These Advertising Partner Terms and Conditions are incorporated by reference into and form part of the Advertising Partner Agreement. Together, they constitute a legally binding agreement between Thanks Ad and Advertising Partner.
1 Order Process
1.1 From time to time, the Parties may agree on Insertion orders (“Insertion Orders” or “IOs”) under which Thanks Ad will permit its Merchant Partner, in their sole discretion, to display Advertising Partner Ads displaying Campaign Content provided by Advertising Partner under an IO (“Advertising Partner Ads”) through the Thanks Ad Widget on the Merchant Partner’s website/s (the “Services”).
1.2 This clause sets out the procedure for the parties to enter into IOs (each forming a separate Agreement) for provision of Services. The procedure for entering into an IO for the first time is different to entering into subsequent IOs, as set out in clause 1.4 below.
1.3 Advertising Partner shall submit all requests for Services by delivering to Thanks Ad an IO via email to campaigns@jointhanks.com, or to its Thanks Ad representative, in the format set out in Schedule 1, or as otherwise specified by Thanks Ad. Advertising Partner's delivery of an Insertion Order to Thanks Ad constitutes an offer to purchase the Services pursuant to these Advertising Terms and Conditions, the IO, other applicable Schedules and no other terms.
1.4 If Thanks Ad wishes to enter into an Agreement with Advertising Partner on the basis set out in the IO submitted to Thanks Ad pursuant to clause 1.3 above, then:
1.4.1 If the parties have not entered into an IO previously, or if the Advertising Partner wishes to add a market (AU, US, UK or EEA) that is not included in an existing agreement between the parties, Thanks Ad will sign this Agreement, attaching or referencing these Advertising Partner Terms and Conditions, the completed IO (marked “approved” where shown) and any additional Schedules that are applicable, and send it back to Advertising Partner by email, electronic signature or other agreed method within seven (7) days. Advertising Partner will return a counter-signed copy of the Agreement within seven (7) days. An Agreement shall not enter into force, be legally binding or have any other effect unless the Agreement has been signed by authorised representatives of both parties.
1.4.2 If the parties have entered into an IO previously, Thanks Ad will simply return a completed IO (marked “approved” where shown) to Advertising Partner by email or other agreed method within seven (7) days. The IO will be subject to the Advertising Partner Agreement, the Advertising Partner Terms and Conditions and any applicable Schedules previously agreed between the parties pursuant to clause 1.4.1 above, unless otherwise indicated in the IO.
1.5 Thanks Ad reserves the right, in its sole discretion, to reject an IO or Campaign for any reason.
1.6 Thanks Ad makes available to its Merchant Partner a list of Advertising Partner Ads from which Merchant Partners may choose, in their discretion, to be displayed through the Thanks Ad Widget and other placements on their sites.
1.7 Advertising Partner acknowledges and agrees that even if an IO is accepted by Thanks Ad: 1) Merchant Partner has the sole discretion to select which of Thanks Ad’s Advertising Partners and Advertising Partner Ads are, or are not, displayed through the Thanks Ad widget and other placements on their sites and 2) Thanks Ad does not guarantee or make any representation that any Advertising Partner Ads: a) will be displayed on certain Merchant Partner Site/s or b) that a minimum level of clicks, impressions, activations, leads or any other type of interactions whatsoever will be achieved for any Advertising Partner Ads or any IO.
1.8 Once an IO has been approved by Thanks Ad it may only be amended by mutually signed, written agreement of Advertising Partner and Thanks Ad. This includes budget increases which must be agreed in writing by the Advertising Partner’s duly authorised representative. Advertising Partner shall submit any such change requests by email from the Advertising Partner’s duly authorised representative to campaigns@jointhanks.com or the Advertising Partner’s Thanks Ad representative. If Thanks Ad agrees to such change, it will confirm such agreement by return email. Failing such confirmation the change request will be deemed unaccepted. Please note, Thanks Ad may accept written requests (including email) from Advertising Partner’s representatives to amend Campaign attributes (ads, targeting, pricing metrics, placements, volume, frequency caps other elements) without a formal amendment of the IO, and Advertising Partner acknowledges and agrees that Thanks Ad may rely on such instructions in respect of Campaign.
1.9 If an IO or this Agreement is terminated for any reason, Advertising Partner will be charged for the IO until the effective date of such termination.
1.10 In the event of any conflict or inconsistency between any IO and these Terms and Conditions, these Terms and Conditions will supersede, except to the extent such IO expressly supersedes or amends a specifically referenced clause of these Terms and Conditions and has been duly accepted and notified by Thanks Ad in accordance with the order process in clause 1.4, in which case the exception applies solely to that accepted IO.
1.11 Nothing herein is intended nor shall be construed as creating an exclusive arrangement between the Parties. These Terms and Conditions and the Agreement will in no way restrict Thanks Ad from accepting any third-party Advertising Partners that promote materially similar products, offers, or campaigns in their Ads.
2 Advertising Partner Ads
2.1 Thanks Ad will deliver Advertising Partner Ads in accordance with the terms of this Agreement and the applicable IO.
2.2 The size, placement and positioning elements of any Campaign Content within the Thanks Ad Widget and other placements are determined by Thanks Ad in its sole discretion. However, Thanks Ad will not make amendments to the Campaign Content itself without Advertising Partner prior written approval, save that Thanks Ad may display:
2.2.1 user notification and consent wording;
2.2.2 any additional text or information required to make it clear that Campaign Content is a third party advertisement (i.e. not a Thanks Ad or a Merchant Partner advertisement); and
2.2.3 Ad Choices, using the Ad Choices Icon
alongside any Campaign Content without seeking Advertising Partner approval.
2.3 Advertising Partner shall submit (and is solely responsible for submitting) all Campaigns under an IO in accordance with the Thanks Ad Technical Specifications available at https://ad-spec.thankful.tech. Thanks Ad may modify the Technical Specifications from time to time and shall promptly notify the Advertising Partner of any such modifications.
2.4 By submitting any Campaign Content under an IO, Advertising Partner warrants that all Campaign Content (including but not limited to offers, images, logos, names and branding) included in the Campaign itself complies with: a) all Applicable Laws, b) the Thanks Ad Technical Specifications; and c) the Thanks Ad Policies; and does not infringe the Intellectual Property Rights of any third-party.
2.5 Advertising Partner is solely responsible for the conduct and content of its Campaign, including any Campaign Content presented under an IO. Thanks Ad is not responsible for errors, omissions or unlawful content in any Campaign Content provided by or on behalf of Advertiser.
2.6 All Advertising Partner Ads must be received at least five (5) business days in advance of the IO Term Start Date, stated in the applicable IO.
2.7 For any contest, competition, sweepstakes, prize draw, coupon or other promotion to be offered or promoted by or on behalf of Advertising Partner through the Services or through a Campaign (“Contest”), Advertising Partner warrants that it shall perform and is solely responsible for such Contest, including administration of the Contest, ensuring that the Contest complies with any and all Applicable Laws and regulations, including, if applicable, setting and enforcing official rules and offer terms, bonding and registration, collecting entries, drawing, appropriately selecting and notifying winners and timely procuring and fulfilling prizes, premiums or discounts that may be offered in connection with such Contest. No approval by or assistance from Thanks Ad in connection with a Contest (including as may be specified in an IO or elsewhere) shall reduce or satisfy the Advertising Partner’s obligations and responsibility for such Contest. Any review or display of the official rules by Thanks Ad of the offer terms or regulations for any Contest shall not constitute a legal opinion as to the legal appropriateness, accuracy or adequacy of those rules or their manner of use, nor a waiver of Thanks Ad’s indemnity rights under this Agreement. For the avoidance of doubt, Thanks Ad specifically reserves the right to suspend, remove or cancel any Advertising Partner Ads addressing a Contest that is being offered in breach of Applicable Law, or any Thanks Ad Policies.
2.8 Thanks Ad may, in its sole discretion, reject or remove any Campaign Content at any time, without liability, which (a) violates this Agreement, the content restrictions or any other provision of the Thanks Ad Technical Specifications or the Thanks Ad Policies or (b) which Thanks Ad otherwise determines to be inappropriate for any reason in its sole discretion, whether or not such Advertising Partner Ad was previously accepted. In such event, Thanks Ad will notify Advertising Partner of the reasons for such removal or rejection, and Advertising Partner will promptly re-submit an Advertising Partner Ad that addresses the issues specified by Thanks Ad.
2.9 The Advertising Partner acknowledges and agrees that Thanks Ad does not guarantee any amount of clicks, impressions, leads or Activations that may be delivered pursuant to the applicable Pricing Metric.
2.10 If Thanks Ad fails to deliver any Advertising Partner Ads in accordance with the terms of an IO, Advertising Partner’s sole and exclusive remedy shall be limited, at Thanks Ad’s sole discretion, to: (a) a refund of any prepaid charges for that IO (if paid), and/or (b) an extension of the term of the IO with a refund representing any remaining undelivered Advertising Partner Ads at the end of such extended term. Thanks Ad will have no obligation to continue to deliver any such Advertising Partner Ads after the term of the IO if the IO remains undelivered or has been terminated for any reason.
3 Advertising Agencies
3.1 If the Advertising Partner is an advertising agency or other entity representing an Advertiser, including executing any IO or submitting advertisements to Thanks Ad on behalf of an Advertiser, then this clause 3 applies to Advertising Partner.
3.2 Advertising Partner represents and warrants that:
3.2.1 it is the authorized agent of the Advertiser, and it has the authority to enter into this Agreement on behalf of the Advertiser, to bind the Advertiser to this Agreement, to make all decisions, and to take all actions relating to the Advertiser and the IOs on Advertiser’s behalf (Advertising Agency Rights);
3.2.2 it has entered into a written agreement with Advertiser (i) that obtains the Advertising Agency Rights; (ii) that binds the Advertiser to terms as protective of Thanks Ad as this Agreement and (iii) to which Thanks Ad is an intended third-party beneficiary with respect to Advertising Partner Ads delivered pursuant to the Services;
3.2.3 it will not, without Thanks Ad’s prior written consent: (i) make any representation or warranty regarding any Services, or that Advertising Partner is an affiliate or partner of Thanks Ad, (ii) make any commitments (including, but not limited to, guarantees as to performance metrics or placement on Merchant Partner Sites) to an Advertiser or potential Advertiser; and
3.2.4 it will perform all its duties pursuant to this Agreement in a professional manner consistent with the requirements of Thanks Ad.
3.3 Upon written request, Advertising Partner will immediately deliver to Thanks Ad each applicable agreement it has entered with an Advertiser under clause 3.2.2. If Advertising Partner’s relationship or agreement with an Advertiser terminates, Advertising Partner agrees that Thanks Ad may directly contract and correspond with such Advertiser to allow the Advertiser to continue to place Advertising Partner Ads pursuant to the Services. Furthermore, the Advertising Partner agrees that in such an event Thanks Ad may share information with Advertiser (including but not limited to) performance metrics, to enable Advertising Partner Ads to run on Advertiser’s behalf.
3.4 Without limiting any other provision of this Agreement, any acts or omissions by any Advertiser in violation of this Agreement shall be deemed a breach of this Agreement by Advertising Partner, and Advertising Partner will indemnify, defend, and hold the Indemnified Parties, (as defined below) harmless from and against all Losses, damages, liabilities, costs, and expenses that Thanks Ad may incur as the result of such violation. Advertising Partner will also indemnify, defend, and hold Thanks Ad harmless from and against all Losses, damages, liabilities, costs, and expenses that Thanks Ad may incur as a result of Advertising Partner’s breach of clause 3.2.
4 Charges and Payment
4.1 The IO shall specify the Pricing Metric and CPC, CPA or CPL rate that will apply to such IO.
4.2 Advertising Partner shall pay for the Services.
4.3 For payments due by the Advertising Partner in relation to any IO, Thanks Ad will invoice Advertising Partner in accordance with clause 5.1 below, via email at the address specified in this Agreement.
4.4 All sums payable by Advertising Partner to Thanks Ad are quoted exclusive of any applicable tax, duty, levy, or other governmental charge, including but not limited to sales, use, value-added, withholding, GST or excise taxes (“Taxes”), which will be payable by the Advertising Partner and calculated at the appropriate rate at the time of charging. Save in respect of Taxes for which Thanks Ad has issued a tax invoice to Advertising Partner, Advertising Partner is responsible for payment of all Taxes to the proper taxing or governmental authority.
4.5 If the IO specifies that Advertising Partner shall pay by credit card or other method allowing for automatic payment, Advertising Partner agrees that payments will be auto-debited at pre-set monetary increments, specified in this Agreement, within fourteen (14) days of the invoice being sent to Advertising Partner. In any event, invoiced amounts are due and payable within that fourteen (14) day period.
4.6 If the IO specifies that Advertising Partner shall pay otherwise than by credit card or other automatic payment method, invoiced amounts will be due and payable fourteen (14) days after the date of the applicable invoice.
4.7 Interest will accrue on any past due amounts at the rate of the lesser of 2% per month or the lawful maximum. If Advertising Partner’s payment method fails or its account is past due, Thanks Ad may collect past due amounts using other collection mechanisms, and Advertising Partner agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees.
4.8 Thanks Ad may allocate monies received from Advertising Partner against the total amount outstanding to Thanks Ad pursuant to any invoices payable under this Agreement or other Agreements between Thanks Ad and Advertising Partner.
5 Tracking Methodologies
5.1 Thanks Ad will invoice Advertising Partner based on Thanks Ad’s standard tracking methodologies, unless otherwise agreed in writing with the Advertising Partner as set out in clause 5.5.
5.2 Upon request by Advertising Partner, Thanks Ad will provide reasonable evidence, in a format determined by Thanks Ad in its sole discretion, to support the invoice.
5.3 If Advertising Partner disputes any portion of an invoice, it shall notify Thanks Ad within seven (7) days of receipt and pay the undisputed portion within the timeframe set out in clause 4 above.
5.4 If, following notification in accordance with clause 5.3 above, Advertising Partner can demonstrate to Thanks Ad a discrepancy of more than ten percent (10%) between Thanks Ad tracking data and any Advertising Partner tracking data for the applicable invoice, then Thanks Ad and Advertising Partner will work in good faith to reconcile the discrepancy.
5.5 Where the parties agree in writing that the Advertising Partner will be responsible for tracking for invoicing purposes:
5.5.1 The Advertising Partner shall be responsible for implementing the tracking methodologies, and shall provide to Thanks Ad such accurate and reliable information as is necessary for Thanks to prepare its invoice;
5.5.2 The Advertising Partner shall be responsible for regularly assessing the effectiveness and reliability of its tracking methodologies, and shall respond promptly to any request by Thank to confirm the same. The Advertising Partner will cooperate with Thanks in the event that either party suspects that the tracking is not functioning correctly;
5.5.3 Thanks Ad shall remain entitled to track performance using its own tracking methodologies and benchmarks; and
5.5.4 Thanks Ad have the right upon at least fifteen (15) days' prior written notice, to audit the records of the Advertising Partner (at reasonable times at its own expense) to verify the accuracy of any Advertising Partner tracking data used and, if applicable, compare against its own tracking and benchmarks, to verify invoices and tracking discrepancies in accordance with clause 5.4. The Advertising Partner agrees to provide Thanks Ad with such assistance as is reasonably necessary to allow Thanks Ad to conduct such an audit. If any audit conducted by Thanks Ad reveals a discrepancy in the data relied upon to calculate invoices, Thanks Ad shall invoice Advertising Partner for the difference and the invoice will be payable by Advertising Partner immediately on receipt.
6 Termination and Suspension
6.1 Either Party may terminate this Agreement or any IO at any time with immediate effect upon written notice to the other Party if the other Party materially breaches this Agreement.
6.2 Either Party may terminate this Agreement or an IO for convenience on 60 days’ notice to the other Party.
6.3 Thanks Ad may, at any time, immediately suspend delivery of Advertising Partner Ads and or the Services under any and all IOs: a) in the event of any failure by Advertising Partner to make any payment hereunder when due (and, if Thanks Ad elects to suspend delivery of any Campaign, the end date specified in the applicable IO will be extended by a number of days equal to the period of suspension), b) for the implementation of any upgrades, modifications or maintenance, c) if Thanks Ad reasonably believes that such a suspension is necessary to maintain the security or integrity of the Services or d) to prevent misuse of the Services by any person or entity, or to mitigate or prevent damage or Loss to Thanks Ad. Thanks Ad shall not be liable for any failure to provide access to or use of the Services or delivery of a Campaign during any suspension under this clause.
6.4 Advertising Partner shall remain liable for the payment of all fees up to the effective date of termination.
6.5 Clauses 3 (Advertising Agencies), 4 (Charges and Payment), 5 (Tracking Methodologies), 6 (Termination and Suspension), 7 (Intellectual Property and Licenses), 8 (Representations, Warranties and Exclusions), 9 (Limitation of Liability and Indemnity), 10 (Confidentiality), 11 (Data Protection), 13 (Miscellaneous) and 15 (Designated Programs) of these Terms and Conditions, together with any accrued but unpaid payment obligations of either Party, will survive any expiration or termination of this Agreement.
7 Intellectual Property and Licenses
7.1 Other than as expressly set out in this Agreement, neither Party has or will acquire any right, title or interest in any Intellectual Property Rights owned or licensed by the other party or by any Merchant Partner.
7.2 Advertising Partner receives no title to or ownership of any copy or of any Thanks Ad intellectual property and/or the Thanks Ad Widget. As between Thanks Ad and Advertising Partner, Thanks Ad hereby retains all right, title, and interest, including all Intellectual Property Rights, in and to the Thanks Ad Widget, all copies and portions thereof, and all improvements, updates, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein.
7.3 Advertising Partner receives no rights to the Thanks Ad Widget, and without limiting the generality of the foregoing, Advertising Partner shall not modify, create derivative works from, reverse engineer, distribute, publicly display, publicly perform, or sublicense the Thanks Ad Widget or Services.
7.4 Advertising Partner hereby grants to Thanks Ad a worldwide, non-exclusive, royalty-free, fully-paid up license to (a) use, reproduce, perform, display, and distribute Campaign Content and Advertising Partner Ads and any related information provided by Advertising Partner in connection with, on and through the Services for the period of time set forth in the applicable IO as amended and (b) alter, modify, repurpose or create derivative works of Campaign Content and Advertising Partner Ads as necessary or desirable in order to provide the Services. Such license shall be sub-licensable to any entity that directly or indirectly controls, is controlled by, or is under common control with Thanks Ad. Advertising Partner Ads include any copyrighted materials, and any trademarks, service marks, logos or other source or business identifiers included therein (“Trademarks”).
7.5 Subject to the rights granted to Thanks Ad in this clause 7, Advertising Partner hereby retains all right, title and interest, including all Intellectual Property Rights, to all Campaign Content provided to Thanks Ad, all copies and portions thereof, and all improvements, updates, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein.
7.6 During and after the term of this Agreement, Thanks Ad may use Advertising Partner’s, and the Advertiser’s, name, logo, trademarks, branding, and any performance or reporting data, in a factual and non-disparaging manner, for any promotional or marketing purposes, including in client presentations. Without limiting the scope of clause 3, Advertising Partner warrants that it has authority from the applicable Advertiser to grant Thanks Ad the rights set out in this clause 7.6.
7.7 Advertising Partner acknowledges and agrees that Thanks Ad is, and will at all times be, responsible for the design, placement, layout, look-and-feel, and maintenance of any and all aspects of the Services, including with respect to the display of any Campaign Content. Thanks Ad may, in its sole discretion, redesign the Services in which Campaign Content is displayed.
7.8 To the extent Advertising Partner provides Thanks Ad with Feedback, Advertising Partner acknowledges and agrees that Thanks Ad shall have the right to use it in any manner and for any purpose and such Feedback will be the property of Thanks Ad. Advertising Partner agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback, and the related Intellectual Property Rights, to Thanks Ad and agree to assist Thanks Ad in perfecting and enforcing these rights.
8 Representations, Warranties and Exclusions
8.1 Each Party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; (b) the execution and delivery of this Agreement, and the performance of the transactions contemplated hereby, are within its corporate powers, and have been duly authorized by all necessary corporate action; and (c) its performance of this Agreement, and the other Party’s exercise of its rights under this Agreement, will not result in a violation of any agreement or other obligation by which it is bound.
8.2 Advertising Partner further represents and warrants to Thanks Ad that: (i) the Advertising Partner Ads shall not contain any material that is unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any Intellectual Property Rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (ii) it will comply with all Applicable Laws in its performance of this Agreement, including the Data Protection Laws, and the making of offers and Contests (including, but not limited to, all applicable regulations and laws and regulations related to Contests and/or offers).
8.3 Thanks Ad represents and warrants that it will provide the services with due care and skill. OTHERWISE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT:
8.3.1 THANKS AD EXCLUDES ALL TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS (IN EACH CASE WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM CONDUCT OR COURSE OF DEALING;
8.3.2 THE SERVICES ARE PROVIDED “AS-IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND
8.3.3 THANKS AD DOES NOT PROMISE THAT THE SERVICES OR THANKS AD WIDGET WILL BE CONTINUOUS, UNINTERRUPTED OR FAULT FREE OR WILL WORK WITHOUT INTERRUPTIONS.
8.4 THANKS AD EXCLUDES ALL LIABILITY IN RELATION TO ANY FAULT OR FAILURE IN THE SUPPLY OF THE SERVICES INVOLVING ANY ACT, OMISSION OR EVENT OUTSIDE OUR REASONABLE CONTROL, INCLUDING ANY EQUIPMENT FAILURE, POWER FAILURE, FIRE, FLOOD, WATER, LABOR DISPUTE OR SHORTAGE, UTILITY CURTAILMENT, EXPLOSION, EMERGENCY, CIVIL DISTURBANCE, WAR, ACT OF GOD, GOVERNMENTAL ACTION (INCLUDING ANY PANDEMIC, HEALTH OR HYGIENE EMERGENCY RELATED MANDATES), OR OTHERWISE ANY ACT OF FORCE MAJEURE, OR ACT OR OMISSION OF ANY SUPPLIER OR OTHER PERSON. IF THANKS AD BECOMES AWARE OF ANY SUCH FAULT OR FAILURE, THEN IT WILL USE REASONABLE ENDEAVORS TO ADDRESS IT.
8.5 THANKS AD SHALL HAVE NO LIABILITY FOR CLICK FRAUD OR OTHER IMPROPER ACTIONS, OR FOR INVALID CLICKS OR OTHER TECHNOLOGICAL ISSUES NOT UNDER THE DIRECT CONTROL OF THANKS AD, EACH OF WHICH MAY AFFECT THE PRICING METRICS AND COST OF THE SERVICES. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER, AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER.
9 Limitation of Liability and Indemnity
9.1 Advertising Partner shall indemnify and hold harmless Thanks Ad and its group companies, and each of their officers, directors, employees and representatives (collectively, the “Indemnified Parties”), from and against any and all expenses, damages and Loss of any kind (including, without limitation, reasonable legal fees and costs) incurred by any of the Indemnified Parties arising out of or in connection with any claim by a third-party (a “Third Party Claim”) against any of the Indemnified Parties resulting from: (a) any actual or alleged breach of Advertising Partner’s representations or warranties under this Agreement; (b) any Contest, offer, or Advertising Partner goods, services or product including any claims for any delivery of, non-delivery of, defects in, use of or inability to use any good/services or products or Contest prizes, any violation by the offer, goods, services or product, or Contest of any Applicable Law, rule or regulation; (c) any Advertising Partner Ad, Campaign Content or other materials provided by Advertising Partner or any material to which users can link, or any products or services made available to users, through the Advertising Partner Ads or (d) a claim alleging that the Advertising Partner Ad or the Campaign Content infringes the Intellectual Property Rights of a third-party. Thanks Ad will notify Advertising Partner promptly of any Third Party Claim for which it seeks indemnification and will permit Advertising Partner to control the defense of such Third Party Claim with counsel chosen by Advertising Partner; provided, that Advertising Partner will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of any Indemnified Party without Thanks Ad’s prior written consent.
9.2 Subject to clause 9.3, Thanks Ad will not be liable for lost profits or other consequential, special, indirect or incidental damages, whether arising in contract, tort, including negligence, warranty, strict liability or otherwise, even if it has been advised of the possibility of such damages. In no event will Thanks Ad’s total aggregate liability to Advertising Partner arising out of or relating to this Agreement exceed the lesser of (i) the total amount paid by Advertising Partner to Thanks Ad for the applicable Campaign as at the date on which the Advertising Partner notified Thanks Ad in writing of the existence of a claim, or (ii) the amount paid by Advertising Partner to Thanks Ad during the six (6) months immediately preceding the date on which the Advertising Partner notified Thanks Ad in writing of the existence of a claim. Subject to the foregoing and any other limitations set out in these Agreement, Thanks Ad shall indemnify and hold harmless Advertising Partner and each of its Indemnified Parties for the amounts owed to a third-party arising out of a settlement approved in writing by Thanks Ad or by a non-appealable binding judgment from a court of competent jurisdiction out of a Third Party Claim alleging the Thanks Ad Widget software infringed the Intellectual Property Rights of a third-party.
9.3 Nothing in this Agreement will operate to exclude or limit either party’s liability for:
9.3.1 death or personal injury;
9.3.2 fraud or fraudulent misrepresentation; or
9.3.3 any other liability which cannot be excluded or limited under Applicable Law.
10 Confidentiality
10.1 “Confidential Information” means information disclosed by one Party (“Discloser”) (whether verbally, in writing or otherwise, and whether of a business, technical or other nature) to the other Party (“Recipient”) that has been designated as confidential or that, given the nature of the information and/or the circumstances surrounding its disclosure, should reasonably be considered confidential. Without limiting the foregoing, Confidential Information of Thanks Ad shall include all Thanks Ad Technical Specifications, the Thanks Ad Policies and information relating to Pricing Metrics and the Thanks Ad Widget.
10.2 Recipient shall protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to any third-party (other than its employees, agents, contractors or otherwise its representatives, who have a need to know and who have agreed in writing to obligations as protective of Confidential Information as set forth herein), or use or accumulate such Confidential Information for any purpose other than performance of this Agreement, without Discloser’s prior written consent. For the avoidance of doubt, the terms of this Agreement will be deemed Confidential Information of both Parties. Notwithstanding the foregoing: (i) the foregoing restrictions will not apply as to any information that was in the Recipient’s possession prior to disclosure thereof by Discloser, that is or subsequently becomes available to the general public other than through a breach by Recipient, or that is independently developed by Recipient without reference to Confidential Information; and (ii) Recipient will be permitted to disclose Confidential Information to the extent required by Applicable Law, regulation or legal process, provided that it provides prompt written notice to Discloser of any such disclosure and provides reasonable cooperation to the Discloser in connection with any attempt to contest or limit such disclosure.
10.3 Recipient agrees and acknowledges that any breach of this clause 10 may cause irreparable harm to Discloser for which monetary damages may be inadequate. Accordingly, the aggrieved Discloser will be entitled to seek and, if granted, obtain and enforce injunctive or other equitable relief (in addition to any other remedies available to it) to remedy any threatened or actual breach of clause 10 by Recipient without the necessity of posting any bond or proving any harm or damages. In addition, Recipient agrees promptly to advise Discloser in writing of any unauthorized misappropriation, disclosure or use by any person of the Confidential Information which may come to its attention and to take all steps at its own expense reasonably requested by the Discloser to limit, stop or otherwise remedy such misappropriation, disclosure or use.
10.4 Upon the Discloser’s request, Recipient will return, or, at Discloser’s option, destroy and certify destruction of, all Confidential Information (including any summaries or analyses thereof) in the Recipient’s possession.
10.5 Feedback is not considered Confidential Information of Advertising Partner, and Thanks Ad will be entitled to use, implement, disclose and otherwise exploit such Feedback in any manner, without restriction or duty to account in accordance with Clause 7.8.
11 Data Protection
11.1 Advertising Partner will comply with its obligations under the Data Protection Laws with respect to Personal Data that Thanks Ad shares with or transfers to Advertising Partner. This includes ensuring that any use, disclosure, transmission or storage of such Personal Data is in compliance with the privacy, spam, do not call, data protection, telemarketing and other applicable laws, regulations or other obligations in each jurisdiction in which they operate and from the Personal Data is originally collected.
11.2 Thanks Ad and Advertising Partner are each independent controllers of the Personal Data. Each Party agrees to comply with its obligations under the Agreement and Data Protection Laws. The Advertising Partner further agrees to treat Personal Data received from Thanks Ad in a manner consistent with the Privacy Policy.
11.3 In the course of providing the Services, the Parties may share Personal Data that has been collected from users to whom Advertising Partner Ads are targeted. The Personal Data the Parties may share includes name, email address, IP address, location, device type, browser type, session ID, language preferences, access times, referring website address, and any other information provided by the user through their interactions with the applicable Advertising Partner Ads or the Thanks Ad Widget.
11.4 The purpose of sharing Personal Data is:
11.4.1 As part of provisioning the Service, for example as part of Thanks Ad’s Thanks Subscribe service, Thanks Ad will share the user email address and other details with the Advertising Partner, for Advertising Partner’s use in respect of that subscription, or where the user enters a competition, to provide the Advertising Partner with the information required for such competition entry;
11.4.2 As part of the billing, reporting and invoicing arrangement between the Parties, for example to analyse any discrepancies between Thanks Ad reported data and Advertising Partner reported data.
11.5 Where legally required, each Party has a lawful basis for collecting and sharing Personal Data with the other Party. This could be legitimate interests, consent or another lawful basis, depending on the information in question.
11.6 Each Party’s obligation to comply with Data Protection Laws includes, to the extent applicable under the relevant data protection laws:
11.6.1. Not sending marketing communications to data subjects using Personal Data provided to it by the other Party unless either Thanks Ad or Advertising Partner has obtained lawful consent to do so;
11.6.2. Providing appropriate safeguards for the transfer of Personal Data, transferred to it by the other Party, to a third country or an international organization where legally required; and
11.6.3.Providing appropriate technical and organisational measures in respect of Personal Data transferred to it by the other Party, to ensure a level of security appropriate to the risk.
11.7 If applicable, the Parties will comply with Schedule 2 (Data Transfer Addendum).
The provisions of clause 11.8 will only apply where the Advertising Partner is located in the US:
11.8 Each Party’s obligation to comply with Data Protection Laws may include, but not be limited, to:
11.8.1 Providing data subjects with appropriate notice of when and how it collects their Personal Data, including the purposes for which it is collected, and when and with whom it may be shared with; and
11.8.2 Providing data subjects with access to their Personal Data, as well as complying with requests to correct, delete or opt-out of the sharing of Personal Data (subject to a Party’s internal procedures and policies, including any associated costs and limited methods of contact).
12 Notices
12.1 Any notice or other written communication given by Advertising Partner to Thanks Ad under or in connection with this Agreement must be sent by ordinary prepaid mail or email to the corresponding address below, unless Thanks Ad notifies Advertising Partner of a change of the relevant address. Thanks Ad may send Advertising Partner notices or other written communications to the email or street address of the Partner as set out in this Agreement.
Notices to Thanks Ad:
Thanks Ad Pty Ltd
Level 1, 63-73 Ann Street,
Surry Hills NSW 2010
Australia
Email: legal@jointhanks.com
12.2 Each Party must ensure that at all times the contact details (including email address) applicable to it under this clause is current, and endeavor to ensure it is operational.
12.3 An email will be taken to have been received at the time of sending on a business day or the next business day at 9 am Australian Eastern Standard Time (AEST) if sent to Thanks Ad or 9 am Eastern Standard Time if sent to Advertising Partner, unless within 24 hours of it being sent the sender receives a manual or automated response indicating that it was not delivered successfully.
12.4 This clause 12 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13 Miscellaneous
13.1 Governing law and jurisdiction: This Agreement is to be construed according to, and is governed by, the laws of the state of New South Wales, Australia. Advertising Partner and Thanks Ad submit to the exclusive jurisdiction of the courts in and of New South Wales, Australia in relation to any dispute arising under this Agreement.
13.2 Assignment and subcontracting: Advertising Partner may not transfer, assign or subcontract any of its rights or obligations under this Agreement to any other person without the written consent of Thanks Ad. Thanks Ad may assign its rights or subcontract its obligations under this Agreement.
13.3 Relationship: Thanks Ad is not a partner or agent of Advertising Partner. Thanks Ad is deemed to be acting as an independent contractor at all times when performing this Agreement.
13.4 Entire agreement: This Agreement constitutes the entire agreement between Thanks Ad and Advertising Partner in relation to its subject matter. Any prior arrangements, agreements, representations or undertakings are superseded and, except as expressly provided, each Party warrants that it has not relied on any arrangement, agreement, representation or understanding which is not expressly set out in this Agreement or incorporated herein by reference.
13.5 Amendments: Thanks Ad may amend this Agreement (including the Thanks Ad Policies) in any way at any time by providing notice to Advertising Partner. Any such amendment will not take effect earlier than 30 days after the date of the notice. Thanks Ad may change, modify the Services (including the Thanks Ad Widget and the Merchant Partner) from time to time (including by making additions or deletions) without prior notice to Advertising Partner.
13.6 Counterparts: this Agreement may be executed in any number of counterparts. If counterparts are used, all counterparts will together make up one agreement. Delivery of an executed counterpart of the signature page to this Agreement by email, portable document format (pdf) or any electronic signature complying with applicable law (including DocuSign) shall be as effective as delivery of a manually executed counterpart of this Agreement.
13.7 Severability: If any provision of this Agreement is deemed invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14 Interpretation and Definitions
14.1 Rules of interpretation
In this Agreement: a) Words importing any gender include the other genders, b) Headings will be ignored in construing this document, c) Use of inclusive terms such as “includes” or “including” will be read as “includes, without limitation” or “including, without limitation”, d) Words importing the singular include the plural and vice versa, e) references to persons include corporations and f) References to writing include any mode of representing or reproducing words in visible form, and include email transmissions and electronic messaging.
14.2 Definitions
In this Agreement the following terms have the corresponding meaning:
Activation means: a sign up, purchase, registration, entry in a Contest or redemption of an offer.
Advertiser means the individual or entity on whose behalf Advertising Partner is placing Advertising Partner Ads through the Services that has entered into an Advertising Partner Agreement.
Agreement means this Advertising Partner Agreement (including the Advertising Partner Terms and Conditions), any IO and any Schedules.
Applicable Law or Applicable Laws means all applicable federal, state, local, national and administrative laws, rules, regulations and interpretations, including, without limitation, consumer protection laws, the Data Protection Laws (as defined below), and any applicable data privacy laws, rules and regulations.
Campaign means all related Advertising Partner Ads as described in any one Insertion Order detailing any specific Campaign Content.
Campaign Content means a collection of logo, advertising slogan or text, URL, coupon code, discount or incentive for the purpose of encouraging a customer to browse and subsequently purchase a product or service from a company, collectively an advertisement or ad unit.
Cost Per Click or CPC means the pricing metric whereby Advertising Partner is charged a fee for each click on the Advertising Partner’s Ad.
Cost Per Activation or CPA means the pricing metric whereby Advertising Partner is charged a fee for each purchase Activation resulting from or through the Advertising Partner’s Ad.
Cost Per Lead or CPL means the pricing metric whereby Advertising Partner is charged a fee for each lead resulting from or through the Advertising Partner’s Ad.
Claim means any demand, action, suit, claim, proceeding or cause of action incurred by a person.
Data Protection Laws means: :
a) In the European Economic Area and United Kingdom, all laws and regulations of the European Union, the European Economic Area, their member states and the United Kingdom that are applicable to Controllers (as defined below), including: (i) EU Directive 2002/58/EC (as amended by 2009/136/EC) and any legislation implementing or made pursuant to such directive; (ii) EU Regulation 2016/679 (“EU GDPR”); (iii) the GDPR as it forms part of the law in England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”) and the Data Protection Act 2018 (“Act”); (iv) the Swiss Federal Act on Data Protection of 1 September 2023 and its corresponding ordinances (“Swiss FADP”); (v) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR, UK GDPR , DPA or Swiss FADP; in each case, to the extent in force, and as such are updated, amended or replaced from time to time; and (vi) any guidance or codes of practice issued by a DP Regulator in each case, to the extent in force, and as such are updated, amended or replaced from time to time; b) In Australia, the Privacy Act 1988 (APA) and the Australian Privacy Principles (APP); c) in the United States, the applicable laws of the United States, and within each state that has competent jurisdiction or power to govern the subject matter of the Agreement relating to Personal Data.
Controller, Processor, and process shall be as defined in the Data Protection Laws.
Designated Program means a Merchant Partner program identified as a Designated Program in an IO. Thanks Ad may identify a program as a Designated Program where Thanks Ad has agreed additional requirements with the relevant Merchant Partner in connection with that program.
DP Regulators means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Laws.
Effective Date means the date of the last Party signing the Agreement.
Feedback means any suggestions, information, ideas, feedback, or otherwise any interaction, whether written or oral or otherwise, concerning any of the Thanks Ad Widget or Services, its uses, characteristics or features, including but not limited to, a report of any errors which you or a third-party may discover while using an application or the Thanks Ad Widget software or any related documentation.
Intellectual Property Rights means all present or future rights, in any and all jurisdictions throughout the world, whatever their nature, in respect of or in connection with any proprietary technology or information, patented, patentable, or non-patentable inventions, trade secrets (including, but not limited to, marketing, sales, or pricing strategies or schemes, production models, mask work, and know-how and similar industrial, commercial and intellectual property rights) trademarks, service marks, and other Confidential Information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights, including the right to apply for the registration of such rights, anywhere in the world.
Loss means any loss, damage, cost, interest, expense, fee, penalty, fine, forfeiture, assessment, liability or award of damages and includes legal costs on an indemnity basis and indirect or consequential losses.
Merchant Partner means a business who has signed an agreement with Thanks Ad for the use of the Thanks Ad Widget on their sites.
Merchant Partner Sites means websites on which the Merchant Partner is permitted to use the Thanks Ad Widget.
Personal Data means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household or as otherwise defined by the Data Protection Laws. Personal Data does not include anonymized or aggregated data.
Pricing Metrics means the data point on which the pricing model is based, being either a Cost Per Click, Cost Per Activation or Cost Per Lead.
Privacy Policy means the Thanks Ad privacy policy which may be updated from time to time by Thanks Ad and available at: https://www.thanks.co/privacy-policy
Supplier means any person from whom Thanks Ad purchase any goods or services in connection with the supply of any of the Services.
Technical Specifications means the specifications available at https://ad-spec.thankful.tech
Thanks Ad Policies means these Advertising Partner Terms and Conditions, the Technical Specifications, any Third Party Policies (if applicable) and any other applicable policy notified or provided by Thanks Ad to Advertising Partner at its sole and reasonable discretion as a requirement for the use of the Thanks Ad Services, and as updated, modified, or implemented from time to time.
Thanks Ad Widget means the Thanks Ad script tag that is provided to Merchant Partners to place on or within their website, app, e-newsletter, or other merchant channel [for presentation to users].
Third Party Policies means the policies available at: https://www.thanks.co/thanks-third-party-policies
Website means our website at https://www.thanks.co
15 DESIGNATED PROGRAMS
Application
15.1 This clause 15 applies to each IO that identifies a Designated Program. It does not apply to any other IO. Except as set out in this clause 15, the remainder of these Terms and Conditions applies in full to a Designated Program.
Campaign approval, lead time and creative
15.2 Advertising Partner acknowledges that Campaign Content for a Designated Program requires the Merchant Partner's approval before it can be activated, and that Thanks Ad cannot activate a Campaign until that approval is given.
15.3 For a Designated Program, clause 2.6 is amended so that all Advertising Partner Ads and Campaign Content must be received by Thanks Ad at least fifteen (15) business days before the IO Term Start Date, or such longer period as Thanks Ad notifies to Advertising Partner.
15.4 Thanks Ad is not liable for any delay to, or failure to activate, a Campaign resulting from a Merchant Partner withholding, delaying or conditioning its approval. Where activation is delayed for that reason, Thanks Ad may extend the IO Term by the period of the delay or refund any prepaid charges for undelivered Advertising Partner Ads.
15.5 For a Designated Program, the modifications Thanks Ad may make without Advertising Partner's approval under clause 2.2 also include:
15.5.1. resizing, reformatting, re-laying out, cropping or otherwise adapting Campaign Content to conform to the Merchant Partner's approved creative templates, brand guidelines and technical requirements;
15.5.2. applying labelling, disclosures or disclaimers required by the Merchant Partner; and
15.5.3. making any change to Campaign Content that the Merchant Partner requires as a condition of its approval,
15.5.4. provided that Thanks Ad does not alter the substance of the offer, the price or discount, any material offer term, or Advertising Partner's trademarks or brand identity. Thanks Ad will make the adapted Campaign Content available to Advertising Partner on request.
No waiver by review or approval
15.6 Advertising Partner remains solely responsible for its Campaigns and Campaign Content, including their compliance with Applicable Laws, at all times.
15.7 Any review, comment, adaptation, approval or acceptance of any Campaign, Campaign Content, offer terms or other materials by Thanks Ad or a Merchant Partner, whether before or after activation:
15.7.1 is undertaken for Thanks Ad's and the Merchant Partner's own operational purposes only;
15.7.2 is not a legal opinion or any representation as to the legality, accuracy or adequacy of the reviewed material;
15.7.3. .does not reduce, limit, satisfy or transfer any of Advertising Partner's obligations, warranties or responsibilities under this Agreement; and
15.7.4 does not waive or limit any indemnity or other right of Thanks Ad or any Indemnified Party.
15.8 This clause applies in addition to, and does not limit, clauses 2.5 and 2.7.
Offer integrity
15.9 For the duration of each IO Term, Advertising Partner must:
15.9.1 honour each offer in its Campaign Content on the terms advertised, for every customer who claims or redeems it in accordance with those terms;
15.9.2 keep all coupon codes, promotion codes, vouchers, discount mechanisms, landing pages, links and redemption paths used in the Campaign valid and functioning;
15.10 Advertising Partner must notify Thanks Ad immediately if it becomes aware that an offer in a live Campaign cannot be honoured as advertised, and must at its own cost take the steps reasonably requested by Thanks Ad to remedy the position for affected customers.
Merchant Partner brand and publicity
15.11. Advertising Partner must not use the name, brand, trademarks, logos, trade dress or creative assets of a Merchant Partner or a Designated Program, or anything confusingly similar, in any Campaign Content, marketing material, press release, customer communication, case study, website, social media post or other public or promotional statement, without Thanks Ad's prior written approval.
15.12 Advertising Partner must not publicly disclose or refer to the existence of a Designated Program, its participation in it, or its relationship with the Merchant Partner, without Thanks Ad's prior written consent.
15.13 Advertising Partner must cease any use, disclosure or reference under clauses 15.11 or 15.12 immediately on Thanks Ad's written request, without liability to Thanks Ad, and must promptly remove or withdraw the relevant material.
Tracking and reporting
15.14 For a Designated Program, the audit right in clause 5.5.4 applies to all click, conversion, engagement, redemption and other performance data provided by Advertising Partner or generated by its tracking, whether or not it is used to calculate an invoice, and extends to verifying the accuracy of Thanks Ad's reporting to the Merchant Partner.
Existing non-disclosure agreements
15.15 Clause 13.4 (Entire agreement) does not supersede, vary or terminate any non-disclosure agreement between Advertising Partner and Thanks Ad, or between Advertising Partner, Thanks Ad and a Merchant Partner, relating to a Designated Program. Each such agreement remains in full force and effect according to its terms.