SSP - Improve Digital

SELLER TERMS AND CONDITIONS

SELLER TERMS AND CONDITIONS (“STC”) of AZERION TECHNOLOGY B.V., a private limited liability company with its registered office address in (1119 PE) Schiphol-Rijk at Boeing Avenue 30, the Netherlands, and any of its affiliates hereinafter referred to as “Improve Digital”.

Improve Digital makes available a digital platform to Sellers to sell, via RTB auction or direct deals, advertising space to Buyers. Buyers can be advertisers, or an agency, DSP or other intermediary who (ultimately) works for an advertiser.

DEFINITIONS

In these STC the following expressions will have the meaning as set out next to them:

“Ad Inventory” means advertising inventory, including, but not limited to web, mobile, application and/or widget- based advertising inventory.
“Ads.txt” is a preformatted .txt index to indicate which companies are authorized to (re)sell the ad inventory from specific publishers or content owners. Implementation guideline for the implementation of ads.txt is available under Improve Digital’s Seller Creative-Enforcement-Ad-Quality-Policy as made available to Seller and available at https://www.improvedigital.com/terms-conditions/ under the title “Seller Creative Enforcement Ad Quality Policy”.
“Ad Unit” means a unit of advertising content including, but not limited to, a text-based, graphical, interactive, rich media, social, e-mail, video or other online advertisement.
“Ad Serving” means the use of Platform by the Seller as its ad server.
“Agreement” means any agreement between Improve Digital and Seller including the STC and the schedules and/or the annexes to the agreement.
“Applicable Data Protection Law” means all applicable data protection and privacy laws, including EU Data Protection Law where applicable to a Party.
“Approximate Net Bid” means the bid that is sent as Header Bidding Bid, after deducting the Approximate Seller Amount from the Gross Bid.
“Approximate Seller Amount” means an approximate Seller Amounts which can be entered in Platform, and which is based on an approximate percentage of revenue share Seller pays to Improve Digital for its Services) with the goal of closely matching the reflected Seller Amounts.
“Authorized Digital Seller” means a company authorized to (re)sell the Ad Inventory from specific publishers or content owners. Authorized Digital Sellers are also commonly known as sales houses. For the avoidance of doubt and for purposes of these STC, Authorized Digital Seller is also a Seller and all provisions applicable to Sellers apply to Authorized Digital Sellers.
“Azerion Pixel” means a pixel may be used for gathering first party data on the Site(s) and to enable improved targeting capabilities.
“Backend Availability” means Backend Uptime / (Total Time – Excused Downtime) x 100
“Backend Uptime” means the time (measured in minutes) in any month during which the Platform is able to be used by the Seller as intended.
“Bad Debt” means the situation where the Buyer doesn’t pay for the purchased Ad Inventory, regardless of the reason for that.
“Bid(s)” means, with respect to a particular auction, the price of the bid entered in an auction by Buyer (always calculated back to a CPM rate).
“Bidding Terms” means with respect to a user of the Platform all of its criteria, specifications and other settings as set in the Platform relating to a particular Ad Inventory or a particular audience, as applicable.
“Bid Request” means a request from a Seller, facilitated by Improve Digital, sent to potential Buyers to bid on Ad Inventory.
“Buyer” means the advertiser, agency, sales partner, network, technical provider or other party that is engaged in (facilitating) the buying of Seller’s Ad Inventory and/or delivery of Ad Units through Improve Digital’s Services.
“Clearing Price” means the actual amount charged to the winning Buyer for displaying Ad Units.
“Data Subject”, “Personal Data” and “Recipient” all have the meaning under Applicable Data Protection Law.
“Connected Third Party” means a third party being connected to the Platform through the Seller.
“CPC” means “Cost Per Click”. CPC defines how much revenue a Seller receives each time a user clicks an advertisement link on his website.
“CPM” means Cost Per Mille, which means cost per thousand impressions.
“Deal – ID” means deals directly made between the Seller or Improve Digital and a Buyer based on a Deal-ID number.
“Direct Deal” means Deal-ID based trading.
“Effective CPM” means the expected CPM value that is sent as a Header Bidding Bid for CPC campaigns. Improve Digital’s algorithm generates and allocates a ‘virtual CPM value’ to CPC campaigns, which is calculated based on historical and current learnings and probabilities that the ad would be clicked. This equals the gross CPM Improve Digital Uses for its internal auction.
“Erroneous Bidding”: means a substantially higher bid by a Buyer than might be expected given the circumstances and from which can (and may) be deduced that this was caused by an inadvertent error of the Buyer.
“EU Data Protection Law” means all applicable EU data protection and privacy laws, including: (i) the EU General Data Protection Regulation 2016/679 (“GDPR”), (ii) the EU Privacy and Electronic Communications Directive 2002/58/EC (“EP Directive”), and (iii) any other European Union or EU Member State laws made under or pursuant to (i) and (ii); in each case as such laws may be amended or superseded from time to time.
“Excused Downtime” means the time (measured in minutes) in any month during which the Service is not available due to any of the following: (i) Force Majeure (ii) any act or omission of the Seller; (iii) Scheduled Maintenance as set out in this STC; (iv) Emergency Maintenance as set out in this STC; (v) malicious third party activity against the Service Platform including denial-of service attacks (vi) internet connectivity issues that are not related to Improve Digital’s data center.
“Final Revenue” means the total of sold and Served Impressions of the Seller as reported in the Improve Digital publisher console in the Platform, after adjustments of any amounts, costs and charges under the Agreement.
“Gross Bid” means the CPM price submitted by the advertiser, agency, network, DSP or other party, or if applicable the sales partner. If a sales partner is engaged, Seller will see in the Improve Digital publisher console in Platform the CPM price as submitted by the sales partner, and the advertiser, agency, network, DSP or other party to whom the Ad Inventory is sold.
“Header Bidding Bid” means the bid that Improve Digital submits to the Header Bidding.
“Header Bidding, Header Bidding Solution or Header Bidding Wrapper” means a string of java script that simultaneously collects multiple bid requests and responses before passing them through to an ad server. In addition, the wrapper also collects various ad tech tags for services such as tracking, analytics and viewability that are implemented throughout a Sellers’ webpage.
“Interface Availability” means Uptime / (Total Time – Excused Downtime) x 100
“Invalid Traffic” means any traffic, including but not limited to, Ad Inventory, Site content, impressions or similar billing events that are determined by Improve Digital’s system, or that of its Buyers, to be fraudulent, suspect in quality, or unusable according to Improve Digital standards. Invalid Traffic includes, but is not limited to, pop-unders, click-jacking, auto scrolling, forced navigation, auto navigation, dark pages, auto-play video in pop-under with sound off, auto-refresh of ad slots, call video ads behind the video player, referrer stripping or replacement, empty or spoofed domains, unauthorized (re)selling of Ad Inventory by Seller, stacked redirects, auto-click on recommendation widget tile, content-recommendation tile trick play, rogue mobile apps auto-loading impressions.
“Invalid Traffic Reports (IVT)” means the document provided by Improve Digital to Seller informing Seller of the Invalid Traffic determined by Improve Digital’s administration or that of its Buyers’ administration.
“Invoice” means the invoice documents provided by Improve Digital behind a login to Seller informing Seller of the Final Revenues generated with Seller’s Ad and the amounts charged by Improve Digital according to the Seller Agreement.
“Net Bid” means the CPM price submitted by the Buyer that competes in the auction, minus the Seller Amount
“Open RTB” means the RTB market ecosystem where various Buyers are buying Ad Inventory directly from the ecosystem based on RTB, including Deal-ID’s and premium campaigns.
“Parties” means Improve Digital and Seller, and “Party” means Improve Digital or Seller.
“Platform” means Improve Digital’s proprietary technology platform(s) and Service(s), whether or not via tools of third-party suppliers, that parties can use to buy and sell Ad Inventory. This platform includes any integration interfaces.
“Platform API” means, to the extent applicable, the use of an API that allows Seller, amongst others, to retrieve its Platform account data such as data derived from or related to transactions with respect to sales and purchase of Ad Inventory, Ad Units, revenues and campaigns as well as to post certain types of data into the Platform.
“Platform API Availability” means: Uptime / (Total Time – Excused Downtime / 100
“Platform Privacy Policy” means all applicable Improve Digital platform privacy policies as may be updated or modified from time to time, including without limitation Improve Digital’s Platform Privacy Policy, as made available to Seller and https://www.improvedigital.com/platform-privacy-policy/, and as updated from time to time.
“Policies” mean all applicable Improve Digital ad specification requirements and policies as may be updated or modified from time to time, including without limitation (i) Improve Digital’s Seller Creative-Enforcement-Ad- Quality-Policy (ii) Improve Digital’s Platform Privacy Policy and any other policy and implementation guidelines identified in the Agreement or provided by Improve Digital to Seller (in each case, as modified from time to time).
“RTB” means real time bidding.
“Sanctioned Person” means at any time during the term of this Agreement, any natural person, corporation, or other legal entity: (i) listed on any Sanctions-related list of designated or blocked Persons; (ii) that is any agency or instrumentality of the government of, resident in, or organized under the laws of a country or territory that is the subject of comprehensive restrictive Sanctions from time to time (as of the date of this Agreement) Cuba, Iran, North Korea, the Crimea Region of Ukraine, Donetsk People’s Republic and Luhansk People’s Republic, and Syria); or (iii) 50% or more owned or controlled by any of, including a combination of, the foregoing.
“Sanction” means individually and collectively, any and all applicable economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by: (i) the United States of America, including those administered by Office of Foreign Asset Control (OFAC), the U.S. Department of State or through any existing or future executive order; (ii) the United Nations, (iii) the European Union or any European Union member state; (iv) HM Treasury of the United Kingdom; or (v) other similar governmental authority having jurisdiction over any Party to this Agreement.
“Seller” means a customer of Improve Digital, a media owner, network or any other party that sells and/or attempts to sell and/or facilitates the sale of Ad Inventory through the Service(s).
“Seller Agreement” means the agreement for the provision of the Services entered into between Improve Digital and Seller (as indicated in the Seller Agreement).
“Seller Amounts” means all amounts directly charged by Improve Digital to the Seller for the Service(s) as set out in the Seller Agreement based on the Final Revenue.
“Seller Creative-Enforcement-Ad-Quality-Policy” means the Creative Enforcement Ad Quality Policy for Sellers as provided and as it may be updated or modified from time to time.
“Served Impression” means a valid impression delivered pursuant to a transaction conducted through the Platform. Impressions delivered pursuant to a transaction conducted through the Platform will be deemed a Served Impression for purposes hereof.
“Service(s)” means the performance by Improve Digital under the Agreement to sell the Ad Inventory of the Seller to the Buyers and/or deliver sold Ad Units via Improve Digital Ad Serving, including via – but not limited to– RTB, programmatic Deal-ID’s and non-programmatic premium campaigns.
“Site(s)” means the digital properties of Seller, or its clients, on which the Ad Inventory appears (i.e., websites, mobile sites, syndication platforms, video players and applications).
“Target Response Time” is the period of time within which Improve Digital will initiate work to resolve a problem, commencing at the time that the problem is notified (Zendesk) or reported by phone (in case of emergency) by the Seller to Improve Digital.
“Total Time” means the time (measured in minutes) in any month.

APPLICABILITY OF THE STC

These STC apply to the Agreement and any agreement entered into between Improve Digital and Seller in relation to the Service(s) provided by Improve Digital to Seller.
Any terms and conditions set forth in any document(s) issued by Seller either before or after issuance of any document by Improve Digital setting forth or referring to these STC are hereby explicitly rejected and disregarded by Improve Digital, and any such terms will be wholly inapplicable to any Agreement between Improve Digital and Seller and will not be binding in any way on Improve Digital.

TAX ADJUSTMENTS

Improve Digital will add taxes, duties and similar government levies to amounts charged where Improve Digital is required by law to pay or collect them.
Improve Digital reserves the right to make corrections to former invoices with regard to tax where Improve Digital is required by law to do so.

INVOICE DOCUMENTS, PAYMENT

On a monthly basis, within thirty (30) days after month end, Improve Digital will provide an invoice in the Improve Digital publisher console indicating the Final Revenue and the charged Seller Amounts for the previous month. For the avoidance of doubt, the total amount to be paid out will be the Final Revenue minus the Seller Amounts. Improve Digital will pay the net amount within sixty (60) days after issuing the month-end invoices. Amounts are paid in Euros. Improve Digital administration and billing system will remain leading and conclusive in the reporting and invoicing towards the Seller.
The amounts due to Seller will only be payable by Improve Digital if and to the extent Improve Digital has collected full payment from Buyers.
In case Platform is used for Ad Serving and Seller collects payments from Buyers by itself; all Invoices of Improve Digital will be payable by Seller within thirty (30) days of the invoice date. In the event of failure to pay within this term, Seller will be in default without any notice of default or reminder being required and will be obliged to pay interest of one and a half percent (1.5%) per month on the entire amount that is due as of the date on which payment should have been made.
Seller hereby grants Improve Digital the right to disclose aggregate spend numbers on publisher level to a Buyer and its clients for reporting and analysis purposes.

IVT AND BAD DEBT: ADJUSTMENT TO AMOUNTS

Detection of or any reasonable suspicion of any Invalid Traffic gives Improve Digital the right to (i) temporarily deactivate Seller’s Account or not forward Bid Requests, (ii) withhold the corresponding amounts, (iii) obtain a refund of prior payments (or any portion thereof) made to Seller relating to such Invalid Traffic,(iv) set it off against future payments to Seller (v) charge the Seller with a minimum CPM amount of €0,03 as compensation for the use of the Services, unless Seller incontestably proves that it did in no way sell or otherwise (indirectly) provide Invalid Traffic.
In order to be able to detect such Invalid Traffic and control Ad Inventory quality Improve Digital has the right to use third party verification tools and Seller is obliged to assist and to cooperate with Improve Digital where and when needed to implement such tools. Any costs associated with the deployment and/or use of third-party verification tools by Improve Digital are at the expense of Seller.
In addition, Improve may adjust amounts due for Bad Debt. In case of Bad Debt Improve Digital has the right to (i) withhold the corresponding amounts, (ii) obtain a refund of prior payments (or any portion thereof) made to Seller relating to such Bad Debt and (iii) set it off against future payments to Seller.
Seller understands and agrees that numbers reported in the Improve Digital publisher console are based on the specific Clearing Price and Volumes and are adjusted for purposes including, but not limited to Bad Debt, Invalid Traffic, service charges, discrepancies due to statistical errors and other technical matters such as virtual pricing, and currency differences.
Seller understands and agrees that benchmarks such as Listen-Through Rate, View-Through Rate or Viewability Rate, each as understood under applicable industry standards or Improve Digital’s available reporting thereof as a measure of an Advertisement being actually viewed, heard or otherwise consumed by a given visitor of a Property, are important parameters for Buyers and thereby have an effect on monetization. In the event these parameters fall below industry or Buyer satisfaction standards, Improve Digital and Seller shall cooperate in good faith to resolve the issue. Regardless, large volumes or consistent periods of low rates in the above parameters shall give Azerion the right, at its sole discretion, to treat related traffic as IVT under this Agreement.

DELIVERY OF THE SERVICES

Improve Digital may update or modify the Service(s) from time to time. Seller will not have approval rights over these updates, but Improve Digital will work diligently and in good faith with Seller to maintain Seller’s access to the Service(s).
Improve Digital will deliver the Service(s) in compliance with the documentation, but other than as expressly set out in the Service Level Provisions, Improve Digital does not provide specific representation or warranties that the Service(s) will be available at all times, or without error or interruption, and Improve Digital gives Seller no warranty with respect to the performance, the accuracy or the reliability of the Service(s). Future product additions to the platform may be subject to additional commercial negotiations.
Improve Digital carries out moderation activities, whether automated or not, in order to ensure the security and quality of the Service(s) and to prevent possible disputes before they occur. These moderation activities include regular checks on the Service(s) by Improve Digital itself or on Sites’ content, Ad Inventory and Ad Unit by using various industry standard automated tools which are being used for targeting and brand safety purposes. Seller acknowledges that it has various obligations under the Agreement to maintain compliance with industry standards and legal requirements, and accepts that failure to comply with these obligations may result in the removal of Ad Inventory and/or Ad Unit, suspension of Seller’s account, or other actions deemed necessary as specified under the Agreement.

IMPROVE DIGITAL PLATFORM

For any trading on the Platform, Improve Digital will act in its own name and for its own account between Seller and Buyer. As a result, Seller will receive an (credit) invoice from Improve Digital, Improve Digital will sell the Ad Inventory to Buyer and will subsequently invoice Buyer. Improve Digital Reserves the right to adjust invoice as described in the STC.
With regards to Open RTB, there will be no direct transactions, agreements or invoices in place between Buyer and Seller, and Seller cannot collect amounts due directly from Buyer unless it is explicitly allowed under the STC
Improve Digital grants to Seller the non-exclusive right to access and use the agreed Platform products, subject to the Agreement.
Seller will have no recourse for any transaction (e.g., any sale of Ad Inventory) that occurs based on Erroneous Bidding by Buyer, Invalid Traffic or any corrections made by Buyer in retrospect of the bidding.
At the request of Seller, Improve Digital may enable Seller to integrate Azerion Pixel into Site(s). The provision and use of Azerion Pixel shall be considered for the purpose of enabling improved monetization capabilities by the Parties and provision or use thereof shall not be considered an obligation for either Party, nor shall either Party be liable in the event that they cease use or provision in the future.
Seller shall not, and shall not attempt to, misuse, modify, reverse engineer, or otherwise make commercial use of Azerion Pixel except for the purpose expressly stated herein. Notwithstanding the ongoing, whenever the Seller utilizes data obtained through Azerion Pixel with third parties, Seller shall also allow Improve Digital to participate in the bidding process for the associated bid requests, ensuring Improve Digital has equal opportunity to bid on inventory where Azerion Pixel data is employed.
Seller shall comply with all technical requirements that Improve Digital specify in order to enable the Azerion Pixel, if needed.
Improve Digital shall not be liable for, and Seller shall indemnify Azerion of, any damages that may be incurred due to Seller’s use of Azerion Pixel. At all times, Improve Digital reserves the right to suspend the provision of Azerion Pixel or use thereof in the event that use by Seller is considered in breach of the Agreement, in violation of applicable laws or commercially unviable by either Party.

AD SERVING

In the case Seller uses Platform for Ad Serving, it will become Seller’s sole responsibility to have in place legal contracts underlying the business, the rules, responsibilities and the liabilities of trading. Improve Digital has no responsibilities or liabilities in this respect.

HEADER BIDDING

Improve Digital submits Gross Bids in all of its auctioning, including Header Bidding.
Seller understands and agrees that in case Seller chooses to use a Header Bidding Wrapper which requires Net Bid Submissions Improve Digital will send an Approximate Net Bid instead of a Gross Bid.
Seller understands and agrees that as a consequence of the use of Approximate Net Bids in Header Bidding, discrepancies may appear in reporting due to possible differences between the Approximate Net Bids used in Header Bidding and the Gross Bids used for Invoicing.
The Invoices are based on the Gross Bids and volumes. Improve Digital administration and billing system will remain as is and will remain leading and conclusive in the reporting and invoicing towards the Seller. Seller will have no recourse for any discrepancy due to differences between the Approximate Net Bids used in Header Bidding and the Gross Bids used for Invoicing.
Due to the setup within Improve Digital, it is not possible to send actual CPM values in case of CPC campaigns in Header Bidding and Improve Digital will submit an Effective CPM as Header Bidding Bid instead.
Seller understands and agrees that as a consequence of the use of an Effective CPM as Header Bidding Bid, discrepancies in reporting may appear due to possible differences between the Effective CPM used as Header Bidding Bid and the actual CPCs which will be used for invoicing.
The Invoices are based on the actual CPCs. Improve Digital administration and billing system will remain as is and will remain leading and conclusive in the reporting and invoicing towards Seller. Seller will have no recourse for any discrepancy due to differences between the Effective CPM used as Header Bidding Bid and the actual CPC used for Invoicing.

AD INVENTORY & SITE CONTENT

Seller covenants that, when using a Service the Bidding Terms entered into the Service will be true and correct and complete in all material respects and that the content of the Sites will not violate or infringe upon the rights of any third party, and will not be obscene or otherwise illegal.
As part of Improve Digital’s Seller Creative-Enforcement-Ad-Quality-Policy, Seller is required to adopt Ads.txt and to list Improve Digital or any of its sales partners as Authorized Digital Seller(s) on the domains that are made available by Seller on the Platform in compliance with the IAB Ads.txt specification.
Improve Digital may remove or deactivate any Ad Inventory from any or all of the Service(s) in its reasonable discretion if the content of the Sites is deemed incompatible with the industry standards, legal obligations, this Agreement, or non-compliance with regulations. In such a case the Seller is obliged to cease sending Bid Requests for this Ad Inventory within three (3) business days. In case of non-compliance with the aforementioned cease-obligation, Improve Digital will charge the Seller a minimum CPM amount of EUR 0.03 as compensation for the uses of the Services starting for the date of removal or deactivation.
Seller’s use of the Service(s) will comply with Improve Digital’s Policies, including the Seller Creative-Enforcement-Ad-Quality-Policy. Seller will compensate Improve Digital for any damages and costs Improve Digital May suffer resulting from a breach of these Policies.
Seller and Improve Digital each may reject or deactivate Ad Units and/or Ad Inventory that do not comply with their respective policies (including, without limitation, the Policies), or do not comply with any applicable law, rule or regulation, or for any reasonable business reason.
Seller will use a refresh rate that is in line with industry standards and shall in any case be no more frequent than one (1) time in thirty (30) seconds or should otherwise inform Improve Digital five (5) working days upfront of any changes. Improve Digital then may remove or deactivate these Ad Inventory.
Seller will not provide and/or sell any Invalid Traffic and will compensate Improve Digital for any damages and costs Improve Digital may suffer resulting from a breach of this provision 39.
Improve Digital may request Seller to remove or deactivate any Ad Inventory from any or all of the Services and/or the Platform in its reasonable discretion for business results reasons. Seller is obliged to remove this Ad Inventory within three (3) business days.

SERVICE LEVEL PROVISIONS

Improve Digital shall:

Provide technical and functional assistance for the use of the Platform) via email and/ or phone;
Co-ordinate and resolve problems associated with the Platform within the target response times specified below;
Ensure that all identified problems reported to Improve Digital by the Seller are logged and escalated and forwarded to the appropriate personnel;
Maintain a record of all reported problems with final resolution.
Advise the Seller of any upcoming operational changes or scheduled outages on the systems to which the Seller has access.

The Seller agrees to inform Improve Digital promptly of any issues that (would) affect the ability of Improve Digital to meet the agreed service level obligations.
Improve Digital agrees to make the Platform available for access and use by the Seller in accordance with the following level of availability:

Type of service	Measurement and frequency of measurement	Target Service Level
Availability back end services and ad serving	Backend Availability	99.5 %
Availability customer interface and reporting	Interface Availability	95%
Availability of Platform API	Platform API Availability	99%

Scheduled Maintenance: Improve Digital will schedule planned maintenance to its systems outside the Seller’s peak usage hours, being 06:00 to 19:00 CET on Monday to Friday inclusive. Any scheduled maintenance that may result in the Platform being unavailable for more than one hour will be notified to the Seller’s technical contact, with at least a 7-day notice period before the commencement of the maintenance unless maintenance is being conducted due to an emergency, in accordance with Emergency Maintenance below.
Emergency Maintenance: Improve Digital may temporarily limit or suspend the availability of all or part of the Platform, at any time, if it is necessary for reasons of public safety, security, or unforeseen maintenance needed to continue ad serving and the reasonably expected behavior of the user interface. In any case, maintenance that could not reasonably have been planned in advance as scheduled maintenance. This includes but is not limited to: distribution of malware; malicious attacks on Improve Digital servers; maintenance on servers in case ad serving is at risk or maintenance needed to provide access to data for Improve Digital.

DATA PROTECTION OBLIGATIONS RELATED TO THE SERVICES

When processing Personal Data, the Parties shall comply with the provisions of Applicable Data Protection Law, in particular the provisions of the EU Data Protection Law.
Anything further related to data protection shall be regulated by Data Processing Agreement (DPA) and US Data Processing Addendum to be concluded between the Parties, which shall take precedence over the Agreement in its scope of application.

LIABILITY

Improve Digital’s total aggregate liability in connection with an attributable failure to fulfil any obligations under the Agreement, a wrongful act and/or any other legal grounds, for any kind of damage will (cumulatively) be limited to the amounts charged by Improve Digital to the Seller for the Services in the previous three (3) months prior to the date the alleged failure to fulfil any obligations under an Agreement and/or the wrongful act first arose, but in no event to exceed €100,000 (one hundred thousand Euro).
Improve Digital will have no obligation or liability to the Seller if a claim is made with the competent court after a period of one (1) year from the date on which Seller was aware or could have been aware of the facts on which the claim is based.
The limitations of liability in the above provisions are not applicable in case of willful misconduct or gross negligence (opzet en bewuste roekeloosheid).
The above provisions set out the entire liability of Improve Digital and its affiliates with regard to any claim, based on contract, tort or otherwise, in connection with the Agreement, including any Annexes thereto. The limitation of Improve Digital’s liability applies accordingly to its employees, agents and subcontractors.

SUBCONTRACTING AND ASSIGNMENT

Improve Digital will be entitled to use third party services for the execution of the Agreement. Improve Digital is not liable for damages arising out of any acts or non-acts of such third persons.
Improve Digital has the right to wholly or partially assign the rights and obligations under an Agreement to a third party. The approval of Seller of such assignment is already granted by Seller. Seller will not assign any rights or obligations under the Agreement without the prior written consent of Improve Digital and this stipulation is binding on third parties (goederenrechtelijke werking).

INTELLECTUAL PROPERTY RIGHTS

Except as may be expressly provided herein, neither Party will have or obtain any rights in or to any intellectual property of the other Party in connection with the Agreement.
Without limiting the generality of the foregoing, Improve Digital retains all right, title and interest in and to the Service(s), the technology used by Improve Digital to operate the Service(s), Improve Digital’s trademarks, and all enhancements made by Improve Digital to any of the foregoing from time to time, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights in the foregoing. Seller may not use the Service(s) except pursuant to the limited rights expressly granted in these STC and all rights not expressly granted herein are reserved by Improve Digital.
Seller will not, and will not attempt to, and will not assist or knowingly permit any third party to: (i) alter, modify, adjust, copy, reproduce, delete, damage, disassemble, decompile, reverse engineer or create derivative works of the Service(s) and/or the Platform and/or tools of third party suppliers instructed by Improve Digital, or any portion thereof; or (ii) breach, disable, tamper or interfere with the proper operation of the Service(s) and/or the Platform And/or tools of third parties, or with any security measures designed to protect the Service(s) and/or Platform and/or tools of third party suppliers instructed by Improve Digital. Seller will compensate Improve Digital for any damages and costs Improve Digital may suffer.
Seller guarantees that no (intellectual and/or industrial property) rights of any third party are infringed by the Ad Inventory, or any other data supplied by Seller to Improve Digital in connection with the Service(s). Seller Indemnifies Improve Digital against all claims of third parties in this regard and will compensate Improve Digital on demand for damages suffered by Improve Digital as a consequence and in connection with such an infringement.

FORCE MAJEURE

“Force Majeure” is in these STC in addition to its effect in the law and jurisprudence, all external causes, foreseen or unforeseen, that Improve Digital cannot influence, but which prevent Improve Digital to fulfil its obligations, strikes in the business included, including but not limited to regulations by any government authority, fire, flood, power outage, interruption, sanctions, failure or defects in internet, telephone or other interconnection service or in electronic or mechanical equipment, staff illness of Improve Digital exceeding ten (10) working days, strikes, late delivery or unsuitability of materials, the failure by third parties engaged by Improve Digital to fulfil their obligations and/or default by one of the suppliers of Improve Digital.
If Improve Digital is unable to meet its obligations due to Force Majeure, it will not be liable. Insofar as compliance is not permanently unfeasible, its obligations will be suspended. If the period during which compliance is not feasible due to Force Majeure lasts or looks set to last longer than two (2) months, either Party will be entitled to terminate the Agreement, without any liability to pay damages.
If at the time Force Majeure takes effect, Improve Digital has already partly met its obligations or can only partly meet its obligations, it will be entitled to invoice separately the Service(s) that have already been delivered or can be delivered, and Seller will be obliged to settle this invoice as if it concerned a separate agreement.

SANCTIONS

Without limiting any previously stated compliance obligations herein, Seller hereby represents and warrants that, in addition to being compliant with the Sanctions obligations stated herein:

(i) neither Seller, nor any person(s) or entity(ies) owning or controlling (whether individually or collectively) 50% or more of Seller, is a Sanctioned Person,

(ii) neither Seller nor its agents, directly or knowingly indirectly: (a) has transacted any business with, provided or received any services to/from, or otherwise acted for the benefit of any Sanctioned Person; or (b) will transact any business with, provide or receive any services from, or otherwise act for the benefit of any Sanctioned Person.

Seller covenants that it shall, in fulfillment of its obligations in this Agreement, follow reasonable procedures and conduct appropriate due diligence to assure that it does not engage, formally or informally, with any Sanctioned Person in connection with its performance under this Agreement. Seller agrees that if such activity is identified or if Seller itself becomes subject to any Sanctions whether directly or because of 50% or more ownership by one or more Sanctioned Persons), it will immediately notify Improve Digital, which may, in its sole discretion, immediately suspend or terminate this Agreement and/or any agreement between the Parties, without limiting any other right, without liability and without a notice period.

CONFIDENTIALITY

Each Party will maintain as confidential any information furnished or disclosed to one Party by the other Party, whether disclosed in writing or disclosed orally, relating to the business of the disclosing Party and its customers, with the exception of any information needed to improve the result of the trading of media inventory.
Each Party will be entitled to announce publicly that it has entered into the Agreement. Seller grants Improve Digital a non-exclusive, non-transferable, royalty-free license to use in block and stylized form Seller’s company name, service, and/or logo for use by Improve Digital on its website, promotional materials, and marketing collateral in combination with the Service(s). However, neither Party will make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of the other Party or its employees, directors and/or officers.

TERM OF THE AGREEMENT & TERMINATION

An Agreement will remain into effect for the period as specified in the Agreement. After such period the Agreement will each time tacitly be renewed by the same term. The Agreement can be terminated by either Party by giving a registered notice thereof no less than three (3) months prior to the end of the term of the Agreement. If the Agreement has been agreed on for an indefinite period of time, the Agreement can be terminated by either Party by giving a registered notice thereof no less than six (6) months prior to the termination date of the Agreement.
Each of the Parties will be entitled to terminate without any liability whatsoever an Agreement prematurely by written notice to the other Party in each of the following cases: (i) if the other Party breaches its obligations under such Agreement and has not cured such breach within thirty (30) days following receipt of a written notice of the breach; (ii) if the other Party applies for a suspension of payments or is granted a suspension of payments, bankruptcy or winding-up proceedings are instituted against the other Party or the other party is declared bankrupt or wound up; the other party’s company is liquidated or terminated; or (iii) a substantial part of the other Party’s capital is attached preventing it from fulfilling its obligations under the Agreement.
Parties agree that any unjustified failure of Seller to pay the Seller Amounts or any other amount due to Improve Digital and unauthorized use of the Service(s) by Seller or on behalf of Seller will qualify as a default which justifies termination of the Agreement.
Seller waives its rights to dissolve or nullify the Agreement or to have the Agreement dissolved or nullified in accordance with the Dutch Civil Code.
Upon occurrence of any of the events referred to above, all payments to be made by Seller under the Agreement will become immediately due and payable.
Upon occurrence of any of the events referred to above, Seller will immediately terminate the use of the Service(s). All use of the Service(s) after such termination by employees of Seller or its affiliates and other persons who use or have used the software on behalf of Seller will be attributed to Seller and Seller will be liable for such unauthorized use.
In case of termination, dissolution or nullification of the full Agreement or parts of it, Seller will remove or deactivate pixels and/or javascripts provided within the scope of the Service(s) or distributed to partners for tracking purposes, within one (1) month after the termination, dissolution or nullification of the Agreement. In case of non-compliance of this obligation of Seller, Improve Digital will invoice Seller the remaining requests at a rate of € 0.025 per request.
Termination of the Agreement for whatever reason will not release Seller from its obligation to pay the Seller Amounts or any other amounts charged for the term of the Agreement until the termination date.
Termination of the Agreement does not release Parties from their obligations under the following provisions of these STC:48-51 (Liability), 54-57 (Intellectual property rights), 63-64 (Confidentiality), 65-73 (Term of the Agreement & Termination), 84-86 (Applicable law and jurisdiction), or other provisions of the Agreement which, by their nature, are intended to survive the termination of the Agreement.

REPRESENTATIONS, RESPONSIBILITIES AND OBLIGATIONS OF SELLER

Seller represents and warrants that it has full authority to enter into and carry out the Agreement and to the extent it resells Ad Inventory it is an Authorized Digital Seller. Upon request of Improve Digital, Seller will provide incontrovertible proof that it is an Authorized Digital Seller and substantiate this with conclusive evidence. Seller is solely and fully responsible and liable for (i) its own use or the use of Connected Third Party to Platform or the Service through the Seller of the Platform and the Service(s) and (ii) its and such Connected Third Party’s acts and omissions in connection with the Platform and the Service(s).
Seller will at all times (i) be solely responsible for soliciting Buyers, (ii) enter and otherwise provide accurate and complete information to Improve Digital, the Service(s) and the Platform (iii) comply with Improve Digital’s Policies, including Seller Creative Enforcement Ad Quality Policy and third party supplier’s posted policies for use of the Service(s) and/or the Platform and/or tools of third party suppliers instructed by Improve Digital, (iv) be prohibited from damaging or tampering with any part of a Service or in any other way interfering with or disrupting the integrity or performance of the Service(s) and/or the Platform and/or tools of third party suppliers instructed by Improve Digital, (v) be prohibited from attempting to gain unauthorized access to the Service(s) and/or the Platform and/or tools of third party suppliers instructed by Improve Digital or the related systems or networks or breaching any Service security measure or (vi) be prohibited from misappropriating any part of a Service or modifying, disassembling, decompiling, reverse engineering, copying, reproducing or creating derivative works from or in respect to Services or any part of a Service.
Seller agrees that it is responsible for the use of the Service(s) and/or the Platform and/or tools of third-party suppliers instructed by Improve Digital, by its employees, approved agents, subcontractors and/or other Connected Third Party, and that it will ensure that such employees, approved agents, subcontractors and/or other Connected Third Parties comply with the terms of this Agreement. Seller acknowledges that in the event of a breach of this clause or other clauses in the Agreement, Improve Digital reserves the right, in its sole discretion exercised in good faith, to suspend or permanently deactivate Seller’s account in the Platform and/or Service(s).
All invoices sent by a third party to Improve Digital which can be reasonably allocated to the Seller will be charged on Improve Digital to Seller by means of an invoice and will be paid by the Seller to Improve Digital. Seller will defend, indemnify and hold harmless Improve Digital from all third-party claims or liabilities (including, without limitation, reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to such invoices. All Invoices of Improve Digital will be payable within thirty (30) days after receipt of the invoice. In the event of failure to pay within this term, Seller will be in default without any notice of default or reminder being required and will be obliged to pay interest of one and a half percent (1.5%) per month on the entire amount that is due as of the date on which payment should have been made.
Seller declares, undertakes and accepts that no rights of any third party (including intellectual and industrial property) are infringed by the Ad Inventories, Sites or any other data supplied by Seller to Improve Digital in connection with the Services, and that Seller has all required licenses, consents and authorizations of right holders, publishers, authors, composers, producers, photographers, performers or other third parties, if any, to commercialize the same under this Agreement without infringement or breach, clear of any duties, royalties or debts of any kind to such third parties being incurred by Improve Digital. .
Seller agrees that it will be fully responsible for compliance with GDPR and other applicable data protection laws. This includes all obligations but specifically obtaining and maintaining all necessary consents and transparency obligations.
Seller represents and warrants that it will comply with the obligations under the Agreement and Seller will fully defend, indemnify, and hold harmless (volledig vrijwaren) Improve Digital from any and all government enforcement action, third party claims, including from Data Subjects, and/or liabilities (including reasonable attorneys’ fees) resulting from any breach of its obligations, representations, warranties set forth in Sections 74 to 80.

MISCELLANEOUS

In the event that any provision(s) of these STC will be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action will not negate the validity or enforceability of any other provisions thereof and such provision(s) will be deemed severed from these STC. Every other provision will remain in full force and effect.
The failure on the part of either Party to exercise, or any delay in exercising, any right or remedy arising from the Agreement will not operate as a waiver thereof; nor will any single or partial exercise of any right or remedy arising from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the Agreement or from any related document or by law.
Seller will not have the right to withhold or reduce any payments or to set-off existing and future claims against any payments due under the Agreement or under any other agreement that Seller may have with Improve Digital and agrees to pay the amounts under an Agreement regardless of any claimed reduction, withholding or offset which may be asserted by Seller or on its behalf.

APPLICABLE LAW AND JURISDICTION

These STC and the Agreement and all agreements relating thereto or resulting therefrom will be governed by and construed in accordance with the laws of the Netherlands. These STC and the Agreement and all agreements relating thereto or resulting there from shall be governed by and construed in accordance with the laws of the Netherlands (including the provisions of Section 3, Title 5, Book 6 of the Dutch Civil Code)”
The United Nations Convention on Contracts for the International Sale of Goods will not apply to any offer, confirmation or Agreement.
All disputes, controversies or claims arising out of or in connection with these STC or the Agreement or relating to these STC or the Agreement or any further agreements relating thereto or resulting there from, or the breach, termination or invalidity thereof, will exclusively be submitted in the first instance to the Court of Amsterdam, the Netherlands.

CHANGE OF STC

Improve Digital reserves the right to change these STC. Seller’s continued use of the Service(s) and/or the Platform after a change of the STC constitutes the acceptance of these terms.
These STC are drawn up in the English language on the express condition that all words, terms and expressions used herein will be construed and interpreted in accordance with Dutch law.