1.1 The following terms and conditions (“Advertiser T&Cs”) apply between the ayeT-Studios GmbH (“ayeT-Studios”) as agreed between the parties in the registration process as described in Sect. 2.2 below and any advertiser or demand partner that satisfies the criteria in Sect. 2 below (“Advertiser”). ayeT-Studios offers its services to commercial Advertisers only. Consumers are not eligible to become an Advertiser.
1.2 The Advertiser T&Cs and any applicable orders placed by the Advertiser and accepted by ayeT-Studios shall be collectively known as the “Agreement”. Terms and conditions of the Advertiser do not become part of the Agreement, unless ayeT-Studios has accepted them in writing. The parties acknowledge and agree that in case of a conflict between these Advertiser T&Cs and any Insertion Order, the Insertion Order shall prevail. The forgoing sentence applies also to conflicts between the Insertion Order and Terms and Conditions provided by the Advertiser, to the extent that ayeT-Studios has accepted such Terms and Conditions of Advertiser in writing and in accordance with this provision.
1.3 ayeT-Studios shall operate a dedicated online platform (the “Advertising Platform”) through which promotional material provided by the Advertiser (the “Advertisements”) can be displayed on the website(s), in the mobile application(s), or on/in other advertising space(s) owned, maintained, or controlled by third parties (hereafter referred to as “Publisher Advertising Space(s)” and the “Publisher(s)” respectively). The Advertiser shall pay ayeT-Studios a consideration according to Sect. 3 based on the success of the Advertisements with the users visiting the Publisher Advertising Spaces (“Publishers’ Users”).
1.4 By operating the Advertising Platform, and rendering the services according to the Agreement, ayeT-Studios acts only as an intermediary between the Advertiser and the Publisher. The Advertiser itself is solely responsible for submitting Advertisements through the Advertising Platform to the Publisher. The Publishers are free to decide whether or not, and to which extent, they display the Advertisements. ayeT-Studios has no influence in this regard and thus provides no guarantee that Advertisements will be displayed in a quantity satisfactory for the Advertiser.
1.5 ayeT-Studios may, but is not obligated to, encourage the Publishers’ Users to participate by obliging the Publishers to set up a system to reward the Publishers’ Users for activities performed in relation to the Advertisements (the “Optional Incentive System”), for example by offering virtual currency or other benefits. The Advertiser acknowledges that it is in ayeT-Studios’s discretion whether it obligates the Publishers to set up an Optional Incentive System, and that it is in the Publishers’ discretion how a respective Optional Incentive System is operated. ayeT-Studios provides anti-fraud rules for the Publishers to respect, but is under no obligation to monitor whether these rules are being followed. ayeT-Studios provides no guarantee as to the satisfactory response of the Publishers’ Users.
2.1 An undertaking offering commercial goods or services can become an Advertiser by registering an account at the ayeT-Studios Advertising platform or by entering into a contract with ayeT-Studios. In case such registering an account is implemented by ayeT-Studios, and used by an undertaking interested to become an Advertiser, para 2.2 subseq. apply.
2.2 After or during registering an account, as displayed during the registration process, with ayeT-Studios on the Advertising Platform, the Advertiser will have to fill in and submit further details.
2.3 By submitting the informatoin, the potential Advertiser submits a binding offer to enter into a contract with ayeT-Studios according to the Advertiser T&Cs (the “Advertiser Offer”). All fields of the registration form, which are marked as being ‘required’, have to be filled in. Any statements submitted through the Advertising Platform or otherwise an Insertion Order must be complete and correct.
2.4 The Agreement between the Advertiser and ayeT-Studios is concluded when ayeT-Studios accepts the first Ad Campaign of the Advertiser, either by declaring acceptance explicitly, or by approving the review process of the first Ad Campaign and delivering the Ad to the Publishers.
2.5 ayeT-Studios will promptly confirm the registratoin of the Advertiser through the Advertisting Platform by sending an e-mail to the e-mail address submitted at registration process. This confirmation is not a binding acceptance of the Advertiser Offer. The confirmation of registration can however be sent together with such acceptance.
2.6 A potential advertiser becomes an Advertiser as defined in the Advertiser T&Cs once ayeT-Studios has accepted the Advertiser Offer. ayeT-Studios can decide in its sole discretion whether or not to accept the Advertiser Offer.
2.7 By submitting the Advertiser Offer, the potential advertiser warrants to be properly registered, and that the goods and services that it offers are legal in the countries they are offered. The Advertiser also represents to offer its goods and/or render its services in full compliance with all applicable laws, including any laws regarding the transmission of technical data and personal data, consumer protection, advertising, trademark, unfair competition, youth protection, and gambling. The Advertiser will not interfere or attempt to interfere with the proper working of the Advertising Platform or prevent others from using the Advertising Platform.
2.8 ayeT-Studios reserves the right, but shall have no obligation, to review the Advertisements displayed through the Advertising Platform, as well as the goods and services promoted by the Advertisements, in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, administrative or governmental request. ayeT-Studios shall also have the right to inspect the Advertiser’s use of personal data.
3.1 The Advertiser shall pay ayeT-Studios a consideration based on the activities performed with regard to the Advertisements delivered by the Publishers through the Advertising Platform. The Advertiser can operate pay-per-view campaigns (web/mobile), pay-per-install campaigns (mobile), pay-per-lead campaigns (web/mobile), or other campaigns, subject to availability.
3.2 The consideration payable to ayeT-Studios is based on the number of valid activities performed with regard to the Advertisements delivered by the Publishers through the Advertising Platform.
3.3 A valid activity is a view, install, lead or other activity, as the case may be, generated through any of the Advertiser’s Advertisements delivered through the Advertising Platform, unless the Advertiser provides sufficient evidence that such activity is a fraudulent action. Fraudulent actions are actions performed by a bot, script, automated program or similar device in relation to any of the Advertiser’s Advertisements delivered through the Advertising Platform. The Advertiser shall inform ayeT-Studios of any such fraudulent action and provide sufficient evidence no later than 25 working days after the valid activity has been recorded within the Advertising Platform. For clarification purposes only, the parties agree that for the determination of the validity of an activity it shall not be decisive whether any further and subsequent activities or outcomes are achieved (for example, to be valid, an ‘install’ does not require that the individual actually uses the installed application afterwards).
3.4 Whether a view, install, lead or other activity, as the case may be, is valid is tracked by ayeT-Studios and reported online to the Advertiser through the Advertising Platform (“ayeT-Studios Tracking”). ayeT-Studios may, at its own discretion, also use tracking information obtained by Advertiser; Advertiser shall submit such tracking information upon request by ayeT-Studios. In case the Advertiser considers the ayeT-Studios Tracking to be incorrect, the Advertiser can dispute the ayeT-Studios Tracking in writing. Subject to the Advertiser providing sufficient evidence of the inaccuracy within 25 working days of such objection, ayeT-Studios shall issue a revised invoice. Such entitlement to a revised invoice shall be excluded where the difference between the evidence provided by the Advertiser and the ayeT-Studios Tracking is less than 5 per cent, unless ayeT-Studios has intentionally or through gross negligence caused the ayeT-Studios Tracking to be incorrect.
3.5 The consideration is due and payable within 30 working days after the invoicing date, unless the Advertiser already has credit on its account, in which case the consideration will be deducted after the valid activity has occurred (see Sect. 3.3 subseq.). In the event that the Advertiser’s account is in credit, no interest shall be due.
3.6 To the extent that Advertiser makes a pre-payment for any Advertisements, ayeT-Studios will credit the Advertiser’s account accordingly. Such funds can be used by the Advertiser within 24 months from deposit. The Advertiser can request the balance of the account to be reimbursed within 90 days of deposit of the respective funds. To process reimbursements, ayeT-Studios will deduct a service fee of 5 per cent of the reimbursed amount. Upon expiry of the 90 days period, the pre-paid balance will no longer be reimbursable.
3.7 The Advertiser’s account balances will be reduced by ayeT-Studios to offset the consideration payable to ayeT-Studios under this Sect. 3 as they are incurred. VAT is deducted accordingly (if applicable). To the extent that the consideration is deducted from the Advertiser’s account, ayeT-Studios will generally make a deduction within 24 hours after the valid activity has been recorded within the Advertising Platform.
3.8 For the sake of the calculation of the 90 days and 24 months periods set out above (Sect. 3.6), the consideration (and VAT, if applicable) will always be offset against the oldest payments on the Advertiser’s account.
3.9 The Advertiser can only offset counterclaims against claims of ayeT-Studios if the Advertiser’s counterclaims are undisputed or established by a court judgment. The Advertiser can only exercise a right of retention if its counterclaim is based on the same contractual relationship.
4. Content Of Advertisements
4.1 The Advertiser represents and warrants not to submit any Advertisement to ayeT-Studios or the Advertising Platform that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, or contains links to content of such nature (“Advertisement of an Illegal Nature”). Advertisements which are unlawful include, without limitation, those which breach any laws regarding the transmission of technical data and personal data, consumer protection, advertising, trademark, unfair competition, youth protection, and gambling.
4.2 In case the Advertisements are unlawful, or defamatory, libelous, harassing, abusive, fraudulent or obscene in certain countries or regions of the world only (“Restricted Countries”), the Advertiser shall block Restricted Countries for such Advertisements. As far as the Advertising Platform offers an option to block the Restricted Countries and/or not to select the Restricted Countries, the Advertiser shall use this feature, or otherwise instruct ayeT-Studios in writing not to display the Advertisements in Restricted Countries.
4.3 The Advertiser shall not submit any Advertisements which contain or link to spam, bulk mail or offers with hidden costs.
4.4 Advertisements of an Illegal Nature, Advertisements not blocked or selected for Restricted Countries and Advertisements contrary to Sect. 4.3 are collectively referred to as “Undesired Advertisements”.
4.5 ayeT-Studios has the right, but is under no obligation to manually verify Advertisements submitted by the Advertiser before they are activated (i.e. made available through the Advertising Platform).
4.6 ayeT-Studios may, at its sole discretion, deactivate or remove any Advertisement which, in ayeT-Studios’s reasonable opinion, is an Undesired Advertisement. ayeT-Studios undertakes to inform the Advertiser without undue delay in case an Advertisement has been removed. The Advertiser can replace the Undesired Advertisement with another Advertisement which complies with the Advertiser’s obligations under this Sect. 4.
4.7 If the Advertiser considers that ayeT-Studios has deemed an Advertisement to be an Undesired Advertisement under Sect. 4.6 and removed it for no good reason, the Advertiser shall request ayeT-Studios, in writing, to review its decision. If, upon further review, ayeT-Studios agrees with the Advertiser, it shall promptly re-activate the Advertisement. If however ayeT-Studios still disagrees with the Advertiser, ayeT-Studios may, at its reasonable discretion:
(a) elect to discontinue to deliver the Advertisement through the Advertising Platform;
(b) elect to continue to deliver the Advertisement through the Advertising Platform, but inform its Publishers in an appropriate way that it holds the Advertisement to be an Undesired Advertisement, and suggest the Publishers put it on a blacklist.
4.8 The Advertiser does not have any other claims against ayeT-Studios.
5. Legal Relationship With Publishers
5.1 The Agreement is between ayeT-Studios and the Advertiser only.
5.2 In the Publisher Terms and Conditions, ayeT-Studios obliges the Publishers to accept certain terms aimed at protecting the Advertisers. ayeT-Studios encourages the Advertiser to read the Publisher Terms and Conditions, especially with regard to Optional Incentive Systems, and Fraud Protection. ayeT-Studios can neither warrant nor represent that the Publishers will adhere to their obligations. In the event that a Publisher does not fulfil its obligations under the Publisher Terms and Conditions, or obligations individually agreed upon between the Publisher and ayeT-Studios, the Advertiser shall not have any claim against ayeT-Studios, unless ayeT-Studios is responsible for such breach or non-performance, but shall assert any claims against such Publisher.
5.3 To the extent that any obligation of the Advertiser under the Agreement protects the interests of the Publishers, the Agreement is for the benefit of the Publishers (echter Vertrag zugunsten Dritten, Sect. 328 German Civil Code).
6.1 The Advertiser shall implement all code provided by ayeT-Studios for the proper tracking of the Advertisements, including Optional Incentive Systems. The Advertiser shall bear all costs and expenses related to such implementation.
6.2 The Advertiser must not alter or modify the code provided by ayeT-Studios under Sect. 6.1 without ayeT-Studios’s prior written consent.
7. Advertiser’s Site
7.1 The Advertiser shall inform ayeT-Studios, giving reasonable notice, in the event it intends to materially alter the content or appearance of the site the Advertisements directly or indirectly link to (“Advertiser’s Site”).
7.2 The Advertiser’s Site must not contain any illegal or offending content, especially not content as defined by Undesired Advertisements (cf. Sect. 4.4).
7.3 The Advertiser warrants and represents that it does not include any illegal or offending content on the Advertiser’s Site.
7.4 The Advertiser shall remove or suppress illegal or offending content (including actions) on the Advertiser’s Site provided by third parties (including users) without undue delay. The Advertiser shall take all reasonable measures to prevent the reoccurrence of such infringements.
7.5 The Advertiser shall hold ayeT-Studios harmless of any third party claims alleging the Advertiser’s Site contains illegal content.
7.6 ayeT-Studios neither endorses nor approves of actions performed or content made available by the Advertiser.
8. Technical And Commercial Limitations; Limitations, Changes; Availability
8.1 Unless otherwise provided for in the Advertiser T&Cs, ayeT-Studios provides the Advertising Platform through which it renders its services on an ‘AS IS’ and ‘AS AVAILABLE’ basis.
8.2 ayeT-Studios offers the Advertiser use of the Advertising Platform over the Internet subject to technical and commercial limitations as defined below.
8.3 ayeT-Studios may modify the Advertising Platform without prior notice. Therefore, the Advertiser is granted a right of use only for the then current version. The Advertiser may reduce or cease its use of the Advertising Platform in the event that it is modified.
8.4 In the event that the modification severely affects the Advertiser’s interests, the Advertiser shall inform ayeT-Studios in writing that it objects to the modification. In case ayeT-Studios does not comply with the Advertiser’s request to restore the functionality of the Advertising Platform in a way that is materially equivalent to the former functionality, the Advertiser shall have the right to terminate the Agreement for cause according to Sect. 9. The Advertiser shall not have any other claims.
8.5 Generally, only the suppression of materially important features without the introduction of materially equivalent features, not the introduction of new features or functionalities shall be considered to materially affect the interests of the Advertiser in the sense of Sect. 8.4.
8.6 ayeT-Studios reserves its right to cease operation of the Advertising Platform at any time, without giving reasons or prior notice. Any balance owed to the Advertiser will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement.
8.7 ayeT-Studios undertakes to assure an availability of the Advertising Platform of 90% (ninety percent) as a yearly average. Periods during which the Advertising Platform is not available because of technical or other problems outside ayeT-Studios’s control (such as force majeure or third party fault) and periods during which routine maintenance works are carried out, are excluded from this. ayeT-Studios may restrict access to the Advertising Platform if required for network security, maintenance of network integrity and the prevention of severe malfunction of the network, the software or stored data. The Advertiser’s rights in case of intent or gross negligence remain unaffected.
9.1 The Agreement is entered into for an unlimited period of time, unless otherwise provided for in the Agreement. In case the Advertiser has credited its account, or the parties have agreed that the Advertiser spends a given amount of money for Advertisements on the Advertising Platform (“Guarantee Sum”), the Agreement shall remain in force until the Guarantee Sum has been spent or there are no more credits on the account.
9.2 Each party has the right to terminate the contract at any time with immediate effect, if no limitation of the usage period has been agreed upon. The parties remain free to terminate the contract for cause at any time.
9.3 In case ayeT-Studios is responsible for a termination of the contract for cause, the Advertiser will be refunded for any payments it may have already made and which are still credited on the account. The Advertiser does not have any other claims, unless otherwise provided in the Advertiser T&Cs.
9.4 ayeT-Studios may terminate the contract especially for, but not limited to, the following reasons:
9.4.1 An Advertisement of the Advertiser violates criminal law
9.4.2 The Advertiser has provided incorrect information upon registration
9.5 In case ayeT-Studios rightfully terminates for cause, ayeT-Studios is entitled to keep 75 % (seventy-five percent) of all funds still credited to the Advertiser’s account. The Advertiser remains free to prove that no or only substantially lower damages were suffered.
9.6 If there is no option to terminate the contract within the Advertising Platform, the termination has to be declared in written form. A termination for cause can only be declared in writing. E-mail is sufficient for this purpose.
10. Claims Based On Defects
10.1 ayeT-Studios grants the Advertiser access to the Advertising Platform in the then current version only (see 8.). The Advertiser cannot claim that a given state or functional range is maintained or achieved. The Advertiser acknowledges that the Advertising Platform, as any other software, can never be completely free of bugs. Therefore, the Advertising Platform can only be considered to be defective if its usability is affected severely and for a significant period of time.
10.2 The Advertiser shall document any faults in the Advertising Platform, and report them in writing (along with a log of the error messages displayed, if applicable). Before reporting a potential bug, the Advertiser will consult the instruction and other troubleshooting tools provided by ayeT-Studios (especially frequently asked question lists, forums and boards for troubleshooting). The Advertiser will use its best efforts to support ayeT-Studios in any attempts to debug.
10.3 The Advertiser will notify ayeT-Studios of any faults, without undue delay upon discovery, in writing (fax, letter or e-mail). To comply with this, it is sufficient that the report is sent in time, otherwise all claims based on such defects shall forfeit.
10.4 ayeT-Studios is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by ayeT-Studios.
10.5 The Advertiser is liable for any costs incurred by ayeT-Studios based on incorrect reports by the Advertiser, especially in the event that there is no defect, or the defect has been caused by the Advertiser itself.
10.6 ayeT-Studios does not assume any warranties, unless they are given in writing, or explicitly provided for in the Agreement.
11.1 Each party agrees to indemnify and hold the other party harmless from and against any losses, costs, liabilities and expenses, including reasonable attorneys’ fees, arising out of any third party claims resulting from the breach of the warranties made by such party in the Agreement.
11.2 The indemnifying party has the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party. The indemnified party agrees to cooperate with the indemnifying party’s defense of such claims.
12. Limitation Of Liability
12.1 ayeT-Studios is not responsible for damages, unless they are caused intentionally or by gross negligence.
12.2 Liability for breach of a cardinal obligation or an essential obligation is limited to the damage which could have been foreseen.
12.3 The damage which can be foreseen is limited to USD 2,500.00 per Advertiser (or the Guarantee Sum, whichever is higher).
12.4 The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of ayeT-Studios and their members.
12.5 The aforementioned limitations of liability determined in Sect. 12.1 to 12.4 do not apply to the liability for personal injury of life, body, and health. The limitation of liability pursuant to Sect. 12.1 and 12.4 does not apply in case the damage is the result of a breach of a cardinal obligation, an essential obligation or a guarantee. ayeT-Studios remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
13. Data Protection
13.1 The Advertiser represents and warrants to store all data transmitted by ayeT-Studios through the Advertising Platform (including user data and usage data) in conformity with all legal requirements.
13.2 The Advertiser represents and warrants to collect and process all data related to Publishers’ Users (including user data and usage data) in conformity with all legal requirements.
13.3 The Advertiser represents and warrants not to transmit any personal data (i.e. data allowing identification of an individual) related to the Publishers’ Users to any third party or any country outside the European Union, unless data protection laws allow for such transmission.
13.4 The Advertiser acknowledges that ayeT-Studios may store user data and usage data, which they collect automatically or through forms filled in by the Publishers’ Users.
13.5 The Advertiser acknowledges that ayeT-Studios may use such data to optimize its offers and services, and for statistical purposes, market research, and the promotion of its services.
13.6 The Advertiser acknowledges that ayeT-Studios may use e-mail addresses and other contact data submitted by the Publishers’ Users for marketing and promotion, as far as allowed by applicable law.
14. Protection Of Login Data
14.1 The Advertiser shall keep all access data (login, passwords etc.) for the Advertising Platform (“Access Data”) strictly confidential. The Advertiser shall promptly inform ayeT-Studios in the event that it learns or suspects that an unauthorized third person is in possession of the Access Data.
14.2 In case ayeT-Studios has reason to believe that an unauthorized third party is in possession of Access Data, ayeT-Studios may, without assuming any responsibility to do so, and always acting in its sole discretion, change the Access Data without prior notice or block the respective account. ayeT-Studios will promptly inform the Advertiser and will, upon request, communicate the new Access Data to the Advertiser without undue delay. The Advertiser cannot claim to have its initial Access Data restored.
14.3 In case a third party uses, through the Advertiser’s fault, the Advertiser’s Access Data, the Advertiser is liable for all such actions, and for damages. In such event, all access through the Advertiser’s Access Data shall be considered as an access by the Advertiser.
15. Access To The Advertiser T&Cs, Changes And Further Notices, Communication
15.1 Each login to the Advertising Platform is subject to the Advertiser T&Cs. The Advertiser T&Cs can be printed or saved on storage media.
15.2 ayeT-Studios may make changes to the Advertiser T&Cs (including amendments) at any given time in the future, if this should prove necessary (in particular to reflect changes in the Advertising Platform, new developments with regard to fraud, or changes in the legal framework applicable to it, such as new legislation or case-law) and provided the Advertiser is not unreasonably disadvantaged contrary to good faith.
15.3 The Advertiser will be notified of changes to the Advertiser T&Cs in writing (“Notification”). Specifically, ayeT-Studios will notify the Advertiser on the Advertising Platform and/or via e-mail.
15.4 The Advertiser may dispute changes to the Advertiser T&Cs within a time period of two weeks following receipt the Notification of the changes and the possibility of taking notice thereof. Advertiser shall submit its opposition in writing (for example via e-mail).
15.5 Changes to the Advertiser T&Cs become binding as of the date of Notification sent to the Advertiser via e-mail. The latest changes are binding in the event that the Advertiser does not dispute such changes within the above-mentioned time period or continues to use the Advertising Platform after having received the Notification without disputing the changes.
15.6 ayeT-Studios will inform the Advertiser about the possibility of disputing the changes and the legal consequences, especially the legal consequences of a lack of opposition, when notifying the Advertiser about the changes to the Advertiser T&Cs.
15.7 If the Advertiser disputes the changes in time, each party may terminate the Agreement with one month’s prior notice unless termination is possible at any time according to Sect. 9. Until termination, the Advertiser T&Cs in their former version will govern the Advertiser’s relationship with ayeT-Studios. The Advertiser does not have any other claims against ayeT-Studios.
15.8 Unless otherwise provided in the Agreement, ayeT-Studios will communicate with the Advertiser via e-mail. The Advertiser shall make sure that it receives all e-mails sent by ayeT-Studios to the address submitted in the registratoin process or otherwise through the Advertising Platform (see Sect. 2.3), during registering an account or at a later date. The Advertiser will in particular configure the spam filter accordingly and regularly check all incoming e-mail under this address. Notwithstanding the foregoing, ayeT-Studios may choose any other means of communication it considers appropriate under the circumstances.
16. Ownership Of Rights
16.1 The Advertiser acknowledges that by registering, it grants ayeT-Studios the right to name the Advertiser as a reference for ayeT-Studios’s services. This includes the right to use the Advertiser’s logo on ayeT-Studios’s websites. The Advertiser may revoke this right at any time, in writing, for any future use.
16.2 The Advertiser agrees that it will use any data (including any usage data and compilations thereof), information or software, provided by ayeT-Studios to the Advertiser, only for the purpose of providing and optimizing Advertisements for ayeT-Studios on the Advertising Platform according to the Agreement.
16.3 ayeT-Studios will retain all rights, title, and interests in and to the Advertising Platform (except for any licensed content and third-party Advertisements included therein), including all data (such as any usage data and compilations thereof), information and software related thereto. The Advertiser acknowledges that the software, information, content and data relating to the Advertising Platform (such as any usage data or compilations thereof) are protected for ayeT-Studios under copyright and similar rights and may contain trade secrets or other intellectual or industrial property owned or licensed by ayeT-Studios.
16.4 The Advertiser agrees not to modify, alter, create or copy derivative works of the provided data, information, content or software of the Advertising Platform. ayeT-Studios does not grant to the Advertiser any license, express or implied, to the intellectual or industrial property of ayeT-Studios or its licensors, except for a limited right of use according to the terms and for the duration of the Agreement.
17.1 The parties shall keep confidential all information defined in Sect. 17.2 which is received from the other party or otherwise received under the Agreement.
17.2 Information to be kept confidential shall include the Advertisements prior to publication, any data (including any usage data and compilations thereof), information or software relating to the Advertising Platform; and/or any other information designated in writing, or identified orally at the time of disclosure, by the disclosing party, as ‘confidential’ (“Confidential Information”).
17.3 Both during and after the term of the Agreement, neither party will use for any purpose or disclose to any third party, any Confidential Information. Any exception to this must be obtained in advance.
17.4 The foregoing restriction does not apply to information that has been developed independently by the receiving party without access to the other party’s Confidential Information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of this Sect. 17 by the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
18.1 ayeT-Studios’s failure to act with respect to a breach by the Advertiser does not waive ayeT-Studios’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by ayeT-Studios under the Agreement shall be deemed effective unless delivered in writing and signed by a duly appointed representative of ayeT-Studios.
18.2 All or any of ayeT-Studios’s rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the Advertising Platform in a merger, acquisition or sale of all or substantially all of ayeT-Studios’s assets.
18.3 The Advertiser must not assign or transfer the Agreement or any or all of its rights thereunder without the prior written consent of ayeT-Studios.
18.4 Section headings used in the Agreement are for convenience only and shall not affect the interpretation of the Agreement.
18.5 If any provision of the Agreement should be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of the remaining provisions.
18.6 Any changes, amendments or the abrogation of the Agreement (partly or entirely) require written form (letter, fax or e-mail); the requirement of written form can only be waived in written form.
18.7 The courts of Hannover, Germany, shall have exclusive jurisdiction.
18.8 The laws of the Federal Republic of Germany apply for all contracts concluded by ayeT-Studios on the basis of the Advertiser T&Cs and any claims arising therefrom, and for all claims related to the use of the Advertising Platform. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded.
Copyright (c) ayeT-Studios GmbH, August 2016