Digital East GmbH Terms of Use
for Advertisers Using DE: Demand Side Platform
The following terms of use (hereinafter “TERMS OF USE”) as well as the data processing agreement (hereinafter “DPA”) govern the legal relationship between Digital East GmbH, Oberstr. 81, 20149 Hamburg (hereinafter “DIGITAL EAST”), and advertisers and agencies (hereinafter “CUSTOMER”) using the DE Demand Side Platform offered by DIGITAL EAST. Hereinafter DIGITAL EAST and CUSTOMER, individually, are also referred to as a “PARTY” and, collectively, are also referred to as the “PARTIES.”
Table of Contents
1. Subject Matter of Agreement
2. Description of Services
3. User Account for DSP SERVICE
4. Contracts, Commissions, Billing
5. Licenses
6. Data Protection
7. Liability and Indemnity
8. Contract Term and Termination
9. Transferability
10. Miscellaneous
1. Subject Matter of Agreement
DIGITAL EAST offers CUSTOMERS the opportunity, through software as a service (hereinafter the “SOFTWARE”), to digitally deliver personalized advertising (hereinafter the “PLATFORM”) (hereinafter the “SOFTWARE” and “PLATFORM”, collectively, are referred to as the “DSP SERVICE”).
2. Description of Services
2.1 Description of DSP SERVICE
2.1.1 DIGITAL EAST provides the CUSTOMER with a platform for the delivery, tracking and billing of online advertising.
CUSTOMER is enabled to use the SOFTWARE, which is installed and running on servers of DIGITAL EAST, through an Internet connection during the term of this Agreement for CUSTOMER’s own purposes and to store and process CUSTOMER’s data with the SOFTWARE. The DSP SERVICE allows CUSTOMER to deliver advertising online. In particular, CUSTOMER can
· specify digital advertising for online advertising space,
· determine the criteria based on which advertising will be delivered (hereinafter “CAMPAIGNS”),
· automatically participate in real-time bidding processes for advertising space on publisher websites (hereinafter “REAL-TIME BIDDING”),
· analyze the delivery of advertising (reporting)
(hereinafter the “MINIMUM FUNCTIONALITIES”).
2.1.2 The DSP SERVICE allows CUSTOMER to deliver advertising to publishers (hereinafter “DELIVERABLES”) through CAMPAIGNS using REAL-TIME BIDDING.
2.1.3 DELIVERABLES can be physical banners, Videos, etc. according to the updated platform capabilities. All DELIVERABLES must comply with most recent IAB Standards from time to time as specified under https://www.iab.com/guidelines/(“IAB STANDARD”).
When applicable, DIGITAL EAST and/or third party tags will be implemented so that they are functional in all aspects.
All DELIVERABLES are being checked before usage for security reason (especially suitability and malware). DIGITAL EAST reserves the right to perform this security check in its on capacity or to engage a service provider to do so. Security check and approval takes up to one week after delivery of DELIVERABLES to DIGITAL EAST.
2.1.4 The DSP SERVICE allows CUSTOMER to manage CAMPAIGNS and DELIVERABLES. The DSP SERVICE enables the CUSTOMER to define criteria, under which conditions DELIVERABLES should be placed.
2.1.5 The DSP SERVICE also allows the selective display of CAMPAIGNS and DELIVERABLES based on certain limits of impressions and/or clicks. In addition, other delivery parameters such as given order, priority and proportions can be set. Furthermore, the DSP SERVICE allows the counting of impressions of DELIVERABLES, generated clicks, as well as generated actions by the user who saw and clicked the ad. DSP SERVICE also provides additional statistics on advertising services supplied, revenues and other goals reached, etc. with aggregated data.
2.1.6 DIGITAL EAST takes care of the technical handling, maintenance and operation of the DSP SERVICE and its IT system. As part of the aforementioned tasks DIGITAL EAST will manage load balancers, image servers and database servers.
2.2 Services of DIGITAL EAST
2.2.1 DIGITAL EAST shall make available to CUSTOMER
2.2.1.1 the DSP SERVICE at the router exit of the data processing center in which the server with the SOFTWARE is located, which connects the data processing center with the Internet backbone (hereinafter the “POINT OF DELIVERY”);
2.2.1.2 the storage space necessary for the unlimited agreed use, for data generated by CUSTOMER’s use of the DSP SERVICE and/or for data needed to use the SOFTWARE.
2.2.2 DIGITAL EAST shall have no obligation to produce or maintain the data connection between the IT systems of CUSTOMER and the POINT OF DELIVERY.
2.2.3 The average annually availability of the DSP SERVICE at the POINT OF DELIVERY to the Internet (backbone) shall be at least 99% on a monthly basis.
For malfunctions DIGITAL EAST shall make available to CUSTOMER year-round technical support by e-mail and/or telephone. The response time shall be four hours if CUSTOMER notifies DIGITAL EAST within its business hours Monday to Friday from 9 a.m. until 6 p.m. CET.
2.2.4 DIGITAL EAST shall service the SOFTWARE and its own IT systems at regular intervals. Any resulting limitations of the availability of the DSP SERVICE shall be disregarded for purposes of calculating the average monthly availability of the DSP SERVICE. DIGITAL EAST will inform the CUSTOMER in due time, if maintenance has foreseeable impacts on the availability
2.2.5 The warranted availability excludes malfunctions of the Internet as well as malfunctions whose cause is not within the control of DIGITAL EAST (for example force majeure; malfunctions downstream of the POINT OF DELIVERY).
2.2.6 DIGITAL EAST shall have the right to access CUSTOMER data to the extent necessary for correcting errors. CUSTOMER shall assist the provider with the correction of errors, in particular by being available for an in-depth investigation of the relevant facts.
2.2.7 DIGITAL EAST assumes no responsibility for securing and storing data made available and/or generated in connection with CAMPAIGNS outside of the DPA between CUSTOMER and DIGITAL EAST.
2.2.8 DIGITAL EAST shall have the right to make changes to DSP SERVICE at its sole discretion, e.g., by upgrading the IT system and adapting the IT system to the latest state of the art or making changes within the SOFTWARE. However, DIGITAL EAST shall keep available the MINIMUM FUNCTIONALITIES of the DSP SERVICE.
2.3 Required Cooperation of CUSTOMER
2.3.1 CUSTOMER shall comply with the agreed IAB STANDARD and use keywords for the CAMPAIGN that are not misleading as to the content of the CAMPAIGN, and CUSTOMER shall make no modifications to tags except with the express consent of DIGITAL EAST.
2.3.2 CUSTOMER shall use the DSP SERVICE in compliance with applicable law. In particular CUSTOMER shall
2.3.2.1 ensure that the content of each CAMPAIGN is lawful with respect to the target group, e.g., CUSTOMER shall comply with laws for the protection of minors and with criminal laws;
2.3.2.2 disseminate no content that violates public policy or rights or legitimate interests of third parties (for example publishers), including, without limitation, trademarks, rights to names, personality rights, or copyrights, or that violates unfair competition law;
2.3.2.3 disseminate no viruses, Trojan horses, junk mail, any sort of malware whatsoever, or spam; and
2.3.2.4 implement no applications that may interfere with or change the physical or logical structure of the DIGITAL EAST IT systems.
2.3.3 CUSTOMER will use commercially reasonable efforts to ensure that all of the DELIVERABLES are in material accordance with DIGITAL EAST’s then existing advertising criteria (including content limitations, privacy policies, policies regarding consistency with DSP’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the website on which the ads are to appear), or other editorial policies, and material due dates) (collectively “CONTENT POLICIES”), provided DIGITAL EAST has provided such policies to CUSTOMER.
2.3.4 In particular, CUSTOMER will ensure CAMPAIGN contents adheres to the following:
2.3.4.1 Prohibited Content:
CUSTOMER must not use the DSP SERVICE for any content that features or promotes any of the following IAB categories or additional DIGITAL EAST restrictions:
· IAB7-28 (Incest/Abuse Support)
· IAB7-42 (Substance Abuse)
· IAB17-18 (Hunting/Shooting)
· IAB24 (Uncategorized)
· IAB25-1 (Unmoderated User Generated Content)
· IAB25-2 (Extreme Graphic/Explicit Violence)
· IAB25-3 (Pornography)
· IAB25-4 (Profane Content)
· IAB25-5 (Hate Content)
· IAB25-7 (Incentivized)
· IAB26-1 (Illegal Content)
· IAB26-2 (Warez)
· IAB26-3 (Spyware/Malware)
· IAB26-4 (Copyright Infringement)
· Content or material promoting or containing links that are disparaging to DIGITAL EAST.
· Content promoting an activity, a product or a service which competes with or is in competition with the activities of DIGITAL EAST or its affiliates, or with the products and services offered by DIGITAL EAST or its affiliates.
2.3.4.2 Requirements and Best Practice:
The following categories of the IAB OpenRTB API Specification 2.5 shall also be prohibited:
· Audio Ad (Auto-Play)
· Expandable (Automatic)
· Pop (e.g., Over, Under, or Upon Exit)
· Provocative or Suggestive Imagery
· Shaky, Flashing, Flickering, Extreme Animation, Smileys
· Ads that include auto-downloads, drive-by downloads without user initiation
· Ads that redirect users without their initiation
· Ads that contain any type of Malware
2.3.5 CUSTOMER hereby acknowledges that DIGITAL EAST has no obligation, but has the right, to review and monitor the use of its DSP SERVICE by CUSTOMER, including, without limitation, the content, keywords, and integrated functionalities of advertising and DELIVERABLES.
2.3.6 In the event of an obvious or proven breach of these obligations DIGITAL EAST shall have the right to prohibit the dissemination of the content in dispute, to block the USER ACCOUNT, and/or to assess a contractual penalty, the amount of which shall be determined by DIGITAL EAST at its sole discretion and, if disputed, shall be subject to review by arbitration.
2.3.7 In the event of an obvious or proven infringement, DIGITAL EAST shall request a prompt response from CUSTOMER. If CUSTOMER fails to respond or if CUSTOMER’s response fails to refute the alleged infringement, DIGITAL EAST shall, again, have the right to prohibit dissemination of the allegedly infringing content and/or block the USER ACCOUNT.
2.3.8 CUSTOMER is responsible for properly backing up its data at regular intervals. This shall also apply to data made available by DIGITAL EAST in the course of the performance of this Agreement.
3. User Account for DSP SERVICE
3.1 To be able to use the DSP SERVICE, CUSTOMER must create a user account at DIGITAL EAST using the form available at www.digitaleast.mobi. To apply for a user account, CUSTOMER must accept these TERMS OF USE and the DPA, which are likewise accessible through the form. DIGITAL EAST will decide at its sole discretion whether or not to activate a user account for CUSTOMER. Should DIGITAL EAST decide to activate a user account, DIGITAL EAST will notify CUSTOMER by e-mail within 24 hours and provide CUSTOMER with the access data for the account (hereinafter the “USER ACCOUNT”).
Access data may not be disclosed to any third parties. CUSTOMER shall keep access data made available to CUSTOMER confidential and shall ensure that any employees to whom access data are made available will do likewise.
3.2 Following activation of the USER ACCOUNT, CUSTOMER may access the USER ACCOUNT online using any standard Internet browser. Any action taken using CUSTOMER’s access data shall be deemed to have been initiated by CUSTOMER.
3.3 CUSTOMER may fund its USER ACCOUNT by prepaying amounts that will be credited to the USER ACCOUNT (“CREDIT BALANCE”), using the credit cards specified in the USER ACCOUNT. The minimum prepayment amount is USD 500,00 (or the equivalent) for each transaction unless otherwise agreed upon with DIGITAL EAST in advance.
4. Contracts, Commissions, Billing
4.1 After setting up of the USER ACCOUNT CUSTOMER can use the DSP SERVICE for CAMPAIGNS up to the amount of the CREDIT BALANCE in CUSTOMER’s USER ACCOUNT.
4.2 CUSTOMERs using prepayments for the DSP SERVICE can use the self-service functionalities of the DSP SERVICE. The commission will be agreed upon between CUSTOMER and DIGITAL EAST in direct communication (e.g. e-mail provided for this purpose).
4.2 As compensation for the DSP SERVICE, CUSTOMER shall pay DIGITAL EAST a commission for each CAMPAIGN. The commission consists of a percentage of the CAMPAIGN volume, denominated in USD). Further conditions under which such CAMPAIGNs may be carried out are set out in schedule 1, which forms in integral part of this Agreement and will be changed from time to time. Changes have no effect on CAMPAIGNs already started.
4.3 To collect payment, DIGITAL EAST will deduct the commission from the CREDIT BALANCE in CUSTOMER’s USER ACCOUNT.
4.4 DIGITAL EAST shall bill CUSTOMER for the DSP SERVICE and commissions on a monthly basis.
5. Licenses
5.1 DIGITAL EAST hereby licenses to CUSTOMER a non-exclusive (non-sublicensable and non-transferable) right to use the SOFTWARE for the term and purposes of this Agreement. The SOFTWARE will not be made available on any physical data carrier.
5.2 CUSTOMER hereby licenses to DIGITAL EAST a non-exclusive right to use DELIVERABLES for the term and purposes of this Agreement. DIGITAL EAST shall, in particular, have the right to publish, reproduce, and disseminate, but not edit, advertising of CUSTOMER. Editing shall not include technical changes to advertising, e.g., compression of DELIVERABLES. In addition, it is hereby expressly agreed that DIGITAL EAST shall have the right to grant sublicenses to third parties (e.g., SSPs, publishers) for the purposes of this Agreement.
6. Data Protection
6.1 The PARTIES shall each comply with all applicable data protection laws, including, without limitation, the GDPR and all other data protection laws applicable.
6.2 CUSTOMER shall remain the controller of personal data within the meaning of data protection law and therefore shall review in each case whether processing personal data related to usage of the DSP SERVICE is permitted under applicable data protection law. If the customer himself is a processor, he undertakes to ensure that the controller fulfils this obligation.
6.3 If and to the extent that CUSTOMER processes or causes DIGITAL EAST to process personal data on behalf of CUSTOMER on IT systems for which DIGITAL EAST bears technical responsibility, the PARTIES shall enter into the DPA which is attached to this Agreement as schedule 2.
6.4 DIGITAL EAST includes sub-processors in its data processing. DIGITAL EAST shall ensure that all sub-processors are properly integrated into the data processing activities of personal data by means of data processing agreements. These sub-processors may also process the data outside the EU/EEA. Where data processing of personal data takes place or is intended in third countries or international organizations as defined by the GDPR, DIGITAL EAST will ensure the necessary guarantees for an adequate level of data protection for the processing of personal data. To this end, CUSTOMER expressly grants DIGITAL EAST the power of representation to agree on any necessary EU Standard Contractual Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection (as of EC Decision 2010/87/EU or later) (“EU Standard Contractual Clauses”) in the name and on behalf of CUSTOMER. CUSTOMER waives Section 181 German Civil Code (“BGB”) and expressly permits DIGITAL EAST (and its representatives) to enter into a legal transaction in the name and on behalf of CUSTOMER with DIGITAL EAST in its own name or as an agent of a third party.
6.5 If CUSTOMER himself is a data processor, CUSTOMER is obligated to disclose any controller within the meaning of data protection law (hereinafter “CONTROLLER”) to DIGITAL EAST without undue delay. CUSTOMER represents and warrants that CUSTOMER has been granted the power of representation to enter into EU Standard Contractual Clauses in the name and on behalf of the respective CONTROLLER and that CUSTOMER is able to grant this power of representation to DIGITAL EAST, accordingly as a subagent, and that CUSTOMER is able to waive Section 181 BGB in the name and on behalf of the respective CONTROLLER. In this case, CUSTOMER grants DIGITAL EAST the power of representation to conclude any necessary EU Standard Contractual Clauses with sub-processors of DIGITAL EAST in the name and on behalf of the respective CONTROLLER and waives Section 181 (“BGB”) and expressly permits DIGITAL EAST (and its representatives) to enter into a legal transaction in the name and on behalf of the respective CONTROLLER with DIGITAL EAST in its own name or as an agent of a third party.
6.6 CUSTOMER hereby grants DIGITAL EAST the right to reproduce data to be stored by DIGITAL EAST for CUSTOMER, if and to the extent necessary for achieving the purpose of this Agreement. Moreover, DIGITAL EAST shall have the right to store data in a backup system or at a remote backup site. To correct malfunctions, DIGITAL EAST further shall have the right to make changes to the structure of data or data format.
7. Liability and Indemnity
7.1 DIGITAL EAST shall be subject to unlimited liability for intentional and grossly negligent actions or omissions, for harm to life, limb, or health, for any violations of the German Product Liability Act (Produkthaftungsgesetz), and for any violations of applicable data protection law, as well as to the extent of any guarantee made by DIGITAL EAST.
7.2 Any liability of DIGITAL EAST for a material breach of contract caused by ordinary negligence shall be limited to reasonably foreseeable damages. Material contractual obligations are obligations the performance of which is a prerequisite for the due performance of this Agreement and on the performance of which CUSTOMER may reasonably rely.
7.3 Any other liability of DIGITAL EAST is hereby excluded. This shall also apply to any personal liability of legal representatives and agents of DIGITAL EAST.
7.4 CUSTOMER shall defend, indemnify and hold harmless DIGITAL EAST and its affiliates, directors, officers and employees from and against any and all claims brought by third parties (including any employees of CUSTOMER) against DIGITAL EAST based on or in connection with CUSTOMER’s use of the DSP SERVICE or as a result or in connection with any breach by CUSTOMER of any of his representations and warranties set forth in this Agreement, including, without limitation, costs of prosecuting or defending claims against or by third parties (including without limitation, reasonable attorneys’ fees). Any additional claims for damages DIGITAL EAST may have shall remain unaffected thereby.
DIGITAL EAST shall notify CUSTOMER of any third-party claims and, to the extent permitted by law, allow CUSTOMER to assume legal defense such third-party claims. Conversely, CUSTOMER shall promptly provide DIGITAL EAST with all available information about the circumstances giving rise to third-party claims.
8. Contract Term and Termination
8.1 The contract term shall commence with activation of the USER ACCOUNT and is in principle indefinite.
8.2 CUSTOMER may terminate this Agreement at any time in writing. The termination becomes effective at the end of the following month. If the customer does not carry out any active campaigns for a period of 3 consecutive months, DIGITAL EAST may terminate this Agreement at its own discretion without notice and deactivate the user account. If this Agreement is terminated, CUSTOMER will be able to withdraw remaining funds after 30 days, not including any commissions levied.
8.3 The right of the PARTIES to terminate the Agreement for good cause shall remain unaffected thereby. Good cause for termination for DIGITAL EAST shall include, without limitation, any breach by CUSTOMER of its obligations under section 2.3.2, 2.3.3 or 6.4, 6.5.
8.4 If there is good cause for termination based on a breach of section 2.3.2 or 2.3.3, DIGITAL EAST shall have the right, instead of terminating the Agreement for good cause, to opt for a more lenient remedy by blocking CUSTOMER’s access to the USER ACCOUNT and/or demanding that CUSTOMER pay a contractual penalty at the reasonable discretion of DIGITAL EAST. If CUSTOMER fails to remedy the breach providing good cause for termination within 24 hours, DIGITAL EAST may still terminate the Agreement for good cause at that point.
8.5 Following termination of the Agreement DIGITAL EAST shall – if and to the extent that there are no recordkeeping obligations for data of CUSTOMER – provide CUSTOMER with written confirmation of data deletion.
9. Transferability
9.1 CUSTOMER shall assign no rights or obligations under this Agreement, in whole or in part, except with the prior written consent of DIGITAL EAST.
9.2 DIGITAL EAST shall have the right to associate third parties for the performance of its obligations under this Agreement.
10. Miscellaneous
10.1 Any collateral agreements, modifications, or amendments to this Agreement, including any waiver of this clause, shall be valid only if in text form (Section 126b BGB).
10.2 In addition to these TERMS OF USE, the provisions of the DPA and the EU Standard Contractual Clauses shall apply. In the event of any conflicts, the TERMS OF USE, the DPA or the EU Standard Contractual Clauses shall apply in the following order of priority:
(1) EU Standard Contractual Clauses
(2) DPA
(3) TERMS OF USE.
10.3 Any general terms and conditions of CUSTOMER shall not become part of the Agreement. DIGITAL EAST hereby expressly objects to any reconfirmations from CUSTOMER referencing CUSTOMER’s general terms and conditions. There are no oral collateral agreements.
10.4 If any provisions of this Agreement should be or become invalid under current or future law, the validity of the remaining provisions shall remain unaffected thereby. If a provision is invalid, the PARTIES shall agree on such valid provision as most closely reflects the economic intent and purpose of the PARTIES, to the extent permitted by law.
10.5 All disputes arising out of or in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall be comprised of a sole arbitrator. The seat of the arbitration is Hamburg, Germany. The language of the arbitration shall be English. The rules of law applicable to the merits shall be German law.
10.6 This Agreement shall be governed by the laws of the Federal Republic of Germany, with the exception of German conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
10.7 DIGITAL EAST may change this Agreement and any part of it, provided that such change does not constitute an unfair disadvantage for CUSTOMER, at any time for the following reasons: for legal or regulatory reasons; for security reasons; to enhance existing features or add additional features to DIGITAL EAST’s Services; to reflect advancements in technology; to make reasonable technical adjustments to DIGITAL EAST’s Services; and to ensure the ongoing operability of DIGITAL EAST’s Services. If DIGITAL EAST makes changes, DIGTIAL EAST will inform CUSTOMER in due time. CUSTOMER may terminate the Agreement before any changes of the Agreement enter into force. If any change is found invalid or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes or conditions.
