These Terms and Conditions for Publishers (“Terms”) are between WeQ Global Tech Sub GmbH, with its registered office at Schwedter Str. 263, 10119 Berlin, Germany, registered at Amtsgericht Charlottenburg, No. HRB 139518B (hereinafter referred to as “WeQ”) and the party designated in the PO (“Publisher”). WeQ and Publisher collectively referred to as “Parties” and singularly as “Party”.
WeQ operates an affiliate network (“WeQ Network”), which provides quality performance marketing and related services (“WeQ Services”), as well as related technology and software (“WeQ Ad Server”) for operators of online and mobile games and/or related service providers (“Advertiser(s)”). The WeQ Network allows Publishers to participate in partner programs set up by Advertisers, in which Advertisers can market their online or mobile games and/or game services (“Advertiser's Services”). After registration to the WeQ Network and acceptance to a partner program, the Publisher may incorporate or embed Ads into the Publisher Media, which may then result in a payment for an Action.
1.1 Action – means clicks, installs, leads, sales, impressions, downloads or any other specified acquisition as defined in the applicable IO and/or Confirmed Elements, that serves as a payment trigger.
1.2 Ads – means the Advertiser's proprietary advertising materials (i.e. banners, buttons, text links, email newsletters, graphic files, sounds, videos etc.).
1.3 Advertiser – means the party defined as such in the applicable IO.
1.4 Advertising Media – means any software application, service, website or any other digital advertising inventory made available to WeQ directly or indirectly through Publishers, for the purpose of placing Ads.
1.5 API – means the application programming interface.
1.6 Business day – means any day other than Saturday, Sunday or a public holiday in Berlin, Germany.
1.7 Campaign – means the marketing campaign specified in the respective IO and/or in the Confirmed Elements.
1.8 Cardinal Obligation - means an obligation which principally enables the fulfilment of the proper enforcement of the contract and on which the contractual partner can trust and is allowed to trust for compliance.
1.9 CPC – means Actions sold on a cost per click basis.
1.10 CPI – means Actions sold on a cost per install basis.
1.11 CPL – means Actions sold on a cost per lead basis.
1.12 CPM – means Actions sold on a cost per thousand impressions basis.
1.13 CPA – means Actions sold on a cost per download, cost per sale or cost per any other qualified User action basis.
1.14 IP-Rights – means intellectual property rights, including, but not limited to, all rights to registered and unregistered trademarks, all copyrights in copyrightable works.
1.15 Publishers – means any third party which provides and/or makes available advertising environment for the Ads.
1.16 Pay-Out(s)- means amount(s) paid to WeQ according to the Payment-Model specified in the IO and/or Confirmed Elements.
1.17 Payment-Model– means the specific way of remuneration such as CPC, CPA, CPI, CPM or any other method of acquisition and/or display of Ads, as specified in the IO and/or Confirmed Elements.
1.18 Text Form – means a declaration in writing, email shall be sufficient.1.19 User – means a natural person who interacts with an Ad on the Advertising Media.
2.1 The Terms shall apply to each existing and future Publisher Order (“PO”) concluded between the Parties, even if not expressly incorporated with regard to future POs. In each case, the respective valid version of the Terms at the time of the conclusion of the PO shall apply. The conclusion of an PO requires Text-Form.
2.2 Some elements of the PO, which are referred to as “open”, may from time to time be confirmed between the Parties by email (“Confirmed Elements”). Terms, PO and Confirmed Elements shall collectively be referred to as “the Agreement”.
2.3 Individual provisions of the PO shall have precedence to conflicting or diverging provisions of the Terms.
2.4 Publisher´s terms and conditions are expressly not part of the Agreement, even if WeQ has not explicitly objected them.
2.5 Supplementary terms and conditions or revisions to the PO and / or to the Confirmed Elements are recognized only with the explicit prior consent of both Parties in Text Form and shall be effective after an implementation period of forty-eight (48) hours, starting from receipt of the last declaration of consent.
2.6 Publisher can participate in the WeQ Network by registering or having WeQ register in its place a password-protected account on the technical platform of the WeQ Network (“WeQ Platform”), which Publisher must maintain current, complete and confidential.
2.7 If Publisher acts on behalf of a publisher or any other intermediate (hereinafter collectively referred to as “Client”), Publisher shall bear full responsibility for ensuring Client complies with the Agreement and shall remain fully and solely liable, regardless of negligence or fault, for any breach by Client of Publisher’s obligations under the Agreement. WeQ reserves the right to request proof that Publisher has a mandate of Client. In case of a breach of the Agreement by a Sub-Publisher, Publisher shall remove the Sub-Publisher from its network and not include it in future programs with WeQ or the Advertiser.
2.8 The provisions of contract of services law (Arts 611 et seq. German Civil Code) shall apply to all of WeQ´s services.
3.1 WeQ shall provide to Publisher the relevant Ads of the partner program Publisher has been accepted to.
3.2 WeQ grants Publisher a non-exclusive, worldwide, royalty-free license to use, perform, reproduce, display and distribute the Ads on the Publisher Media in accordance with the Agreement.
3.3 WeQ shall use reasonable endeavors to ensure the WeQ Platform is constantly available. Such availability cannot be guaranteed. WeQ reserves the right to modify, update, maintain or suspend the WeQ Network, the WeQ Platform and/or the WeQ Ad Server, and shall notify Publisher forty-eight (48) hours in advance, if such has a substantial impact on the WeQ Services.
3.4 WeQ reserves the right to modify the Terms, for which Publisher will be given two (2) weeks to object to or accept, before coming into effect.
3.5 WeQ’s tracking technology shall be the sole system to track applicable Actions and produce a report thereof (“Tracking Report”). Publisher may access preliminary results on the WeQ Platform. The Tracking Report shall be the sole source for issuing credit notes.
4.1 The Tracking Report shall be the premiere source for issuing invoices.
4.2 If a later review shows the non-validation of Actions WeQ is entitled to re-debit Publisher within a period of twelve (12) weeks following the disbursement or to demand repayment or to offset any of the disbursed amount with any amount due to the Publisher.
4.3 WeQ is entitled to refrain from confirming an Action as being valid, if the Action has not been approved by the Advertiser or is evaluated by WeQ to be not valid as per the PO. Furthermore, an Action is non-valid and therefore not subject to a commission, if the Action:
4.3.1 is not compliant with the Agreement;
4.3.2 is caused through a form of misuse, by procuring Actions through means that violate the Agreement or applicable laws;
4.3.3 is not caused by a natural person, but through a robot, spider, computer script, cookie or other fraudulent method;
4.3.4 constituted a fraudulent, cancelled, charged back or otherwise nullified sale, in the case of pay-per-sale;
4.3.5 is later determined by WeQ as being fraudulent, incomplete, unqualified, abusive or duplicate.
5.1 If Publisher is situated in a country that is a member of the EU, Publisher must provide to WeQ its VAT identification number. Should Publisher refrain from doing so, WeQ shall be entitled to withhold 19% of payments owed to Publisher.
5.2 Publisher shall not modify any Ads provided by WeQ in any manner without WeQ’s prior written consent.
6.1 The consideration of Publisher shall be based on the reports set out in sections 3.5 – 4.1 and calculated as detailed in the PO and / or Confirmed Elements.
6.2 Based on the Pay-Out WeQ shall pay to Publisher a performance related remuneration (“Commission”) for each validated Action. WeQ will not be charged by Publisher for additional Ads above the guaranteed or capped level as per the PO.
6.3 Publisher will receive a credit note from WeQ by the 15th day of the calendar month based on the preliminary monthly reports of validated Actions. Credit notes shall include a) the campaign name and period of participation, b) the number of valid Actions delivered by the Publisher in the respective period, c) corresponding Advertiser Services and d) Pay-outs and target countries of the Campaign.
6.4 WeQ is not required to settle credit notes until the Commission equals or exceeds five hundred (500) USD.
6.5 WeQ will settle credit notes within thirty (30) days of the last day of the month of performance and shall make such payments in USD.
7.1 WeQ shall use its best endeavors to perform the WeQ Services hereunder compliant to standard industry practices.
7.2 If WeQ cannot provide the WeQ Services for reasons beyond WeQ´s responsibility, in particular due to failure of information technology, force majeure, strikes, statutory regulations, disturbances in the sphere of third parties (e.g. other providers), network operators or service providers or other comparable reasons, the WeQ Services will be provided at a later appropriate time.
7.3 Publisher represents and warrants that the Publisher Media complies with the Agreement and all applicable laws, the Publisher Media does not infringe or cause WeQ or Advertiser to infringe IP-Rights or a third party, that Publisher will not manipulate browser functionalities that prevent users from performing standard browser functions, that the Publisher Media is not likely to be misinterpreted and does not contain content that is defamatory, violent, obscene, offensive; includes nudity or implied nudity; includes the sale of drugs, tobacco or alcohol; supports illegal gambling, sweepstakes or contests; or contains a code that could damage hardware, software, a person or an entity, that Publisher complies with Data Protection Laws and the provisions set out in sec. 9 of the Terms;
7.4 Publisher shall indemnify, defend, and hold harmless WeQ and its shareholders, directors, officers, employees and agents from and against all claims, including fines of a Supervisory Authority (sec. 9), commenced or prosecuted by any third party and / or Supervisory Authority against WeQ, which in whole or in part, arise from or is related a breach of the Publisher´s representations under the Agreement.
7.5 WeQ will promptly notify the Publisher of any claim and will provide Publisher with reasonable information thereto and may give control over the defense and settlement of the claim, provided, however, that any settlement will be subject to the WeQ´s prior written approval, which approval shall not be unreasonably withheld or delayed.
8.1 WeQ shall not be liable for the content on Publisher Media, for damages caused by defects or interoperability of Ads, for damages resulting from the insufficient availability or imperfect functioning of the internet or app stores or for indirect and non-foreseeable damages.
8.2 With exception of sec. 8.1, WeQ shall pay obligatory compensation:
8.2.1 to the full amount only in cases of willful acts of damage or absence of a service WeQ has guaranteed;
8.2.2 limited to the amount of foreseeable damages in cases of gross negligence;
8.2.3 in all other cases only for breaches of a Cardinal Obligation, to the extent of foreseeable damages and limited to an amount equal to the average remuneration of Publisher under the Agreement for three (3) months preceding any claim of Publisher under which WeQ´s liability shall arise.
8.2.4 for liability under the German Product Liability Act and for injury to life, limb and health.
8.3 Limitation of liability also applies to the personal liability of the Parties’ employees, agents and authorized representatives.
8.4 A limitation period of one year applies for all damage claims of either Party against the other Party.
9.1 WeQ and Publisher shall be considered joint Controllers as set out in Art. 26 of EU – General Data Protection Directive 95/46/EC (“GDPR”). The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR.
9.2 WeQ and Publisher shall at all times, where applicable, comply with the regulations of the GDPR, as well as with the Privacy and Electronic Communication Directive 2002/58/EC (“ePrivacy Directive”) and with any data protection or privacy laws supplementing or implementing GDPR and ePrivacy Directive (“Implementation Laws”) or any other applicable data protection or privacy laws which applies to personal or non-personal data processed in connection with the Agreement (Implementation Laws, GDPR and ePrivacy Directive and other data protection / privacy laws collectively referred to as “Data Protection Laws”). Publisher and WeQ shall cooperate as reasonably required to ensure either Party´s compliance with Data Protection Laws.
9.3 As far as mandatory under Data Protection Laws, Publisher undertakes to obtain valid consent from any User and / or visitor to Publisher Media – the Data Subject – and to enable an “opt out” to any technology based on the principle of storing information on the Data Subject´s end devices or accessing them (“Cookie”) served by Publisher, WeQ or by any third party upon WeQ´s or Publisher´s behalf in the course of the performance of the Agreement.
9.4 Publisher shall take appropriate measures to provide Data Subjects with the information required by Art. 13, 14 and 26 GDPR about how their Personal Data are being Processed by or on behalf of Publisher. Publisher shall especially provide a privacy notice/ Cookie notice to all Data Subjects in compliance with applicable Data Protection Laws on Publisher Media before contractual Processing of Personal Data.
9.5 WeQ and Publisher shall document the execution of necessary technical and organizational measures (Art. 32 (1), Art. 28 (3) lit. c GDPR) with respect to the performance of the Agreement, such documentation being provided by either Party to the other Party for auditing purposes prior to commencing of Processing. The measures to be taken are measures of data security and measures that guarantee a protection level appropriate to the risk concerning confidentiality, integrity, availability and resilience of the systems. The state of the art, implementation costs, the nature and scope and purposes of Processing as well as the probability of occurrence and the severity of the risk to the rights and freedoms of natural persons within the meaning of Art. 32 (1) GDPR must be taken into account. Technical and organizational measures are subject to technical progress and further development. In this respect, it is permissible for either Party to implement alternative adequate measures, subject to the security level of the established measures not being reduced. All substantial modifications must me documented.
9.6 In case either Party appoints a subcontractor which relates to the provision of the services set out in the Agreement, this Party shall be obliged to make appropriate and legally binding contractual arrangements, which provide at least the same protection for Data Subjects as the provisions of this section 9, and take appropriate inspection measures to ensure such subcontractor´s compliance with Data Protection Laws.
9.7 The Parties acknowledge, that joint Controllers are obliged to respond to data related requests of Data Subjects under Data Protection Laws, especially under Art. 13 – 20 GDPR. Publisher agrees, that as the last point of contact to Data Subject, Publisher shall be primarily responsible to fulfill Data Subject´s rights under Data Protection Laws. WeQ shall reasonably assist Publisher to enable Publisher´s compliance with this clause and shall inform Publisher without undue delay, if Data Subject´s exercises its rights vis-à-vis WeQ.
9.8 Either Party shall at the earliest opportunity, and in any event within 48 hours after having become aware, notify the other Party of any Personal Data Breach and / or of any unauthorized or unlawful Processing of any Personal Data and of any loss or destruction or other damage of Personal Data (collectively referred to as “Data Security Incident”) in the course of the performance of the Agreement, and shall take appropriate measures, consistent with good industry practice, to exclude or at least reduce the negative effects of any Data Security Incident on the Data Subjects, and co-operate with the other Party in dealing with such incident and its consequences. Neither Party shall notify any Supervisory Authority with respect to a Data Security Incident without having obtained prior approval in text-form (e.g. per e-mail) from the other Party, such approval not being unreasonably withheld. Neither Party may without prior approval in text-form (e.g. per e-mail) of the other Party issue a press release and / or communicate with the press with respect to a Data Security Incident.
9.9 Where Personal Data originating from the European Economic Area (referred to as “EEA”) or otherwise subject to GDPR shall be Processed by Publisher outside the EEA, Publisher may only transfer Personal Data outside of the EEA in compliance with the conditions for transfer set out in Chapter V of the GDPR and subject to recipient of Personal Data having provided adequate safeguards. Adequate safeguards may only be provided for by a) a legally binding agreement between public authorities or bodies, b) binding corporate rules, c) standard data protection clauses in the form of template transfer clauses adopted by the Commission, d) standard data protection clauses in the form of template transfer clauses adopted by a Supervisory Authority and approved by the Commission, e) compliance with an approved code of conduct approved by a Supervisory Authority, f) certification under an approved certification mechanism as provided for in the GDPR, g) contractual clauses agreed authorized by the competent Supervisory Authority, or h) provisions inserted into administrative arrangements between public authorities or bodies authorized by the competent Supervisory Authority.
10.1 The Parties undertake to treat confidentially also for period of three (3) years beyond the expiration or termination of the Agreement any and all information which is protected by law or contains business or trade secrets or which is designated by a Party as being confidential and that is disclosed or provided to one Party by the other Party within the context of contractual negotiations and / or performance of the Agreement (“Confidential Information”).
10.2 The Parties shall disclose any Confidential Information to their employees or any third parties on a strict need to know basis only and shall make sure that the provisions corresponding to the provisions of this sec. 9 are also imposed upon such employees or third parties.
10.3 Notwithstanding the foregoing, Confidential Information shall not include information of which it is proven by the receiving Party that: (a) it was already known to the receiving Party at or prior to the time of disclosure by the disclosing Party; (b) it is or becomes publicly known through no act of the receiving Party; (c) it is received without restrictions from a third party without breach of any obligation of non-disclosure; (d) it is independently developed by the receiving Party; or (e) the receiving Party is under an obligation to disclose pursuant to the order of a court of law or public authority.
10.4 The Parties agree that monetary damages would be insufficient to compensate one Party for any breach of the other Party of its covenants and agreements set forth herein. Accordingly, the Parties agrees and acknowledges that any such violation or threatened violation will cause irreparable injury the Party having disclosed Confidential Information and that, in addition to any other remedies that may be available, in law, equity or otherwise, and that are expressly not excluded, the Party having disclosed Confidential Information shall be entitled to obtain injunctive relief against the threatened breach of this section or the continuation of any such breach by the other Party (having received such Confidential Information), without the necessity of proving actual damages.
11.1 The term of the Agreement shall commence on the date of signature of any respective PO and shall continue for an undefined period.
11.2 Either Party may terminate the Agreement upon forty-eight (48) hours prior written notice to the other Party. Upon termination, Publisher shall remove all Ads from the Publisher Media within twenty-four (24) hours and WeQ shall remove Publisher from WeQ Network.
11.3 Following the termination of the Agreement, any provisions of the Agreement that in order to fulfill their purpose need to survive the termination of the Agreement, shall survive.
12.1 Publisher recognizes that WeQ has proprietary relationships with Advertisers and agrees not to circumvent such relationships, or otherwise solicit, directly or indirectly contract for obtain services similar to the services performed by WeQ hereunder from any Advertiser during the Term of the Agreement and for a period of twenty-four (24) months after its expiry or termination.
12.2 Publisher agrees, that, in addition to any other remedies that may be available to WeQ, in law, equity or otherwise, and that are expressly not excluded, WeQ shall be entitled to obtain injunctive relief against the threatened breach of this section or the continuation of any such breach by the Publisher, without the necessity of proving actual damages.
13.1 The Agreement does not establish any partnership, joint venture or commission of agent between WeQ, Advertiser and Publisher.
13.2 Offsetting and claiming rights of retention by Publisher shall only be admissible if the counterclaims used as a basis are undisputed or have been acknowledged by WeQ and are based on the same contractual relationship.
13.3 Publisher shall not assign or transfer any rights or obligations under the Agreement to a third party without WeQ’s prior written consent.
13.4 An invalid, unenforceable or unintentionally omitted provision shall not affect the validity of the remaining provisions. The Parties shall engage in good faith negotiations to replace such provision with one that comes closest to its economic intent and purpose.
13.5 The Parties shall submit all their disputes arising out of or in connection with the Agreement to the exclusive jurisdiction of the courts of Berlin, Germany.
13.6 The Agreement and their interpretation shall be governed by and shall be construed in accordance with the laws of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods dated 11/4/1980.
13.7 Any amendments and supplements to the Agreement must be done in Text Form; this also applies to any amendments to the clause on Text Form itself.