as necessary, issue a corrective invoice to Publisher for fees unduly paid, and Publisher shall return such overpaid amount within 30 (thirty) days of invoice date.

5. CONFIDENTIALITY
5.1. Parties agree that any and all information, as present now or in the future, which is or may be a trade secret or of a confidential nature (in whatever media) regarding the operations, products, finance, marketing, customers, administration, maintenance, technology, research and development, future inventions and policies of Traffic Panda and its Affiliates, including the existence and contents of this Agreement, and all notes, memoranda, records and writings made by Publisher relating to the Campaign, shall be confidential information (together “Confidential Information”). Publisher shall treat Confidential Information with the strictest confidence and secrecy and none of the Confidential Information
shall be disclosed by Publisher to any third party or used for purposes other than those of providing the Campaign to Traffic Panda.
5.2. The restrictions in sub-clause 5.1 above do not apply to Confidential Information:
1. a) that is, or has, after disclosure to Publisher, entered into the public domain otherwise than as a result of a breach of confidentiality of Publisher; or
2. b) that is properly and lawfully in the possession of Publisher prior to the time that it was disclosed by or acquired from, and was not acquired in any way directly or indirectly from, Traffic Panda and/or its Affiliates or any of its or their respective directors, officers, employees or advisers (as evidenced by the written records or such person or persons) and provided that such information is not known to be subject to any other duty of confidentiality owed to or by Traffic Panda and/or its Affiliates; or
3. c) the disclosure of which is required by law or the rules of any applicable regulatory organization provided that, in such case, disclosure shall only be made to the extent reasonably necessary to comply with relevant law or rule and Traffic Panda shall be informed of the requirement such that Traffic Panda may apply for an injunction to prevent its disclosure; or
4. d) that Traffic Panda has authorized the Publisher in writing that the Confidential Information may be made public by Publisher.
5.3. The provisions of this clause 5 shall survive the termination of this Agreement and remain in force in perpetuity.

6. LIABILITIES & INDEMNIFICATION
6.1. Publisher assumes full responsibility for the performance and good working of the Campaign. In the event of a breakdown of the service offering, Publisher will take all reasonable steps to bring the equipment and Campaign back into working.
6.2. Except in the case of intend, willful misconduct or non compliance with any of the terms of the Annex to this Agreement of Publisher, Publisher shall not be liable for any indirect, consequential, incidental or special damage,

Publisher Terms And Conditions – 2019
cost, loss or expense of any nature suffered by Traffic Panda in the performance of the Campaign.
6.3. Traffic Panda shall not be liable for any direct, indirect, consequential, incidental or special damage, cost, loss or expense of any nature suffered by Publisher in the execution of this Agreement to the maximum extend allowed by the law. Notwithstanding the foregoing, Traffic Panda’s liability for any and all claims arising under this Agreement shall in aggregate not exceed the fees paid under this Agreement in the preceding 12 (twelve) months.

7. REPRESENTATIONS AND WARRANTIES
misrepresentative or is likely to mislead the recipient about the content of the e-mail; (c) without a clear and conspicuous notice of the opportunity to decline to receive further communications; or (d) with any content that (i) infringes or violates any intellectual, proprietary or privacy rights; or (ii) is misrepresentative, defamatory or violates any applicable law or regulation as set out in section
7.4. Publisher also represents and warrants that it will not transmit an e-mail to any individual that has requested not to receive any e-mails.
7.5.Traffic Panda hereby represents and warrant to Publisher that Traffic Panda: (i) has the power and authority to enter into and perform its obligations according to the terms of this Agreement; and (ii) has no restrictions that would impair its ability to perform its
obligations contemplated by this Agreement.
7.6. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN BY EITHER PARTY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, ARE SPECIFICALLY EXCLUDED BY THE PARTIES TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8. TERM & TERMINATION
8.1. Term: This Agreement will commence at the Effective Date and continue in full force and effect until the End Date in absence of which the Agreement shall terminate 6 (six) months after the Effective Date without any additional notice thereto being required, and unless terminated earlier in accordance with this Agreement. 8.2. Termination for Convenience: Traffic Panda may terminate this Agreement for convenience on providing Publisher with 30 days prior written notice.
8.3. Termination of a Campaign: Traffic Panda may terminate or suspend any Campaign upon providing to Publisher notice in accordance with the Agreed Out period specified in the IO. A notice period of 24 hours applies if no IO is signed or the Out period is not specified. 8.4. Termination for Cause: Each Party may terminate this Agreement with immediate effect by written notice to the other Party where the other Party is in breach of a material term of this Agreement, has been served with a notice to remedy this breach, and has not affected a
remedy to this breach within 14 (fourteen) days.
8.5. Termination for Regulatory Change: Traffic Panda may terminate this Agreement by written notice and with immediate effect and with no penalty if a governmental or regulatory change significantly impacts the ability of Traffic Panda to provide services or materials to customers responding to Ads delivered by Publisher.
8.6. Consequences of Termination: Within 48 (forty eight) hours of termination of the Agreement Publisher shall have any and all links to Ads removed from the Channel(s). The clauses as listed hereafter shall survive
7.1. To the extent that Publisher is an agency, such agency represents that it has the authority to bind, and has bound, the publishers it represents to these Terms and Agreement, including the representation and warranties.
7.2 Publisher hereby represents and warrants to Traffic Panda that: (i) Publisher has the power and authority to enter into and perform its obligations according to the terms of this Agreement; (ii) Publisher has no restrictions that would impair its ability to perform its obligations and grant all rights contemplated by this Agreement; (iii) Publisher has not and will not enter into any agreement that is inconsistent with its obligations hereunder; (iv) in providing its obligations under this agreement it will attain standards of care and skill as high as any currently available in the same industry as that of Publisher and that all Publishers’ personnel, agents and sub-contractors will have the experience and qualification appropriate for any tasks they perform hereunder; and (v) Publisher will act in accordance with all relevant laws and binding codes of conduct applicable to the Campaign.
7.2. Without limiting the generality of the foregoing, for Campaigns using (e-mail) database marketing as Channel, Publisher represents and warrants that all personal data has been collected and processed in accordance with any applicable Privacy Acts, laws and regulations and that all data subjects within the EU have given their explicit consent as defined in EU Directive 2016/679 (GDPR) for receiving communication for commercial purposes in accordance with the provisions of this Agreement and the IO(s) and agrees to defend, indemnify and hold Traffic Panda harmless from any liability, claims, damages, fines, penalties, costs, demands and expenses (including costs of defense, settlement and reasonable legal fees) arising from or related to any violation in this respect. Furthermore the Publisher warrants that it will (i) Ensure a functional unsubscribe link is included in all email communication; (ii) Make Sender ID clearly visible in all communications; (iii) Ensure that all relevant publisher information and business registration details are included in all email communications; (iiii) Comply with any requests from consumers who want to exercise their rights as stipulated under GDPR guidelines.
7.3. Publisher agrees not to transmit any e-mail: (a) with a “from line” that is materially false or misleading and does not accurately identify the person sending the e- mail; (b) with a subject line that is misleading, false or


Publisher Terms And Conditions – 2019
the termination or expiration of this Agreement: 3.3, 4, 5, 6, 8.6, 9 and 10.

9. NON-SOLICITATION
9.1: Publisher agrees and acknowledges that Advertiser has proprietary relationships with other publishers, advertisers, and third parties that participate in Advertiser’s Network. Publisher shall not intentionally circumvent Advertiser’s relationship with such parties, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by publishers in Advertiser’s Network for any third party publisher, advertiser, or other third party that Publisher knows or reasonably should know has a
relationship with Advertiser or participates in Advertiser’s Network. Theforegoingprohibitionshallapplyduringthe term of this Agreement (and any IO) and for the six (6) month period following termination or expiration of this Agreement. Notwithstandingtheforegoing,totheextent that Publisher can show that any such publisher, advertiser, or other third party already obtained such services from Publisher prior to the date of this Agreement, then Publisher shall not be prohibited from continuing such relationship.

10. MISCELLANEOUS
10.1. No Exclusivity. Each Party shall carry out its commitments under this Agreement in a manner that reflects favorably upon the good name and goodwill of the other Party. The Parties agree that the commitments under this Agreement are not exclusive and that either Party may enter into similar agreements with third parties, including either Party’s competitors.
10.2. Agency, Partnership, and Joint Venture Excluded: Nothing in this Agreement shall create a relationship between the Parties of agency, partnership, or joint venture.
10.3. Force Majeure: Neither Party shall be held responsible or liable for any losses, direct or indirect damages, costs and/or expense arising out of any delay or failure in performance of any part of this Agreement due to any act of God, act of governmental authority, act of the public enemy or due to war, riot, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack or shortage of electrical power, failure of performance by any third party hosting service or equipment provided or maintained by others,
including general performance of the Internet itself, or any other cause beyond the reasonable control of the Party delayed.
10.4. Entire Agreement: This Agreement constitutes the entire agreement between the Parties, and merges all
prior and contemporaneous communications with respect to the agreement between the Parties.
10.5. Severability/Waiver: If any provision of this Agreement proves to be or becomes invalid or unenforceable under any of the applicable laws, then such provision shall be deemed modified to the extent necessary to render such provision valid and enforceable; if the provision may not be so altered, it shall be severed and the remainder of Agreement shall remain in full force and effect. No waiver of any breach of provision of this Agreement shall constitute a waiver of any other breach or any provision hereof, and no waiver shall be effective unless made in writing signed by an authorized representative of the waiving party.
10.6. Rights of third parties: Nothing in this Agreement confers or purports to confer on a third party any benefit
or any right to enforce a term of this Agreement.
10.7. Assignment and Subcontracting: No rights or obligations arising under this Agreement may be assigned, transferred, subcontracted, or otherwise disposed of without the prior written consent of the Parties. Notwithstanding the foregoing, Traffic Panda may assign the rights and obligations arising under this Agreement to its Affiliates.
10.8. Independent contractor: Traffic Panda’s relationship with Publisher will be that of an independent contractor and Publisher shall be solely responsible for determining the method, details and means of performing the Campaign.
10.9. Notices: All notices, authorizations and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the mail, postage prepaid, certified or registered, return receipt as requested; or (ii) sent by air express courier (e.g. DHL) charges prepaid, return receipt requested; and addressed as set forth in the IO under the heading “Notices”, or in the absence thereof at the address of the party provided therein. Alternatively, regarding the scope of the Campaign, notices shall also be deemed given when sent by e-mail with a personalized acknowledgement of receipt. For avoidance of doubt, invoices addressed to Traffic Panda shall be sent to the address as provided in clause 4.4 above.
10.10 Traffic Panda may transfer, assign or novate part or all of these Terms and Conditions to any company in respect of any proposed merger, acquisition, asset purchase, debt or equity financing, factoring arrangement or change of control of Traffic Panda, without the consent of Publisher.
10.11. Applicable law and dispute solution: This
Agreement and any disputes pertaining to it will be governed and construed in accordance with laws of the Netherlands and Parties submit to the jurisdiction of the courts of Amsterdam, the Netherlands.