Effective from: 01.03.2023

These Terms and Conditions (“Terms”) are incorporated by reference into the REPLUG Insertion Order (“IO”) and are a legally binding and enforceable agreement between REPLUG GmbH located at Oranienburger str. 23, 1018, Berlin, Germany hereby referred to as “Company” or “REPLUG” and you, as Advertiser under the Insertion Order (“Advertiser”).

The Insertion Order, Terms, and DPA together form the whole Agreement (“Agreement”).

  1. Definitions

Acquisition” means a user visiting an application store via REPLUG or MMP tracking link, by downloading or by opening the application via a mobile device, as defined in the Insertion Order.

Action” or “Actions” means installs, clicks, sales, impressions, downloads, registrations, subscriptions, etc. as specified in the applicable Insertion Order,

Advertiser Code” means conversion and/or event name/identifier to map to the relevant action taken by the End User for tracking purposes

Advertising Network“ is a network of Media Partners run by the Company, utilizing related technology and software.

Campaign details” are the Advertiser Campaign(s)’ Name, Pricing type, Payout, and Other details, as defined in the Campaign Description part of the IO or agreed periodically via Email between the Advertiser and REPLUG.

Content” means advertisements, graphics, data, text copy, links to third-party sites, web pages, images, software code, technology, files, texts, photos, audio, video, and visuals.

Company Assets” means software applications, service,s or digital placements owned by Company, properly licensed to Company or otherwise made available by Company, through the Advertising Network, Media Partners, or other third parties, for the purpose of placing Content.

Creative” means all creative assets included in Advertiser’s advertising material supplied to REPLUG.

Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other applicable country as agreed in writing between the Parties, including in the United States.

Downtime” refers to any time period in which a technical failure has occurred disrupting the technical tracking connection supporting promotion between Advertiser, MMP, and/or REPLUG.

Effective Date” is the date of countersignature of the Insertion Order.

End User” means a human end user who interacts with the Advertiser or Media Partner’s assets.

EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced, or superseded from time to time, including by the GDPR and laws implementing or supplementing the GDPR.

GDPR” means EU General Data Protection Regulation 2016/679.

ID” means: (i) a unique identifier stored on an end-user’s device, (ii) a unique identifier generated on the basis of device information, (iii) a resettable advertising ID associated with a mobile device or an application; or (iv) IP Address.

“In-App events attribution postback window” means the period after an install, re-attribution, or re-engagement, during which an in-app event postback will be sent to the Company.

Party” means the Company or the Advertiser.

Parties” means the Company and the Advertiser.

California Consumer Privacy Act” or “CCPA” means the California Consumer Privacy Act of 2018.

“Media Partners” are publishers, Original Equipment Manufacturers (OEMs), Mobile Carriers, Internet Service Providers (ISPs) or other sources of inventory with which REPLUG has a business relationship.

Mobile Measurement Platform” or “MMP” means a platform that collects, organizes and standardizes app data to deliver a uniform assessment of campaign performance metrics (such as, but not limited to Appsflyer, Adjust, Singular, Branch, Kochava).

Platform” means the Company’s tracking and Media Partner management platform (Swaarm or a similar provider).

Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data of the other party. For the avoidance of doubt, any Personal Data Breach of the other Party’s Personal Data will comprise a Security Incident.

Services” refer to all by REPLUG GmbH, in accordance with the terms of the Insertion Order, executed consulting, advertising published by REPLUG GmbH, other payable events, its assignments, publishers and/or Media Partner, whether on an hourly, sponsorship, CPA (Cost per Action), CPI (Cost per Install), CPL (Cost per Lead), CPC (Cost per Click) or e.g. CPM (Cost per thousand, e.g. impressions) basis.

Third-party fraud tool” means a third-party ad fraud detection tool such as, but not limited to 24metrics, mFilter, Scalarr, and Machine.

The terms “Controller”, “Personal Data”, “Personal Data Breach”, “Processor”, and “Processing” shall have the same meaning as given to such words and expressions in the EU Directive 95/46/EC (“Directive”) or, from 25 May 2018, the General Data Protection Regulation (2016/679) (“GDPR”).

  1. Tracking and Reporting

2.1 Unless otherwise stated in writing by Company, each Advertiser’s campaign should contain a valid Creative, which is provided by the Advertiser, and a tracking URL that will redirect users to the Appstore. The URL is extracted by the MMP chosen by the Advertiser. Each Action brought by Advertiser´s campaign promotion executed by the Company should contain a unique transaction identifier.

2.2 Advertiser will not knowingly modify, disable or otherwise interfere with any Advertiser Codes and/or other technology and/or methodology required or made available by Company to be used in connection with any and all Advertiser Content in order to track Actions.

2.3. Company’s services under this Agreement do not involve investigating or resolving any claim or dispute involving Advertiser and any third party.

2.4. In case Advertiser is working with multiple marketing suppliers, Advertiser will ensure that all campaigns that run through Company will follow the attribution model and attribution window agreed by the Parties, where attribution and tracking are made by the Mobile Measurement Platform chosen by the Advertiser. The Advertiser will provide Company with access to the Mobile Measurement Platform used.

In the last click wins model, an Action will be attributed to the marketing partner which generated the last click of the respective End User before the Action took place or/and if the Advertiser enables View Through Impression Attribution, the attribution may also happen via ad impressions that result in a user Action, without the user clicking on an ad. In this case, the user Action will be attributed to the marketing partner which generated the last impression viewed by the respective End User before the Acquisition took place.

2.5. When server-based tracking is employed in order to track Actions, Advertiser ensures all Actions are accurately tracked and timely reported to Company’s Platform or Mobile Measurement Platform, inclusive of the accurate unique ID used by Company in the tracking URL.

2.6 In the case of server-based tracking, the Advertiser must provide Company with access to ad server statistics showing advertisement units viewed, click-throughs and/or Actions via access to the tracking system employed by the Advertiser. If real-time ad server tracking data is not available, at least daily reports containing equivalent data should be sent by the Advertiser to the Company. Any longer time frame requires a written agreement between the Parties.

2.7 Billable Actions shall be determined based on the Actions shown in the Mobile Measurement Platform or the Actions tracked in the Company’s Platform, as agreed between the Parties. This includes billable models based on clicks, installs, and in-App events, based on each campaign’s commercials. The use of any other additional or replacement platform for tracking Actions and determining billable Actions needs to be agreed upon in writing by the Parties.

2.8 In the case of campaigns whose revenue is based on in-App events, Billable actions in the month shall consider the in-App events which have happened in the respective calendar month and post attribution in-App events from base installs that happened in previous months. Any changes related to the attribution window for in-App events postbacks must be agreed upon in writing between the Parties.

In case of termination of campaigns whose revenue model was based on in-App events, the Advertiser is obliged to still remunerate the Company for the in-app Events that occurred for 30 days after the stopping of any such campaign.

2.9 REPLUG reserves the right to have an independent external auditor review any data reports from Advertiser’s backend system to verify accuracy.

2.10 If Advertiser employs a cookie-based tracking method, the minimum attribution window is thirty (30) days. Any attribution window different from 30 days requires a prior written agreement between the Parties.

2.11 If there is under-delivery of volume levels, compared to specifications in the Insertion Order, REPLUG will use commercially reasonable efforts to ensure delivery in accordance with the Insertion Order. Predictability, forecasting, and conversions for CPA, CPI, and CPL deliverables may vary. Unless otherwise agreed in writing, REPLUG does not contract for a specific conversion, billability, or profitability rate of the campaign. Advertiser may not raise the allegation that the campaign did not meet the Advertiser’s actual or alleged conversion, billability, profitability, or other quality expectations, as a defense against any remuneration claim of REPLUG. Rather, the parties’ campaign-specific acquisition definitions shall be deemed exhaustive. Advertiser is solely responsible for ensuring that the contents and the technical parameters of the campaign will meet the legal, regulatory as well as any pertinent third-party requirements in any of the target jurisdictions.

  1. Licenses and Creative

3.1 Advertiser grants REPLUG and its media partners a non-exclusive, non-transferable licence to use Creative and all elements thereof solely for the purpose expressed in the Insertion Order, including implied licences to copyrighted materials, Advertiser’s trademarks, and patents.

3.2 Advertiser must have all necessary licences and clearances that are required for using the content contained in Creative.

3.3 Advertiser acknowledges and agrees that: (i) the Advertiser’s Content may be integrated into the Company Assets in conjunction with other content; (ii) unless otherwise stated in an applicable Insertion Order the frequency, positioning, order, and placements of the Advertiser’s Content on the Company Assets shall be determined by Company or its Media Partners, as applicable, at their respective sole discretion; (iii) Company shall have no obligation to review the Advertiser’s Content.

  1. Downtime / Tracking Disruption

4.1 Advertiser must immediately notify REPLUG whenever it experiences downtime that affects its performance under this agreement.

4.2 If Advertiser’s site, app, landing page or tracking goes down during a campaign, Advertiser must compensate REPLUG as follows:

4.2.1 Advertiser must identify precisely when the downtime occurred.

4.2.2 Advertiser must check its server log for Acquisitions generated per hour during the three hours before errors started to occur and three hours after errors were resolved. Advertiser must determine lost Acquisitions on the basis of the average number of Acquisitions generated per hour of normal service minus the average number of sales generated during the downtime period, multiplied by the number of hours of downtime.

4.2.3 REPLUG will check their system for average revenue generated during the three hours before errors started to occur and the three hours after errors were resolved. REPLUG will determine lost revenue on the basis of the average amount of revenue generated per hour of normal service minus the average amount of revenue generated during the downtime period, multiplied by the number of hours of downtime. Lost Acquisitions would be the lost revenue divided by the payout per Acquisition.

4.2.4 Advertiser must compensate REPLUG the average of the lost Acquisition estimate determined by Advertiser and the lost Acquisition estimate as determined by REPLUG.

  1. Data Protection and Processing

5.1. If the Services include any services in relation to the processing of Personal Data, the Advertiser appoints REPLUG to process Personal Data on its behalf as a Processor.

5.2. “Advertiser Data” consists of information shared by the Advertiser with REPLUG during the performance of the Services, including without limitation Personal Data. Advertiser shall not collect and shall not enable the collection of Advertiser Data from individuals in connection with the execution of the Services without the prior express consent of such individuals in compliance with applicable Data Protection Laws. With respect to Advertiser Data collected by Advertiser from individuals, Advertiser will collect, process and disclose, and direct REPLUG to process and disclose, such Advertiser Data only in accordance with all applicable laws and regulations, its privacy policy, and the requirements of these Terms and the DPA.

5.3. Any Advertiser Data consisting of personal information or personal data, as such terms are defined under applicable legislation and regulations, including GDPR and CCPA, and the processing thereof, shall be governed under the terms and conditions set forth herein and in the REPLUG Advertiser Data Processing Addendum (“DPA”). A current version of the DPA is available at https://rplg.io/advertiser-dpa/ and is incorporated herein by reference.

5.4 REPLUG shall use commercially reasonable efforts to provide prior notification to Advertiser in writing of any material change to the DPA. The DPA is an integral part of these Terms and the Agreement between Advertiser and REPLUG. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any Personal Data, Advertiser shall be deemed the Data Controller and REPLUG shall be deemed the Data Processor or Service Provider (as such terms are defined under applicable legislation and regulations, including the GDPR and CCPA).

5.5. In accordance with applicable Data Privacy Law, Advertiser will obtain consent from its End Users to collect and share with third parties the Personal Data that is being shared with REPLUG for processing. Advertiser must provide their End Users with a clear link to a full explanation of how third parties may use any personal information obtained and how End Users can opt out.

5.6. REPLUG shall not disclose the Advertiser Data to any third party except (a) as directed by Advertiser (including by Advertiser’s selection of an optional third party), (b) if such disclosure is made by REPLUG in response to a court order, subpoena or other legal process, and provided that REPLUG has given Advertiser reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is in aggregate non-personally identifiable form. REPLUG shall use industry-standard technology and practices securing Advertiser Data.

  1. Representations and Warranties

6.1 Advertiser warrants that Creative, its products, and services do not violate any third party’s trade secret or intellectual property rights; contain material that is defamatory or obscene, that portrays any person in a false light, constitutes an invasion of any privacy right, or that violate any applicable laws and regulations.

6.2 Company does not have any obligation to monitor any Content made available through or in connection with the Advertiser’s Content, and as a result, the Company is not responsible for the accuracy, completeness, appropriateness, or legality of such Content.

6.3 Company reserves the right, at its sole discretion and without liability, to reject or remove any Advertiser Content from the Company Assets. Advertiser acknowledges that any campaign may be terminated or suspended, whether by Company or its Media Partners, at any time and without notice to Advertiser. Advertiser hereby acknowledges that Company is acting as an intermediary between Advertisers and Media Partners and as such Company shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties.

6.4 Advertiser warrants and represents that when serving advertising content to End Users in connection with the Advertiser’s Content, Advertiser shall make commercially reasonable efforts to: provide the End User with disable functionalities that end the session of the promotional Content and do not trigger new promotional Content; and provide the End User with opt-out instructions.

6.5 Advertiser represents and warrants: (i) it will submit Advertiser Content in accordance with any technical specification provided by the Company; (ii) Any information the Advertiser provides the Company, including contact information and payment information, will at all times be accurate and in full, and will be maintained at all times; (iii) Advertiser will not promote any mobile applications which are not available for download on the Applicable Store. Upon application removal from the Store, Advertiser shall immediately inform Company.

  1. Payment

7.1 REPLUG will provide a monthly invoice based on the payment model agreed upon between both parties in the Insertion Order. Payment will be due within thirty (30) days of the last day of the billable month.

7.2 Advertiser is to send to REPLUG any disputes relating to the measurement or calculation of any Action by email specifying the reason for such objection and including evidence to support the objection, by the 5th of the calendar month following the month for which the invoice is to be issued. If no objection has been submitted within the foregoing time period, the Action shall be deemed as accepted by Advertiser and billed accordingly. Any portion of a charge not disputed in good faith must be paid in full.

7.3 Advertiser will have no right to setoff, withhold or otherwise deduct any amount owed to Company hereunder (and accordingly transfer to Company when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by Company to Advertiser (under any theory of liability).

7.4 The Company reserves the right to charge additional fees and interest for the delay of payments. An interest of 5% per month will be charged on any overdue invoices past sixty 60 days. If Advertiser fails to make payment, Advertiser is responsible for all reasonable expenses, including attorneys’ fees, incurred by Company in collecting such amounts.

7.5 Advertiser is solely responsible for paying all applicable taxes, duties or charges that may be imposed by any applicable governmental regulation, or any authority governing taxation in connection with the Agreement.

7.6 All payments under this Agreement will be in EURO or U.S. Dollars unless agreed otherwise and inclusive of any applicable taxes, including any other national, state, or local tax, VAT.

7.7 Advertiser will provide the Company with accurate and complete billing information. If payment is made via a credit or debit card, Advertiser must give the Company the respective card details and authorizes the Company to charge all Payments incurred to the designated card and acknowledges that periodic (monthly) payments may be charged automatically and without separate authorization unless otherwise provided in an applicable Insertion Order.

  1. No exclusivity 

This Agreement shall not prevent REPLUG from entering into similar Agreements with third parties, including other Advertisers within the same area of business as Advertiser, or from independently developing, using, selling, brokering or licensing products and/or services which are similar to those provided under this Agreement.

  1. Liability

9.1 The total liability of REPLUG for any culpable failure to fulfil the Agreement shall remain restricted to payment of direct loss, and is then subject to a maximum amount of 10000 EUR, excluding VAT.

9.2 REPLUG shall not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages to Advertiser or any person (including without limitation, any payments for lost revenues, lost data, lost profits or loss of goodwill), whether foreseeable or not, for any cause whatsoever whether or not caused by REPLUG negligence, even if REPLUG has been pre-informed of the possibility of such loss or damages. Under no circumstances shall any projections or forecasts by REPLUG be binding as commitments or promises by REPLUG and/or give rise to any liability. In any case, REPLUG’s direct liability is limited to a maximum of 10000 EUR.

9.3 REPLUG does not deem itself liable for losses of whatever nature that are the result of a failure to provide support in time.

  1. Confidentiality

During the term of this Agreement and for four (4) years after, each Party agrees that it will not disclose or use the Confidential Information of the disclosing Party without the disclosing Party’s prior written consent. Confidential information is all information related to the business activities of the other Party, its media partners, clients, and entities with whom that Party does business, that may be obtained by either side from any source, whether that information is marked as confidential or is confidential by its nature, including the Ad description and the agreed pricing of the campaigns, all trade secrets, ideas, know-how, concepts, processes, techniques, research, data, plans, materials, product development and all other information of a confidential nature (in whatever form).

  1. Indemnification

11.1 Advertiser agrees, at its own expense, to indemnify, defend and hold harmless REPLUG, its employees, representatives, agents and Media Partners, against any and all expenses and losses of any kind arising out of or in connection with Advertiser’s campaign or services for the Advertiser, in connection with any claims, administrative proceedings or criminal investigations of any kind arising out of the publication of the advertisement and/or any defamation, privacy violation, false or deceptive marketing practices.

11.2 Advertiser hereby indemnifies and holds REPLUG harmless from and against all claims arising to any third party against REPLUG due to infringement of warranties and obligations by Advertiser. Advertiser is liable for any damage in this connection and the costs incurred by REPLUG for legal action. This shall not affect any further claims REPLUG may have. Advertiser shall, upon instance and demand by REPLUG or any third party nominated by REPLUG, make whatever in-court or out-of-court declarations and provide whatever documents are required to defend against third-party claims.

  1. Non-Circumvention

12.1. Advertiser recognizes that REPLUG has proprietary relationships with Media Partners. Advertiser agrees not to circumvent, solicit or contract with such Media Partners, or obtain services similar to the services performed by Company hereunder from any Media Partner that is known, or should reasonably be known by Advertiser to have or have had a relationship with REPLUG and that has been active on Advertiser’s campaigns, during the term of the Agreement and for twelve (12) months following the termination or expiration of the Agreement.

12.2. Advertiser agrees that monetary damages for a breach of this section will not be adequate by themselves and that Company shall be entitled to damages from Advertiser in the amount equal to the higher of one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, for the previous twelve (12) months period or 50000 EUR. If the period is shorter than twelve (12) months the amount due will be calculated based on the true duration of the partnership to an equivalent of twelve (12) months. Advertiser has the right to prove that no or only substantial lower damages occurred and Company has the right to prove that higher damages occurred.

  1. Publicity

Neither party may issue a press release or general public announcement that refers to the other Party, without the other Party’s consent.

  1. Term and Termination 

14.1. The Agreement shall commence on the Effective Date indicated in the IO and will continue in force until terminated as set out below in this Article 14.

14.2. Parties may terminate the Agreement upon mutual agreement in writing at any time, providing all obligations, Services, and due payments have been fulfilled.

14.3. Either Party to this Agreement can terminate this Agreement or pause individual advertising campaigns at any time for On Device Display Advertising, for any reason, with at least 2 (two) business days. In any case, the termination request should happen by giving written (including e-mail) notice to the other Party. In case of any activity related to an in-App event business model, Advertiser remains liable for the payments based on the postback attribution window agreed between the Parties, even after the termination has come into force.

14.4. Either Party to this Agreement can terminate this Agreement or pause individual advertising campaigns at any time for Dynamic preload (GooglePAI), with at least 2 (two) business days. In any case, the termination request should happen by giving written (including e-mail) notice to the other Party.

14.5 The Media Partners engaged by the Company to provide Dynamic preload traffic may continue to install and distribute the Advertiser’s software applications in compliance with all applicable terms and conditions of this Agreement for a certain period (the “Cool-Off Period for Google Play Auto Install”) after a campaign has been paused, or this Agreement has been terminated or has expired.

The Cool-Off Period for Google Play Auto Install campaigns refers to the attribution postback windows and should be set to sixty (60) days.

The Advertiser explicitly agrees to continue to pay consideration to the Company for billable Actions that occurred during the Cool-Off Period for Google Play Auto Install.

  1. Force Majeure

Neither Party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by circumstances outside their control (“Force Majeure Event”). A Force Majeure Event includes without limitation, fire, flood, water, the elements, acts of war (declared or undeclared), explosions, civil disturbances, acts of terrorism, insurrection, riots, rebellion or sabotage, acts of federal, state, local or foreign governmental authorities or courts, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, failures or fluctuations in electrical power or telecommunications service or equipment, labor disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful. The Party so delayed or prevented from performing shall provide prompt notice of such event to the other Party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance. To the extent that a Force Majeure Event has continued for five (5) business days, Publisher and Advertiser both have the right to cancel the remainder of the Insertion Order without penalty.

  1. Severability

If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.

  1. Assignment 

Advertiser shall not be entitled to assign its rights or obligations under the Agreement without REPLUG’s prior written consent.

  1. Governing Law

The Agreement and any related matters shall be governed by the laws of the Federal Republic of Germany. The courts of Berlin, Germany shall have jurisdiction, to the exclusion of any other court; however, Company is entitled to file a claim at the domicile of the Advertiser as well.

  1. Entire Agreement 

19.1 These Terms, the DPA, the Insertion Order and any Campaign Details agreed via Email constitute the entire agreement between the Company and Advertiser with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

19.2 Without derogating from the generality of the foregoing, in the event that the terms of this agreement are in conflict with the terms of the Insertion Order, the terms of the Insertion Order shall prevail, followed by the provisions of the terms provided herein and the ones in the DPA. For the avoidance of doubt, any Campaign Details agreed via Email shall only refer to performance and fraud considerations and shall not have the power to vary any of the provisions of the Terms or the DPA.

  1. Changes to the Agreement 

Company may make changes to the Terms and the DPA from time to time, at its sole discretion. The most current version will be posted on the Company’s website. By continuing to access or use the Company’s Services after the changes become effective, the Advertiser agrees to be bound by the revised Agreement.