“Ad” shall mean any creative including, but not limited to, text link, banner, voucher code, video, rich media and data feed, or any combination thereof.
“Ad Media” shall mean any person or legal entity that is connected to the Platform and supplies traffic to the Offers available on the Platform.
“Demand Partner Client” shall mean any third-party, including, but not limited to, persons and legal entities, on whose behalf You manage the Offers.
“Interface” shall mean the online element that enables You to use the Platform.
“Offer” shall mean the program set up by You to which the Ad Medias can promote and direct the Users who purchase the Products. In return for promoting the Offers the Ad Medias are entitled to payouts in accordance with the terms of the Agreement and Offer.
“Platform” shall mean Our proprietary suite of technology including, but not limited to, technology and services to create accounts, offers and campaigns, trade with Ad Medias, track and process events, monitor and analyze results, manage extensions as well as billing and payments.
“Product” shall mean any product or service that is advertised in an Offer.
“Site” shall mean the website linked to in the Ad promoting the Product.
“User” shall mean any user of the internet.
“Website” shall mean the Our website.
You desire to use the Platform to advertise Products to Users through Offers in accordance with the Agreement.
If We inform You about changes to the Agreement, You will be deemed to agree to the changes if You continue to use the Platform. If We make changes to the Agreement that You do not agree with, You must advise Us of this in writing within 7 days. You will then be entitled to use the Platform for a period of 21 days after the date that You advise Us of this, after which you lose access to the Platform and cannot use it any longer unless in Our sole discretion We decide otherwise.
5.1 Subject to the terms of the Agreement We, in consideration for the applicable fees, hereby grant You a limited, non-transferable, non-exclusive, non-sub licensable and revocable license to access, view and use the Platform and any related information provided to You by Us (the “License”).
5.2 The License does not include or authorize: (a) any reproduction, duplication, copying, sale, trading, resale, modification or any other commercial use of any portion of the Platform or any information contained therein; (b) downloading (other than the page caching) of any portion of the Platform or any information contained therein, except as expressly permitted on the Platform; (c) decompiling or reverse engineering any part of the Platform; (d) using any meta-tags or any other “hidden text” utilizing Our trademarks without prior written consent; or (e) any use of the Platform or any information contained therein other than for their intended purpose. Any unauthorized use of the License is strictly prohibited and results in an immediate termination of the Agreement.
5.3 Your data may be included in anonymous data sets to analyze trends, calculate price and performance indexes and provide industry and performance insights.
5.4 You acknowledge and agree that We may improve the form, nature, and content of the Platform and any information contained therein from time to time at Our sole discretion without prior notice to You.
5.5 You agree that You will not, in connection with Your use of the Platform, violate any applicable law, ordinance, rule, regulation or treaty.
6.1 In order to submit the Application and join the Platform You must be a corporate entity or an individual of at least eighteen (18) years of age.
6.2 We will review the Application and promptly notify You of its acceptance or rejection. If any of the information supplied as part of the Application changes, you must immediately update the information in Your Interface. If You submit the Application on behalf of Your employer or another entity, You represent and warrant that You have full legal authority to bind Your employer or such other entity to the Agreement. If You do not have such authority, then You may not submit the Application or use the Platform on behalf of Your employer or another entity and You must discontinue all use of the Platform immediately.
6.3 You accept the terms of the Agreement by completing the Application and clicking “Sign up” or by e-signing and/or signing the Agreement directly and/or as part of another document. We may reject the Application at Our sole discretion without giving any reason for Our decision.
6.4 The Agreement will commence and shall become binding on the Parties on the date on which it has been executed by both Parties (the “Effective Date”).
7.1 Upon registration You select one of the following pricing plans: Start, Traction, Growth, Lead or Custom (the “Plan”).
7.2 You can change the selected Plan in Your Interface at any time. Any Plan change becomes effective on the first day of the following month.
7.3 In consideration for the provision of the Platform, RevFresh shall charge You a margin percentage of Your ad spend commissions for every approved transaction recorded on the Platform (the “Margin”).
7.4 You shall pay to RevFresh an amount to be set off against the Margin (“Minimum Commitment”). If the total Margin in the applicable month is less than the Minimum Commitment payable in respect of that month, the difference shall be payable to RevFresh. If the total Margin in the applicable month is more than the Minimum Commitment payable in respect of that month, only the Margin will be payable.
7.5 All impressions and clicks registered on the Platform are free of charge, but subject to a fair usage policy, meaning that if an Ad Media’s, Ad Inventory’s and/or Source’s click-through rate is lower than 0.01% and/or its click-to-conversion rate is lower than 0.1%, We may pause or suspend the responsible Ad Media, Ad Inventory and/or Source at Our sole discretion with immediate effect.
8.1 Except for the Custom Plan all Plans include a 14-day free trial (the “Trial”). The Trial commences on the calendar day following the Effective Date (the “Trial Start Date”) and ends after 14 days (the “Trial End Date”). After the Trial, your account will automatically switch over to the selected Plan.
8.2 During the Trial We shall not charge any Margin or Minimum Commitment. However, Your obligation to timely Ad Media payouts commences on the Effective Date, for the sake of clarity it also includes all recorded and approved transactions during the Trial.
8.3 During the Trial You have an extraordinary right to terminate the Agreement with immediate effect. The same provisions on form apply as for the Termination.
9.1 We shall deliver the Ads on Your behalf to the Users in accordance with the criteria established in the Offers. Each Offer shall specify the information necessary for Us to deliver the Ads.
9.2 You agree that You are solely responsible for any Offer that is published, transmitted and/or posted by and through the Platform. In connection with the Offers that You publish, transmit and/or post by and through the Platform, You agree not to: (a) post, offer for download, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (b) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spam-ware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the internet; (c) post Offers that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (d) post Offers that do not fully comply with all applicable local, state and federal laws, rules and regulations.
9.3 Engaging in any of the prohibited actions as described in the preceding paragraph shall be deemed a breach of the Agreement and may result in the immediate Termination of the Agreement without notice, in the Our sole discretion. We reserve the right to pursue any and all legal remedies against Demand Partners that engage in the aforementioned prohibited conduct.
9.4 You acknowledge that We have the right to pre-screen any Offers, but no obligation to do so. At Our sole discretion, any Offer may be included in the Platform in whole or in part and We may request Offer modifications at any time. Without limiting the foregoing, We may pause or terminate any Offer at any time for cause.
9.5 You acknowledge that the Offers are Your sole responsibility. We have no responsibility to monitor or otherwise police: (a) Your Offers posted on the Platform; (b) the Sites the Ads redirect to; (c) any Ad Medias promoting Your Offers; and/or (d) any of the Products offered on the Sites. You agree that under no circumstances, will We be liable in any way for the Offers including, but not limited to, any errors or omissions in any Offers or any loss or damage of any kind accrued as a result of the use or distribution of any Offers transmitted or otherwise made available via the Platform.
9.6 Individuals or entities who purchase Products advertised through Offers on the Platform or who perform any other transaction on the Sites shall not be deemed to be Our customers, clients or business associates. The same accounts for any Demand Partner Client using the Platform with the Your permission. We have no liability or responsibility to review, endorse, police or enforce any such relationship(s) between You, the Demand Partner Clients and/or the Users. We shall have no obligation to resolve any dispute between You, the Demand Partner Clients and/or the Users. You expressly agree to indemnify and hold harmless Us, Our parent company, Our affiliates and Our subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, from and against any and all losses and expenses (including reasonable attorney fees, court costs and/or settlement costs) arising from any dispute between You, the Demand Partner Clients and/or the Users.
10.1 You shall pay Us the fees set forth in the Agreement commencing from the Start Date.
10.2 Your billing currency is Euros (EUR) unless otherwise agreed upon in writing.
10.3 In the case of SEPA Direct Debit and credit card payment, the invoice is due upon receipt. In case of standard bank transfer, the payment term is fifteen (15) days.
10.4 Payments made via automatic credit card billing will appear on the active credit card bill as “Revfresh Marketplace OÜ”.
10.5 You are responsible for any and all fees associated with invoice payments and for any and all costs resulting from currency exchange.
10.6 You are solely responsible for paying any and all applicable sales, use, and/or withholding tax (if any) due to all applicable taxing authorities arising from, or in connection with, Your use of the Platform including, without limitation, taxes and related fees, costs and penalties incurred by You and/or Your Demand Partner Clients pursuant to those tax laws of any applicable state in which, pursuant to the terms of the Agreement, We shall be considered a software vendor for tax purposes.
10.7 The following conditions apply to any Package change and the Termination: (a) You shall not receive any refund or prorated refund for amounts previously paid or amounts owed to Us up to the date when the Package change or Termination become effective; and (b) You remain liable for any and all unpaid fees invoiced by Us. Your failure to use the Platform does not constitute a basis for refusing to pay any of the associated fees indicated herein.
10.8 You are responsible for all fees accrued on and before the effective date of termination, even if such fees do not become due and payable until after the effective date of termination. We reserve the right to send Your account to debt collection for non-payment and to use Your information for debt collection purposes.
10.9 We may change Our Packages upon thirty (30) days prior written notice sent to the email address supplied in Your Interface. Continued use of the Platform after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification. If You do not agree with these changes, You may cancel Your account at any time by Termination of the Agreement, but You will remain responsible for timely payment of any and all fees charged pursuant to the Agreement that You have already incurred.
10.10 Non-payment is considered a material breach of the Agreement. In case of non-payment We have the right to terminate the Agreement and/or deactivate Your account and/or deny you access to the Platform with immediate effect. If You fail to make any scheduled payment for accrued fees, such overdue months are subject to interest charges in the amount of one and a half percent (1.5%) per month, compounded monthly, or, if different, the maximum amount permitted by law.
10.11 To use our Platform, We may require You to provide Us with accurate, complete, and current information for a valid credit card that You are authorized to use. Amounts owed will be charged to Your credit card unless You request, and RevFresh approves an alternative payment method. If Your invoice falls below payment thresholds determined at Our sole discretion, We may wait with charging Your credit card until the aggregated amounts owed exceed the payment threshold. All credit card holders are subject to validation checks and authorization by the card issuer, and We are not obliged to inform You of the reason for any refusal. We are not responsible if Your card issuer or bank charges You as a result of Our processing of Your credit card payment in accordance with Your instructions.
10.12 Our data and records shall be determinative for purposes of calculating the fees due hereunder.
10.13 We shall be responsible for processing the Ad Media payouts based on the recorded and approved transactions subject to the receipt of the corresponding invoice payment. Your transaction approval is irreversible and You shall not be able to claim back any payments made pursuant to Your approval.
11.1 You guarantee that You have the requisite legal mandate to act on behalf of Your third-party Demand Partner Clients. Upon request, proof of such mandate shall be sent to Us within seven (7) business days.
11.2 You shall be responsible for the Ads and legal aspects of the Products offered on the Sites.
11.3 You agree to enter and maintain accurate and current information in Your Interface.
11.4 You are entitled to decline pending commissions under the following circumstances: (a) duplicate sale, lead or install; (b) User uses incomplete or false information to register; (c) User does not match the profile defined in the Offer; (d) Ad Media violates the Offer policies; (e) any fraudulent action that intentionally attempts to create sales, leads, installs or click-throughs using, without limitation, robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of creating commissions; (f) other circumstances specified in the Offer.
11.5 We are entitled to request proof for every declined commission and You are obliged to provide Us with the proof within 48 hours after You have received Our request. If the proof is not provided in time or disputable, We may reverse Your decision to decline commissions in parts or in full at Our sole discretion.
11.6 You shall continuously monitor Your Interface and validate any and all pending transactions recorded on the Platform before the current calendar month via Your Interface as soon as possible, but, in any event, until the 15th of the current calendar month (the “Validation Period”). All transactions that are not validated during the Validation Period shall automatically be deemed approved by You.
12.1 We shall provide You with the Platform as follows: (i) provision of the technology through which Products by means of Offers can be advertised to Users, and (ii) provision of the tracking and reporting solution to You and Ad Medias.
12.2 During the term of the Agreement, We may (i) host, make available and serve Ads; (ii) make minor stylistic changes to Ads to ensure a consistent user experience on the Platform; and (iii) integrate and display links to the Sites.
13.1 Unless otherwise indicated, the Platform and all related content, including, without limitation, the Website, press releases, presentations, videos, tutorials, case studies, white papers, infographics, support articles, help texts and trademarks (the “IP”), and the selection and arrangement thereof, are Our proprietary property or are licensed to Us and are protected by the laws of European Union and international intellectual property laws. Any use, copying, redistribution and/or publication of any part of the IP, and the selection and arrangement thereof, other than as authorized by the Agreement or expressly authorized in writing by Us, is strictly prohibited. In addition, the look and feel of the Website and Platform, including all page headers, custom graphics, button icons and scripts, is part of the IP and may not be copied, imitated or used, in whole or in part, without Our prior written permission. You do not acquire any ownership rights to the Platform or IP, and We reserve all rights not expressly granted in the Agreement.
13.2 You shall provide Us the Ads. Subject to the terms of the Agreement and for the sole purpose of the Agreement, You hereby grant Us a non-exclusive, non-transferable, royalty-free and worldwide license (“Demand Partner License”) during the term of the Agreement to: (a) incorporate the Ads, trademarks, trade names or other designations of source in the Offers and (b) display on, and distribute through, the Website, the Platform and in related marketing material produced and distributed by Us, the Offers and any other information posted on the Platform or otherwise made available by Your and/or the Demand Partner Clients.
13.3 Nothing in the Agreement will be deemed to grant or assign to Us any intellectual property rights, ownership rights, license rights, or interests of any kind in Your trademarks, trade secrets, patents, copyrights, products, services, technology or other proprietary content of Yours which at all times remain Your sole and exclusive property.
14.1 “Confidential Information” means information which by its nature is confidential, is designated by the disclosing Party as confidential, which the receiving Party knows or ought to know is confidential and which is disclosed by or on behalf of the disclosing Party to the receiving Party, or otherwise is in the possession of the receiving Party, in connection with the Agreement and whether disclosed before, on or after the Effective Date including information which is disclosed orally, in writing, or by any other means including but not limited to printed, other graphic or documentary form, contained in software, on computer disks or tapes (whether machine or user readable), visually by way of model or demonstration and, in each case, any copy thereof. For the sake of clarity, all Ad Media information is considered to be Confidential Information.
14.2 Notwithstanding 14.1 above, Confidential Information shall not include information which:
14.3 Each Party shall not use the other Party’s Confidential Information, except as necessary for the performance of the Agreement, and will not disclose such Confidential Information to any third Party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of the Agreement. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information, if pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to enable it to contest such order or requirement.
Except as expressly set forth herein, to the fullest extent of all applicable laws, the Website (including all information thereon) and Platform are provided by Us as a neutral host and on an “as is” basis, and we disclaim: (a) all representations and warranties, expressed or implied, regarding the Website and Platform, or otherwise relating to the Agreement, including any implied warranties of merchantability, fitness for a particular purpose or arising from course of dealing or course of performance; (b) any warranty that the Website and Platform or any information therein will operate uninterrupted, error-free, or that the servers are free of viruses, spyware, malware or other harmful components; and (c) liability for any third party’s security methods and protection procedures. Further, we make no representation or warranty with respect to any results obtainable through the Platform and/or associated products. You must use industry-recognized software to detect and disinfect viruses from any download. No advice or information, whether verbal or written, we give through the Website, Platform and/or otherwise shall create any warranty, representation and/or guarantee not expressly stated herein. During and after the validity of the Agreement any claim that is not made within the statutory limitation period shall be forfeited.
16.1 Nothing in the Agreement excludes or limits either Party’s liability for (i) fraud or fraudulent misrepresentation; (ii) voluntary or gross negligent acts or omissions; (iii) loss of life or personal injury; or (iv) anything which cannot be excluded or limited by law.
16.2 Neither party shall have any liability (whether in contract, tort or otherwise) under or in connection with the Agreement for any special or indirect damages, including, without limitation, consequential damages, loss of profits, loss of savings and damages resulting from interruption of business regardless whether foreseeable, known or otherwise.
16.4 Each Party’s aggregate liability (whether in contract, tort or otherwise) under or in connection with the Agreement shall not exceed the net amount payable by You to Us in any rolling 6-month period ending the date on which such liability arises.
17.1 The indemnifying Party, at its own expense, shall defend, indemnify and hold harmless the indemnified Party against any losses, damages, liabilities, penalties, costs and expenses, including without limitation reasonable attorneys’ fees, and pay any settlement amounts or awarded damages arising out of any third party claim, suit or action to the extent that such claim, suit or action is based upon an allegation that: (a) the indemnifying Party’s performance of any of its obligations contemplated under the Agreement infringes on any rights of any third party (including, without limitation, any intellectual property rights, privacy rights or publicity rights); or (b) the indemnifying Party have breached any of its obligations, representations or warranties hereunder. The foregoing obligations are conditioned on the indemnified Party promptly notifying the indemnifying Party in writing of such claim.
17.2 The indemnified Party will promptly notify the indemnifying Party of all claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay) and will: (a) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all claims, and (b) be entitled to participate at its own expense in the defense of all claims. The indemnified Party agrees that the indemnifying Party will have sole and exclusive control over the defense and settlement of all claims provided. The indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the indemnified Party, without the indemnified Party’s prior written consent.
18.1 The Agreement shall be effective from the Effective Date and remain valid unless it is terminated in accordance with the terms of the Agreement.
18.2 We provide You with the License on a month-to-month basis, and as such each of the Parties, may, at their sole discretion, terminate the Agreement at any time with a one month notice period to the end of the month (the “Termination”). The terminating Party must provide the written notice of Termination by email.
18.3 Either Party may terminate the Agreement with immediate effect by written notice to the other Party if: (i) the other Party commits a material breach of the Agreement and fails to remedy the breach (if remediable) within fourteen (14) days of receiving written notice to that effect specifying the breach and requiring it to be remedied; (ii) the other Party ceases to conduct its business operations; or (iii) the other Party enters into a composition with its creditors or goes into liquidation, or is dissolved, or adjudged insolvent or is otherwise rendered incapable of performing its obligations under the Agreement without the consent of a third party.
18.4 We may suspend the License (the “Suspension”) at any time, with or without advance notice, where: (a) You are in material breach of the Agreement; (b) any Offers are unsuitable for the Platform for any reason including, without limitation, that the Offers contain, or link to, content that is of adult or explicit nature, offensive, indecent, harmful, threatening, defamatory, obscene, harassing or otherwise unlawful; (c) You, at any time, are conducting commercial activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations; or (d) any of Your invoices is overdue.
18.5 Upon Termination or Suspension of the Agreement, the following terms apply: (i) We shall block all Your user accesses, terminate all Your Offers and cancel all Your other related services; (ii) If You are using the Platform, You must either stop tracking transactions in the Platform, remove Our SDK from Your mobile app(s), or request a DNS shutdown of Your account in writing; (iii) You must remove all Our links, logos, references and other information, including, but not limited to, container tags, folders, conversion pixels and referring links (the “Links”) and confirm to Us in writing that all Links are removed; (iv) the License and any and all other licenses and rights granted to You in connection with the Agreement shall immediately terminate; (v) all confidential and proprietary information of Us that is in Your possession or control must be immediately returned or destroyed. If requested, You shall certify in writing that all such confidential and proprietary information has been returned or destroyed; and (vi) You are responsible for settling any outstanding balances in accordance with Section 9.
18.6 If We terminate the License for breach of the Agreement, You shall not be eligible to enter into a new agreement with RevFresh, and any attempt to do so shall be null and void. Obligations that, by their nature, would survive any Termination of the Agreement including, without limitation, Sections 10, 13, 14, 15, 16 and 17 shall survive any Termination of the Agreement.
Each Party represents and warrants that: (a) it will make no false or misleading representations, warranties or guarantees with respect to the other Party and all material aspects of the other Party’s business including, but not limited to, its products and services; (b) it has the authority and capacity to enter into the Agreement and it is not subject to any restrictive covenant or other legal obligation; (c) it shall perform its obligations under the Agreement in a timely, competent and professional manner and with all reasonable care and skill; and (d) it will comply with all applicable laws and regulations and will maintain any permits, licenses and approvals required to perform its obligations hereunder.
The relationship between the Parties is that of independent contracting parties. Nothing in the Agreement shall constitute or be deemed to constitute a relationship of joint venture, partnership, franchise or similar arrangement between the Parties. For the sake of clarity, the Agreement shall not constitute an agreement between Us and any Demand Partner Client.
The Agreement, and Your relationship with Us under the Agreement, will be governed by and construed in accordance with the laws of Estonia, without regard to its law provisions. Any claim, dispute or matter arising under or in connection with the Agreement shall be resolved mutually through negotiation to the extent possible. In the event the Parties fail to resolve any dispute arising hereunder through mutual negotiation, each Party shall irrevocably submit to the exclusive jurisdiction of the courts of Estonia.
22.2 The Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
23.1 By clicking on the “Sign up” button, or such similar links as may be designated by RevFresh as a means of accepting the Agreement, You acknowledge and agree that You are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that Your electronic submissions constitute Your intent and consent to be bound by the Agreement.
23.2 You consent to receiving electronic communications and agree that all agreements, notices, disclosures and other communications that We provide to You electronically, via email or by posting notifications in Your Interface satisfy any legal requirement that such communications be in writing.
Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United Kingdom Electronic Communications Act 2000 (the “E-Signature Law”) or other similar statutes, You hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of invoices, credit notes, notices, policies, records of transactions and other communications initiated or completed through the Platform. Further, You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require a handwritten signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Neither party shall be liable, or be considered to be in breach of the Agreement, on account of either Party’s failure or delay in the performance of its obligations as required under the terms of the Agreement for any cause beyond the reasonable control of such Party, including but not limited to electrical outages, failure of internet service providers, default due to internet disruption caused by denial of service attacks, riots, insurrection, war (or similar), fires, flood, earthquakes and explosions.
We may assign or otherwise transfer the Agreement or any rights and obligations hereunder, in whole or in part, to any person or entity without Your consent. The rights granted to You under the Agreement may not be assigned without Our prior written consent which should not be unreasonably withheld, and any attempted unauthorized assignment by You shall be null and void.
The unenforceability of any single provision of the Agreement shall not affect any other provision hereof. Where such a provision is held to be unenforceable, the Parties shall use their best endeavors to negotiate and agree upon an enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the unenforceable provision.