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AdGem Publisher Terms & Conditions

These Publisher Terms and Conditions (the “Agreement”) are between AdGem LLC (“AdGem”) and you, a developer of mobile applications, or, if you represent an entity or other organization, that entity or organization (in either case, “you”, “your”, or “Publisher”).

AdGem provides a mobile application marketing advertising network platform (the “AdGem Platform”), which may be accessed through the website located at https://adgem.com/ and through various other websites operated by AdGem (each an “AdGem Website“) or using mobile and online applications provided by and on behalf of AdGem (each, an “AdGem Application,” and each AdGem Website and AdGem Application treated as a part of the “AdGem Platform” for purposes of this Agreement).

The AdGem Platform provides users the ability to access certain software (the AdGem SDK), for serving advertisements, interactive features, or advertising content (“Advertisements”) to users (“End Users”) of Publisher’s proprietary mobile application (“Publisher Application”) (collectively, the delivery of Advertisements by AdGem through the Publisher Application, and any accompanying functionality or features, in accordance with this Agreement shall be referred to as the “Services”).

You represent and warrant to AdGem that you are the owner or licensed operator of the Publisher Application, and wish that AdGem provide you with Advertisements for the purpose of displaying such Advertisements through the Publisher Application, and in return AdGem may provide you with payment related to the display of such Advertisements (the “Payment”), all subject to and in accordance with the terms and conditions set forth in this Agreement. AdGem is willing to provide you with a license to access or use the Services as set forth in this Agreement only if you agree to be bound by the terms and conditions of this Agreement.

Certain content or features on the AdGem Platform or other services offered by AdGem may have different terms and conditions that may apply to them or may require you to agree to additional terms and conditions (“Additional Terms”) in order to access or use them. If there is a conflict between the terms of this Agreement and any Additional Terms, the Additional Terms will prevail.

Additional Terms include the AdGem SDK Licensing Agreement, located at [https://docs.adgem.com/publisher-support/sdk-license-agreement/(https://docs.adgem.com/publisher-support/sdk-license-agreement/), which is hereby incorporated upon the download or use of any part of the AdGem SDK by the party or affiliates, partners, owners or related entities of the party executing this Agreement with AdGem. If you do not, cannot or are not authorized to agree to the terms of the AdGem SDK Licensing Agreement, you must not download or use the AdGem SDK. If you plan to utilize the AdGem SDK, please review the AdGem SDK Licensing Agreement in full before accepting these Terms.

Please carefully read the terms and conditions of this Agreement. By clicking “I agree with the terms and conditions” button, or by otherwise downloading, accessing, installing, or using the Services, you acknowledge that you have read this Agreement and agree to be bound by the terms and conditions of this Agreement. If you do not agree to be bound by the terms and conditions of this Agreement, AdGem is not willing to grant you any rights or licenses to access or use the Services, and you may not download, access, install, or use the Services. This Agreement will be entered into as of the date you first download, access, install, or use the Services (the “Effective Date”).

Although not a part of this Agreement, to understand how we may process User personal information and Users’ rights with regard to their personal information, please view the AdGem Privacy Policy, located at https://docs.adgem.com/publisher-support/privacy-policy/ (“Privacy Policy”).

1. Definitions. Capitalized terms used in this Agreement will have the definitions given in this Agreement.

2. Modifications. AdGem reserves the right, at any time, to modify the AdGem Platform or any Services, with or without notice to you, by making those modifications available on the AdGem Platform. AdGem also reserves the right, at any time, to modify this Agreement. AdGem will inform you of the presence of any changes to this Agreement by posting those changes on the AdGem Platform or by providing you with notice through the AdGem Platform. Any modifications will be effective immediately upon posting on the AdGem Platform or delivery of such notice through the AdGem Platform. You may terminate this Agreement as set forth below if you object to any such modifications. However, you will be deemed to have agreed to any and all modifications through your continued use of the AdGem Platform or any Services following such notice or posting of the updated Agreement.

3. Account.

3.1 Users. Access to and use of the Services may require that you establish an account (an “Account”) on the AdGem Platform. Approval of your request to establish an Account will be at the sole discretion of AdGem. If you are an organization, you may authorize designated employees within your organization to use and access Services on your behalf through your Account (you and each such individual, as applicable, a “User” of your Account). If you are an individual, then you may use and access Services through your Account as the sole User of the Account. Each user identification and password for your Account (each, “Account ID”) is personal in nature and may be used only by you or, as applicable, the User to whom the Account ID is issued.

3.2 Registration Information. In connection with establishing an Account, you will be asked to submit certain information about yourself and, as applicable, your organization (“Registration Information”). You agree that: (a) all such information you provide will be accurate, complete, and current; (b) you will maintain and promptly update all such information to keep it accurate, complete, and current; and (c) you will not provide any information belonging to another person or organization with the intent to impersonate that person or organization. Before posting any Registration Information of Users associated with your Account, you are responsible for obtaining any and all consents or authorizations required by any applicable law, rules or regulations (collectively “Laws”) to authorize the sharing of their Registration Information, including their personal information, on the AdGem Platform.

3.3 Responsibilities. You are solely responsible for all access to and use of your Account (whether authorized or unauthorized), including all Services accessed through your Account. AdGem may deem any actions taken through your Account as authorized by you. You are responsible for compliance, and the compliance of any other Users of your Account, with this Agreement. You will ensure the security and confidentiality of each Account ID and will notify AdGem immediately if any Account ID is lost, stolen, or otherwise compromised. You acknowledge that you are fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified, or shared through the use of each Account ID (whether lawful or unlawful). You acknowledge that any orders made or other transactions completed through your Account will be deemed to have been lawfully completed by you. In no event will AdGem be liable for the foregoing obligations or the failure by you to fulfill such obligations.

3.4 Account Authority. If you are an organization, then the individual who establishes your Account (the “Account Authority”) will have control over your Account. If you are an individual, then you will be the Account Authority for your Account, unless you designate a different Account Authority as specified below. AdGem may deem the Account Authority to have full authority for all decisions relating to your Account, including: (a) addition or removal of Users; (b) permissions to access your Account; (c) disputes regarding your Account; (d) notices and other communications relating to your Account; and any other decisions that may be required regarding your Account. There must be one and only one Account Authority for each Account at all times. The initial Account Authority must be designated in the initial request to establish an Account. If an initial Account Authority is not designated, the individual requesting to establish an Account shall be deemed the initial Account Authority for that Account. The Account Authority may be changed: (i) by an email sent to AdGem from the registered email address of the current Account Authority; (ii) by bona fide legal written notice provided to AdGem by one of your corporate officers; or (iii) as separately directed and acknowledged by AdGem. It is your responsibility to properly designate a new Account Authority whenever appropriate. In the event of a dispute where multiple persons claim to be the rightful Account Authority, AdGem reserves the right, at its sole discretion, to: (1) suspend all access to your Account until an Account Authority is properly designated to AdGem’s sole satisfaction; or (2) terminate your Account and delete your Registration Information.

4. Services. Subject to the terms and conditions of this Agreement, AdGem grants to you a non-exclusive, non-sublicensable, non-transferable, limited license to access and use the Services solely to display Advertisements on a Publisher Application that is within your control and responsibility. AdGem may, in our sole discretion, at any time: (1) determine the scope of the Services, including, the Advertisements that are available to you; and (2) modify, replace, or make any other changes to, or discontinue, the Service (or any part thereof). AdGem does not have any obligation to monitor any Advertisements which are available as part of the Services. You shall display the Advertisements on the Publisher Application according to the terms of this Agreement, including any placement requirements and technical specifications provided by AdGem, to enable proper display of such Advertisements. You shall not add, modify, alter, or delete content, text, or appearance of the Advertisement without AdGem’s prior written approval.

5. Advertisements. The AdGem Platform permits you to access certain Advertisements through the Services. Your access to and utilization of the Advertisements may be governed by the terms of Additional Terms you have entered into with AdGem regarding the Advertisements (whether in connection with receiving access to the Advertisements or Services or otherwise). If you have not entered into any such separate agreement with AdGem regarding the Advertisements, you receive a non-exclusive, non-transferable, non-sublicensable, limited license to access and view the Advertisements solely through the Services using the AdGem Platform. If you would like to utilize the Advertisements in a manner that is not expressly granted in this Section, you must enter into additional terms with AdGem providing you with those rights.

6. Marketing. You agree that AdGem may: (1) feature the Publisher Application in different marketing collateral and as part of promotional campaigns, including newsletters, case studies and press releases; and (2) identify you as a user of the Services. For that purpose, you agree to grant us a limited, worldwide, non-sublicensable, non-exclusive license to use your trademarks, trade names, and associated logos (“Publisher Marks”) solely to engage in the marketing and promotional activities set forth herein. All rights which are not expressly granted herein are reserved by you. We shall not make any use of the Publisher Marks, in whole or in part, in any manner that is not expressly permitted under this Agreement or without your written consent.

7. Ownership.

7.1 AdGem Proprietary Rights. The AdGem Platform, Services, and Advertisements may be utilized and accessed by Publisher solely as expressly set forth in this Agreement. As between the parties, AdGem and its third party providers retain all right, title, and interest in and to the AdGem Platform, Services, and Advertisements, and all modifications, enhancements, improvements, updates, upgrades, or new versions thereof or derived therefrom, and all worldwide IPR therein or relating thereto. All rights in and to the foregoing not expressly granted hereunder are reserved by AdGem and its third party providers. The AdGem name and logo, and all names and logos displayed on the AdGem Platform, through the Services, or in any Advertisements, are trademarks or service marks of AdGem and its advertisers or third party providers (collectively “AdGem Marks”). Except for your rights to use the AdGem Platform, Services, and Advertisements under this Agreement, you are granted no right or license to use any such AdGem Marks. Any use of such trademarks or service marks without AdGem’s express written consent is strictly prohibited.

7.2 Third Party Software. The Services may include software owned by third parties (“Third Party Software”). You agree that your rights as to Third Party Software are subject to the terms of any additional third party licenses that may accompany or otherwise be provided in connection with the Third Party Software (“Third Party Licenses”). You further agree that AdGem does not own or control such Third Party Software subject to Third Party Licenses, and such Third party Software is not subject to any of the warranties, service commitments, or other obligations with respect to Platform under this Agreement. Any Third Party Software not subject to a Third Party License is subject to the terms of this Agreement and the owners of any such Third Party Software are third party beneficiaries of this Agreement.

7.3 Publisher Proprietary Rights. The Publisher Application and Publisher Marks may be utilized and accessed by AdGem solely as set forth in this Agreement. Except for those portions that are owned by AdGem as described in Sections 7.1 and 7.2, you and your third party providers (if any) retain all right, title and interest in and to the Publisher Application and Publisher Marks, and all modifications, enhancements, improvements, updates, upgrades, or new versions thereof or derived therefrom, and all worldwide IPR therein or relating thereto. All rights in and to the foregoing not expressly granted hereunder are reserved by you and your third party providers (if any).

7.4 No Support or Maintenance. AdGem is under no obligation to provide to you with any updates, upgrades, new versions, or new releases (collectively, “Updates”) of or to the Services, to correct any defects or errors in the Services, or to otherwise provide support or maintenance for the Services. Any Update of or to the Services provided by AdGem will be treated as part of the “Services” for purposes of this Agreement. Upon receipt of any such Update, you must discontinue your use of any prior version of the Software.

7.5 IPR. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.

8. Agreement. You will not and will not permit any User or any third party to: (1) obtain or attempt to obtain any data, information or content from the Services that have not been intentionally made publicly available either by their public display on the Services or through their accessibility by a visible link on the Services; (2) use any automated device, script, software, program, tool, algorithm, process or methodology (or any manual process having similar processes or functionality) to interact with the Services; (3) violate the security of the Services or attempt to gain unauthorized access to the Services; (4) interfere or attempt to interfere with the proper operation of the Services; (5) take or attempt any action that may impose an unreasonable or disproportionately large load or burden on the Services or otherwise damage, disable, overburden or impair the Services; (6) use or access the Services to intimidate or harass any other people or entities; (7) upload to the Services or provide to AdGem any code or device capable of or intended to interrupt, harm or damage the Services or the operation of the Services.

9. Additional Restrictions. You recognize and agree that the AdGem Platform, Services, Advertisements, and all hardware, software and other technology used to operate the Services (“Technology”) are the property of AdGem and contain valuable assets and proprietary information of AdGem. Accordingly, except as may be expressly permitted in this Agreement, you will not, and will not permit any User or any third party to: (1) copy or reproduce the Technology; (2) modify, translate, adapt, alter, or create derivative works from the Technology; (3) merge the Technology or any component thereof with any other software or content; (4) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, databases, data structures or method of operation of the Technology; (5) transfer, distribute, sublicense, rent, lease, sell, or loan the Technology or access thereto (or to any component thereof) to any third party; (6) use the Technology for the business needs of another person or entity, including without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; (7) remove, bypass or circumvent (or attempt to remove, bypass or circumvent) any electronic or other form of protection measure in place to regulate or control access to the Technology; (9) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Technology; (10) utilize the Technology for any purpose that is illegal in any way advocates illegal activity or violates any Laws, including any Laws related to advertising to children or marketing; or (11) otherwise use or access the Technology for any purpose not expressly permitted under this Agreement.

10. Payment.

10.1 Payment Terms. Notwithstanding anything else to the contrary set forth in this Agreement, you acknowledge and agree that AdGem shall have no obligation to pay you any Payment with respect to amounts generated as a result of: (a) your breach of any of the terms and conditions of this Agreement; or (b) your breach of any Laws. AdGem may withhold or offset (as AdGem deems appropriate, in its sole discretion) the relevant portion of any Payment due to you or any portion of any Payment previously received by you in respect of any matter under subsection (a) and (b) of this Section.

10.2 Calculation. Calculation of the Payment shall be in accordance with the Dashboard and will be based on the tracking and reporting performed by AdGem through the AdGem Platform, then adjusted for any credits or chargebacks communicated to you by AdGem. Unless otherwise specified, delivery of the Payment shall be made within 30 days after the end of each calendar month for the preceding calendar month, in U.S. Dollars by electronic funds transfer.

10.3 Disputes. If you wish to dispute the calculation of the Payment, you will provide AdGem with a written notice (via e-mail to the address set forth in the AdGem Platform) specifying the reasons for the dispute with as much detail as possible (the “Dispute Notice”), by no later than 7 days of delivery of the applicable calculations to you, whether provided in a report or otherwise. If such Dispute Notice is not delivered to AdGem within the applicable timeframe, such calculations shall be deemed accepted and agreed by you. Following receipt of a Dispute Notice, the parties will cooperate, in good faith, in order to resolve any such dispute.

10.4 Dashboard and Reports. Your Account includes a dashboard where you will be able to view reports regarding the number of impressions, clicks, rates, and your then current estimated Payment (the “Dashboard”). You acknowledge and agree that the Dashboard is provided to you for convenience purposes only and AdGem is not liable for any unavailability or inaccuracy, temporary or otherwise, of the Dashboard. You acknowledge and agree that the manner in which the Dashboard reports are generated (the “Reports”), including without limitation, the manner in which the Payment is calculated and presented therein may be modified or altered by AdGem at any time without prior notice to you. To dispel all doubt, the Reports shall be considered a part of AdGem’s Confidential Information.

10.5 Taxes. You acknowledge and agree that you will pay all applicable taxes, including without limitation, value-added, customs fees, import duties, or other taxes and duties imposed by any governmental authority on you with respect to the Payment. Furthermore, you agree to refund AdGem any Payment that was paid to you and is subject to chargeback or other fees AdGem may have paid following delivery to you.

11. Publisher’s Obligations.

11.1 Publisher Application. You represent and warrant that: (a) you are the owner or the legal licensee of the Publisher Application, including but not limited to: (i) the names or pictures of persons included in the Publisher Application; (ii) any Publisher Marks, copyrighted material, or depictions of trademarked or service marked goods or services available therein; and (iii) any testimonials or endorsements contained in any Publisher Application; (b) you are duly and fully authorized to be bound by this Agreement and have all consents necessary to use the Publisher Application; and (c) the execution and delivery of this Agreement, and your performance of your obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which you are a party or any of your affiliates are a party or violate any rights of any third parties arising therefrom.

11.2 Intellectual Property Rights and Prohibited Activities. You represent and warrant that: (a) the Publisher Application, including its content, is wholly owned by you or is validly and lawfully licensed to you, and does not infringe or violate any applicable laws or any right of any person, including any IPR, and you are fully permitted to make any use of Publisher Application and its content, including any use as may be required or advisable under this Agreement or with respect to the AdGem Platform; and (b) the Publisher Application and content displayed therein shall not include, endorse, or advocate any content or feature that: (i) encourages conduct that would be considered a criminal offense or could give rise to civil liability; (ii) would be a violation of Laws, or Google’s, Apple’s, or Amazon’s policies applicable to publishers; or (iii) would be considered harmful, misleading, deceptive, fraudulent, unfair, immoral, indecent, pornographic, obscene, sexually explicit material, excessively profane, racist, ethnically offensive, threatening, excessively violent, defamatory, hate speech, gambling, discriminatory, malware, illegal drugs or arms trafficking, alcohol, tobacco, prescription drugs or weapons. Additionally, the content of Publisher’s media shall be subject to AdGem’s subjective approval and must comply with all Laws (including all laws respecting intellectual property rights) and, in any event, shall not include, promote or link to the following:

  • Pornographic material, including any material appealing to the prurient interests;

  • Racial, ethnic, political, hate-mongering or otherwise objectionable content;

  • Investment, money-making opportunities or advice not permitted under law;

  • Gratuitous violence or profanity

  • Material that defames, misrepresents, abuses, or threatens physical harm to others;

  • Promotion of illegal substances or activities such as, but not limited to, illegal online gambling, how to build a bomb, counterfeiting money, etc.;

  • Software Pirating;

  • Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;

  • Infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;

  • Any illegal activity whatsoever; and

  • Links to any affiliate networks.

11.3 Fraud Monitoring. While AdGem has no responsibility to do so, and hereby disclaims such responsibility, AdGem actively monitors Platform traffic for fraud. If fraud is detected, Publisher’s Account will be made inactive pending further investigation. Publisher accounts are flagged that, among other things:

  • Have click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of AdGem;

  • Have ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported;

  • Have shown fraudulent leads as determined by the Advertisers;

  • Have used any incentives to procure clicks or leads, without the prior written consent of AdGem;

  • Have provided leads obtained other than through intended consumer action. For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior; or

  • Use fake redirects, automated software, and/or other fraudulent mechanisms in any way.

If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by AdGem or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by AdGem, Publisher will forfeit its entire Payment for all programs and its Account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Publisher Application or associated media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to AdGem, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received Payment for fraudulent activities, AdGem reserves the right to seek credit or remedy from future earnings and to receive re-imbursement from Publisher.

11.4 Compensation of End Users. You represent and warrant that you shall compensate End Users for clicking on any Advertisements or other commercial materials or provide any other incentives or benefits as specified by AdGem or as described in the Advertisements. As a condition of AdGem providing player support for Publisher’s End Users on the AdGem offerwall, any time AdGem indicates to Publisher that the End User should be provided with the specified amount of currency, the Publisher shall compensate the End User accordingly. Publisher’s failure to reward End Users in this way as specified by AdGem shall be considered a breach of this Agreement by Publisher.

11.5 Privacy and Data Processing. You will comply with all Laws, including data privacy and security laws and regulations, applicable to the personal information of the End Users that is being accessed, collected, used, or shared by you. You shall post on the Publisher Application a privacy policy that abides by all applicable laws and that provides legally adequate disclosure to your End Users about: (a) any information relating to End Users that will be provided or is otherwise accessible to us in connection with the Services; and (b) to the extent applicable, a conspicuous manner, in accordance with applicable laws, in which an End User may opt-out of receiving targeted ads based on the End User’s behavior and interests. You shall not launch into the Services any Application that is directed at children under age thirteen (13), and you shall flag or inform AdGem in writing prior to launching any of such Applications. You shall not pass to AdGem any personal information of children under 13 as defined under the Children’s Online Privacy Protection Act or similar child protection legislation. AdGem may use cookies and pixels as part of the Services, inter alia, for the purpose of performing and improving the Services, analyzing its performance, detecting and addressing technical issues. In no event will AdGem be liable for any placement of cookies by third parties. You hereby acknowledge and agree to the terms of the Data Processing Addendum attached hereto as Exhibit A.

12. AdGem Obligations. Subject to this Agreement, AdGem will make the AdGem Platform available to you. AdGem uses reasonable and appropriate data security measures to maintain the security and confidentiality of the data and information that is part of the Account, but AdGem does not and cannot guarantee that storage of any data pertaining to you, the Publisher Application, or End Users will be secured at all times, and AdGem will not be responsible for any unauthorized access to or alteration to your or any other person’s personal information from or in connection with the Account or Publisher Application.

13. DISCLAIMER. Except as expressly provided in Section 12, the AdGem Platform, Services, and Advertisements are provided “AS-IS” without any warranty of any kind. to the maximum extent permitted by law, AdGem specifically disclaims all other warranties, express or implied, oral or written, arising by law or otherwise, relating to this Agreement or to the AdGem Platform, Services, and Advertisements, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement. AdGem does not warrant that the AdGem Platform, Services, and Advertisements will be accurate, current, or complete, that the AdGem Platform, Services, and Advertisements will meet your needs or expectations, or that the operation of the AdGem Platform, Services, and Advertisements will be error free or uninterrupted. AdGem provides all content as a service to you and accuracy cannot be guaranteed. AdGem reserves the right, at its sole discretion, to modify certain characteristics of the content including, but not limited to, watermarking and dimensions.

14. Liability Limitation. AdGem, and its third party providers, shall not be liable for any indirect, consequential, exemplary, punitive, or incidental damages, including, without limitation, lost revenue or profits, lost opportunity, or lost data or access to data, arising from or related to this Agreement or to the AdGem Platform, Services, and Advertisements, even if AdGem has been advised of the possibility of such damages. AdGem’s total cumulative liability arising from or related to this Agreement or the AdGem Platform, Services, and Advertisements is limited to $10,000. Certain jurisdictions do not permit the limitation or exclusion of incidental damages, so this limitation may not apply to you. Use of and access to the AdGem Platform, Services, and Advertisements is solely at your own risk.

15. Indemnification. You will indemnify, defend, and hold harmless AdGem, and its third party providers, subsidiaries, affiliates, and subcontractors, and their respective owners, officers, directors, employees, and agents, from and against any and all direct or indirect claims, damages, losses, damages, liabilities, expenses, and costs (including reasonable attorneys’ fees) arising from or out of: (1) your use of the AdGem Platform, Services, or Advertisements for any purpose; (2) your actual or alleged breach of any provision of this Agreement; or (3) any liability arising from any End User’s use or access to the AdGem Platform, Services, or Advertisements. AdGem will provide you with notice of any such claim or allegation, and AdGem has the right to participate in the defense of any such claim at its expense.

16. Term and Termination. This Agreement will begin on the Effective Date and will continue in full force and effect until it is terminated as set forth herein (the “Term”). Either party may terminate this Agreement upon 5 days’ prior written notice, for any reason and without liability. AdGem may also suspend or discontinue access to the AdGem Platform or Services, or your Account, at any time, with or without notice to you, upon any actual or suspected breach of this Agreement. Upon expiration or termination of this Agreement, all rights granted to you under this Agreement shall immediately cease and you will: (1) discontinue all utilization of and access to the AdGem Platform or Services; (2) remove and delete all copies of the AdGem Platform or Services from all computer storage devices or other media in your possession or control; and (3) provide AdGem a written certification that you have complied with all of your obligations under this Agreement. Any Advertisements will not be accessible (and will be forfeited) after any expiration or termination of this Agreement. AdGem will not be liable to you or any person for the termination of this Agreement or termination of your access to your Account. Furthermore, AdGem will have no obligation to maintain any information stored in AdGem’s data centers related to you or to your Account or to forward any information to you or any person following the effective date of termination of this Agreement. Following the termination of this Agreement or suspension of your Account, any information which is related to your Account may no longer be accessed by you. Any sections of this Agreement that should reasonably survive shall survive any expiration or termination of this Agreement.

17. Audit. At AdGem’s request, you will provide assurances acceptable to AdGem that you are using the AdGem Platform, Services, and Advertisements consistent with the terms of this Agreement. Upon notice, AdGem may inspect your records, accounts, and books relating to the use of the AdGem Platform, Services, and Advertisements to ensure that the AdGem Platform, Services, and Advertisements are being used in accordance with this Agreement.

18. Confidentiality. The AdGem Platform and Services may include content, metadata, and other confidential and proprietary information of AdGem that a reasonable person would know is the confidential or proprietary information of AdGem given the circumstances (“Confidential Information”). You will not use any Confidential Information for any purpose not expressly permitted hereunder and will disclose Confidential Information only to your employees and permitted sublicensees who have a need to know for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than your duty hereunder. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as you protect your own confidential or proprietary information of similar nature and with no less than reasonable care.

19. Usage Data. AdGem will have the right to collect, extract, compile synthesize, and analyze data or information resulting from your use of or access to the AdGem Platform and Services (“Usage Data”). To the extent any Usage Data is collected by AdGem, the Usage Data will be solely owned by AdGem and may be used by AdGem for any lawful business purpose without compensation or a duty of accounting to you.

20. Equitable Relief. You acknowledge and agree that due to the unique nature of the AdGem Platform and the Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow you or third parties to unfairly compete with AdGem resulting in irreparable harm to AdGem, and therefore, that upon any such breach of this Agreement or threat thereof, you will not oppose any attempt by AdGem to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm (and agrees to support the waiver of any requirement that AdGem be required to post a bond prior to the issuance of any such injunction or other appropriate equitable relief).

21. Notice.
Any notices to AdGem relating to this Agreement shall be in writing and delivered by personal delivery or U.S. certified mail (return receipt requested) to the address provided below and will be effective upon receipt by AdGem:

ADGEM LLC

ATTN: LEGAL DEPT

[email protected]

All notices to you relating to this Agreement shall be delivered by personal delivery, electronic mail, facsimile transmission or by U.S. certified mail (return receipt requested) to the address for you in your Account, and will be deemed given upon personal delivery, 5 days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.

22. General

22.1 Entire Agreement. This Agreement consists of these terms and conditions any exhibits hereto, and any Additional Terms, as applicable, all of which are incorporated herein and made a part of this Agreement. This Agreement represents the entire agreement and understanding between you and AdGem as to the matters set forth herein and will exclusively govern your access to or use of the Services. This Agreement will supersede any oral or written proposal, agreement or other communication between you and AdGem regarding your access to or use of the Services. Your acceptance of this Agreement is expressly limited to the terms and conditions set forth herein. Any additional or inconsistent terms provided by you in any other documents such as a purchase order will not have any legally binding effect on AdGem. This Agreement may be modified only by a binding written instrument entered into by you and AdGem.

22.2 Waiver. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

22.3 Severability. If any provision of this Agreement is determined to be invalid or unenforceable, such provision will to the extent possible be deemed amended by limiting and reducing it to the minimum extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall continue to be valid and enforceable and will be liberally construed to carry out the provisions and intent hereof. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of such provision in any other jurisdiction, nor will the invalidity or unenforceability of any provision of this Agreement with respect to any person affect the validity or enforceability of such provision with respect to any other person.

22.4 Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned or transferred by you (by operation of law or otherwise) without the prior written consent of AdGem. This restriction on assignment or transfer shall apply to assignments or transfers by operation of law, as well as by contract, merger, or consolidation. AdGem may assign or transfer any of its rights or obligations hereunder without your consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.

22.5 Independent Contractors. The parties hereto are and shall remain independent contractors, and nothing contained herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.

22.6 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.

22.7 Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, U.S.A., without regard to conflicts of law principles that would require the application of the laws of any other state or jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the federal courts or state courts for Denver County, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

Exhibit A – Data Processing Addendum

Capitalized terms used in this Data Processing Addendum (“Addendum”) shall have the meanings set forth in this Addendum. Capitalized terms not otherwise defined herein shall have the meaning given to them in the AdGem Publisher Terms & Conditions (the “Agreement”). Except as modified below, the terms of the Agreement shall remain in full force and effect. The following obligations shall only apply to the extent required by Data Protection Laws with regard to the relevant Publisher Personal Data, if applicable.

1. Definitions.

  • i. “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Publisher or AdGem respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;

  • ii. “Controller” means an entity that determines the purposes and means of the Processing of Personal Data.

  • iii. “Data Protection Laws” means the data privacy and security laws and regulations of any jurisdiction applicable to the Processing of Publisher Personal Data, including, in each case to the extent applicable, European Data Protection Laws and the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020, and its implementing regulations (collectively, “CCPA”).

  • iv. “Data Subject” means the identified or identifiable natural person who is the subject of Personal Data.

  • v. “European Data Protection Laws” means, in each case to the extent applicable: (a) the EU General Data Protection Regulation 2016/679 (“GDPR”); (b) the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the Data Protection Act of 2018, and all other laws relating to data protection, the processing of personal data, privacy, or electronic communications in force from time to time in the United Kingdom (collectively, “UK Data Protection Laws”); (c) the Swiss Federal Act on Data Protection (“Swiss FADP”); and (d) any other applicable law, rule, or regulation related to the protection of Publisher Personal Data in the European Economic Area, United Kingdom, or Switzerland that is already in force or that will come into force during the term of this Addendum.

  • vi. “Personal Data” means information that constitutes “personal information,” “personal data,” “personally identifiable information,” or similar term under Data Protection Laws.

  • vii. “Process” means any operation or set of operations performed upon Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, alignment, combination, restriction, erasure, destruction or disclosure by transmission, dissemination or otherwise making available.

  • viii. “Processor” means an entity that Processes Personal Data on behalf of a Controller.

  • ix. “Publisher Personal Data” means Personal Data Processed by AdGem on behalf of Publisher to perform the Services under the Agreement.

  • x. “Security Incident” means a breach of AdGem’s security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Publisher Personal Data in AdGem’s possession, custody, or control. “Security Incident” does not include unsuccessful attempts or activities that do not compromise the security of Publisher Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems.

  • xi. “Standard Contractual Clauses” means, as applicable, Module Two (Transfer controller to processor) or Module Three (Transfer processor to processor) of the standard contractual clauses approved by the European Commission’s implementing decision (C(2021)914) of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/678 or the European Parliament and of the Council (available at: https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914&locale=en), as supplemented or modified by Appendix 3.

  • xii. “Subprocessor” means any Processor appointed by AdGem to Process Publisher Personal Data on behalf of Publisher or any Publisher Affiliate under the Agreement.

  • xiii. “Supervisory Authority” means an independent competent public authority established or recognized under Data Protection Laws.

1. Roles of the Parties; Compliance. While providing the Services to Publisher and Publisher Affiliates pursuant to the Agreement, AdGem and AdGem Affiliates may Process Publisher Personal Data on behalf of Publisher or any Publisher Affiliate as per the terms of the Agreement and this Addendum. The parties acknowledge and agree that, as between the parties, with regard to the Processing of Publisher Personal Data under the Agreement, Publisher is a Controller and AdGem is a Processor. In some circumstances, the parties acknowledge that Publisher may be acting as a Processor to a third-party Controller in respect of Publisher Personal Data, in which case AdGem will remain a Processor with respect to the Publisher in such event. Each party will comply with the obligations applicable to it in such role under Data Protection Laws with respect to the Processing of Publisher Personal Data.

2. Details of Processing. The parties acknowledge and agree that the nature and purpose of the Processing of Publisher Personal Data, the types of Publisher Personal Data Processed, the categories of Data Subjects, and other details regarding the Processing of Publisher Personal Data are as set forth in Appendix 1.

3. Processing of Publisher Personal Data. AdGem shall not Process Publisher Personal Data other than on Publisher’s documented instructions unless Processing is required by Data Protection Laws to which AdGem is subject, in which case AdGem shall to the extent permitted by Data Protection Laws inform Publisher of that legal requirement before Processing Publisher Personal Data. For the avoidance of doubt, the Agreement shall constitute documented instructions for the purposes of this Addendum. Publisher hereby instructs AdGem to Process Publisher Personal Data: (a) to provide the Services to Publisher; (b) to perform its obligations and exercise its rights under the Agreement and this Addendum; and (c) as necessary to prevent or address technical problems with the Services. AdGem will notify Publisher if, in its opinion, an instruction of Publisher infringes upon Data Protection Laws. Publisher’s instructions for the Processing of Publisher Personal Data shall comply with Data Protection Laws. Publisher shall be responsible for: (i) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Publisher’s use and disclosure and AdGem’s Processing of Publisher Personal Data; and (ii) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Publisher Personal Data to AdGem and to permit the processing of such Publisher Personal Data by AdGem for the purposes of performing AdGem’s obligations under the Agreement or as may be required by Data Protection Laws. Publisher shall notify AdGem of any changes in, or revocation of, the permission to use, disclose, or otherwise process Publisher Personal Data that would impact AdGem’s ability to comply with the Agreement, this Addendum, or Data Protection Laws.

4. Processing Subject to the CCPA. As used in this Section, the terms “Sell,” “Share,” “Business Purpose,” and “Commercial Purpose” shall have the meanings given in the CCPA and “Personal Information” shall mean any personal information (as defined in the CCPA) contained in Publisher Personal Data. AdGem will not: (a) Sell or Share any Personal Information; (b) retain, use, or disclose any Personal Information (i) for any purpose other than for the Business Purposes specified in the Agreement, including for any Commercial Purpose other than the Business Purposes specified in the Agreement, or as otherwise permitted by the CCPA, or (ii) outside of the direct business relationship between Publisher and AdGem; or (c) combine Personal Information received from, or on behalf of, Publisher with Personal Data received from or on behalf of any third party, or collected from AdGem’s own interaction with Data Subjects, except to perform any Business Purpose permitted by the CCPA. AdGem hereby certifies that it understands the foregoing restrictions under this Section and will comply with them. The parties acknowledge that the Personal Information disclosed by Publisher to AdGem is provided to AdGem only for the limited and specified purposes set forth in Appendix 1. AdGem will comply with applicable obligations under the CCPA and provide the same level of privacy protection to Personal Information as is required by the CCPA. Publisher has the right to take reasonable and appropriate steps to help ensure that AdGem uses the Personal Information transferred in a manner consistent with Publisher’s obligations under the CCPA by exercising Publisher’s audit rights in Section 13. AdGem will notify Publisher if it makes a determination that Publisher can no longer meet its obligations under the CCPA. If AdGem notifies Publisher of unauthorized use of Personal Information, including under the foregoing sentence, Publisher will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use by limiting the Personal Information shared with AdGem, terminating the portion of the Agreement relevant to such unauthorized use, or such other steps mutually agreed between the parties in writing.

5. Confidentiality. AdGem shall take reasonable steps to ensure that individuals that process Publisher Personal Data are subject to obligations of confidentiality or are under an appropriate statutory obligation of confidentiality.

6. Security. Taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, AdGem shall in relation to Publisher Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, in accordance with the security standards in Appendix 2 (the “Security Measures”). Publisher acknowledges that the Security Measures may be updated from time to time upon reasonable notice to Publisher to reflect process improvements or changing practices, provided that the modifications will not materially decrease AdGem’s security obligations hereunder. Publisher agrees that, without limitation of AdGem’s foregoing obligations, Publisher is solely responsible for its use of the Services, including: (a) making appropriate use of the Services to ensure a level of security appropriate to the risk in respect of the Publisher Personal Data; and (b) securing any account authentication credentials, systems, and devices Publisher uses to access or connect to the Services, where applicable. Without limiting AdGem’s obligations hereunder, Publisher is responsible for reviewing the information made available by AdGem relating to data security and making an independent determination as to whether the Services meet Publisher’s requirements and legal obligations under Data Protection Laws.

7. Subprocessing. AdGem may engage such Subprocessors as AdGem considers reasonably appropriate for the processing of Publisher Personal Data in accordance with this Addendum. A list of AdGem’s Subprocessors, including their functions and locations, is available upon Publisher’s request and may be updated by AdGem from time to time in accordance with this Section. AdGem shall notify Publisher of the addition or replacement of any Subprocessor and Publisher may, on reasonable grounds, object to a Subprocessor by notifying AdGem in writing within 10 days of receipt of AdGem’s notification, giving reasons for Publisher’s objection. Upon receiving such objection, AdGem shall: (i) work with Publisher in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed Subprocessor; and (ii) where such change cannot be made within 10 days of AdGem’s receipt of Publisher’s notice, Publisher may by written notice to AdGem with immediate effect terminate the portion of the Agreement to the extent that it relates to the Services which require the use of the proposed Subprocessor. This Section sets forth Publisher’s sole and exclusive remedy to Publisher’s objection of any Subprocessor appointed by AdGem. AdGem shall require all Subprocessors to enter into an agreement containing data protection obligations not less protective than those in this Addendum. AdGem shall remain fully liable for all the acts and omissions of each Subprocessor.

8. Data Subject Rights. In the event that any Data Subject seeks to exercise any of its rights under Data Protection Laws in relation to Publisher Personal Data, AdGem will advise the Data Subject to submit the request to Publisher and Publisher will be responsible for responding to any such request. Taking into account the nature of the Processing of Publisher Personal Data and the functionality of the Services, AdGem will shall use reasonable commercial efforts to assist Publisher in fulfilling its obligations as Controller following written request from Publisher, provided that AdGem may charge Publisher on a time and materials basis in the event that AdGem considers, in its reasonable discretion, that such assistance is onerous, complex, frequent, or time consuming.

9. Security Incidents. AdGem will notify Publisher without undue delay after becoming aware of a confirmed Security Incident. Such notification may be delivered to an email address provided by Publisher or by direct communication (for example, by phone call or an in-person meeting). Publisher is solely responsible for ensuring that the appropriate notification contact details are current and valid. AdGem will take reasonable steps to provide Publisher with information available to AdGem that Publisher may reasonably require to comply with its obligations as Controller to notify impacted Data Subjects or Supervisory Authorities. Upon becoming aware of a confirmed Security Incident, AdGem will: (a) notify Publisher of the Security Incident without undue delay after becoming aware of the Security Incident; and (b) take reasonable steps to identify the cause of such Security Incident, minimize harm, and prevent a recurrence. AdGem will take reasonable steps to provide Publisher with information available to AdGem that Publisher may reasonably require to comply with its obligations under Data Protection Laws. AdGem’s notification of or response to a Security Incident under this Section will not be construed as an acknowledgement by AdGem of any fault or liability with respect to the Security Incident.

10. Data Protection Impact Assessment and Prior Consultation. In the event that Data Protection Laws require Publisher to conduct a data protection impact assessment, transfer impact assessment, or prior consultation with a Supervisory Authority in connection with AdGem’s Processing of Publisher Personal Data, following written request from Publisher, AdGem shall, taking into account the nature of AdGem’s Processing of Publisher Personal Data and the information available to AdGem, use reasonable commercial efforts to provide relevant information and assistance to Publisher to fulfil such request, provided that AdGem may charge Publisher on a time and materials basis in the event that AdGem considers, in its reasonable discretion, that such assistance is onerous, complex, frequent, or time consuming.

11. Deletion or Return of Publisher Personal Data. Unless otherwise required by applicable law, following termination or expiration of the Agreement AdGem shall, at Publisher’s option, delete or return all Publisher Personal Data and all copies to Publisher.

12. Relevant Records and Audit Rights. Upon Publisher’s reasonable written request, AdGem will make available to Publisher all information in AdGem’s possession reasonably necessary to demonstrate AdGem’s compliance with Data Protection Laws and AdGem’s obligations set out in this Addendum. Such information will be made available to Publisher no more than once per calendar year and subject to the confidentiality obligations of the Agreement or a mutually-agreed non-disclosure agreement. If Publisher requires information for its compliance with Data Protection Laws in addition to the aforementioned information, at Publisher’s sole expense and to the extent Publisher is unable to access the additional information on its own, AdGem shall allow for, cooperate with, and contribute to reasonable assessments and audits, including inspections by Publisher or an auditor mandated by Publisher, not being competitors of AdGem (“Mandated Auditor”) AdGem shall promptly inform Publisher if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations with AdGem’s other Publishers. Publisher agrees that: (i) audits may only occur during normal business hours no more than once per calendar year, only after reasonable notice to AdGem (not less than 20 days’ advance written notice); (ii) audits will be conducted in a manner that does not have any adverse impact on AdGem’s normal business operations; (iii) Publisher and any Mandated Auditor will comply with AdGem’s standard safety, confidentiality, and security procedures in conducting any such audits; and (iv) any records, data, or information accessed by Publisher or any Mandated Auditor in the performance of any such audit will be deemed to be the Confidential Information of AdGem. To the extent any such audit incurs in excess of 20 hours of AdGem personnel time, AdGem may charge Publisher on a time and materials basis for any such excess hours. Publisher will promptly notify AdGem of any non-compliance discovered during the course of an audit and provide AdGem any reports generated in connection with any audit under this Section, unless prohibited by Data Protection Laws or otherwise instructed by a Supervisory Authority. Publisher may use the audit reports solely for the purposes of meeting Publisher’s audit requirements under Data Protection Laws to confirm that AdGem’s Processing of Publisher Personal Data complies with this Addendum.

13. Data Transfers. AdGem may, subject to this Section, Process Publisher Personal Data in the United States or anywhere AdGem or its Subprocessors maintains facilities. Publisher is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of Data Protection Laws. If Publisher transfers Publisher Personal Data to AdGem that is subject to European Data Protection Laws, and such transfer is not subject to an alternative adequate transfer mechanism under European Data Protection Laws or otherwise exempt from cross-border transfer restrictions, then Publisher (as “data exporter”) and AdGem (as “data importer”) agree that the applicable terms of the Standard Contractual Clauses shall apply to and govern such transfer and are hereby incorporated herein by reference. In furtherance of the foregoing, the parties agree that: (a) the execution of this Addendum shall constitute execution of the applicable Standard Contractual Clauses as of the Addendum Effective Date; (b) the relevant selections, terms, and modifications set forth in Appendix 3 shall apply, as applicable; and (c) the Standard Contractual Clauses shall automatically terminate once the Publisher Personal Data transfer governed thereby becomes lawful under European Data Protection Laws in the absence of such Standard Contractual Clauses on any other basis. If Publisher transfers Publisher Personal Data to AdGem that is subject to Data Protection Laws other than European Data Protection Laws which require the parties to enter into standard contractual clauses to ensure the protection of the transferred Publisher Personal Data, and the transfer is not subject to an alternative adequate transfer mechanism under Data Protection Laws or otherwise exempt from cross-border transfer restrictions, then the parties agree that the applicable terms of any standard contractual clauses approved or adopted by the relevant Supervisory Authority pursuant to such Data Protection Laws shall automatically apply to such transfer and, where applicable, shall be completed on a mutatis mutandis basis to the completion of the Standard Contractual Clauses as described in this Section.

14. General Terms. This Addendum will, notwithstanding the expiration or termination of the Agreement, remain in effect until, and automatically expire upon, AdGem’s deletion or return of all Publisher Personal Data. Any obligation imposed on AdGem under this Addendum in relation to the Processing of Publisher Personal Data shall survive any termination or expiration of the Agreement and automatically expire upon AdGem’s deletion or return of all Publisher Personal Data. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (i) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (ii) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws. Any liabilities arising in respect of this Addendum are subject to the limitations of liability under the Agreement. This Addendum will be governed by and construed in accordance with the governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.

Appendix 1 to Data Processing Addendum

Details of Processing of Publisher Personal Data

1. Subject matter and duration of the Processing of Publisher Personal Data

The subject matter and duration of the Processing are as described in the Agreement and the Addendum.

2. Nature and purpose of the Processing of Publisher Personal Data

The nature of the Processing involves those activities reasonably required to facilitate or support the provision of the Services as described in the Agreement and the Addendum.

The purpose of the Processing is to facilitate or support the provision of the Services as described in the Agreement and the Addendum, and include the following business purposes:

  • Auditing related to counting ad impressions to unique click throughs, verifying positioning and quality of ad impressions, and auditing compliance with this specification and other standards;

  • Helping to ensure security and integrity, to the extent the use of Publisher Personal Data is reasonably necessary and proportionate for these purposes;

  • Debugging to identify and repair errors that impair existing intended functionality;

  • Performing the Services as described in the Agreement and carrying out the instructions set forth in Sections 3 and 4 of the Addendum, including processing event transactions, providing analytic services, or providing similar services on behalf of Publisher;

  • Providing advertising and marketing services, except for cross-context behavioral advertising, to Data Subjects provided that, for the purpose of advertising and marketing, AdGem shall not combine the Publisher Personal Data of opted-out Data Subjects that AdGem receives from, or on behalf of, Publisher with Personal Data that AdGem receives from, or on behalf of, another person or persons or collects from its own interaction with Data Subjects;

  • Undertaking internal research for technological development and demonstration; and

  • Undertaking activities to verify or maintain the quality or safety of the Services, and to improve, upgrade, or enhance the Services.

3.The categories of Data Subjects to whom Publisher Personal Data relates

The categories of Data Subjects shall be as is contemplated or related to the Processing described in the Agreement, and may include Publisher’s authorized account Users and its End Users.

4.The categories of Publisher Personal Data

The categories of Publisher Personal Data Processed are those categories contemplated in and permitted by the Agreement, and may include name, work address, account ID, email address and phone number of Users, and may include advertising identifiers, device identifiers, location data, IP addresses, game play, in-app purchases, email address, and birth date of End Users.

5.The sensitive data included in Publisher Personal Data

Not applicable.

6.The frequency of Publisher’s transfer of Publisher Personal Data to AdGem:

If applicable, on a continuous basis for the term of the Agreement.

7.The period for which Publisher Personal Data will be retained, or, if that is not possible, the criteria used to determine that period:

As set forth in the Addendum or the Agreement.

8.For transfers to Subprocessors, the subject matter, nature and duration of the Processing of Publisher Personal Data:

As set forth in the Addendum or the Agreement.

Appendix 2 to Data Processing Addendum

Security Measures

1. Information Security Program. Implement, maintain, and comply with information security policies and procedures designed to protect the confidentiality, integrity, and availability of Publisher Personal Data and any systems that store or otherwise Process it, which are: (a) aligned with an industry-standard control framework (e.g., NIST SP 800-53, ISO 27001, CIS Critical Security Controls); (b) approved by executive management; (c) reviewed and updated at least annually; and (d) communicated to all personnel with access to Publisher Personal Data.

2. Risk Assessment. Maintain risk assessment procedures for the purposes of periodic review and assessment of risks to the organization, monitoring and maintaining compliance with the organization’s policies and procedures, and reporting the condition of the organization’s information security and compliance to internal senior management.

3. Personnel Training. Train personnel to maintain the confidentiality, integrity, and availability of Publisher Personal Data, consistent with the terms of the Agreement and Data Protection Laws.

4. Vendor Management. Prior to engaging Subprocessors and other subcontractors, conduct reasonable due diligence and monitoring to ensure subcontractors are capable of maintaining the confidentiality, integrity, and availability of Publisher Personal Data.

5. Access Controls. Only authorized personnel and third parties are permitted to access Publisher Personal Data. Maintain logical access controls designed to limit access to Publisher Personal Data and relevant information systems (e.g., granting access on a need-to-know basis, use of unique IDs and passwords for all users, periodic review and revoking or changing access when employment terminates or changes in job functions occur).

6. Secure User Authentication. Maintain password controls designed to manage and control password strength, expiration, and usage. These controls include prohibiting users from sharing passwords and requiring that passwords controlling access to Publisher Personal Data must: (a) be at least 8 characters in length and meet minimum complexity requirements; (b) not be stored in readable format on the organization’s computer systems; (c) have a history threshold to prevent reuse of recent passwords; and (d) if newly issued, be changed after first use.

7. Incident Detection and Response. Maintain policies and procedures to detect and respond to actual or reasonably suspected Security Incidents, and encourage the reporting of such incidents.

8. Vulnerability Management. Detect, assess, mitigate, remove, and protect against new and existing security vulnerabilities and threats, including viruses, bots, and other malicious code, by implementing vulnerability management, threat protection technologies, and scheduled monitoring procedures.

9. Physical Security. Take steps to ensure the physical and environmental security of data centers, server room facilities and other areas containing Publisher Personal Data, including by: (a) protecting information assets from unauthorized physical access; (b) managing, monitoring, and logging movement of persons into and out of the organization’s facilities; and (c) guarding against environmental hazards such as heat, fire, and water damage.

10. Business Continuity and Disaster Recovery. Maintain business continuity and disaster recovery policies and procedures designed to maintain service and recover from foreseeable emergency situations or disasters.

Appendix 3 to Data Processing Addendum

**Standard Contractual Clauses

1. Application of Modules. If Publisher is acting as a Controller with respect to Publisher Personal Data, “Module Two: Transfer controller to processor” of the Standard Contractual Clauses shall apply. If Publisher is acting as a Processor to a third-party Controller with respect to Publisher Personal Data, AdGem is a sub-Processor and “Module Three: Transfer processor to processor” of the Standard Contractual Clauses shall apply.

2. Sections I-V. The parties agree to the following selections in Sections I-IV of the Standard Contractual Clauses: (a) the parties select Option 2 in Clause 9(a) and the specified time period shall be the notification time period set forth in Section 8 of the Addendum; (b) the optional language in Clause 11(a) is omitted; (c) the parties select Option 1 in Clause 17 and the governing law of the Republic of Ireland will apply; and (d) in Clause 18(b), the parties select the courts of the Republic of Ireland.

3. Annexes. The name, address, contact details, activities relevant to the transfer, and role of the parties set forth in the Agreement and the Addendum shall be used to complete Annex I.A. of the Standard Contractual Clauses. The information set forth in Appendix 1 to the Addendum shall be used to complete Annex I.B. of the Standard Contractual Clauses. The competent supervisory authority in Annex I.C. of the Standard Contractual Clauses shall be the relevant supervisory authority determined by Clause 13 and the GDPR, unless otherwise set forth in Sections 5 or 6 of this Appendix 3. If such determination is not clear, then the competent supervisory authority shall be the Irish Data Protection Authority. The technical and organizational measures in Annex II of the Standard Contractual Clauses shall be the measures set forth in Appendix 2 to the Addendum.

4. Supplemental Business-Related Clauses. In accordance with Clause 2 of the Standard Contractual Clauses, the parties wish to supplement the Standard Contractual Clauses with business-related clauses, which shall neither be interpreted nor applied in such a way as to contradict the Standard Contractual Clauses (whether directly or indirectly) or to prejudice the fundamental rights and freedoms of Data Subjects. AdGem and Publisher therefore agree that the applicable terms of the Agreement and the Addendum shall apply if, and to the extent that, they are permitted under the Standard Contractual Clauses, including without limitation the following:

1.i.1. Instructions. The instructions described in Clause 8.1 are set forth in Section 4 of the Addendum.

1.i.2. Protection of Confidentiality. In the event a Data Subject requests a copy of the Standard Contractual Clauses or the Addendum under Clause 8.3, Publisher shall make all redactions reasonably necessary to protect business secrets or other confidential information of AdGem.

1.i.3. Deletion or Return. Deletion or return of Publisher Personal Data by AdGem under the Standard Contractual Clauses shall be governed by Section 12 of the Addendum. Certification of deletion of Publisher Personal Data under Clause 8.5 or Clause 16(d) will be provided by AdGem upon the written request of Publisher.

1.i.4. Audits and Certifications. Any information requests or audits provided for in Clause 8.9 shall be fulfilled in accordance with Section 13 of the Addendum.

1.i.5. Liability. The relevant terms of the Agreement which govern indemnification or limitation of liability shall apply to AdGem’s liability under Clauses 12(a), 12(d), and 12(f).

1.i.6. Termination. The relevant terms of the Agreement which govern termination shall apply to a termination pursuant to Clauses 14(f) or 16.

5. Transfers from the United Kingdom. If Publisher transfers Publisher Personal Data to AdGem that is subject to UK Data Protection Laws, the parties acknowledge and agree that: (a) the template addendum issued by the Information Commissioner’s Office of the United Kingdom and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022 (available at: https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf), as it may be revised from time to time by the Information Commissioner’s Office (the “UK Addendum”) shall be incorporated by reference herein; (b) the UK Addendum shall apply to and modify the Standard Contractual Clauses solely to the extent that UK Data Protection Laws apply to Publisher’s Processing when making the transfer; (c) the information required to be set forth in “Part 1: Tables” of the UK Addendum shall be completed using the information provided in this Appendix 3 and the Addendum; and (d) either party may end the UK Addendum in accordance with section 19 thereof.

6. Transfers from Switzerland. If Publisher transfers Publisher Personal Data to AdGem that is subject to the Swiss FADP, the following modifications shall apply to the Standard Contractual Clauses to the extent that the Swiss FADP applies to Publisher’s Processing when making that transfer: (a) the term “member state” as used in the Standard Contractual Clauses shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from suing for their rights in their place of habitual residence in accordance with Clause 18(c) of the Standard Contractual Clauses; (b) references to the GDPR or other governing law contained in the Standard Contractual Clauses shall also be interpreted to include the Swiss FADP; and (c) the parties agree that the supervisory authority as indicated in Annex I.C of the Standard Contractual Clauses shall be the Swiss Federal Data Protection and Information Commissioner.

Effective as of October 24, 2024