PUBLISHER TERMS AND CONDITIONS

These Publisher Terms and Conditions (the “Agreement”) set forth the agreement between Blue Track Media, LLC and You, a Publisher Partner. This Agreement replaces and supersedes any prior terms and conditions between Blue Track Media and its publishers. You shall be legally bound by this Agreement by executing a hard copy of this Agreement, electronically accepting this Agreement online, or by using Blue Track Media’s services. By creating any Service account via the online user interface provided by Blue Track Media for accessing the Services, or by otherwise accessing or using any of the Services, You agree that You have the authority to bind and You agree to be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, do not create a Service account, or access or use any Service. This Agreement does not alter in any way the terms or conditions of any other agreement You may have with Blue Track Media for products, services or otherwise.

Approval of Publisher

Registration with Blue Track Media shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by Blue Track Media on the BTM Services on behalf of its clients (the “Advertisers”). Participation by Publisher in the Blue Track Media publisher lead generation program is subject to review and approval by Blue Track Media. All prospective publishers need official approval from Blue Track Media before they can become Publishers. Official approval requires meeting the criteria listed under section 1.1 below, however approval is not automatically granted upon fulfillment of said criteria. Blue Track Media reserves the right to withhold or refuse approval for any reason or for no reason. Once Publisher has been accepted into the Program, Publisher’s continued right to participate is conditioned upon Publisher’s ongoing compliance with all of the terms and conditions of this Agreement. Failure of the Publisher to observe the terms and conditions of this Agreement will disqualify Publisher from participating in the Program. Publisher may re-qualify for program upon proof of compliance with terms and conditions of this Agreement, subject to approval by Blue Track Media. Publisher shall promptly notify Blue Track Media in the event of a material change in its business practices or strategy. Approval of a Publisher can be withdrawn by Blue Track Media, at any time for any reason.

Minimum Eligibility Requirements

In order to be eligible to become a Publisher, all websites, affiliated websites and mobile apps (collectively the “Media”) must meet the following criteria, at a minimum:

All Publishers that wish to display personalized advertisements must have the consent of the consumer to collect and store any data required to personalize the advertising experience and each Publisher shall maintain records evidencing such consent including, without limitation:

  • Member opt-in date
  • Registration source (app, website, etc)
  • First name
  • Last name
  • Address
  • Email address
  • Any other information collected and will supply such records to Blue Track Media within one business days of request thereof;

Unless otherwise approved in writing by Blue Track Media, Publishers may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;

Publisher websites must be fully functional at all levels; no “under construction” sites or sections;

Publisher’s policies must be compliant with state and federal laws and regulations

Spawning process pop-ups are prohibited; and

Such other criteria as Blue Track Media may from time to time determine, in its sole discretion.

Publisher Website and/or App Content

The content of Publisher’s Media shall be subject to Blue Track Media’s subjective approval and must comply with all applicable laws and regulations (including all laws respecting personal data or intellectual property rights) and, in any event, conform to the content restrictions outline in Blue Track Media's Publisher Partner Agreement Content Restrictions section.

Use of the BTM Services

The BTM Services allows Blue Track Media to post offers of advertising programs sponsored by Blue Track Media or its affiliates on the system (“Program(s)”). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program’s requirements are fulfilled. Compensation is derived from a specified event (“Event”) identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. If Publisher accepts a Program, Publisher agrees to place that Program’s advertising creative (“Ad”) on Publisher’s Media. Publisher shall display the Ad exactly as it appears on the BTM Services and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Blue Track Media, result in termination of Publisher. Blue Track Media may change a Program at any time, upon reasonable advance written notice to Publisher. Blue Track Media is responsible for displaying and administering all active Programs and tracking the payments owed.

Compliance and Monitoring

Publisher agrees that Blue Track Media and our service providers may monitor or audit Publisher’s apps or websites and activities under this Agreement, as well as those of Publisher’s Agents. Publisher will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Publisher may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Publisher’s facilities and those of its Agents. Publisher’s failure to promptly and reasonably comply with Blue Track Media’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement.

License

Blue Track Media grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the BTM Services (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “BTM Services Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, such Publisher may not provide the Program to its publishers, without the prior written consent of Blue Track Media. If a Publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Blue Track Media, Publisher shall forfeit its rights to any amounts owed by Blue Track Media to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the BTM Services software, applications, data, methods of doing business or any elements thereof, or any content provided on the BTM Services (including the Ads). Publisher may only access the BTM Services via web browser, e-mail or in a manner approved by Blue Track Media. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the BTM Services tags, source codes, links, pixels, modules or other data provided by or obtained from Blue Track Media that allows Blue Track Media to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Blue Track Media hereunder or as part of the services hereunder is proprietary to and owned by Blue Track Media. If instructed to do so by Blue Track Media and/or if Publisher shall be terminated by Blue Track Media, Publisher will immediately destroy and discontinue the use of any Blue Track Media data, including BTM Services Data, and any other material owned by Blue Track Media or the Advertisers.

Non-Solicitation

Publisher agrees that Publisher will not approach or attempt to engage in a contract with any of Blue Track Media’s clients (each such client, individually a “Client” and all such clients, collectively “Clients”) directly or indirectly via a Client’s Ad agency, broker or any other person or entity. Blue Track Media will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a Blue Track Media Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because Blue Track Media will be irreparably harmed by Publisher’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Publisher agrees that Blue Track Media shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.

Participation in our Program

Publisher’s website will be subject to Blue Track Media’s review and approval before receiving any traffic. Approval shall be written or by electronic submission. All Program related websites will contain links (“Links”) provided by Blue Track Media directing traffic to product sales web pages served by Blue Track Media or a Blue Track Media Group Client. Publisher’s selection of entities to be included on any such website is also subject to Blue Track Media’s review and approval, of which shall not be unreasonably withheld. Should any of Blue Track Media’s Client(s) provide content which includes imbedded bots, Data Miners, links or other creative, graphic, text or html, all content shall remain at all times the sole property of Blue Track Media.

Links

Publisher agrees to use the Links in the exact form that we deliver them to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without Blue Track Media’s written approval. Links must be served from the Blue Track Media server, unless otherwise permitted in writing by Blue Track Media. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees to, if request by Blue Track Media, modify or alter Links or Tracking devices in the manner requested by Blue Track Media. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Blue Track Media in accordance with the previous sentence.

Ownership

Blue Track Media owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. Blue Track Media may choose to imbed certain data mining tools within Links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sole property of Blue Track Media. Blue Track Media may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If Blue Track Media does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of Blue Track Media. Should Blue Track Media choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by Blue Track Media without modification unless approved by us in writing; (ii) only in the manner expressly permitted by Blue Track Media in writing and only until Blue Track Media shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Blue Track Media to do so.

Fraud

Blue Track Media actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things:

Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Blue Track Media;

Have ONLY click or lead generation programs generating clicks or leads with no indication by app or website traffic that it can sustain the clicks or leads reported;

Have shown fraudulent leads as determined by the Advertisers;

Have used any incentives to procure clicks or leads

Have provided leads obtained other than through intended consumer action.

Use fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.

If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation, as determined solely by Blue Track Media, Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Blue Track Media, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, Blue Track Media reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.

Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”). Blue Track Media may detect and track all Invalid Leads, which are determined on a real-time basis. Blue Track Media shall only pay for leads deemed valid by this system unless minimum performance thresholds are not met. At the sole discretion of Blue Track Media, leads may also subsequently be deemed invalid for (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to install app, incentivization of app installs and/or a publisher’s inability to provide the user IP and time/date stamp for each lead or (ii) non-compliance with app installs including but not limited to exceeding lead caps as communicated by a Blue Track Media Account Executive and/or going live with an offer prior to written approval of a creative and data transfer by an Blue Track Media Account Executive.

Payment

Publisher will be paid per the terms of each Program. Blue Track Media shall pay any amounts due approximately 30 days after the end of each month, less any taxes required to be withheld under applicable law, provided that Blue Track Media may, in its discretion, withhold payments until such time as the Advertiser has paid Blue Track Media for any Program. In addition to any other remedies that may be available to Blue Track Media, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by Blue Track Media to Publisher. Blue Track Media reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Blue Track Media shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by Blue Track Media need to be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Blue Track Media will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Blue Track Media and payments made to Publisher shall be based on the Events as reported by Blue Track Media. Blue Track Media will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. Blue Track Media will require a Publisher to provide a W-9, and similar such information, as a condition to payment.

Term; Termination

The term of this Agreement will commence on the date Your account was created, and will continue until terminated by either party as provided in this Agreement (“Term”). You may terminate this Agreement, with or without cause, at any time by sending written (via email) notice to the address and contact set forth in Section 15(c) below; provided that such termination will become effective upon the earlier of 10 business days after Blue Track Media’s receipt of such notice or the date upon which, after receiving such notice, Blue Track Media suspends Your ability to access or use the Service or terminates Your Account. Blue Track Media may terminate this Agreement or any Account, with or without cause, in Blue Track Meida’s sole discretion, at any time. Upon termination of this Agreement, (a) any licenses granted to You in this Agreement will automatically terminate, and You must immediately cease all use of any of the Services, as well as any Blue Track Media Code, and destroy or erase all copies, full or partial, of any Blue Track Media Code or Protocol in Your possession or control. Further, upon expiration or termination, and if Your account balance is less than US$50 (the “Termination Threshold”), such earned balance below the Termination Threshold will not be paid and will automatically be forfeited and Blue Track Media will own any such amounts. If Your earned balance at the time of expiration or termination is greater than the Termination Threshold, Blue Track Media will remit the amount earned within approximately 90 days of the end of the month of expiration or termination to You. Blue Track Media will attempt to pay You for undisputed amounts earned and unpaid, however, if Blue Track Media is unable to remit payment to You due to You or circumstances beyond Blue Track Media’s control, You will automatically forfeit all such amounts and MoPub will own any such amounts.

Representations and Warranties/Covenants

Mutual Representations

Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.

Publisher Representations

Publisher represents and warrants as follows:

  • Publisher's compliance to collection and storage of personal data (including without limitation the California Privacy Laws and the General Data Protection Regulation (GDPR) (EU) 2016/679, effective May, 25, 2018);
  • Publisher’s Media is currently in compliance with all applicable laws (including without limitation the CAN-SPAM Act, effective January 1, 2004 (the “CAN-SPAM Act”);
  • Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
  • Publisher’s database consists of only permission based opted-in personal data; and
  • Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media.

Publisher Covenants

Publisher covenants that it shall not:

  • post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from Blue Track Media;
  • promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;
  • use the BTM Services in any manner other than that which is specifically contemplated herein;
  • engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and
  • while an approved Publisher and for 180 days thereafter, participate in any performance based advertising relationship with any Advertiser within Blue Track Media’s network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of Blue Track Media. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, Blue Track Media will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher.; and

Publisher covenants that it shall:

  • Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;
  • Provide within one business day after request therefrom, the IP Information, together with such other related information that Blue Track Media may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher.

Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of Blue Track Media, result in the immediate suspension or termination of Blue Track Media’ relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by Blue Track Media. The foregoing rights shall be in addition to any other remedies available to Blue Track Media. Publisher acknowledges and agrees that Blue Track Media shall not be responsible for the Advertisers’ violation of any applicable laws or regulations.

Customer Information; Non-Disclosure. Confidentiality

All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Blue Track Media, its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards.

All information provided to Publisher hereunder shall be kept strictly confidential.

LIMITATION OF LIABILITY; NO ADDITIONAL WARRANTIES; INDEMNIFICATION. THE ADACTION WEBSITES (INCLUDING ANY REPORTING SITE) AND THE OFFERS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ADACTION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADACTION’S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY ADACTION TO PUBLISHER HEREUNDER.

Indemnification

Each party agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees from and against any third party loss, cost, claim, injury or damage (including reasonable attorneys’ fees) arising out of or related to a breach of such party’s representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement.

Indemnification Procedures

Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim and the indemnitor shall defend and/or settle the claim at its own expense and with counsel of its own selection. Indemnitee shall at all times have the right to fully participate in the defense of any claim and in any settlement which it reasonably believes would have an adverse effect on its business. The indemnitee shall make available to the indemnitor all books and records relating to the claim, and the parties to this Agreement agree to render to each other such assistance as may reasonably be requested in order to ensure a proper and adequate defense. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor. An indemnitor shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnitee without the prior written consent of the indemnitee, such consent not to be unreasonably withheld. Nothing in this Agreement shall be construed to prevent indemnitee from retaining counsel of its choice, at the expense of the indemnitee, to represent indemnitee’s interests and participate in the defense of any such claims covered under this section.

CONFIDENTIAL INFORMATION

Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the prior written consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that Blue Track Media may divulge its personal and/or otherwise Confidential Information to an Advertiser upon request or to an enforcement agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or pursuant to any applicable law or regulation.

GENERAL

Unavoidable circumstances/ Force Majeure

Neither party shall bear liability or be considered to have defaulted or breached this agreement in failing to fulfill or perform the provisions outlined herewith or for the delay caused in doing so if that failure or inability to perform or reason for delay is beyond the party’s control or influence and arises out of but isn’t limited to the following – failure of technology (networks and communication systems), civil unrest, riots, embargoes, acts of war, war, lockouts, acts of terrorism, labor disruptions, strikes, floods, fire and other acts, delays and omissions resulting from governmental red-tape or delays by the other party, so long as the party experiencing the specific issue makes all efforts possible commercially to remove or get past such blockades to performance and fulfillment of agreement provisions and shall undertake to ensure that reasonable and sustained efforts are maintained to ensure dispatch at the first opportunity available upon the removal of the cause or causes for the delay. Both parties are held responsible for making the other aware of the delay or failure of performance resulting from force majeure through written communication. Both parties shall then work together to seek solutions to the said situation to end the delay or non-performance as mentioned above.

Laws Governing the Agreement

The agreement detailed herewith shall be regulated and interpreted by the laws of the State of Texas irrespective of conflicting law provisions therefrom. Publishers accept that all actions bearing on this agreement shall be brought by them to the state or federal courts located in Denton County, Texas, and that they shall submit to the jurisdiction of the aforementioned courts.

Relationship

The relationship of Publisher and Blue Track Media established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. None of the parties shall assume responsibility or authority or create obligations and responsibilities of any sort by representing another party or acting on its behalf except in certain circumstances when written agreement, duly signed by the parties involved is provided.

Notice

Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by facsimile or email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein. In the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.bluetrackmedia.com. Notices to Blue Track Media shall be sent to Blue Track Media at 1500 Market St, Suite 3500, Philadelphia, PA 19102. Notices to Publisher shall be sent to Publisher at its most recent email address set forth in its account information. Publisher agrees to receive electronic communications from Blue Track Media, at the email address provided by Publisher. Publisher further agrees that any notice or other communication that Blue Track Media sends it electronically will satisfy any legal communication requirements, including that such communications be in writing.

Successors and Assigns

Publisher may not assign or otherwise transfer this Agreement or any rights or obligations herein without the prior written consent of Blue Track Media. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.

Waiver

The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.

Amendment

Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.bluetrackmedia.com

Entire Agreement; Severability

This Agreement and any related IO’s set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding  arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as   possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.

Dispute Resolution

In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. In the event of a dispute resulting in litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Dallas, Texas, USA and any such litigation will be brought within such courts. The prevailing party in any action shall be entitled to recover its reasonable attorneys’ fees and costs incurred.

Survival

Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.

Interpretation

Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.

Exhibit A

Data Protection Addendum

This Data Protection Addendum (“Addendum”) forms part of the (“Agreement”) between Blue Track Media acting on its own behalf and as agent for each Blue Track Media Affiliate; and Publisher on its own behalf and as agent for each Publisher Affiliate.

The terms used in this Addendum shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.

The parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Agreement.

Definitions

  • “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Publisher or Blue Track Media respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
  • “Controller,” “Processor,” “Data Subject,” “Personal Data,” “Processing,” “Supervisory Authority,” “Personal Data Breach,” and “Special Categories of Personal Data” shall have the same meaning as in the Data Protection Laws;
  • “Data Protection Laws” shall mean Directive 95/46/EC and Directive 2002/58 /EC, in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council (“GDPR”) and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA;
  • “EEA” means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en;
  • “Restricted Transfer” means the onward transfer of Personal Data that is located in the EEA to another party in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission;
  • “Standard Contractual Clauses” or sometimes also referred to the “EU Model Clauses” means the contractual clauses.
  • “Subprocessor” means any Processor appointed by either party acting as a Processor to the other party acting as Controller to Process Personal Data on behalf of the other party acting as Controller or such party’s Affiliate.

Data Processing Terms

Blue Track Media and Publisher are parties to the Agreement by which Blue Track Media provides Services to Publisher and Publisher Affiliates. In performing their respective obligations under the Agreement, each party may receive Personal Data which may be subject to the Data Protection Laws. The parties acknowledge that Blue Track Media acts as a Controller with respect to the Processing specified in Blue Track Media’s privacy policy, and Publisher acts as a Controller with respect to Processing specified in the Agreement.  Where the Processing specified in Blue Track Media’s privacy policy overlap with the Processing specified in the Agreement, the parties acknowledge and agree that both Blue Track Media and Publisher will be considered Controllers of Personal Data with respect to the Processing. Each party shall only use or otherwise Process Personal Data in accordance with the permitted purposes set forth in this Addendum and in accordance with Data Protection Laws. Each party shall be individually and separately responsible for complying with the obligations under Data Protection Laws that apply to such party as a Controller or Processor, as applicable, in respect to certain types of Personal Data processed under the Agreement and this Addendum.

  • Processing of Personal Data as Processor. Except as provided in Section 2 and when acting as a Processor to Publisher, Blue Track Media shall not Process Personal Data other than on Publisher’s documented instructions unless Processing is required by Data Protection Laws to which Blue Track Media is subject, in which case Blue Track Media shall to the extent permitted by Data Protection Laws inform Publisher of that legal requirement before Processing Personal Data. For the avoidance of doubt, the Agreement and any related Order entered into by Publisher shall constitute documented instructions for the purposes of this Addendum.
  • Consent for the Processing of Personal Data. As Blue Track Media does not have a direct relationship with any Data Subject using or accessing Publisher Program, Publisher shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Publisher’s use and disclosure and Blue Track Media’s Processing of Personal Data; and (2) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Personal Data to Blue Track Media and to permit the processing of such Personal Data by Blue Track Media for the purposes of performing Blue Track Media’s obligations under the Agreement or as may be required by Data Protection Laws. Publisher shall notify Blue Track Media of any changes in, or revocation of, the permission to use, disclose, or otherwise process Personal Data that would impact Blue Track Media’s ability to comply with the Agreement, or applicable Data Protection Laws.
  • Cookies and Notifications. As Blue Track Media does not have a direct relationship with any Data Subject using or accessing Publisher Application, and in each case where consent is necessary for the use of cookies, other local storage, or collection of information from Data Subjects’ devices, Publisher shall obtain, and shall ensure that its Affiliates or Subcontractors enabled by Publisher using the Services pursuant to the Agreement, obtain, the specific, informed, unambiguous, and freely given consent of each Data Subject for the use of cookies and the collection of information from Data Subjects’ devices in connection with the Services. Publisher will have, and ensure that all of the Publisher Application contain, and will require that its Affiliates and Subcontractors enabled by Publisher using the Services pursuant to the Agreement, and their respective properties and platforms, contain appropriate, clear, concise, easily accessible notifications in accordance with Data Protection Laws that provide transparency to Data Subjects about what Personal Data is being processed by or on behalf of Blue Track Media, the purpose of such Processing, and any other disclosures required by Data Protection Laws. In each case where Publisher uses any Personal Data sources from a third party in connection with the Services provided pursuant to the Agreement, Publisher shall ensure that such third party provide or obtain and shall ensure that such third party’s own sources of Personal Data provide or obtain, the notification or consent in accordance with the requirements of this Section 5.
  • Confidentiality. Each party shall take reasonable steps to ensure that individuals that process Personal Data are subject to obligations of confidentiality or are under an appropriate obligation of confidentiality.
  • Security. Each party shall implement and maintain all appropriate technical and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the Processing and the nature of the Personal Data, and to prevent unauthorized or unlawful Processing of Personal Data, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Data.
  • Subprocessing. Each party hereby grants the other party general authorization to engage Subprocessors in connection with performing its obligations under the Agreement (including website hosting providers, credit card processors, marketing professionals, network infrastructure operators, providers of anti-fraud reporting services, analytics service providers, and other outsourced providers), provided that such party shall in each case ensure that: (1) such party enters into a written agreement with such Subprocessors that includes materially the same obligations as those in this Addendum; (2) such party remains fully responsible for such Subprocessors Processing activities under the Agreement; (3) such Subprocessors implement appropriate technical and organization security measures to protect Personal Data; and (4) such Subprocessors provide sufficient guarantees that such Subprocessors will Process Personal Data in a manner that will meet the requirements of applicable Data Protection Laws.
  • Data Subject Rights.  In the event a party receives a request from a Data Subject for Personal Data related to such Data Subject as permitted by any Data Protection Laws (a “Data Subject Request”), such party shall not share, transfer, disclose, or otherwise provide or permit access to Personal Data without the other party’s prior written consent. If either party receives a Data Subject Request relating to Personal Data in its control or possession, it shall promptly (and in any event within 5 days): (1) provide the other party with all information relating to the Data Subject Request; (2) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of Personal Data and the rights of the relevant Data Subject; and (3) provide any assistance reasonable requested by such party to take such steps.
  • Personal Data Breach.  Each party agrees to notify the other party without undue delay after becoming aware of the Personal Data Breach and to take reasonable steps to mitigate the impact of any Personal Data Breach that may impact the other party. To the extent a party seeks the assistance of the other party related to the investigation of a Personal Data Breach, the other party shall reasonably cooperate with such requesting party to: (1) determine the scope and severity of the Personal Data Breach; and (2) provide timely information and cooperation as the requesting party may require to fulfill the requesting party’s reporting and notification obligations under Data Protection Laws. Unless such party is required to give notice to individuals under Data Protection Laws, such party shall not give notice to individuals in respect to a Personal Data Breach, except with the prior written approval of the other party.
  • Data Protection Impact Assessment and Prior Consultation.  To the extent that a party considers that the Processing of Personal Data requires a data protection impact assessment to be undertaken or requires assistance with any prior consultations to any applicable Supervisory Authority, following written request from such party, the other party shall use reasonable commercial efforts to provide relevant information and assistance to the requesting party to fulfil such request.
  • Deletion or Return of Personal Data. Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement, or at any time following the other party’s request, each party shall, at the other party’s option, delete or return all Personal Data and all copies to the other party.
  • Relevant Records and Audit Rights.  Each party shall make available to the other party on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by the requesting party of any premises where the Processing of Personal Data takes place in order to assess compliance with this Addendum. The parties shall reasonably cooperate in respect of any such audit in compliance with the obligations under this Addendum. The party that receives such request shall promptly inform the requesting party if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations. The requesting party agrees that: (1) audits may only occur during normal business hours, and where possible only after reasonable notice (not less than 20 days’ advance written notice); (2) audits will be conducted in a manner that does not have any adverse impact on normal business operations; and (3) the audit will comply with standard safety, confidentiality, and security procedures in conducting any such audits.
  • International Data Transfer. In the event that either party initiates a Restricted Transfer of Personal Data, the parties shall enter into the Standard Contractual Clauses which terms shall take precedence over those in Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer or Personal Data to an entity located outside the EEA, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfe
  • Warranties and Indemnity. Each party represents and warrants that it will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data. Each party (an “Indemnifying Party”) shall defend (through its own counsel), indemnify and hold harmless the other and the other’s officers, directors, employees, agents, representatives, service providers and affiliates (an “Indemnified Party”) from and against all liabilities, damages, losses, costs and expenses, including attorneys’ fees and other legal expenses (“Losses”), arising directly or indirectly from or in connection with any claims, actions or proceedings involving any alleged breach by the Indemnifying Party of its representations and warranties contained herein. In any defense with respect to any matter covered by this paragraph, the Indemnified Party may participate with counsel of its own choosing at its expense and the Indemnifying Party will not agree to any settlement which imposes any obligation or liability on the Indemnified Party without such Indemnified Party’s prior written consent, (such consent not to be unreasonably withheld or delayed). Each party shall promptly inform the other of any third party claims, actions, or proceedings to which it becomes aware that involves the other party as a result of this Addendum.
  • Liability. The liability of the parties under or in connection with these Controller Terms will be subject to the exclusions and limitations of liability in the Agreement.
  • General Terms. Any obligation imposed under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. To the extent that Data Protection Laws do not apply to the Processing of Personal Data, this Addendum shall be governed by the governing law of the Agreement. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (1) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (2) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.

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