1. JOINING THE NETWORK
1.2 Acceptance of the Application Form is subject to the sole discretion of Attrace ecosystem via Attrace B.V. (“Attrace”) 321 Keizersgracht, 1016 EE Amsterdam, incorporated in The Netherlands with KvK number: 71511245. Acceptance or rejection of the Application Form will be notified to the proposed Publisher by email.
1.3 On acceptance of the Application Form by Attrace, the Application Form and these Standard Terms will together constitute a legally binding “Agreement” entered into by Attrace and the Publisher. On rejection of the Application Form, no agreement will be formed.
1.4 The Publisher is the operator of a website, application or service (including email service), or is a Subnetwork. By entering this Agreement with Attrace, the Publisher will join the Network to market Merchants or their Products.
1.5 This Agreement prevails over any terms supplied by the Publisher.
1.6 Any individual contracting on his or her own behalf warrants that he or she is aged 18 or over. Any individual completing the Application Form on behalf of a proposed Publisher warrants that he or she has all necessary authority to bind that proposed Publisher.
2.1 The following definitions and rules of interpretation apply in this Agreement:
“Action” means a Sale, Lead, Click, Ad Impression, or other event, that has been specified as eligible for remuneration by the respective Merchant under its Program Terms, on which commissions may be based under this Agreement;
“Ad Impression” means a display of an advertisement of an Merchant by the Publisher, as reported by the Tracking Code only;
“Merchant” means a Person which has agreed with Attrace to join the Network to be marketed, and/or to have its Products marketed;
“Merchant Materials” means any trade marks, advertising content, images, text, video, data or other material provided by or on behalf of an Merchant to Attrace, the Publisher or a Subpublisher;
“Merchant Program” means an ongoing affiliate marketing program of an Merchant on the Network, for the promotion of the Merchant or its Products in accordance with this Agreement and the Program Terms;
“Merchant URLs” means, from time to time, any websites, apps or services of an Merchant offering Products and to which the Publisher may link;
“Advertising Standards” means any applicable advertising laws, regulations or standards, data laws relating to advertising (including the Children’s Online Privacy Protection Act), including without limitation any FTC Guidance, any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice;
“Application Form” means the registration form at https://attrace.com/sign-up/, or by which operators of websites, applications, technologies or services apply to participate in the Network;
“Approved Lead” means a Lead approved by an Merchant in accordance with clause 5;
“Approved Sale” means a Sale approved by an Merchant in accordance with clause 5;
“Authorized User” means an individual permitted to view, or view and operate, the Publisher Account on behalf of the Publisher, by its individual Authorized User Account, as set out in clause 3;
“Authorized User Account” means the account of an individual on the Interface, permitted to view, or view and operate, the Publisher Account on behalf of the Publisher, as set out in clause 3;
“Attrace” means Attrace B.V., 321 Keizersgracht, 1016 EE Amsterdam, incorporated in The Netherlands with KvK number: 71511245. ;
“Bonus” means an ad hoc payment to the Publisher by an Merchant in return for a specific promotion or other marketing activity;
“Business Day” means a day other than a Saturday, Sunday or national public holiday in England;
“Change of Control” means a change in the beneficial ownership of more than 50% of the issued share capital of a company or a change in the majority of the Persons with legal power to direct or cause the direction of the general management of a company;
“Click” means the intentional and voluntary following of a Link by a Visitor as part of marketing services as reported by the Tracking Code only;
“Code of Conduct” means Attrace’s code of conduct for publishers at https://support.attrace.com/helpqus/code-of-conduct/, as may be amended or updated by Attrace at its discretion on notice to the Publisher;
“Commission” means the amount payable to the Publisher in return for marketing an Merchant and its Products, in accordance with that Merchant’s Program Terms;
“Confidential Information” means any information disclosed by or relating to a party, including: information arising during the Term of this Agreement; information about a party’s business affairs; information about a party’s operations, products or trade secrets; information about a party’s technology (including any know-how and source code) and any derivatives of any part of any of them and which (i) is marked or identified as confidential; or (ii) would be regarded as confidential by a reasonable business person;
“CPA” means a Commission earned per Approved Sale; “CPC” means a Commission earned per valid Click; “CPL” means a Commission earned per Approved Lead;
“CPM” means a Commission earned per one thousand Ad Impressions;
“Data Regulation” means any applicable data protection, privacy or similar laws that apply to data processed in connection with this Agreement, including for EU citizens any regulations implementing the Data Protection Directive 95/46/EC (the “Directive”) or GDPR (as applicable) or Privacy and Electronic Communications Directive 2002/58/EC and for US citizens, FTC Guidance, US state and federal legislation relating to data privacy and security;
“Effective Date” means the date of acceptance of the Application Form by Attrace;
“FTC Guidance” means the published cases and guidelines from the United States Federal Trade Commission, including without limitation the guidance on substantiation of claims, privacy, data security, native advertising and disclosure guidance for influencers and spokespeople.
“GDPR” means the EU General Data Protection Regulation 2016/679.
“Intellectual Property Rights” means all copyrights and related rights, patents rights to inventions, utility models trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights (including any database rights in the Network), topography rights, moral rights, rights in confidential information (including know- how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Interface” means the software platform operated by Attrace, to provide the Services and any functionality accessed or made available through such platform;
“Lead” means a ‘sales lead’ of an Merchant generated in the Tracking Period, as reported by the Tracking Code only;
“Link” means a hyperlink from a Promotional Space to an Merchant URL;
“Network” means the marketing network of Publishers and Merchants operated by Attrace to facilitate, amongst other things, affiliate and performance marketing;
“Network Fee” means the fee payable to Attrace, calculated as an override fee of an amount equal to a specified percentage of any total Commissions and Bonuses due, or on such other basis as may be agreed by Attrace and an Merchant;
“Product” means a product, service or equivalent offered by an Merchant on any Merchant URL;
“Program Terms” means any terms and conditions, or other requirements applied by an Merchant to the participation in its Merchant Program;
“Promotional Space” means any advertising inventory appearing on the Publisher Service, or means of delivering Merchant Materials enabled by the Publisher Service;
“Publisher Account” means the respective account of the Publisher on the Interface;
“Publisher Service” means a website, application or service operated by the Publisher capable of marketing Merchants and their respective Products;
“Owner” means a single Authorized User with full access to, and control of, the Publisher Account and which is at all times authorized to act on behalf of the Publisher and bind the Publisher;
“Sale” means the agreed purchase of a Product by a Visitor in the Tracking Period, as reported by the Tracking Code only;
“Services” means the services or assistance provided by Attrace under this Agreement;
“Subpublisher” means the operator of a website, application or service, which has agreed with the Subnetwork to market merchants or their products;
“Subnetwork” means the operator of a marketing network of further Publishers to facilitate, amongst other things, affiliate and performance marketing, which has entered this Agreement to join the Network to market merchants or their products as a Publisher;
“Subprocessor” any person (excluding an employee of either party) appointed by or on behalf of either party to Process Personal Data on behalf of such party or otherwise in connection with this Agreement.
“Suspension” means the suspension by Attrace of the provision of the Services to the Publisher for a period of time, including the following:(i) preventing the Publisher from accessing the Interface; (ii) ceasing to track Actions; (iii) removing any Merchant Materials from the Publisher Service and “Suspend” shall be interpreted accordingly;
“Term” means the term of this Agreement from the Effective Date until its termination or expiry in accordance with clause 14 or 17.4;
“Tracking Code” means the Attrace software code (from time to time) for the recording of, amongst other things, web traffic and Actions;
“Tracking Period” means the period of time in which the Actions of a Visitor are attributed to the Publisher and, subject to the Program Terms, generate Commissions for the Publisher;
“Validation Period” means the period of time during which Merchants may approve or decline Sales and Leads; and
“Visitor” means any Person who follows a Link.
2.2 In this Agreement:
2.2.1 any meanings given to terms in the attached Application Form shall apply to these Standard Terms;
2.2.2 the terms “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process” and “Processing” have the meanings given to them in GDPR;
2.2.3 “include” or “including” is without limitation;
2.2.4 the singular will include reference to the plural and vice versa;
2.2.5 a “Person” includes an individual, company, partnership or unincorporated association;
2.2.6 a statute, order, regulation or other similar instrument will include any amendments to it or replacements of it; and
2.2.7 “writing” and “written” includes emails but not faxes.
2.3 If there is a conflict between the Application Form and the Standard Terms, the Application Form shall prevail.
3. PROVISION AND USE OF THE SERVICE AND THE INTERFACE
3.1 Subject to the Publisher’s compliance with this Agreement, Attrace will provide to the Publisher:
3.1.1 the Services; and
3.1.2 access to the Interface.
3.2 Attrace may change any aspect of the Interface at its sole discretion.
3.3 On the Effective Date, the Publisher shall:
3.3.1 register a Publisher Account; and
3.3.2 nominate an Authorized User as Owner of that Publisher Account.
3.4 Each Publisher Account may have only one Owner, and must have an Owner at all times. Each Publisher Account may have a reasonable number of Authorized Users.
3.5 The Owner may assign its Owner status to another Authorized User via the Interface at any time.
3.6 To the extent enabled by the Interface, Authorized Users shall be allocated permissions to view, or view and operate, the Publisher Account by the Owner, acting on behalf of the Publisher. Authorized Users may, on behalf of the Publisher, also allocate permissions to view, or view and operate, the Publisher Account, provided that no Authorized User may grant greater permissions than they themselves hold. The Owner may, at any time, withdraw the permission of any Authorized User to view and/or operate the Publisher Account.
3.7 The Publisher undertakes that:
3.7.1 the Owner, shall remain authorized to act on behalf of the Publisher and bind the Publisher;
3.7.2 all Authorized Users are permitted to view, or view and operate, the Publisher Account in accordance with any permissions granted on the Interface, which shall be kept up to date by the Publisher;
3.7.3 it shall use best endeavours to ensure that the Owner and all Authorized Users shall:
(a) access the Interface in their own name under their own Authorized User Account; and
(b) keep any passwords confidential.
3.8 The Publisher shall:
3.8.1 ensure the proper functioning and maintenance of all Links;
3.8.2 provide Merchants and Attrace with full and clear instructions as to the Merchant Material it may reasonably require for the purposes of the promotion of an Merchant or its Products in accordance with this Agreement and the Program Terms;
3.8.3 provide Merchants reasonable access to information the Merchant may require to operate the Merchant Program; and
3.8.4 remains primarily liable for the acts and omissions of all Sub Publishers.
3.9 Attrace shall not be liable for any losses or damages suffered by the Publisher due to the disclosure of any Authorized User Account passwords.
3.10 The Publisher shall remain primarily responsible and liable for all activities occurring under any of the Authorized User Accounts and the acts or omissions of any Authorized User.
3.11 If the Publisher suspects that a third party has gained unauthorized access to access data, the Publisher shall inform Attrace immediately by sending an e-mail to compliance@Attrace.com or such other e-mail as may be notified to the Published from time to time.
3.12 Attrace may Suspend or withdraw any Authorized User Accounts at its discretion, or on request by the Publisher.
4.1 The Publisher may request to market Merchants or their Products at their discretion by applying to participate in the Merchant Program. Merchants may approve or refuse such requests at their discretion. The Publisher may only market an Merchant or its Products under this Agreement with the Merchant’s continued approval, unless specifically enabled by the proper use of the Interface.
4.2 Merchants may apply Program Terms at their discretion, which shall become effective on notice to the Publisher, including by publication on the Interface. Merchants may change their Program Terms at any time. The Publisher is solely responsible for ensuring it is aware of any changes to the Program Terms.
4.3 Subject to the Publisher’s compliance with this Agreement and the Program Terms, and the continued approval of the respective Merchant, Attrace will provide to the Publisher the Merchant Materials.
4.4 Attrace, however, is not obliged to review any Merchant Material or check their legality or accuracy. A Publisher admitted to the Merchant Program may publish the Merchant Materials through its Publisher Service at its discretion and use them solely to the extent permitted under this Agreement and the Program Terms.
4.5 Attrace may deactivate any Links on request of the respective Merchant, or at its sole discretion.
4.6 The Publisher shall remove any Merchant Materials from the Publisher Service immediately on request of either the Merchant or Attrace.
4.7 Attrace will use reasonable endeavors to procure that Merchants comply with any terms and conditions, or other requirements, applied by the Publisher to its promotion of Merchants or their Products.
5. TRACKING AND VALIDATION
5.1 The Tracking Code and Program Terms will be on the sole bases for recording and determining Actions and Commissions and for tracking. No other means of recording or determining Actions or Commissions shall be used under this Agreement, notwithstanding any agreement or arrangement between the Publisher and any Merchant to the contrary.
5.2 Sales and Leads will only be attributed to the Publisher where the Tracking Code records that the Publisher was responsible for the first referral of the Visitor to the Merchant URL prior to that Sale or Lead, unless expressly agreed otherwise between the parties or specified otherwise by the Merchant in the respective Program Terms, and in each case subject to any communicated “cookie hierarchy” or “commission hierarchy”.
5.3 Merchants may approve or decline Sales and Leads at their discretion, subject to the applicable Program Terms.
6. ACTIONS, COMMISSIONS AND BONUSES
6.1 The amount of any Commissions is as may be displayed on the Interface. CPA Commissions in respect of Approved Sales will be determined as either:
6.1.1 a percentage of the purchase price of the Product(s) subject of the Approved Sale, as set out on the Interface; or
6.1.2 a fixed amount, irrespective of the purchase price of the Product(s) subject of the Approved Sale, as set out on the Interface.
6.2 Merchants may change the amount of Commission offered on notice to Publishers.
6.3 Bonuses may be agreed by the Publisher and Merchants at their discretion and must be processed via the Interface.
6.4 Commissions and Bonuses shall only be due:
6.4.1 on receipt by Attrace of the corresponding payment in respect of that Action from the Merchant; and
6.4.2 in respect of Actions procured in accordance with this Agreement and any applicable Program Terms.
7. INVOICING AND PAYMENTS
7.1 Required Attrace token deposits will be refunded to the Publisher on closure of account.
7.2 Attrace will pay the Publisher:
7.2.1 Commissions in respect of each Approved Sale, Approved Lead, Clicks or one thousand Ad Impressions; and
7.2.2 Bonuses agreed between the Publisher and Merchants.
7.3 Payment of Commissions and Bonuses may be subject to any Merchant Terms.
7.4 Self-billing invoices for Commissions and Bonuses can be accessed by the Publisher via the Interface. Self-billing will be implemented as follows:
7.4.1 the Publisher agrees not to issue invoices for any Commissions and Bonuses generated under this Agreement;
7.4.2 Attrace may provide a copy of this Agreement to the Dutch tax authority in order to evidence the self-billing arrangements between Attrace and the Publisher;
7.4.3 the Publisher will immediately notify Attrace if it transfers any part of its business as a going concern;
7.4.4 the Publisher will immediately update the Interface accordingly if it:
(a) stops being registered for BTW or VAT (or equivalent local); or
(b) changes this number, regardless of the reason;
7.4.5 Attrace may engage third party service providers to administer the issuing of self-billing invoices under this Agreement.
7.5 Attrace will pay all self-billed invoices:
7.5.1 any minimum payment thresholds implemented by Attrace from time to time being satisfied;
7.5.2 the correct, accurate and complete bank and tax information of the Publisher being shown on the Interface;
7.5.3 the provision of any additional information reasonably requested by Attrace in respect of the Publisher’s location or residence;
7.5.4 the payment not being subject to any internal audits or ‘network quality’ reviews from time to time.
7.6 All payments will be made to the bank account nominated by the Publisher on the Publisher Account on the Interface from time to time. Attrace is not obligated to take steps to verify the accuracy of bank account information provided by the Publisher.
7.7 All sums payable under this Agreement shall be exclusive of BTW / VAT which, if applicable, shall be added at the appropriate rate. BTW / VAT shall be paid by the Party liable to pay BTW / VAT pursuant to applicable law. If payments under this Agreement are subject to withholding tax, Attrace is entitled to deduct the appropriate amount from payments to the Publisher. The parties agree to work together on reducing any withholding tax, and, upon request, shall provide documents required for any reduction, exemption, reimbursement or deduction of withholding tax.
7.8 All amounts payable shall be paid in the currency in which the respective Commissions are received from Merchants.
7.9 The Publisher will immediately repay any amounts paid to the Publisher in error, or other than in accordance with the Publisher’s rights under this Agreement.
8. PUBLISHER’S RELATIONSHIP WITH ADVERTISERS
8.1 The Publisher’s participation in the Network will enable direct contract between the Publisher and Merchant.
9. WARRANTIES AND INDEMNITY
9.1 Each party warrants and undertakes to the other for the Term that:
9.1.1 it has full power and authority to enter into this Agreement;
9.1.2 it holds all licenses and approvals necessary for the performance of its obligations under this Agreement;
9.1.3 it will perform its obligations under this Agreement in accordance with all applicable laws and using reasonable skill and care; and
9.1.4 it will not make any false, misleading or disparaging representations or statements regarding the other party.
9.2 The Publisher warrants and undertakes to Attrace for the Term that:
9.2.1 all information about the Publisher set out in the Application Form or on the Interface is complete, true, accurate, not misleading and will be kept up to date;
9.2.2 its marketing of any Merchant or its Products will comply with all Advertising Standards and Data Regulation;
9.2.3 the Publisher Service will be operated in accordance with all applicable laws (including Advertising Standards and Data Regulation);
9.2.4 it shall comply with the Code of Conduct at all times;
9.2.5 it shall comply with all relevant tax laws;
9.2.6 it shall retain ultimate control of the operation of the Publisher Service;
9.2.7 it is the owner or valid licensee of any Intellectual Property Rights appearing on the Publisher Service, and that no part of the Publisher Service infringes the rights of any third party; and
9.2.8 all Merchant Materials will be accurately and faithfully reproduced.
9.3 The Publisher will indemnify, defend and hold harmless Attrace (including its directors, employees, agents or contractors), from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against Attrace arising out of or related in any way to any breach by the Publisher of any of the warranties at clauses 9.1 and 9.2.
10. INTELLECTUAL PROPERTY
10.1 Attrace hereby grants to the Publisher, for the duration of its participation in the Merchant Program, a revocable, non-exclusive, non-transferable, royalty-free, worldwide sublicense to publish Merchant Materials, without modification, on the Publisher Service to market the respective Merchant and its Products on the Network in compliance with the Agreement and the Program Terms.
10.2 A sub-license granted to a Sub-network under clause 10.1 shall be further sub- licenced by the Sub-network to Sub Publishers on terms equivalent to clause 10.1.
10.3 Attrace hereby grants to the Publisher a revocable, non-exclusive, non-sub- licenceable, non-transferable, royalty-free worldwide license to use the Interface to the extent necessary for the Publisher to participate in the Network and perform its obligations under this Agreement.
10.4 Each party reserves all of its right, title and interest to any of its Intellectual Property Rights licensed under this clause 10, or which it creates under this Agreement or which is created by operation of the Tracking Code.
10.5 The Publisher shall use information and data obtained from and in connection with participating in the Network only for the purpose of this Agreement. Uses for any other purpose, or disclosure of such information and data are prohibited.
10.6 Either party may identify the other party in lists of clients or customers, and may use the other party’s name and logo in marketing materials and presentations. Any other use shall require the prior written consent of the other party.
11.1 Each party will only use Confidential Information to enjoy its rights or comply with its obligations under this Agreement. Save as set out in this Agreement, neither party will disclose any Confidential Information. Confidential Information shall be kept confidential.
11.2 The obligations of confidentiality in this Agreement will not apply to Confidential Information to the extent it:
11.2.1 is in the public domain (other than as a result of a breach of this Agreement);
11.2.2 can be demonstrated as having been independently developed by the receiving party;
11.2.3 is published on the Interface in the receipt or provision of the Services in accordance with this Agreement;
11.2.4 is required to be disclosed by law or a court order.
11.3 This clause will survive termination for three years.
12. DATA PROTECTION AND COOKIES
12.1 Attrace and the Publisher will comply with their respective obligations under Data Regulation. Each party will provide the other party any co-operation reasonably requested to enable the other party’s compliance with this clause 12.
12.2 In accordance with Data Regulation, the Publisher will obtain the prior, freely given, specific informed, unambiguous and revocable consent of any Visitors to any cookies served by Attrace on the Visitor as a result of a Click.
12.3 The Publisher will not provide any Personal Data unless as anticipated by Attrace in its ordinary operation of the Network.
12.4 In respect of any Processing under this Agreement for which Attrace and the Publisher are joint Controllers (whether together, or with any Merchant):
12.4.1 Each party will provide the other party any co-operation reasonably requested to enable the other party’s compliance with Data Regulation;
12.4.2 The Publisher shall take appropriate measures to provide Data Subjects with information about how Personal Data is being processed by or on behalf of the Publisher, which shall at a minimum include all the information required by Articles 13, 14 and 26 of the GDPR, in a concise, transparent and easily accessible form, using clear and plain language (“Publisher Fair Processing Notice”);
12.4.3 Attrace shall take appropriate measures to provide Data Subjects with information about how Personal Data is being Processed by or on behalf of Attrace, which shall at a minimum include all the information required by Articles 13, 14 and 26 of the GDPR, in a concise, transparent and easily accessible form, using clear and plain language (“Attrace Fair Processing Notice”);
12.4.4 Each party shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to Personal Data, ensuring in each case that access is:
(a) strictly limited to those individuals who need to know and/or access the relevant Personal Data; and
(b) as strictly necessary for the purposes of the Principal Agreement and to comply with Data Regulation in the context of that individual’s duties.
12.4.5 Each party shall ensure that all individuals referred to in Clause 12.4.5 are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Security and Confidentiality of Data
12.4.6 Each party shall in relation to the Personal Data, implement appropriate technical and organisational measures to ensure an appropriate level of security, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In doing so, each party shall take into account:
(a) the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing; and
(b) the risk of varying likelihood and severity for the rights and freedoms of natural persons.
12.4.7 In assessing the appropriate level of security, each party shall in particular take account of the risks that are presented by Processing, including from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.
12.4.8 With respect to a proposed Subprocessor, each party shall before the Subprocessor first Processes Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Personal Data required by applicable Data Regulation;
Data Subject Rights
12.4.9 Each party shall fulfil their obligations to respond to requests to exercise Data Subject rights under the Data Regulation. Each party will provide the other party any co-operation reasonably requested to enable the other party’s compliance with this clause.
Personal Data Breach
12.4.10 Each party shall:
(a) notify the other party without undue delay upon becoming aware of a Personal Data Breach affecting Personal Data (“Network Data Breach”); and
(b) provide the other party with sufficient information to allow it to meet any obligations to report or inform Data Subjects of the Network Data Breach under or in connection with the Data Regulation;
(c) meaningfully consult with the other party in respect of the external communications and public relations strategy related to the Network Data Breach;
(d) subject to A12.4.11, not notify any data protection regulator of the Network Data Breach without having obtained prior written approval of the other party; and
(e) not issue a press release or communicate with any member of the press in respect of the Network Data Breach, without having obtained prior written approval by the other party.
12.4.11 The notification set out in Clause 12.4.11(a) above, shall as a minimum:
(a) describe the nature of the Network Data Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned;
(b) describe the likely consequences of the Network Data Breach; and
(c) describe the measures taken or proposed to be taken to address the Network Data Breach.
12.4.12 The Publisher shall co-operate with Attrace and take such reasonable commercial steps as are directed by Attrace to assist in the investigation, mitigation and remediation of each Network Data Breach.
12.4.13 Neither party shall transfer Personal Data to countries outside of the EEA in breach of applicable Data Regulation.
12.5 The Publisher warrants and undertakes for the Term that:
12.5.1 any Processing under this Agreement, undertaken by Attrace or any Merchant acting as a Data Processor on behalf of the Publisher acting as a Data Controller, including any Processing of Personal Data relating to the Publisher and any Authorized Users, complies with Data Regulation;
12.5.2 it holds any rights or consents necessary for the transfer outside of the EEA of Personal Data by Attrace or any Merchant.
12.6 To the extent that Attrace is a Data Controller and the Publisher is a Data Processor, (or, as applicable, Attrace is a Data Processor and the Publisher is a Subprocessor) the Publisher will:
12.6.1 Process Personal Data only Attrace’s documented instructions, including in respect of the deletion or return of Personal Data;
12.6.2 assist Attrace in all respect necessary to enable or assist Attrace to comply with Data Regulations;
12.6.3 make available to Attrace all requested information in respect of Personal Data, including, on at least 30 days prior written notice and during normal business hours, permitting Attrace or any relevant Merchant, or any of their auditors or advisors, to attend the Publisher’s premises in order to inspect the Publisher’s systems and records to the extent determined by Attrace or any relevant Merchant to be necessary to demonstrate the Publisher’s compliance with this clause 12; and
12.6.4 comply with clauses 12.4.4, 12.4.5, 12.4.6, 12.4.7, 12.4.8, 12.4.9, 12.4.11, 12.4.12, 12.4.13 and 12.4.14.
12.7 The Publisher shall not use any reports generated by use of the Interface to create Visitor profiles, as defined under GDPR.
12.8 The Publisher will not do or omit to do any act which may cause Attrace to be in breach of any of its obligations under the Data Regulation.
13. LIMITATION OF LIABILITY
13.1 This clause 13 sets out the entire liability of Attrace under or in connection with the Agreement.
13.2 Each party shall be liable for any breaches of Data Regulation for which they are responsible and accordingly there shall be no joint liability between the parties in respect of such breaches.
13.3 Attrace will not be liable for any losses of the Publisher if Attrace’s compliance with the Agreement is prevented by the acts or omissions of the Publisher.
13.4 Attrace will not be liable to the Publisher for: loss of profit, business, goodwill, anticipated savings, goods, contract, use or data; losses arising from the acts or omissions of an Merchant; or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
13.5 The total liability of Attrace in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the Agreement will be limited to the amount of Network Fee actually received by Attrace from Merchants in respect of Commissions paid to the Publisher in the 12 month period preceding the date on which the claim arose.
13.6 Except as expressly stated otherwise in this Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
13.7 The Network, the Interface, the Tracking Code, the Services, their use and the results of such use are provided “as is” to the fullest extent permitted by law. Attrace disclaims all express or implied warranties, including warranties of satisfactory quality and fitness for a particular purpose, which may be implied in respect of the Network, the Interface, the Tracking Code, the Services, their use and the results of such use. The performance of the Network, the Tracking Code and the Interface relies on third parties beyond Attrace’s control, and in particular, the maintenance by Merchants of the proper integration of the Tracking Code into Merchant URLs. Attrace specifically disclaims any warranty:
13.7.1 that the use or operation of the Network, the Interface or the Tracking Code will be uninterrupted or error-free;
13.7.2 that the Tracking Code will be properly integrated into the Merchant URLs;
13.7.3 that the Tracking Code accurately records Actions at all times;
13.7.4 in respect of the Merchant Materials, including any warranty that the Merchant Materials comply with Advertising Standards;
13.7.5 that defects will be corrected;
13.7.6 that the Network, the Interface or the Tracking Code are free of viruses or malicious code;
13.7.7 that any security methods employed will be sufficient;
13.7.8 in respect of any Publisher or its technology; and
13.7.9 regarding correctness, accuracy, or reliability.
13.8 Attrace shall only be held liable in cases of intent or gross negligence of one of its legal representatives, executives or other vicarious agents, in the event of any culpable breach of a material contractual obligation and limited to the amount of the typically foreseeable loss.
13.9 Nothing in this Agreement limits or excludes the liability of Attrace in the event of culpable injury to life, limb or health, fraud, fraudulent misrepresentation or fraudulent misstatement as well as in cases of mandatory statutory liability.
14. TERMINATION AND SUSPENSION
14.1 This Agreement will start on the Effective Date and continue until terminated in accordance with its terms.
14.2 Either party may terminate the Agreement any time for any reason.
14.3 Without prejudice to its other rights or remedies, a party may terminate the Agreement immediately on written notice to the other party, if:
14.3.1 the other party materially breaches this Agreement;
14.3.2 the other party is deemed unable to pay its debts; steps are made to wind up, or appoint an administrator over, the other party; a third party becomes entitled to appoint a receiver over the assets of the other party; the other party negotiates with all or a class of its creditors, or proposes or enters a compromise with such creditors; or any similar or analogous event occurs.
14.4 Attrace may terminate this Agreement or Suspend the Publisher, immediately on written notice, if the Publisher:
14.4.1 does not access the Publisher Account for a period of 24 months or if no Commissions have been generated for a period of 24 months;
14.4.2 is reasonably suspected by Attrace to have breached any:
(a) of the warranties at clauses 9.1 and 9.2;
(b) Program Terms of an Merchant;
(c) part of the Code of Conduct.
14.5 Attrace may terminate this Agreement, immediately on written notice, if the Publisher undergoes a Change of Control.
15. CONSEQUENCES OF TERMINATION AND SUSPENSION
15.1 During any period of Suspension:
15.1.1 the Publisher is not permitted to access the Interface;
15.1.2 all licenses will be Suspended and the Publisher shall immediately remove any Merchant Materials from the Publisher Service;
15.1.3 Attrace may deactivate any Links and remove any Merchant Materials from the Publisher Service (to the extent it is able).
15.2 On termination of the Agreement:
15.2.1 all licenses will terminate and the Publisher shall immediately remove any Merchant Materials from the Publisher Service;
15.2.2 Attrace may deactivate any Links and remove any Merchant Materials from the Publisher Service (to the extent it is able);
15.2.3 each party will return or at the other party’s option destroy all confidential information in its possession within five Business Days; and
15.2.4 unless terminated by Attrace under clauses 14.3 or 14.4, Attrace will pay all outstanding Commissions and Bonuses due to the Publisher;
15.3 Termination of this Agreement will not affect any existing rights or remedies. 15.4 Clauses 1, 2, 5, 6, 7, 10.5, 10.6, 11, 12, 13, 15, 16 and 17 will survive termination.
16.1 Notices given under this Agreement will be in writing and:
16.1.1 displayed by Attrace on the Interface;
16.1.2 delivered by the Publisher via email to Attrace notice email address set out in Application Form;
16.1.3 sent by Attrace by email to the Publisher’s notice email address set out in the Application Form (or such other notice email address as may be set out on the Publisher Account).
16.2 A notice displayed by Attrace on the Interface will be deemed to have been received at the time of its display (or if displayed outside business hours, at 9 am on the first Business Day following display). A notice sent by email will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9 am on the first Business Day following despatch).
17.1 Attrace may change the terms of this Agreement on 14 days’ notice to the Publisher.
17.2 Certain services Attrace offers may be subject to additional terms. Such terms will be displayed on the Interface.
17.3 Attrace may set off any liability of the Publisher against any liability of Attrace.
17.3.1 Time for performance of clauses 3.10, 4.6, 7.4.3, 7.4.4, 7.9, 15.1.2 and 15.2.1 are of the essence of this Agreement.
17.4 No party will be liable for any breach of this Agreement arising from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 30 days’ written notice to the other party.
17.5 Attrace may assign or subcontract its rights or obligations under this Agreement.
17.6 Nothing in the Agreement constitutes a partnership or joint venture between the parties, nor constitutes a party the agent of the other. No party has authority to bind the other.
17.7 A Person who is not a party to this Agreement will not have any statutory rights under or in connection with it.
17.8 A counterpart of this Agreement executed and/or transmitted electronically shall be treated as fully binding and with full legal force and effect.
17.9 This Agreement constitutes the entire agreement between the parties relating to its subject matter, to the exclusion of the United Nations Convention on Contracts for International Sale of Goods.
17.10 This Agreement is governed by the laws of The Netherlands and the place of jurisdiction is Amsterdam.
17.11 The Publisher is aware that this Agreement is originally drawn up in English. The Publisher is aware of and accepts that, in the event of any inconsistencies or differences of interpretation between the English version and a translated version, this English version shall always prevail.