IPONWEB Standard Terms for BidCore Customers

IPONWEB Standard Terms for BidCore Customers

Last Updated Date: March 31st 2021

  1. Definitions

1.1 In this Agreement, the following additional definitions apply:

“Advertising” means digital material and content together with related code that you make available to the BidCore Platform to display such advertising and content on Media.

“Advertising Campaign” means a plan to deliver Advertising to a target audience.

“Advertising Materials” means creative materials, active URL’s and their related tags.

“Bid” means a response (containing Bid Data) to a Bid Request.

“Bid Data” means the data and related information including the price that will be provided to a Supply Partner in response to a Bid Request that does not include any Personal Data that is not being used in accordance with all applicable laws.

“BidCore Agreement” or “Agreement” means this fully executed IPONWEB agreement that incorporates these terms that together form a fully executed agreement between you and IPONWEB.

“BidCore Fees” means the fees for the BidCore Services set out in IPONWEB BidCore Agreement together with any additional fees for BidCore Services that the Customer may select from time to time via the BidCore UI.

“BidCore Platform” means IPONWEB’s proprietary online programmatic trading platform that enables users to use the BidCore Services using the BidCore User Interface, further details of which can be accessed through the BidCore User Interface.

“BidCore Services” means the services or services that the Customer may select from time to time via the BidCore UI.

“Bid Request” means a request (containing Supply Partner Data) made by a Supply Partner for Bids on Media that it has available and includes certain criteria that must be met including the price for the Media and other information that does not include any Personal Data that is not being used in accordance with all applicable laws.

“BIDSWITCH” means BIDSWITCH GmbH.

“BIDSWITCH Platform” means BIDSWITCH GmbH’s proprietary online trading platform through which Supply Partners can submit Bid Requests for Media that they wish to sell and Demand Partners can submit Bids for Media that they wish to buy through the operation of a dynamic, real-time exchange whereby Media is sold to Demand Partners whose Bids are selected by or  on behalf of Supply Partners.

“BidCore User Interface” or “BidCore UI” means the online tool that allows the Customer to access the BidCore Service.

“Data Processing Addendum” means the agreement located at https://iponweb.enigma-hosting.co.uk/policies-legal/iponweb-gmbh-data-processing-addendum that governs the processing of Personal Data by IPONWEB your behalf in relation to the BidCore Service.

“Demand Partner” means a party that wishes to buy Media through the BIDSWITCH Platform..

“Impression” means provision of the relevant Advertising Materials to the relevant Site after a Winning Bid has been successfully completed in accordance with section 3.

“Intellectual Property” means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trade marks, know-how, confidential information, trade secrets, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields in each case whether registered or unregistered and including any pending applications for or rights to apply for any of the foregoing anywhere in the world.

“Media” means digital advertising units on websites and other locations made available by Supply Partners where Advertising can be displayed that is made available for sale on the BIDSWITCH Platform.

“Media Cost” means the cost of Media acquired through the operation of the BidCore Platform as set out in section 3.

“Media Mode” means the service whereby IPONWEB buys Media for and on behalf the Customer as its agent and which the Customer subsequently reimburses IPONWEB the Media Cost for.

“Personal Data” means information that allows the holder to identify someone as an individual and/or is considered to be ‘Personal Data’ by any applicable laws.

“QPS” means Bid Requests sent per second to the Customer.

“QPS Sent to Customer” means a BidCore Service that provides the Customer with a desired number of Bid Requests sent per second, on average calculated on a monthly basis, that are filtered according to criteria selected using the BidCore UI, such as certain user groups, inventory type, and geographical region(s).

“Site” means one or more websites and/or online locations made available to the BidCore Platform that are operated by or on behalf of a Supply Partner or upon which a Supply Partner has the right to display Advertising.

“Supply Partner” means a party that wishes to sell Media through the BIDSWITCH Platform.

“Supply Partner Data” means data that does not identify BIDSWITCH or a Supply Partner or a Site (or information that the holder would already have had before it was provided by BIDSWITCH) that the BIDSWITCH Platform uses for the day-to-day operation of the BIDSWITCH Platform that does not contain any Personal Data that is not being used in accordance with all applicable laws.

“Winning Bid” means the amount payable for each Bid for Media that wins in accordance with section 3.

“Won Impressions” means a BidCore Service that provides the Customer with a set number of Impressions that can be won in the month of Service.

  1. Applicability

This Agreement relates to the sale and purchase of Media using the BidCore Services and constitutes the entire agreement between you and IPONWEB relating to this unless expressly stated otherwise. Any contrary terms and conditions that you may have shall not apply to this Agreement.

  1. Operation of the BidCore Platform

3.1 The BidCore Platform shall use criteria and other information provided by the Customer using the BidCore UI to place and win Bids to buy Media on behalf of the Customer and procure delivery of the Customer’s Advertising relating to such winning Bids. In addition to the BidCore Fees, the Customer shall reimburse the Media Cost to IPONWEB for all Media bought in Media Mode.

  1. Third party advertisers

4.1 You agree to ensure that all provisions of this Agreement are complied with by both you and any third party advertisers that you represent. You will be directly liable to IPONWEB for any act or omission by you or your advertiser that is not in accordance with this Agreement.

4.2 You confirm that you are the authorised representative of any advertiser that you place Advertising on behalf of using the BidCore Service and that that you are authorised to enter into and perform this Agreement on behalf of any such advertiser. You agree to be jointly and severally liable with any advertisers that you represent for all payment obligations set out in this Agreement and that IPONWEB may contact any advertiser that you represent if any amounts payable under this Agreement are not received by IPONWEB by the due date.

  1. Customer obligations

5.1 You warrant, represent and confirm that:

5.1.1 all Advertising and the websites, goods and services that they promote shall not violate any BidCore Policies (available at https://iponweb.enigma-hosting.co.uk/policies-legal/bidcore-policies) and Creative Guidelines (available at: https://iponweb.enigma-hosting.co.uk/policies-legal/bidcore-creative-guidelines) as updated by BidCore and advised to you from time to time.

5.2 You agree that if IPONWEB, acting reasonably, believes that you do not comply with any obligations of this section 5, IPONWEB may immediately suspend the provision of the BidCore Services (either with or without providing notice of this) to you, until IPONWEB is reasonably satisfied with your compliance with this section 5.

5.3 You agree to comply with the Data Processing Addendum.

5.4 You represent and warrant that where applicable, you have obtained all necessary consents from end users for purposes of personalizing Advertising, in accordance with the EU General Data Protection Regulation (“GDPR”)  and the Californian Consumer Privacy Act (“CCPA”) and will send IPONWEB all information reasonably requested by IPONWEB relating to the same (and as IPONWEB may reasonably update from time to time).

5.5 You agree to comply with the “IPONWEB Acceptable Use Policy” as set out in this section 5.5. If IPONWEB believes that you are in violation of this policy with regards to your use of the BidCore Services (including the APIs referenced at https://docs.bidcore.iponweb.com/index.html and the user interfaces offered by IPONWEB), IPONWEB may ask you to moderate your access and usage accordingly. IPONWEB reserves the right to restrict and/or suspend your access to the BidCore Services and the BidCore Platform if you have not cured this violation within 5 business days of IPONWEB asking you to do so.

  1. IPONWEB Obligations

6.1 IPONWEB shall use all reasonable endeavours to arrange for the display of your Advertising in accordance with this Agreement.

6.2 IPONWEB will measure the delivery of the Advertising using IPONWEB’s reporting systems.

6.3 IPONWEB shall use all reasonable endeavours to ensure that all Supply Partners ensure that their Sites, everything displayed on their Sites and their Bid Requests shall not:

(a) violate or encourage violation of any applicable laws, regulations or advertising codes;

(b) infringe any intellectual property rights of any third party or contain any material which may be harmful, abusive, obscene, threatening, or defamatory;

(c) be pornographic, obscene or contain sexually explicit images or activity;

(d) promote or contain links to gambling, online casinos, tobacco, alcohol or weapons; or

(e) promote or contain links to malware including but not limited to ‘viruses’, ‘Trojans‘ and ‘worms’.

6.4 IPONWEB agrees to comply with the Data Processing Addendum.

  1. Rejection of Advertising

IPONWEB may reject any Advertising that you make available through the BidCore Platform that does not comply with clause 5.1. However, you acknowledge and agree that IPONWEB has no obligation to review and/or approve any Advertising that you submit to the BidCore Platform and that IPONWEB accepts no liability for any Advertising that is displayed on a Site on your behalf in accordance with this Agreement.

  1. Payment for Media and the BidCore Services

8.1 Where you have agreed to pre-pay for Media that you buy, you agree to pre-pay IPONWEB at least 7 days before the end of each calendar month an agreed amount each month for Media that you plan to buy in the next calendar month.

8.2 If you do not pay IPONWEB on time, all amounts due on your account will become immediately payable by you to us on demand and we reserve the right to suspend provision of the BidCore Services to you and/or terminate this Agreement and/or any part of it if any amounts payable by you are overdue by more than 10 days.

8.3 If you do not pay IPONWEB on time, we reserve the right to charge you interest at the rate of three per cent (3%) above the base rate of the HSBC bank in Switzerland on any overdue amounts. If we need to take legal action against you for failing to pay us in accordance with this Agreement, you also agree to pay the legal costs and expenses that we incur in making you pay us.

8.4 You are not entitled to set-off any amounts that you owe IPONWEB against any amounts that IPONWEB owes you, unless we have accepted your claim or your claim has been found to be valid by a final court ruling.

8.5 If you dispute any amount on an invoice, you should provide notice of this to IPONWEB by writing to your IPONWEB representative within 15 business days of the end of the month that the invoice you dispute relates to. Your email must include the amount you dispute and provide adequate information to support your claim. Within 30 business days of receipt of your email, IPONWEB will investigate and provide you with a written response. You may not withhold payment for any amounts that you do not dispute.

8.6 You will be notified when you approach within 10% of the Tier limit set out in the Service Fees in any month and you will be given the option to pay overages for additional BidCore Services not included in the current applicable Tier, or to switch to a higher Tier for a higher monthly Service Fee Tier. Alternatively, you can stop trading when a Tier limit is reached and resume use of the BidCore Services the following month at the same Tier. If you agree to switch to a higher Service Fee Tier, you will remain in that Service Fee Tier in subsequent months, unless otherwise agreed in writing between you and IPONWEB.

  1. Intellectual Property

9.1 Unless expressly stated in this Agreement, neither party will acquire any right, title or interest in any Intellectual Property Rights belonging to the other party or to the other party’s licensors.

9.2 Where IPONWEB provides you with software and/or access to any User Interface in connection with the BidCore Services, IPONWEB grants you a non-exclusive, non-sublicensable licence for use of that software and/or User Interface.  This licence is for the sole purpose of allowing you to use and enjoy the benefit of the BidCore Services. You may not copy, modify, distribute, sell or lease any part of the BidCore Service technology, included software or User Interface, nor may you reverse engineer or attempt to extract the source code of that software or User Interface, unless laws prohibit such restrictions or you have IPONWEB’s prior written permission to do this.  You will not remove, obscure or alter any IPONWEB copyright notice (if any), branding or other proprietary rights notices affixed to or contained within the BidCore Platform, User Interface, software or related documentation.

9.3 IPONWEB may include your name and branding in IPONWEB’s presentations, marketing materials, customer lists and financial reports.

  1. Payment deposits

10.1 IPONWEB may require you to pay a deposit in advance for amounts payable by you to IPONWEB under this Agreement (a “Payment Deposit”).

10.2 If you pay a Payment Deposit it will be offset against future invoices payable by you to meet your payment obligations under this Agreement, the balance will be refunded to you (without any interest) at the end of this Agreement. If you do not pay IPONWEB in full in accordance with this Agreement, your Payment Deposit will be set off against your payment obligations to IPONWEB.

  1. Use of information

11.1 You hereby grant IPONWEB all rights necessary in Advertising and other materials you provide to the BidCore Platform to enable IPONWEB to fulfil its obligations under this Agreement including the right to advise IPONWEB and BIDSWITCH customers and prospective customers that you use the BidCore Services.

11.2 You hereby agree that IPONWEB is entitled to sublicense the licenses granted to IPONWEB under this Agreement to third parties where necessary to fulfil our obligations under this Agreement.

  1. Liabilities and indemnities

12.1 You agree to indemnify, defend and hold harmless, IPONWEB, BIDSWITCH, Grid Inc, their affiliates, agents and Supply Partners from and against any and all third-party claims and liabilities arising out of or related to your breach of any part of this Agreement. Supply Partners that use the BIDSWITCH Platform and any direct or indirect, wholly or partly owned subsidiaries and/or holding companies of IPONWEB are third-party beneficiaries of this indemnity.

12.2 IPONWEB agrees to indemnify you and hold you harmless against any and all third-party claims and liabilities arising out of or related to IPONWEB’s breach of any part of this Agreement.

  1. Representations, warranties and disclaimers

13.1 You represent and warrant that you have the full power and authority to agree to this Agreement.

13.2 You represent and warrant that (i) you are the owner of, or are legally authorised to act on behalf of the provider of the Advertising; and (ii) you have control over the way in which Advertising is displayed using the BidCore Services on Sites.

13.3 Unless expressly stated on this Agreement, IPONWEB does not make any promises about the BidCore Services.

13.4 IPONWEB will not be liable to Customer for the content of any Site that the BidCore Services and/or the BIDSWITCH Platform may make available to Customer.

  1. Limitation of liability

14.1 NOTHING IN THIS SERVICE ORDER EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR (A) FRAUD OR FRAUDULENT MISREPRESENTATION; (B) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; OR (C) ANYTHING WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.

14.2 NEITHER PARTY SHALL HAVE ANY LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) UNDER OR IN CONNECTION WITH THIS SERVICE ORDER FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS (WHETHER SUCH LOSS WAS FORESEEABLE, KNOWN OR OTHERWISE).

14.3 EACH PARTIES’ AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) UNDER OR IN CONNECTION WITH THIS SERVICE ORDER SHALL NOT EXCEED THE NET AMOUNT PAYABLE BY CUSTOMER TO IPONWEB IN ANY ROLLING 6 CALENDAR MONTH PERIOD ENDING THE DATE ON WHICH SUCH LIABILITY ARISES.

  1. Assignment

You may not assign any rights or obligations that you may have under this Agreement to a third party unless this has first been agreed by IPONWEB in writing. IPONWEB may assign all or any of its rights and obligations under this Agreement to a wholly owned direct or indirect subsidiary of IPONWEB. IPONWEB may also assign your payment obligations to IPONWEB under this Agreement to a third party by giving notice of this in writing to you.

  1. Other matters

This Agreement shall be governed by the laws of England without regard to its conflict of law provisions and the parties hereby submit to the non-exclusive jurisdiction of the English courts for the resolution of any dispute which may arise in connection with this Agreement.

  1. Waiver

No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy conferred upon or reserved for either party under this Agreement is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.

  1. Notices

All notices under this Agreement must be in the English language, in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with this section. Any such notice may be delivered personally or by first class pre-paid recorded delivery letter or facsimile transmission and shall be deemed to have been served (a) if by hand, when delivered, (b) if by courier service or registered mail, 72 hours after despatch, and (c) if by facsimile transmission when despatched, in each case, with proof of sending/delivery (as the case may be) retained by the sending party.

  1. Partnership

Nothing in this Agreement and no action taken by the parties under this Agreement shall constitute or be deemed to constitute a partnership, association, joint venture or other co-operative entity or undertaking between the parties and neither party shall have any authority to bind the other in any way.

  1. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties, and constitutes the entire agreement between the parties, relating to the subject matter of this Agreement. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties.

  1. Severability

If the whole or any part of any provision of this Agreement is deemed to be illegal or unenforceable, remaining provisions of this Agreement and the remainder of the provision in question shall remain in full force and effect.

  1. Representatives

Each party shall appoint a prime contact for the purposes of performing this Agreement as set out in this Agreement and may appoint a substitute or alternative individual by reasonable written notice to the other party.

  1. Publicity

Except as provided in section 9.3, each party shall keep the terms of this Agreement confidential and will not use the other party’s name in any publicity, advertisement or other disclosure without the other party’s prior written consent.

  1. No third party rights

A person who is not party to this Agreement shall have no rights under any applicable law to enforce any of the terms of this Agreement unless expressly stated otherwise herein.

  1. Confidentiality

25.1 For the purposes of this Agreement, “Confidential Information” shall mean any data or information of any kind and in any format relating to the business, business processes, business logic, business strategy, products, games, customers or customer behaviour, revenues, know how, trade secrets or other information relating to the Supply Partner which is not generally publicly available.

25.2 IPONWEB shall not, except as expressly permitted in this Agreement, without the prior written consent of the Customer: (a) communicate, or otherwise make available, the Customer’s Confidential Information to any third party; or (b) use Customer’s Confidential Information for any commercial, industrial or other purpose whatsoever other than the provision of the Services; or  (c) copy, adapt, or otherwise reproduce the Customer’s Confidential Information save as strictly necessary for the provision of the Services under this Agreement.

  1. Change of terms

If IPONWEB advises you of a change to the IPONWEB Trading Agreement Standard Terms, IPONWEB shall inform you of this in reasonable time, after which you will have 7 days to consider the change before it shall be deemed to take effect unless within such 7 days you advise IPONWEB that you do not agree to the change. If you advise IPONWEB that you do not agree to the change you will be entitled to continue to use the BidCore Platform to buy Media for a period of 21 days from the date that you advise IPONWEB of this, after which you must stop using the BidCore Services.