Marketplace Terms & Conditions (between Swaarm and Advertisers/Partners/Networks/Agencies)

These Swaarm Marketplace Terms together with the Swaarm Service Terms located at Swaarm Terms of Service will apply to your participation in the Swaarm Marketplace program (the “Marketplace”), owned and operated by Swaarm Tech GmbH with its principal place of business at Stallschreiberstr. 20, 10179 Berlin (“Swaarm”), as an Advertiser, Agency, Network, or Partner (the “Marketplace Agreement”). 

Where applicable, these Marketplace Terms supplement the Swaarm Services Order Form(s) that you have entered into with Swaarm, or the Advertiser Contract (as defined herein); any capitalized terms not defined in these Marketplace Terms shall have the same meaning as in the Swaarm Service Terms, Swaarm Services Order Form or Advertiser Contract.  

In case of conflict between these Marketplace Terms and the Swaarm Service Terms, Swaarm Services Order Form, or Advertiser Contract, these Marketplace Terms shall prevail.

1. Marketplace Participation as Advertiser or Partner

1. An advertiser Customer, Agency customer, or Network customer  (“Advertiser”) may contact and request a Marketplace publisher partner(s) (“Partner”) to participate in its performance marketing program (“Program”), subject to contract terms, including order forms (“Advertiser Order Form”), agreed to by Advertiser and Partner independently of Swaarm (collectively, the “Advertiser Contract”). Alternatively, a Partner may contact an Advertiser(s) to request to participate in its Program, subject to the corresponding Advertiser Contract.  For clarification, Swaarm shall not be a party to the Advertiser Contract.  In no event will Swaarm be responsible or liable for an Advertiser’s choice of Partners or a Partner’s choice of Advertisers, the terms of such relationships, including the Advertiser Contract, or participation in the Marketplace by Advertisers or Partners.  The Advertiser Contract shall not conflict with any Swaarm terms or agreements between Swaarm and Advertisers or Partners, including without limitation, the Swaarm Services Order Form (where applicable) or this Marketplace Agreement.
2. Partner must promote each Advertiser using only those methods approved or prescribed by the Advertiser. Partner shall not promote an Advertiser, or otherwise participate in the Marketplace, in a manner that includes the following means or technology (not an exhaustive list):

1. provision of leads obtained other than through intended consumer (“End User”) action (e.g. scraping, data mining, or compilations of personal data);
2. use of fake redirects, automated software, or other mechanisms to generate actions;
3. actions that are not in good faith, such as those using any device, robot, Iframes, or hidden frames;
4. use of applications to deliver Advertiser’s creative in an illegal or non-compliant manner, including without limitation, without End User’s permission;
5. End User incentives;
6. adware;
7. spyware; 
8. malware; 
9. file-sharing and the dissemination of pirated or copyrighted material; 
10. use of hate speech, harassment, bullying, threats, or similar content that advocates for violence or discrimination against any group, organization, or individual; or 
11. use of “Prohibited Websites” which do or include the following:

1. contain misleading, unsubstantiated, or dangerous health claims, advice, or remedies;
2. depict extreme acts of violence;

iii. redirect users to unwanted, unexpected, misleading, or malicious websites or contain automatic downloads;

1. promote the use or acquisition of firearms;
2. promote the use or acquisition of illegal drugs, illegal substances, or other illegal items; or
3. contain nudity.
4. All relationships with Partners that are first established in the Marketplace are to remain in the Marketplace for the duration of the Advertiser Contract and Advertisers agree that for one (1) year after termination of the Advertiser Contract, they will not solicit, directly or indirectly, any such Partner(s) for their in-house or third-party performance marketing programs.
5. Advertisers and Partners are solely liable for payments, and related taxes and withholdings, related to their participation in the Marketplace. For clarification, Swaarm shall not be responsible for any Advertiser or Partner non-payments, payment delays or account delinquencies. Except as mutually agreed to in writing, invoices between Advertisers and Partners shall be on a net thirty (30) day term, which Advertisers shall pay in good faith.
6. Your participation in the Marketplace is at Swaarm’s sole discretion. Without limiting the foregoing, you must at all times utilize the Marketplace for its intended purpose. Failure to do so may result in suspension or termination of your participation in the Marketplace by Swaarm.

2. Miscellaneous

1. Swaarm reserves the right to modify this Marketplace Agreement.
2. If this Marketplace Agreement is terminated, provisions that by their nature are intended to survive termination, shall survive the termination of this Marketplace Agreement.
3. In addition to your indemnification obligations in the Advertiser Contract or the Swaarm Services Order Form (where applicable), you shall indemnify, defend and hold harmless Swaarm against any Claims arising from or related to participation in the Marketplace by you or your Partners or Advertisers (as the case may be), including without limitation, claims from third parties, Advertisers or Partners related to the Advertiser Contract, the Swaarm Services Order Form or this Marketplace Agreement.
4. Each Party shall comply with all applicable laws, rules, and regulations, including data security and privacy laws, in its performance under this Marketplace Agreement and participation in the Marketplace.
5. To the maximum extent permitted by law, neither party shall be liable for consequential, incidental, indirect, special, punitive, or other damages, or for lost profits, business interruption, loss of business or information, or costs of procuring substitute goods or services, arising in connection with this marketplace agreement or the marketplace, even if advised of the possibility of such damages.
6. Governing Law. These Terms of Service and the other contract documents are subject to the law of the Federal Republic of Germany to the exclusion of the German conflict of laws principles and the UN Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising from or in connection with these Terms of Service including their validity, the District Court of Berlin (Landgericht Berlin) shall have exclusive jurisdiction to the extent permitted by law.