Raptive Service Agreement
Last updated: May 8, 2023
Your use of the Raptive services is subject to the following terms and conditions (the “agreement”). Use of the Raptive services indicates that you accept these terms and conditions. The Services are available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. You represent and warrant that (a), if you are an individual, you are at least 18 years old, and (b) if you represent a company, that company is appropriately licensed and is legally permitted to conduct business. In this Agreement, We use “We” interchangeably with “Raptive” and “You” to refer to the individual or entity identified by enrolling using the Dashboard interchangeably with “Client”. If you operate a company to run your Site, then you should enroll in the company.
Entire Agreement; Amendments. This Agreement constitutes the entire and only agreement between Client and CMI Marketing, Inc., d/b/a Raptive (“Raptive”), and supersedes all other agreements, representations, warranties and understandings with respect to the Services. We may amend this agreement at any time by posting a notice of the updates to the Dashboard. If we believe the changes are material, we’ll always try to reach you via email as well.
Exclusivity. The Services are exclusive in the sense that you agree not to appoint any third party to provide similar Ad Optimization Services for the Site during the term of this Agreement, including on all platforms of your Site, like mobile and tablet versions of the Site.
Performance of Services. The performance of the Services includes the following: (a) selling Ads for the Site, (b) recommending the layout for the Site including placement, size and formats for Ads; (c) embedding the Raptive Codes in the Site; and (d) optimizing the value of each Ad impression on the Site.
Implementation of Services. You agree to comply with any Technical and Implementation Requirements provided, on the Dashboard or otherwise in writing, including embedding the Raptive Codes on the Site according to our instructions and not modifying the Raptive Code in any manner.
Services Term. This Agreement will be effective as of the date Raptive activates Client’s Services account and will continue until terminated as provided in this Agreement (the “Term”). You may terminate this Agreement, at any time by sending written notice to firstname.lastname@example.org. This Agreement will be deemed terminated within thirty (30) calendar days of Raptives receipt of Client’s notice. We may terminate this Agreement, or suspend or terminate all or part of the Services, at any time by providing notice to Client.
Fees. We agree to pay Client a monthly fee equal to at least 75% of Revenue from Ad Services for the Site during each calendar month during the term of this Agreement, regardless of whether any amounts reported are actually received by us. We will report the Client’s revenue share in the Dashboard. Note that daily total amounts reported in the Dashboard can be revised to correct technical or reporting errors, usually within 48 hours of the initial report. We will submit the fee to our payment processor for payment within 45 days after the end of each calendar month (excluding delays due to third parties such as payment processors or mail services).
Compliance with Raptive Policies. We will have no obligation to provide Ads or other Services if the Site is not in compliance with the requirements of this Agreement and the Raptive Policies found in the Dashboard. If we become aware and determine in our sole discretion that the Site is not in compliance with any of the Raptive Policies, we may terminate this Agreement and/or suspend the Services without any liability to you. You agree to ensure that the site: (i) does not violate the intellectual property rights or any other rights of any third party; (ii) does not violate any applicable law; (iii) does not contain any content that is pornographic, obscene or otherwise violates this Agreement; (iv) does not encourage or require anyone to click on Ads, (v) includes appropriate disclosures of any compensation related to a product, service or advertiser in any post or article according to FTC guidelines and industry standards, and (vi) complies with any Third Party Terms.
Third Party Terms. In addition, Client agrees to comply with any third party Terms and Conditions required to receive the Services, which may include terms for Ad Networks used by Raptive, (for example, Google DoubleClick AdExchange terms and/or policies), or terms for third party software or technology (such as a video player). We will make any third party policies available to you via the Dashboard.
Prohibited Actions. You will not, and will not allow any third party to: (a) directly or indirectly access, launch and/or activate the Services through or from, or otherwise incorporate the Services in, any software application, website or other means other than the Site; (b) transfer, sell, lease, syndicate, sub-syndicate, lend, the Services or to them; (c) directly or indirectly generate impressions of or clicks on Ads, through any automated, deceptive, fraudulent or other invalid means (such as click spam, robots, macro Services, and Internet agents); (d) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services, Raptives then current protocol for accessing and implementing the Services, or any other Raptive technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (e) remove, deface, obscure, or alter Raptives copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Services or any other Raptive technology, software, materials and documentation; (f) create or attempt to create a substitute or similar service or product through use of or access to any of the Services or proprietary information related thereto; or (g) use any feature or functionality of the Services that could be so used, to personally identify and/or personally track individual end users or any other persons.
Use of Client Account Information. We agree not to use the Client Account Information for any purposes other than to provide the Services under this Agreement without the prior written consent of the Client. The Services will include downloading Ad earnings and analytics into the Dashboard for your review and our analysis. You will protect any Services accounts, usernames or passwords and take full responsibility for Client’s own, and third party, use of any accounts, usernames or passwords for the Services. You will obtain Raptive’s prior written consent for any third party use of the Services. If Client permits any third party to access your Services account, you agree to be liable for any such third party usage. Any data collected or accessed through the Services must be directly accessible by Raptive. You agree not to use an intermediary who has direct access to data arising from the Services.
License to Services. We grant to Client a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Term to use the Services solely for the purpose of displaying Ads and optimizing revenue on the Site. We do not grant any right, title or interest (including, without limitation, any implied license) in or to any Raptive intellectual property rights; and all rights not expressly granted herein are reserved to Raptive.
Confidentiality; Publicity. Each party agrees not to disclose the other party’s Confidential Information without the other party’s prior written consent. “Confidential Information” includes without limitation: (a) any data or statistics shared with the Client from reporting tools separate from the Dashboard, including Google Ad Management (GAM) Reports and any other reporting tools used by Raptive; (b) any proprietary information relating to Raptive’s software, technology, programming, specifications, materials, guidelines and documentation relating to the Services, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (c) any other information designated in writing by either party as “Confidential” or an equivalent designation; and (d) information disclosed under circumstances that a reasonable person should know such information is confidential/proprietary.
Confidential Information does not include information that has become publicly known through no breach by the receiving party, or information that has been (i) independently developed without access to the disclosing party’s Confidential Information as evidenced in writing; (ii) rightfully received by the receiving party from a third party; or (iii) required to be disclosed by law or by a governmental authority. Neither party will use the other party’s name and logo in any news release, public announcement, advertisement, or other form of publicity without the prior written consent of the other party (which includes email), except that Raptive may use Client’s name and logo to market your site directly to advertisers, advertising agencies, and other related third parties, but not in general ads available to the public.
Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY. In any event, Raptive’s total cumulative liability to Client for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed the net amount paid to Client by Raptive in the six month period immediately preceding the date of the claim.
Disclaimers; Representations and Warranties. We represent and warrant that: (i) We have the power and authority to grant the rights and perform the obligations to which We commit herein; and (ii) the Services will not knowingly violate the intellectual property rights of any third party. We do not represent or warrant that the Services are reliable, accurate, complete, or otherwise free from defects. Accordingly, We make the Services available for use “as is”, and any use thereof will be undertaken solely at Your own risk. We reserve the right, in our sole discretion, to include or cease providing the Services at any time (subject to notice as may be required herein). Raptive does not give any warranties or otherwise promise that the Services will be of satisfactory quality, or that the Services will be fit for any particular purpose.
You represent and warrant that: (i) Client has and will maintain throughout the Term all end user consents and all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Site to permit Raptive to perform the Services (including any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Ads or the Site); (ii) Client will not advertise anything illegal or engage in any illegal or fraudulent business practice; (iii) all of the information provided by Client to Raptive to enroll in the Services is correct and current; (iv) Client has all necessary rights, power, and authority to enter into this Agreement and to perform the acts required of Client by this agreement; and (v) Client has complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Client’s operation of the Site.
Indemnification. You agree to defend, hold harmless and indemnify Raptive and its affiliated companies, and each of their officers, directors, employees, agents, licensees (collectively, the “Raptive Indemnitees”) from and against any and all liabilities, losses, damages, costs and expenses (including reasonable legal fees and expenses) relating to or arising out of or from (a) Client’s use or inability to use the Services; (b) Client’s violation of any terms of this Agreement or (c) Client’s violation of any applicable laws, rules or regulations.
Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof. Any claims, legal proceeding or litigation arising in connection with the Agreement will be brought solely in the federal or state courts located in the borough of Manhattan, New York, and Client consents to the jurisdiction of such courts. CLIENT WAIVES ANY RIGHT TO LITIGATE ANY CLAIM ARISING UNDER THIS AGREEMENT OR RELATING TO THE SERVICES ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CLIENTS, OR ANY OTHER PERSONS. Neither party’s waiver of any default is a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties’ intention, and remaining provisions of the Agreement will remain in full effect. Client may not assign any of Client’s rights hereunder and any such attempt is void (except to Client’s successor in the event of Client’s merger, acquisition or sale of all or substantially all or Client’s assets). Raptive and Client are not legal partners or agents, but are independent contractors. Notwithstanding termination of this Agreement, the terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder shall survive and continue in effect.
Language. This Agreement shall be executed in the English language. If there is any discrepancy between the provisions of the English and another other language version of this Agreement, the provisions of the English version shall prevail and be used in interpreting this Agreement in all cases, and the provisions of any other language version shall not affect the interpretation of this Agreement.
Supplemental Terms. From time to time Raptive may make available additional or different Services that require additional or different terms and conditions. In that event, you will be notified of such Supplemental Terms when enrolling for those Services, and those terms will become part of this Agreement.
“Ads” means internet-based advertising displayed on the Site using the Services, including, without limitation, banner advertisements and text-based advertisements, and pre and post-roll video ads.
“Ad Account” means any account with an Ad Network that is owned by Client and related to the Site.
“Ad Networks” mean third-party advertising networks that connect and provide Ads to web sites that host Ads.
“Ad Services” means the ad sales, ad placement, and ad revenue optimization services provided by Raptive.
“Raptive Policies” means the policies for the Site required in order to use the Services, as found on the Dashboard. The Raptive Policies may be updated from time to time by Raptive by providing notice to Client in the Dashboard.
“Raptive Codes” means the Raptive and Ad Network software codes necessary to display Ad and otherwise use the Services.
“Raptive Content” means any content produced or acquired by Raptive or its affiliates that is licensed for display on the Site, which could include video content.
“Client” means any individual or entity identified by enrolling using the Dashboard. If you operate a company to run your Site, then you should enroll the company as the Client.
“Client Account Information” means the information provided by the Client upon enrollment necessary to access and modify the Site and the Ad Account(s), to the extent reasonably required by Raptive for the provision of Ad Optimization Services, including, without limitation, user names, passwords, and bank information for payment.
“Confidential Information” has the meaning assigned to it in the section on “Confidentiality; Publicity.”
“Dashboard” means the website provided by Raptive which Client can use to enroll for the Services, to manage your account, and review information regarding the Services, and related customer service platforms.
“Revenue” means the amounts promised to Raptive by buyers of the Ads for the Site in a given month. By way of clarification, Revenue does not include any revenue from Ads that were not sold by Raptive (such as for Ads sold directly by Client or via an Ad Network managed by Client), even if such revenue is reported in the Dashboard.
“Services” means the Ad Services and any other services offered by Raptive that Client may enroll in using the Dashboard or by email or other communication.
“Site” means the blog or website owned and operated by Client that you specify during the enrollment.
“Technical and Implementation Requirements” means the operational requirements for use of the Services provided in writing or found in the Dashboard. These Technical and Implementation Requirements may be updated from time to time by Raptive by providing notice to Client in the Dashboard.
Data Transfer Agreement Addendum
This Data Transfer Agreement Addendum, including all schedules and exhibits attached hereto, (“DTA”) is entered into between You and Raptive in connection with Raptive’s provision of services to You under the Agreement. This DTA is effective as of the effective date, and is hereby incorporated by reference into, the Agreement. All capitalized terms not otherwise defined in this DTA will have the meaning given to them in the Agreement. In the event of any inconsistency or conflict between this DTA and the Agreement, this DTA will govern. This DTA will survive termination of the Agreement.
a. “Applicable Data Protection Law” means all applicable data protection laws, rules, regulations, orders, ordinances, regulatory guidance, and industry self-regulations.
b. “EU SCCs” refers to the Standard Contractual Clauses promulgated by the EU Commission Decision (EU) 2021/914, available at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914.
c. “Personal Data” means information that Processor Processes on [Company]’s behalf that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, to a Data Subject, or as that term or a similar term is defined under Applicable Data Protection Law.
d. “Process” or “Processing” means any operation or set of operations performed on Personal Data, whether or not by automated means, including, but not limited to, accessing, collecting, recording, organizing, structuring, using, storing, transferring, retaining, disclosing, selling, sharing, deleting, and destroying Personal Data.
e. “UK Addendum” refers to the UK’s International Data Transfer Addendum to the EU SCCs, available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf.
- The parties will not engage in cross-border transfers of Personal Data without taking steps to ensure such transfers comply with Applicable Data Protection Law. To the extent You transfer Personal Data to Raptive about individuals in:
- the European Economic Area (“EEA”), the parties will conduct such transfers pursuant to Module 1 of the EU SCCs, which are hereby incorporated by reference and deemed executed by the parties as of the effective date of this DTA.
- the United Kingdom (“UK”), the parties will conduct such transfers pursuant to the EU SCCs in tandem with the UK Addendum, which are hereby incorporated by reference and deemed executed by the parties as of the Effective Date, or by certifying to and participating in another lawful cross-border transfer mechanism.
- Switzerland, the parties will conduct such transfers pursuant to the EU SCCs, which are hereby incorporated by referenced and deemed executed by the parties as of the Effective Date, or by certifying to and participating in another lawful cross-border transfer mechanism. In the event the parties rely on the EU SCCs for such transfers, references to a “Member State” and “EU Member State” will not be read to limit or prevent Data Subjects in Switzerland from seeking to exercise their rights.
- If the parties will engage in cross-border transfers of Personal Data subject to the EU SCCs and/or the UK Addendum, Raptive will be the “data importer,” You will be the “data exporter,” and Annex A will provide the supplementary information required. If there is any conflict between this DTA and the EU SCCs and/or UK Addendum, the EU SCCs and UK Addendum will prevail.
DESCRIPTION OF THE TRANSFER
The personal data transferred concern the following categories of data subjects: visitors to the website(s) of the exporter
Subject matter/Purposes of the transfer
The Processing is in relation to Raptive’s provision of services under the Agreement. The transfer is made for the following purposes: serving interest-based advertising on the website(s) of the exporter
Categories of data
The personal data transferred concern the following categories of data: cookies used to track visits to the exporter’s website(s) and also websites of third-parties
The personal data transferred concern the following categories of sensitive data: none
Duration of Processing
The Processing will begin after the effective date of the DTA and will end upon expiration or termination of the Agreement.
Frequency of Cross-Border Data Transfers
1. Controller / Data Exporter:
|Activities relevant to the data Processed under the DPA:||Data exporter is a web publisher that is contracting with Raptive for web advertising and related services.|
|Point of Contact|
2. Controller / Data Importer:
|Name:||CMI Marketing, Inc dba Raptive|
|Activities relevant to the data Processed under the DPA:||Raptive is a web advertising management service that is contracting with data exporter for web advertising and related services.|
|Point of Contact|
Docking Clause: For Clause 7 of the EU SCCs, the parties elect to include the optional language.
Clause 13: For purposes of Clause 13 of the EU SCCs, the supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
Competent Supervisory Authority for EU SCCs: The parties agree that the supervisory authority of the Republic of Ireland, the Data Protection Commission, will act as the competent supervisory authority.
Governing Law for EU SCCs: For purposes of Clause 17 of the EU SCCs, the parties agree that the law of the Republic of Ireland will be the governing law.
Choice of Forum and Jurisdiction for EU SCCs: For purposes of Clause 18 of the EU SCCs, the parties agree that the courts of the Republic of Ireland will resolve any dispute arising from the EU SCCs.
Table 4 of the UK Addendum: Which Party can Terminate this DPA if the UK Data Protection Authority Changes this “Approved Addendum”
|Ending This DPA When the Approved Addendum Changes||Which Parties may end this DPA as set out in Section 19 of the UK Addendum: Data Importer Data Exporter Neither Party|