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Oraki Digital Ltd. Terms and Conditions

Last Updated on: Jan, 16 2024

These Oraki Digital Ltd. Platform Terms and Conditions (“Oraki Platform Terms and Conditions” or the “Terms”) govern Customer’s use of the services described in the Agreement (as defined below).

These Terms are used to govern different Services provided under different types of Order Form(s)/Agreements. Capitalised terms used but not defined in these Terms may only be applicable to particular Services, and, if applicable, will have the meanings given in the relevant Order Form / Agreement.

In the event of any contradictions or conflict between the Terms an any Order Form / Agreement, the terms of the Order Form / Agreement shall govern. 

 

1. Definitions

Any use of the term “including” in the Terms will mean “including, but not limited to.” The following capitalised terms will have the associated meanings for purposes of the Terms. Any definitions included in these Terms or any related Order Form(s)/Agreement will have the same meaning throughout the related Order Form(s)/Agreement .“

Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.

Agreement” shall mean the agreement executed by and between the Company and the Customer, including any addendum and/or extension of such agreements and/or any Order Form executed between the Company and the Customer. All Agreements incorporate and are governed by the terms and conditions contained herein.

Beta Feature” means any Service feature that is expressly identified as “Beta”, “Alpha”, “Experimental” or “Pre-Release” or that is otherwise expressly identified as unsupported.

Brand Features” means each party’s trade names, trademarks, logos and other distinctive brand features.

Client” means an advertiser, network publisher or other third party, if any, on whose behalf Customer utilizes a Service.

Company” or “Oraki” – Oraki Digital Limited and/or any Affiliate of Oraki Digital Limited which executed an Order Form / Agreement with a Customer.

Confidential Information” as defined in section 6 below.

Customer Content” means any content served to End Users through the Target Properties that is not provided by Company and/or Google (including the content of all Ads served via the Services).

Customer Partner” means for Target Properties, (i) the owner (if not Customer) of those Target Properties, (ii) the third party co-branding the Target Properties with Customer, or (iii) the third party for whom Customer is white labelling the Target Properties.

Data” means data derived from Customer’s use of the Services.

Demand Partner(s)” including but not limited to Google Ad Exchange, demand side platforms, ad exchanges, agencies, agency trading desks and ad networks.

Effective Date” has the meaning set out in the Order Form / Agreement.

End Users” means individual human end users of a Target Property.

GDPR” means, as applicable: (a) the EU GDPR; and/or (b) the UK GDPR. “EU GDPR” means 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, and repealing Directive 95/46/EC. “UK GDPR” means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force.

Google” shall mean Google Ireland Ltd. and/or any Affiliated company of Google Ireland Ltd..

Intellectual Property Rights” means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information and any other intellectual property or similar rights (registered or unregistered) throughout the world.

Order Form” means an order form, schedule or other agreement that is subject to these Terms and sets forth pricing and other terms with respect to a particular Service. All Order Forms incorporate and are governed by the terms and conditions contained herein.

Oraki Privacy Policy” means the Oraki privacy policy available on Oraki’s public facing website, the most current version of which is available at https://www.oraki.io/terms/privacy-policy/ (as updated or amended from time to time).

Personal Data” has the meaning given to it in the GDPR.

Personally Identifiable Information” means (in the Agreement and any policies incorporated by reference into the Agreement) information that could be used on its own to directly identify, contact or precisely locate an individual.

Policies” means (i) the Google Platforms Program Policies available at https://support.google.com/platformspolicy; (ii) the Google Ad Manager 360 Partner Guidelines available at https://support.google.com/admanager/answer/9059370; (iii) the Google EU User Consent Policy available at https://www.google.com/about/company/user-consent-policy.html (“EU User Consent Policy”) and; (iv) any other policy and implementation guidelines identified in an applicable Order Form / Agreement or provided by Company to Customer (in each case, as modified from time to time).

Customer Propertiesshall mean websites, mobile applications and/or other digital media properties accessible by the Company Services.

Service(s)” means the services and products set out in each Order Form / Agreement.

Service Fees” means the service, transaction, product and other fees set out in the Order Form(s) / Agreement or in an applicable user interface for a Service.

Service Specific Terms” means, for each Service, the additional terms and conditions that apply to such Service that are available at the link provided in the applicable Order Form for the Service.

Subcontractor” means a subcontractor, consultant, third-party service provider or agent engaged by either party (or a Client of such party) in connection with its use or provision of Services.

Tag” means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) that requests the delivery of an Ad or tracks an Ad impression or click.

Target Properties” means properties on which an Ad is served via the Services (i.e., web sites, consent-based email publications, approved software applications or other properties as approved by Company).

Tax” or “Taxes” means (without limitation) all taxes, duties, levies, imposts, withholdings, social security contributions, sales, use, excise, value-added, goods and services, consumption, other similar taxes or duties, deductions or amounts in the nature of or in respect of taxation.

 

2. The Parties’ Obligations; Prohibited Acts

2.1 Company will provide the applicable Services described in the Order Form(s) / Agreements entered into by Customer;

2.2. Customer will:

2.1.1 use the Services in compliance with all applicable Policies and the Oraki privacy policy (as such may be updated from time to time) and at all times Customer will bear the burden of proof in establishing such compliance. Customer shall abide by a privacy policy consistent with applicable laws and post such privacy policy on each web page of each Customer Property where data gathering for interest-based advertising occurs.  Such privacy policy shall include: (a) clear notice of Customer’s use of methods to collect, use and share user data, including Company’s and its Demand Partners’ methods; (b) a statement that data may be collected for interest-based advertising or cross-app advertising purposes on the Customer Property; (c) a description of the types of data, including personally identifiable information, precise location data, or personal directory data, that are collected for interest-based advertising or cross-app advertising purposes on the Customer Property; (d) an explanation of the purposes for which data is collected by, or will be transferred to, third parties; (e) a disclosure that statistical identification or other non-cookie technologies (such as eTags and web or browser cache) may be used by third parties on the Customer Property, including the fact that browser settings that block cookies may have no effect on such technologies; (f) a disclosure of the fact that data collected from a particular browser or device may be used with another computer or device that is linked to the browser or device on which such data was collected; and (g) a conspicuous link to, or description of how to access, an opt-out mechanism for interest-based advertising, cross-app advertising, statistical identification, and cross-device targeting;

2.1.2. be liable for its Clients’ acts and omissions in connection with Services provided under the Agreement;

2.1.3. be solely responsible for all use of Services (including, as applicable to the Services described in the Order Form(s), trafficking Ads, implementing Tags, utilisation of Third Party Data Provider Segments sourced by Customer soliciting Target Media, all inquiries relating to Ads, the content of all Ads, obtaining necessary rights and consents for using Data and other content or information provided to Company and/or Google, and the acts and omissions of all Customer Partners and Clients).

2.1.4. obtain all rights necessary to use, and necessary to permit Customer and/or Company and/or Google, as the case may be, to use the Data under the terms of the Order Form / Agreement, including from Customer Partners, Target Property owners (if not Customer) End Users and Clients;

2.1.5. use the Services in compliance with all applicable data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines, including, without limitation and as applicable, U.S. laws; the rules, codes and guidelines of the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI); and the EU General Data Protection Regulation (Regulation 2016/679) and further agrees to abide to any export laws, rules, regulations and sanctions programs, as well as applicable Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau and the Digital Advertising Alliance). Without derogating from the above, The EU Data Protection Addendum attached below as Exhibit A shall form part of this these Terms and If there is any conflict between any provision of these terms and the Exhibit, the terms of the Exhibit shall take precedence;

2.1.6. ensure that each of its Target Properties utilising a Service contains a conspicuous link to a privacy policy that (and advise its Clients and Customer Partners in writing that each of their web sites and Target Properties must contain a privacy policy that): (i) discloses (a) the usage of third-party technology; (b) the data collection and usage resulting from the Services; and (c) that third parties may be placing and reading cookies on End Users’ browsers, or using web beacons to collect information in the course of advertising being served on the web sites; (ii) includes information about End Users’ options for cookie management; and (iii) complies with all applicable privacy laws, rules and regulations;

2.1.7. use commercially reasonable endeavours to ensure that an End User is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the End User’s device in connection with the Services where providing such information or obtaining such consent is required by law.

2.2. Prohibited Acts.

Customer will not, and will not assist or knowingly permit any third party to:

2.2.1 use the Services to process Personally Identifiable Information;

2.2.2. pass information to Company and/or Google that could be used or recognise as Personally Identifiable Information;

2.2.3. misappropriate any part of a Service;

2.2.4. modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect to Services or any part of a Service (except to the extent that such prohibition is not permitted by law);

2.2.5. damage or tamper with any part of a Service;

2.2.6. knowingly breach any Service security measure; or

2.2.7. provide Company and/or Google any Ad that (x) when viewed or clicked on by an End User’s computer, causes such End User’s computer to download any software application, or (y) is illegal.

2.2.8 Customer shall not include or launch any service or Property on any of the Company Services if such is directed at U.S. children under 13 as contemplated by the Children’s Online Privacy Protection Law, as amended (“COPPA”), and Customer shall flag within the Company Services or inform the Company in writing prior to launching any of such Customer Services or Properties on any of the Company Services.  Customer shall not pass to the Company or its partners any personal information of children under 13 as defined under COPPA.

2.3 Customer shall maintain an ads.txt file on any domains it monetize with Company listing the valid supply paths for its programmatic inventory, including Company and any Demand Partners. Customer shall use commercially reasonable efforts to assure that only known valid supply path partners are listed in its ads.txt file. Ads.txt file and shall comply with the then-current ads.txt standard, as may be amended from time to time by the IAB tech lab.

2.4 Open Bidding Onboarding. Company may connect compliant Google Ad Manager Customers to Google Open Bidding Service (OB). Customer must update the ads.txt file provided by Company in order to connect. Customer acknowledges and agrees that:

2.4.1 By updating ads.txt file it gives its consent to receive Ads through Google Open Bidding Service and must comply Google’s relevant policies.

2.4.2 Neither Company nor any Company’s OB Partner shall not be required to serve Ads on Customer’s inventory and shall not be responsible or liable for any dispute between Google and Customer.

2.4.3 Neither party shall have any right, power or authority to bind the other or to assume, create, or incur any expenses, liability or obligation, express or implied, on behalf of the other.

2.4.4 Customer acknowledges and agrees that Company is not the principal or agent of any demand partner, unless expressly designated as such by Company in writing.

 

3. Payments

3.1 For each applicable Service, Company will invoice Customer for Service Fees in the month following the calendar month in which the Service Fees are incurred unless there is an unforeseen circumstance where billing may be delayed. Customer will pay Company the Service Fees (other than any Service Fees disputed in good faith) and other invoiced amounts (if any) by the payment due date set forth in Payment Terms (“Payment Due Date”), in the currency and at the exchange rate (if any) specified in the applicable Order Form and by electronic transfer to the account notified to it by Company or such other means expressly agreed to in writing by the parties. Unless otherwise expressly agreed, Service Fees payable under an Order Form are additional to Service Fees payable under other Order Forms.

3.2 Upon 30 days’ prior notice to Customer, Company may, in its sole discretion if Company and/or Google determines that there is any credit risk associated with Customer, require Customer to prepay Company an amount equal to not more than 2 months of reasonably anticipated or actual Service Fees under the applicable Order Form.

3.3 Company may charge interest at a rate of 8% per year above the base rate of Barclays Bank PLC, as updated from time to time, from the date payment is due until the date of actual payment, whether before or after judgment, on any Service Fees which are overdue (other than Service Fees disputed in good faith). Customer will pay reasonable expenses and legal fees Company incurs in collecting late payments not disputed in good faith.

3.4 The Service Fees are exclusive of taxes. Notwithstanding any legal obligation on Customer to withhold any taxes from its payments to Company, Customer agrees to pay to Company a net amount equal to the full amount invoiced. Customer will pay all taxes and other government charges related to or arising from: (i) use of the Services, and (ii) Customer’s obligations under the Agreement (in each case except for taxes on Company’s net income).

3.5 If Customer fails to pay Service Fees invoiced by Company (other than Service Fees disputed in good faith) within 10 days following the Payment Due Date, Company may suspend each applicable Service (for which the Service Fees are overdue) after 10 days’ notice to Customer.

3.6 Notwithstanding any other section in this agreement and/or in the terms and conditions that apply to this agreement, Oraki may suspend any payment due to Customer if it receives notice of any Invalid Activity of Customer from Google and/or Google has blocked Customer and/or restricted and/or suspended Customer and/or Google has suspended any payment due to Customer and/or Oraki has reason to suspect, at its sole discretion, Invalid Activity, as defined below, of Customer. Invalid Activity shall mean any activity as determined by Google at its sole discretion, whereby Google shall or shall be allowed to, debit, delay, withhold, set off and/or suspend payments to Oraki on behalf of Customer. Without derogating form the generality of the above, Invalid Activity may mean spam, invalid clicks, invalid impressions and so on. Oraki shall provide notice to Customer of any such suspension.

In the event Google shall debit, withhold, suspend, set off, delay and/or deduct any payment to Oraki due to Customer (“Debited Payment”), Oraki shall be entitled, at its sole discretion – (a) to immediately suspend payments to Customer; (b) deduct, offset and/or debit any Debited Payment, if such shall be deducted by Google from payments due to Oraki regarding Customer and/or its activity; (c) receive from Customer immediately upon demand, any payment paid to Customer in excess, taking into consideration the Debited Payment; (d) take any additional action to assure that any payment to Customer is adjusted to reflect the Debited Payment. Customer hereby undertakes to indemnify Oraki and hold it harmless, from any cost, expense and/or payment that Oraki may incur due to Customer activity, including as shall be determined by Google as aforesaid. It is hereby clarified that this undertaking is a material condition to this Agreement. Customer shall provide additional securities in the form of a deposit, charge or personal guarantee to Oraki, to assure the fulfilment of such undertaking if not covered immediately, all regarding Invalid Activity of Customer and/or potential Invalid Activity, as determined by Google and/or Oraki. The books and records of Oraki shall be deemed conclusive evidence of any such expense, cost and/or payment.

This section above shall survive termination of the Agreement.

3.7 In addition to other rights and remedies Company may have, Company may offset the Service Fees payable by Customer under the Agreement and/or any other expenses and/or payments payable by Customer, against any payment obligations to Customer that Company may incur under the Order Form / Agreement and/or funds received by the Company from third parties for the Customer.

This section above shall survive termination of the Agreement.

3.8 Any account and related billing and payment information which Customer provides to Company may be shared with third parties solely for the purposes of performing credit checks, effecting payment to Company or servicing Customer’s account.

3.9 If applicable, Customer will not exceed its aggregate credit line as determined by Company in its sole discretion (and made available if requested) and Company will not be obligated to provide any Services in excess of such credit line. Company reserves the right to change or retract any credit line at any time in its sole discretion.

 

4. Intellectual Property

Except to the extent expressly stated otherwise in the Agreement, neither party will acquire any right, title or interest in any Intellectual Property Rights owned or licensed by the other party.

 

5. Brand Features

Company and/or Google may use Customer’s Brand Features as necessary for Company and/or Google to provide the Services (e.g., if Customer makes its inventory available on a transparent basis via the Services, Google may display Customer’s Brand Features to advertisers). Other than the limited licence set forth in the preceding sentence, Company and/or Google will not use Customer’s Brand Features (including for marketing and promotional purposes) without Customer’s prior written approval.

 

6. Confidentiality

Each of the Company and Customer shall treat as proprietary and shall maintain in strict confidence all Confidential Information of the other party and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use such Confidential Information other than in furtherance of its obligations hereunder.  “Confidential Information” shall mean any information of the disclosing party which is, or should reasonably be understood to be, confidential or proprietary to the disclosing party or its client, including, but not limited to, information disclosed between parties, either directly or indirectly, in writing, drawing, orally, or electronically: (i) related to technical know-how and technological innovations; (ii) related to operations, financial status, or sales and business plans and strategies; (iii) Intellectual Property  (as defined below).  Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can demonstrate with written documentation: (a) is known to the receiving party at the time of the disclosure; (b) has become publicly known through no wrongful act of the receiving party; (c) has rightfully been received from a third-party which the disclosing party has authorized to make such disclosures; or (d) was disclosed pursuant to a court order or similar governmental authority, provided, however, that the receiving party shall provide prompt notice of such order to the disclosing party to enable the disclosing party to act to prevent or restrict the ordered disclosure. The terms of this Agreement shall be deemed Confidential Information of Oraki. For purposes of clarification, Data and the terms and conditions of the Agreement are considered Confidential Information under the Agreement. Notwithstanding anything to the contrary in the Agreement and subject to any applicable law, Company may obtain from Customers and potential Customers, and pass to Google, information that Google could use or recognize as personally identifiable information for the sole purpose of enabling Company to comply with its reporting obligations hereunder and for Google to contact Customers in accordance with this Agreement.

 

7. Representations and Warranties

Each party warrants that it will use reasonable care and skill in complying with its obligations under the Agreement. Customer represents and warrants that it has all necessary rights and authority to (i) enter into the Terms and each Order Form, (ii) perform its obligations hereunder and thereunder and (iii) act on behalf of any Clients and Company Partners.

 

8. Disclaimers

No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Company and/or Google under the Agreement unless expressly set out in the Agreement. Subject to clause 9.1, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).

 

9. Beta Features

Subject to Clause 11.1, neither Google nor Oraki will have any liability under the Agreement (including any indemnification obligations) arising out of or related to any use of Beta Features by Customer, its Affiliates, or its or their Clients or Customer Partners. Any use of Beta Features will be solely at Customer’s own risk and may be subject to additional requirements as specified by Google. Company and/or Google are not obligated to provide support for Beta Features and Company and/or Google may, at its sole discretion, cease providing Beta Features as part of any Services.

 

10. Indemnification

110.1. Company will indemnify Customer its officers, directors, shareholders, Affiliates, agents, successors and assigns against all damages and costs finally awarded against Customer in relation to a claim from a third party that the Services infringes any trademark, trade secret, copyright, or patent of that third party. Notwithstanding the foregoing, Oraki will have no obligation with respect to any infringement Claim based upon (i) any use of the Services not in accordance with this Agreement, (ii) any use of the Services in combination with other products, equipment, or software not supplied by Oraki, or (iii) any modification of the Services by any person other than Oraki or its authorized agents or subcontractors (iv)any infringement of any third party right by Google and/or any Affiliate thereto.

10.2. Customer will indemnify Company, Google its officers, directors, shareholders, Affiliates, agents, successors and assigns (“Company Indemnified parties”) against:

10.2.1 all damages and costs awarded against Company Indemnified parties in relation to a claim by an unaffiliated third party before a court or government tribunal: (i) any violation by Customer of applicable privacy laws or Customer’s breach of Sections 7.1 (Privacy Policy) and 7.2 (Compliance with Privacy); (ii) any violation of any Customer Property of applicable laws or the inclusion of any Prohibited Content on any Publisher Property; or (iii) infringement of any intellectual property right of a third-party, or misappropriation of any trade secret, by Publisher or its clients, claims brought by any Customer Partner against Company Indemnified parties relating to the implementation or display of Ads on a Customer Partner Target Property or Company’s provision of the Service(s) for such Customer Partner;

10.2.2 Settlement costs in relation to that claim;

10.2.3 reasonable legal fees and disbursements necessarily incurred by against Company Indemnified parties in relation to that claim; and

10.2.4 reasonable costs necessarily incurred by against Company Indemnified parties in complying with Clause 10.3.

10.3. Each party will:

10.3.1. notify the other such claim (each a “Third Party Claim”) promptly after becoming aware of it;

10.3.2. provide the other with reasonable information, assistance and cooperation in responding to and, where applicable, defending that Third Party Claim; and

10.3.3. give the other primary control over the defence and settlement of that Third Party Claim. The indemnified party may join in the defence with counsel of its choice at its own expense.

10.4. The indemnifying party may enter into a settlement only if it: (a) involves only the payment of money damages by the indemnifying party; and (b) includes a complete release of the indemnified party. Any other settlement will be subject to the written consent of the indemnified party (not to be unreasonably withheld or delayed).

10.5. The indemnifying party will have no obligation or liability under this clause 8 in relation to any Third Party Claim arising from:

10.5.1. the indemnified party’s non-compliance with the Agreement;

10.5.2 (where Company and/or Google is the indemnifying party) infringement of any third party’s trademark, trade secret, copyright, or U.S. patent arising from the provision or use of any Customer Materials; or

10.5.3. (where Company and/or Google is the indemnifying party) the combination, operation or use by Customer or any Affiliate Customer of any Services with any product or service not provided by Google.

10.6. If any Services become, or in Google’s reasonable opinion are likely to become, the subject of an intellectual property infringement claim, Company will promptly notify Customer and, at Company’s sole option and expense, may: (a) procure the right to continue providing the Services as contemplated by the Agreement; (b) modify the Services to render them non-infringing (if modification does not adversely affect use of the Services); or (c) replace the Services with functionally equivalent, non-infringing services. If none of the foregoing options is commercially practicable, then each party will have the right to terminate each affected Order Form.

10.7. Notwithstanding anything to the contrary herein, the indemnification obligations of each party do not apply to the extent that a Claim arises out of the other party’s violation of this Agreement.

This clause 8 states the parties’ entire liability and exclusive remedy with respect to infringement of a third party’s intellectual property rights.

 

11. Limitation of Liability

11.1. Nothing in the Agreement will exclude or limit either party’s liability:

11.1.1. for death or personal injury resulting from the negligence of either party or their servants, agents or employees;

11.1.2. for fraud or fraudulent misrepresentation;

11.1.3. for payment of sums properly due and owing to the other in the course of normal performance of the Agreement; or

11.1.4. For confidentiality, indemnification and payment obligations as stated in an Order Form / Agreement.

11.1.5. for any other liability that may not otherwise lawfully be excluded or limited.

11.2. Subject to Clause 9 (Beta Features), nothing in the Agreement will exclude or limit either party’s liability under the indemnities given under the Agreement, including the indemnities given in Clause 10 (Indemnification) above.

11.3 Subject to Clauses 11.1, Company and/or Google will not have any obligations or liability under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise and including under the indemnities in Clause 10 (Indemnification)) in relation to: (a) the content of Ads; or (b) any websites or content to which such Ads may link. Nor shall Oraki be liable for the acts or omissions of its Demand Partners, Customer’s Demand Partners or clients, Customer’s activities with respect to other customers who use the Services, or any third party service providers of Oraki or Customer.

11.4. Subject to clauses 11.1, 11.2 and 11.3, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise) for any:

ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF USE OR LOST DATA) OF THE OTHER PARTY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES suffered or incurred by the other party (whether or not those losses were within the contemplation of the parties at the date of the Agreement).

11.5. Subject to clauses 11.1, 11.2, 11.3 and 11.4, Company’s aggregate liability (whether in contract, tort (including negligence) or otherwise) for all Claims arising in a one-year period starting on the Effective Date or an anniversary of the Effective Date (a “Contract Year”) is limited to Company’s fees received by Company under the Agreement within the 6 months prior to the event giving rise to such liability.

For the purposes of this clause 11.5, “Claim” means any claim, demand, proceeding, action or complaint of any nature or kind under or in connection with this Agreement.

 

12. Term; Termination; and Suspension

12.3.1 Either party may terminate an Order Form / Agreement upon notice with immediate effect if the other party is in material breach of these Oraki Platform Terms and Conditions or the applicable Order Form / Agreement (which includes any breach by Customer of Clauses 2.1 or 2.2 of these Terms): (i) where the breach is incapable of remedy; (ii) where the breach is capable of remedy and the party in breach fails to remedy that breach within 30 days after receiving notice from the other party; or; (iii) more than twice even if the previous breaches were remedied.

12.3.2. Company may terminate the Order Form / Agreement immediately upon notice if child sexual abuse imagery is displayed on any Target Property.

12.3.3. If Company is unable to provide a Service due to any changes in law or regulations, Company may terminate and/or suspend the applicable Service upon notice to Customer. If the Company is unable to provide the Service for any reason whatsoever, including an occurrence of bankruptcy proceedings or a discontinuation of Company’s business, and in such event Google elects not to assume the terms of such Agreement; then such Customer will enter into Google’s standard agreement(s) for the Reseller Services for a period of no less than the balance of the term of such Customer Agreement, the pricing terms for which will be negotiated in good faith at the time of such transition.

12.3.4. Company may terminate the Order Form / Agreement and any related Order Forms / Agreements immediately in the event of discontinuation in the relationship, material change in business model, material change in any product, feature or resale term between Company and Google. In such event Company will not be obligated to pay any compensation to Customer.

12.3.5 Upon the expiration or termination of the Agreement for any reason: (i) all rights and licences granted by each party will cease immediately; and (ii) if requested, each party will use commercially reasonable endeavours to promptly return to the other party, or destroy and certify the destruction of, all Confidential Information (excluding Data) disclosed to it by the other party, and  (iii) upon termination, Company shall not demand from Customer fees or other payments amounts solely due to such termination of the Agreement or assigning, novating or otherwise transferring the Agreement and/or the provision of services to Google. The above shall not restrict Company from receiving any fees due it that have been agreed in the Agreement.

12.4. Suspension. If Customer or a Customer Partner is in violation (or if Company and/or Google reasonably suspects a violation) of the Terms, (including Google Terms, Order form and/or Agreement), then Company may immediately suspend or terminate Customer and/or Customer Partner‘s use of all or any part of the applicable Services.

12.5. Notwithstanding anything stated in any other section of this Agreement or Order Form regarding payment terms, upon termination of the Agreement, any payment (other than payments disputed in good faith) shall become due, and must be paid immediately to Company.

 

13. Miscellaneous

13.1 Assignment. Customer may not assign, pledge or transfer in any other way any of its rights or obligations under the Agreement without the prior written consent of the Company. However, the Company shall have the right to assign the Agreement and/or its rights and obligations under this Agreement to any third party and specifically to Google, upon providing the Customer with prior written notice and provided that any such transfer does not have an adverse material effect on the Customer.

13.2 Change of Control. If a Customer experiences a change of control (for example, through a stock purchase or sale, merger, by operation of law, or other form of corporate transaction): (i) the Customer will give written notice to the Company within 30 days after the change of control; and (ii) the Company may immediately terminate the Agreement any time between the change of control and 30 days after it receives that written notice.

13.3 Entire Agreement. Subject to Clause 11.1.2, the Order Form / Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into the Order Form / Agreement neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.

13.4. Force Majeure. Excluding payment obligations, neither Party will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.

13.5 Notices. All notices of termination or breach must be in English, in writing and addressed to the other party. The address for such notices to the Company is [email protected]. All other notices (including notices of non-renewal) must be in English, in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).

13.6. No Agency. The Agreement does not create any agency, partnership or joint venture between the parties.

13.7. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

13.8. No Third Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.

13.9 Severability. If any term (or part of a term) of the Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.

13.10. Approvals. The parties agree that whenever the Agreement calls for written request or written approval to be provided by either party, unless otherwise expressly stated that email is not acceptable, such request or approval may be provided via email.

13.11. Equitable Relief. Nothing in the Agreement will limit a party’s ability to seek equitable relief; except that Customer will not seek, in a proceeding filed during the term or for one year after the term, an injunction or an exclusion order of any of the Services or any portion of the Services based on patent infringement.

13.12. The parties may execute this Agreement and any Order Form / Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.

13.13. Survival. Notwithstanding termination or expiration of the Agreement, any provisions of the Agreement that by their nature are intended to survive, will survive termination including, but not limited to: 3 (Payments), 4 (Intellectual Property), 6 (Confidentiality), 8 (Disclaimers), 9 (Beta Features), 10 (Indemnification), 11 (Limitation of Liability), and 13 (Miscellaneous).

13.14 No reselling unless expressly permitted. Except as expressly set forth in an Order Form / Agreement, Customer may not resell any of the Services.

13.15 Conflicting Languages. If the Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will govern.

 

 Exhibit A – Oraki – EU Data Processing Addendum

This Data Protection Addendum (“Addendum”) is hereby agreed and entered by and between Oraki Digitial Ltd. (“Oraki”) and the Customer (“Publisher”), and forms part of all agreements between the parties relating to the subject matter of this Addendum (each an “Agreement”).

Oraki is made up of different legal entities. This Addendum is issued on behalf of the Oraki Group so when mentioned” Oraki”, “we”, “us” or “our” in this Addendum, we are referring to the relevant company in the Oraki Group responsible for processing your data. Oraki Group companies including Oraki Digital Ltd., TOTAL MEDİA DİJİTAL REKLAM TEKNOLOJİLERİ  EHIZ. TİC. A.Ş and any other group entity which may be formed under Oraki group in the future.

The terms in this Addendum shall only apply to the extent Oraki collects or otherwise processes Data (including Personal Data) protected or otherwise regulated by EU Data Protection Law. Capitalized terms used in this Addendum shall have the meaning given to them in the main body of the Agreement unless otherwise defined in this Addendum.  

 

IT IS AGREED:

 

  1.       Definitions

“Controller” means the entity that determines the purposes and means of the processing of Personal Data.

 

Data” has the meaning given to it in Section 2 of this Addendum.

 

Demand Partners” means Oraki’s media buying clients, including but not limited to demand side platforms, ad exchanges, agencies, agency trading desks and ad networks.

 

EEA” means for the purposes of this Addendum, the European Economic Area which will be deemed to include Switzerland and the United Kingdom;

 

EU Data Protection Law” means (i) the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national laws made under or pursuant to (i) or (ii) (in each case, as superseded, amended or replaced).

 

Personal Data” means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable EU Data Protection Law.

 

Privacy Requirements” means all applicable international, federal, national and state data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines that apply to the processing of Data (including Personal Data) that is protected by EU Data Protection Law, as applicable to Publisher, Oraki and its Demand Partners , including without limitation: (i) the rules, codes and guidelines of the European Interactive Digital Advertising Alliance (EDAA) and the Network Advertising Initiative (NAI); and (iii) EU Data Protection Law (in each case, as amended, superseded or replaced).

 

“Privacy Shield” means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017, respectively.

 

Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016 (as may be amended, superseded or replaced).

 

Publisher Property” has the meaning given to it in the Agreement or, if not set forth in the Agreement, means the websites, mobile applications and/or other digital media properties owned or operated by the Publisher and accessible through the Oraki Services or via which Personal Data used in connection with the Oraki Services is collected.

 

Oraki Services” has the meaning given to it in the Agreement or if not set forth in the Agreement, means the ad services provided by Oraki to Publisher in accordance with and as described in the Agreement.

 

Tracking Technologies” means technologies used to store or gain access to data stored on a user’s device, including (as applicable), cookies, mobile SDKs, browser cache, unique identifiers, web beacons, pixels and/or similar tracking technologies.

 

Oraki Privacy Policy” means the Oraki privacy policy available on Oraki’s public facing website, the most current version of which is available at https://www.oraki.io/terms/privacy-policy/ (as updated or amended from time to time).

 

data subject“, “processing” (and “process“) shall have the meanings given to them in EU Data Protection Law.

 

  1.     Scope of processing:   Parties agree that unless otherwise agreed between the parties: (i) in connection with the Oraki Services, Oraki may collect or otherwise receive data (including Personal Data) about or related to end users of the Publisher Properties as such data is more particularly described in the Oraki Privacy Policy (collectively, “Data”); and (ii) Oraki and its Demand Partners use Tracking Technologies in order to collect certain Data. The parties agree that Oraki (and its Demand Partners) may process the Data for the purposes contemplated by the Agreement and for any other purposes described in the Oraki Privacy Policy (“Permitted Purposes”).
  2.     Relationship of the parties:  The parties acknowledge that to the extent the Data contains Personal Data, each party shall process such data as a separate and independent Controller and in Oraki’s case, only for the Permitted Purposes.
  3.     Requesting Consent: Neither Oraki nor its Demand Partners has a direct relationship with any data subject visiting the Publisher Properties or viewing ads delivered to the Publisher Properties through the Oraki Services. Accordingly, in each case where consent is the lawful basis for processing Personal Data and/or required for use of Tracking Technologies pursuant to the Privacy Requirements, Publisher agrees that it shall be responsible for obtaining all necessary consents from the relevant data subjects on behalf of Oraki and applicable Demand Partners to lawfully permit Oraki and all applicable Demand Partners to: (i) collect, process and share Data via the Oraki Services for Permitted Purposes; and (ii) use Tracking Technologies in order to collect Data in connection with the performance of the Oraki Services.  Publisher represents and warrants that it shall, at all times maintain and make operational on Publisher Properties a mechanism for obtaining and recording such consent and that enables such consent to be withdrawn, in accordance with applicable Privacy Requirements.
  4.     Notice Requirements:  Publisher agrees that it is responsible for ensuring that all data subjects are appropriately notified about the data collection and use practices taking place on the Publisher Properties through the Oraki Services. Publisher represents and warrants that it shall conspicuously post, maintain and abide by a publicly accessible privacy notice within all Publisher Properties from which the Data is collected that satisfies the requirements of the Privacy Requirements and the Agreement (including this Addendum). Without prejudice to the generality of the foregoing, such notice shall at a minimum include the following information: (i) a statement that data may be collected for advertising purposes; (ii) a description of the type of Personal Data collected by Oraki and its Demand Partners and the purposes of processing thereof, including for delivering ads across the Publisher Properties over time; (iii) a description of the categories of individuals who will have access to the Personal Data; (iv) the identity of the Controller(s) of the Data; (v)  a conspicuous link to or description of how to access a relevant choice mechanism; and/or (vi) any other information required to comply with the information and transparency requirements of applicable Privacy Requirements. The Oraki Privacy Policy, its explanation of the Data Oraki collects and how the Oraki Services use it, may assist you in complying with your notification obligations under this Addendum.
  5.     Prohibited Data Sharing: Publisher shall not include or launch any Publisher Property on any of the Oraki Services if such Publisher Property is directed at or likely to be accessed by any data subject that is deemed a child under applicable Privacy Requirements of the country in which the child resides, and Publisher shall flag within the Oraki Services or inform Oraki in writing prior to launching any of such Publisher Properties on any of the Oraki Services; and/or pass to Oraki or its Demand Partners any Personal Data of any data subject that is deemed a child under applicable EU Data Protection Law.
  6.     Noncompliance: If Publisher is unable to comply with its consent and notice obligations under the Agreement (including this Addendum) in respect of the Data, Publisher shall promptly notify Oraki. 
  7.     Co-operation and Data Subject Rights: The parties shall, on request, provide each other with all reasonable and timely assistance (at their own expense) and co-operation to enable the other party to comply with its obligations under the Privacy Requirements, including in order to enable the other party to respond to: (i) any request from a data subject to exercise any of its rights under EU Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) in relation to the Data; and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data (“Correspondence”).  Each party shall promptly inform the other if it receives any Correspondence directly from a data subject in relation to the Data. Subject to obligations of confidentiality and polices on disclosure of information, where a party has a concern that the other party has not complied with this Addendum, the parties agree to exchange information to ascertain the cause of such non-compliance and take reasonable steps to remediate.
  8.     International Transfers: To the extent that Oraki processes (or causes to be processed) any Personal Data protected by EU Data Protection Law and/or originating from the EEA (including the United Kingdom) and/or Switzerland (“EEA Personal Data”) in a country outside of the EEA and/or Switzerland (as applicable), it shall first take all such measures as are necessary to ensure an adequate level of protection for such EEA Personal Data in accordance with the requirements of EU Data Protection Law.  For these purposes, the parties acknowledge and agree that Oraki shall provide adequate protection for any EEA Personal Data by virtue of Oraki having self-certified its compliance with the Privacy Shield Framework. Oraki agrees to protect EEA Personal Data in accordance with the requirements of the Privacy Shield Principles.  In the event Oraki’s Privacy Shield certification lapses or is deemed invalid, the parties shall promptly, and in any event as soon as is possible, work together in good faith to put in place an alternative transfer mechanism to ensure appropriate safeguards for the EEA Personal Data in accordance with the Privacy Requirements.
  9.   Security: Both parties shall implement appropriate technical and organizational measures to protect the copy of the Data in their possession or control (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data.
  10.     General: This Exhibit shall survive termination or expiry of the Agreement.  Upon termination or expiry of the Agreement Oraki may continue to process the Data provided that such processing complies with the requirements of this Exhibit and the Privacy Requirements. 

 

 

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