Insertion Order (IO) Terms & Conditions

A. General

This Insertion Order (IO) is entered into by and between LEVEL23, a corporation formed under the laws of Netherlands (“LEVEL23”) and the named Advertiser under the Advertiser Information hereinabove (“Advertiser,” or the “Client”) and sets forth the parties’ rights and obligations with respect to mobile performance advertising campaigns (the “Advertising Campaign”). Advertiser acknowledges that the sole obligation of LEVEL23 is to conduct the Advertising Campaign described herein. This Advertiser Insertion Agreement shall be treated as Confidential by the Advertiser, and the Advertiser shall not disclose any of the terms and conditions of this Advertiser Insertion Agreement to any third party without the express prior written consent of LEVEL23. Advertiser will also not use confidential disclosures made by LEVEL23 to usurp the affiliates of LEVEL23 or have any direct contact with affiliates that are not previously authorized by LEVEL23.

Advertiser agrees to give 72hrs written notice for any campaign cancellation or offer downtime. During any unexpected offer downtime where advertiser is at fault, advertiser agrees to credit based on MTD (month-to-date) conversion stats or best estimated stats agree upon by both parties. Any landing page, link or payout changes advertiser will give minimum 24hrs/1 business day notification to LEVEL23. Invalid leads and tracking discrepancy will be resolved through weekly reporting to be reconciled by client/advertiser, also client/advertiser must provide reporting or a system login for LEVEL23 to verify billing numbers.

Advertiser engages LEVEL23 to provide information service of promoting the Products within the Territories. Advertiser grants LEVEL23 a non-exclusive, revocable, limited, royalty-free license to use, reproduce, present, promote and distribute the Products, and to use the intellectual property rights associated with the Products within the Territories only for the purpose of promoting the Products.

B. Advertising Terms

For the purposes of this Insertion Order, the following are defined as such:

1. CPI = cost per install
2. CPA = cost per action, acquisition or application
3. CPS = cost per sale
4. CPL = cost per lead

C. Payment

Advertiser agrees to pay LEVEL23 for all advertising published by LEVEL23 on a business model define in clause B. ADVERTISING TERMS. Unless otherwise specified, LEVEL23 will invoice Advertiser for commissions generated by LEVEL23 on a monthly basis and invoices will be payable in full either within 30 business days of receipt of invoice. Time is of the essence as regards all payment terms in this insertion order. Advertiser agrees that it shall be solely liable for payment to LEVEL23. Further, Advertiser represents and warrants that it will furnish payment on all invoices, notwithstanding any non-payment to Advertiser by any third party including, and without limitation, Advertiser’s client(s) or customers. LEVEL23 failure to invoice Advertiser shall not constitute a waiver of any amounts due to LEVEL23 by Advertiser and/or LEVEL23 breach of this Advertiser Insertion Agreement. In the event of Advertiser’s default relating to the timely payment of any invoice, LEVEL23 shall have the right to immediately revisit the terms of this Agreement and/or terminate the Agreement. Advertiser will still be liable for any payments due to LEVEL23. Under no circumstances will LEVEL23 accept any delay in payment.

Late Payment, Reminders and Penalties

All invoices are payable within the agreed payment term as stated on the invoice. If the Advertiser fails to pay an invoice by the due date, the following late payment procedure and penalties apply:

1. Payment Reminder (Week 1 overdue)
   If an invoice remains unpaid 7 calendar days after the due date, the Client will receive a payment reminder.
2. Late Payment Penalty - 2.5% (Two weeks overdue)
   If the invoice remains unpaid 14 calendar days after the due date, LEVEL23 is entitled to charge a late payment penalty of 2.5% of the outstanding invoice amount. This penalty will be invoiced separately by means of an additional invoice.
3. Late Payment Penalty - 5% (One month overdue)
   If the invoice remains unpaid 30 calendar days after the due date, LEVEL23 is entitled to charge an additional late payment penalty of 5% of the outstanding invoice amount, also invoiced separately by means of an additional invoice.

Late payment penalties are calculated over the outstanding amount and become immediately due and payable upon issuance of the penalty invoice. LEVEL23 reserves the right to suspend further services and/or deliveries until full payment of the outstanding balance and any applicable penalty invoices has been received.

Further, in case of dispute or default by the Advertiser, the latter agrees to indemnify LEVEL23 and pay all damages and costs actually incurred by LEVEL23, including, but not limited to, collection agency and attorneys' fees and costs, as a result of having to remedy breach of this Advertiser Insertion Agreement. Advertiser agrees to pay LEVEL23 based on invoices received from any Company (of any country) of LEVEL23 Group, mentioned in this Insertion Order or communicated to the Advertiser via paper, fax or e-mail communication with acknowledgement of receipt. Modifications to the originally agreed LEVEL23 Company for invoicing will be accepted by client/advertiser and LEVEL23 if both parts acknowledge the modification in writing. In case the invoice is paid through PayPal instead of wire transfer, the advertiser or network shall be responsible for the full amount of the payment sent to Level23, including all PayPal and transaction costs. In case the partnership has been initiated on a prepayment base and the prepayment budget is being refunded LEVEL23 reserves the right to withhold 100 USD to cover any administration and transactions costs.

D. Payouts Agreement and Revision

All the payouts agreements and revisions are made via paper, fax or e-mail communication with acknowledgement of receipt. Modifications to the originally agreed payouts will be accepted by client/advertiser and LEVEL23 if both parts acknowledge the updated payout in writing.

E. Reporting

Advertiser will provide a full and approved revenue report upon the accounting period not later than the 5th business day of the new month following the accounting period (in case of statutory holiday or weekends, postponed to the first working day after the holiday or weekends) Monthly report shall summarize data including but not limited to, the number of installations/leads/sales/active valid users of the Products by date according to the Pricing Type agreed between the Parties, the amount of payment of month N and other variables of the Products. Reporting on leads and any other statistics are of the responsibility of LEVEL23 and all the invoicing will be based on the counts agreed upon by both parties. All rates are based on a gross lead or gross sale basis. In the case of discrepancy between Level23’s reporting and Advertisers reporting, the payment will be based on the data of LEVEL23. It is acknowledged between the parties once LEVEL23's pixel fires this triggers a responsibility for payment to LEVEL23's publishers. It is therefore agreed that should the advertiser allow for Level23’s pixel to fire there may be no scrubs, deductions, or chargeback’s of any kind under any circumstance. In case of fraud or disqualified sales the advertiser needs to report this within one week after this has taken place, proper proof, logs and click_ids are needed before sales can be considered invalid. After this week the sales in question can no longer be reduced on the next invoice.

F. Privacy

All parties declare and warrant that they are in full compliance with applicable privacy laws and all federal, state, and/or provincial regulations. All parties shall also provide notice for and fully disclose, their respective privacy policies and practices to visitors to their website(s). Client warrants that engaging in the services provided by LEVEL23 pursuant to this Insertion Order shall not violate Client’s privacy policy.

G. Governing Law / Venue

This Agreement shall be governed in accordance with the laws of Netherlands (without reference to the conflict of laws rules or principles thereof), and the parties expressly consent that any dispute arising from or out of, or relating to this Agreement shall be resolved in the Netherlands Court.

H. Termination

Either party may terminate an Insertion Order for any reason or for no reason by providing the other party with Seventy Two (72) hours prior written notice. Either party may terminate an Insertion Order at any time in if the other party is in material breach of its obligations under this Agreement and such breach is not cured within five (5) days after written notice thereof from the non-breaching party. In the event of termination by either party for any reason pursuant to an Insertion Order, the Advertiser shall cease distribution of the Advertising Campaign.

I. Idemnification

Client agrees to indemnify, defend and hold harmless LEVEL23, its parents, subsidiaries, shareholders, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) asserted by any third party, including governmental entities, due to, arising from, or in connection with any breach by either party of the terms of this Advertiser Insertion. Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed or negligence by either party; all liabilities related to the Product described on page 1 of this Insertion Order, any investigation or governmental claim, and/or any intellectual property claims associated with any and all copy and images supplied by both parties and its associated usage thereof. Except as otherwise provided in this Agreement or with the consent of LEVEL23, it is agreed that all information, including, without limitation, the terms of this agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning the Advertiser or any of its affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Advertising Campaign, except and solely to the extent that any such information is generally known or available to the public through a source other than LEVEL23. The Affiliates shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.

J. Entire Agreement

This Insertion Order sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter of this Insertion Order and may be changed only by a subsequent writing signed by both parties. This Insertion Order is non-exclusive to LEVEL23 and LEVEL23 shall have the right to enter into similar agreements with other third parties. The parties hereby represent and warrant that they shall at all times fully comply with all applicable state, and/or provincial and federal statutes, rules and regulations with respect to their respective businesses including, without limitation and/or provincial laws governing deceptive trade practices, provided such third parties are not competitors of Client. In the event that it is required that LEVEL23 agree to additional terms when using Client’s affiliate marketing web site, both Client and LEVEL23 acknowledge and agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered, in order to view stats and or access creative or other campaign materials or details. Therefore any terms which appear on Client’s website are to be disregarded and deemed non effective, and shall be superseded by these written Terms and Conditions as signed by both Parties.

K. Assignment

The Client may not assign, transfer, subcontract or sublicense, in whole or in part, this Agreement, any Insertion Order or any of its rights or obligations under this Agreement, without LEVEL23's prior written consent. Any attempt to assign this Agreement other than as permitted above will be considered void and invalid. Subject to the foregoing, the terms of this Insertion Order will be fully binding upon, inure to the benefit of and be enforceable by, the parties’ respective permitted assigns, successors, heirs, executors, administrators and permitted assigns.

L. Limitations of Liability

ALL SERVICES PROVIDED BY LEVEL23 ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LEVEL23 MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. LEVEL23 IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM LEVEL23 OR THROUGH OR FROM LEVEL23 SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL LEVEL23 BE LIABLE FOR FINES AND/OR DEDUCTIONS COMING FROM ADVERTISER, NETWORK OR OTHER THIRD PARTIES .

FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF LEVEL23 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. ADVERTISER IS FULLY RESPONSIBLE FOR PASSING ALONG THE CORRECT CALLBACK PARAMETERS, THIS INCLUDES PAYOUT, COUNTRY AND TRACKING VALUES. REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST LEVEL23 MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. ADVERTISER ACKNOWLEDGES THAT LEVEL23 HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. ADVERTISER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

M. Non-circumvention

A) During the term of any Insertion Order in effect and for a period of one hundred and eighty days (180) thereafter, the Advertiser shall not engage, contract with, work with, license, or permit any person, firm, or entity to represent the Advertiser in any performance-based advertising relationship with any publisher within LEVEL23 unless a previously existing business relationship between Advertiser and such publisher can be demonstrated to LEVEL23 reasonable satisfaction.

B) If a publisher initiates a performance-based advertising relationship with the Advertiser and the latter determines later that such Publisher was a publisher within LEVEL23 at the time publisher initiated the relationship, the Advertiser shall immediately terminate its relationship with the publisher.

C) If the Advertiser fails to comply with any requirements set forth in this Section and because the resulting damages will be difficult to quantify, LEVEL23 will be entitled to liquidated damages equal to 50% (fifty per cent) of the gross revenues resulting from sales conducted by Advertiser in violation of this paragraph in addition to any other remedies LEVEL23 may have at law or in equity.