These Publisher Terms and Conditions (the “Agreement”) set forth the agreement between Hydrane SAS, a French limited liability company with offices at 76 rue du Faubourg Saint-Denis, 75010 Paris, France (“Hydrane” or the “Company”), and its publishers.
ACCEPTANCE OF THE TERMS: By executing a hard copy of this Agreement, electronically accepting this Agreement, or by using Hydrane’s services, including BidMotion console and services (together the “Service”), you (“Publisher”) acknowledge that you have read, understood and agreed to the Terms. You agree to be bound by these Terms and to comply with all applicable laws and regulations regarding your use of the Service. You further acknowledge that these Terms constitute a binding and enforceable legal contract between the Company and you. IF YOU DO NOT AGREE TO ALL OR PART OF THE TERMS HEREIN PLEASE DO NOT USE THE SERVICE IN ANY MANNER. YOU WILL NOT BE PROVIDED WITH THE SERVICES UNLESS AND UNTIL YOU HAVE AGREED TO BE BOUND BY THE TERMS. The Service is available only to Publisher’s who are at least eighteen (18) years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business.
1. Approval of Publisher.
Registration with Hydrane shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by Hydrane on the Site on behalf of its clients (the “Advertisers”). Participation by Publisher in the Hydrane publisher lead generation program is subject to review and approval by Hydrane. All prospective publishers need official approval from Hydrane before they can become Publishers. Official approval requires meeting the criteria listed under section 1.1 below, however approval is not automatically granted upon fulfilment of said criteria. Hydrane reserves the right to withhold or refuse approval for any reason or for no reason. Once Publisher has been accepted into the Program, Publisher’s continued right to participate is conditioned upon Publisher’s ongoing compliance with all of the terms and conditions of this Agreement. Failure of the Publisher to observe the terms and conditions of this Agreement will disqualify Publisher from participating in the Program. Publisher may re-qualify for program upon proof of compliance with terms and conditions of this Agreement, subject to approval by Hydrane. Publisher shall promptly notify Hydrane in the event of a material change in its business practices or strategy. Approval of a Publisher can be withdrawn by Hydrane, at any time for any reason.
1.1. Minimum Eligibility Requirements
In order to be eligible to become a Publisher, all websites, affiliated websites and e-mail distribution lists (collectively the “Media”) must meet the following criteria, at a minimum.
All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation.
Unless otherwise approved in writing by Hydrane, Publishers may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.
Publisher websites must be fully functional at all levels; no “under construction” sites or sections
Publisher’s policies must be compliant with state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003 Spawning process pop-ups are prohibited; and
Such other criteria as Hydrane may from time to time determine, in its sole discretion.
1.2. Publisher Website Content
The content of Publisher’s Media shall be subject to Hydrane’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:
2. Use of the Site
2.1. Use of the Site
The Site allows Hydrane to post offers of advertising programs sponsored by Hydrane or its affiliates on the system (“Program(s)”). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program’s requirements are fulfilled. Compensation is derived from a specified event (“Event”) identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. If Publisher accepts a Program, Publisher agrees to place that Program’s advertising creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) (“Ad”) on Publisher’s Media. Publisher shall display the Ad exactly as it appears on the Site and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Hydrane, result in termination of Publisher. Hydrane may change a Program at any time, upon reasonable advance written notice to Publisher. Hydrane is responsible for displaying and administering all active Programs and tracking the payments owed
2.2. Special Rules Governing Email Campaigns
3. Compliance and Monitoring
Publisher agrees that Hydrane and our service providers may monitor or audit Publisher’s sites and activities under this Agreement, as well as those of Publisher’s Agents. Publisher will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Publisher may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Publisher’s facilities and those of its Agents. Publisher’s failure to promptly and reasonably comply with Hydrane’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement.
All Publishers will be monitored by Hydrane (or a third party retained by Hydrane for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests. If the monitoring is done by a third party, such third party will share all such information with Hydrane.
Each unsubscribe list furnished to a Publisher shall be separately and technologically identified so that Hydrane will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Publisher must not send further emails to names already on or newly added to the unsubscribe list.
4. License Grant
Subject to the terms and conditions of this Agreement, the Company grants Publisher with a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the Site (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Site Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, such Publisher may not provide the Program to its publishers, without the prior written consent of Hydrane. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Hydrane, Publisher shall forfeit its rights to any amounts owed by Hydrane to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by Hydrane. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Hydrane that allows Hydrane to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Hydrane hereunder or as part of the services hereunder is proprietary to and owned by Hydrane. If instructed to do so by Hydrane and/or if Publisher shall be terminated by Hydrane, Publisher will immediately destroy and discontinue the use of any Hydrane data, including Site Data, and any other material owned by Hydrane or the Advertisers
Publisher agrees that Publisher will not approach or attempt to engage in a contract with any of Hydrane’s clients (each such client, individually a “Client” and all such clients, collectively “Clients”) directly or indirectly via a Client’s Ad agency, broker or any other person or entity. Hydrane will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a Hydrane Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because Hydrane will be irreparably harmed by Publisher’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Publisher agrees that Hydrane shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.
6. Participation in our Program
Hydrane shall provide Publisher with material to create a website for the purpose of search engine optimization, or Publisher can create its own website. In either event, no website shall be released online, and nonsubmission, inclusion or any traffic can be sent to it, prior to Hydrane’s review and approval of it. If Publisher already has its own website, Publisher’s website will be subject to Hydrane’s review and approval. Approval shall be written or by electronic submission. All Program related websites will contain links (“Links”) provided by Hydrane directing traffic to product sales web pages served by Hydrane or a Hydrane Group Client. Publisher’s selection of entities to be included on any such website is also subject to Hydrane’s review and approval, of which shall not be unreasonably withheld. Should any of Hydrane’s Client(s) provide content which includes imbedded bots, Data Miners, links or other creative, graphic, text or html, all content shall remain at all times the sole property of Hydrane.
Publisher agrees to use the Links in the exact form that we deliver them to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without Hydrane’s written approval. Links must be served from the Hydrane server, unless otherwise permitted in writing by Hydrane. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees to, if request by Hydrane, modify or alter Links or Tracking devices in the manner requested by Hydrane. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Hydrane in accordance with the previous sentence.
Hydrane owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. Hydrane may choose to imbed certain data mining tools within Links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sole property of Hydrane. Hydrane may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If Hydrane does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of Hydrane. Should Hydrane choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by Hydrane without modification unless approved by us in writing; (ii) only in the manner expressly permitted by Hydrane in writing and only until Hydrane shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Hydrane to do so.
Hydrane actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things:
Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Hydrane.
Have ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported.
Have shown fraudulent leads as determined by the Advertisers.
Have used any incentives to procure clicks or lead.
Have provided leads obtained other than through intended consumer action. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behaviour.
Use fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.
If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by Hydrane or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Hydrane, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Hydrane, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, Hydrane reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
All Media Partners that maintain their own Media Partner networks and intend to broker Hydrane's offers through their network need prior written approval from Hydrane. In case approval is granted, Media Partner agrees to place the Links in its Media Partner network (the “Network") for access and use by those Media Partners in Media Partner's Network (each a “Third Party Media Partner “). If Third Party Media Partner is itself a network (and thus working with further Third Party Media Partners), then Media Partner needs to get prior written approval from Hydrane for each one of those Third Party Media Partner Networks. Media Partner agrees that it will expressly forbid any Third Party Media Partner to modify the Links in any way. Media Partner agrees to maintain its Network according to the highest industry standards. Media Partner shall not permit any party to be a Third Party Media Partner whose web site or business model involves content containing Objectionable Content. All Third Party Media Partners must be in good standing with Media Partner. Media Partner must require and confirm that all Third Party Media Partners affirmatively accept, through verifiable means, terms at least equivalent to those in this Agreement prior to obtaining access to the Links. Media Partner shall promptly terminate any agreement with a Third Party Media Partner who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Media Partner with respect to the Links, Media Partner shall promptly disclose to Hydrane the identity and contact information for such Third Party Media Partner. Media Partner shall promptly remove any Third Party Media Partner from the Media Partner Program and terminate their access to future Offers of Hydrane in the Network upon written notice from Hydrane. Unless Hydrane has been provided with all truthful and complete contact information for a Third Party Media Partner and such Third Party Media Partner has affirmatively accepted terms at least equivalent to those in this Agreement as recorded by Hydrane, Media Partner shall remain liable for all acts or omissions of any Third Party Media Partner.
Publisher will be paid per the terms of each Program. Hydrane shall pay any amounts due approximately 30 days after the end of each month, less any taxes required to be withheld under applicable law, provided that Hydrane may, in its discretion, withhold payments until such time as the Advertiser has paid Hydrane for any Program. In addition to any other remedies that may be available to Hydrane, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by Hydrane to Publisher. Hydrane reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies, frauds and the like. Hydrane shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by Hydrane need to be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Hydrane will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Hydrane and payments made to Publisher shall be based on the Events as reported by Hydrane. Hydrane will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error.
Minimum payment amounts: Wire-1000 USD. Paypal-500 USD. If the balance is less, Hydrane SA will add any unpaid amounts to the next payment which meets Minimum payment threshold.
9. Special Terms for Co-Registration Campaigns
With respect to Publishers who are running co-registration campaigns to generate leads (“Leads”) for Advertisers, the following specific terms and conditions shall apply.
9.1. Approval of Publisher’s Site(s)
No Program may go live until such time as Hydrane, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.
9.3. Scrubbing Leads
Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”). Hydrane may detect and track all Invalid Leads, which are determined on a real-time basis. Hydrane shall only pay for leads deemed valid by this system. At the sole discretion of Hydrane, leads may also subsequently be deemed invalid for (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a publisher’s inability to provide the user IP and time/date stamp for each lead or (ii) non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a Hydrane Account Executive and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an Hydrane Account Executive.
9.4. Use of Leads
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of Hydrane or its Advertiser. Therefore, other than providing the Leads to Hydrane for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in Hydrane or its Advertisers.
9.5. No Alteration of Approved Co-Registration Forms
Publisher may not, in any way, alter or modify the Co-Registration Forms, without the prior written consent of Hydrane.
The initial terms of this Agreement shall be for one year from the date of its first execution by the last party to so execute. Upon the one year anniversary of the execution, this Agreement shall automatically renew for successive thirty (30) day terms, unless: (a) not less than thirty (30) days prior to the date of any such automatic renewal, a party notifies the other in writing that it does not wish to renew this Agreement; or (b) this Agreement is otherwise earlier terminated pursuant to the provisions hereof.
Hydrane reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason, upon written notice to Publisher. Upon removal of any advertisements, Publisher shall terminate the Program and immediately cease emailing and any traffic involved with removed advertisement(s). Hydrane also reserves the right to terminate Publisher’s access to the Site at any time without notice.
Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 12, 13, 14 and 15 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.
12. Representations and Warranties/Covenants
12.1. Mutual Representations
Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.
12.2. Publisher Representations
Publisher represents and warrants as follows:
Publisher’s Media is currently in compliance with all applicable laws (including without limitation the CAN-SPAM Act, effective January 1, 2004 (the “CAN-SPAM Act”) and the GDPR
Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity
Publisher’s database consists of only permission based opted-in e-mail addresses; and
Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media
12.3. Publisher Covenants
Publisher covenants that it shall not:
Publisher covenants that it shall:
Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards
Provide within one business day after request therefrom, the IP Information, together with such other related information that Hydrane may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher
Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of Hydrane, result in the immediate suspension or termination of Hydrane’ relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Hydrane. The foregoing rights shall be in addition to any other remedies available to Hydrane. Publisher acknowledges and agrees that Hydrane shall not be responsible for the Advertisers’ violation of any applicable laws or regulations.
13. Customer Information; Non-Disclosure. Confidentiality
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Hydrane, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards
All information provided to Publisher hereunder shall be kept strictly confidential.
14. Limitation of liability; no additional warranties; indemnification
The Hydrane websites (including any reporting site) and the offers are provided “as is” and “as available.” except as expressly set forth in this agreement, neither party makes any warranties and expressly disclaims all warranties, express or implied, as to the subject matter of this agreement, including implied warranties of merchantability and fitness for a particular purpose. In no event shall Hydrane be liable for any indirect, incidental, consequential, special or punitive damages of any kind or nature whatsoever (including lost profits or revenues, or harm to business) even if it has been notified of the possibility of such damages. In no event shall Hydrane’s liability under this agreement, whether in contract, tort or other legal theory, be greater than the total amount paid within the prior six months by Hydrane to publisher hereunder.
Each party agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees from and against any third party loss, cost, claim, injury or damage (including reasonable attorneys’ fees) arising out of or related to a breach of such party’s representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement.
14.2. Indemnification Procedures
Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim and the indemnitor shall defend and/or settle the claim at its own expense and with counsel of its own selection. Indemnitee shall at all times have the right to fully participate in the defense of any claim and in any settlement which it reasonably believes would have an adverse effect on its business. The indemnitee shall make available to the indemnitor all books and records relating to the claim, and the parties to this Agreement agree to render to each other such assistance as may reasonably be requested in order to ensure a proper and adequate defense. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor. An indemnitor shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnitee without the prior written consent of the indemnitee, such consent not to be unreasonably withheld. Nothing in this Agreement shall be construed to prevent indemnitee from retaining counsel of its choice, at the expense of the indemnitee, to represent indemnitee’s interests and participate in the defense of any such claims covered under this section.
15. Confidential information
Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the prior written consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that Hydrane may divulge its personal and/or otherwise Confidential Information to an Advertiser upon request or to an enforcement agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or pursuant to any applicable law or regulation.
16.1. Governing Law
The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of France without reference to its conflict of laws principles.
16.2. Force Majeure
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any Internet outage, act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
The relationship of Publisher and Hydrane established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other.
Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by facsimile or email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein. In the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.bidmotion.com. Notices to Hydrane shall be sent to Hydrane at 76 rue du Faubourg Saint-Denis, 75010 Paris, France. Notices to Publisher shall be sent to Publisher at its most recent email address set forth in its account information on www.bidmotion.com. Publisher agrees to receive electronic communications from Hydrane, at the email address provided by Publisher. Publisher further agrees that any notice or other communication that Hydrane sends it electronically will satisfy any legal communication requirements, including that such communications be in writing
16.5. Successors and Assigns
Publisher may not assign or otherwise transfer this Agreement or any rights or obligations herein without the prior written consent of Hydrane. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.bidmotion.co.
16.8. Entire Agreement; Severability
This Agreement and any related IO’s set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
16.9. Dispute Resolution
In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. In the event of a dispute resulting in litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Paris, France and any such litigation will be brought within such courts. The prevailing party in any action shall be entitled to recover its reasonable attorneys’ fees and costs incurred.
Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.
Data Protection Addendum
This Data Protection Addendum (“DPA”) forms part of the Agreement between the Company and Publisher.
The terms used in this DPA shall have the meanings set forth in this DPA. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.
2. Data Processing Terms
3. Processing of Personal Data and compliance with data protection law
4. Consent for the Processing of Personal Data
As Hydrane does not have a direct relationship with any Data Subject using or accessing Publisher Program, Publisher shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Publisher’s use and disclosure and Hydrane’ Processing of Personal Data; and (2) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Personal Data to Hydrane and to permit the processing of such Personal Data by Hydrane for the purposes of performing Hydranes obligations under the Agreement or as may be required by Data Protection Laws. Publisher shall notify Hydrane of any changes in, or revocation of, the permission to use, disclose, or otherwise process Personal Data that would impact Hydrane’ ability to comply with the Agreement, or applicable Data Protection Laws.
5. Cookies and Notifications
Each party shall take reasonable steps to ensure that individuals that process Personal Data are subject to obligations of confidentiality or are under an appropriate obligation of confidentiality.
Each party shall implement and maintain all appropriate technical and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the Processing and the nature of the Personal Data, and to prevent unauthorized or unlawful Processing of Personal Data, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Data.
Each party hereby grants the other party general authorization to engage Subprocessors in connection with performing its obligations under the Agreement (including website hosting providers, marketing professionals, network infrastructure operators, providers of anti-fraud reporting services, analytics service providers, and other outsourced providers), provided that such party shall in each case ensure that: (1) such party enters into a written agreement with such Subprocessors that includes materially the same obligations as those in this DPA; (2) such party remains fully responsible for such Subprocessors Processing activities under the Agreement; (3) such Subprocessors implement appropriate technical and organization security measures to protect Personal Data; and (4) such Subprocessors provide sufficient guarantees that such Subprocessors will Process Personal Data in a manner that will meet the requirements of applicable Data Protection Laws.
8. Data Subject Rights
In the event a party receives a request from a Data Subject for Personal Data related to such Data Subject as permitted by any Data Protection Laws (a “Data Subject Request”), such party shall not share, transfer, disclose, or otherwise provide or permit access to Personal Data without the other party’s prior written consent. If either party receives a Data Subject Request relating to Personal Data in its control or possession, it shall promptly (and in any event within 5 days): (1) provide the other party with all information relating to the Data Subject Request; (2) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of Personal Data and the rights of the relevant Data Subject; and (3) provide any assistance reasonable requested by such party to take such steps.
9. Personal Data Breach
Each party agrees to notify the other party without undue delay after becoming aware of the Personal Data Breach and to take reasonable steps to mitigate the impact of any Personal Data Breach that may impact the other party. To the extent a party seeks the assistance of the other party related to the investigation of a Personal Data Breach, the other party shall reasonably cooperate with such requesting party to: (1) determine the scope and severity of the Personal Data Breach; and (2) provide timely information and cooperation as the requesting party may require to fulfill the requesting party’s reporting and notification obligations under Data Protection Laws. Unless such party is required to give notice to individuals under Data Protection Laws, such party shall not give notice to individuals in respect to a Personal Data Breach, except with the prior written approval of the other party.
10. Data Protection Impact Assessment and Prior Consultation
To the extent that a party considers that the Processing of Personal Data requires a data protection impact assessment to be undertaken or requires assistance with any prior consultations to any applicable Supervisory Authority, following written request from such party, the other party shall use reasonable commercial efforts to provide relevant information and assistance to the requesting party to fulfil such request.
11. Deletion or Return of Personal Data
Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement, or at any time following the other party’s request, each party shall, at the other party’s option, delete or return all Personal Data and all copies to the other party.
12. Relevant Records and Audit Rights
Each party shall make available to the other party on request all information reasonably necessary to demonstrate compliance with this DPA and allow for and contribute to audits, including inspections by the requesting party of any premises where the Processing of Personal Data takes place in order to assess compliance with this DPA. The parties shall reasonably cooperate in respect of any such audit in compliance with the obligations under this DPA. The party that receives such request shall promptly inform the requesting party if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations. The requesting party agrees that: (1) audits may only occur during normal business hours, and where possible only after reasonable notice (not less than 20 days’ advance written notice); (2) audits will be conducted in a manner that does not have any adverse impact on normal business operations; and (3) the audit will comply with standard safety, confidentiality, and security procedures in conducting any such audits.
13. International Data Transfer
In the event that either party initiates a Restricted Transfer of Personal Data, the parties shall enter into the Standard Contractual Clauses which terms shall take precedence over those in Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer or Personal Data to an entity located outside the EEA, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfer.
14. Warranties and Indemnity
Each party represents and warrants that it will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data. Each party (an “Indemnifying Party”) shall defend (through its own counsel), indemnify and hold harmless the other and the other’s officers, directors, employees, agents, representatives, service providers and affiliates (an “Indemnified Party”) from and against all liabilities, damages, losses, costs and expenses, including attorneys’ fees and other legal expenses (“Losses”), arising directly or indirectly from or in connection with any claims, actions or proceedings involving any alleged breach by the Indemnifying Party of its representations and warranties contained herein. In any defense with respect to any matter covered by this paragraph, the Indemnified Party may participate with counsel of its own choosing at its expense and the Indemnifying Party will not agree to any settlement which imposes any obligation or liability on the Indemnified Party without such Indemnified Party’s prior written consent, (such consent not to be unreasonably withheld or delayed). Each party shall promptly inform the other of any third party claims, actions, or proceedings to which it becomes aware that involves the other party as a result of this DPA.
The liability of the parties under or in connection with these terms will be subject to the exclusions and limitations of liability in the Agreement.
16. General Terms
Any obligation imposed under this DPA in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. To the extent that Data Protection Laws do not apply to the Processing of Personal Data, this DPA shall be governed by the governing law of the Agreement. Should any provision of this DPA be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (1) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (2) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this DPA, the provisions of this DPA shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.