1.1. «Agreement» means the IO (Insertion Order) and these Terms & Conditions.
1.2. «Campaign" or "Advertising Campaign» means the details of the Advertising campaign, including the period of Campaign, Traffic restrictions, Hold Period, Geo Targeting, price for defined Action and other conditions agreed by the Parties.
1.3. Advertising Material (-s) – any advertising materials provided by CPI-UP for placement on the Internet.
1.4. Action – A defined specific Action made by User to be paid by CPI-UP.
1.5. «CPC» (Cost-Per-Click) is an Action which is achieved by a User clicking on a given CPI-UP’s advertising materials represented by SUPPLIER’s link.
1.6. «CPM» (Cost-Per-Mille) or CPT (Cost-Per-Thousand) - a specific kind of the Action which is achieved by one thousand impressions of Advertising Materials.
1.7. «CPI» (Cost-Per-Install) - a specific kind of the Action which is achieved by a User who installed CPI-UP's mobile application using SUPPLIER’s link.
1.8. «Effective Date» is the date the Parties sign the first IO.
1.9. «Intellectual Property Rights» means (a) any and all proprietary rights provided under, (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design patent or industrial design law, or (v) any other statutory provision or common law principle applicable to this Agreement, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
1.10. CPI-UP's Statistics shall mean online tracking system automatically generating the aggregate amount of Actions performed by Users placed on website http://cpiup.com/
1.11. SUPPLIER’s Statistics shall mean online tracking system automatically generating the aggregate amount of Actions performed by User.
1.12. Targeting shall mean the Campaign’s parameters which include but not limited Geo Targeting of placement, type of User’s devices and others.
1.13. Territory – State (-s) where advertising materials to be placed.
1.14. Fraudulent Activities («Fraud») means by way of example only and without limitation, actual or attempted: (i) providing the artificially inflated Volume by using a program, script, device, or other means; (ii) excessive page reloading; (iii) the offering or providing by Supplier or any third party of any unauthorized incentives (financial or otherwise) to end users; (ii) use of unsolicited email or inappropriate newsgroup postings to promote Web/Wap site(s); (iv) auto-spawning of browsers; (v) automatic redirecting of users; (vi) blind text links; (vii) misleading links or any other method that may lead to artificially high numbers of actions; (viii) deposits, revenues or traffic generated through illegal means; (viix) any other act by Supplier or by an end user which is understood to have been committed in bad faith against CPI-UP and/or Advertiser or to defraud CPI-UP and/or Advertiser (as determined by Advertiser and/or CPI-UP in its sole discretion) regardless of whether or not such action has resulted in any type of harm or damage to CPI-UP and/or Advertiser including without limitation payments generated on stolen credit cards, manipulation of the service or system or other promotional abuse, and unauthorized use of any third party Intellectual Property Rights (which for the avoidance of doubt includes Advertiser's Intellectual Property Rights,CPI-UP’s Intellectual Property Rights).
1.15. Advertiser – the Client of CPI-UP, wishing to get benefits from internet advertising services.
Any other definitions used in this Agreement are defined according to CPI-UP's rules and policy and then business practice in Mobile marketing services.
2. TERMS OF SERVICES
2.1. The SUPPLIER undertakes to provide internet advertising services in accordance with the terms of the IO and these Terms & Conditions by placing CPI-UP’s advertising materials provided in order to induce the defined Actions or to achieve other certain results specified in the Insertion Order. CPI-UP shall pay the SUPPLIER the remuneration for its rendered services according to the terms of this Agreement.
2.2. CPI-UP is entitled at any time upon its sole discretion to terminate or change the conditions of any Campaign in whole or in part upon sending via email the notification without compensation for any losses and damages. The SUPPLIER shall immediately stop the Campaign or change the conditions of Campaign upon receipt such notification.
2.3. The Parties agree to use the data of CPI-UP's Statistics for counting the amount of Services (Actions).
2.4. In case of discrepancies between CPI-UP’s Statistics (if any) and the SUPPLIER’s Statistics the Parties agree to consider CPI-UP’s Statistics having the prevailing force. Nevertheless the Parties agree to make reconciliation between the systems to resolve differences between tracking systems.
2.2.5. Any IO may be amended and revised, from time to time, in writing as shall be agreed by both parties (which may include, without limitation, recorded emails). Such amendment will be deemed to be a part of and incorporated into any executed IO, as applicable.
2.6. The SUPPLIER is entitled upon its sole discretion to stop the Campaign in case of any suspicions regarding to the appropriation of the Advertising Materials to applicable laws and SUPPLIER’s Policy. In any case CPI-UP’S CLIENT (ADVERTISER) is fully liable for content of provided Materials for placement.
3.1. CPI-UP shall pay remuneration to SUPPLIER for rendered services according to this Agreement.
3.2. CPI-UP shall confirm the number of payable Actions to Supplier upon the receipt of confirmation from CPI-UP's Client (Advertiser) which Actions to be confirmed and payable .CPI-UP is not obliged to pay any remuneration to the SUPPLIER till the receipt of abovementioned confirmation from CPI-UP's Client (Advertiser).
3.3. The SUPPLIER issues the invoices to CPI-UP between the 10th to 25th days of each month for rendered services in the previous month (reported period) or as otherwise agreed in writing between the SUPPLIER and CPI-UP. The Parties agree to use email for invoicing. Nevertheless the Parties agree The SUPPLIER is not entitled to issue the invoice till the receipt of confirmation from CPI-UP according to the clause 3.2.
3.4. CPI-UP shall pay the rendered services within 40 (forty) calendar days upon the receipt the invoice or as otherwise agreed in writing between the SUPPLIER and CPI-UP. Nevertheless CPI-UP is not liable for any delays in payments which are not under control of CPI-UP. In case the Advertiser (CPI-UP's CLIENT) does not make payments for rendered services in terms to CPI-UP, CPI-UP is not liable for such delays in payments to the SUPPLIER.
3.5. Each Party is solely and separately responsible for its own taxes, fees, or other levies.
3.6. SUPPLIER shall be under no obligation to achieve any minimum amount of Actions. SUPPLIER has the right to terminate the Campaign at any time, for any reason or for no reason.
3.7. CPI-UP is liable for any commission and fees of CPI-UP's bank connected with wire transfer to the SUPPLIER, and on the other side the SUPPLIER is liable for any commissions, fees of SUPPLIER’s bank, connected with receipt of such payments.
3.8. CPI-UP shall not make any payment for downloads or installations that occur after the End Date of advertising campaign.
4. REPRESENTATIONS. WARRANTIES. INDEMNITIES
Both Parties represent and warrant that it has full power, right and authority to enter into and carry out its obligations under this Agreement and that this Agreement constitutes a valid and binding obligation upon each Party, enforceable against each Party in accordance with the terms and conditions of this Agreement.
CPI-UP warrants that the Advertisement placement under this Agreement is in full compliance with law of Territory, does not violate the third parties rights, included but not limited Intellectual property Rights. Notwithstanding CPI-UP is not liable for the content of advertising materials provided for placement by the CPI-UP’s Client.
CPI-UP represents and warrants that it has the full authority and power to place the advertising materials on Internet, specified in IO.
CPI-UP represents and warrants that CPI-UP has all necessary applicable governmental approvals or licenses relating to CPI-UP’s business in which ever country CPI-UP conducts business.
The SUPPLIER hereby agrees to defend and indemnify CPI-UP against, and hold CPI-UP harmless from, any loss, claim, cost, court judgment arbitral awards liability or expense (collectively, «Claims»), including court costs and reasonable fees of attorneys and other professionals, arising out of or in connection with any third party Claim arising from any breach of this Agreement by the SUPPLIER.
THE SERVICES ARE PROVIDED «AS IS » AND THE SUPPLIER PROVIDES NO WARRANTIES FOR THE SERVICES OR THAT THE SERVICES WILL RESULT IN ADDITIONAL BUSINESS OR REVENUE TO CPI-UP OR CPI-UP’S AFFILIATES OR CPI-UP's ADVERTISERS, EITHER EXPRESSLY OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. THE SUPPLIER SPECIFICALLY DISCLAIMS, ANY IMPLIED WARRANTY OF CPI-UP ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT, WITH RESPECT TO ANY SERVICE PROVIDED HEREUNDER, TO THE EXTENT SUCH WARRANTIES ARE APPLICABLE.
IN ADDITION, THE SUPPLIER SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF ITS WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND THE SUPPLIER WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
6. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY THE LAW, CPI-UP’S TOTAL LIABILITY TO THE SUPPLIER AND ALL THIRD PARTIES, INCLUDING ATTORNEY’S FEES, IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CPI-UP TO SUPPLIER UNDER THE APPROPRIATE IO FOR MONTH PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED. IN NO CASE SHALL CPI-UP BE LIABLE TO THE SUPPLIER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED.
CPI-UP monitors traffic sources and users' behaviour, and has internal means of detecting fraud. In case of Fraudulent Activity, CPI-UP is entitled to deduct or withhold payments from the SUPPLIER , block SUPPLIER's traffic or act in any way to protect CPI-UP’s affairs, immediately and without any notice.
8.1. The Parties shall keep strictly confidential any information about the affairs of the respective other Party, its subcontractors, suppliers and customers, including but not limited to technical, commercial and financial information (e.g. information on software, interfaces, documentation, processes, technical and business know-how, prices (i) which one Party (the «Disclosing Party") may make accessible to the respective other Party (the "Receiving Party") or of which the Receiving Party becomes aware in performing this Agreement (collectively the "Disclosure") and (ii) which is either marked as confidential (or if disclosed orally confirmed in writing or by email as being confidential within seven days upon its Disclosure) or the confidential nature of which is obvious to a prudent business person (jointly the "Confidential Information»).
8.2. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to third parties without the prior written consent of the Disclosing Party. The Parties shall take adequate and customary measures to protect the Confidential Information against unauthorized disclosure, reproduction and use. The Receiving Party shall disclose the Confidential Information only to such of its officers, directors, employees, subcontractors, suppliers and external advisors (jointly the «Associates ») if and to the extent that their knowledge of the Confidential Information is required for the performance of the Agreement, and provided that the Associates are bound by the confidentiality obligations with regard to the Confidential Information of the Disclosing Party at last as restrictive as set out in this Article.
8.3. Upon the Disclosing Party’s request or the termination of the Agreement for whatever reason, the Receiving Party shall immediately return to the Disclosing Party all documents or media containing Confidential Information as well as all copies or excerpts of same; should it not be physically possible to return the Confidential Information (e.g. digital copies on the Receiving Party’s servers), then the Receiving Party shall delete the Confidential Information from all of its systems and networks and to confirm the deletion in writing to the Disclosing Party.
8.4. The Receiving Party and its Associates shall not use, directly or indirectly, in whole or in part any Confidential Information of the Disclosing Party for any purpose other than the performance of the Insertion Orders without the prior written consent of the Disclosing Party.
8.5. All Confidential Information (including all material and documents containing Confidential Information) shall remain the property of the Disclosing Party. The Receiving Party shall not acquire any rights in the Confidential Information of the Disclosing Party.
8.6. The confidentiality obligations of the Parties set out in this Article shall not apply to any information of which the Receiving Party can prove that it:
(i) was already in the possession of the Receiving Party (as evidenced by its written records) prior to its Disclosure under the Insertion Order without any obligation of confidentiality or restriction on use by the Receiving Party; or
(ii) is or comes into the public domain or otherwise ceases to be of a confidential nature other than as a result of an act or omission hereunder by the Receiving Party; or
(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, and that such other source is not in breach of a confidentiality agreement with the Disclosing Party; or
(iv) is independently generated by the Receiving Party’s Associates who have not had access to the Confidential Information; or
(v) is required to be disclosed by any applicable law, order of a court of competent jurisdiction or order of competent public authority or agency provided that prior to such disclosure the Party required to disclose shall consult with the other as to the proposed form, nature and purpose of the disclosure (if legally possible).
8.7. The obligations imposed on each Party under this Article shall apply during the term of the Insertion Order, and shall survive its expiration or termination (as the case may be).
9.1. Each Party may terminate the Agreement upon a written notice sent to the other Party via email within forty eight (48) hours prior to the date of termination of the Agreement. However, any termination shall not relieve the Parties of any obligation accruing prior to such termination. Except as otherwise provided herein, termination of this Agreement shall terminate all further rights and obligations of the SUPPLIER and CPI-UP hereunder, provided that if such termination is based on a breach by one of the parties hereto, the other (ie innocent) party shall be entitled to pursue any and all rights it has to redress such breach in law or equity.
9.2. In case CPI-UP terminates the IO the SUPPLIER shall refund unspent portion of prepayment (if CPI-UP have made such prepayment) for advertising services during 5 (five) banking days upon such termination by wire transfer. The amount to be refund is counting by CPI-UP's statistics.
10.1. Severability. If any provision of this Agreement is or becomes wholly or partly void or unenforceable or if this Agreement contains any omissions, the validity of the remaining provisions of this Agreement shall remain unaffected. The Parties shall replace any invalid or unenforceable provision and remove any omission by a valid and enforceable provision that the Parties would have agreed on in good faith and taking into consideration the purpose of the agreement if they had been aware of the invalid or unenforceable provision or the omission when entering into the Agreement.
10.2. Governing Law. This Agreement and any transaction between the SUPPLIER and CPI-UP hereunder shall be governed by, construed and interpreted in accordance with the principles of Common law. The parties hereunder consent to the exclusive jurisdiction of Arbitrage in Ireland. Any controversy or claim arising out of or relating to this Agreement shall be resolved by arbitration in Ireland in accordance with the rules of the Arbitration Act, 2010 («the 2010 Act»).The arbitration will be adjudicated by a professionally qualified independent arbitrator agreed by both Parties. The proceedings of the arbitration will be conducted in the English language. The decision or award by the arbitrator(s) shall be final and binding upon the Parties hereto.
10.3. Entire Agreement. . This Agreement including all IOs constitutes the entire agreement between the Parties concerning the subject matter hereof. This Agreement replaces and fully supersedes any prior verbal or written understandings, communications, or representations between the Parties. This Agreement shall not be modified except by a subsequently dated written or electronic amendment signed or otherwise executed on behalf of SUPPLIER and CPI-UP by their duly authorized representatives.
10.4. Independent Contractors. The Parties are independent contractors, and neither party will be deemed to be an employee, agent, partner, or legal representative of the other. Neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other.
10.5. Waiver. The failure of any party hereunder to enforce the strict performance of any terms or provisions of this Agreement shall not be construed as a waiver or relinquishment for the future of any such terms or provisions; such terms and provisions shall continue and remain in full force and effect. No waiver shall be deemed to have been made unless the waiver is made in writing and signed by the party making the waiver.
10.6. Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
10.7. Assignment. You may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of CPI-UP. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
10.8. Notices. Any notice or other communication given or made under or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered personally or sent by prepaid first class post or 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 as follows:
10.8.a. if personally delivered, upon delivery at the address of the relevant party to this Agreement;
10.8.b. if sent by first class post, 5 business days after the date of posting;
10.8.c. if sent by air mail, 5 business days after the date of posting; and
10.8.d. if sent by email, upon successful transmission of the email, provided that if, in accordance with the above provision, any such notice, demand or other communication would otherwise be deemed to be given or made after 5.00 p.m. such notice, demand or other communication shall be deemed to be given or made at 9.00 a.m. on the next business day.