You are fully responsible for the due performance of your obligations under the Contract and must compensate to Adcash any and all damages caused by the non-performance or unsatisfactory performance of your obligations.
You agree to indemnify, hold and defend Adcash, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, clients and partners, harmless from any demands, loss, liability, claims or expenses, made against Adcash by any and all third-party claims and liabilities arising out of or related to or arising out of or in connection with your use of the Adcash website, including any served content that is not provided by Adcash, your use of the Adcash services, or your breach of any term of the Contract.
If Adcash takes any legal action against you as a result of your violation of the Contract, Adcash will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to Adcash.
YOU AGREE THAT ADCASH IS ENTITLED TO DEMAND THAT YOU PAID A CONTRACTUAL PENALTY IN THE FOLLOWING CASES:
If your Contract with Adcash is terminated due to the violation of Contract by you (e.g. due to your fraudulent activity), Adcash may demand from you a contractual penalty in the amount of your unused balance (if you are and Advertisers) or the amount of your un-invoiced earnings (if you are a Publisher) and set-off its claim for the contractual penalty against your claim for payment.
If you breach your obligation under the confidentiality agreement provided in Adcash General Terms and Conditions, Adcash may demand that you pay a contractual penalty up to the amount of EUR 10 000 for each breach. In case the contractual penalty does not cover the actual damages of Adcash, Adcash may also demand for compensation for damages exceeding the penalty.
If you as an Advertiser do not have any of the necessary rights, permits or licenses required for the display of the Campaign ads or the operation of your Site(s) and/or business activities in the selected countries and you have not notified Adcash thereof, Adcash may demand that you paid a contractual penalty up to the amount of EUR 10,000 for each breach. In case the contractual penalty does not cover the actual damages of Adcash, Adcash may also demand for compensation for damages exceeding the penalty.
In case Adcash receives from a third party a notice, complaint, legal action or anything similar (hereinafter the “Complaint”) according to which you either as a Publisher or Advertiser have breached any of the requirements of the Adcash Quality Agreement, anti-fraud policy or the anti-counterfeiting & anti-piracy policy, you undertake to pay to Adcash immediately a contractual penalty deposit payment in the amount of EUR 100 000 for each alleged event of breach (hereinafter the “Penalty Deposit”).
Adcash does not have to keep the paid Penalty Deposit separately from its own funds and no interest shall accrue on the Penalty Deposit for your benefit.
You are entitled to demand that Adcash returned the Penalty Deposit to you only if (i) the third party who submitted the Complaint confirms in writing that it takes back its Complaint and that you have not breached the respective requirement; or (ii) Adcash is presented with the copy of a court ruling which has entered into force proving that you have not breached the respective requirement.
If Adcash undertakes to return the Penalty Deposit to you, Adcash is entitled to deduct from the sum of the Penalty the amount of any reasonable and proven costs (including but not limited to costs for legal assistance) Adcash has borne in relation with the Complaint.
In any case you do not have the right to demand return of the paid Penalty Deposit once 3 years have expired from the payment of the Penalty Deposit and the conditions for the return of the Penalty Deposit have not been met by that time. In that case the Penalty Deposit shall be treated as a paid penalty payment.
LIABILITY OF ADCASH
ADCASH DOES NOT PROMISE THAT THE ADCASH WEBSITE OR ANY CONTENT, SERVICE OR FEATURE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE ADCASH WEBSITE AND SERVICES WILL PROVIDE SPECIFIC RESULTS. THE ADCASH WEBSITE AND ITS CONTENT AND ADCASH SERVICES ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE ADCASH WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE. ADCASH CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM THE ADCASH WEBSITE, PRODUCT OR ANY SERVICE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. ADCASH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ADCASH DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE ADCASH WEBSITE AND/OR ANY Adcash SERVICES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE Adcash WEBSITE AND ANY LINKED SITES AND ADCASH SERVICES. YOUR SOLE REMEDY AGAINST ADCASH FOR DISSATISFACTION WITH THE ADCASH WEBSITE OR ANY CONTENT OR ADCASH SERVICE IS TO STOP USING THE ADCASH WEBSITE OR ANY SUCH CONTENT OR ADCASH SERVICES. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.
Adcash reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Adcash website, or any portion of the Adcash website, for any reason; (2) to modify or change the Adcash website, or any portion of the Adcash website, and any applicable policies or terms; and (3) to interrupt the operation of the Adcash website, or any portion of the Adcash website, as necessary to perform routine or non-routine maintenance, error correction, or other changes. You agree that Adcash may, in its sole discretion and without prior notice, terminate your access to the Adcash website, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Adcash website or any service offered on or through the Adcash website,(4) violation by you of any terms and conditions of the Contract with Adcash, or (4) unexpected technical issues or problems.
TO THE EXTENT PERMITTED BY LAW (i) IN NO EVENT SHALL ADCASH BE LIABLE UNDER THE CONTRACT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (ii) ADCASH’S AGGREGATE LIABILITY UNDER THE CONTRACT IS LIMITED TO THE NET AMOUNT RECEIVED AND RETAINED BY ADCASH IN CONNECTION WITH THE CONTRACT WITH YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. You confirm that you have entered into the Contract with Adcash relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between you and Adcash.
In any event neither you nor Adcash are liable for delay or failure to perform under the Contract resulting from any occurrence or event which could not have been reasonably avoided including but not limited to accident, action of the elements, act of God, civil commotion, enemy action, epidemic, explosion, fire, flood, insurrection, strike, lockout or other labor trouble or shortage, natural disasters, riot, unavailability or shortage of material, equipment or transportation, war (whether or not declared), act, demand or requirement of law or of the Governments or any other competent governmental authority (force majeure).
The party in default of force majeure shall immediately notify the other party of the occurrence of force majeure, shall make reasonable efforts to remove or overcome the effects of such occurrence or event; and shall resume performance of its obligations hereunder immediately after cessation of such occurrence or event.
Notwithstanding the foregoing, either party may terminate this Contract upon written notice to the other in the event an occurrence of force majeure lasts for at least 3 months.