These are the general purchasing terms and conditions (the “Terms and Conditions”) of Optimuum (as defined below) for the provision of the services by the Affiliate (as defined below).
Name: “Optimuum”, a trademark of International Traffic Exchange B.V.
Statutory seat: Amsterdam, The Netherlands
Registered Address: Watertorenplein 4 B (1051PA) Amsterdam, The Netherlands
Registered at: Chamber of Commerce (Kamer van Koophandel) in The Netherlands
Under number: 62985051
2.1 The Terms and Conditions shall apply to any of the Services (as defined below) to be provided by the Affiliate to Optimuum.
2.2 By signing up, registering, or otherwise enrolling as an ‘Affiliate’ with Optimuum, the Affiliate declares to agree with and accept the applicability of these Terms and Conditions. The Insertion Order (as defined below) (or other registration form) executed by the Affiliate and Optimuum, together with these Terms and Conditions and the Code of Conduct Order (as defined below), collectively form the agreement between the Affiliate and Optimuum (the “Agreement”).
2.3 Any changes or additions to these Terms and Conditions shall only be valid once agreed upon with Optimuum and confirmed in writing. The applicability of any other terms and conditions, including any terms or conditions which are implied by trade, custom, practice or course of dealing or which the Affiliate may purport to apply, or which are endorsed upon any correspondence or documents issued by the Affiliate irrespective of their date of communication to Optimuum, are explicitly excluded.
3.1 In these Terms and Conditions, both the singular and plural forms of, the following definitions shall have the following meaning:
Ads: means email content, banner ads, buttons, pop-ups, pop-unders, co-registrations, lead generations, hypertext or other links, widgets, works of authorship, jumbo promos, content scripts, add tags, silver bullets, site skins, promotional and other advertising material, and any kind of commercially sponsored or related content, related to a specific Campaign;
Affiliate: means any legal person or natural person acting in the course of trade (and including its agents, representatives, employees or any other person acting on its behalf) that signed up, registered and/or enrolled with Optimuum to provide the Services;
Agreement: means the documents establishing the legal relationship between the Affiliate and Optimuum as further detailed in Clause 2.2;
Artificial Traffic: means a collective term, also known as fraudulent traffic, for invalid Conversions, which may originate (for example without limitation) from automatic openings, spiders, robots, requests in email or chat rooms, script generators, placing links on websites other than those informed and clicks which are not generated by a browser or clicks which are not preceded by an active act of a true visitor who wants to reach a specific website;
Campaign: means an advertisement campaign under the terms made available by Optimuum;
Commission: means the commission fee per Conversion minus Artificial Traffic to be paid by Optimuum to Affiliate, as further detailed in Clause 5.1;
Confidential Information: means all non-public information disclosed (whether in writing, orally, electronically or otherwise) by Optimuum to Affiliate before and during the Agreement and that is marked or otherwise designated as ‘confidential’ or ‘secret’, or by its nature should be considered confidential at the time of disclosure, thereby including, without limitation: processes, methods, formulae, technical information, information in tangible or intangible form relating to and including released or unreleased software, marketing or promotional activities, business policies or practices, business relations and pricing/financial information;
Conversion: means an action upon which the commercial deal is based, for example, if the commercial deal is: CPM (Cost Per Mille), CPA (Cost Per Action), CPC (Cost Per Click), CPL (Cost Per Lead), CPD (Cost Per Download), CPPU (Cost Per Paying User), CPAU (Cost Per Active User), CPI (Cost Per Install), then conversion is considered respectively: mille, action, click, lead, download, paying user, active user and install;
Effective Date: means the date of acceptance by Optimuum of any (legal or natural) person as an Affiliate of Optimuum’s affiliate network;
Insertion Order: means the document(s) provided by Optimuum to sign up and register as an Affiliate with Optimuum;
Intellectual Property Rights: means all intangible, intellectual, proprietary and industrial property rights, worldwide, whether registered or unregistered, including, but not limited to: (a) all trademarks, service marks, trade names and logos; (b) all copyrights, moral rights, and other rights in works of authorship, including images and content, and including copyrights in software (source code); (c) all database rights, (d) all patents or utility models; (e) all designs and drawings; and (e) all other rights in or connected to (technical) know how or trade secrets;
Landing Page: means the URL related to a Campaign and which embeds a tracking code provided by Optimuum to measure the Conversion;
Media: means any (digital) platform, website, channel, e-mail, message, newsletter, (mobile) application and/or another traffic source used by the Affiliate;
Optimuum: means International Traffic Exchange B.V., a private company with limited liability (in Dutch: ‘besloten vennootschap met beperkte aansprakelijkheid’) incorporated under the laws of the Netherlands, and trading under the name ‘Optimuum’, registered at the trade register (in Dutch: ‘Handelsregister’) of the Dutch Chamber of Commerce (in Dutch: ‘Kamer van Koophandel’) under number 62985051;
Optimuum Statistics: means the interpretation of collected data related to the Conversion, at the sole discretion of Optimuum, on the basis of affiliate tracking software tools;
Services: means the targeting services provided by the Affiliate in order to generate and/or improve Conversion and collect data to optimize a Campaign by means of (without limitation) distributing Ads within its Media;
Terms and Conditions: means these affiliate terms and conditions;
Website: means https://www.optimuum.com/
4.1 Upon the completion and execution of the Insertion Order (or other registration form) by the Affiliate and the confirmation thereof by Optimuum, the Affiliate shall start performing the Services to Optimuum.
4.2 Optimuum may (temporarily) withhold or deny acceptance of the Affiliate for any reason and at any time without being or becoming liable towards the Affiliate in respect thereof. This may for example be the case in the event that the registration or sign up form are not (yet) completed properly or appear to be incorrect. In such event, additional information may be requested from the Affiliate by Optimuum.
4.3 With respect to providing the Services and during the Agreement the Affiliate represents and warrants to Optimuum:
4.3.1 to perform the Services on a best effort’s basis, thereby taking into account professional skill and care;
4.3.2 to adhere to specific instructions from Optimuum (e.g. following ‘notice and takedown’ and/or compliant requests);
4.3.3 that any information provided to Optimuum regarding itself and/or its business shall be true, accurate and complete;
4.3.4 that none of its Media contain false, untrue or misleading information;
4.3.5 to adhere to and comply with the obligations set forth in the Code of Conduct;
4.3.6 to procure that each Campaign shall be localized properly (i.e. translated correctly and in conformity with applicable local laws and regulations);
4.3.7 to act in compliance with any and all applicable laws, regulations (amongst others in relation to privacy) and/or industry codes of the countries where the Campaign and Ads will be advertised;
4.3.8 to provide Ads with applicable age rating, where applicable or legally required.\
4.4 The Affiliate shall indemnify and hold Optimuum and its affiliated parties (including, but not limited to its holding companies, subsidiaries and/or other group companies) harmless from and against any costs, damages or expenses resulting from any third party claims that arise from or are in any way relating to or resulting from the Affiliate’s non-compliance with one or more of the representations and warranties mentioned under Clause 4.3.
4.5 The Affiliate acknowledges that Optimuum may receive its instructions for Campaigns and requests for the Services, from third parties. The Agreement does not comprise any obligation for Optimuum to retain the Affiliate for (specific) Campaigns respectively Services.
5.1 For providing the Services during the Agreement, the Affiliate is entitled to receive a Commission from Optimuum. In this respect, the Affiliate acknowledges and accepts that Optimuum will invoice the Commission for the provided Services to itself on behalf of the Affiliate.
5.2 The Affiliate acknowledges and accepts that the Optimuum Statistics will comprise evidence for the calculation of the Commission, regardless of the Affiliate’s right to provide evidence of the contrary. In this respect the Affiliate also acknowledges and accepts that Optimuum shall implement and use tracking code software tools to monitor and register traffic and Conversion and potential Artificial Traffic generated on or via the Landing Page(s) of the Affiliate.
5.3 Optimuum may install multi-level fraud detection to optimize the prevention of Artificial Traffic. When Artificial Traffic is detected by Optimuum, the Affiliate will be informed thereof. In the event that the Affiliate detects Artificial Traffic, it must inform Optimuum without delay by written notice (including email).
5.4 The invoicing and payment terms will be determined by Optimuum, whereby the applicable payment term for Optimuum will not extend the term of 1 (one) month.
5.5 In the event that the Affiliate wishes to dispute the accuracy of an invoice and/or the Optimuum Statistics, the Affiliate must notify the dispute to Optimuum without delay but in no event later than within seven (7) days of the invoice date. If no disputes are made by the Affiliate regarding an invoice from Optimuum within seven (7) days of the invoice date, the invoice will be deemed accepted by the Affiliate.
6.1 The Agreement shall come into force on the Effective Date and shall remain in effect for a term of one (1) year after which it will be renewed and extended automatically by consecutive periods of one (1) year each, unless terminated earlier as per this Clause 6.
6.2 Both Optimuum and the Affiliate are entitled to wholly or partly terminate the Services (for example regarding a specific Campaign), or to terminate the Agreement as a whole, with or without cause by providing written notice to the other party, thereby taking into account a notice period of at least seventy-two (72) hours, without incurring any liability towards the other party in respect hereof.
6.3 Both Optimuum and the Affiliate are furthermore entitled to terminate the Agreement (in whole or in part) in writing, with immediate effect and without incurring any liability towards the other party, in the event the other party: (i) has been declared bankrupt, files for bankruptcy or requests a suspension of payments, or (ii) ceases its business or is in the process of liquidation.
6.4 Optimuum will also be entitled to immediately terminate the Agreement or to request the immediate (temporarily) suspension of the Services (in whole or in part, for example regarding a specific Campaign), without incurring any liability towards the Affiliate, in the event of (i) the Affiliate’s non-compliance with one or more of the warranties or representations under Clause 4.3 or (ii) the Affiliate being in default of one or more of its obligations under the Agreement which default cannot be remedied or has not been remedied within eight (8) days after notification of default by or on behalf of Optimuum.
6.5 In the event that Optimuum elects to (temporarily) hold, pause or amend a Campaign or Add, the Affiliate will procure that the requested hold, pause or amendment will take effect within forty-eight (48) hours as from the notification (including by email) from Optimuum, unless Optimuum specifically instructs the Affiliate otherwise at that time.
6.6 Upon termination or suspension of the Agreement in whole, or for the relevant part thereof (for example, a specific Campaign), the Affiliate shall immediately cease the Services (or a specific Campaign as the case may be), delete all links in Landing Pages that relate to the relevant Campaign(s) and delete any Confidential Information of and/or provided by Optimuum, including all copies thereof. The Affiliate shall furthermore immediately cease and delete any references to Optimuum (thereby including the use of any trademark, tradename and/or logo of Optimuum). For the avoidance of doubt, the Affiliate shall not be entitled to receive any Commission on any Conversions made after the termination date, but it will not discharge the Affiliate from its obligations under the surviving provisions of the Agreement, in particular this Clause 6.6, Clause 7 (Intellectual Property Rights), Clause 8 (Confidentiality), Clause 9 (Code of Conduct), Clause 12 (Miscellaneous) and Clause 13 (Applicable Law and Forum).
7.1 Optimuum or its licensors own all rights, titles and interests in the Intellectual Property Rights in and connected to Optimuum, its services and any (content of) the Campaign and the Ads.
7.2 During the term of the Agreement, or applicable Campaign (as the case may be), Optimuum hereby grants the Affiliate with a non-exclusive, non-transferable and non-sub licensable right to copy, disclose, transfer or otherwise use (the content of) the Campaign and Ads and related Intellectual Property Rights for the sole purpose of providing the Services.
7.3 Nothing in these Terms and Conditions or the Agreement is intended to include the transfer of any Intellectual Property Rights owned by Optimuum or their respective licensors, to the Affiliate.
8.1 The Affiliate shall keep confidential all Confidential Information disclosed by or received from, Optimuum, and the content of any communication with Optimuum in connection with the Services.
8.2 With respect to the Confidential Information, the Affiliate: (i) shall not use or disclose such Confidential Information for any purpose except as necessary to fulfil the Services, or other obligations under the Agreement, or as required by law; (ii) shall limit access to the Confidential Information solely to employees, agents or any other person who need to obtain such access to fulfil the Services or any other obligation under the Agreement, and (iii) shall require its employees, agents and other persons who have access to the Confidential Information to abide by confidentiality obligations.
8.3 The Affiliate shall be liable for any breach of the confidentiality obligations under this Clause by any of its employees, agents or any other person who obtained access to the Confidential Information.
8.4 Confidential Information shall not include information that is or has become publicly available through no fault of the Affiliate or that was or has been rightfully and independently developed or obtained by the Affiliate free from any duty of confidentiality.
9.1 At all times, the Affiliate shall comply with the Code of Conduct.
9.2 In the event Optimuum receives a ‘notice and takedown’ and/or complaint request (for alleged unlawful or inappropriate content) from a third party regarding a Campaign and/or Ads placed by the Affiliate, Optimuum will inform the Affiliate thereof and the Affiliate shall immediately take the appropriate action as requested by Optimuum.
10.1 The Affiliate shall comply with all applicable law and regulations at all times, including applicable law relating to the collection, processing and transfer of personal data such as the European General Data Protection Regulation (“GDPR”). The Affiliate shall indemnify and hold Optimuum harmless from and against any and all third party claims, damages, losses, costs or expenses or any damages or costs awards sustained or incurred by Optimuum in connection with any complaint made against Optimuum under the GDPR and similar legislation anywhere outside the European Economic Area (EEA) as a result of Affiliate’s failure to comply with applicable data protection laws.
10.2 Optimuum is entitled to perform quarterly audit samples amongst the affiliates, thereby including Affiliate, in order to confirm the Affiliate’s compliance with the Agreement.
11.1 In no event will Optimuum and/or any of its subsidiaries and/or other group companies, affiliates, partners, licensors or suppliers be liable for any direct, indirect, consequential, punitive, special or incidental damages resulting from, arising out of or in connection with the access, use of, or inability to access or use the Services, even if Optimuum has been advised of the possibility of such damages, except to the extent that such damages arise directly and solely from wilful misconduct or gross negligence on the part of Optimuum itself.
11.2 In no event will Optimuum be liable for defects in the Services or Media, URL(s) or Optimuum Statistics, or for any damage caused by viruses or components of software and/or Media. Additionally, Optimuum has no control over, and shall therefore not be liable for, the content and lawfulness of Campaigns and Ads, or the acts or omissions of any other third parties.
11.3 If and to the extent any exclusion or limitation of liability or disclaimer of warranty set out in this Clause 11 shall not be allowed under applicable law, such exclusion, limitation or disclaimer will not apply to the Affiliate, but only to the extent it shall not be allowed. In such case, such exclusion, limitation or disclaimer shall be limited to the extent required by applicable law.
11.4 Except to the extent that liability cannot be limited under applicable law, any and all liability of Optimuum is limited to the amount paid out, if any, under its liability insurance coverage in the matter concerned. In the event and to the extent that no monies are paid out under its liability insurance for whatever reason, any and all liability of Optimuum shall be limited to a maximum amount of € 5,000 (five thousand Euros).
11.5 In any event, a claim on Optimuum shall lapse in case Optimuum did not receive written notice of such a claim no later than within twelve (12) months after the earlier of (i) termination date of the Agreement, (ii) the discovery by the Affiliate of an event or circumstance that gives or may give rise to that claim or (iii) the moment that the Affiliate could have reasonably discovered an event or circumstance that gives or may give rise to that claim.
11.6 The Affiliate indemnifies and hold Optimuum, its subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys harmless from and against all third party claims that arise from or are in any way connected to the Services from the Affiliate, the Affiliate’s non-compliance with one or more of the warranties or representations under Clause 4.3, or one of the disclaimers stipulated under Clause 11.2, unless such claims directly result from wilful misconduct or gross negligence by Optimuum itself. This indemnification includes any legal costs.
12.1 Optimuum reserves the right to unilaterally amend these Terms and Conditions, including the Code of Conduct from time to time. Any such amendments shall be effective fourteen (14) days after notification to the Affiliate. If the Affiliate rejects the amendments, the Affiliate is required to notify Optimuum hereof within seven (7) days after the notification date. Such rejection will imply that the Affiliate shall terminate the performance of the Services upon the effective date of the amended Terms and Conditions. By continuing to provide the Services after receipt of the notification, the Affiliate will be deemed to have accepted the amended Terms and Conditions.
12.2 If any provision of these Terms and Conditions should to any extent be or become invalid, void or unenforceable, the other provisions shall continue to be applicable and enforceable. With respect to the invalid or void provision, Optimuum shall provide an amended text for such provision which is valid and legitimate thereby respecting the initial objective of the original provision.
12.3 The Affiliate may not assign or pledge its rights and/or obligations under the Agreement in whole or in part to any third party without the prior written consent of Optimuum.
12.4 Optimuum’s failure to exercise, or delay in exercising any rights under the Agreement or these Terms and Conditions does not constitute a waiver of such rights.
12.5 Nothing in these Terms and Conditions or in the Agreement shall create or be deemed to create a partnership or relationship of employer and employee between Optimuum and the Affiliate.
13.1 The legal relationship between Optimuum and the Affiliate, these Terms and Conditions and/or the Agreement shall be exclusively governed by the laws of the Netherlands.
13.2 In the event of any dispute relating to or arising from these Terms and Conditions or the Agreement that cannot be resolved amicably between Optimuum and the Affiliate, the dispute shall in first instance be exclusively decided by the competent court in Amsterdam, the Netherlands.