1. INTRODUCTION 

THE PARTIES ARE: 

Global and Beyond Technologies Limited, having its registered office 3rd Floor, Atlantic House, 4-8 Circular Road, Douglas, Isle of Man, IM1 1AG, Isle of Man, incorporated under the laws of the Isle of Man with registration number 018198V and VAT number GB005395392 (hereinafter also referred to as “MediaCruiser”, “We”, Us”) 

AND 

Publisher (hereinafter also referred to as “You”), the provider of Digital Traffic for advertising purposes via the MediaCruiser Platform.   

These Publisher Terms and Conditions govern your providing of Digital Traffic for advertising purposes via the MediaCruiser Platform, a product owned and operated by Us. The integral part of these Terms and Conditions is MediaCruiser Data Protection Agreement (https://mediacruiser.com/dpa/) and End User Privacy Policy (https://mediacruiser.com/end-user-privacy-policy/). Our information clause regarding processing of your personal data is available in the Privacy Policy (https:// mediacruiser.com/privacy-policy/).  

Please notify that these Terms and Conditions do not govern the relationship between Global and Beyond Technologies Limited and the Advertisers – entities interested in traffic sources. Such relation shall be subject to a separate agreement (https://mediacruiser.com/publisher-terms-and-conditions/). 

MediaCruiser has designated an electronic point of contact related to the MediaCruiser Platform that is intended for communication with the authorities of EU Member States, the Commission and the European Board for Digital Services (the: “Board”): [email protected]. The same point of contact can be used by the Publisher for direct and quick communication with MediaCruiser. Communication can be conducted exclusively in English. 
 

2. DEFINITIONS 

2.1. Definitions. As used herein, the following capitalized terms shall have the meanings provided as follows: 

1. “Account” an account created by the MediaCruiser team for the Publisher after correctly filling in the registration form and accepting the Terms and Conditions, especially used to tracking statistics. 

2. “Advertiser” is an entity interested in purchasing Digital Traffic for advertising purposes. 

3. “Digital Traffic” refers to the volume of users directed to an advertiser’s designated online destination through various sources, including websites, apps, and other digital channels. 

4. “Agreement” means the agreement on the basis of which the Publisher is entitled to use MediaCruiser’ Services according to these Terms and Conditions. 

5. “Campaign” means a type of operation by which the Advertiser bids in order to purchase Digital Traffic for advertising purposes available within Traffic sources through CTA (Cost-to-Action), CPM (Cost-per-Mille), or real-time bidding models. Each campaign has its settings such as name, daily and total budget, geo-targeting, bidding price, and Destination URL. 

6. “Destination URL” is the URL address of the page where End Users are redirected. 

7. “Effective date” is the date the Publisher registers as a MediaCruiser Platform user and accepts the conditions stated in the Terms and Conditions. 

8. “End User” means a bona fide living human Internet user. An “End User” excludes invalid traffic (IVT) as defined in Interactive Advertising Bureau (IAB) IVT guidelines available at: https://www.iab.com/guidelines/mrc-invalid-traffic-ivt-detection-and-filtration-guidelines-addendum/ (especially non-human traffic – spiders, bots, etc., or activity designed to produce fraudulent traffic). 

9. “Publisher” or “You” means the entity that is connected to MediaCruiser Platform and sourcing digital traffic, accepted the conditions stated in the Terms and Conditions, and therefore is bound by them. 

10. “Services” or “MediaCruiser’s Services” mean selling of the Digital Traffic for advertising purposes via the MediaCruiser Platform. 

11. “Term” means duration of the Terms and Conditions from the Effective Date until its termination. 

12. “Terms and Conditions” are the conditions stated herein. 

13. “Traffic sources” include, but are not limited to, websites, domains, toolbars, browser extensions, apps, etc. 

14. “MediaCruiser Platform” is a platform operated by MediaCruiser available at: www.mediacruiser.com.. 

15. “Recipient of the Services” means any natural or legal person who uses MediaCruiser’s intermediary services, in particular for the purposes of seeking information or making it accessible, especially the Publisher and the End-User. 

16. “Regulation (EU) 2016/679” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). 

17. “Regulation (EU) 2022/2065” means Regulation (EU) 2022/2065 of the European Parliament and the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Service Act). 
     

3. MEDIACRUISER’S SERVICES 

3.1. Effective Date. These Terms and Conditions are effective as of the date the Publisher registers as a MediaCruiser Platform user and accepts the conditions stated herein. The Agreement is concluded between the parties at the same time. After the aforementioned actions of the Publisher, the Account is created by MediaCruiser. This means that by participating in or using the Services or features of MediaCruiser Platform, you are agreeing to be bound by the Terms and Conditions. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the Services shall be subject to and shall abide by these Terms and Conditions. 

3.2. Duration. The Agreement is concluded for an indefinite period of time. The parties can terminate the Agreement at any time in writing or by email by providing the other with a fifteen (15)day advance notice. If due to the change of the Terms and Conditions, its provisions come into force during the notice period, the previous content of the Terms and Conditions shall prevail with respect to the parties’ relations. 

3.3. Termination of the Agreement with immediate effect. MediaCruiser is entitled to suspend the Publisher’s access to MediaCruiser Platform at any time, without advance notice, for any reason that MediaCruiser finds valid in its sole discretion, especially for the following reasons: (i) the Publisher breaches the Terms and Conditions or terms regarding other services provided by MediaCruiser on the basis of separate agreements or there is a suspicion of such breach, (ii) the Publisher conducts activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations or there is a suspicion of such activities, (iii) in case of delay in payment to MediaCruiser for any services provided by MediaCruiser on the basis of separate agreements, (iv) in case of negative verification of account according to point 3.5.9. If aforementioned suspicions were refuted, MediaCruiser shall restore the Publisher’s access to the Account. Otherwise MediaCruiser is also entitled to ban and terminate the Agreement at any time, without advance notice. Regardless of the circumstances, such suspension or termination by MediaCruiser shall not give rise to liability. 

3.4.Services. MediaCruiser provides the Services. The Publisher shall provide MediaCruiser Platform with Digital Traffic for advertising purposes. MediaCruiser shall auction the received traffic for advertising purposes amongst its network of Advertisers, thereby allowing the Publisher to generate a portion of the revenue generated. To use MediaCruiser Platform an internet connection and a web browser with Java support is required. 

3.5. Account Access. MediaCruiser grants to the Publisher a non-exclusive, non-assignable, and non-transferable right during the Term to use MediaCruiser Platform in order to use MediaCruiser’s Services in accordance with all of the conditions set forth herein. To use the Services provided by MediaCruiser, the Publisher shall log into the Account in MediaCruiser Platform using its email address and password. The Publisher’s email address shall be the one set up on the Publisher’s website domain name. Otherwise, the person registering as the Publisher shall prove on MediaCruiser’s request that she/he is entitled to act on behalf of and for the Publisher (especially by sending a written authorization). MediaCruiser can demand such proof at any time. You shall use MediaCruiser Services only through your Account. The Account inactive for a period of more than six (6) months can get the suspended status which involves the need to apply for its activation by the Publisher. 

3.5.1. Before the Account is created, in the registration email the Publisher is obliged to state its company/business name (including the Publisher’s legal form), an address of the registered office or business address, TAX/VAT ID, a first and last name of the person authorized to register an account on behalf of and for the Publisher, as well as contact data of the Publisher. The Publisher shall provide true, accurate and current information and shall maintain all account information, ensuring it is true, accurate and up-to-date. Aforementioned data shall be consistent with VIES database (if applicable). The Publisher is not allowed to enter the data of another entity without MediaCruiser’s consent – even if it does so, that does not mean a transfer of the Account’s ownership to this entity. In case of any change of that data as well as any other data provided by the Publisher (including email address), the Publisher is obligated to provide MediaCruiser with accurate data as well as send MediaCruiser a documentation that proves such changes. Additionally, each Publisher must have a bank account. 

3.5.2. When an individual, the Publisher represents and warrants that: he/she is at least eighteen (18) years old, has full capacity to perform acts in law and is an individual running a business (i.e. the Publisher is not a consumer). 

3.5.3. When a person signing up to the MediaCruiser Platform acts on behalf of their employer or an entity, this person represents and warrants he/she has full legal authority to bind their employer or such other entity to these Terms and Conditions. In case of doubt, MediaCruiser is entitled to demand proofs confirming that the person is entitled to act on behalf of and for the Publisher. 

3.5.4. As a general rule, any Publisher can have only one Account at the same time unless otherwise agreed by MediaCruiser. The owner of the Account is the Publisher that data has been provided according to the point 3.5.1. of these Terms and Conditions and indicated on the invoices issued by MediaCruiser. The Publisher must not open a new account if there is any outstanding balance for MediaCruiser Platform use. If it does, however, it authorizes MediaCruiser to charge the amount due to a previous Account from the Publisher’s credit card connected with the new Account. MediaCruiser is obliged to start provision of the Services only if all due amounts are paid by the Publisher. 

3.5.5. If the person acting on behalf of one Publisher, opens the new Account on behalf of another Publisher, MediaCruiser can refuse to provide Services for that other Publisher at its sole discretion. The second Publisher shall have no claims against MediaCruiser related to refusal to provide Services. 

3.5.6. Any Publisher is obliged to use its business credit cards with regard to chosen payment method. If the Publisher chooses the consumer card instead of business credit card, it undertakes to repay MediaCruiser all costs, expenses or lost benefits connected with payments made by a consumer card as well as it waives its right to claim damages, especially in the amount of commission paid in the higher amount that stated in the relevant law provisions. The Publisher also authorizes MediaCruiser to charge relevant amounts from its credit card. 

3.5.7. The Publisher shall not permit any third party to use or gain access to MediaCruiser Platform and shall use reasonable security measures to protect against unauthorized usage and/or access. The Publisher is responsible for selecting and continuously managing its password and security settings to protect the Publisher’s Account and this Account’s settings (including the Publisher’s contact and payment information) from unauthorized changes. The Publisher is entirely responsible for maintaining the confidentiality and secrecy of the Publisher’s password and the Account’s security settings, as well as the Publisher’s other information. All consequences of the Publisher’s voluntary disclosure of password and account information, as well as all activities that occur in the Publisher’s Account are the Publisher’s responsibility. The Publisher agrees to notify MediaCruiser immediately of any unauthorized use of the Publisher’s account or any other breach of security. 

3.5.8. The Publisher agrees that it shall be responsible for all activities that arise from the Publisher’s activities on its Account, whether initiated by the Publisher or other person on the Publisher’s behalf and MediaCruiser shall be entitled to rely on any requests which have been initiated from the Publisher’s account. MediaCruiser disclaims any liability for any activity in the Publisher’s account, whether initiated or authorized by the Publisher or not unless it is MediaCruiser’s intentional fault. Subject to MediaCruiser’s intentional fault, the Publisher is solely responsible for use of MediaCruiser Platform by its employees or any unauthorized person. 

3.5.9. Every new Account created in the MediaCruiser Platform system is manually approved or denied by one of MediaCruiser’s employees. Accounts will be verified within seventy-two (72) hours. Requests submitted during public holidays or weekends will be considered as submitted on the following working day. The Publisher also acknowledges and agrees that all its Advertising space and Traffic sources participating in MediaCruiser Platform shall be subject to review by MediaCruiser’s employees. MediaCruiser reserves the right to accept or reject the Publisher’s Advertising space or Traffic sources at any time based solely on based on a violation of the Terms and Conditions or any applicable law, ordinance, rule, regulation or treaty.  

3.5.10. The Publisher is entitled to access the Account by means provided by MediaCruiser. The Publisher shall not attempt to gain unauthorized access to accounts registered to other users, or any servers, systems or networks connected to MediaCruiser Platform or MediaCruiser’s website as well as it shall not attempt to obstruct, disrupt or interfere with the operation of MediaCruiser Platform or other Services provided by MediaCruiser. 

3.6. Support. MediaCruiser shall not be obligated to provide the Publisher with any support, but may elect to do so at its sole discretion. In the event, technical support shall be delivered in English and refers to the working days Monday through Friday, from 9:00 to 17:00, Central European Time. Detailed information on technical support is posted on MediaCruiser Platform. 
 

4. PAYMENT 

4.1 Payment. Unless agreed to otherwise, the amount to be paid by MediaCruiser to the Publisher shall be determined by MediaCruiser Platform (any chargebacks, poor quality traffic or fraudulent transaction will be adjusted to the Publisher payout within sixty (60) days of the billing period) and indicated in the Publisher’s Account in United States Dollars (USD). All payments shall be made thirty (30) days following the last day of each calendar month via bank transfer or card payment through MediaCruiser’s integrated payment provider. The Publisher shall be responsible for any payment processing fees. 

4.2. Strong Customer Authentication. According to the relevant payment providers’ policies some of the transactions may demand Strong Customer Authentication (SCA), which means that electronic payment is performed with multi-factor authentication to increase the security of such a payment. 

4.2.1.The type of used multi-factor authentication as well as demanding SCA in any case depends on the policy of the relevant payment provider that is used by the Publisher to make a payment. 

4.2.2. The implementation of requirements regarding SCA may also lead to processing an increased amount of the Publisher’s Personal Data by these payment providers and transferring the increased amount of the one by MediaCruiser to these payment providers, so it is recommended to respectively review the privacy policies available on their websites as well as the Privacy Policy of MediaCruiser. 

4.3. Payment Currency. The Publisher can only make payments under the Terms and Conditions in USD. All amounts, fees, costs, and other charges shall be quoted, billed and payable in USD only, regardless of payment method selected by the Publisher. For clarity, MediaCruiser does not accept or process payments in any currency other than USD. 

4.4. Reporting. Unless agreed to otherwise by the parties, the amount to be paid by the Publisher to MediaCruiser shall be determined by MediaCruiser’s reports and indicated in the Publisher’s Account. The statistics are fully available to the Publisher via the Account. 

4.5. Payment Disputes. The Publisher understands and agrees to address any questions Publisher may have with any payments under these provisions to MediaCruiser within thirty (30) days of the date of such payment, in writing or by e-mail to [email protected]. Failure to notify MediaCruiser within such period will constitute an acceptance of, and agreement with, the applicable payment. Notwithstanding, in an event that discrepancies between Publisher and MediaCruiser statistics exceed 10%, the Publisher and MediaCruiser agree to work together in good faith with the aim of reducing the discrepancies to below the 10% threshold. 

4.6. Payment Minimums. The minimum payment amount differs depending on the payment method chosen by the Publisher, as follows: $100 USD is to be paid if the payment is made with Paypal and $100 USD is to be paid if the Payments may be made via bank transfer or card payment through our integrated payment provider. For bank transfers, payments are processed manually by our finance department. All payment processing fees shall be covered by the Publisher. The Publisher shall issue its invoice at the end of each month in which the Services were performed, however all payments to the Publisher shall be withheld until such an amount is accumulated in the Publisher’s Account. Paypal and wire transfers are performed in the amount of payout. Please be notified that due to the commissions of payment operators, the amount you receive on the indicated account may be reduced by the commission deducted by the relevant payment operator. Wire transfers are performed in the “shared fees” option. 

4.7 Taxes and Withholding. The Publisher understands and agrees that taxes with respect to commissions or any other payments made to MediaCruiser hereunder will not be withheld or paid directly or indirectly by MediaCruiser unless MediaCruiser determines in its sole discretion that MediaCruiser or its affiliates may be liable for any such taxes, in which case it shall withhold the estimated amount and notify the Publisher of such withholding. MediaCruiser shall have no obligation to withhold or remit any taxes, including but not limited to income taxes, sales taxes, or any other federal, state, or local taxes, related to any payments made under this agreement.  The Publisher understands and agrees that it is the Publisher’s responsibility to pay all applicable income taxes, sales taxes, or any other federal, state, or local taxes, and/or foreign taxes (if applicable) related to any payments to MediaCruiser pursuant to these Terms and Conditions. 
 

5. RESTRICTIONS AND RIGHTS 

5.1. Restrictions on Traffic Sources. The Publisher is prohibited from providing Digital Traffic originating from sites containing illegal and/or socially unacceptable content such as violent pornography, child pornography, hate or violence related, racism, harassment, illegal drugs and other acts and contents banned by laws of the Republic of Malta, European Union and/or United States of America. 5.1.1. The Publisher may not provide Digital Traffic to MediaCruiser Platform that has been generated by offering incentives in any form (“incentivized traffic”) or Digital Traffic that has been generated via any illegal method, including but not limited to: zero pixel frames, hitbots, clickbots, spiders, cgi-scripts, DNS hacking, spoofing or pharming. 

5.2. Prohibited activities. The Publisher shall not use MediaCruiser Platform in any manner, or in connection with any content, data, hardware, software or other materials, that (i) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (ii) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias), (iv) violates any applicable law, ordinance, rule, regulation or treaty, (v) is in any other way harmful to the End User. 

5.2.1. The Publisher shall not use MediaCruiser Platform in any manner, or in connection with any content, data, hardware, software or other materials, that (i) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (ii) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias) (iv) violates any applicable law, ordinance, rule, regulation or treaty. 

5.2.2. Publisher shall ensure that all their materials and content are free from viruses, worms, Trojan horses, and other malicious code. Any content provided by the Publisher cannot: (i) be used to conduct unauthorized advertising, promotional and marketing activities, in particular by placing advertisements, selling and promoting products, services, projects and collections that are unlawful or violate the rights of third parties, (ii) be used to conduct activities prohibited by law, e.g. attempts to fraud and extort funds from other persons or entities, (iii) incite or condone violence against any living being, including animals, (iv) propagate any fascist or other totalitarian state system, (v) incite hatred or insult group of people or individual persons on the basis of gender, sexual, national, ethnic, racial or religious differences or lack of religious denomination, or condone such hatred or insult, (vi) defame or insult any third party, (vii) violate the personal rights of any third party, (viii) contain profanity or other offensive content, (ix) encourage dangerous behavior or approve of such behavior, (x) violate the applicable legal order or good customs in any other way, for example in terms of the sale of non-compliant or counterfeit products, the sale of goods or the provision of services in violation of consumer protection law, unauthorized use of copyrighted materials, (xi) be an advertisement directed to End-Users based on profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679 using special categories of personal data referred to in Article 9(1) of Regulation (EU) 2016/679, (xii) be an advertisement based on profiling as defined in Article 4, point (4), of Regulation (EU) 2016/679 using personal data of the End-User when the Publisher is aware with reasonable certainty that the End-User is a minor. 

5.2.3. Publishers that present advertisements on their online interfaces shall ensure that, for each specific advertisement presented to each individual End-User, the End-Users are able to identify, in a clear, concise and unambiguous manner and in real time, the following: (i) that the information is an advertisement, including through prominent markings, which might follow standards pursuant to Article 44 of Regulation (EU) 2022/2065, (ii) the natural or legal person on whose behalf the advertisement is presented, (iii) the natural or legal person who paid for the advertisement if that person is different from the natural or legal person referred to in point (ii), (iv) meaningful information directly and easily accessible from the advertisement about the main parameters used to determine the End-User to whom the advertisement is presented and, where applicable, about how to change those parameters. 5.2.4. Publishers may provide the Advertisers with a functionality to declare whether the content they provide is or contains commercial communications. When the Advertiser submits a declaration pursuant to the preceding sentence, the Publisher shall ensure that other recipients of the service can identify in a clear and unambiguous manner and in real time, including through prominent markings, which might follow standards pursuant to Article 44 of Regulation (EU) 2022/2065, that the content provided by the Advertiser is or contains commercial communications, as described in that declaration. 

5.3. Right of control. MediaCruiser reserves the right to control and verify compliance with these restrictions and limitations. The Publisher shall be responsible for all damages incurred by MediaCruiser arising from violation of any of the provisions herein, including the loss of business profits caused by termination of contracts by MediaCruiser’s business partners. 

5.3.1. MediaCruiser Platform reserves the right at its own discretion to chargeback, block and ban any Advertising space that it deems harmful to its continued operation. 

5.4. Right to revoke access. In any case of breaching the Terms and Conditions by the Publisher, MediaCruiser is entitled to ban the Publisher’s Account. It means no longer access for the Publisher to the Account and no use of MediaCruiser’s Services. 

5.5. Notice and action mechanisms. MediaCruiser may be provided with notice of illegal content via [email protected] or verify the content of its own using designated personnel. In the event of a notice regarding materials or content that is illegal or inconsistent with these Terms and Conditions, MediaCruiser will, without undue delay, send the person or entity that submitted the notice a confirmation of its receipt to the indicated contact details. Within fourteen (14) days, MediaCruiser will also inform about its decision regarding the information covered by the notice. If illegal or inconsistent content is identified, MediaCruiser will take actions described in point 5.5.1. below, and the Publisher, who originally provided it, will be informed about aforementioned actions along with appropriate justification. The justification will include the following information: (i) kind of actions taken by MediaCruiser, (ii) facts and circumstances on the basis of which the decision was made, (iii) the basis of the decision made i.e. external notice or voluntary screening activities conducted by MediaCruiser, (iv) legal basis and reasons for classifying the content as illegal, (v) legal basis and reasons for classifying the content as inconsistent with the Terms and Conditions, (vi) information on the Publisher’s options to appeal against the decision, including out-of-court dispute resolution and judicial remedies. The person or entity that submitted the notice, as well as the Publisher, may appeal against the MediaCruiser decision. The appeal should include comprehensive justification and be submitted within fourteen (14) days of receiving information from MediaCruiser. The appeal will be considered by MediaCruiser within fourteen (14) days of its receipt. 

5.5.1. If the Publisher’s materials or content is illegal or inconsistent with these Terms and Conditions, MediaCruiser can take in particular following actions: remove the materials or content from the MediaCruiser Platform, prevent access to materials and content, limit or disable materials or content monetization, suspend or terminate provision of Services to the Publisher, suspend or terminate the Publisher’s Account. 

5.6. Notification of suspicions of criminal offences. Additionally, where MediaCruiser becomes aware of any information giving rise to a suspicion that a criminal offence involving a threat to the life or safety of a person or persons has taken place, is taking place or is likely to take place, it shall promptly inform the law enforcement or judicial authorities of the EU Member State(s) concerned of its suspicion and provide all relevant information available. 

5.7. Internal complaint-handling system. MediaCruiser provides Recipients of the Services, including individuals or entities that have submitted a notice, for a period of at least six months following the decision referred to in point 5.5. above, electronically and free of charge, against the decision taken by MediaCruiser upon the receipt of a notice or against the following decisions taken by MediaCruiser on the grounds that the information provided by the Recipients constitutes illegal content or is incompatible with its terms and conditions: (i) decisions whether or not to remove or disable access to or restrict visibility of the information, (ii) decisions whether or not to suspend or terminate the provision of the Services, in whole or in part, to the Publisher, (iii) decisions whether or not to suspend or terminate the Publisher’s Account, (iv) decisions whether or not to suspend, terminate or otherwise restrict the ability to monetize information provided by the Publisher. 

5.7.1. The period of at least six (6) months referred to in point 5.7 shall start on the day on which the Recipient of the Services is informed about the decision. 

5.7.2. MediaCruiser will handle complaints and any kind of communciations submitted through its ”Contact Us” section on the MediaCruiser website in a timely, non-discriminatory, diligent and non-arbitrary manner.. Where a complaint contains sufficient grounds for MediaCruiser to consider that its decision not to act upon the notice is unfounded or that the information to which the complaint relates is not illegal and is not incompatible with the Terms and Conditions, or contains information indicating that the complainant’s conduct does not warrant the measure taken, it shall reverse its decision referred to in point 5.7. without undue delay. 

5.7.3. MediaCruiser will inform complainants without undue delay of its reasoned decision in respect of the information to which the complaint relates and of the possibility of out-of-court dispute settlement described in point 5.8. below and other available possibilities for redress. MediaCruiser will ensure that aforementioned decisions are taken under the supervision of appropriately qualified staff, and not solely on the basis of automated means. 

5.8. Out-of-court dispute settlement. Recipients of the Services, including individuals or entities that have submitted notices, addressed by the decisions referred to in point 5.7. above shall be entitled to select any out-of-court dispute settlement body that has been certified by the Digital Services Coordinator in order to resolve disputes relating to those decisions, including complaints that have not been resolved by means of the MediaCruiser’s internal complaint-handling system. Either MediaCruiser and the Recipient of the Services shall engage, in good faith, with the selected certified out-of-court dispute settlement body with a view to resolving the dispute. These rights are without prejudice to the right of the Recipient of the Services concerned to initiate, at any stage, proceedings to contest those decisions of MediaCruiser before a court in accordance with the applicable law. 

5.9. Measures and protection against misuse. MediaCruiser shall suspend, for a reasonable period of time and after having issued a prior warning, the processing of notices and complaints submitted through the notice and action mechanisms and internal complaints-handling systems, respectively, by individuals or entities or by complainants that frequently submit notices or complaints that are manifestly unfounded. MediaCruiser takes into account when assessing whether certain behaviour constitutes misuse especially the following facts and circumstances: (i) the number of manifestly unfounded notices or complaints and the relative proportion thereof in relation to the total number of information provided or notices submitted within 1 (one) year, as well as (ii) the gravity of the misuses including the nature of illegal content, and of its consequences, and (iii) the intention of the Recipient of the Services, the individual, the entity or the complainant. A reasonable period of time of such suspension will not be longer than 3 months. MediaCruiser considers the notice or a complaint as misuse, if an individual or entity or complainant submitted in the last 12 (twelve) months at least 3 notices or complaints which were obviously unfounded. 

5.9.1. MediaCruiser shall also suspend, for a reasonable period of time and after having issued a prior warning, the provision of its Services to Publishers that frequently provide manifestly illegal content. MediaCruiser takes into account when assessing whether certain behaviour constitutes misuse the facts and circumstances stated in point 5.9. above. The duration of the suspension is based on Publisher’s activity, especially in relation to the Publisher’s cooperation and removing illegal content immediately. Certain behaviour that constitutes misuse is assessed with regard to prohibited activities indicated in point 5.2. of these Terms and Conditions. 
 

6. GENERAL TERMS 

6.1. Representations & Warranties. MediaCruiser represents and warrants that it has full power and authority to enter into these Terms and Conditions. The Publisher represents and warrants that it has full power and authority to agree to these Terms and Conditions. 

6.2. LIMITATION OF LIABILITY. MEDIACRUISER AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS AND AGENTS (COLLECTIVELY THE “MEDIACRUISER PARTIES”) ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING THE ADVERTISERS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF MEDIACRUISER PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDIACRUISER PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF MEDIACRUISER PLATFORM, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH MEDIACRUISER, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF MEDIACRUISER. MEDIACRUISER IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” WITHOUT WARRANTY, OF ANY KIND, ANY USE BY YOU SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MEDIACRUISER PARTIES BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR TORTS/DELICTS, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ANY DATA OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR ANY RELATED DOCUMENT OR THE USE OF OR INABILITY TO USE MEDIACRUISER PLATFORM (INCLUDING CAMPAIGN’S SETTINGS) EXCEPT FOR DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EVEN IF MEDIACRUISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THE ABOVE LIMITATION OF LIABILITY IS DEEMED NAVLID BY THE COMPETENT COURT, THE TOTAL, CUMULATIVE LIABILITY OF MEDIACRUISER PARTIES RESULTING FROM THESE TERMS AND CONDITIONS OR CONNECTED WITH IT SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO PUBLISHER IN THE PRECEDING TWELVE (12) MONTHS. LIABILITY OF THE MEDIACRUISER PARTIES IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, IT MEANS THAT IT IS LIMITED ONLY TO DAMAGES CAUSED BY INTENTIONAL FAULT OF ANY OF THE MEDIACRUISER PARTIES. 

6.3. Intellectual Property. As between MediaCruiser and the Publisher, MediaCruiser (or others it so designates in writing) shall own all rights, titles and interests to use of Intellectual Property Rights (as defined below), relating to MediaCruiser Platform (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to MediaCruiser Platform. For purposes of these Terms and Conditions, “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and reinstatements thereof, now or hereafter in force and effect worldwide. The Publisher shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to MediaCruiser Platform or MediaCruiser; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any site, or any other technology, software, materials and documentation related to MediaCruiser Platform or MediaCruiser; (iii) crawl, index or in any non-transitory manner store or cache information obtained from MediaCruiser Platform; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from MediaCruiser, any aspect of MediaCruiser Platform under any timesharing, service bureau or other unauthorized method or access thereto; or (v) engage in any action or practice that reflects poorly on MediaCruiser Platform, MediaCruiser or its other Publishers, or otherwise disparages or devalues the reputation or goodwill of the same. 

6.3.1. As between MediaCruiser and the Publisher, MediaCruiser (or others it so designates in writing) shall own rights to use of the all algorithms, methods of computation used by MediaCruiser Platform to measure sales including all applicable rights to use of the patents, copyrights, trademarks, trade secrets, or other proprietary or Intellectual Property Rights inherent therein or appurtenant thereto. All rights not expressly granted to the Publisher herein are reserved to MediaCruiser and other entitled entities. 

6.3.2. The Publisher’s materials (i.e. websites, domains, ad generating software, toolbars, browser extensions etc.) are and shall remain its sole and exclusive property, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or Intellectual Property Rights inherent therein or appurtenant thereto. 

6.3.3. For the purposes of concluded Agreement, the Parties indicate that „Marks” refer to trademarks, trade names, service marks, logos and other trade-identifying symbols and brand features, whether registered or unregistered, that are used by the Publisher in its business activities. On the basis of these Terms and Conditions, the Publisher agrees to the use of the Publisher’s Marks by MediaCruiser as well as the Publisher represents that it has rights to Marks that enable the Publisher to grant a license under the following conditions: 
a) Subject to these Terms and Conditions, the Publisher grants MediaCruiser and its affiliates non-exclusive, nontransferable, royalty-free, non-sublicensable and irrevocable license during the term of the Agreement and one year after its termination without any territorial restriction. This license includes the right to use, fix, reproduce, distribute and display Publisher’s Marks on MediaCruiser’s websites and social media accounts solely for the purposes of marketing, promotng and advertising MediaCruiser’s services. 
b) Subject to aforementioned license explicity granted by the Publisher, any Publisher’s intellectual property rights and proprietary rights shall remain unchanged between the parties and MediaCruiser’s affiliates (if applicable). 
c) MediaCruiser undertakes to use the Marks only in good faith and in a way that does not violate the good name and reputation of the Publisher. The Publisher, in turn, undertakes to indemnify MediaCruiser from any claims and damages caused by untrue statements of the Publisher regarding its rights to the Marks, especially the ones causing infringement of third parties’ rights in connection with the use of Marks by MediaCruiser. 
d) If the Publisher opposes the use of its Marks in the manner provided for in the Terms and Conditions, the Publisher can submit its objection to MediaCruiser to the following e-mail address: [email protected]. In this case, MediaCruiser will cease using the Publisher’s Marks. 

6.4. Confidentiality. The Publisher agrees to safeguard and, except MediaCruiser’s written consent, not to disclose to anyone any proprietary or confidential information acquired in relation to the Publisher’s access to MediaCruiser Platform. Such information includes, without limitation, Personal Data, principles of operations of MediaCruiser Platform, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds (hereinafter referred to as “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly available through no action or fault of the Publisher, (ii) was already in the Publisher’s possession or known to the the Publisher prior to being disclosed or provided to it by or on behalf of the other party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to MediaCruiser or any other party with respect thereto, (iii) was or is obtained by the Publisher from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary obligation of confidentiality to MediaCruiser or any other party with respect to such information or material, or (iv) is independently developed by the Publisher without reference to the Confidential Information. 

6.4.1. The Publisher shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. The Publisher agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of MediaCruiser’s rights therein. The Publisher shall use its best efforts to assist MediaCruiser in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, the Publisher shall advise MediaCruiser immediately in the event the Publisher learns or has reason to believe that any person to whom the Publisher has given access to Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other the proprietary rights of MediaCruiser, and the Publisher will, at the Publisher’s expense, cooperate with MediaCruiser in seeking injunctive or other equitable relief in the name of the Publisher or MediaCruiser against any such person. The Publisher agrees to maintain the confidentiality of MediaCruiser’s Confidential Information using at least as great a degree of care as the Publisher uses to maintain the confidentiality of the Publisher’s own most confidential information (and in no event less than a reasonable degree of care). Especially, the Publisher is obliged to conclude non-disclosure agreements with any person that has access to the Publisher’s Account, which content shall allow for objective protection of Confidential Information. The Publisher acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation MediaCruiser Platform or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to MediaCruiser inadequately compensable in damages at law, and MediaCruiser is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available.  

6.4.2. The disclosure of the Confidential Information is not a breach of these Terms and Conditions if it was made due to the demand of common courts, administrative courts, public authorities due to the obligation stipulated by the provisions of applicable law and the Publisher notifies MediaCruiser immediately about this obligation and in any case before the disclosure and discloses the Confidential Information only in the least possible extent. 

6.4.3. The Publisher is obliged to keep confidentiality of the Confidential Information during the Term of the Agreement and for 20 (twenty) years after its termination. MediaCruiser may immediately ban the Publisher’s Account and terminate all license rights granted herein, in the event the Publisher breaches any of its confidentiality obligations. 

6.5. Modifications. MediaCruiser reserves the right to change these Terms and Conditions and prices for its Services at any time in its sole discretion and pursuant to applicable law. Amended versions of the Terms and Conditions or new pricing lists shall be effective upon providing the Publisher with an email notice of at least 2 (two) weeks. Amendments of the pricing list do not affect ongoing Campaigns. Your continued use of MediaCruiser Platform after the effective date of any such notice shall constitute your acceptance of and agreement to such changes. IF THE PUBLISHER DOES NOT WISH TO BE BOUND TO NEW TERMS AND CONDITIONS, IT MUST TERMINATE THE AGREEMENT AT LEAST ONE DAY BEFORE THE EFFECTIVE DATE OF NEW TERMS AND CONDITIONS BY AN EMAIL NOTICE. 

6.5.1. MediaCruiser reserves the right to modify MediaCruiser Platform and its functions or functionalities at any time in its sole discretion and without any liability. MediaCruiser agrees to use commercially reasonable efforts to minimize unscheduled modification and maintenance interruptions. However, MediaCruiser reserves the right to modify or maintain MediaCruiser Platform at any time, with or without notice to the Publisher.  

6.6. Indemnification. The Publisher shall indemnify, defend, and hold harmless MediaCruiser (including the MediaCruiser Parties) from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by MediaCruiser, known or unknown, contingent or otherwise, directly or indirectly arising from the Publisher’s breach of any term or provision of these Terms and Conditions or any way related to the Publisher’s use of the MediaCruiser Platform, including but not limited to any claim for infringement of Intellectual Property Rights of a third party. MediaCruiser shall notify the Publisher of any such claim and shall cooperate with the Publisher, at its expense, in defending or settling such claim. The Publisher shall not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects MediaCruiser’s rights without MediaCruiser’s prior written consent. The Publisher may join in defense with counsel of its choice at its own expense. If the Publisher does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, MediaCruiser may defend against such claim in such manner as it may deem appropriate at the Publisher’s expense, including, without limitation, settling such claim, after giving notice to the Publisher. 

6.7. End Users’ data. By using MediaCruiser Platform the Publisher may collect and store data regarding activities of End Users and client company details. This data may include information about IP addresses, session-based browsing behaviour, device-related data, user contact information, and company details including but not limited to name, address, phone number, email address (collectively referred to as “Data”). Detailed information regarding types of Data that may be collected, used or stored through MediaCruiser Platform is specified in the MediaCruiser Data Protection Agreement (https://mediacruiser.com/dpa/) and End User Privacy Policy (https://mediacruiser.com/end-user-privacy-policy/). Please note that any references to “End Users” mean the end user of an Internet connected device, such as a visitor to a web page, a user of a mobile app, or a user of an IoT device, or a visitor on advertisement or campaign webpage. 

6.7.1. If any Data is personally identifiable information or personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (further referred to as “Personal Data” and the “GDPR” respectively), and processed thereof, it shall be governed under the terms and conditions set forth in the MediaCruiser Data Processing Agreement (https://MediaCruiser.com/dpa/), further referred to as the “DPA”. The DPA is an integral part of these Terms and Conditions. Unless otherwise explicitly stated in the DPA, it is agreed and acknowledged by the parties that with respect to Personal Data included in the Data processed in connection with Services, the parties shall clearly define their respective roles as either “Controller” or “Processor” in the DPA, in compliance with GDPR requirements. The Publisher represents and warrants that MediaCruiser is permitted to collect, use and transfer Data on behalf of the Publisher in order to provide Services according to the terms defined under DPA. 
 

7. MISCELLANEOUS 

7.1. Governing Law. The Terms and Conditions shall be governed by, and construed in accordance with, the laws of Poland, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. 

7.2. Jurisdiction and Venue. Any litigation based hereon, or arising out of, under, or in connection with these Terms and Conditions, shall be brought and maintained exclusively in the court competent for MediaCruiser’s registered office. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the aforementioned court for the purpose of any such litigation as set forth above. In addition, each party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum. 

7.3. Waiver of Jury Trial. Each of the parties hereto hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms and Conditions and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury. 

7.4. No Third Party Beneficiaries. These Terms and Conditions are made solely for the benefit of the Publisher and MediaCruiser Parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms and Conditions. 

7.5. Assignment. The Publisher may not assign any of its rights or delegate any of its duties under these Terms and Conditions or additional agreements (if concluded with MediaCruiser) without the prior written consent of MediaCruiser. Despite such consent, no assignment shall release the assignor any of its obligations or alter any of its primary obligations to be performed under these Terms and Conditions. The Publisher hereby agrees that MediaCruiser is entitled to assign any of its rights and obligations under these Terms and Conditions and additional agreements (if concluded with the Publisher) to any third party and at any time without separate consent of the Publisher. 

7.6. Successors and Assigns. Except as otherwise expressly provided herein, these Terms and Conditions shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to the Terms and Conditions. 

7.8. Independent Contractor. The relationship of the Publisher and MediaCruiser established by these Terms and Conditions is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. 

7.9. Force Majeure. Neither party shall be deemed in default of the Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of an event of force majeure. An event of force majeure is an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent i.e. riot, war, invasion, act of foreign enemies, hostilities, terrorism, strikes, flood, fire or other physical natural disaster, epidemic, strike, act or actions of government or shortage of materials or supplies. 

7.10. Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms and Conditions shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by MediaCruiser in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. 

7.11. Entire Agreement. Except as may be set forth in an written agreement signed by MediaCruiser and the Publisher, these Terms and Conditions constitute the final, complete, and exclusive statement of the terms of the use of MediaCruiser Platform between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties. 

7.12. Severability. If any provision of the Terms and Conditions is found to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable it shall be so narrowly drawn, without invalidating the remaining provisions of the Terms and Conditions or affecting the validity or enforceability of such provision. 

7.13. Attorney’s Fees. If MediaCruiser prevails in any action, suit, or proceeding arising from or based upon the Terms and Conditions, MediaCruiser shall be entitled to recover from the Publisher MediaCruiser’s reasonable attorneys’ fees in connection therewith in addition to the costs of such action, suit, or proceeding. 

7.14. Headings. The headings in the Terms and Conditions are included for convenience only and shall neither affect the construction or interpretation of any provision herein nor affect any of the rights or obligations of the parties of the Terms and Conditions. 

7.15. Notices and Complaints. Any notice, communication or statement relating to Terms and Conditions shall be done by an email unless the written form is reserved in these Terms and Conditions. The notice is deemed effective upon delivery to the contact data of the respective party as indicated herein or in the Publisher’s Account. In the event of non-material changes to the Terms and Conditions (e.g. editorial changes, correction of obvious typographical errors), notice shall be deemed effective upon posting at MediaCruiser Platform. In the event of material changes to the Terms and Conditions (i.e. affecting the rights and obligations of the parties), notice shall be effective upon delivery to the email address last provided by the Publisher. In the event that the Publisher believes that the Agreement is not being performed in accordance with the provisions of the Terms and Conditions, it may submit a complaint to MediaCruiser in the term of fourteen (14) days from noticing the breach of the Agreement by MediaCruiser. All complaints will be handled within a reasonable timeframe, not exceeding thirty (30) days. The notices and complaints of the Publisher can be sent on the following addresses: 3rd Floor, Atlantic house, 4-8 Circular Road Douglas, IM1 1AG, Isle of Man or by email to: [email protected]  

7.16. Survival. Sections Representations & Warranties, Intellectual Property, Confidentiality, Indemnification and Miscellaneous and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms and Conditions shall survive and remain in effect after such happening. 

7.17. Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the provisions of these Terms and Conditions. These Terms and Conditions shall not be construed against either party by reason of its drafting.