Publisher Terms and Conditions
PLEASE READ CAREFULLY – THIS IS A BINDING CONTRACT
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE REGISTERING FOR FIDELITY MEDIA FMX SSP. PARTICIPATION IN ITS SERVICES INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS INCLUDING ANY CHANGES OR MODIFICATIONS WE MAY MAKE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER OR CONTINUE TO PARTICIPATE.
This Agreement is between You and Fidelity Media SSP (fmxSSP). «You» means the entity or person listed on the Registration Form you submit to us.
Fidelity Media SSP (fmxSSP) offers an advertising platform for websites and advertisers that want to reach their visitors. The platform includes ad delivery capabilities, reporting, and payment services.
By entering this agreement, You represent that You are at least 18 years of age or reached the age of majority in the jurisdiction of your residence. You represent that you are a domain owner or you are authorized to enter this agreement with Fidelity Media SSP (fmxSSP) by the domain owner.
I. Banner placement
When you participate as a Publisher you agree that:
- Your website does not contain excessive profanity, racism, pornography, content which violates applicable laws or infringes copyright or any other party’s intellectual property rights.
- You may embed Fidelity Media SSP (fmxSSP) ad tags or code on your web pages only in accordance with the Fidelity Media SSP (fmxSSP) specifications. You may run only one Fidelity Media SSP (fmxSSP) ad tag per ad size per page (you can’t run two 300×250 at the same page but you can run 300×250 and 728×90 and 160×600 at the same page).
- You will not display Fidelity Media SSP (fmxSSP) ad tags on sites and domains that have not been approved by Us.
- You will add sufficient spacing between Fidelity Media SSP (fmxSSP) banners and page content to minimize accidental clicks. You should leave at least 100 px between two Fidelity Media SSP (fmxSSP) banners at the same page.
- You will not place Fidelity Media ad tags into self-reloading frames or similar devices without Our permission.
- You will not conceal Fidelity Media SSP (fmxSSP) banners from full view using layers, hidden frames or any other techniques fraudulent by nature.
- You will not inflate click-through rates artificially by clicking on ads yourself or by asking someone else to do so, by encouraging site visitors to click through, by using automated software or scripts that simulate clicks, or by any other means.
- You will not engage in any practice or action that manipulates or abuses Fidelity Media SSP (fmxSSP)’s platform, system or participants.
- Although you may conduct direct sales with your other advertising clients, you agree not to contact Fidelity Media SSP (fmxSSP)’s advertisers directly.
- You will provide notice to Us if you choose to remove one or all Fidelity Media ad tags from your website.
- Exception from any rules must be signed between You and Us in writing.
- We reserve the right to reject any application for participation based on Our review of Your web pages during acceptance procedure or later after any problem or complaint appeared.
All impressions generated outside approved URL must be discarded. You should provide Fidelity Media SSP (fmxSSP) with a complete list of URL’s used for your website(s) as well as with “ad serving” URL. Complete URL list will be uploaded into URL filter. All clicks and impressions which deemed fraudulent will not be counted and paid. It may happen immediately within ad request or later after a routine performance or website quality check.
Multiple accounts held by the same individual or entity are subject to immediate termination unless expressly authorized in writing by Fidelity Media SSP (fmxSSP) (including by electronic mail). You can have more than one URL in the account, each of which should be submitted for review prior to placing the code on those individual sites.
Fidelity Media SSP (fmxSSP) ad codes must be not modified from original format without consent from Fidelity Media SSP (fmxSSP). Ad codes cannot be placed in email messages. Fidelity Media SSP (fmxSSP) pop-under windows cannot be launched from websites that launch more than a total of one pop windows per page view. In-page Banner ads code need to be placed within the first 800 pixels of the top of your page. Fidelity Media SSP (fmxSSP) ad codes cannot be placed on pages without any content.
II. Prohibited Uses.
You shall not directly or indirectly generate queries or impressions or clicks on any Ad through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools or computer generated search requests, or the unauthorized use of other search engine optimization services or software.
To ensure a positive experience for Internet users and Fidelity Media SSP (fmxSSP) advertisers, sites displaying Our ads may not:
- Use third-party services that generate clicks or impressions such as paid-to-click, paid-to-surf, auto-surf and click-exchange programs.
- Users are forbidden from purchasing traffic in any way, shape, or form.
- Be promoted through unsolicited mass emails or unwanted advertisements on third-party websites.
- Be loaded by any software that can trigger pop-ups, redirect users to unwanted websites, modify browser settings or otherwise interfere with site navigation.
It is your responsibility to ensure that no ad network or affiliate uses such methods to direct traffic to pages that contain your Fidelity Media SSP (fmxSSP) code.
Fidelity Media SSP (fmxSSP) reserves the right to suspend your account if sources to your site are deemed unacceptable. This is done completely at the sole and absolute discretion of Fidelity Media SSP (fmxSSP).
III. Payment terms
Monthly publisher payments are sent via PayPal, Wire Transfer or other electronic Payment Processor depending on collected revenue 45 business days after the end of the month when revenue was generated. You will be paid at the account level based on Fidelity Media’s counts. Delivery numbers and revenue, provided through the online reporting interface, are not final. Confirmed revenue may vary upon monthly financial audit.
A publisher’s payment is calculated on Revenue Share basis and reported through online statistics interface. Standard Revenue Share value is 70/30 in favor of Publisher. Revenue Share value may be changed depending on site performance and/or special terms accepted by Publisher and Fidelity Media SSP (fmxSSP). Payment rates can vary for each website and advertising campaign.
There is USD 20.00 minimum payment through PayPal and any other electronic Payment Processor we may use and USD 500.00 minimum for a Wire transfer. Fidelity Media reserves the right to choose the method of each payment on its sole and absolute discretion. You agree to provide Fidelity Media with Your payment details such as Payee Name, Mailing Address, Verified PayPal ID, Wire Details and keep Your account in accurate and actual state. In case of unavailability of appropriate payment option for your account or revenue for the particular month is less than USD 20 Your earnings will be rolled over to the next period. All un-issued earnings will rollover to the next payout.
All unsold impressions tracked in publishers account will not be counted towards publisher earnings. Only those impressions that have delivered Fidelity Media SSP (fmxSSP)’s direct or RTB partners’ ad will be counted towards publishers earnings. Each publisher should provide Fidelity Media SSP (fmxSSP) with default (passback) ad tag for each ad size used. In this case Fidelity Media SSP (fmxSSP) guaranty low discrepancies as well as You will receive all unsold inventory back to monetize through 3rd party network or agency. Default-back traffic is free of charge for You.
Fidelity Media SSP (fmxSSP) reserves the right, on it’s sole and absolute discretion, withhold any payment to any Publisher and block account of the Publisher who violates any of these Terms and Conditions. Fidelity Media SSP (fmxSSP) will be responsible for determining, in its sole and absolute discretion what acts and omissions violate these Terms and Conditions, which acts include activity that is deceptive or fraudulent by nature. Examples of such acts may include, without limitation, clicks without referring URLs, extraordinary high number of repeated clicks, and clicks from non-approved root URLs, extraordinary high CTR, extraordinary high number of impressions served from the same IP address and any other facts which might be considered as non-human behavior. In case of the Terms violation, Publishers must provide Fidelity Media with login information into an independent traffic analytic tool (ex. Google Analytics), so a violation could be confirmed or denied.
You can end your participation in our Services at any time. If you decide to do so, you must provide notice to Us.
We can cancel your account and end this Agreement with you at any time, for any reason, by sending notice to the email address you have indicated on Your registration. In case of a block and/or cancellation of the account due to the breach of these Terms and Conditions unpaid balance will be set to zero with immediate effect and no further payment will be made to You.
If no rules were violated and the balance of a terminated account is positive, final payment will be sent on the usual monthly date or upon termination.
Representations and Warranties
You represent and warrant that:
- You have the authority to enter into this Agreement with Us.
- You are at least eighteen years old. If you are younger than eighteen, you must contact us directly via the contact form on the Fidelity Media website for alternative, quick approval.
- The registration and account information You have given Us is accurate and complete.
- The content You provide as you participate, whether that content is Advertising or on a website, and Your participation does not violate any applicable law or any third party’s rights, including but not limited to intellectual property or privacy rights.
- You will not interfere with or rig the bidding system or click counts in any way, either by technological means or by agreement with other individuals.
Indemnification. If any other party should make a claim against Us or sue Us based on Your participation in Our services and that participation violates this Agreement, You agree that you will indemnify Us for all costs associated with defending against the claim as well as all resulting damages.
If any party makes a claim against You or sues You based on Our conduct under this Agreement and that conduct has been grossly negligent or is willful misconduct, then we will indemnify You for all costs associated with defending the claim as well as any resulting damages.
These indemnification promises will not be valid unless the party that the claim or suit is brought against promptly notifies the other and cooperates fully in the defense of the claim.
No Guarantee. We make no guarantee regarding the level of impressions or clicks or the amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, We do not guarantee the Program will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond our control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services.
Intellectual Property Rights; Confidentiality. You will not reverse engineer or otherwise interfere with Our Intellectual Property Rights in the Fidelity Media SSP (fmxSSP). You will not use our marks or copyrighted materials for commercial purposes without getting our written permission first. You will not reveal any Confidential Information except as required by law.
No Warranty. FIDELITY MEDIA MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ITS SERVICES AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NON INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO YOUR PARTICIPATION, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) FIDELITY MEDIA’S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY FIDELITY MEDIA TO PUBLISHER DURING THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
User Data and Privacy
You agree not to misrepresent your site traffic, audience, or user activity in connection with Fidelity Media SSP (fmxSSP), the Service. You agree not to use Service in connection with (including but not limited to) any adware or spyware inventory, or any ad campaign on your site revealing precise geographic location, specific health / medical / sex-life information, credit card or financial data, or criminal convictions or charges, other sensitive personal data including racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership. If you represent to Fidelity Media SSP (fmxSSP) (e.g., during the sign-up process) that your accounts are not directed to kids under 13, you agree not to use Service in connection with kids under 13. You will not modify the code provided by the Service other than as described in a Fidelity Media SSP (fmxSSP) account.
Online advertising is an evolving commercial activity. We can modify general terms and conditions at any time, effective within seven calendar days after We publish the change on our website. Your continued participation in Our Services means you accept the new terms. Fidelity Media reserves the right to inform its publishers, customers, and partners about any news using email newsletter but not more often than once per week.
We are not partners with You and these services are not offered as a joint venture with You. We do not Act as your agent for any purpose. You and Fidelity Media are independent contractors to each other.
Advertiser Terms and Conditions
PLEASE READ CAREFULLY – THIS IS A BINDING CONTRACT
THIS FIDELITY MEDIA SSP (FMXSSP) CUSTOMER AGREEMENT (“AGREEMENT”) IS A BINDING AGREEMENT BETWEEN FIDELITY MEDIA SSP (FMXSSP) (“FMX” OR “US”) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU”). THIS AGREEMENT IS POSTED ON FIDELITY-MEDIA.COM AND MAY BE MODIFIED BY US FROM TIME TO TIME OR MODIFIED IN WRITING DURING DIRECT NEGOTIATION.
BY USING FMX SERVICES YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE(S).
I. The FMX Services:
The services covered by this Agreement include the use of the Fidelity Media SSP (fmxSSP) Web site, the use of FMX’s AdServer, and any other service provided to you by us, referred to herein as the FMX Services.
II. Term and Termination
Term. The term of this Agreement (“Term”) will commence, and you may begin using the FMX Services, once you agree to the terms and conditions of this Agreement and start using FMX services. The Agreement will remain in effect until terminated by you or us.
Termination by You. You may terminate this Agreement for any reason or no reason at all, at your convenience, by providing us a written notice of termination via email. Acceptance of such termination notice may be provided via your account contact email.
Termination by Us. FMX reserves the right to terminate any account at any time, with or without cause, including, without limitation, for not adhering to the Conditions of Use. Termination notice may be provided via your account contact email and will be effective immediately. Upon receipt of such termination notice, you agree to immediately cease use of the FMX Services.
III. Conditions of Use
Inventory Availability: There is no guarantee that the inventory that you have targeted and bid for will deliver in part or in full within the specified start and end date of your campaign.
Campaign Settings: All campaign and media settings are set as per your request and are solely your responsibility. Certain settings can be changed during the life of a campaign, and others can not. For more information please contact your account manager.
Materials: You shall provide all creative materials required for your campaign. You are solely responsible for the content of each advertisement.
License: You hereby grant to FMX and its third-party publishers a non-exclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote your campaign in connection with its obligations hereunder.
Appropriate Content: The advertisements that you place through FMX AdServer shall not contain or link to any content deemed inappropriate by FMX at its sole discretion. Inappropriate content includes but is not limited to the following:
Includes, promotes or facilitates pornography.
Includes, promotes illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
Distributes, shares, or facilitates the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
Violates, misappropriates, or infringes the rights of any third party.
Constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including without limitation, software, algorithms, or other data that is subject to export laws.
Perform automated clicks and redirects to landing pages without user initiation.
Commercial Reasonable Efforts to Not Compete: You will make a commercially reasonable effort to avoid competing with FMX for publishers that are using FMX Services.
Payment: You agree that our measurements are the definitive measurements under the Agreement and will be used to calculate your charges. You agree that all payments are due prior to the start date of your campaign. You are eligible for consideration to be moved to invoice billing (NET terms) if you constantly spend over $5,000 in 3 consecutive months. If we have determined that you may be billed on an invoice basis (NET terms), then we will submit an invoice for completed or partially completed Insertion Order (IO) to you at the contact email of your account, and you agree to pay such charges, without offset or deduction, within 30 days of the invoice date. If you fail to make payment as set forth herein, you will pay a late fee equal to 1% monthly of all past due charges, and all reasonable expenses (including attorneys’ fees) incurred by us in collecting past due charges. IO terms prevail.
Refunds: You may request a refund for money not spent for a campaign.
Publicity: FMX shall have the right to reference and refer to its work for, and relationship with you for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of FMX and you.
Confidentiality: You shall not disclose FMX Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “FMX Confidential Information” means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. FMX Confidential Information includes, without limitation, (i) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and FMX. Confidential Information does not include any information that you are required to disclose by law.
IV. Disclaimers; Use Limitations; Representations and Warranties; Limitations of Liability
Disclaimer: THE SERVICES FIDELITY MEDIA WEBSITES, ADSERVER, SERVICES, TECHNOLOGY, AND SOFTWARE (COLLECTIVELY, THE “FMX SERVICES”) AND ALL ADVERTISEMENTS, THIRD PARTY WEBSITES, APPLICATIONS AND/OR EMAILS (COLLECTIVELY, THE “THIRD PARTY PRODUCTS”) ARE PROVIDED OR MADE AVAILABLE BY FMX ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND FMX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE FMX SERVICES, AND NON-INFRINGEMENT. YOU EXPRESSLY AGREE THAT YOUR USE OF THE FMX SERVICES AND THIRD PARTY PRODUCTS, OR ANY PARTY THEREOF, IS AT YOUR SOLE RISK. SPECIFICALLY, BUT WITHOUT LIMITATION, FMX MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY OF THE FOLLOWING AND FMX DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, PENALTY OR DAMAGE OF ANY KIND WHATSOEVER RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO THE FOLLOWING: (i) THAT THE FMX SERVICES OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, SHALL BE FREE OF ERRORS OR OMISSIONS, INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; (ii) THE AVAILABILITY, ACCURACY OR UNINTERRUPTED USE OF THE FMX SERVICES OR THE THIRD PARTY PRODUCTS OR ANY PORTION THEREOF, ANY CONTENT THEREON OR ANY INTERFACE THERETO; (iii) THAT THE FMX SERVICES OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, ARE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS; (iv) ANY THIRD PARTY WEBSITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH HYPERLINKS CONTAINED IN THE FMX SERVICES; (v) YOUR USE OF ANY FMX SERVICES OR THIRD PARTY PRODUCTS; (vi) ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH FMX, THIRD PARTY PRODUCTS OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THEREFROM, OR WEBSITES LINKED THERETO OR THEREFROM; OR (vii) THE SUCCESS OR RESULTS, ECONOMIC OR OTHERWISE, THAT MAY BE OBTAINED BY USE OF, OR OTHERWISE AVAILABLE FROM, THE FMX SERVICES OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF.
You understand and agree that from time to time the FMX Services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: equipment malfunctions, periodic maintenance procedures or repairs, or causes beyond the control of FMX or which are not reasonably foreseeable by FMX, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. While FMX will attempt to provide the services on a continuous basis, you acknowledge and agree that FMX has no control of the availability of the services on a continuous or uninterrupted basis. You also understand and agree that FMX is not responsible for the functionality of any third party website or interface, the entire content of third party websites. Terms of this agreement are subject to UDM hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this contract.
V. Representations and Warranties
You represent and warrant that you will not use FMX Services: in a manner that infringes, violates or misappropriates any rights of us or any third party, to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN SPAM Act of 2003, in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws, and/or in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
You represent and warrant that: the information you provide in connection with your registration is accurate and complete, if you are registering for the FMX Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement and if you are registering for the FMX Services as an entity or organization, you are duly authorized to do business in the country or countries where you operate, your employees, officers, representatives and other agents accessing the FMX Services are duly authorized to access the product and to legally bind you to this Agreement and all transactions conducted under your account.
Advertisement Content: You represent and warrant that you are solely responsible for the development, operation, and maintenance of your Advertisement Content, including without limitation, the accuracy, appropriateness and completeness of your Advertisement Content, that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your, Advertisement Content, that Advertisement Content does not violate, misappropriate or infringe any rights of FMX or any third party, constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age, that your Advertisement Content contains any Harmful Components and to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of FMX.
Data and Privacy: You represent and warrant that not to misrepresent Fidelity Media SSP (fmxSSP), the Service. You agree not to use Service in connection with (including but not limited to) any adware or spyware advertisement content, or any ad campaign on you behalf revealing precise geographic location, specific health / medical / sex-life information, credit card or financial data, or criminal convictions or charges, other sensitive personal data including racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership. If you represent to Fidelity Media SSP (fmxSSP) (e.g., during the sign-up process) that your campaign is not directed to kids under 13, you agree not to use Service in connection with kids under 13. You will not modify the code provided by the Service other than as described in a communication with Fidelity Media SSP (fmxSSP) representative.
VI. Limitations of Liability.
NEITHER WE NOR ANY FMX ENTITY SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES.
Indemnification: You agree to indemnify, defend and hold us, and our affiliates, each of our and their business partners and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of the content or other material set forth on your and/or the use of the FMX Services as authorized by this Agreement and/or your use of the FMX Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law.
VII. Miscellaneous Provisions
Independent Contractors: Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.
Data Protection Addendum Headnote
Under the GDPR, organizations are required to have contractual terms in place to govern the processing of personal data that one organization (the “processor”, in terms of this DPA us) does on behalf of the other (the “controller”, in this case, you, Advertiser or Publisher, we provide service to both). This requirement is incumbent upon both of us and in order to meet it, we have issued the following “Data Processing Addendum” which will be incorporated into any contracts, agreements, work orders, data processing addendums or similar that we have in place with you (the “Agreement”). This Data Processing Addendum complements any terms relating to data or security already in our Agreement. Where this Data Processing Addendum is in conflict with any existing data protection, privacy or security terms in our Agreement, the Data Processing Addendum will take precedence. Where the existing terms of our Agreement do not conflict with the Data Processing Addendum, the existing terms will supplement the Data Processing Addendum. This Data Processing Addendum will be effective from 25 May 2018. By continuing to take services form fmxSSP under existing Agreement past this date, you agree to be bound by the Data Processing Addendum. If you have any questions concerning this letter or the Data Processing Addendum then please contact us at email@example.com.
FM Labs LLC
201 Spear St, 1100 #3001
San Francisco, CA 94105
Fidelity Media fmxSSP Data Protection Addendum
Fidelity Media SSP (“fmxSSP”) and the legal entity who entered into an agreement for the provision of the services (“Services”) described in Fidelity Media SSP Terms (as amended from time to time, the “Agreement”) regardless of the form of organization (“Customer”), are agreeing to these Data Protection Terms (“DPA”). This DPA is entered into by fmxSSP and Customer and supplement the Agreement. This DPA will be effective and replace any previously applicable terms relating to their subject matter, from the Terms Effective Date.
If you are accepting this DPA on behalf of Customer, you warrant that:
(a) you have full legal authority to bind Customer to this DPA;
(b) you have read and understood this DPA; and
(c) you agree, on behalf of Customer, to this DPA.
This DPA reflects the parties’ agreement on the processing of Personal Data in connection with the Data Protection Laws. Any ambiguity in this DPA shall be resolved to permit the parties to comply with all Data Protection Laws.
In the event and to the extent that the Data Protection Laws impose stricter obligations on the parties than under this DPA, the Data Protection Laws shall prevail
Definitions and Interpretation
(a) “Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party.
(b) “Data Protection Laws” means, as applicable, any and/or all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state or deferral or national level, pertaining to data privacy, data security and/or the protection of Personal Data, including the Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), including any amendments or replacements to them, including the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”).
(c) “Cross Advertising” means the collection of data through websites or applications owned or operated by different entities on a particular device for the purpose of delivering advertising based on the preferences or interests known or inferred from the data collected.
(d) “Data Subject” means a data subject to whom Personal Data relates.
(e) “Personal Data” means any personal data that is processed by a party under the Agreement in connection with its provision or use (as applicable) of the Services.
(f) “Security Incident” shall mean any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data. For the avoidance of doubt, any Personal Data Breach will comprise a Security Incident
(g) “Terms Effective Date” means 25 May 2018.
(h) The terms “controller”, “processing” and “processor” as used in this have the meanings given in the GDPR.
(i) Any reference to a legal framework, statute or other legislative enactment is a reference to it as amended or re-enacted from time to time.
Application of this DPA
This DPA will only apply to the extent all of the following conditions are met:
fmxSSP processes Personal Data that is made available by the Customer in connection with the Agreement;
The Data Protection Laws apply to the processing of Personal Data.
This DPA will only apply to the Services for which the parties agreed to in the Agreement, which incorporates the DPA by reference.
Roles and Restrictions on Processing
In terms of the Services provided by fmxSSP to its’ Customers: Customer (the controller) appoints fmxSSP as a processor to process the personal data described in the Agreement (the “Data”) for the purposes described in the Agreement (or as otherwise agreed in writing by the parties) (the “Permitted Purpose”). Each party shall comply with the obligations that apply to it under Applicable Data Protection Law. If fmxSSP becomes aware that processing for the Permitted Purpose infringes Applicable Data Protection Law, it shall promptly inform Customer.
In terms of the own marketing initiatives, payment flow, communication with vendors Independent Controllers. Each party:
(a) is an independent controller of Personal Data under the Data Protection Laws;
(b) will individually determine the purposes and means of its processing of Personal Data; and
(c) will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data.
Restrictions on Processing
Section «Independent Controllers» will not affect any restrictions on either party’s rights to use or otherwise process Personal Data under the Agreement.
Sharing of Personal Data
In performing its obligations under the Agreement, a party may provide Personal Data to the other party. Each party shall process Personal Data only for (i) the purposes set forth in the Agreement or as (ii) otherwise agreed to in writing by the parties, provided such processing strictly complies with (iii) Data Protection Laws, (ii) Relevant Privacy Requirements and (iii) its obligations under this Agreement (the “Permitted Purposes”). Each Party shall not share any Personal Data with the other Party (i) that allows Data Subjects to be directly identified (for example by reference to their name and e-mail address); (ii) that contains Personal Data relating to children under 16 years.
Lawful grounds and transparency
Data Subject Rights
It is agreed that where either party receives a request from a Data Subject in respect of Personal Data controlled by such Party, then such Party shall be responsible to exercise the request, in accordance with Data Protection Laws.
Personal Data Transfers
Transfers of Personal Data Out of the European Economic Area. Either party may transfer Personal Data outside the European Economic Area if it complies with the provisions on the transfer of personal data to third countries in the Data Protection Laws (such as through the use model clauses or transfer of Personal Data to jurisdictions as may be approved as having adequate legal protections for data by the European Commission.
Protection of Personal Data
The parties will provide a level of protection for Personal Data that is at least equivalent to that required under Data Protection Laws. Both parties shall implement appropriate technical and organizational measures to protect the Personal Data. In the event that a party suffers a confirmed Security Incident, each party shall notify the other party without undue delay and the parties shall cooperate in good faith to agree and action such measures as may be necessary to mitigate or remedy the effects of the Security Incident.
Notwithstanding anything else in the Agreement, the total liability of either party towards the other party under or in connection with this DPA will be limited to the maximum monetary or payment-based amount at which that party’s liability is capped under the Agreement (for clarity, any exclusion of indemnification claims from the Agreement’s limitation of liability will not apply to indemnification claims under the Agreement relating to the Data Protection Laws).
Effect of this DPA. If there is any conflict or inconsistency between the terms of this DPA and the remainder of the Agreement then, the terms of this DPA will govern. Subject to the amendments in this DPA, the Agreement remains in full force and effect.
Changes to this DPA
fmxSSP may change this DPA if the change is required to comply with Data Protection Laws, a court order or guidance issued by a governmental regulator or agency, provided that such change does not: (i) seek to alter the categorization of the parties as independent controllers of Personal Data under the Data Protection Laws; (ii) expand the scope of, or remove any restrictions on, either party’s rights to use or otherwise process Personal Data; or (iii) have a material adverse impact on Customer, as reasonably determined by fmxSSP.
Notification of Changes. If fmxSSP intends to change this DPA under this Section, and such change will have a material adverse impact on Customer, as reasonably determined by fmxSSP, then fmxSSP will use commercially reasonable efforts to inform Customer at least 30 days (or such shorter period as may be required to comply with applicable law, applicable regulation, a court order or guidance issued by a governmental regulator or agency) before the change will take effect.
Updated: May 25, 2018