Terms and Conditions for Advertisers.

as of March 19th, 2020

Team Internet AG (“Team Internet”) operates a platform under the TONIC. brand, on which providers and/or intermediaries of goods and services (“Advertisers”) and suppliers of internet user traffic (“Publishers”) can meet. Advertisers provide advertisements on the platform, which the Publisher can integrate into or onto its advertising Space. Publishers receive a remuneration for traffic provided and purchased by the Advertisers.

1. Definitions

  1. Account: An account refers to the area for the platform which is accessible via user name and password, in which the Advertiser may specifically view and (where applicable) change his personal data, transactions and his Advertisements.
  2. Advertisements: Content promoting an Advertisers products or services, this may be banners, links, emails, landing pages, videos, full page ads, pop-ups, pop-unders, product data etc.
  3. Advertiser: A natural person or legal entity who makes available or wishes to make available advertising campaigns via the platform. This process is also referred to as traffic procurement. Advertisers may also be operators of a network, which collaborate with further advertisers (“Advertiser Network”). Advertisers cannot be consumers; the platform is directed only to commercial customers.
  4. Advertising Campaign: Where an Advertiser wishes to purchase traffic via the platform, the Advertiser sets up an advertising campaign. In that advertising campaign, the Advertiser defines his target group using parameters such as country, keyword, device etc. (the targeting options).
  5. Advertising Space: Domains or websites with or without content, emails, toolbars etc. where advertisements can be placed.
  6. Controller shall have the meaning as defined under the General Data Protection Regulation (GDPR).
  7. Data Processing Addendum: Team Internet’s Data Processing Addendum, accessible at https://www.tonic.com/dpa.html, incorporated into these Advertiser Terms & Conditions by reference, in its current version at the effective date of the agreement between Advertiser and Team Internet.
  8. Feed Integration: Advertisers may use the platform via API, instead of using it via the self-service interface. This integration is referred to as a “Feed Integration”. In respect of Feed Integrations, there may potentially be additional agreements, which will be made separately.
  9. Intellectual Property Rights: All rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights.
  10. Personal Data shall have the meaning as defined under the General Data Protection Regulation (GDPR).
  11. Platform: platform refers to the technical solution provided by Team Internet, enabling Advertisers and Publishers to meet in order to buy or sell traffic.
  12. Processor shall have the meaning as defined under the General Data Protection Regulation (GDPR).
  13. Publisher: A natural person or legal entity who makes available or wishes to make available advertising spaces via the platform. This process is also referred to as traffic sale. Publishers may also be operators of a network, which collaborate with further Publishers (“Publisher Network”). Publishers cannot be consumers; the platform is directed only to commercial customers.
  14. Quality Guidelines: Team Internet’s Quality Guidelines, accessible at https://www.tonic.com/quality-guidelines.html, incorporated into these Advertiser Terms &Conditions by reference, as amended from time to time in their respective then-current version.
  15. Traffic: Users surfing the Internet.
  16. User: A human user of the Internet, such as a visitor of a website or a user of a mobile app.

2. Platform Usage

2.1 Intellectual Property

Team Internet shall own all right, title and interest, including without limitation all Intellectual Property Rights relating to the platform (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to the platform.

Advertiser shall not, directly or indirectly (i) misappropriate or infringe Team Internet’s intellectual property rights, (ii) copy, reverse engineer, decompile, disassemble, disclose or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the platform; (iii) modify, translate, or create derivative works based on the platform; (iv) use or view the platform for the purposes of developing, directly or indirectly, a product or service competitive to the platform; (v) transfer, sell, lease, lend, disclose, or use for co-branding without Team Internet’s explicit written permission, any aspect of the platform under any timesharing, service bureau or other unauthorized method or access thereto.

Advertisements are and shall remain the sole and exclusive property of the respective Advertiser, including all Intellectual Property Rights.

2.2 Account

Advertiser must register for an account to use the platform. All data provided by the Advertiser at the time of registration must be correct and up to date at all times. In the event of changes, the Advertiser shall notify Team Internet promptly. Advertiser shall, upon Team Internet’s request, confirm the current correctness of the data provided and, where necessary, to provide additional information requested by Team Internet for purposes of identification or verification.

Advertiser shall only register for one account. It is prohibited to register for multiple accounts.

Team Internet reserves the right to accept or reject applications for an account at its own discretion and without giving reasons. If Team Internet blocks any account, irrespective of whether on a permanent or temporary basis, the respective Advertiser may not apply for a new account. Team Internet reserves the right to determine in its own discretion the scope of available functionalities, tools and services for any account.

The Advertiser is responsible for maintaining the confidentiality of the account passwords, for ensuring that the account is used only by the authorized user, for ensuring that accounts and passwords are not shared, and for maintaining the security of its account. Advertiser shall limit access to the platform only to authorized users and will promptly disable all access to the account by any Advertiser employee, contractor or representative who is no longer authorized to use the platform. The Advertiser bears the risk of an unauthorised use of a passwords and/or the account. Team Internet shall be entitled to block access to the platform if Team Internet reasonably suspects or determines that the account is accessed by third parties without authorisation.

The Advertiser shall promptly notify Team Internet of any defects or faults in the platform and take all such measures as are necessary to enable Team Internet to ascertain the defects or faults and the causes thereof, as well as to facilitate and expedite remediation of the fault.

Team Internet shall not be obliged to offer any traffic and/or Advertising Spaces to the Advertiser and the Advertiser shall not be obliged to place any advertisements via the platform. Unless otherwise agreed in writing, there shall be no committed revenues. accounts which have not been active for at least 90 days in sequence, i.e. Advertiser accounts which have not paid any money for a period of at least 90 days, are classified by the system as inactive accounts. Inactive accounts may be charged a monthly inactivity fee of 10% of their account balance, but at least a minimum charge of USD 15. If the Advertiser then uses the account again, the account will automatically be reactivated. Inactivity fees which have been previously paid will not be refunded. Inactivity fees may be reviewed in the account.

3. Advertiser Obligations

3.1 Compliance

The Advertiser shall comply with all applicable laws, regulations, these Advertiser Terms &Conditions and the Quality Guidelines with respect to its advertisements and its usage of the platform and related service, and shall, in particular, not (i) offer any advertisements on the platform or provide any advertisements via the platform; and/or (ii) use or select any targeting options (including but not limited to keywords), address references (domains) or landing pages; that violate applicable laws, infringe third party rights and/or are in breach of the Quality Guidelines.

In case Team Internet reasonably suspects or determines a non-compliance with these obligations and/or if Advertisements or Advertiser’s usage of the platform are subject to governmental or judicial investigations or injunctions, Team Internet shall be entitled to temporarily or permanently block Advertiser’s access to the platform and/or any advertisements in whole or in part with immediate effect. Team Internet shall promptly notify the Advertiser of any such measure. The Advertiser then may provide evidence for the compliance of its usage of the platform and/or its Advertisements. Team Internet shall remove the block as soon as Advertiser could provide evidence for the compliance.

Where the Advertiser is the operator of an Advertiser Network, the Advertiser warrants that the further Advertiser being part of the Advertiser Network shall be subject to contractual obligations substantially similar to the obligations under this Clause 3.1. Advertisers operating an Advertiser Network shall be liable towards Team Internet for acts and omissions of the further Advertisers in their Advertising Network as if they were their own acts and omissions.

For purposes of quality assurance, the Advertiser hereby authorizes Team Internet to perform reviews inter alia by spider, proxies and human agents in order to ensure that the advertisements submitted comport with the Quality Guidelines.

3.2 Accessibility and Modifications

The Advertiser shall ensure that its Advertisements, tracking URLs and, in particular, landing pages are capable of being reached at all times and from anywhere in the world.

The Advertiser shall ensure that its advertisements and landing pages are correctly displayed by the most common browsers and using the most common software versions.

Where, on the basis of changes to the platform, changes become necessary to the Advertiser’s pages, these must be implemented within a period of four weeks.

4. Team Internet Obligations

Team Internet is not obliged to monitor and examine advertisements and/or Advertiser’s usage of the platform for their comply with all applicable laws, regulations and the Quality Guidelines.

Team Internet warrants accessibility of the platform infrastructure of at least 97 percent on an annual average. The foregoing does not include times when the webserver cannot be reached via the internet due to technical or other problems outside the scope of Team Internet’s control or responsibility (e.g. force majeure, third-party fault, DDOS).

To the extent that Team Internet currently provides services or service elements free of charge, the Advertiser shall not have a right for specific performance thereof. Team Internet shall have the right to ease the provisioning of such services at any time, or to provide such services only for a fee with future effect, subject to prior notification to Advertiser.

Team Internet shall be entitled to change IP addresses and/or domains where necessary (e.g. where technically necessary). A change of IP addresses and/or domains shall not constitute amendment of the contract and shall not affect the parties’ rights and duties under the contract.

5. Service Performance

Traffic is deemed to have been provided when Team Internet has referred a user, to whom the targeting options chosen by the Advertiser apply, to the URL provided by the Advertiser and has displayed this referral in the Advertiser’s account.

Solely the figures measures and provided by Team Internet shall be binding in respect of any fees for traffic provided to Advertiser. In the event that the Advertiser does not agree with the fees calculated by Team Internet for referred users, the Advertiser shall provide its service statistics (RAW) to Team Internet, on the basis of which the discrepancies may be investigated. In particular, in cases in which the Advertiser suspects non-human visitors, the Advertiser must furnish the precise time (timestamp) and IP address as well as all other data available which might confirm his suspicion.

Team Internet will only accept objections to the provisioning of traffic and the performance of services where the Advertiser is able to provide evidence that the referred user was not a human user, or that the user was not covered by the targeting option selected by the Advertiser. Such evidence shall be provided on the basis of timestamps, IP addresses, user agents and other information suitable as evidence thereof. The burden of proof in respect hereof lies exclusively with the Advertiser.

Any analytics functionalities (e.g. conversion tracking) offered via the platform shall only be for convenience and does not necessarily display reliable results. Analytics functionalities usually are based on data from numerous external sources that not always is available and/or correctly provided. Team Internet does not bear liability for the availability and/or correctness of any analytics functionalities.

6. Payments

Advertising shall be published on a pre-payment basis. In order to purchase traffic and display any Advertisements, the Advertiser must prefund its account via PayPal, credit card or bank transfer. Team Internet reserves the right at any time to change the available options for prefunding the Advertiser’s credit balance.

All payments must be made in US dollars. All fees and taxes (if any) are deducted from the amounts prefunded by the Advertiser and shown separately on the settlement statement.

Team Internet shall provide electronic invoices via the platform with regard to the prefunded amounts. It is the Advertiser’s responsibility to correctly establishing tax accruals vis-à-vis the tax authorities.

The platform provides the option of putting a cap on the maximum daily expenses per Advertising Campaign (“Budget Cap”). A Budget Cap shall not be binding, and Team Internet does not warrant that the expenses for an Advertising Campaign will not exceed the Budget Cap set for it. It is the Advertiser’s sole responsibility to stop any Advertising Campaigns whenever the intended budget is spent.

The Advertiser shall address any questions with regard to any expenses for Advertising Campaigns booked via the platform within 30 days of the date of such booking. Failure to notify Team Internet within this period shall constitute an acceptance of and agreement with the respective expense and booking.

It is possible that the expenses for an Advertising Campaign may exceed the prefunded amount. In this case, the Advertiser shall pay any negative amounts to Team Internet.

Any claims of Team Internet against the Advertiser shall be paid by Advertiser within 14 days.

Advertiser can request a refund of any remaining credit balance by contacting Team Internet customer support (e.g. by email to advertiser@tonic.com). A processing fee of USD 15 will be charged. Any additional transaction fees for PayPal, credit card or bank transfers shall be payable by the Advertiser.

In case Team Internet reasonably suspects or determines a breach of these Advertiser Terms &Conditions by Advertiser, that might, in Team Internet’s reasonably assessment, result in a claim for damages by Team Internet against the Advertiser, Team Internet shall be entitled to block any refunds until the breach or suspected breach and any potential claims for damages have been clarified and settled. Such a blocking shall not exceed 120 days.

Where the payment provider demands reimbursement of payments, the Advertiser shall pay to Team Internet the respective amount for traffic provided.

The Advertiser may only initiate payments from bank accounts, credit cards, PayPal accounts or accounts of other payment providers which belong to the Advertiser or for which the Advertiser has the written consent of the account owner. In cases of doubt, Team Internet has the right to demand evidence thereof and to deactivate the account until final clarification is achieved.

7. Limitations of Liability and Indemnification

7.1

Team Internet assumes unlimited liability for damages resulting from injury to life, body or health which are based on a breach of duty by Team Internet or a legal representative or vicarious agent.

7.2

Team Internet is furthermore liable without limitation for damages caused by Team Internet or a legal representative or vicarious agent intentionally or through gross negligence, as well as for damages caused by the absence of a quality guaranteed by Team Internet.

7.3

In the case of a slightly negligent violation of essential contractual obligations, Team Internet's liability is limited to the amount of the contract-typically foreseeable damage. Essential contractual obligations are such obligations, the fulfilment of which makes the proper execution of a contract possible in the first place and on the observance of which the contracting parties may regularly rely.

7.4

The liability according to the German Product Liability Act (ProdHG) remains unaffected.

7.5

Any further liability for damages is excluded, especially any liability regardless of negligence or fault. Team Internet and its vicarious agents are also not liable for disturbances of any kind caused by circumstances beyond their control. This applies in particular to a failure or disturbance of the telecommunications line or power supply.

7.6

The limitation period for claims for damages against Team Internet is one year. The foregoing shall not apply in respect of damages intentionally caused by Team Internet, its legal representatives or vicarious agents, or in respect of claims based in tort, or in respect of claims under the Product Liability Act.

7.7

Team Internet shall, in particular, bear no liability for the correct functioning of infrastructures and transmission pathways of the internet or of the information transmitted thereby (for completeness, correctness or timeliness or for ensuring that such information is free of third party rights) where such information is beyond the scope of Team Internet’s responsibility. In further and other respects, Team Internet shall likewise bear no liability for usage outages caused by third parties beyond the scope of Team Internet’s responsibility.

7.8

The provisions set forth above shall also apply in favour of Team Internet’s staff members and other vicarious agents.

7.9

The Advertiser shall indemnify and hold Team Internet harmless against all third-party claims arising as a result of breaches of these Advertiser Terms &Conditions and/or an infringement of third-party rights by Advertiser. The Advertiser shall bear all reasonable costs incurred due to such a breach and/or infringement, including the reasonable costs incurred for legal defense. All further rights as well as claims for damages by Team Internet remain unaffected. The foregoing obligations of the Advertiser shall not apply insofar as the Advertiser is not responsible for the respective breach and/or infringement.

8. Data Protection

8.1 Platform users

Team Internet processes Personal Data made available in the context of the creation of an account relating to users of the platform (surname, first name, email address, telephone number, password, payment data) and Personal Data related to the usage of the platform (log files). This Personal Data is processed by Team Internet as a Controller in order to enable the users to use the platform and in order to ensure traceability of the usage of the platform. This Personal Data is processed for the fulfilment of the contract between Team Internet and the Advertiser, legal basis accordingly is Art. 6 (1) lit. b) GDPR.

Team Internet shall be entitled to use anonymized data related to the usage of the platform for internal business and/or operating purposes, including, but not limited to, in order to analyze the usage of the platform and to enhance the platform.

Further details on Team Internet’s data protection practices can be found in Team Internet’s Privacy Policy, accessible at https://teaminternet.com/en/privacy.

8.2 Usage of the platform (Data Processing Addendum)

By using the platform, Advertiser may collect or use Personal Data relating to users, including, but not limited to IP addresses, session-based browsing behaviour, geolocation data and device identifiers.

Unless otherwise explicitly agreed, Advertiser shall be the Controller of such Personal data and Team Internet shall be a Processor. The processing of such Personal Data shall be governed by the Data Processing Addendum between the parties.

9. Confidentiality

9.1

“Confidential Information” means: (i) business or technical information, including product plans, designs, source code, marketing plans, business opportunities, personnel, research, development or know-how (all of the foregoing as they relate to the services provided by Team Internet, including the platform (current or planned), are Team Internet’s Confidential Information, and all of the foregoing as they relate to Advertiser’s business, are Advertiser’s Confidential Information); and (ii) information designated by the disclosing party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential. Confidential Information includes information disclosed prior to or during the Term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without use of any of disclosing party’s Confidential Information and by persons without access to such Confidential Information.

9.2

Advertiser and Team Internet each agree not to use any Confidential Information of the other party for any purpose other than as necessary to perform its obligations under the agreement between the parties. During and after the term of such agreement, neither receiving party will disclose any Confidential Information of the disclosing party to any third party without the prior written consent of the disclosing party, except (i) where such disclosure is necessary for the performance of the receiving party’s obligations under the agreement; or (ii) as may be required by laws (provided that the party obligated to make the disclosure shall give the other party advance notice of such requirement to the extent legally permitted). Each receiving party shall be responsible for compliance with the obligations under this section and applicable provisions of the agreement by its employees and contractors, and shall obtain the agreement by each employee and contractor to keep the Confidential Information of the disclosing party confidential and to use it solely as required for the performance of the receiving party’s obligations hereunder.

10. Place of Performance, Jurisdiction and Venue; Applicable Law

The place of performance is the registered office of Team Internet. Exclusive jurisdiction and venue, to the extent permitted by law, shall lie with the courts of Munich, Germany, for all disputes arising out of the parties’ contractual relations. Team Internet may also file suit in the court with jurisdiction over the Advertiser.

With respect to contracts and claims arising therefrom made by Team Internet on the basis of these Advertiser Terms and Conditions, irrespective of the type thereof, the sole governing law is the law of the Federal Republic of Germany but excluding application of German international private law and of the United Nations CISG.

11. Miscellaneous

11.1

No oral ancillary agreements exist. Amendments or addenda to this contract shall only be valid if made in written form. The foregoing shall also apply to any amendment to this written form requirement.

11.2

The Advertiser may not assign the rights and obligations under the agreement to a third party except with the prior written consent of Team Internet.

11.3

Team Internet may make amendments to these Advertiser Terms &Conditions where these become necessary due to changed circumstances (e.g. changes in legislation or court jurisprudence) and are not unreasonable to the Advertiser. Team Internet shall notify the Advertiser of such changes in written or electronic form (normally in the form of a new version of these Advertiser Terms &Conditions). Such amendments shall be notified to the Advertiser in a timely manner before they take effect (wherever possible, two months in advance). The Advertiser is authorised to object to such amendments within 14 days of receipt of the notice of the amendment. Objection by the Advertiser is deemed to constitute notice of termination of the agreement to the next possible date of termination. Where the Advertiser does not object, amendments are deemed to have been accepted.

11.4

Should individual provisions of these Terms and Conditions for Advertisers be or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to replace an invalid provision with a valid provision which comes as close as possible in its content to the economically intended meaning and purpose of the invalid provision. This shall apply mutatis mutandis to any loopholes in the contract.

11.5

In the event of a conflict between any provision of these Terms and Conditions for Advertisers and any additional agreement (e.g. in respect of Feed Integrations) or order form referencing these Terms and Conditions for Advertisers, the terms of the additional agreement or order form shall prevail with respect to the matters covered by the applicable additional agreement or order form.