General Terms & Conditions

LiquidM Technology GmbH(“LiquidM”) is a German corporation doing business at Invalidenstraße 74, 10557, Berlin. LiquidM Demand Side Platform is a technological service provider that renders services in the field of the issuance and execution of advertising orders, advertising media, information and communication services in order for its customers to optimize their campaigns across the full range of premium to performance advertising.

The “Company” is a customer of LiquidM specified in the relevant LiquidM Order Form.

1. Agreement

   These Standard Terms and Conditions, together with the LiquidM Order Form (collectively, the “Agreement”) govern the relationship between Company – and any advertisers or agencies that have authorized Company to act on their behalf – and LiquidM (each a “Party” and together, the “Parties”).

   LiquidM reserves the right to modify these Standard Terms and Conditions with effect for the future at any time. In this case, LiquidM will notify the Company of these changes. The changes shall be deemed to be accepted if the Company does not object in the written form within three weeks after receipt of the amendment notification. LiquidM will inform the Company in its amendment notification about the Company’s right to object and the effects of a lack of objection. If the Company rejects the changes, LiquidM has the right to terminate the Agreement.

2. Definitions

   The following terms shall be defined in this Agreement as follows:

   “Ad Inventory” means digital advertising inventory, including, without limitation, mobile website and mobile application advertising inventory on which Ad Units may be displayed through the LiquidM Service.

   “Ad Unit” means a unit of advertising content.

   “Auction Supply” means Ad Inventory purchased by LiquidM via auction from Third-Party Ad Exchanges in its own name and own account and afterward sold to the Company.

   “Bidding and/or Buying Terms” means all of: (i) the conditions that a buyer or seller of Ad Units or Ad Inventory requires with respect to a particular Ad Unit or particular Ad Inventory, as applicable, (ii) the specifications and features of, and rules associated with, a particular Ad Unit or Ad Inventory, as applicable, and (iii) other information and data provided within the LiquidM Service by or on behalf of the Company with respect to a particular Ad Unit or particular Ad Inventory, as applicable.

   “CPM” means cost per thousand Impressions.

   “Impression” means a display of an Ad Unit on a particular item of Ad Inventory.

   “Intellectual Property Rights” means patent rights, copyright rights (including, but not limited to, rights in visual works and moral rights), trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction.

   “Markup Fee” is the fee payable by Company for the LiquidM Service. The Markup Fee will be calculated as a certain percentage of the Media Spendings of the Company as set forth in the LiquidM Order Form.

   “Marks” means a party’s trademarks, trade names, service marks and service names.

   “Media Spendings” means the selling prices for Auction Supply sold and delivered by LiquidM to Company in LiquidM’s own name and on its own account via LiquidM’s proprietary platform. The exact amount of the Media Spendings depends on the numbers of Impressions for the relevant Ad Units and Ad Inventories.

   “Publisher Expenses” means the purchase price for Auction Supply purchased by LiquidM from Third Party Ad Exchanges.

   ”LiquidM Service” means the Company’s right to use LiquidM’s proprietary platform including software and systems implemented by LiquidM to provide its platform and related services to enable Company to make use of the services as specified in this Agreement.

   “Service Policies” means, collectively, all applicable rules, terms, conditions, requirements, technical standards and policies of LiquidM, Third-Party Ad Exchanges and other third parties that are set forth in the LiquidM user interface and/or provided by LiquidM to the Company from time to time.

   “Third-Party Ad Exchanges” means sellers of Ad Inventory.

3. Grant of license; limitations

   3.1.  Grant of License. Subject to Company’s payment of the Mark-Up Fee when due and compliance with the Service Policies and with the Agreement, LiquidM grants to Company – and Company accepts – the non-exclusive, non-transferable, non-sublicensable right and license to access and use the LiquidM Service during the term of this Agreement. The LiquidM Service is provided by LiquidM over the Internet, and the foregoing does not grant any right to Company to receive or use copies of any LiquidM software code other than through the web interfaces provided by LiquidM. Company hereby expressly grants to LiquidM – and LiquidM accepts – all rights necessary to enable LiquidM to store, audit, optimize, deliver and serve Ad Units to Ad Inventory and otherwise provide the LiquidM Service to Company.

   3.2.  Limitations. Company hereby explicitly agrees that it will not and will not enable any third party to: (a) reproduce or distribute or make available the LiquidM Service or any portion thereof to any third party; (b) use or authorize use of the LiquidM Service for any purpose not specified in this Agreement; (c) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing or any other unauthorized purposes the LiquidM Service or access thereto; or (d) modify, translate, reverse engineer, reverse compile, disassemble the LiquidM Service or any portion thereof, or attempt to do any of the foregoing. For the avoidance of doubt, LiquidM expressly reserves all Intellectual Property Rights not expressly granted under this Agreement. Except as explicitly set forth herein, LiquidM does not grant any other license (express or implied) to LiquidM’s Intellectual Property Rights. The Parties acknowledge and agree that nothing in this Agreement or the performance hereof will operate to or shall be construed to grant either Party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other Party.

4. Auction Supply

   LiquidM will purchase Auction Supply from Third Party Ad Exchanges. It will then sell it to Company in its own name and on its own account at a price that takes into account the Bidding and Buying Terms entered by the Company on LiquidM’s proprietary platform. The prices for the Media Spendings will be indicated to the Company on LiquidM’s proprietary platform.

5. Payment Terms; Publisher Expenses.

   5.1.  Markup Fee and Media Spendings Payment, Auction Supply. LiquidM will invoice Company for the Media Spendings and Markup Fees due to LiquidM for the previous month pursuant to this Agreement and the LiquidM Order Form in connection with Impressions served via the LiquidM Service. LiquidM’s Impressions count and LiquidM’s record of the price per Impression will be controlling and final. The company acknowledges and agrees that LiquidM is entitled to implement and modify appropriate tools, policies & procedures at any time in its sole discretion to reduce discrepancies between Impressions counted by Third-Party Ad Exchanges and LiquidM. Any complaints relating to an invoice must be submitted to LiquidM in writing or by email to finance@liquidm.com within two weeks upon receipt of the invoice. If no such complaint has been made within two weeks upon receipt of invoice, the invoice is deemed to be accepted. Payment is due within 30 days after the date of the invoice and in Euro. The company acknowledges and agrees that the use of the LiquidM Service may be subject to credit limits, as determined by LiquidM in its sole discretion from time to time. The company will promptly provide LiquidM with information LiquidM reasonably requires to complete its payment review process. LiquidM’s invoices shall be due regardless of whether Company has collected payments from its clients.

   5.2.  Late Payments. Late payments will be subject to the interest rate of 1.5% per month. If Company fails to make any payment due and payable, Company shall pay all late payment expenses and damages (including attorney’s fees) incurred by LiquidM in collecting such payments. In addition, LiquidM shall be entitled to suspend Company’s access to and use of the LiquidM Service upon giving the Company 48-hours prior notice via email.

   5.3.  Taxation. Except for taxes on LiquidM’s income, Company shall also be responsible for and shall pay any and all applicable taxes or duties, tariffs or the like applicable to the provision or use of the LiquidM Service including German VAT, if applicable.

   5.4.  Publisher Expenses. It is LiquidM’s sole responsibility to arrange for and settle payment obligations with any Third Party Ad Exchanges for Publisher Expenses.

6. Privacy

   The company will use the LiquidM Service under this Agreement in compliance with all applicable privacy laws, rules and regulations. Company will ensure that each of the websites or applications to which a user is directed following a click on any Ad Unit displayed using the LiquidM Service (the “Advertiser Sites”)  contains, and Company will advise each of its client advertisers and agencies that each of their Advertiser Sites is required to contain, (i) a privacy policy that (a) discloses the data collection and usage resulting from use of the LiquidM Service (it being understood that this clause will not be deemed to require those privacy policies to expressly identify LiquidM or any Service, unless otherwise required by law, rule or regulation); (b) contains a conspicuous live hyperlink to an opt-out web site that provides the user the ability to opt out of interest-based advertising through the LiquidM Service, if data is collected on such Advertiser Site(s) through the LiquidM Service for purposes of interest-based advertising; and (c) complies with all applicable privacy laws, rules and regulations; and (ii) to the extent required by applicable law, rule or regulation, a mechanism to obtain, with respect to the use of the LiquidM Service, users’ prior and informed consent to the usage of third-party technology (with reasonable evidence of such consent to be maintained to the extent so required).

7. Confidentiality

   Confidential Information means any non-public information relating to the LiquidM Service or disclosed to Company by LiquidM or Third-Party Ad Exchanges in the course of this Agreement.  Company shall use reasonable care to protect Confidential Information of LiquidM, and shall use Confidential Information only for the purposes of using the LiquidM Service as permitted by this Agreement.  Confidential Information does not include any information that (a) has been made public; (b) becomes public through no fault of Company; (c) was already in the possession of Company without confidentiality obligations; or (d) independently developed by Company.  If Company must disclose Confidential Information in response to the judicial or governmental order, Company will promptly notify LiquidM and provide reasonable assistance to seek confidential treatment.  The company will not disclose or provide any confidential information of Company or any third party to LiquidM.

8. Company Obligations

   8.1.  Authority.  Company hereby represents and warrants that: (i) it has and will have all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder and thereunder; and (ii) it is and will be authorized to act on behalf of each of its advertisers and agencies in order to deliver advertising campaigns via the LiquidM Service, its performance under this contract will not breach any Agreement or other obligation that it has with or to any such advertisers and agencies. The company will be responsible for its advertiser’s and agency’s acts and omissions in connection with the LiquidM Services provided under this Agreement.

   8.2.  Compliance. The company will comply with any terms and conditions of this Agreement, the policies of Third-Party Ad Exchanges, Service Policies, and any Bidding and/or Buying Terms, and additional restrictions and/or specifications that may be provided from time to time.  The company represents and warrants that its use of the LiquidM Service will not violate or cause Company to breach any other agreements it may have with third parties.  Company shall be solely responsible for its use of the LiquidM Service hereunder.

   8.3.  Ad Units. The company agrees that all Ad Units provided by Company will meet the ad format as specified in the respective ad and/or bid request, the Bidding and/or Buying Terms, and any other guidelines that may be applicable to Company as provided by LiquidM from time to time.  Company warrants further that none of the Ad Units provided by Company, and none of the Advertiser Sites (as defined in Section 5), will be illegal, misleading, libelous, obscene, invasive of others’ privacy, or hateful (racially or otherwise) or likely to damage the reputation of LiquidM or the Publisher of the Ad Unit. Company warrants that Ad Units provided by Company will not violate the Intellectual Property Rights of any third party. Only the Company shall be responsible for the compliance of the Ad Units to the aforementioned conditions. LiquidM shall not be obliged to review and examine the Ad Units before their distribution.

   LiquidM shall have the right (but not the obligation) to review creatives in due course, in order to check if the Company violates its obligations under section 8.3. LiquidM reserves the right to refuse acceptance, the use or the publication of the respective creative.

   Should Company note or reasonably believe that the creatives provided by Company violate the standards under section 8.3 above, Company shall be obliged to notify LiquidM without delay and shall use best efforts to stop the creatives from being made available to the public. The company is entitled in this case to provide modified or other creatives to which the aforementioned grounds of objection do not apply. Company’s obligation to pay LiquidM’s remuneration shall remain unaffected.

   8.4.  Acceptable Use.  The company will comply with all applicable laws and regulations. Company will not, will not attempt to, and will not assist or knowingly permit any third party to: (a) deliver any malware, spyware, viruses, worms or other harmful or malicious code into the LiquidM Service and/or onto any Ad Unit made available through the LiquidM Service; (b) pass personally identifiable information to LiquidM, or otherwise associate a cookie, web beacon, or other mechanism with personally identifiable information while using the LiquidM Service; (c) use the LiquidM Service to select or target advertisements (i) based on past visits or clicks by users on mobile websites and applications directed at children under the age of 13 years, or (ii) based on sensitive information pursuant to applicable law; (d) breach, disable, tamper with, or develop or use (or attempt) any workaround for, or otherwise damage any LiquidM Service or any security measure thereof; (e) interfere or attempt to interfere (whether through a device, software, mechanism, routine or otherwise) with the proper working of any LiquidM Service or any activity conducted on any LiquidM server; (f) set, read, write, modify or delete any cookie on any LiquidM owned or operated domain; (g) alter or tamper with any information or materials on or associated with any LiquidM Service.

   In addition, Company will not, will not attempt to, and will not assist or knowingly permit any third party to: (a) disclose Ad Inventory availability, volume, or pricing data obtained through the LiquidM Service; or (b) collect or use data provided by, from or related to a Third-Party Ad Exchanges via a cookie, web beacon, log data analysis or other mechanism or method, for purposes of segmenting, re-targeting, creating or supplementing user profiles or inventory profiles, creating, supplementing or amending interest categories, or syndication or other distribution to third parties, unless (x) such data collection and usage are authorized in writing by or on behalf of the applicable Third-Party Ad Exchanges, as applicable, or (y) the data is independently derived by Company from a user’s “click” on an Ad Unit.

   8.5.  LiquidM reserves the right to invoice compensation for damages and additional costs stemming from creatives that violate this Agreement. The same shall apply in case of violation of policies of LiquidM’s integrated publishers that are made available under www.liquidm.com.

9. Technical Support

   LiquidM will provide the following technical support to Company in connection with its use of the LiquidM Service: (a) LiquidM will provide technical support to Company at no additional charge to resolve technical issues with the LiquidM Service, provided that Company designates no more than 2 employees to submit such support issues; and (b) LiquidM will use commercially reasonable efforts to ensure that the LiquidM Service is available at least 99% of the time calculated on a monthly basis (“Uptime”).  This calculation excludes downtime required for routine maintenance, as notified at least two business days in advance and downtime resulting from technical malfunctions in the systems of Company, any Third Party Ad Exchange, or any other circumstances beyond LiquidM’s reasonable control (including, without limitation, Internet delays, network congestion and ISP malfunctions). For clarity, Uptime calculation is separate from and does not include the delivery or non-delivery of a subset of ads or campaigns.   Notwithstanding anything to the contrary as negotiated between LiquidM and Company, in the event that Uptime in any calendar month is lower than 99%, Company will receive a reduction on the monthly Markup Fee amount of the following month. This reduction is calculated by taking the total number of minutes of downtime experienced in the current month and multiplying it by the amount equal to the Mark-up Fees of the previous month divided by the total number of minutes in the previous month. LiquidM provides telephone-based support services from hours of 9.00 AM to 7:00 PM CET Monday through Friday, except German holidays.

10. Publicity; Press Releases

    Company agrees to grant to LiquidM the limited right to use Company’s name and logo on customer lists and informational materials.  Except as set forth above, neither Party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other Party, which will not be unreasonably withheld or delayed.

11. Term; Termination

    11.1.  Term. This Agreement will begin on the Effective Date and, will remain in effect for one (1) year and will automatically renew for additional one (1) year renewal terms unless either Party provides the other Party with written notice of its intent not to renew the Agreement at least 60 days prior to the end of the then-current term.

    11.2.  Termination for Convenience. Either party may terminate this Agreement, effective as of the last day of a calendar month, by providing 60 days’ prior notice.

    11.3.  Termination for Cause. Either Party may terminate this Agreement, at any time, in the event that the other Party breaches any material term of this Agreement and fails to cure such breach within sixty (60) days following notice thereof from the non-breaching Party.

    11.4.  LiquidM Termination. In addition, LiquidM may terminate this Agreement, at any time, in the event that:

    (a) Company breaches any payment-related provision and fails to cure such breach within (10) days following notice thereof from LiquidM;

    (b) Company becomes the subject of a voluntary or involuntary petition in bankruptcy or proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or,

    (c) The company merges with or is acquired by another company, sells all or substantially all of its assets or stock or business to which this Agreement relates, or is subject to any substantial change in ownership, management or control.

    11.5.  Effect of Termination. Upon any termination of the Agreement: (a) all licenses granted by LiquidM hereunder will automatically cease; (b) each party will promptly return to the other all of the other Party’s Confidential Information within its possession or control; and, (c) the payment dates of all amounts due LiquidM will automatically be accelerated so that they will become due and payable on the effective date of termination, even if longer terms had been provided previously.

12. Disclaimer

    The LiquidM Service is provided “as is” and “as available”.

    The Company accepts that LiquidM does not give any representations and warranties, express, statutory or implied, including any implied warranties for fitness for a particular purpose, title, merchantability, non-infringement, and course of dealings or performance.

    Any defaults in the delivery of advertising materials by LiquidM have to be reported immediately after inspection, but no later than three (3) working days after completion of the order, otherwise Company’s warranty claims shall be excluded.

    In case LiquidM cannot provide the LiquidM Service due to force majeure or any other event outside LiquidM’s control, this has no effect on the contractual conformity of the services provided by LiquidM. Company’s obligation to pay LiquidM’s fees shall, therefore, remain unaffected, however, the Term for the LiquidM Services to be rendered shall be rescheduled if possible.

13. Indemnification

    Company will defend, indemnify and hold harmless LiquidM and its officers, directors, employees and agents from liabilities (including without limitation reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of all third-party claims relating to: (i) Company’s culpable breach or alleged breach of its obligations under this Agreement; or (ii) infringement or misappropriation of a third party’s Intellectual Property Rights in connection with the creative, technology, data or other materials provided by Company to LiquidM in connection with the LiquidM Service hereunder.

14. Limitation of Liability

    LiquidM shall be liable for damage – regardless of its legal ground – only where Company asserts compensation claims based on intent or gross negligence on the part of LiquidM or its agents or representatives. This shall not apply to liability for assured properties and to the violation of major contractual duties, i.e. such obligations the fulfillment of which enables the proper execution of the contract and the observation of which Company may regularly rely on (“Cardinal Duties”). Where LiquidM is not accused of an intentional or grossly negligent violation of a contract in the case of a violation of  Cardinal Duties, liability for damage shall be limited to the foreseeable damage typically occurring; this shall also apply where Company demands compensation for wasted expenditure instead of damages to compensate for the service.

    LiquidM shall not be liable for indirect damage, consequential harm caused by a defect or loss of profit unless LiquidM acted with intent or gross negligence.

    All and any of the above limitations of liability shall not apply in the event of personal injury to life, body or health or in the context of mandatory liability in accordance with product liability acts.

    The above limitations of liability shall also apply to employees, bodies, representatives, agents and sub-contractors of LiquidM.

    All and any claims asserted against LiquidM for a breach of a contractual provision shall lapse within one year of the statutory commencement of the lapse where they do not result from intentional conduct.

15. General Provisions

    15.1.  Notice. All notices under this Agreement must be in writing (including, without limitation, email) and sent to the attention of the other Party’s contact for notices.  Either Party may change its contact for notices, billing contact and/or additional contact by providing notice to the other Party.  Notice will be deemed given when delivered.

    15.2.  Governing Law. This Agreement is governed by German law, excluding its conflicts of law rules. The Parties agree that the exclusive jurisdiction and venue for all disputes hereunder will be the courts in Berlin, Germany.

    15.3.  Independent Contractors. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.

    15.4.  Assignment. The company may not assign or transfer any part of this Agreement without the written consent of LiquidM.  LiquidM may assign this Agreement freely.

    15.5.  Retention, Offsetting. The company may only set off claims that are legally established or recognized by LiquidM. Company’s right of retention shall only be applicable to claims on the same contractual relationship.

    15.6.  Integration; Waiver. This Agreement is the Parties’ entire Agreement relating to its subject and supersedes any prior or contemporaneous Agreements on that subject.  All amendments hereto must be executed by both Parties and expressly state that they are amending this Agreement.  Failure to enforce any provision of this Agreement will not constitute a waiver.  If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose. Nothing in this Agreement will limit a Party’s ability to seek equitable relief.

    15.7.  Force Majeure. Neither Party will be liable for any acts or omissions resulting from circumstances or causes beyond its reasonable control.  Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, LiquidM does not guarantee any LiquidM Service will be operable at all times or during any down time caused by outages to any public Internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance.

    15.8.  Restriction on Resale. The company may not resell any LiquidM Service, it being understood and agreed that Company’s use of the LiquidM Service hereunder on behalf of advertisers and agencies that Company is authorized to act on behalf of in order to deliver advertising campaigns via the LiquidM Service will not be deemed a breach of this Section.

    15.9.  Counterparts. The Parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument.