General terms and conditions for online advertising
Updated as of June 1st 2021
THIS ADVERTISING AGREEMENT is valid for all commercial relationships between Oovvuu Pty Ltd, 30 Marjorie Street, Roseville, 2069, NSW, Australia (“Oovvuu“) and its advertising clients (“Advertiser“) regarding the provision of online marketing services by Oovvuu.
1. Conclusion of Insertion Orders
1.1 An Insertion Order on the provision of online advertising services shall come into being when Oovvuu accepts an insertion order submitted by the Advertiser (“Insertion Order“). The specific Insertion Order in question shall contain the respective scope of performance including but not limited to campaign run dates, territorial restrictions and pricing . If the provisions of an Insertion Order diverge from those of these Terms and Conditions, the provisions of the Insertion Order shall take precedence.
1.2 If the Advertiser is an advertising agency or an advertising intermediary not acting in their own name, the agency and the advertising intermediary is obliged to specify (and prove) for whom it is placing the advertising.
1.3 Other contract terms of the Advertiser or third parties shall not apply unless Oovvuu has agreed to in writing prior commencement date of the Insertion Order.
2. Obligations of the Advertiser
2.1 The Advertiser shall supply the contractually agreed advertising materials (“Creative“) at their own expense by the Creative Deadline (as defined in the Insertion Order) in complete and working condition and in accordance with the contractual agreements.
2.2 If the Advertiser does not comply with the Creative Deadline with the result that the Creative can be published with a delay or not at all, this shall not affect Advertisers payment obligations under the Insertion Order.
2.3 The Advertiser will ensure that the Creative is clearly recognisable as advertising. If the Creative is not clearly recognisable as advertising, Oovvuu shall be entitled to identify the Creative as advertising, in particular by labelling it with the word “Advertisement” or similar indications to make clear its advertising character.
2.4 Oovvuu is not obliged to check the Creative links referred to by the Creative, including the content of those links. Any checks carried out by Oovvuu shall not release the Advertiser or agency from their responsibility for the Creative and/or the links, including the content of those links.
3. Services provided by Oovvuu
3.1 Oovvuu will deliver the Creative into the ad space (“Ad Space“) of the Oovvuu media player, any other media player or app owned or controlled by Oovvuu or its Affiliates (the “Oovvuu Network”), and any third party websites for which Oovvuu has the right to sell advertising inventory in the scope and for the period as agreed in the respective Insertion Order.
3.2 If the parties agree in the Insertion Order upon a maximum number of Ad Impressions, Viewable Impressions or Video Completions the placement of the Creative shall be made only for the respective period. If Oovvuu has assured the Advertiser that it will deliver a particular number of Ad Impressions, Viewable Impressions or Video Completions within a particular period and the number thus assured was not delivered in full during this period, Oovvuu shall be entitled, but not obliged, to carry on placing the online advertising in question and subsequently deliver the still missing number of Ad Impressions, Viewable Impressions or Video Completions. The deadlines for such delayed deliveries shall be coordinated with the Advertiser taking the legitimate interests of both parties into account. If the agreed number is not delivered subsequently within the period allowed for delayed delivery, the Advertiser shall be entitled to reduce the remuneration proportionally for the Ad Impressions, Viewable Impressions or Video Completions that were not delivered and Oovvuu will invoice based on actual volumes delivered.
3.3 Oovvuu shall be entitled to edit the Creative with regard to its format, size and technical properties if Oovvuu regard this as necessary for the delivery of the Creative and reasonable for the Advertiser in consideration of Oovvuu’s interests. Oovvuu shall not be obliged to hand over the Creative to the customer upon termination of the online advertising or to retain it.
3.4 If technical circumstances prevent publication on the agreed date, provided that Oovvuu was not responsible for such obstacles arising, Oovvuu shall be entitled to postpone or cancel an agreed date for the publication of the Creative.
4. Grant of Rights
4.1 The Advertiser hereby grants Oovvuu and the Affiliates of Oovvuu the non-exclusive, worldwide right to integrate the Creative into the Ad Space, to present and publish it there and to make it accessible to the general public and closed user groups via fixed and mobile communications networks in places and at times of their choice for the purpose of simultaneous or successive use and to reproduce the Creative for the above purposes.
4.2 The above grant of rights also refers, in particular, to existing copyrights and ancillary copyrights applicable to the Creative, privilege as to one’s own image, rights to bear names and titles, trademark rights and other identification rights.
5. Rejection of Creative
5.1 Oovvuu shall be entitled to either wholly or partly reject and remove (either temporarily or permanently) Creative that contains illegal content or any other content that infringes Oovvuu’s Code of Conduct for Advertiser.
5.2 If there is reasonable suspicion that the Creative provided by the Advertiser contains illegal content or any other content that infringes Oovvuu’s Code of Conduct for Advertiser, Oovvuu shall be entitled to discontinue its publication until the Advertiser succeeds in dispelling the suspicion. A reasonable suspicion in this sense shall apply in particular when such a suspicion has been induced by official proceedings or by a criminal investigation or when there are comprehensible grounds for believing that such proceedings will soon be initiated. The same shall also apply if Oovvuu is requested by a third party to refrain from any further placement of the Creative because it is illegal or infringes third-party rights, provided that the third party’s claim is not clearly, and for Oovvuu recognisably, unfounded.
5.3 Sections 5.1 and 5.2 shall also apply accordingly if the Creative advertise or provide a link to illegal content or any other content that infringes Oovvuu’s Code of Conduct for Advertiser.
6. Remuneration and Tracking Results
6.1 The fees payable by the Advertiser for Oovvuu’s services shall be set out in the respective Insertion Order, in which the parties shall agree upon the basis on which the remuneration is calculated, e.g.:
- 1000 Ad Impressions (“CPM”),
- 1000 Viewable Ad Impressions (“VCPM” - based on IAB viewability standards)
- 1000 Video Ad Completions (“CPCV”).
6.2 The sole authoritative factor for the counting of the quantity of Ad Impressions, Viewable Impressions or Video Completions shall be Oovvuu’s reporting activities. If the Advertiser has counted divergent quantities, these shall not be taken into account if the divergent counts do not demonstrably differ by more than 10%. In other cases the parties shall come to an agreement on the counted quantity that is authoritative for the contractual relationship. If the parties are unable to agree within twenty days on the definitive quantity counted, they shall have recourse to a neutral, approved and generally accepted arbitration board to resolve the dispute in accordance with its arbitration rules as amended at the time the arbitration proceedings were initiated.
6.3 Unless otherwise agreed in an Insertion Order, Oovvuu shall charge the agreed remuneration for the services rendered after the promotion in question has come to an end. If the term of the promotion is longer than one month, Oovvuu can charge the agreed remuneration at the end of the respective month. Unless otherwise agreed in an Insertion Order the agreed sum shall be payable on issue of the invoice and must be transferred without deductions to Oovvuu’s bank account within net 30 (thirty) days.
6.4 All agreed prices are strictly net and must be paid plus the statutory rate of VAT or other relevant taxes.
7. Warranties and Force Majeure
7.1 The Advertiser warrants (i) that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, and that the Creative is free of any third-party rights (in particular trademark rights, patent rights or copyright) which would prevent to use the Creative as defined by the Insertion Order and this Agreement.
7.2 The Advertiser further warrants that the transmitted Creative does not infringe any provision of Oovvuu’s Code of Conduct for Advertisers.
7.3 Oovvuu does not assume any warranty for the secure, interruption-free or error-free operation of its media player or another part of its website.
7.4 The Advertiser shall be obliged to check the online advertising containing the Creative without undue delay after its publication and to notify Oovvuu in writing of any discernible errors without undue delay but no later than one week after the publication. If the Advertiser fails to provide notification in this way, the online advertising shall be regarded as approved in accordance with the respective Insertion Order and this Agreement, unless the error was not discernible at the time of the check. If an error in the online advertising becomes apparent at a later date, the Advertiser must give notification of it without undue delay upon its discovery, otherwise the online advertising shall be deemed approved even in consideration of this error.
7.5 In cases of force majeure, Oovvuu shall be released from its obligation to render its services. All unforeseen events and events having impact on the performance of the Insertion Order or this Agreement for which neither of the parties is responsible shall be deemed force majeure. Such events shall include without limitation lawful means of industrial action, also in third-party companies, official measures taken by authorities, the failure of communication networks and gateways of other operators, disruptions in the area of network sellers, other technical mal-functions, including when such circumstances occur in the area of subcontractors, sub-suppliers or their subcontractors, or operators of data processors. No entitlements shall result for Advertisers from any failures for which Oovvuu is not responsible.
8. Limitation of Liability
8.1 Under no circumstances shall either party be liable to the other for indirect, incidental, consequential or exemplary damages (even if the other party has been advised of the possibility of such damages) arising from or out of this Agreement.
8.2 With the exception of instances of gross negligent of wilful intent, the liability of Oovvuu shall be limited to the amounts payable by Advertiser pursuant to this Agreement in the twelve month period leading up to the claim.
9. Third Party Claims and Indemnification
9.1 The Advertiser shall indemnify and release Oovvuu and/or affiliates of Oovvuu from any and all claims asserted by third parties against Oovvuu because of an infringement (i) of intellectual property rights , (ii) legal provisions (e.g. criminal law, youth protection law, unfair competition law) as a result of the use of the Creative in conformity with the Insertion Order and/or as a result of the promoted subjects (e.g. an Advertiser’s offer or website) or (iii) of Oovvuu’s Code of Conduct for Advertiser. In this regard, the Advertiser shall also assume the necessary costs incurred by Oovvuu in defending its rights, including any and all court costs and lawyers’ fees. This does not apply if and to the extent that the Advertiser is not responsible for the violation of rights. The limitations on liability in Section 9 shall not apply for the indemnification obligation. Any compensation claims asserted on grounds of loss or damage going beyond this shall remain unaffected by the indemnification obligation.
9.2 Oovvuu and/or the affiliate of Oovvuu undertake not to acknowledge third-party claims without the Advertiser’s consent and not to reach any settlement on the matter in question with the third party. The Advertiser, however, may refuse their consent only for good cause.
10. Communication and Confidentiality
10.1 Confidential Information. As used herein, “Confidential Information” means any non-public information, regardless of whether it is in tangible form, disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement and which is identified or marked as “confidential” or “proprietary” or which, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. Oovvuu Confidential Information includes, without limitation, the terms of this Agreement and any non-public information relating to this Agreement. Except as otherwise expressly permitted under this Agreement, the Receiving Party will not disclose any Confidential Information to third parties. Notwithstanding the forgoing, Advertiser acknowledges that Oovvuu may share Confidential Information with third parties sorely in order to fulfil its obligations under this Agreement and any applicable Insertion Orders.
10.2 Information shall not be deemed Confidential Information if the Receiving Party can show by competent evidence that such information: (a) was known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) became known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) became publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.
10.3 Each Party shall use reasonable measures to protect the secrecy of and avoid disclosure and unauthorised use or reproduction of the other Party’s Confidential Information during the Term and for a period of three (3) years following the termination of this Agreement. Confidential Information may be disclosed only to: (a) employees and agents of the Parties that have a need to know such information in the course of their duties (and with respect to agents, who are under a contractual duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 11); (b) legal or financial advisors or potential acquirers of each of the Parties on a need to know basis (provided that such advisors and/or acquirers are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 11); (c) if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable prior written notice to the Disclosing Party (if legally permissible) and uses commercially reasonable efforts to cooperate with the Disclosing Party’s attempt to obtain a protective order). Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information that is in the possession of the Receiving Party.
11. Term and Termination
11.1 This Agreement shall come into effect on the date of signature of the first Insertion Order between the parties, and shall remain in effect for as long as there is an Insertion Order active between the parties.
11.2 Oovvuu may terminate any Insertion Order if Oovvuu in its sole discretion determines that Advertiser is engaging in behaviour that may be construed as illegal, unethical, defamatory or otherwise may reflect negatively upon Oovvuu’s reputation.
12. Applicable Law, Jurisdiction
12.1 The Insertion Orders and this Agreement shall be, in its application and interpretation, governed exclusively by the laws of New South Wales Australia.
13.1 Oovvuu reserves the right to change these terms and conditions at any time. Such changes shall be communicated on the Oovvuu website and shall come into effect two weeks from the date of publication. During an ongoing contractual relationship or campaign, the Advertiser may terminate the contractual relationship concerned in writing within two weeks of the notification of the change. Active campaigns will be suspended at the time of termination; however, termination of this Agreement shall not relieve the Advertiser of any payment obligations due under this Agreement. If the Advertiser continues to use the services related to this Agreement, the changes to the advertising conditions in full will be deemed to have been accepted.
13.2 Oovvuu shall be entitled to either wholly or partly transfer the rights and duties under the Agreement to Oovvuu Affiliates.
CODE OF CONDUCT FOR ADVERTISER
Oovvuu Pty Ltd, 30 Marjorie Street (“Oovvuu“) provides services that allows advertisers (“Advertisers“) to present advertising materials (videos) in a unique format and appearance (“Creative) via its website or applications by incorporating or embedding the Creative into Oovvuu’s website, esp. into Oovvuu’s media player (“Oovvuu Ad Space“).
1.1 Advertiser shall provide their Creative to Oovvuu in an appropriate data format. The Creative shall be suitable for the agreed purposes and of low-maintenance. Ideally, the Creative only has to be set up once and then remain valid and functional without any further maintenance.
1.2 Oovvuu is not solely responsible for checking the Creative provided by the Advertiser. Instead, the Advertiser guarantee that the Creative complies with this Code of Conduct and does not pose any legal risk for Oovvuu.
The Creative shall not include, engage in, promote or constitute any product or service that is or is connected to:
2.1 incentivized traffic or users;
2.2 the sale or consumption of illegal, recreational drugs or prescription drugs, alcohol or tobacco products, fake or counterfeit goods including without limitation products described as the following, or similar, when referring to a brand name in an attempt to pass themselves off as genuine products of the brand owner: knock
off, replica, limitation, clone, fake or other non-genuine products that mimic brand features in an attempt to pass themselves off as the genuine product;
2.3 software pirating, including websites that facilitate the use or download of illegal
content, or are engaged in any illegal activity, including torrent sites, P2P or file sharing sites;
2.4 false, deceptive, fraudulent or misleading;
2.5 the promotion of some products or services that cause damage, harm, or injury;
2.6 adult products or adult services, sexually explicit, pornographic or obscene (whether in text or in graphics) content;
2.7 offline and online gambling, online casino based games regardless of whether money is exchanged;
2.8 “Hate Speech” or any content which includes images that are offensive, profane, threatening, harmful, harassing or discriminatory (based on age, race, ethnicity, creed, national origin, religion, gender, marital status, sexual orientation, physical disability or otherwise);
2.9 violent or bullying;
2.10 YouTube Scrapers, CD/DVD/Blue Ray Ripping/Copying;
2.11 encouraging unlawful behaviour or conduct;
2.12 scams, illegal activity and/or illegal contests, pyramid schemes, or chain letters;
2.13 spam or other mass advertisement means;
2.14 defamatory, libellous, slanderous or obscene;
2.15 cracking or hacking;
2.16 Creative must lead an end user to the same landing page when the Creative is clicked. Such landing page must be functioning and may not interfere with an end user’s ability to navigate away from the page or from using any browser, websites’ or other functionality;
2.17 Creative may not mislead the user by mimicking system error messages or otherwise. For example, it may not mimic or resemble Windows/Mac/Unix dialogue boxes, error messages, imitate presupposed knowledge about the functionality of a user’s computer or the discovery of viruses,
worms, corrupted files to scare users into purchasing or downloading software;
2.18 Creative may not be misleading and/or deceptive, including without
limitation, by using the word “free” when product or offer is not free, using the word
“winner” when the user has not in fact won anything;
2.19 Creative may not be designed to mislead users into clicking through to a site that is unrelated to the content of the Creative;
2.20 Creative may not perform an automatic download to a user’s device or present a download dialog box without first presenting detailed information and a
User affirmed click to proceed with the download;
2.21 Creative may not include fake or misleading “close” buttons;
2.22 Creative must not be targeted at minors (i.e., children under the age of 13) and/or offer products or services that are illegal for minors to buy, possess, or participate in;
2.23 any program code designed to contaminate other computer programs or computer data, consume computer resources, which includes but is not limited to any virus, worm, Trojan horse, hidden file, lock, clock, “back door”, copy protection feature, CPU serial number references or other device, computer code or program which may contaminate, destroy, disable, disrupt, erase, harm, impede or modify
normal performance or functionality.
To the extent applicable, Advertiser hereby agrees to provide an opt-out mechanism for receiving ads or to contractually oblige their advertisers to provide an opt out mechanism.