These terms and conditions (“Terms”) govern the relationship between Healthy Ads and Publishers.
Parties
Healthy Ads (as hereinafter defined)
And
The Publisher (as hereinafter defined).
1. Definitions
(1) In these terms and conditions:
(a) “Advertiser” means any individual, brand, entity, reseller, programmatic buyer, demand side platform or advertising agency that seeks to engage Healthy Ads to provide the Healthy Ads Services.
(b) “Advertising Creative” means a digital advertisement including any text, image, video, rich media, high impact, native or other media which is issued to promote a product or service online.
(c) “Advertising Server” means a computer server, specifically a web server that stores advertisements used in online marketing and delivers them to website visitors.
(d) “Advertising Tags” means Java Scripts (or similar programs or devices) provided by Healthy Ads that are designed to be inserted into the code of the Approved Publisher Website and then communicated with servers designated by Healthy Ads to request transmission from the servers of Advertising Creative.
(e) “Approved Publisher Website” means the Platform owned or operated by a Publisher, or on which a Publisher is legally authorised to act in the manner contemplated by these Terms and which Healthy Ads has reviewed and approved for participation in the Healthy Ads Network.
(f) “Confidential Information” means all trade secrets, business, financial and technical information of Healthy Ads, its associated entities and the Healthy Ads Network (whether disclosed orally or in in writing and whether or not developed by the Publisher), including, but not limited to, consumer data, sales and customer information, supplier information, product and brand information, business and operational information, personnel information, marketing and promotional information, advertising plans and information, software programs, technology, programming, technical specifications, research, concepts, ideas, designs, techniques, plans, strategies, materials, guidelines, documentation relating to the Healthy Ads Network, the Publisher Console, the CPM, CPC or CPA rates or other statistics relating to the performance of the Approved Publisher Website and all other information relating to the Healthy Ads Network and the current or potential business activities of Healthy Ads and its associated entities and any other information that Healthy Ads advises the Publisher is confidential.
(g) “Healthy Ads Ad Server” means the ad server of choice used by Healthy Ads from time to time in the absolute discretion of Healthy Ads.
(h) “Healthy Ads Badge” means the graphical badges located at https://publishers.healthyads.com/resources/badges.
(i) “Healthy Ads Network” means the collective network of food, recipe or cooking Platforms managed by Healthy Ads.
(j) “Healthy Ads Services” means the services provided by Healthy Ads, including the provision of the Advertising Tags through the Healthy Ads Website, the provision of services under the Publisher Console and all other services provided by Healthy Ads.
(k) “Healthy Ads Website” means both www.healthyads.com and publishers.healthyads.com and includes, for the avoidance of any doubt, the Publisher Console.
(l) “Healthy Ads” means Healthy Ads Pty Limited A.C.N. 600 814 435 of PO Box 1736 Warriewood NSW 2102, Australia
(m) “Invalid Activity” means any Invalid Impression and/or Invalid Click and/or invalid conversion regardless of whether or not the Invalid Click, Invalid Impression or invalid conversion originated from the IP address (or addresses) or computers under the control of the Publisher.
(n) “Invalid Click” means any click on an Advertising Creative that:
(i) may or can cause the web surfer to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Approved Publisher Website, or because of alterations made by Publisher or erroneous coding placed on the Approved Publisher Website;
(ii) results from applying repeated manual or mechanically automated clicks on mouse or keyboard or any other non-human click generation processes (including but without limitation robots, webbot, bot, Botnet, spiders, malware, scripts or other software or program);
(iii) results from incentives, payments, representations, requests to end users, or misleading or coercive means in the opinion of Healthy Ads; or
(iv) results from non human traffic;
(v) artificially inflate clicks;
(vi) results from any method that any one or more of Healthy Ads, a Third Party Detection Service, Advertiser and the Healthy Ads Ad Server deems to be invalid, fraudulent in nature and/or from non-human traffic.
(o) “Invalid Impression” means any impression that is the result of:
(i) the stacking of Advertising Creatives including but not limited to putting two or more Advertising Creatives next to each other or on top of each other on any Publisher Website;
(ii) domain masking, including but not limited to placing Advertising Tags on any Platform that is not an Approved Publisher Website;
(iii) the multiple use of an Advertising Tag on an Approved Publisher Website;
(iv) the use of pop ups, pop unders, auto-refreshing of Advertising Tags, auto refreshing browsers or an automated program or device or web farm;
(v) the alteration, in any way, of any one or more of an Advertising Tag or the size of the Advertising Creative on the Approved Publisher Website as determined by Healthy Ads or the size of an Advertising Tag;
(vi) any other non-human impression generation processes (including but without limitation robots, webbot, bot, Botnet, spiders, malware, scripts or other software) or any activity or method that artificially inflates impressions or through the use of artificial traffic;
(vii) incentives, payments, representations, requests to end users, or misleading or coercive means in the opinion of Healthy Ads; or
(viii) any method that any one or more of Healthy Ads, a Third Party Detection Service, Advertiser and Ad Serving Partner deems to be invalid, fraudulent in nature, or the result of a non-human impression generation process.
(p) “Platform” means website, application, mobile site, tablet site or otherwise online property or other media;
(q) “Publisher” means a person or entity owning or operating an Approved Publisher Website.
(r) “Publisher Console” means console.healthyads.com.
(s) “Relevant Calendar Month” means any calendar month during which Advertising Tags are run on the Approved Publisher Website.
(t) “Third Party Detection Service” means Pixelate.com or any other service or services used by Healthy Ads from time to time, in the absolute discretion of Healthy Ads, to monitor the Healthy Ads Network and detect Invalid Activity.
2. About these Terms
(1) If the Publisher uses the Healthy Ads Website or undertakes any activity through the Healthy Ads Website including but not limited to participating in the Healthy Ads Network, placing Advertising Tags on an Approved Publisher Website and using any Healthy Ads Services, the Publisher will be deemed to have read, understood and accepted these Terms, regardless of anything that has been stated to the contrary in enquiries made by the Publisher. Healthy Ads reserves the right to refuse any application to join the Healthy Ads Network in its sole and absolute discretion.
(2) All Healthy Ads Services, including services provided through the Healthy Ads Website, are governed by these Terms and by all of the policies and guidelines of Healthy Ads and all such policies and guidelines are incorporated into and form part of these Terms. To the extent of any inconsistency these Terms prevail. If the Publisher does not accept these Terms, the Publisher must refrain from using the Healthy Ads Website and from undertaking any activities through the Healthy Ads Website, including but not limited to immediately removing any Advertising Tags and using in any way the Healthy Ads Services.
(3) If the Publisher breaches or otherwise fails to comply with any provision of these Terms then, in addition to any other remedy available to Healthy Ads, Healthy Ads may immediately terminate the participation of the Publisher in the Healthy Ads Network.
(4) The relationship of the Publisher to Healthy Ads is one of an independent contractor. No employer-employee, agency, joint venture, franchise, sales representative or partnership relationship is created by these Terms or by any use of the Healthy Ads Services. For the avoidance of doubt, Publishers bear all responsibility and liability for all taxation related issues in regards to the relationship between the Publishers and Healthy Ads. In relation to Australian based Publishers, Goods and Services Tax may be applied to any payments made to Publishers, whether pursuant to these Terms or otherwise. Healthy Ads has no responsibility whatsoever in respect of any such payment or taxation liability.
3. Publisher Obligations
(1) The Publisher agrees to comply, at all times, with the Healthy Ads Publisher Eligibility Criteria as outlined at https://publishers.healthyads.com/publishers/eligibility-requirements. Healthy Ads may, in its discretion from time to time, review or audit the Approved Publisher Website to confirm compliance with the Healthy Ads Publisher Eligibility Criteria.
(2) The Publisher must:
(a) publish and maintain a current and legally compliant privacy policy at all times on the Approved Publisher Website and clearly display either the privacy policy of the Publisher or a URL link to such policy on the Approved Publisher Website.
(b) unless the Publisher requests and Healthy Ads consents (such consent not to be unreasonably withheld), publish and have clearly visible at all times on the Platform of the Publisher either a Healthy Ads Badge downloadable from https://publishers.healthyads.com/resources/badges or a link to www.healthyads.com.
(c) unless specifically instructed otherwise by Healthy Ads, implement the provided Advertising Tags “as is” on the Approved Publisher Website, including not making any changes to the code.
(d) do all things necessary to publish Advertising Tags directly on the Approved Publisher Website. If the Publisher uses an Advertising Server, Advertising Tags must be loaded within JavaScript and not loaded within an iframe.
(e) ensure that the URL of the Approved Publisher Website is fully transparent and visible and not hidden;
(f) notify Healthy Ads at least thirty (30) days prior to any material change being made to the content of the Approved Publisher Website;
(g) do all things reasonably necessary to avoid any Invalid Activity.
(3) The Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to operate the Approved Publisher Website and implement the Advertising Tags.
(4) The Publisher must, upon request from Healthy Ads, immediately remove any or all Advertising Tags requested to be removed by Healthy Ads and must advise Healthy Ads in writing when all such Advertising Tags requested to be removed have been removed.
(5) In the course of the business relationship between Healthy Ads and the Publisher, in connection with the participation of the Publisher in the Healthy Ads Network the Publisher is likely to receive, learn or otherwise have access to the Confidential Information.
(6) The Publisher agrees to hold all Confidential Information in strict confidence and not to disclose (or allow any person to disclose) any Confidential Information to any third party without the prior written consent of Healthy Ads. The Publisher also agrees not to make any use whatsoever of the Confidential Information except as necessary to perform the obligations of the Publisher under these Terms. The Publisher must immediately notify Healthy Ads in writing of any request for access by any third party to the Confidential Information. The Publisher must not use (or allow any other person to use) the Confidential Information for the benefit of anyone other than the owner of such Confidential Information.
4. Healthy Ads’ Obligations
(1) Healthy Ads has the right, but not the obligation, to provide Advertising Tags for use by the Publisher on the Approved Publisher Website which contain advertising on a CPM, CPC or CPA basis. The Publisher acknowledges that the rates provided in the Publisher Console or paid by Healthy Ads are confidential and cannot be disclosed by the Publisher without the prior written consent of Healthy Ads.
(2) The provision of Publisher Advertising Tags by Healthy Ads will be done on an “as is” basis in the sole discretion of Healthy Ads.
(3) Healthy Ads, its partners and third party service providers will not be held responsible or liable in any way for any disruption or loss of access to the Healthy Ad Services or for any failures, errors or omissions or loss of transmitted information that may occur in relation to, or in the provision of, the Healthy Ad Services. Given the nature of the internet, Healthy Ads cannot guarantee that the Healthy Ads Website will be free from viruses, faults or other conditions which could damage or interfere with computer systems. The Publisher assumes the risk of any damage to any property as a result of using the Healthy Ads Website, and to the maximum extent permitted by law, Healthy Ads disclaims all liability for any errors, omissions and faults.
5. Payment
(1) Subject to this clause 5, the Publisher will receive payment related to the number of valid impressions or valid clicks or conversions on an Approved Publisher Website, that is, payment for impressions that are not Invalid Impressions, payment for clicks that are not Invalid Clicks and payment conversions that are not invalid conversions. Invalid Impressions, Invalid Clicks and invalid conversions are to be determined by Healthy Ads in its absolute discretion. For the avoidance of any doubt, Healthy Ads shall not be required to make any payment, and the Publisher is not entitled to payment, of any amount which results from any Invalid Impression, Invalid Click, invalid conversion or relates to any Platform other than an Approved Publisher Website.
(2) Subject to clause 10, Healthy Ads will make a payment to the Publisher, such payment to be calculated by the Healthy Ads Ad Server, approximately sixty (60) days after the end of each Relevant Calendar Month. Payments to Publishers will be calculated solely based on the accounting of Healthy Ads. The accounting may be subject to change at any time, including but without limitation:
(a) even after a payment by Healthy Ads to the Publisher, in which case Healthy Ads may be entitled to a refund from the Publisher;
(b) in circumstances where an Invalid Activity has occurred or been detected.
(3) Healthy Ads may, in its absolute discretion, withhold payments or adjust payments to the Publisher:
(a) if there has been any breach of these Terms;
(b) to exclude any amounts refunded or credited to advertisers;
(c) to reflect or exclude any amounts for any period after Healthy Ads has requested the removal of any or all Advertising Tags;
(d) if there has been any Invalid Activity or if, in the reasonable opinion of Healthy Ads, there is a suspicion that an Invalid Activity is occurring or has occurred in the past;
(e) to reflect or adjust amounts arising from any Invalid Activity regardless of when the Invalid Activity occurred; or
(f) in the event that an Advertiser whose advertisements are displayed in connection with the Approved Publisher Website defaults on any payment due and payable to Healthy Ads or refuses to make payment to Healthy Ads for advertisements displayed in connection with the Approved Publisher Website.
(4) Healthy Ads may, in its absolute discretion, withhold and offset any payments owed to a Publisher under these Terms against any fees, refunds or amounts the Publisher owes Healthy Ads under these Terms or any other agreement between the Publisher and Healthy Ads.
(5) For the avoidance of any doubt, if Healthy Ads has the right to:
(a) withhold payments for any reason whatsoever, such a right extends to all payments not yet made by Healthy Ads, including payment for any prior periods;
(b) adjust payments for any reason whatsoever, such a right extends to all payments whether or not that payment has been made by Healthy Ads. The Publisher agrees that if a payment that has already been made is later adjusted for any reason (for example, if an Invalid Activity is later detected in respect to that Relevant Calendar Month) and the adjustment results in a decrease in the payment that was required to be made, Healthy Ads has overpaid the Publisher and Healthy Ads is entitled to a refund.
(6) The Publisher must pay or refund to Healthy Ads, within 30 days of any invoice or demand, any amounts that:
(a) Healthy Ads may have overpaid to the Publisher in prior periods including but not limited to any adjustment made by Healthy Ads pursuant to this clause 5 for any prior period;
(b) Healthy Ads is charged by its banker in respect of any bank fees or charges associated with any returned or rejected payments to a Publisher or any payment from a Publisher that is dishonored or not met on presentation; and
(c) the Publisher owes Healthy Ads under these Terms.
(7) The Publisher must notify Healthy Ads, in writing, of any dispute about any payment made or withheld by Healthy Ads within thirty (30) days of the date of the payment or withholding (“Dispute Date”). If the Publisher does not notify Healthy Ads in writing within thirty (30) days of the Dispute Date any claim by the Publisher related to the disputed payment or withholding is waived.
(8) The Publisher acknowledges and agrees that any breach of any of these Terms could result in immediate, extraordinary and irreparable damage to Healthy Ads and its relationships with its Advertiser clients, and that damages may be difficult to measure. If the Publisher is in breach of these Terms, the Publisher agrees to pay Healthy Ads, in addition to other amounts that may be payable to Healthy Ads under these Terms, liquidated damages of $1,000 per day for each and every day the percentage of Invalid Activity (as calculated by Healthy Ads) compared to the total activity on the particular Approved Publisher Website (as calculated by Healthy Ads) exceeds twenty percent (20%). The Publisher agrees that such liquidated damages are reasonable.
6. Restrictions and Prohibited Activities
(1) The Publisher shall not do any of the following at any time:
(a) Place any Advertising Tags on any Platform other than an Approved Publisher Website.
(b) Alter, reverse engineer, decompile, disassemble, sell, rent, lease, sublicense, transfer, or otherwise make available the Advertising Tags or Advertising Creatives or any copies thereof to any third party, or create derivative works therefrom.
(c) Do any act or thing, or omit to do any act or thing, either directly or indirectly, that may result in or comprise an Invalid Activity including but not limited to:
(i) placing Advertising Tags on blank web pages or on web pages with no content or stack Advertising Creatives (e.g. place Advertising Tags on top of one another so that more than 2 Ads are next to each other);
(ii) deceiving a third party by making Advertising Creatives look like editorial content;
(iii) using autospawning browsers, automatic redirecting of visitors, blind text links or misleading links;
(iv) using bots, webbots, Botnet or malware;
(v) forced clicks (for example, requiring a person to click on an Advertising Creative because their browser has been hijacked, or because an Advertising Creative has been altered so that it is impossible to close without clicking it).
7. Disclaimer of Warranties and Liability
(1) Healthy Ads makes no representations or warranties of any kind, express or implied, in relation to any information, content, materials or products included in or contained on the Healthy Ads Website or to the availability, accuracy, completeness, currency, reliability, functionality, performance or suitability for intended use of such information, content, materials or products.
(2) Healthy Ads does not, nor do its officers, employees, agents and other representatives, accept responsibility for any damages (including, without limitation, consequential, special, punitive, incidental, indirect, or similar damages) even if advised of the possibility of such damages, loss, tax liability, cost or expense, howsoever caused or incurred (including through error, omission, negligence, misrepresentation, miscalculation or matters outside the control of Healthy Ads), which the Publisher may directly or indirectly suffer in connection with the use of the Healthy Ads Website or any linked website by the Publisher, including if access to the Healthy Ads Website is interrupted or permanently disabled, nor does Healthy Ads accept any responsibility for any such loss arising out of the use by the Publisher of, or reliance on, information contained on, or accessed through, the Healthy Ads Website. To the maximum extent permitted by law, Healthy Ads disclaims any representations or warranties as to the completeness, accuracy, merchantability or fitness for purpose of the Healthy Ads Website or the information that it contains.
(3) The use of the information on the Healthy Ads Website and interactions with other users of the Healthy Ads Website, third party developers or any other parties with whom the Publisher interacts through the Healthy Ads Website, is at the sole risk of the Publisher. To the extent permitted by law, Healthy Ads excludes all liability of Healthy Ads, its officers, employees, agents and other representatives in respect of any injury, loss or damage arising out of the use of the Healthy Ads Website by the Publisher, including, or related to theft, unauthorised access or third party interference, viruses and the use, or inability to use, the information on the Healthy Ads Website or information provided directly or indirectly through the Healthy Ads Website. This limitation of liability includes, but is not limited to, compensatory, direct, indirect or consequential damages, interruption of business, loss of data, income or profit, loss of, or damage to property, and third party claims. If any liability is not able to be excluded by law, Healthy Ads limits its liability to the re-supply of the relevant information or services.
(4) The Healthy Ads Website and all content, products and services included in or accessible from the Healthy Ads Website are provided “as is” and without warranties or representations of any kind (express, implied and statutory, including but not limited to the warranties of title and non-infringement and the implied warranties of merchantability and fitness for a particular purpose), all of which Healthy Ads disclaims to the fullest extent permitted by law. The use of the Healthy Ads Website by the Publisher is at the sole risk of the Publisher.
(5) Healthy Ads does not manage Advertiser websites and does not control, and has no responsibility for, the content, products or services offered therein or performance of the websites of Advertisers or any use of those websites by the Publishers or any relationship between the Publishers and Advertisers. Any views or opinions contained on or expressed in the websites of Advertisers are those of the author(s) alone, and do not reflect the views or opinions of Healthy Ads, or those of the Healthy Ads management and staff.
(6) The Publisher indemnifies and agrees to defend and keep each of Healthy Ads, its parents, subsidiaries, associates, officers, directors, employees, agents, partners and third party advertisers harmless from and against any claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable solicitor’s fees that may at any time be incurred by any of them, directly or indirectly, arising out of or in connection with any one or more of:
(a) any breach of these Terms or the use of the Healthy Ads Services or participation in the Healthy Ads Network;
(b) any demand, claim, suit or proceedings by a third party in connection with the Approved Publisher Website including any content served on the Approved Publisher Website that is not provided by Healthy Ads;
(c) any contaminated file, virus, worm, Trojan horse or similar program originating from the Approved Publisher Website (other than through an Advertising Creative supplied by Healthy Ads, unless such Advertising Creative was modified by the Publisher without the prior written consent of Healthy Ads);
(d) any violation of any intellectual property right or any other third party right, except for Advertising Creative supplied by Healthy Ads, unless such Advertising Creative was modified by the Publisher without the prior written consent of Healthy Ads.
8. Intellectual Property
(1) The Healthy Ads Website and all intellectual property rights, including graphics, logos, trade marks, design, text, icons, the arrangement of them, sound recordings and all software relating to the Healthy Ads Website, are the intellectual property of Healthy Ads, a related body corporate of Healthy Ads or their respective owners. These intellectual property rights are protected by Australian and international laws.
(2) Nothing contained in the Healthy Ads Website is to be interpreted as a recommendation to use any information on the Healthy Ads Website in a manner which infringes the intellectual property rights of any person, company or entity. Healthy Ads make no representations or warranties that the use of the Healthy Ads Website by the Publisher or the information on the Healthy Ads Website will not infringe such intellectual property rights.
(3) The content appearing on the Approved Publisher Website, including all intellectual property rights in such content, shall remain the sole property of the Publisher. The Publisher grants to Healthy Ads a worldwide non-exclusive licence to use all of the intellectual property of the Publisher as may be required from time to time by Healthy Ads to provide the Healthy Ads Services to the Publisher, including without limitation a licence to use any trade mark, logo, domain name or Platform content belonging to the Publisher or any related entity of the Publisher.
(4) The Publisher agrees that Healthy Ads may include the name of the Publisher and details of the Approved Publisher Website in its marketing materials, customer lists and financial reports.
9. Information Provided by Publishers and Privacy
(1) In the course of using the Healthy Ads Website, the Publisher may be required to provide Healthy Ads with certain information, including as part of the application process. It the responsibility of the Publisher to provide Healthy Ads with information that is accurate, complete and correct. Healthy Ads takes no responsibility for any errors that may occur as a result of the Publisher providing Healthy Ads with incorrect, incomplete, outdated or otherwise invalid information.
(2) Any personal information supplied by the Publisher through the Healthy Ads Website at the request of Healthy Ads will be used by Healthy Ads in accordance with its privacy policy. Please refer to the privacy policy on the Healthy Ads Website for further information relating to the treatment of personal information.
10. Termination
(1) The Publisher may terminate its participation in the Healthy Ads Network with 14 days written notice to Healthy Ads.
(2) If a Publisher terminates its participation in the Healthy Ads Network, the provisions of clause 5 shall apply however any reference to “sixty (60)” days will be amended to read “ninety (90)” days.
(3) Healthy Ads can and will terminate the rights of the Publisher under this agreement and the participation of the Publisher in the Healthy Ads Network, immediately and without notice, if so requested by any one or more of:
(a) Healthy Ads Ad Server; and
(b) an Advertiser.
(4) The participation of the Publisher in the Healthy Ads Network will immediately and automatically cease upon receipt by Healthy Ads of a notice from the Healthy Ads Ad Server (Server Notice) that the Healthy Ads Ad Server will cease, or has ceased, to deliver advertisements to the Publisher and/or the Approved Publisher Website. Healthy Ads will provide the Publisher with a copy of the relevant Server Notice from the Healthy Ads Ad Server within three business days of receipt of the relevant Server Notice.
(5) In the event of termination of the Publisher by Healthy Ads or the removal of the Publisher from the Healthy Ads Network by Healthy Ads, Healthy Ads may withhold unpaid amounts and/or charge back or deduct, from any amounts otherwise payable to the Publisher, any amounts payable by the Publisher to Healthy Ads.
11. General Conditions
(1) Healthy Ads reserves the right to amend, vary, change, modify, add or remove all or any portion of these Terms in its sole and absolute discretion at any time and without prior notice. Any changes will operate prospectively.
(2) The Publisher cannot assign its rights under these Terms without the prior written consent of Healthy Ads. Healthy Ads may assign its rights under these Terms without the consent of the Publisher.
(3) These Terms are governed by the law in force in New South Wales, Australia and the parties submit to the jurisdiction of the courts of that jurisdiction.
(4) The failure of Healthy Ads to exercise or enforce any right or provision of these Terms shall not constitute a waiver of any such right or term.
(5) If any provision of these Terms are unenforceable or held invalid, the remainder of these Terms shall continue in full force and effect.
