General terms and conditions
PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY BEFORE REGISTERING FOR THE SERVICE OFFERED BY [YOC MOBILE ADVERTISING GMBH]. REGISTERING FOR, OR USING, THE YOC MOBILE ADVERTISING GMBH SERVICE INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR, OR USE, THE YOC MOBILE ADVERTISING GMBH SERVICE.
1. Scope of the Agreement
1.1 These terms and conditions are incorporated into every Contract entered into between YOC Mobile Advertising GmbH, of Karl-Liebknecht-Straße 1, 10178 Berlin, Germany (YOC MOBILE ADVERTISING) and the Publisher and/or the Advertiser.
1.2 These terms and conditions apply to all the Services offered or provided by YOC Mobile Advertising for Publishers. YOC Mobile Advertising GmbH will provide the Services only on the basis of these terms and conditions. These terms and conditions shall apply exclusively and shall also apply if YOC Mobile Advertising provide Services despite of knowledge of different or contrary terms, custom, practice or course of dealing. YOC Mobile Advertising objects to any counter confirmation, counter offer or any other reference of the contractual partner to its terms and conditions.
1.3 Differing or contrary terms and conditions shall not apply, except if expressly agreed upon writing. The Confirmation to the contrary terms and conditions
1.4 Any amendments or additions to this contract must be in writing. Notices delivered via facsimile or other means of electronic transmission shall satisfy the writing requirement. The same shall apply to any other declarations of the parties that are necessary for the substantiation, assertion, or exercise of their rights, in particular notice of defects, setting of deadlines, or unilateral notices of termination.
1.5 For the purposes of interpreting this agreement the following definitions shall be used:
Advertiser- An Advertiser is a party, which wishes to advertise on the Publisher s mobile and digital media using the YOC Mobile Advertising Platform in accordance with these terms and conditions.
Advertising Materials- Every form of mobile advertising content material (e.g. banner, text, flash animation and others) of the Publisher on which the Advertisers advert may appear.
Clients- Advertisers and publishers will be called as clients in these terms and conditions.
Contract – the contract between YOC Mobile Advertising GmbH and the Publisher (incorporating these terms and conditions) for the provision of the Services.
Mobile Advertising Sites means the websites, mobile or digital media or other applications containing the Advertising Materials
Platform - The online platform self service marketplace which enables an Advertiser to create and manage campaigns on the Advertising Materials of Mobile Advertising Sites supplied by the Publisher.
Publisher - A Publisher is a party who is the, owner or operator of the Mobile Advertising Sites on which advertising space is made available to YOC Mobile Advertising in accordance with these terms and conditions and then brokered to Advertisers by YOC Mobile Advertising.
Services- The use of the Publisher s sites to host Advertising Materials via the YOC Mobile Advertising Platform.
1.6. These terms and conditions apply solely to business persons (as defined in Section 310 para. 1 and Section 14 of the German Civil Code (BGB), to public law entities and to funds created pursuant to public law. These terms and conditions shall not apply to consumers as defined by Section 13 of the German Civil Code.”
2. Registration
2.1. To use the platform of YOC Mobile Advertising, the client must register on the form provided. With the registration the client confirms these terms and conditions.
2.2. The clients provide true and complete information. To keep the information true and complete, the client must update the information promptly.
3. Formation of the contract
3.1 The Contracts will be concluded separately between YOC Mobile Advertising and the publisher and between YOC Mobile Advertising and the advertiser. No contract will be entered into directly between the Publisher and an Advertiser.
3.2 Submission of the Publisher Registration form constitutes an offer by the Publisher to provide the Services subject to these terms and conditions. Submission of the Registration form constitutes an offer by the Advertiser to purchase the Services subject to these terms and conditions.
3.3. If YOC Mobile Advertising accepts the offer, it will send the confirmation by e-mail. No offer shall be accepted until YOC Mobile Advertising issues a registration email. The client gets access to the YOC Mobile Advertising network by clicking the activation link in the confirmation e-mail and entering the access data. The client must be a legal person or a natural person of full legal capacity. YOC Mobile Advertising has the right to reject any offer the client without giving any reasons for its refusal.
3.4. YOC Mobile Advertising facilitates the sale and purchase of the Publisher s Mobile Advertising Site through the YOC Mobile Advertising Platform.
4. Data protection
4.1. YOC Mobile Advertising is entitled to collect, process and use personal data exclusively in compliance with the applicable statutory provisions governing the protection of data. That is necessary in order to enable participation in the YOC Mobile Advertising Network. These are information and data requested at registration as well as data accruing in the course of participation in the Network.
4.2. YOC Mobile Advertising will use the contact data also to contact Publishers by e-mail in connection with their network-participation of YOC Mobile Advertising. The use of this data by clients for other purposes, in particular commercial purposes, is prohibited. YOC Mobile Advertising reserves the right to use and process data and information for another purpose only if the client has expressly agreed to this being done or it is within legal within the statutory provisions governing the protection of data.
5. The Advertiser
5.1. The Advertiser shall produce content including (without limitation) text link banners, video and graphics for display on mobile display devices on which the Publishers sites are made available.
5.2 All Information provided by the Advertiser in connection with the Advertising Material created by the Advertiser should be complete, accurate and up to date. If any such information provided should be or become inaccurate the Advertiser shall register any required change on the online-system of YOC Mobile Advertising as soon as reasonably possible and in any event no later than seven days after it becomes aware of such inaccuracy.
5.3. The Advertiser is responsible for ensuring that it shall at all times in connection with its use of the Platform and the Services, and that all Advertising Material supplied by it, shall comply with all relevant applicable legal obligations (including without limitation all statues, regulations and orders) and all applicable codes of practice, guidelines and principles.
5.4 Without prejudice to the obligations contained in clause 5.3 the Advertiser shall at all times comply with the YOC Mobile Advertising content guidelines.
5.5 The Advertiser must not upload onto the Platform any Advertising Material which:
5.5.1 may harm the goodwill or reputation of YOC Mobile Advertising or the Publisher or bring YOC Mobile Advertising or the Publisher into disrepute including any material which is indecent, obscene, illegal, defamatory, discriminatory, misleading, harmful or offensive or is otherwise in violation of any laws or regulations to which YOC Mobile Advertsing, or the Publisher is subject or any right of any third party. If YOC Mobile Advertising in its absolute discretion, considers any Advertising Material to be in breach of this clause it may in its absolute discretion remove any such Advertising Material from the platform forthwith
5.5.2 infringes the intellectual property rights or any other rights of any third party (in particular copyrights, trademark rights, personal rights or similar rights).
5.6. The Advertiser is fully responsible for the content of the Advertising Material provided to YOC Mobile Advertising. The Advertiser guarantees that he is duly authorised to use all the company and product names, trademarks, brands, logos and pictures (hereinafter referred to as “Images”) contained in the advertising material and grants YOC Mobile Advertising the right to use these Images within the scope of delivering the service.
5.7. The Advertiser warrants and undertakes that none of the content or any other data which it shall upload onto the Platform shall include any computer virus, routine, worm, time bomb, trojan or any other such device or mechanism of misuse.
5.8. The Advertiser shall indemnify YOC Mobile Advertising against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by YOC Mobile Advertising arising out of or in connection with any breach by the Advertiser of clauses 5.3 -5.7 (inclusive).
5.9. YOC Mobile Advertising can use the respective names and logos of the contractual party as a reference for the advertising purpose in all media.
5.10. The Advertiser shall communicate exclusively through YOC Mobile Advertising and shall make no direct contact with any Publishers.
5.11. For the period of providing the Services the Advertiser grants YOC Mobile Advertising all necessary rights of use pertaining to the Advertising Materials.
5.12. By supplying the content for the Advertising Material to YOC Mobile Advertising the Advertiser grants the Publisher the right of use for the advertising content for the time of the agreed advertising period.
6. The Publisher
6.1 Publisher has to direct to Company and not to any advertiser or publisher, as the case may be, all communications regarding any matter arising out of Publishers use of the Services.
6.2 The Publisher shall not take any actions which might damage the good name and/or business of YOC Mobile Advertising, or any Advertisers. The Publisher shall be responsible for ensuring the availability, functionality and content of the Publisher s Mobile Advertising Sites at all times.
6.3 Automatic generation of views, clicks, leads or sales by means of technical appliances and similar methods resembling fraud is forbidden. YOC Mobile Advertising has developed anti-fraud systems, which it shall use to regularly check the traffic of the Publisher. Accounts belonging to Publishers, who engage in prohibited or fraudulent activities will be permanently removed from the YOC Mobile Advertising network.
6.4 No remuneration will be paid to Publishers in respect of fraudulent or invalid impressions or clicks. If after payment has been made to the Publisher it is subsequently discovered that any element of the payment related to prohibited or fraudulent activities, YOC Mobile Advertising shall deduct the remuneration paid in respect of any such prohibited or fraudulent activities from future payments or to reclaim any sums unduly paid. Any such deduction or repayment shall be without prejudice to any claim which YOC Mobile Advertising may have against the Publisher in respect of such prohibited or fraudulent activities.
6.5 Any misuse of the ad-code on mobile advertising space not meant for this purpose is forbidden.
6.6 The Publisher is not allowed to modify or change the ad-code provided by YOC Mobile Advertising or to delete or in any way modify the tracking tags that are included in the code.
6.7 The Publisher undertakes to implement the ad-code only in those Mobile Advertising Sites and Advertising Materials, which have been specifically cleared by YOC Mobile Advertising.
6.8 Any infringement of the obligations underlying these Terms and Conditions, breach of contract or misuse will lead to the blocking of the Publishers accounts immediately. In such a case the Publisher shall after receiving a notice remove any advertising from the relevant Mobile Advertising Sites within 24 hours if it is called upon to do so by YOC Mobile Advertising. The Publisher is enabled to provide a statement and evidence within one month that the chosen form of advertising has been in accordance with these Terms and Conditions.
6.9 The Publisher warrants and undertakes that every element of the Publishers Mobile Advertising Sites together with the method of publication of the Advertiser s adverts on the Mobile Advertising Sites of the Publisher will in each case:
a) comply with and shall not infringe all relevant statutes, regulations and other legal requirements and all relevant codes of practice, guidelines, principles etc applicable to the website;
b) not display any defamatory, libellous immoral, illegal, defamatory, misleading, harmful or offensive content or any content which is otherwise in violation of any laws or regulations;
c) not promote, portray or endorse violence, racism, or discrimination against any sector of society;
c) not display any pornographic, indecent or obscene content;
d) not infringe the intellectual property rights (including ,without limitation copyright, trade marks, design right, database rights or patents) of any third parties;
e) not infringe any protected rights of third parties, including (without limitation) business secrets or confidentiality agreements;
f) not include anything which may damage the good name or the esteem of the YOC Mobile Advertising brand or its business operations and may in the event of any breach of this clause in its absolute discretion terminate the Contract with any Publisher forthwith.
6.10 The Publisher warrants and undertakes that it has the proper authorisation for access to the Mobile Advertising Sites and Advertising Materials which it registers with YOC Mobile Advertising, and that it is duly authorised to implement the ad-code.
6.11 Each of the Publisher s media upon which adverts are to appear must be enabled by YOC Mobile Advertising. YOC Mobile Advertising reserves the right to reject any proposed media of the Advertiser.
6.12 Advertising must not be placed on empty sites without site content, pure link lists or media that have not obtained prior acceptance.
6.13 The Publisher shall at all times comply with the YOC Mobile Advertising Publishing guidelines.
6.14 For the purpose of control and optimisation of quality standards (in particular, without limitation, copyrights, trademark rights, personal rights or similar rights) YOC Mobile Advertising may employ the necessary, appropriate number of ad-impressions on the registered media freely and exclusively.
6.15 The Publisher shall indemnify YOC Mobile Advertising against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by YOC Mobile Advertising arising out of or in connection with any claim brought or threatened against YOC Mobile Advertising by any third party (including any claim brought by an Advertiser) arising out of any breach by the Publisher of the provisions contained in this clause 3.
7. Liability
7.1. YOC Mobile Advertising shall be held without liability for any damages, losses or other failures caused
a) by the content of third party websites; or
b) by a malfunction of software or hardware of participants, or
c) by their incompatibility with the platform of YOC Mobile Advertising, or
d) by lack of availability or technical problems with the internet, or
e) by false client data.
7.2. The liability of YOC Mobile Advertising shall be limited to grossly negligent and intentional behaviour. In any intentional or negligent breach of essential contractual obligations shall be liability. The liability for damages regarding the breach of essential contractual obligations is limited to the amount of the typically foreseeable damage or loss. There is no liability for the slightly negligent breach of accessory contractual obligations.
7.3. The above exclusions and limitations of liability do not apply to claims for damages based on the intentional or negligent injury of life, body and health. Additionally, the liability limitations do not apply to claims arising from mandatory statutory liability, especially under product liability law.
7.4 Should the Publisher suffer loss or damage because of misconduct on the part of the Advertiser, YOC Mobile Advertising shall subject to being fully indemnified by the Publisher in respect of all costs (including its own internal costs and legal fees) and liabilities incurred by YOC Mobile Advertising in respect of the same take any reasonable action requested by the Publisher on behalf of the Publisher in respect of that misconduct by the Advertiser. The obligation on the Publisher to indemnify YOC Mobile Advertising in respect of all cost and liabilities shall be without prejudice to the success or otherwise of any action taken by YOC Mobile Advertising on behalf of the Publisher. If any sum is recovered from the Advertiser in respect of the relevant misconduct then any surplus after deducting all such costs and liabilities of YOC Mobile Advertising in connection with such recovery from the Advertiser shall be paid to the Publisher.
7.5. YOC Mobile Advertising cannot guarantee a minimal number of impressions and/or clicks to the Publisher.
7.6. YOC Mobile Advertising shall grant the Publisher password protected access to an online information reporting system, through which the Publisher can view the remuneration earned through the use of the Publishers Mobile Advertising Site. The Publisher shall use such information reporting system only for the purposes for which it is made available to him and shall only communicate its password to such of its employee as require access to the reporting system in connection with this Contract.
8. Remuneration
8.1. YOC Mobile Advertising will pay the Publisher a 60% share of sums received by YOC Mobile Advertising from the Advertiser in respect of the turnover generated by the Mobile Advertising Sites made available by that Advertiser, after deducting any possible agency commissions, discounts, charges, taxes and refunds (net sales). YOC Mobile Advertising does not guarantee turnover success.
8.2. The publisher is entitled to payment under following accumulative requirements:
a) a successful business transaction between a customer and an Advertiser is caused by the Advertising space provided by the Publisher;
b) the business transaction has been recorded by YOC Advertising Mobile;
c) there exists no fraud or other malpractice.
8.3 The amount of remuneration earned through advertising by a Publisher shall be calculated by YOC Mobile Advertising at the end of each calendar month will be paid out after 40 days from the end of the calendar month in each case based on the amounts which have been received by YOC Mobile Advertising from the Advertiser. Payment will be made only to such bank account as has been nominated by the Publisher for such purposes. The Publisher will cover all the charges connected with such payment (e.g. charged by the bank or online settlement systems).
8.4. If the remuneration due to the Publisher in any calendar month does not exceed 50 Euro, YOC Mobile Advertising has the right not to pay this amount immediately but to carry it over to the next payment date on which the amount to be paid (including amounts held over in accordance with this clause) does exceed 50 Euro.
8.5. In the case of termination of the contract by YOC Mobile Advertising or by the Publisher, YOC Mobile Advertising will pay the outstanding amounts to the Publisher within 90 days of termination. If on termination of this Agreement for any reason the amount to be paid out to the Publisher is lower than 50 Euro YOC Mobile Advertising has the right to charge a handling fee of 5 Euro. The fee will be deducted from the amount to be paid.
8.6 The Publisher shall be and will remain liable in respect of all and any claims arising from any act or omission of the Publisher at any time during the term of this Agreement.
8.7 The Publisher undertakes to cover all the will cover all the applicable taxes and state charges connected to his participation in this platform.
8.8 All payments shall be made according to YOC Mobile Advertising data. No other measurements or statistics will be accepted.
8.9 The amounts due to the Publisher will be paid out in different currencies. The currencies in which payment will be made will reflect the currencies of the Advertiser s settlements. The Publisher will be responsible for any resulting currency conversion charges.
8.10 Payment to the Publisher will only be made when YOC Mobile Advertising has received payment from the respective Advertiser. No payment shall be due from YOC Mobile Advertising to the Publisher until such payment has been received from the Advertiser. In the cases when the Advertiser fails to make payment for any reason YOC Mobile Advertising has the right to refuse settlement with the Publisher.
8.11 The VAT will only then be reimbursed to the Publisher, if he can present adequate proof of his entitlement to deduct input tax. This will need to be renewed annually. Should the Publisher fail to renew this proof, future payments will be made without reimbursement of VAT. A subsequent change of status is possible. The Publisher shall cover any incurred charges.
8.12 At the time of each payment to the Publisher in the online system is due an appropriate substantiation will be presented to the Publisher by YOC Mobile Advertising via e-mail. Unless the Publisher notifies YOC Mobile Advertising otherwise within 3 days of receipt of this substantiation, it shall be deemed approved by the Publisher. The virtual account balance with YOC Mobile Advertising shall be reduced respectively. The Publisher covers the costs of transfer. The payment is made based on the virtual account. Floating commissions shall not be paid.
8.13 No interest shall be paid on the amount on the account of the Publisher.
9. Termination
9.1 The Publisher or YOC Mobile Advertising can terminate the contractual relationship at any time without providing reasons, by sending an appropriate written information to info@yoc-performance.com. In such a case the agreement is considered to be terminated after ten days from receipt of such notice by the other party.
9.2 The parties have the right to terminate the contract for cause in an exceptional case. Such a case is given if:
9.2.1 a party commits a material breach of the Contract; or
9.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
9.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge; or
9.2.4 a receiver is appointed of any of the other party s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party s assets; or
9.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
9.2.6 the other party ceases, or threatens to cease, to trade; or
9.2.7 there is a change of control of the other party; or
9.2.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt; or
9.2.9 an Event of Force Majeure continues for more than 30 days.
9.3 Any business transactions up until the termination will be processed and
compensation will be paid out. In a case of termination because of exceptional circumstances, fraud or malpractice, the liquidated damages will be deducted from the Publisher Account.
10. Changes
10.1 YOC Mobile Advertising is entitled to modify terms with minor effect on the implementation of the contract at any time without giving any reason by complying with a notice period of four weeks after the client have received a written notice whether by post, fax or email. The notice points out expressly the possibility of an objection and the following consequences. If the client does not object the modification, the terms and conditions are considered to be accepted. In such a case the contract continues with the modified terms and conditions. Does the client object within four weeks, the request of YOC has been rejected. In such a case the contract continues with the unmodified terms and conditions.
10.2 If the Publisher wishes to make any change to any element of any Mobile Advertising Site after that Mobile Advertising Site has been approved by YOC Mobile Advertising, YOC Mobile Advertising has the right to suspend the changed site and/or to withdraw the previously issued acceptance.
11. Severability Clause
11.1 If any provision of the Contract and of these terms and conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
11.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties. The same applies in the event that the Agreement contains any omissions.
12. Other provisions
12.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of the Federal Republic of Germany with the exclusion of United Nations Convention on Contracts for the International Sale of Goods.
12.2 The parties agree that the place of performance and exclusive place of jurisdiction for all disputes or claims arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims and for check and exchange disputes) shall be Berlin.
Berlin, 07.05.2012