This Publisher Agreement ("Agreement") is entered by and between you and the Publisher or entity that you represent (hereinafter referred to as "Publisher", "You" or "Your") along with its Climoads and our entity, details of which are incorporated in the respective Insertion Order along with its Climoads, group Companies (hereinafter referred to as "Company").
Unless the context otherwise requires, this Agreement shall be construed as follows:-
1.1. "Action" shall include any of the following: view, click, installation of any software or application, or any other action, as applicable and agreed upon between the Parties, provided the foregoing was performed by an actual end user in the normal course.
1.2. "Ads" or "Advertisements" shall mean any promotional content, in whatever format (including without limitation text, graphics, video, audio, rich media and links), provided by Company’s upstream advertisers ("Advertisers") to be served through or displayed on the Property either owned by Publisher or for which Publisher is authorized in connection with the Service.
1.3. "Climoads" means any entity that controls, is controlled by, or subject to common control with, a party. The term "control", including the terms "controlling", controlled by" and "under common control with", means the possession, direct or indirect, of the power to direct or cause the direction of management and policies through the ownership of voting shares.
1.4. "Applicable Laws" means all applicable laws, codes, ordinances, orders, rules, and regulations of local, state, and federal governments and agencies, including without limitation the California Consumer Privacy Act and the General Data Protection Regulation of the European Union (GDPR).
1.5. "Approved Transactions" shall mean an Action, excluding any Action which: (i) resulted from or engaged with Fraudulent Activity, as determined by Company in its sole discretion; (ii) was performed by the Publisher’s employees, agents or contractors; or (iii) violates the Campaign Conditions.
1.6. "Campaign Conditions" means conditions and/or restrictions imposed by the Company or its Advertiser for the promotion and distribution of the Ads.
1.7. "Confidential Information" shall mean any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the Effective Date (as hereinafter defined), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, research and development, formulas, programming, know-how, proprietary knowledge, technology and any related documentation, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications, financial and marketing information, business plans, business procedures, clients’ list, business partners or other information disclosed by one of the parties hereto (the "Disclosing Party") to the other party (the "Receiving Party") either directly or indirectly in writing or orally. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) is required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate it was disclosed by the third party without any obligations of confidentiality. Company’s Confidential Information includes the terms and pricing of this Agreement.
1.8. Effective Date- The Date as set forth in the IO or the date where the Publisher starts to avail services of the Company.
1.9. "Fraudulent Activity" shall mean (a) the display, promotion, distribution or interaction with the Advertisements in any manner which engages with anything other than natural persons viewing actually displayed Advertisements in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology, as determined by Company in its sole discretion which may lead to falsely generated or artificially-inflated revenues; and/or (b) the automatic redirection of visitors, blind text links, misleading links, forced clicks, etc. from the Advertisements. Without limiting the foregoing, Fraudulent Activity shall include any of the following practices: (i) inclusion or counting of views or clicks: by a natural person who has been engaged for the purpose of viewing the Advertisements, whether exclusively or in conjunction with any other activities of that person (including, without limitation, employing any means to induce, encourage, incentivize or trick the end user into viewing or clicking on the Advertisements); and/or by non-human visitors (such as bots); and/or that are not actually visible to the human eye, discernible to human senses or perceived by a human being; (ii) masking or cloaking any URL, or employing any means to obscure the true source of traffic, or conceal conversions; (iii) generating automated, fraudulent or otherwise invalid impressions, inquiries, views, clicks or conversions, or artificially inflating impressions, inquiries, views, clicks, or conversions, or employing any misleading or practices (such as repeated manual clicks); (iv) Installing or transmitting Malicious Code.
1.10. "Malicious Code" shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users’ web or mobile navigation or intervenes with the end users’ control over the operating system, browser settings, browser functionality or webpage’s display.
1.11. "Objectionable Content" shall mean content that promotes or contains links to content that is (i) pornographic, sexually explicit or obscene, (ii) harassing, threatening, abusive, inflammatory or racist, (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) is misleading or deceptive; (vi) violates the Proprietary Rights, or the privacy, publicity, moral or any other right of any third party; (vii) offers or disseminates any counterfeit or fraudulent goods, or services, schemes, investment opportunities or promotions or advice not permitted by law; (viii) promotes the use of drugs or drug paraphernalia, illegal substances or dangerous products; (ix) promotes online gambling, or (x) harmful to Company’s or any other party’s systems and networks, or includes Malicious Code.
1.12. "Proprietary Rights" shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
Subject to the Publisher’s compliance with the terms hereof, during the Term, Company hereby grants the Publisher a limited, worldwide, non-sublicensable, non-transferable, royalty-free, non-exclusive, revocable license to use the services solely for the purpose of serving Ads through Company collectively, the "Service".
3.1. Except as set forth expressly herein or as permitted by the Service, Publisher shall not, and shall not permit any third party, to (a) copy, decompile, disassemble, adapt, translate, create derivatives works of, reverse engineer or attempt to find the underlying code of, the Service; (b) modify the Service, or insert any code or product, or in any other way manipulate the Service in any way; (c) modify the Services in any way without Company’s prior written consent, (d) sublicense, sell, rent, lease or distribute the Services or bypass any security measure of Company with respect to the Service, (e) distribute the Services on a stand-alone basis, (f) use the Services to create (or facilitate the creation of) any product or service that is competitive with the Service; (g) alter, modify, crop or create derivatives works of the Ads, or any other creative and substantive materials, in whatever format, provided by Company or its Advertisers for the purpose of the delivery of the Ads ("Creative"); or (h) use the Service except for Publisher’s own internal purposes. Publisher releases Company from and waives any and all claims and/or demands against Company in connection with all aspects of the Creative.
3.2. To the extent any of the restrictions set forth above are not enforceable under applicable law, Publisher shall inform the Company in writing prior to engaging in any of the applicable activities.
3.3. Publisher may not use robots, spiders, scraping or other technology to access or use the Service to obtain any information beyond what Company provides to Publisher under the Agreement.
3.4. Publisher may not use the Service to syndicate, mediate or broker campaigns or the distribution of Ads through other third parties or Climoads, without the express written approval of Company. Publisher shall make available to Company, upon request, with any information relating to the Property and any campaign and shall ensure that the distribution or promotion of the Ads is in compliance with the Campaign Conditions.
3.5. The Company reserves the right to terminate this agreement with immediate effect in the event the Publisher is found to be in breach of its obligations under this clause. Publisher agrees to indemnify the Company of any losses, damages or claims which the Company incurs due to the Publisher’s breach of this clause.
4.1. Mutual Warranties. Each Party represents and warrants that: It is duly organized under applicable law and has sufficient authority to enter into this Agreement and that, The execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
4.2. Company Warranties. Company represents and warrants that the Service: does not, to the best of its knowledge, infringe the intellectual property rights of any third party; comply with all applicable law and regulations (provided, that with respect to data provided by Publisher to Company, Company’s compliance with applicable law is subject to Publisher’s full compliance with applicable law with respect to such data, including its transfer to, and processing by, Company); does not to the best of its knowledge contain any Malicious Code.
4.3. The Company reserves the right, in its sole discretion and without liability, to reject or remove any Ads or Creative from the Service. Publisher acknowledges that any campaign may be terminated or suspended, whether by Company or its Advertisers, at any time and without notice to Publisher. Publisher hereby acknowledges that Company is providing the Service as an intermediary between Advertisers and Publisher and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties (including with respect to the content of the Creative or Ads).
4.4. Publisher Warranties. Publisher represents and warrants that its property: does not infringe the intellectual property rights of any third party; does not contain any Objectionable Content, and is not directed to or primarily appeals to children under the age of 13; complies with all applicable laws and regulations, including applicable data protection laws; does not collect, use or transfer the data of end users in any manner not clearly and accurately disclosed pursuant to a privacy policy that complies with applicable law and regulations; and does not contain any Malicious Code. Does not employ improper ways and means to deliver Objectives (Clicks, Installs, Activations or Impressions) using either manual cheats, specialized programs, code/s, script/s, bot/s, Trojan/s, emulator/s, or other fraudulent methods. The Publisher shall not deliver Objectives by auto initiation of Video Views, Page Visits, Clicks, Activations and Installs and that these must be a result of user-initiated action. Publisher acknowledges that if Publisher uses any of the above-mentioned improper ways and means to deliver any Objectives then Company has the right to reject all payments where such improper ways and means are detected and/or reasonably suspected and has the sole right to terminate any outstanding order.
5.1. Publisher shall have all right, title and interest in its Property. Company retains all right, title and interest in the Proprietary Rights in the Service, as well as any derivative therefrom. If Publisher provides Company with any feedback regarding the Service, Company may use all such feedback without restriction. Nothing herein shall be interpreted to provide Publisher any rights in the Service except the limited right to use and receive the Services as set forth herein. The Company or its Advertiser shall own all the rights, title and interests in the Creative or the Advertisement supplied to the Publisher or created by the Publisher for the purpose of this Agreement.
5.2. Nothing in this Agreement shall be construed as providing the Publisher a right to use any of Company or its Climoads’ trade names, trademarks, service marks, logos, or other distinctive brand features. Company reserves all rights in the Services not expressly licensed above. You agree that your use of any components of the Services that are licensed under an open-source software license are subject to and governed solely by the terms of the applicable license(s) for that software, and not by this Agreement.
6.1. Subject to the terms herein, the Company shall make payments to the Publisher subject to the terms communicated to the Publisher, solely in consideration for Approved Transactions. The payments due to Publisher ("Consideration") shall be solely calculated and based on Company’s tracking systems and/or reports, which shall be considered final and binding, and no other measurements or statistics of any kind shall be accepted or have any effect. Company shall make available to Publisher such reports on a monthly basis.
6.2. If no discrepancy is reported to Company by Publisher within seven (7) calendar days from the date of receipt of campaign reports, the numbers will be considered as correct and final. Any discrepancy reported within 7 days as mentioned above is subject to be negotiated with evidence by both Parties.
6.3. Notwithstanding anything to the contrary, Considerations shall be made solely for Approved Transactions, and Company shall not be obligated to remit Considerations, and shall be entitled to withhold Considerations or demand a refund (in the event Consideration were already paid) (a) in connection with payments that were not fully remitted to Company from its Advertisers, or approved by its Advertisers (b) if determined by Company, at its sole discretion, that Publisher has engaged in Fraudulent Activity, was in breach of this Agreement or that Consideration were paid for Approved Transactions that are later determined to have not met the requirements set forth herein to be an Approved Transaction.
6.4. Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher’s account. Any bank fees and other commissions incurred by Company due to any error or omission of contact or payment information may be deducted by Company from any Consideration due to Publisher. It is hereby clarified that Publisher shall not be entitled to receive any additional payment except for the Consideration agreed upon by Company and as communicated to Publisher.
6.5. The company reserves the right to deduct, set off, claw back or charge back any amounts Publisher may owe to Company against any amounts payable or otherwise owing to Publisher.
6.6. All payments due to Publisher under this Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, if applicable) (collectively, "Taxes"). Publisher will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Company’s net income. Company may be obligated by law to obtain tax information from Publisher and payments to Publisher may be withheld until Publisher provide this information or otherwise satisfy Company that Publisher is not an entity from whom Company is required to obtain tax information or Also, if required by applicable law, payments may be subject to tax withholding.
6.7. All Consideration shall be remitted to Publisher in USD within net sixty (60) days from the date of receipt of undisputed invoice and subject to its approval by Company, whether by wire transfer (or similar service) to the account specified by the Publisher. All the fees and/or commissions related to the payment shall be at the exclusive charge of Publisher.
7.1. The Service enables the Publisher to collect and track data concerning the characteristics and activities of Property’s end users as long as the Services are used, including Data pertaining to end users or their devices, whether identifiable or not ("Data"), pursuant to the existing device permissions.
7.2. Publisher represents and warrants that: (a) Publisher is permitted to collect, use and transfer Data through the Service; (b) it has provided its end users with sufficient notice (including through an adequate and accessible privacy policy) and obtained their permissions, as required by applicable laws and regulations, as well as any applicable mobile application marketplace’s policies and requirements (such as Google Play or the App Store, as applicable), in connection with the collection, use and disclosure of Data through the use of the Service, including with respect to the use of any technological methods for the purpose of collecting such Data (such as cookies), including for the purpose of displaying interest-based or targeted content: (c) it shall collect, use or disclose Data in accordance with any applicable laws and with its privacy policy.
7.3. Company may use the Data in accordance with applicable laws and regulations, and with its own privacy policy, available at Company’s website.
7.4. Publisher shall not provide to Company any data regarding children under the age of 13, or any health, financial, or insurance data or other data which may be considered as of sensitive nature.
7.5. By entering into the Agreement, Publisher hereby agrees to the terms of the Data Protection Addendum, which is incorporated herein by reference.
8.1. During the course of services, parties have or shall receive, or access to records and information of confidential and proprietary nature to Disclosing Party. The Receiving Party acknowledges and agrees that such information is an asset of Disclosing Party, is not generally known to the trade, is of a confidential nature and, must be kept strictly confidential and used only in the performance of Receiving Party duties under this Agreement. The Receiving Party agrees that it will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except for the purpose of this agreement or as otherwise directed by written consent of Disclosing Party. The Receiving Party shall disclose only such information to employees who "need to know" the Confidential Information in connection with the Agreement and only after such employees have been informed of the confidential nature of the information and have agreed to be bound by a similar binding obligation of confidentiality and non-disclosure. The Receiving Party further agrees that the Disclosing Party Confidential Information shall remain the sole property of the Disclosing Party. No license shall be granted by the Disclosing Party to the Receiving Party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided therein.
8.2. Upon termination of this Agreement or upon the request of Disclosing Party, the Receiving Party shall return to Disclosing Party all of the confidential information or destroy all of the confidential information, and all copies or reproductions thereof, which are in Receiving Party possession or control. The Receiving Party shall provide the Disclosing Party with a written certificate thereby certifying and informing the Disclosing Party that all the confidential information, its copies and reproductions thereof has been destroyed. If the Receiving Party breaches any of its obligations with respect to confidentiality and unauthorized use of the Disclosing Party’s Confidential Information, Disclosing Party will be entitled to seek equitable and injunctive relief to protect rights and interest as-well as other remedies available to the Disclosing party under law and equity. This section shall survive the expiry or termination of this agreement for a period of 1 year post expiry or termination of this agreement.
9.1. Company Indemnification. Company shall defend, indemnify and hold harmless Publisher from and against any direct damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively "Damages")) which Publisher may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party ("Claim") arising from: (a) any breach of Company’s obligations, representations or warranties herein; or (b) a claim that the underlying technology of the Services infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Company shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Service not in compliance with this Agreement or applicable law, (b) the combination of the Service with any code or services not provided by Company, (c) the modification of any Service by any party other than Company or (d) the use of any Service that is not the most up-to-date Service.
9.2. Publisher Indemnification. Publisher shall defend and indemnify Company (and its Climoads, officers, directors and employees) from and against any and all Damages which Company may suffer or incur in connection with any Claim arising from: (a) any breach of Publisher’s obligations, representations or warranties herein; or (b) any use of the Service in violation of any applicable law or regulations (c) gross negligence and willful conduct or fraud.
9.3. Procedure. The obligations of either Party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services.
10.1. Except as expressly provided herein, Publisher accepts the Service on an "AS IS" and "AS AVAILABLE" basis and acknowledges that Company makes no other warranty and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
10.2. Company does not guarantee that the Service will always be complete, accurate, safe, secure, bug-free or error-free, or that the foregoing will always function without disruptions, delays or imperfections. Company may change, suspend or discontinue the Service at any time, including the availability of any feature or database, without notice or liability.
11.1. In no event shall the Company, its directors, officers, Climoads or agents be liable for any consequential, indirect, special or punitive damages, arising out of or relating to the Service or the arrangements contemplated herein.
11.2. Except for intentional misconduct or gross negligence, Company’s entire liability for the provision of the Service or under any provision of this Agreement shall not exceed the amount of payment received by Publisher from Company in the one (1) month preceding the applicable claim.
12.1. The term of this Agreement shall commence on the Effective Date and shall continue until terminated by either Party pursuant to this Agreement ("Term").
12.2. Either Party may terminate this Agreement at any time by providing a prior written notice of 30 days to the other Party, without liability to the other Party.
12.3. Upon any termination or expiration of this Agreement, Company will cease providing the Service and all licenses and rights provided herein shall be revoked. In the event of any termination (a) any undisputed outstanding amounts of Approved Transactions will be paid to Publisher within a net thirty (30) days period after such termination; (b) any outstanding debit balance shall be paid by Publisher within 30 business days after such termination.
12.4. Any obligations of the Parties that by their nature are intended to survive the termination or expiration of this Agreement, including the obligations of the Parties in Sections 3 – 9 and 12 – 14 of this Agreement, shall survive any termination thereof.
12.5. Either Party may terminate this Agreement immediately if the other party materially breaches this Agreement and the non-breaching party provides the breaching party with a written notice of the breach, and the breaching party does not cure such breach within 15 days of the provision of such notice.
During the Term of this Agreement and for a period of one (1) year hereafter, Publisher shall not knowingly solicit, directly or through any third party, any Advertiser for whom it delivered service pursuant to the Company under this Agreement. The Publisher shall not encourage any such Advertiser to transfer from the Company services and work directly with the Publisher. Without prejudice to any other right of the Company according to this Agreement and the applicable law, in the event the Publisher directly solicits such Advertiser and/or causes them to work directly with itself, the Publisher shall pay Company 50% of the revenue what Company would have otherwise earned if the Publisher had not violated this provision. During the term of this agreement and for a period of 1 Year thereafter, Publisher shall not (either directly or indirectly through a Third Party) employ, solicit to employ, cause to be solicited for the purpose of employment, any employees of Company, or aid any third person to do so, without the specific written consent of Company.
14.1. Updates. If Company provides the Publisher with any upgrades, patches, enhancements, or fixes for the Services ("Updates"), then such Updates will become part of the Services and subject to this Agreement. The Publisher is required to use the most updated and current version of the Services.
14.2. Modifications. The Company may modify or discontinue offering the services, at any time and without notice to the Publisher. The Company makes no guarantees with respect to the availability or uptime of its Service; however, the Company shall use its reasonable commercial efforts to ensure that the availability or uptime of the Service shall meet industry standards.
14.3. Publicity. During the Term, Company may refer to Publisher as a business partner of Company, including by displaying Publisher’s name and logo on Company’s website and other marketing materials.
14.4. Export Controls. Publisher represents and warrants that it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) is not identified as a "Specially Designated National" by the Office of Foreign Assets Control; (iii) is not placed on the U.S. Commerce Department’s Denied Persons List.
14.5. Neither Party shall be an entity or person currently the subject of any economic sanctions administered or imposed by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the United Nations Security Council, the European Union, the United Kingdom, or any other relevant authority.
14.6. Entire Agreement. This Agreement and any amendments thereto, represent the entire and complete agreement between the Parties regarding the subject matter hereof and supersedes any and all other agreements between the Parties, whether written or oral. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
14.7. Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement. The parties will perform under this Agreement as independent contractors.
14.8. Force Majeure. Either Party shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, epidemic, pandemic mechanical, electronic or communications failure or degradation.
14.9. No waiver. The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder.
14.10. Notices. All notices under this Agreement must be delivered in writing by courier, certified or registered mail, or by email to the other party at the address set forth in the Insertion Order.
14.11. Amendments. Company may revise this Agreement from time to time, in its sole discretion, and the most current version will always be posted on Company’s website.
14.12. Assignment. Publisher may not assign any of its rights or obligations under this Agreement without the prior written consent of Company.
14.13. Governing law. This Agreement shall be governed by the laws of Singapore, any dispute or claim arising out of or relating to this Agreement, or any breach thereof shall be solely settled by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC") for the time being in force.
This Data Processing Addendum ("DPA") entered into between the Parties or Company Insertion Order and applicable terms and conditions (the "Agreement"). You acknowledge that you (collectively, "You", "Your", or "Data Controller", "Business", "Publisher", "SSP") have read and understood and agree to comply with this DPA, and are entering into a binding legal agreement with the Company ("Company", "Data Processor", "DSP") to reflect the parties’ agreement with regard to the Processing of Personal Data.
WHEREAS, Company provides a platform which facilitates and optimizes Advertising campaigns for advertisers, as set forth in the Agreement for the Publisher to display on its property and/or its Business partners’s property, the advertisement of Company or its advertisers to the end users (“End Users”); and WHEREAS, Company may process Personal Data on Your behalf, in the capacity of a Data Processor.
1.5 Definitions:
“Climoads” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Controller” or “Data Controller” or “Business” means the entity which determines the nature purposes and means and the types of targeted individuals of the Processing of Personal Data.
“CCPA” means the California Consumers Privacy Act of 2018, and its modifications, amendments and regulations, including the California Privacy Rights Act of 2020.
“Data Protection Laws and Regulations” means the applicable laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom and the US, applicable to the Processing of Personal Data under the Agreement.
“GDPR” means the Regulation (EU) 2016/679 (General Data Protection Regulation).
“Personal Data” or “Personal Information” means any information relating to an identified or identifiable natural person.
“Processor” or “Data Processor” or “Service Provider” means the entity which Processes Personal Data on behalf of the Controller.
“Sub-processor” means any Processor engaged by Company and/or Company Climoads to Process Personal Data on behalf of Publisher.
2.1 The Parties acknowledge and agree that with regard to the Processing of Personal Data, the Publisher is the Controller of the Personal Data and Company is the Data processor of such Personal Data, except when the Publisher acts as a Data Processor of the Personal Data, in which case Company is a sub-processor.
3.1 Publisher shall, in its use of the Services, at all times comply with any and all applicable laws, rules, regulations, platform policies, any applicable self-regulatory regimes and best industry standards. Publisher agrees that it is responsible and shall be fully liable at all times for providing any and all required notices, disclosures and obtaining any and all End Users consents required by Data Protection Laws and Regulations.
3.2 Publisher shall display on the applicable Property a link to an accessible privacy policy that will provide the End Users with all disclosures required by applicable privacy laws.
4.1.1 Subject to the Agreement, Company shall Process Personal Data in accordance with Publisher’s documented instructions as necessary for the following purposes: (i) Processing in accordance with this DPA and the Agreement and Data Protection Laws and Regulations; (ii) Processing to comply with other documented reasonable instructions provided by Publisher.
5.1 If Company receives a request from a Data Subject to exercise the Data Subject's right as described under Data Protection Laws and Regulations (“Data Subject Request”), Company shall, to the extent legally permitted, notify and forward such Data Subject Request to Publisher.
6.1 Company shall grant access to the Personal Data to persons under its authority only on a need to know basis and ensure that such persons engaged in the Processing of Personal Data have committed themselves to confidentiality.
7.2 In case Company intends to add a Sub Processor, it shall notify the Publisher and the Publisher may reasonably object to Company’s use of a Sub-processor for reasons related to the GDPR by notifying Company promptly in writing within three (3) business days.
8.1 Company shall maintain all industry-standard technical and organizational measures required pursuant to Article 32 of the GDPR for protection of the security, confidentiality and integrity of Personal Data, as set forth in Schedule 3.
Company shall notify Publisher without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data (a “Personal Data Incident”).
Subject to the Agreement, Company shall delete the Personal Data after the end of the Services relating to Processing, and shall delete existing copies unless applicable law requires storage of the Personal Data.
11.1 The Parties acknowledge and agree that, by executing the DPA, the Publisher enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Climoads, thereby establishing a separate DPA with the Company.
12.2.1 With respect to the EU transfers of Personal Data, Publisher as a Data Exporter and Company on behalf of itself and each Company’s Climoads hereby enter into the Standard Contractual Clauses (Module 2 Controller to Processor) set out in Schedule-2.
This DPA shall automatically terminate upon the termination or expiration of the Agreement under which the Services are provided.
14.1 To the extent that the Personal Data is subject to the CCPA, Company shall not sell or share Publisher’s Personal Data. Company is considered a Service Provider (as defined by CCPA).
In the event of any conflict between the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the Agreement. Company’s (including Company’s Climoads’) entire, total and aggregate liability shall be limited to the amounts paid by Company under the Agreement within three (3) months preceding the event that gave rise to the claim.
Type of Personal Data Processed: Device Identifiers, IP Address (country/city), Advertising ID, Device make, model, operating system, carrier, network connection type, and user-agent settings.
Categories of Data Subjects: End Users.
Frequency of Transfer: Continuous basis.
The Standard Contractual Clauses Module-2 (Controller-to-Processor) will apply with respect to restricted transfers subject to the EU/UK GDPR. The governing law of the clauses shall be Spain (for EU) and England & Wales (for UK transfers).
1. Security measures: Infrastructure is maintained at Amazon Web Services (AWS) / Google Cloud Services (GCP) in secured data centers.
2. Access control: Managed via AWS IAM security policies, personalized office entrance detection systems, and optical space surveillance.
3. Admission control: Google GSuite authentication, private/public key management via AWS IAM, and SSH/SSL data transmission encryption.
4. Availability Control: Redundant data storage in AWS S3 / GCP Cloud Storage, database replication, and multiple incremental data backups.
5. Separation rule: Multi-tenant architecture, separation of test/production data, and distinct development and production environments.