Effective Date 2nd of January 2024

This agreement is between Adsomnia B.V., and you, the individual or entity signing up as a publisher or advertiser to our platform. Please read this agreement carefully before registering or using the Adsomnia platform, accessible at Adsomnia.com (“Platform”). Participation in the Platform constitutes your acceptance of this agreement. If you do not agree to this agreement, you must not register or participate in the Platform.

Definitions
In this agreement, the following definitions apply:

Adsomnia Network: Refers to the advertising network operated by Adsomnia.
Ad Serving Platform: Denotes the technology and service responsible for placing advertisements on websites. This includes advertising software licensed to Adsomnia and subsequently sub-licensed to publishers and advertisers participating in the Adsomnia Network, subject to the terms of this agreement.
Advertiser(s): Represents one or more Adsomnia customers who create Advertising Material and authorize Adsomnia as their intermediary for inclusion on Publisher’s Websites.
Advertising Material: Encompasses text, graphics, logos, designs, trademarks, and copyrights for various types of advertising, such as banners, text ads, pop-ups, and pop-unders, created by an Advertiser.
CPM: Stands for cost per thousand views or impressions.
CPC: Stands for cost per click.
Dashboard: Refers to the interface provided by Adsomnia to clients (Publishers & Advertisers) for buying and selling traffic on the Adsomnia Network.
Impressions: Signifies the number of times Advertising Material is served to a person visiting the Publisher’s Website(s).
Insertion Order: Denotes a written authorization to display advertisements on Publisher’s Website(s).
Publisher(s): Refers to one or more Adsomnia customers responsible for distributing online Advertising Material on Publisher’s Website(s).
Publisher Earnings: Represents the percentage of the sale price of advertisements determined by Adsomnia for Publisher’s use of the Platform.
Publisher’s Website(s): Encompasses the space, including the homepage, website, or email, where the Publisher(s) incorporate or embed the Advertising Material.
Unique Click: Denotes the number of times a user visiting Publisher’s Website(s), as identified by IP address, clicks on Advertising Material. A click by a specific visitor will only be counted as a Unique Click once every 24-hour period.

• The platform

Advertiser(s) promote and showcase their products and services through the utilization of Advertising Material. Publisher(s), on the other hand, integrates or embeds the Advertising Material into their respective Website(s) via the Adsomnia Network utilizing the Ad Serving Platform. Adsomnia offers guidance to assist both Advertiser(s) and Publisher(s). It’s important to note that Adsomnia, being a service provider, lacks effective knowledge about the content present on the Publisher’s Website(s) or within the Advertising Material generated by the Advertiser(s) and subsequently published on the Publisher’s Website(s). The responsibility for said content lies solely with the Publisher and Advertiser, who are obligated to indemnify Adsomnia against any liabilities, infringements, damages, or losses associated with the content. In the event that any content is found to be illegal, in violation of any laws, including intellectual property laws, or otherwise breaches the terms of this agreement, kindly request its removal at info@Adsomnia.com. This will enable us to promptly eliminate and prevent access to such content.

• Publisher eligible website(s)
  • Adsomnia reserves the right to grant or refuse approval for a Publisher’s participation at its discretion. In the event of non-approval, the Publisher will not be entitled to receive payment for the revenue indicated on its Dashboard. The Publisher bears the responsibility of ensuring continuous adherence to Adsomnia’s eligibility rules. The subsequent examples highlight types of Publisher’s Website(s) deemed ineligible for participation in the Adsomnia Network:
    • Websites containing material that violates others’ rights, including copyright and intellectual property rights, or promotes copyright piracy.
    • Websites referencing illicit practices or degrading human dignity: Content with pornographic depictions of minors; Content apologizing for nonviolent criminal behavior, sexual aggressions, and war crimes; Content provoking discrimination, hate, or violence based on origin, ethnicity, nationality, race, or religion. Descriptions are automatically recorded and reported to authorities.
    • Websites engaging in inappropriate newsgroup postings, unsolicited email (spam), and equivalent electronic communications (e.g., SMS, chat, social networks).
    • Websites promoting illegal substances or activities, such as bomb-building, hacking, or ‘phreaking.’
    • Websites providing illegal, false, or deceptive investment advice.
    • Websites offering incentives to click on ad banners, like charity or sweepstakes.
    • Websites under construction or incomplete.
    • Websites with extremely limited audiences (less than 50 unique visitors per day).
    • Websites violating Spanish laws or the laws of any other applicable country, especially those infringing on intellectual property, personal data, or privacy laws. Publishers’ websites must not violate any law, rule, or custom or infringe on any person’s or entity’s rights.
    • Websites created on free blogging or forum platforms.
    • Websites with more than 6 ads per page, more than 2 pop-ups or pop-unders, or more than 1 exit pop-up (considering all ad networks or affiliate programs).
    • Websites lacking added value for users.Adsomnia does not control or monitor Publisher’s Websites. However, a website might be brought to its attention or may be checked for any reason. If Adsomnia determines that Publisher’s Website(s) includes any forbidden content, Adsomnia may close Publisher’s account without notice. In that case, as liquidated damages for breaching this agreement, Publisher will not receive payment of any amounts remaining in its Dashboard, regardless of any other or further liability Publisher incurs.
    • Adsomnia lacks control or ongoing monitoring of Publisher’s Websites. However, a website may be flagged or inspected for various reasons. Should Adsomnia find that the Publisher’s Website(s) contains prohibited content, Adsomnia reserves the right to promptly close the Publisher’s account without prior notice. In such instances, as a pre-determined compensation for violating this agreement, the Publisher will forfeit any remaining amounts in its Dashboard, irrespective of any additional liabilities incurred by the Publisher.
      
      
      
      
• Misuse
  • Engaging in any form of misuse, including securing business transactions through unfair or impermissible means that violate the law or terms of this agreement, is strictly prohibited. Publishers are expressly forbidden from attempting to gain commissions through the following methods:
    • Fraudulent Transactions: Pretending or faking business transactions, such as entering unauthorized nonparty data or providing false information during online registrations or when ordering goods.
    • Invisible Tracking: Using Advertising Material that allows tracking even when it is not displayed, not visible, or not in the specified manner or size outlined by the Advertiser.
    • Brand-Bidding: Any attempt to bid on brands in violation of Adsomnia’s policies.
    • Other Prohibited Methods: Any other method deemed unacceptable by Adsomnia or that goes against the spirit of this agreement.
    • Instances of misuse will result in the immediate blocking of the Publisher’s accounts. Publishers have one month to raise objections, providing a statement and evidence demonstrating compliance with the agreement. Failure to refute the breach will lead to a termination notice from Adsomnia. In the event of a breach, the Publisher will not receive any payment, irrespective of additional liabilities incurred.
      
  • Fraudulent Impressions: 
    • Adsomnia’s ad server is the official counter for determining the number of Advertising Material delivered and amounts payable. Impressions or clicks are solely decided based on Adsomnia Network reports.
    • Prohibited methods include artificially inflating impressions or clicks, such as framing click-through destinations, auto-spawning browsers, running spiders against the Publisher’s Website(s), automatic user redirection, or any other technique generating automatic or fraudulent click-throughs or impressions.
    • Advertising Material must not be placed on pages that reload automatically. Users should not be compelled to click on Advertising Material before entering a Publisher’s Website or any specific area within it. Providing incentives or requirements for clicking on Advertising Material is strictly forbidden.
    • Click-throughs on links other than Adsomnia’s Advertising Material or any other means of artificially enhancing click results constitute a material breach. In such cases, Adsomnia reserves the right to terminate the agreement without prior notice, at its sole discretion, and without waiving any other available legal or equitable remedies.
  • Indemnification:
    Publishers are obligated to indemnify Adsomnia against any liabilities, losses, or damages directly or indirectly resulting from their breach of this agreement.
    
• Publisher Payments
  • Payments: Publisher payments occur monthly through Wire Transfer or Paypal. Payments are automatically generated by the Adsomnia platform. To receive payment, Publishers must meet the minimum payout of €1000,-. Adsomnia is obliged to pay the Publisher for Impressions or clicks actually delivered to each of the Publisher’s approved Website(s).
    
  • Invoicing: The Publisher explicitly instructs Adsomnia to generate and issue invoices on their behalf. Before making any payment, Adsomnia will generate the invoice through its platform, which the Publisher accepts in advance. The Publisher acknowledges that invoices are generated based on provided data and warrants its accuracy and legal compliance, especially for invoicing and taxation purposes. EU-resident Publishers with a VAT number warrant its validity for issuing VAT-exempt invoices. Failure to provide necessary documents prompts Adsomnia to deduct and pay any due VAT and/or withholding tax to the Dutch tax office. The Publisher is solely liable for errors or damages arising from inaccurate or non-compliant data, holding Adsomnia harmless. In case of any claims or disputes, Adsomnia is authorised to retain payments until resolution and seek compensation from the retained amounts for any losses suffered.
    
  • Liability for Publisher’s Revenue: Publisher acknowledges that Adsomnia acts as a third party for Advertisers and is only liable for Publisher’s Revenue based on payments received from Advertisers with no restrictions. Adsomnia has no liability for unpaid payments from Advertisers, and any claims must be directed to the Advertisers. The Publisher holds Adsomnia harmless and indemnifies it from claims related to unpaid amounts. Adsomnia commits to making reasonable efforts to bill, collect, and clear payments on a timely basis. Adsomnia reserves the right not to make payments if the Publisher violates terms and conditions.
    
  • Other Expenses: Adsomnia bears no responsibility for paying income taxes, banking commissions, or currency fees on behalf of the Publisher. By participating in the Adsomnia Network, the Publisher assumes sole responsibility for any taxes, banking commissions, or currency fees incurred.
    
  • Withholding and Disclosure: Adsomnia has the right to withhold, stop, or cancel any payments owed to the Publisher and disclose information if compelled by a court or administrative authority.
    
• Advertising Material
  • Publisher Obligations: Publishers are required to integrate the Adsomnia tag/code on all relevant pages of their website(s). The Adsomnia tag should not be modified, sold, or disclosed without prior written consent from Adsomnia. Usage of the Adsomnia tag for Advertising Material is restricted to approved Publisher’s Websites, and its distribution to unauthorized locations, including newsgroups, email lists, chat rooms, guest books, is prohibited.
  • Recording statistics: Adsomnia is responsible for calculating statistics, encompassing Impressions, click-through rates, revenues, and CPM. Publishers can access statistics online through the Adsomnia Dashboard. Acknowledging that online statistics may not be entirely accurate, Adsomnia reserves the right to make adjustments. In instances where coding issues on Publisher’s Website(s) lead to a significant number of erroneous impressions, Adsomnia may withhold payment for all affected Impressions and clicks.
  • Volume of Impressions: Adsomnia does not guarantee a specific volume of traffic, and impressions may vary from day to day based on site performance.
  • Ad Serving Platform: Statistics related to impressions and revenues will be supplied by Adsomnia, and the Ad Serving Platform governs this agreement.
    
• Advertising Budget
  Advertisers are required to prepay their advertising budget. All payments must be made in euro’s or any other agreed-upon currency specified in writing by the parties. Advertiser agrees to adhere to the payment terms outlined in the relevant campaign settings, inclusive of applicable taxes, unless otherwise mutually agreed upon in writing. Charges are exclusive of taxes, and Advertiser is responsible for settling all taxes, government charges, reasonable expenses, and legal fees incurred by Adsomnia in the process of collecting unpaid amounts. Advertiser expressly waives any claims related to charges (including those based on suspected invalid clicks) unless raised within 60 days of the charge (excluding Advertiser’s credit card issuer rights).Charges are determined solely based on Adsomnia’s Ad Serving Platform measurements unless explicitly agreed otherwise in writing. No provision in this agreement or any Insertion Order compels Adsomnia to issue credits. Advertiser acknowledges that credit card and billing information provided may be shared with Adsomnia’s affiliated companies, including payment processors and credit agencies, for credit verification, payment processing, and account servicing purposes. Adsomnia reserves the right to withhold deposits or charge Advertiser’s account for any breach of this agreement. This agreement does not impose an obligation on Adsomnia to extend credit to any party.
  
• Refund Policy
  Adsomnia does not offer refunds for delivered ad impressions. Upon making an initial deposit in the Adsomnia Ad Serving Platform, an Advertiser may request an account balance withdrawal if dissatisfied with the Platform and is otherwise compliant with this agreement. If the account balance falls below the agreed-upon minimum withdrawal amount, no payment will be processed. Advertisers terminated by Adsomnia due to violations of this agreement are not eligible for refunds.
  
• Representations & Warranties
  • Publisher(s) Representations and Warranties:

Publisher(s) affirms and assures Adsomnia of the following:
– All content, products, and services on the Publisher’s Website(s) are legally distributable, owned, or legally used without infringement of copyrights, trademarks, patents, or other proprietary rights.
– The Publisher’s Website(s) currently do not, and will not during the agreement term, contain any materials outlined in Section 4 of this Agreement.
– The Publisher’s Website(s) are free from any “worm,” “virus,” “malware,” or devices that could harm any person or entity.
– Familiarity with Internet regulations and compliance with all applicable laws, rules, and regulations.
– Full legal power and authority under organisational documents to enter into and perform this Agreement without conflict or violation of any existing agreement, law, regulation, or obligation.
– Strict adherence to the prohibition of unsolicited advertisement (“Spam”) when sending Advertising Material via email or any equivalent electronic communication means. Written evidence of consent must be provided upon Adsomnia’s request.

• Advertiser(s) Representations and Warranties:

Advertiser(s) assures Adsomnia that none of the advertising provided includes:
– Material involving paraphilia or scatological activities.
– Material depicting children or minors in adult or sexual situations.
– Promotion of illegal products or services.
– Incentives for online activities that artificially enhance metrics.
– Promotion of violence, racial intolerance, or advocacy against individuals, groups, or organisations.
– Promotion of fake documents, copied material, or paper mills.
– Unauthorised use of third-party trademarks likely to cause confusion or dilution.
– Promotion of drugs or related paraphernalia.
– Sales or offers of certain weapons, alcohol, tobacco, or related paraphernalia.
– Advertisements for electronic cigarettes are permitted but cannot contain tobacco.
– Attempts to profit from human tragedy or suffering.
– Promotion of illegal activities infringing on the rights of others, including intellectual property rights.
– Promotion of gambling or online betting that allows U.S. registrations; pre-approved gaming advertisements must meet specific criteria.
– Content targeting children aged 18 and younger.
– Material not adhering to specific advertising rules set in the Administration Panel for particular Publisher’s Website(s).
– Advertiser shall indemnify Adsomnia against any liabilities, losses, or damages arising directly or indirectly from Advertiser’s infringements of this Agreement.

• Termination and/or cancelation
  Adsomnia’s Termination: Adsomnia holds the right to immediately terminate this agreement or cancel any ad(s) at its discretion, with or without cause. Notification of such termination or cancellation will be made to Advertiser(s), Publisher(s), and nonparties through email within a reasonable period.

Advertiser’s Termination: Advertiser(s) retains the right to cancel any ads or terminate this agreement, with or without cause, at any time by deactivating a campaign in the Dashboard.

Publisher’s Termination: Publisher(s) can terminate this agreement by removing the Adsomnia JavaScript Tag from the Publisher’s Website(s).

Termination for Material Breach: If either party fails to fulfill a material obligation as defined in this agreement, the other party reserves the right to terminate this agreement 60 days after providing written notice to the party in breach. The termination is contingent upon the material breach remaining uncured, without prejudice to the right to claim damages caused to the non-breaching party.

• Data Protection
  • Privacy Policy Compliance:
    Adsomnia and the other party shall prominently display a privacy policy on their website(s) outlining the collection, usage, storage, and disclosure practices of users’ personal data, including email addresses. The policy should also guide users on opting out of such practices.
    
  • Adsomnia’s Privacy Policy:
    Adsomnia maintains a Privacy Policy on its website, explaining the utilization of personal data provided by users and measures taken to safeguard privacy. The policy details the process for users to request amendments or deletions of personal data from Adsomnia’s records and how to cease all contact. Users are deemed to have read and accepted the terms upon using Adsomnia’s services.
  • Data Transfer and Protection:
    In adherence to Adsomnia’s Privacy Policy, the platform may transfer personal data to service providers requiring access to deliver contracted services. These providers, situated in Third Countries, have signed necessary confidentiality and data processing agreements, complying with privacy protection regulations. For further information on privacy assurances, contact Adsomnia at the provided electronic or postal addresses.
  • Publisher’s Privacy Compliance:
    Publishers must disclose in their privacy policy that third-party advertisers may place cookies on visitors’ browsers to Publisher’s Website(s). Following EU Directive 2002/58/EC and Directive 2009/136/EC, Publishers should offer clear information to end users about devices like cookies in use, implementing an opt-in system for prior and informed consent in the European Union.
  • Regulatory Compliance:
    Both parties warrant compliance with all applicable rules and regulations, encompassing laws governing privacy and data protection, throughout the term of this Agreement.
    
    
• Indemnification & Limitation of liability
  • Indemnification
    You agree to indemnify, defend and hold Adsomnia and its officers, directors, shareholders, successors, affiliates, employees, agents and representatives harmless from and against any and all costs, claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any claims and lawsuits or proceeding for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation on the Adsomnia Network, (ii) operation of the Publisher’s Website(s) submitted to Adsomnia for participation on the Adsomnia Network or (iii) otherwise arising from a relationship with Adsomnia. You also agree to indemnify Adsomnia for any legal fees incurred by Adsomnia, acting reasonably, in investigating or enforcing its rights under this Agreement.
  • Limitation of Liability
    UNDER NO CIRCUMSTANCES WILL ADSOMNIA BE LIABLE TO PUBLISHER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT Adsomnia HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL ADSOMNIA’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE LAST MONTH’S PAYMENTS TO THE PUBLISHER.
    
• Modification
  • Adsomnia reserves the right to amend the provisions of the present Agreement that are minor in scope or nature, and to do so without citing any reasons, provided such modifications do not lead to the Agreement as a whole being restructured. Adsomnia will communicate, by e-mail or electronic means or through the Administration Panel, the modified conditions at least two weeks prior to the Effective Date. Publishers who do not object in writing to the modification within four weeks after the receipt of the communication will be deemed to have accepted the respective modification. Adsomnia will specifically indicate the possibility of objecting to the modification and the consequences of the four-week deadline.
  • If the Publisher(s) objects to the new (modified) Terms, Adsomnia´s request to so modify them will be deemed to have been rejected. The Agreement will then be continued without the proposed modification. The right of the parties to terminate their participation on the Adsomnia Network remains unaffected hereby. The possibility of terminating the Agreement will also be indicated specifically.
    
• Dispute Resolution
  • This Agreement shall be governed by and interpreted in accordance with the laws of The Netherlands.
  • For any matter related to the interpretation or execution of this Agreement, the parties expressly waive to submit to any courts which might have jurisdiction over the subject matter, and agree to submit to the sole competence and jurisdiction of the Courts of the City of Amsterdam.
    
• General Provisions
  • Force Majeure
    Adsomnia or the other party shall not be liable for the inability to perform obligations under this Agreement due to a Force Majeure Event. Causes include acts of God, civil or military authorities, riots, wars, and strikes. Performance is excused, and the timeframe extended, provided the affected party takes immediate steps for full resumption. If unable to resume after fifteen (15) days, the other party may terminate this Agreement with written notice.
    
  • Severability
    If any provisions are deemed invalid or unenforceable under Spanish rules or a Spanish court, they shall be severed without affecting the validity or enforceability of the remaining Agreement. The severed provisions will be modified and interpreted to achieve their purposes as much as possible within the extent of relevant laws.
    
  • Assignment
    Adsomnia is authorised to transfer its rights or obligations under this Agreement without prior written consent, provided the assignee assumes all responsibilities. Publisher/Advertiser cannot transfer rights or obligations without the consent of Adsomnia, except in the case of an entity merger, consolidation, or asset/stock purchase, where the assignee assumes all obligations in writing.
    
  • Notices
    All written notices or communications shall be deemed duly given when delivered in person, sent by verified facsimile or email with confirmation receipt. Addresses can be changed by notifying the other party in writing.
    
  • Relationship of Parties
    The parties are independent contractors, and neither shall create obligations on behalf of the other. No agency, partnership, joint venture, or formal business entity is implied or created.
    
  • Waiver
    No delay or failure to exercise any right or remedy will constitute a waiver. Waivers must be in writing and signed. A waiver of any breach or covenant shall not waive any succeeding breach.
    
  • Entire Agreement
    This Agreement is the entire agreement, superseding all previous agreements, oral or written. Information provided by Publisher(s) and Advertiser(s) during the Agreement’s formation is considered part of this Agreement.
    
  • Headings
    Headings are inserted for convenience and do not affect the Agreement’s interpretation.
    
  • Construction
    The Agreement has been jointly prepared, and its provisions will not be construed more strictly against either party.
  • Counterparts
    The Agreement may be executed in counterparts or online, forming one legal instrument.
    
  • No Third-Party Beneficiaries
    This Agreement is binding upon the parties and their permitted assigns. It does not confer legal or equitable rights, benefits, or remedies to any other person.