Terms And Conditions
LAST UPDATED: FEBRUARY 1, 2021
These Terms of Service (this “Agreement”) constitute a legal agreement between You (“You,” “Your” or “Publisher”) and Adsage LLC (“Whimpulse”) concerning Whimpulse’s performance of certain advertising services, which are referred to in this Agreement and defined below as “Whimpulse Ad Services.”
By clicking on the “Accept” button for this Agreement or registering for Whimpulse Ad Services, You are indicating acceptance of this Agreement by You and, if applicable, the business entity on whose behalf You receive Whimpulse Ad Services and signify Your agreement to be bound by the terms and conditions of this Agreement.
If You are receiving Whimpulse Ad Services on behalf of another company, such as Your employer or a client, You represent that You have the authority to bind such company to this Agreement. If You do not agree with all of the terms and conditions of this Agreement, please do not register for Whimpulse Ad Services. In such event, Whimpulse shall have no obligations to You hereunder.
Whimpulse may amend this Agreement at any time without notice. Any additional or different terms in this Agreement shall be effective upon being posted on this page of Whimpulse’s website located at www.whimpulse.com/terms. Your continued receipt of Whimpulse Ad Services and/or acceptance of payment from Whimpulse following the posting of any additional or different terms in this Agreement constitutes Your irrevocable acceptance of those additional or different terms.
This Agreement constitutes the entire agreement between You and Whimpulse with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.
"Advertisement(s)" means advertising in any form or media whatsoever, which may include, among other things, text, video feeds, links to websites, graphic artwork, images, and downloads of third party software applications.
"Applicable Data Protection Laws" shall mean Assembly Bill 375 of the California House of Representatives, an act to add Title 1.81.5 (commencing with Section 1798.100) to Part 4 of Division 3 of the Civil Code, relating to privacy and approved by the California Governor on June 28, 2018 (California Consumer Privacy Act, “CCPA”), Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation, “GDPR”), together with any replacement legislation or any equivalent legislation of any other applicable jurisdiction and all other applicable laws and regulations in any relevant jurisdiction relating to the processing of personal data and privacy.
"Whimpulse Ad Services" means the digital advertising services provided by Whimpulse serving Advertisements on Publisher Websites in accordance with this Agreement, including, but not limited to, commercial or promotional messages, images, html links, banners, video, or any other digital advertising.
"Whimpulse Technology" means Whimpulse’s proprietary technology that enables Whimpulse to serve its proprietary native ads.
“Prohibited Content” means content included in Whimpulse’s written blacklist of prohibited content (e.g., violent, sexual, disaster, illegal drugs/activities, obscenity, hate speech, promoting malware).
“Publisher Website(s)” means a website or websites owned and/or operated by Publisher, which may be accessed by various computing devices capable of accessing the Internet including, without limitation, personal computers, tablet computers and mobile phones.
“Served Ad” means an Advertisement served by Whimpulse on a Publisher Website.
2. WHIMPULSE AD SERVICES.
In order to receive Whimpulse Ad Services, Publisher must accept this Agreement and register for an account. Upon Publisher’s registration, Whimpulse will provide Publisher with a password for accessing its account. During the Term of this Agreement, Publisher will be granted access to a Web-based “Control Panel” tool for use in managing Publisher’s account, including specifying from time to time the advertising services that Publisher elects to receive from Whimpulse and those advertising services that Publisher elects not to receive from Whimpulse.
Publisher is solely responsible for maintaining the confidentiality of its account password and for all activities that occur through the use of Publisher’s account. Publisher shall immediately notify Whimpulse of any unauthorized use of the password or Publisher’s account.
Whimpulse will not be liable for any loss or damage arising from Publisher’s failure to comply with this Article 2. Whimpulse will provide Whimpulse Ad Services to Publisher, subject to Publisher’s compliance with all of the terms and conditions of this Agreement. So long as the Whimpulse Technology is installed or integrated with Publisher Websites, Whimulse shall have the exclusive right to sell and serve its proprietary native ads on such Publisher Websites.
Whimpulse reserves the right to refuse to place Advertisements on any Publisher Website if Whimpulse determines, in its sole discretion, that such Publisher Website or any content displayed on such Publisher Website is illegal, in violation of this Agreement or an agreement between Whimpulse and an advertiser, violates any third party’s rights or Whimpulse’s advertising platform policies then in effect. Whimpulse assumes no responsibility for the content, functionality, security, services, data usage policies or practices of any third party advertiser or the content, functionality, products or services associated with any Served Ad.
Publisher is responsible for any Internet connection fees that it incurs when accessing Whimpulse Ad Services.
3. PUBLISHER OBLIGATIONS.
3.1 General Obligations.
Publisher will (a) install and integrate the Whimpulse Technology in pages of all Publisher Websites in accordance with this Agreement; (b) permit Whimpulse to monitor and validate Publisher’s use of the Whimpulse Technology; (c) immediately notify Whimpulse of any problems with the Whimpulse Technology; (d) use best efforts to prevent unauthorized use of the Whimpulse Technology; and (e) immediately notify Whimpulse of any violation or alleged violation of Whimpulse’s intellectual property rights.
Publisher acknowledges that the Whimpulse Technology may employ cookies that are stored on computers used by end users who visit Publisher Websites, and such cookies transmit navigational, behavioral and tracking information about end users’ use of such Publisher Websites to Whimpulse and Whimpulse’s vendors and service providers.
Publisher acknowledges that Whimpulse is not responsible for the operation of Publisher Websites (including, without limitation, all content and materials displayed on Publisher Websites and the transmission of data between Publisher Websites and Whimpulse).
3.2 Data Protection Obligations.
Both Parties shall comply with all Applicable Data Protection Laws and regulations. Each Party is responsible for ensuring that it has obtained all necessary consents from end users or consumers as required under Applicable Data Protection Laws, and Whimpulse undertakes to process such data in accordance with the documented instructions of Publisher (as defined in the Agreement/Insertion Order and/or any other written instructions). For more information on our processing procedures, see our Data Processing Addendum.
3.3 IAB Framework Consent Signals.
If applicable, Publisher shall register or be registered as a Global Vendor in the IAB Europe Transparency & Consent Framework (the “Framework”) for the purpose of being able to read any consent signals sent via Consent Management Providers (CMPs) based on the Framework.
3.4 Alternative Consent Signals.
To the extent Publisher expects to receive or collect any custom consent signals, please contact Whimpulse promptly so that we can ensure we can transmit these to You. Please reach out to Your account manager if You have any questions about this process.
4. PUBLISHER RESTRICTIONS.
Publisher shall not, nor shall it permit any third party to (a) copy, edit, modify, repurpose or transform, to any extent and in any manner whatsoever, any Served Ad or any link contained within a Served Ad, (b) redistribute any Served Ad, (c) block, obscure, remove, minimize or otherwise interfere with the delivery or display of any Served Ad, (d) insert a link into any Served Ad or otherwise cause an end user to be directed to a web page other than the web page that would be accessed by an end user clicking on the Served Ad, (e) frame any Served Ad within, or otherwise display any Served Ad with, any content other than Images or any website or property other than a Publisher Website or otherwise limit the full and complete display of any web page linked to a Served Ad, (f) insert any code, content or other material between a Served Ad and the web page linked to the Served Ad, (g) directly or indirectly generate impressions of any Served Ad through any automated or other means by a single end user, one or more robots or a software program that attempts to mimic the actions of multiple end users, (h) display any Served Ad on any web page or Publisher Website that contains any pornographic, hate-related, violent or illegal content, (i) spider, crawl, index or otherwise collect information obtained from Served Ads or from end users clicking on Served Ads, (j) place any Advertising within or adjacent to any location on a web page of a Publisher Website on which the Whimpulse Technology has been installed or (k) engage in any conduct (through any Publisher Websites or otherwise) that disparages or tarnishes Whimpulse’s reputation or goodwill, or that could reasonably be expected to do so.
Publisher acknowledges that any violation of this Section 4 is a material breach of this Agreement and in the event of such violation, without limiting any remedy available to Whimpulse, Whimpulse may immediately suspend or terminate Whimpulse Ad Services and/or this Agreement without allowing Publisher an opportunity to cure the violation
As between the parties, Whimpulse retains sole ownership of all right, title and interest, including all intellectual property and proprietary rights recognized anywhere in the world, in and to Whimpulse Ad Services and all software, materials, tools and technology used in connection with Whimpulse Ad Services including, but not limited to, the Whimpulse Technology and Whimpulse’s ad serving technology (collectively, “Whimpulse Intellectual Property”). Publisher will not acquire any right, title or interest in or to any Whimpulse Intellectual Property, except as expressly set forth in this Agreement.
Publisher retains all right, title and interest, including all intellectual property rights and proprietary rights recognized anywhere in the world, in and to Publisher Websites including, without limitation, all content on or available through Publisher Websites.
6. LICENSE GRANT.
Subject to all of the terms and conditions herein, Whimpulse grants to Publisher a revocable, non-exclusive, non-sublicenseable, non-transferable, non-assignable license to install, integrate and execute the Whimpulse Technology on Publisher Websites and use the Whimpulse Technology solely for the purpose of receiving Whimpulse Ad Services.
Whimpulse reserves all rights in the Whimpulse Technology not expressly granted in this Agreement.
Publisher shall not, nor permit any third party to, (a) copy, reproduce, modify, adapt, translate, prepare derivative works of, republish, upload, post, transmit, or distribute any Whimpulse Intellectual Property; (b) reverse assemble, reverse compile, reverse engineer or in any way derive or attempt to derive from the Whimpulse Technology any source code or the structure, sequence or organization of such code; (c) use the Whimpulse Technology in connection with any website or content that infringes upon any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party, or which Publisher does not have the right to display, distribute or transmit under any law, contract, or fiduciary relationship; (d) use the Whimpulse Technology to upload, post, email, or otherwise transmit worms, viruses, or any other computer file, code, or program designed to disrupt, interrupt, limit, or disable any of the functionality of the Whimpulse Technology, or any hardware, or telecommunications equipment; (e) change the name of any data file included within the Whimpulse Technology; (f) use the Whimpulse Technology to interfere with the normal functioning of any servers or computer or communications network; (g) use the Whimpulse Technology to violate any local, state, national or foreign law or regulation; or (h) sublicense, assign or otherwise transfer the Whimpulse Technology, this Agreement or the rights under it, whether by operation of law or otherwise, without Whimpulse’s prior written consent and any such attempted transfer without Whimpulse’s prior written consent shall be null and void.
Subject to Publisher’s compliance with all of the terms and conditions of this Agreement, Publisher will be entitled to receive a payment based upon Whimpulse’s measurements of the revenue that Whimpulse receives from Served Ads.
Publisher acknowledges and agrees that the number of impressions and clicks relating to Served Ads, used in calculating amounts payable to Publisher, shall be tracked and based solely on Whimpulse’s data and measurements. Whimpulse shall provide Publisher with automated and online access to statistics, metrics and data required to calculate the impressions, clicks and any other date necessary to determine the payments due to Publisher, and Publisher reserves the right to dispute determinations made by Whimpulse in connection with the amounts due to Publisher, including in connection with calculations of impressions or clicks; provided, however, the parties shall amicably resolve such discrepancy in good faith.
Whimpulse will send payments to Publisher within sixty (60) days after the last day of each month that Served Ads are placed on Publisher Websites if Publisher’s earned balance is $50 or more.
Notwithstanding the foregoing, Whimpulse shall have no payment obligation to Publisher with respect to any Served Ads that Whimpulse does not receive any revenue.
Whimpulse reserves the right to withhold payment of, or charge back Publisher’s account, amounts corresponding to Served Ads that Whimpulse has a reasonable belief that it has no payment obligation hereunder due to any of the foregoing circumstances, pending Whimpulse’s investigation thereof or any breach of this Agreement by Publisher. To ensure proper payment, Publisher is solely responsible for providing and maintaining an accurate address and contact information, as well as payment information associated with Publisher’s account. Publisher is solely responsible for all federal, state, local or other applicable taxes that might apply in respect of payments received by Publisher and any other charges imposed by any government entity in connection with this Agreement or the performance of Whimpulse Ad Services (excluding taxes based upon Whimpulse’s net income).
If Publisher disputes the amount of any payment made under this Agreement, Publisher must notify Whimpulse in writing of such payment dispute within ninety (90) days following the date such payment was received; failure to timely notify Whimpulse of a payment dispute shall result in Publisher’s waiver of any claim relating to payable amounts corresponding to the Served Ads for which the disputed payment was made. Amounts payable by Whimpulse hereunder shall be calculated solely based on data and records maintained by Whimpulse. No other data, measurements or statistics of any kind shall be accepted by Whimpulse or have any effect under this Agreement. Publisher’s right to receive payments made under this Agreement may not be transferred or in any manner passed on to any third party unless expressly permitted in this Agreement or authorized in writing by Whimpulse in advance (such authorization may be given by email).
8. TERM AND TERMINATION.
This Agreement shall continue in effect until terminated by either party. Publisher may terminate this Agreement at any time by (a) removing the Whimpulse Technology from all of the Publisher Websites, (b) terminating Whimpulse Ad Services through Publisher’s account or (c) terminating Publisher’s account. In addition, Whimpulse may immediately suspend Whimpulse Ad Services and/or terminate this Agreement if it has reason to believe Publisher has committed a material breach of any provision of this Agreement.
Upon any termination of this Agreement, Publisher shall promptly remove the Whimpulse Technology from all Publisher Websites and Whimpulse shall have no further obligation to provide Whimpulse Ad Services. Furthermore, Whimpulse will perform a final accounting of amounts payable to Publisher hereunder and, subject to Whimpulse’s right to offset the earned balance of amounts due to Publisher against paid amounts determined by Whimpulse to be in error or the result of fraud or any act by, or at the direction of Publisher, in violation of this Agreement, Whimpulse will pay the earned balance of amounts due to Publisher hereunder within approximately ninety (90) days following the last day of the month in which this Agreement is terminated.
Termination of this Agreement shall not prejudice Whimpulse’s rights, defenses and limitations of liability provided under this Agreement, which rights, defenses and limitations of liability shall survive termination of this Agreement.
The following Sections of this Agreement shall survive termination of this Agreement: Sections 1, 5 and 8-17.
“Confidential Information” shall mean any and all oral or written information that is identified as confidential or would otherwise be reasonably assumed to be confidential in nature based on the content of such information and is provided by one party to the other, including, but not limited to, data, information, documents, software or materials relating to one of the parties hereto, or its shareholders, affiliates, licensors, licensees or advertisers, including, but not limited to, plans, software, technology, programming, specifications, materials, guidelines, processes, products, designs, pricing, promotions, finances, research, development, know-how and trade secrets and documentation, and, with respect to Whimpulse Technology, Whimpulse Ad Services or numbers of impressions or other information relating to Served Ads provided by Whimpulse, may be disclosed by one party to the other under this Agreement.
Confidential Information shall not include information that (1) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party, (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality, (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information, or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
Neither party shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party or required by law or order of a court or administrative body; provided, however, that each party agrees to the extent legally permissible to notify the other upon the issuance of any such order, and to cooperate in its efforts to convince the court or administrative body to restrict disclosure.
Each party shall, in advance, ensure that each individual who obtains or is in position to obtain Confidential Information of the other Party, understands and agrees to comply with the obligations under Section 1. Further, in the event of a breach or threatened breach of either party’s obligations in this Section 9, the other party shall suffer immediate and irreparable harm that money damages may be difficult to calculate and/or provide adequate compensation for. Accordingly, either party shall be entitled to an injunction, restraining order or other equitable relief to enforce compliance with the provisions of this Section 9; provided, however, that no specification herein of any particular legal or equitable remedy shall be deemed or construed to prohibit either party from seeking or obtaining any other remedy under this Agreement, at law or in equity.
10. REPRESENTATIONS AND WARRANTIES.
Whimpulse and Publisher each represents and warrants to the other that (a) it has the legal authority to enter into this Agreement, (b) it has all necessary rights to grant the rights and licenses, and to perform its obligations, hereunder and (c) its performance of its obligations under this Agreement will not violate any other agreement between such party and any third party.
Publisher represents and warrants to Whimpulse that (i) it has obtained all necessary rights from third parties for Whimpulse to perform Whimpulse Ad Services and (ii) none of the Publisher Websites, nor any content displayed thereon, (iv) infringes or will infringe any rights of any third party including, without limitation, intellectual property rights, contract rights and rights of privacy and publicity, (v) violates any applicable laws, rules or regulations, (vi) or is defamatory, fraudulent, misleading or inaccurate.
11. NO WARRANTY.
Except as expressly set forth in this agreement, the Whimpulse technology and the Whimpulse Ad Services are provided on an “as is” and “as available” basis and Whimpulse makes no representations, warranties or conditions of any kind, express or implied, with respect to the Whimpulse technology or the Whimpulse Ad Services including, without limitation, any warranty that Whimpulse Ad Services will (a) produce a specific amount or level of revenues from Whimpulse’s sale of advertising inventory, (b) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (c) meet publisher’s requirements or expectations, (d) be free from errors or that defects will be corrected, or (e) be free of viruses or other harmful components. To the fullest extent allowed by law, Whimpulse expressly disclaims all implied warranties or conditions including, without limitation, warranties and conditions of merchantability, fitness for a particular purpose, and non-infringement. Publisher bears the entire risk as to the results of Whimpulse Ad Services.
Publisher agrees to defend, indemnify and hold Whimpulse and its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees and advertisers harmless from and against any and all third party claims, suits, demands, loss, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising from or relating to (a) Publisher’s breach of any of the terms and conditions of this Agreement or (b) Publisher’s violation of any applicable law, statute, ordinance, regulation or any third party’s rights including, but not limited to, patent, copyright or trademark infringement, dilution or tarnishment of any third party’s trademark or violation or misappropriation of any other intellectual property rights, or any claim of defamation, libel or slander or privacy violation.
This obligation shall survive the termination and/or expiration of this Agreement.
13. LIMITATION OF LIABILITY.
To the fullest extent allowed by applicable law, in no event shall Whimpulse, its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees or advertisers be liable to Publisher or any other party in any way arising out of or relating to this Agreement or Whimpulse AdServices under any contract, tort, strict liability or other legal or equitable theory for (a) any indirect, special, consequential, punitive or incidental damages, even if Whimpulse was advised of the possibility of such damages, (b) damages for loss of use, profits, data, images, content or other intangibles, (c) damages resulting from viruses, worms, trojan horses, or other contamination or destructive programs, (d) the cost of procurement of substitute goods, services or technology, or (e) for any amount in excess of one thousand dollars ($1,000).
These exclusions and limitations of liability in this Section 13 shall survive the expiration or termination of this agreement. The above limitations or exclusions may not apply to Publisher in jurisdictions that do not allow for the limitation or exclusion of liability for incidental or consequential damages. In such jurisdictions, the liability of Whimpulse or any of its affiliates, directors, officers, shareholders, employees, agents, licensors, licensees or advertisers shall be limited to the maximum extent permitted by law.
14. FORCE MAJEURE.
Whimpulse shall have no liability for any failure or delay in the performance of this Agreement resulting from any causes or events beyond its reasonable control, including, but not limited to, acts of God or the public enemy, governmental action, fire, flood, insurrection, earthquake, power failure, riot, act of terrorism, war, explosion, embargo, strike, labor or material shortage, transportation interruption of any kind, work slowdown.
15. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Except as provided in Section 12 above, the parties hereby consent to the exclusive jurisdiction of the California state and U.S. federal courts located in the County of Los Angeles, California for all disputes arising from or relating to this Agreement and/or Whimpulse’s performance, or Publisher’s use, of Whimpulse Ad Services.
16. BINDING ARBITRATION.
16.1 ARBITRATION PROCEDURES.
You and Whimpulse agree that, except as provided in Section 16.4 below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Section 12 and the JAMS Rules, the terms in this Section 16 will control and prevail.
Except as otherwise set forth in Section 16.4, You may seek any remedies available to You under federal, state or local laws in an arbitration action.
As part of the arbitration, both You and Whimpulse will have the opportunity for discovery of non-privileged information that is relevant to the Claim.
The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based.
The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.
Except as otherwise provided in this Agreement, (a) You and Whimpulse may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND Whimpulse WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
You and Whimpulse agree that any arbitration shall be limited to the Claim between Whimpulse and You individually. You and Whimpulse agree that (a) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; (b) there is no right or authority for any dispute to be brought in a purported representative capacity or as a private attorney general; and (c) no arbitration shall be joined with any other arbitration.
16.4 EXCEPTIONS TO ARBITRATION.
You and Whimpulse agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Your or Whimpulse’s intellectual property rights; and (b) any claim for equitable relief.
In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
This Agreement may not be modified except by a written instrument signed by both parties. This Agreement will be binding on and will inure to the benefit of each party’s legal representatives, successors and permitted assigns. Publisher shall not assign or delegate any of its rights or obligations under this Agreement without Whimpulse’s prior written consent. Any unauthorized assignment shall be null and void. Whimpulse may assign this Agreement in whole or in part at any time without Publisher’s consent.
Unless otherwise provided in this Agreement, all notices provided under this Agreement shall be in writing and effective upon receipt, if (a) delivered personally; (b) delivered by overnight courier service with tracking capabilities; (c) within three (3) days after deposit in the mail if delivered by certified mail, return receipt requested, postage prepaid; or (d) via email correspondence (with confirmed receipt). If to Publisher, then notice shall be sent to the address provided upon registration for Whimpulse Ad Services, unless, by notice, Publisher changes or supplements the addressee and addresses for giving notice. If to Whimpulse, then notice shall be sent to 3552 Griffin Ave., Los Angeles, CA 90031 or [email protected]
, or such other address for Whimpulse as Whimpulse may specify in an amendment to this Agreement.
Except as otherwise provided in this Agreement, no failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If any portion of any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect.