PUBLISHER TERMS AND CONDITIONS
(Updated May 22nd 2018)
THIS PUBLISHER AGREEMENT (the “Agreement”), together with any amendments, are entered into by and between PWNgames, inc (“PWN Games”), and the applying party submitting the Application For Publisher Status (the “Publisher”), also referred to herein jointly as the parties (“Parties”, each a “Party”). This Publisher Agreement supplements all other Campaign Terms subsequently agreed to by the Publisher.
WHEREAS, PWN Games and Publisher desire to provide for the terms and conditions of this Publisher Agreement as more specifically set forth herein;
THEREFORE, the Parties agree to be legally bound as follows:
1.1. “Opt-in” or “Opted-in” means that the consumer has made an active, affirmative choice to receive Ads from the Publisher.
1.2. “User” means any person using the Internet.
1.3. “Action” means a User’s completion of an action (such as a click, sale, lead, or call) defined by the Advertiser or PWN Games.
1.4. “Network” means the advertising network operated by PWN Games, which is made up of Publishers and Advertisers.
1.5. “Advertiser” means the advertiser, merchant or advertising agency providing advertisements to PWN Games for use by the Publisher.
1.6. “Ad” means the advertisement in the form of graphics and/or text supplied to PWN Games for inclusion in the PWN Games Network and to be made available for Publisher use.
1.7. “Spam” means unsolicited bulk email where recipients have not agreed in advance to receive Ads.
1.8. “Campaign Terms” means the specific guidelines for each Advertiser campaign as listed in the PWN Games network.
2.1. From time to time, PWN Games may amend, replace or supplement the Agreement, including but not limited to changing Advertiser payouts, by posting an updated Agreement or Campaign Terms on the PWN Games website, and it shall be deemed effective immediately unless otherwise noted, and Publisher will be deemed to have consented to, and agreed to be bound by, the updated Agreement or Campaign Terms. It is the responsibility of the Publisher to read and keep up to date with the Agreement and Campaign Terms with or without notice of change from PWN Games.
3. Publisher Requirements.
3.1. Publisher is subject to review and may be rejected for any reason, and at any time, by PWN Games.
3.2. Publisher must submit valid and correct contact information, including but not limited to name, e-mail address, street address, and telephone number. Publisher must ensure this information remains up-to-date at all times within the PWN Games Network. Publisher must accurately, clearly and completely describe all promotional methods in their descriptions and provide additional information when necessary.
3.3. Publisher websites must not be associated with or contain any illegal activity, or pornographic, obscene, racist, or hateful content, or deceptive advertising, piracy, libelous or defamatory statements.
3.4. Publisher websites must not contain any mechanisms that could be downloaded on to a User’s computer without the User’s explicit knowledge and consent.
3.5. In its sole discretion, if at any time PWN Games deems the Publisher’s website or advertising activities are contrary to the terms set out in the Agreement, the Publisher shall be terminated from the Network and shall forfeit any and all commissions and earnings.
4. Publisher Rules.
4.1. Failure to adhere to the following rules is a violation of the Agreement and will result in immediate termination of the Publisher from the PWN Games Network with forfeiture of all monies due to Publisher.
4.2. Publisher must not load Advertiser’s website within a frameset or iframe unless prior written approval is obtained from PWN Games.
4.3. Publisher must not modify the Ads supplied by PWN Games in any way unless prior written approval is obtained from PWN Games.
4.4. Publisher must indicate whether he uses incentive traffic, and only offer incentives to Users to respond to Ads with permission from PWN Games and the Advertiser as indicated on the Network and Campaign Terms, or in writing. PWN Games reserves the right to define the term incentive.
4.5. Publisher must not make misleading or disparaging statements, oral or written, about any Ad, Advertiser or PWN Games.
4.6. Publisher must agree to receive periodic communications from PWN Games. This communication could be in the form of e-mail, instant message, postal mail, telephone or fax.
4.7. Publisher must not display any Ad in third party newsgroups, social networks, message boards, blogs, link farms, counters, chatrooms or guestbooks without the consent of such third party entity.
4.8. Publisher must comply with all Campaign Terms as outlined in Ads.
4.9. Publishers must not use SMS/text messages to deliver Ads to Users.
4.10. Publisher must not generate any Actions in bad faith or through fraudulent mechanisms. This includes, but is not limited to, generating own Actions using manual or automated processes, misrepresenting product or service offered by Advertisers, deceiving Users into obtaining product or service offered by Advertisers, and encouraging or educating Surfers to cancel any product purchase or service provided by Advertisers.
4.11. Publisher must not share, lend, lease, sell or transfer their account to any third party unless prior written approval is obtained from PWN Games.
4.12. Any Publisher engaged in the distribution of Ads via email must comply with all of the following rules:
4.13. Publisher must distribute Ads only to those recipients who have Opted-in to receive such email from the Publisher. PWN Games prohibits the use of Spam. Any use of Spam whatsoever by Publisher will result in the forfeiture of Publisher’s entire commission for all campaigns, and the termination of the Publisher’s account. Publisher will also be held liable for any and all damages resulting from a violation of this provision including reasonable court costs.
4.14. If requested by PWN Games, Publisher must be able within 24 hours of such request, to supply the name, date, time, IP address and URL where the User gave permission to the Publisher to receive such Ads through e-mail.
4.15. Publisher must ensure each email recipient is provided with a valid opt-out mechanism within each email delivered in order for the recipients to “opt-out” of future mailings from Publisher.
4.16. Publisher must not use the Advertiser or PWN Games name (including any abbreviation thereof) in the originating email address line (“From” line) or subject line of any email transmission, unless specific permission is given otherwise.
4.17. Publisher must not use falsified sender information or falsified IP Addresses.
4.18. Publisher must use only pre-approved Advertiser subject lines and from lines as set out in Campaign Terms.
4.19. Publisher must use only legitimate routing information.
4.20. Publisher must use their own tracking links that redirect to the tracking links supplied by PWN Games.
4.22. Publisher must ensure each email contains Advertiser’s unsubscribe mechanism as set out in Campaign Terms.
4.23. Publisher must not send email to any email address or domain contained in an Advertiser’s suppression list as set out in Campaign Terms.
4.24. Publisher must ensure each email clearly contains the Publisher’s physical address, which cannot be a PO BOX.
4.25. Publisher must comply with all campaign instructions from PWN Games and Advertiser as set out in Campaign Terms.
4.26. Publisher must comply with any and all applicable rules, regulations and laws, specified or not within this Agreement, in respect to email distribution and advertising and relating thereto, including the CAN-SPAM Act of 2003.
5. Data Protection / Usage of Cookies / GDPR
5.1. PWN Games and Publisher shall be considered joint Controllers as set out in Art. 26 of EU – General Data Protection Directive 95/46/EC (“GDPR”). The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processor”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR.
5.2. PWN Games and Publisher shall at all times, where applicable, comply with the regulations of the GDPR, as well as with the Privacy and Electronic Communication Directive 2002/58/EC (“ePrivacy Directive”) and with any data protection or privacy laws supplementing or implementing GDPR and ePrivacy Directive (“Implementation Laws”) or any other applicable data protection or privacy laws which applies to personal or non-personal data processed in connection with the Agreement (Implementation Laws, GDPR and ePrivacy Directive and other data protection / privacy laws collectively referred to as “Data Protection Laws”). Publisher and PWN Games shall cooperate as reasonably required to ensure either Party´s compliance with Data Protection Laws.
5.3. As far as mandatory under Data Protection Laws, Publisher undertakes to obtain valid consent from any User and / or visitor to Publisher Media – the Data Subject – and to enable an “opt out” to any technology based on the principle of storing information on the Data Subject´s end devices or accessing them (“Cookie”) served by Publisher, PWN Games or by any third party upon PWN Games’s or Publisher´s behalf in the course of the performance of the Agreement.
5.4. Publisher shall take appropriate measures to provide Data Subjects with the information required by Art. 13, 14 and 26 GDPR about how their Personal Data are being Processed by or on behalf of Publisher. Publisher shall especially provide a privacy notice/ Cookie notice to all Data Subjects in compliance with applicable Data Protection Laws on Publisher Media before contractual Processing of Personal Data.
5.5. PWN Games and Publisher shall document the execution of necessary technical and organizational measures (Art. 32 (1), Art. 28 (3) lit. c GDPR) with respect to the performance of the Agreement, such documentation being provided by either Party to the other Party for auditing purposes prior to commencing of Processing. The measures to be taken are measures of data security and measures that guarantee a protection level appropriate to the risk concerning confidentiality, integrity, availability and resilience of the systems. The state of the art, implementation costs, the nature and scope and purposes of Processing as well as the probability of occurrence and the severity of the risk to the rights and freedoms of natural persons within the meaning of Art. 32 (1) GDPR must be taken into account. Technical and organizational measures are subject to technical progress and further development. In this respect, it is permissible for either Party to implement alternative adequate measures, subject to the security level of the established measures not being reduced. All substantial modifications must me documented.
5.6. In case either Party appoints a subcontractor which relates to the provision of the services set out in the Agreement, this Party shall be obliged to make appropriate and legally binding contractual arrangements, which provide at least the same protection for Data Subjects as the provisions of this section 9, and take appropriate inspection measures to ensure such subcontractor´s compliance with Data Protection Laws.
5.7. The Parties acknowledge, that joint Controllers are obliged to respond to data related requests of Data Subjects under Data Protection Laws, especially under Art. 13 – 20 GDPR. Publisher agrees, that as the last point of contact to Data Subject, Publisher shall be primarily responsible to fulfill Data Subject´s rights under Data Protection Laws. PWN Games shall reasonably assist Publisher to enable Publisher´s compliance with this clause and shall inform Publisher without undue delay, if Data Subject´s exercises its rights towards PWN Games.
5.8. Either Party shall at the earliest opportunity, and in any event within 48 hours after having become aware, notify the other Party of any Personal Data Breach and / or of any unauthorized or unlawful Processing of any Personal Data and of any loss or destruction or other damage of Personal Data (collectively referred to as “Data Security Incident”) in the course of the performance of the Agreement, and shall take appropriate measures, consistent with good industry practice, to exclude or at least reduce the negative effects of any Data Security Incident on the Data Subjects, and co-operate with the other Party in dealing with such incident and its consequences. Neither Party shall notify any Supervisory Authority with respect to a Data Security Incident without having obtained prior approval in text-form (e.g. per e-mail) from the other Party, such approval not being unreasonably withheld. Neither Party may without prior approval in text-form (e.g. per e-mail) of the other Party issue a press release and / or communicate with the press with respect to a Data Security Incident.
5.9. Where Personal Data originating from the European Economic Area (referred to as “EEA”) or otherwise subject to GDPR shall be Processed by Publisher outside the EEA, Publisher may only transfer Personal Data outside of the EEA in compliance with the conditions for transfer set out in Chapter V of the GDPR and subject to recipient of Personal Data having provided adequate safeguards. Adequate safeguards may only be provided for by a) a legally binding agreement between public authorities or bodies, b) binding corporate rules, c) standard data protection clauses in the form of template transfer clauses adopted by the Commission, d) standard data protection clauses in the form of template transfer clauses adopted by a Supervisory Authority and approved by the Commission, e) compliance with an approved code of conduct approved by a Supervisory Authority, f) certification under an approved certification mechanism as provided for in the GDPR, g) contractual clauses agreed authorized by the competent Supervisory Authority, or h) provisions inserted into administrative arrangements between public authorities or bodies authorized by the competent Supervisory Authority.
6. Advertising Services and Warranties.
6.1. Provided that Publisher complies with all provisions of this Agreement and Campaign Terms, PWN Games hereby grants to Publisher a non-exclusive, limited, revocable license to market, display, perform, copy, transmit, and promote the Ad in connection with its obligations hereunder; and market display, perform, copy, transmit, and promote the Ad to third parties in connection with its obligations hereunder. Publisher’s use of Ads or copyrighted materials in violation of this Agreement is strictly forbidden and will result in this limited license being immediately withdrawn and may further result in the termination of the Publisher’s account and being held liable under applicable law.
6.2. PWN Games’s sole obligation to the Publisher under this Agreement with respect to Ads shall be to provide such Ads for use in their advertising efforts. The advertising services provided by PWN Games are provided “as is”. PWN Games makes no warranties, guaranties, promises, or estimates, expressed or implied, oral, written or otherwise except as specifically set forth herein, AND does not guarantee, including but not limited to, demographic profiling of Users, click to Action conversion rates, response rates or conversion rates from Action to sale.
6.3. No additional warranties are provided.
7. Commission Earnings and Payments.
7.1. PWN Games shall send Publisher’s commission payment approximately thirty (30) days from the last business day of each month in which earnings are accrued if the amount due to Publisher exceeds either five hundred (500) dollars USD or the minimum payment amount requested by the Publisher, whichever is higher. Commissions will only be earned on Actions reported by the Advertiser, and only after PWN Games receives full payment from the Advertiser. PWN Games is under no obligation to pay Publishers for Actions which are not paid by the Advertiser.
7.2. PWN Games may increase the payment frequency for Publisher, provided Publisher has received one previous payment from PWN Games and is setup to receive payments electronically. All other conditions and restrictions for payment as outlined in item 6.1 remain in force for accelerated payments terms. PWN Games in its sole discretion may disqualify any Publisher from being eligible for accelerated payments terms.
7.3. In the event of non-payment by an Advertiser, and If PWN Games elects in its own discretion not to make payment to Publisher, an Publisher’s recourse for any earned commissions not paid shall be to make a claim against the relevant Advertiser(s), and PWN Games disclaims any and all liability for such payment.
7.4. PWN Games or the Advertiser may reverse any Action generated by the Publisher. Circumstances for Action reversals include but are not limited to duplicate Actions, fraudulently generated Actions, non-payment, Publisher’s failure to comply with the Agreement, invalid or incomplete data, or product returns. Reversals may be applied at any time, including for Actions during a period where payment has already been issued to the Publisher.
7.5. In the event reversals are applied to Actions for which an Publisher has already been paid, Publisher is required to return payment for these Actions to PWN Games.
8. Canadian Webmasters and Corporations using PWN Games Network
8.1. PWN Games Network is currently located in Montreal, Quebec, Canada. This means that we obligated to pay all legal business taxes to our Canadian Webmasters and Corporations. All Canadian Webmasters who are registered for the HST (Harmonized Sales Tax) or the GST (Goods and Services Tax) will have the applicable tax paid by PWN Games Network. Coincidentally, if you are located in Quebec, Canada, PWN Games Network will also have to pay the QST (Quebec Sales Tax) due to the fact that we are also located within the Province.
8.2. Due to the unique and special type of business we are in, it is not possible for us to calculate the taxes for all Canadian webmaster / corporation at the same time we send checks. In addition, we will need an invoice from all Canadian Webmasters that wish to receive their taxes, otherwise we will be unable to claim said taxes through the proper Taxation Agencies. In order to be able to pay out these taxes, we are going to need the following information from each one of our Canadian Webmasters/Corporations:
8.3. You will need to provide us with your registration number for all relevant taxes, in addition to one (1) invoice for each payout you receive.
8.4. Keep in mind that if we pay you the applicable taxes, they are going to be declared in order for us to get a refund from both the Federal and Provincial Government Tax Agencies. Consequently, these particular Agencies are then going to be looking to you to collect the taxes that you received from us.
8.5. In summary, if all the above applies to you and we are required to pay you any applicable taxes, you are obligated to produce an invoice after receiving a payment from us. This invoice should indicate the amount of taxes owed, and upon receipt we will then pay them.
9. Referral Program.
9.1. Publisher shall earn a 3% referral fee on the commission payments made to any other new Publishers (excluding bonuses, rewards, additional payouts, Publisher earnings where the Publisher is an advertising network, and referral income) who have been referred to PWN Games using the specified link code.
9.2. Publisher shall earn this fee on the commission payments of a referred Publisher for a period of twelve (12) months or an amount reached of five thousand dollars ($5,000) in paid referral commissions after the referred Publisher joins the PWN Games Network, whichever comes first.
9.3. Secondary accounts held by Publisher are excluded from the referral program. PWN Games reserves the right to terminate an Publisher referral program, in whole or in part, at any time for any reason, including but not limited to, fraud, questionable activity or breach of the terms set out in the Agreement or Campaign Terms.
10. Representations and Warranties.
10.1. Each Party represents and warrants they have full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it.
10.2. Each Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
11.1. Publisher shall not solicit or recruit, directly or indirectly, any Advertiser that is known to Publisher to be an Advertiser of PWN Games, for purposes of offering products or services that are competitive with PWN Games, nor contact such Advertisers for any purpose, during the term of Publisher’s membership in the PWN Games Network and for the twelve (12) month period following termination of Publisher’s membership in the PWN Games Network.
12. Limitation of Liability.
12.1. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR COSTS, DIRECT OR INDIRECT, (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM Publisher PARTICIPATION IN PWN Games’S NETWORK. PWN GAMES SHALL NOT IN ANY EVENT BE LIABLE TO Publisher FOR MORE THAN THE AMOUNT PAID TO Publisher HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST PWN GAMES MORE THAN ONE YEAR AFTER THE DATE OF SERVICE.
12.2. Publisher agrees to not to hold PWN Games or Advertisers liable for any of the consequences of interruption or service.
13.1. Publisher hereto agrees to indemnify and hold harmless PWN Games, Advertiser, and each if its agents, officers, directors and employees against all liability to third parties resulting from the acts or failure to act of such indemnifying party, or any act of its customers or users. Publisher is solely responsible for any legal liability arising out of or relating to the Publisher’s website(s), any material to which Users can link through the Publisher’s website(s) and/or any consumer and/or governmental/regulatory complaint arising out of any e-mail campaign or other advertising campaign conducted by Publisher, including but not limited to any Spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer.
14.1. Publisher agrees to refrain from disclosing PWN Games’s confidential information or the Advertiser’s confidential information (including but not limited to commission rates, conversion rates, email addresses, fees, identities of Advertisers) to any third-party without prior written permission from PWN Games.
15. Force Majeure.
15.1. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
16.1. The Parties to the Agreement are independent non-exclusive contractors. Neither Party will have any right, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party, nor is either party an agent, representative, partner, employee, or joint venture of the other Party.
17.1. PWN Games reserves the right to withhold payment and take appropriate legal action to cover its damages against any Publisher that violates the terms of this Agreement or breaches the representations and warranties set forth in this Agreement, or commits fraudulent activity against PWN Games. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
18. Entire Agreement.
18.1. This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein.
19. Governing Law.
19.1. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the Province of Quebec, Canada, without reference to conflict of laws principles.
20.1. This Agreement may be terminated by either party. This Agreement may be terminated immediately upon notice for your breach of this Agreement.
20.2. An Advertiser may terminate Publisher from the Advertiser’s program for any or no reason.
20.3. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and Publisher must immediately remove all Ads and link to Advertiser(s).
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and binding upon Publisher’s submission and PWN Games’s acceptance of Publisher’s properly completed Publisher network application without need for further action by PWN Games.