Terms and conditions

Summary

0. Object

Global Activo Soluciones S.L. under the brand The Cactus Road(hitherto TheCactusRoad) offers a platform where Advertisers market and advertise their services and goods using ads, and where Publishers incorporate the advertising material into their sites by virtue of these Terms of Service.

1. Sites

1.1. THE CACTUS ROAD reserves the right to approve or deny the affiliation of a Publisher at any time. The following are examples of Publishers' sites that are not eligible to participate on THECACTUSROAD's network:

  • Sites which contain material that infringes upon the rights of others (including, but not limited to, copyright and other intellectual property rights) or which promotes copyright piracy.

  • Sites with reference to illicit practices or which offend human dignity: those of a pornographic nature staging minors; Contents which excuse deliberate crimes against human life and integrity and which excuse sexual aggressions; Contents which excuse war crimes, crimes against humanity; Contents provoking discrimination, hate or violence towards a person or towards a group of persons due to their origin or the group they belong to (an ethnic group, a nation, a race or a religion). Any description will be automatically recorded and indicated to proper authorities.

  • Sites which contain the following acts: abuse, incest, rape, torture, blood, bestiality/zoophilia
  • Sites that participate in or transmit inappropriate newsgroup postings or unsolicited emails (spam).
  • Sites promoting any type of illegal substance or activity (i.e., how to build a bomb, hacking, 'phreaking', etc.)
 .
  • Sites with illegal, false or deceptive investment advice.

  • Sites that provide incentives of any nature to require or encourage users to click on ad banners (i.e., charity, sweepstakes, etc.).

  • Sites that are under construction or incomplete.

  • Sites with extremely limited audiences or viewership (less than 50 unique visitors per day).

  • Sites that contain any content violating international privacy laws.

  • Publisher's sites and content are at all times compliant with Organic Law 15/1999 of 13th December on the Protection of Personal Data (LOPD) - Spain - or their corresponding country Data Protection Law and shall not violate any law, regulation, rule or custom or violate, infringe or misappropriate any person's or entity's rights, including without limitation any property or privacy rights, including intellectual property rights, such as copyrights, trademark rights or rights in name or likeness.

Publisher will be fully responsible for all campaigns and ensure that all the content and the advertising material to be used in each campaign will be according with the rating established by each country and operator. For instance, for creatives with adult content, in countries as:

  • Mexico, the established rating is 1.1 *.
  • India, the established rating is 1.1*.
  • Indonesia, the established rating is 1.1*.
  • Australia, the established rating is 1.4***.
  • South Africa, the established rating is 1.6**.
  • France, the established rating is 4.3****.

Ignorance of the adequate adult content ratings policy by a partner who commits an offence is not an excuse to be exempt from compliance.

Any form of misuse will lead to the blocking of the Publishers' accounts immediately. In this case Publishers may raise an objection (i.e. via letter, fax, email) within a month in order to provide a statement with evidence that the chosen form of advertising has been in accordance with these Terms of Service by the Publisher. If the Publisher cannot confute the breach of these Terms of Service, THECACTUSROAD will issue a notice of termination.

In these countries the Publisher shall be fully responsible for the payment of all sanctions, liquidations, fines, penalties which may be imposed for non-compliance with applicable laws and regulations related to any marketing campaign, or to the generation of mobile web traffic by Publisher to the services under the scope of this Agreement.

*Lingerie: Single Model, no nudity must be wearing bra and panties/swimwear/etc. No nipples, no nipple shadow, no nipple covers, no pubic hair or see-through underwear. Can include full rear view if wearing G-String/panties. No sexually suggestive touching or position. No use of objects to imply sexual activity. Use of Object to convey sexual activity covers the handling, kissing, licking or sucking of phallic-like objects.

**Female-Female Topless: More than one model, no genitalia, no pubic hair, can include full rear view . Limited sexually suggestive touching or position. No use of objects to imply sexual activity. Limited sexually suggestive touching excludes hand to breast but can include breast to breast.

***Topless: Single model, no genitalia, no pubic hair, can include full rear views in 1.3. No sexually suggestive touching or position. No use of objects to imply sexual activity.

****Female-Male: Medium shot of male masturbating female or implied oral sex (cunnilingus). No visible penetration with tongue, fingers etc. No tongue on genitalia, if penis visible then must not be erect. Normal sized and shaped phallic objects can be used in the shot, but the objects must not touch the genitalia.

1.2. THECACTUSROAD regularly checks the Publishers' site(s). If THECACTUSROAD determines that the Publisher's site(s) includes any forbidden content, THECACTUSROAD may close the Publisher's account without prior notification. In such a case, the Publisher shall not be entitled to the payment of the revenue remaining in its administration panel.

2. Misuse

2.1. Any form of misuse, i.e. procuring business transactions by unfair methods or inadmissible means that violate applicable law or these Terms of Service, is prohibited. 


2.2. In particular, Publishers are prohibited from attempting to obtain commissions by procuring business transactions themselves or through a third person using the ads, tracking links and/or other technical aids provided to them in the context of TheCactusRoad Network using one or several of the following methods:

  • Fraudulently pretending or faking business transactions, for example by entering third party data without authorization or by providing false or non-existing data when ordering goods or registering online.
  • Using ads that enables tracking although it is not displayed at all, not visibly or not in the manner and/or size stipulated by the Advertiser.

2.3. Any form of misuse will lead to the blocking of the Publishers' accounts immediately. In this case Publishers may raise an objection (i.e. via letter, fax, email) within a month in order to provide a statement with evidence that the chosen form of advertising has been in accordance with these Terms of Service by the Publisher. If the Publisher cannot confute the breach of these Terms of Service, THECACTUSROAD will issue a notice of termination.

2.4. Fraud is a subset of invalid actions that are generated with malicious or fraudulent intent, in other words, actions that are intended to drive up Advertisers’ cost or Publishers’ revenue artificially.

Sources for these actions include, but are not limited to:

  • Clicking or bringing unnecessary or unnatural attention on the campaign ads.
  • Users or family members clicking to support the site.
  • Using one or several maneuvers that require or oblige an Internet user to click a campaign ad in order to access any element of the site or confirm participation.
  • Using one or several maneuvers that encourage Internet users to click on a banner.
  • Excessive page refreshes, generated either manually or automatically.
  • Third-party programs with user incentives, such as paid-to-surf or auto-surf programs.
  • Using one or several maneuvers that give rise to commission. Such as double clicks, using fake email address, self-registration, duplicated registration, etc.
  • Using automated clicking tools, online robots, or other deceptive software that are programmed to interact with advertisement.

Beside artificial activity you must avoid the following techniques:

  • Automatically generated content.
  • Participating in link schemes.
  • Cloaking.
  • Sneaky redirects.
  • Hidden text or links.
  • Doorway pages.
  • Scraped content.
  • Creating pages with malicious behavior, such as phishing or installing viruses, trojans, or other badware.
  • Sending automated queries to THECACTUSROAD.
  • Engaging in unlawful multi-level marketing.
  • Disable, overload, or impair the proper working or appearance of THECACTUSROAD.
  • Make any modifications to the THECACTUSROAD advertisement tags.
  • Intentional deception involving financial transactions.

THECACTUSROAD's ad server will be the official counter for determining the number of ads delivered and amounts payable under these Terms of Service. For each case of intentional or negligent violation of the present provisions, the Publisher hereby undertakes to pay THECACTUSROAD liquidated damages in each case, in an amount to be determined at THECACTUSROAD's equitably exercised discretion and, in the event of dispute, in an amount to be reviewed by court. Each instance of violation shall be subject to liquidated damages in the maximum amount of the current balance of the Publisher account.

3. Publisher payment

3.1. Payments. Publisher payments are done according to the Publisher's particular conditions. To receive a payment, Publishers must reach the minimum payout limit set up in THECACTUSROAD's monthly clearing reports. THECACTUSROAD shall pay the Publisher for ads actually delivered by Publisher to each of the Publisher's site(s) approved by THECACTUSROAD.

3.2. Liability for Publisher's Revenue. Publisher understands and agrees that THECACTUSROAD acts solely as a third party for the Advertisers; and that THECACTUSROAD shall only be liable to Publisher for Publishers revenue based on payments from Advertisers that it has received without restrictions that constitute immediately available funds to THECACTUSROAD. Publisher agrees that:

  • THECACTUSROAD shall have no liability or obligation to Publisher for payments due but unpaid from Advertisers.
  • Publisher will therefore only assert any claims therefore directly against the Advertisers.
  • Publisher shall guard THECACTUSROAD against harm and indemnify it from any claims or liability related to such unpaid amounts. THECACTUSROAD agrees to make every reasonable effort to bill, collect and clear payment from the Advertisers on a timely basis.

3.3. Any form of misuse will lead to the blocking of the Publishers' accounts immediately. In this case Publishers may raise an objection (i.e. via letter, fax, email) within a month in order to provide a statement with evidence that the chosen form of advertising has been in accordance with these Terms of Service by the Publisher. If the Publisher cannot confute the breach of these Terms of Service, THECACTUSROAD will issue a notice of termination.

THECACTUSROAD reserves the absolute right not to make any payments if the Publisher violates any of the Terms of Service set forth herein.

3.4. Other Expenses. THECACTUSROAD assumes no responsibility for paying any income taxes, banking commissions or currency fees on behalf of the Publisher. By participating in the THECACTUSROAD Network, the Publisher assumes complete and sole responsibility for any taxes, banking commissions or currency fees owed as a consequence thereof.

4. Advertising material

4.1. THECACTUSROAD ad script. Publisher(s) shall place the THECACTUSROAD ad script on all appropriate pages within its/their site(s). Publisher(s) shall not alter, sell or disclose the THECACTUSROAD ad script in any way without THECACTUSROAD's prior and written consent. The THECACTUSROAD ad script for ads may not be used on a web page other than one located at an approved site and may not be distributed or submitted to any newsgroup, email distribution list, chat room, guest books, or other location that has not been approved by THECACTUSROAD.

4.2. Recording of Service Counts. THECACTUSROAD has the sole responsibility for calculation of statistics, including impressions, click-through rate, revenues, eCPM, etc. CET/CEST time shall be the time period for traffic and tracking purposes. Statistics shall be available to the Publisher online in the THECACTUSROAD administration panel. The Publisher understands that THECACTUSROAD's online statistics may not be 100% accurate and that THECACTUSROAD may make adjustments to the Publisher's online statistics. In the event that coding on the Publisher's site(s) generates substantial number of erroneous impressions due to a technical problem such as server malfunction, coding alteration or a mistake in entering code, THECACTUSROAD reserves the right to withhold payment on all impressions and clicks delivered by Publisher.

4.3. Volume of impressions. THECACTUSROAD cannot guarantee any volume of traffic. Impressions can differ from one day to another following the performances of the site targeted.

4.4. Platform. Statistics of impressions and revenues will be provided by THECACTUSROAD.

5. Advertising budget

THECACTUSROAD accepts the following payment methods:

  • Bank wire
  • PayPal
  • Paxum
  • Payoneer
  • Credit card

Payments will be charged on the basis of the terms of service specified under the insertion order (IO). Charges are exclusive of taxes. The Customer is responsible for paying all taxes, government charges, and reasonable expenses and attorney's fees THECACTUSROAD incurs collecting late amounts. Charges are solely based on THECACTUSROAD Ad Serving Platform measurements, unless otherwise agreed to in writing. Nothing in these Terms or an IO can obligate THECACTUSROAD to do credit to any party. The Advertiser acknowledges and agrees that any credit card and related billing and payment information that the Advertiser provides to THECACTUSROAD may be shared with companies who work on THECACTUSROAD's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to THECACTUSROAD and servicing the Advertiser's account. 
THECACTUSROAD reserves the right to withhold deposit or charge the Advertiser's account due to any breach of these Terms of Service by the Advertiser.

6. Advertiser refund policy

TheCactusRoad strives to offer the best service possible to its clients. Once an Advertiser makes an initial deposit in the TheCactusRoad's platform, Advertiser has six (6) months from the last payment date to ask for a refund of the balance remaining on the account if he isn't satisfied with the TheCactusRoad's performance network and have remained in compliance with these Terms of Service. As soon as an Advertiser makes a second deposit in the TheCactusRoad platform, it is hereby understood that a refund will only be issued for a balance greater than $200 and a processing fee of 10% will be deducted from the refund. Advertisers canceled / terminated by TheCactusRoad for violating these Terms are not entitled to a refund.

7. Ad sizes

THECACTUSROAD has several ad formats: redirect, pop-unders, redirections, MMA and IAB compliant banners, app icons, grid slots (of 128x128, 200x150 and 320x240px).

8. Publicity

THECACTUSROAD shall use the trade names or trademarks of Publishers, Advertisers or third parties without prior written approval from the party owning such name or mark.

9. Representation and warranties

9.1. Publisher(s) represents and warrants to THECACTUSROAD that:

  • All content, products, and services on the Publisher's site(s) are legal to distribute, that it owns or has the legal right to use, and will not infringe, any and all copyrights, trademarks, patents or other proprietary rights.
  • The Publisher's site(s) do not, and will not during the term of these Terms of Service, contain any material described in Section 4 of these Terms of Service.
  • The Publisher's site(s) are free of any "worm", "virus", "malware" or other device that could impair or injure any person or entity.
  • It is generally familiar with the nature of the Internet and will comply with all rules and regulations that may apply; and it will conduct its business in compliance with all applicable laws, rules and regulations.
  • It has full legal power and authority under its organizational documents to enter into these Terms of Service and to perform the obligations contained herein; and the execution of these Terms of Service and the performance of its obligations by Publisher(s) will not conflict with, or cause a breach or violation of, any these Terms of Service, law, regulation or other obligation to which Publisher(s) is a party or subject.
  • The Publisher(s) must respect the prohibition of unsolicited advertisement (“Spam”) when sending emails containing ads. Therefore, the consent of each and every recipient is to be obtained prior to sending emails; should THECACTUSROAD so request, the Publisher(s) must provide written evidence of such consent has been granted.

9.2. The Advertiser(s) represents and warrants to THECACTUSROAD that none of the advertising provided contains:

  • Any material that consists of paraphilia or scatological activities.
  • Any material that contain children or minors in adult or sexual situations.

  • Any material that offers illegal products or services.
  • Promotion of incentives for online activity to surf websites, click on ads, or any activity that artificially enhances website or advertiser metrics.
  • Promotion of violence, racial intolerance, or advocacy against any individual, group, or organization.
  • Promotion of fake documents, copied material, or paper mills.
  • Any unauthorized use of third party trademarks that either creates a likelihood of confusion that consumers will believe the products or services originated from the trademark owner, or is likely to dilute the value of a known trademark.
  • Promotion of drugs or any related paraphernalia.
  • Sales or offers of certain weapons, alcohol, tobacco or any related paraphernalia. Advertisements for electronic cigarettes are permitted but cannot contain tobacco.
  • Promotion or any attempt to profit from human tragedy or suffering.

  • Promotion of illegal activities that infringes on the rights of others.
  • Promotion of gambling or online betting that allows U.S. registrations. Any gaming advertisement must be pre-approved, meet a minimum monthly budget requirement, and block U.S. registrations using geo-location and other advanced risk controls. Removing U.S. f rom the registration field is not considered sufficient. If you would like to advertise a gaming service, please contact us at cpiteam@kimia.mobi and detail your services process for blocking U.S. registrations, and provide the expected monthly budget and planned geo-targeting.
  • Any content that targets to children of age 18 and younger.

  • Any material that does not respect particular advertising rules added in the privacy policy for specific Publisher's site(s).

10. Termination cancelation

THECACTUSROAD may at any time, in its sole discretion, immediately terminate these Terms of Service, or cancel any ad(s). THECACTUSROAD will make commercially reasonable efforts to notify Advertiser(s), Publisher(s) and third parties via email of any such termination or cancellation. The Advertiser(s) may cancel any ads and/or terminate these Terms of Service with or without cause at any time by deactivating a campaign in the Administration Panel.

11. Confidentiality

You agree not to disclose THECACTUSROAD Confidential Information without THECACTUSROAD's prior written consent. "Network Confidential Information" includes without limitation: (i) all Network software, technology, programming, technical specifications, materials, guidelines and documentation you learn, develop or obtain that relate to the THECACTUSROAD Network; (ii) click-through rates or other statistics provided to you by THECACTUSROAD; and (iii) any other information designated in writing by KIMA as "confidential" or any designation to the same effect. KIMA Network Confidential Information does not include information that has become publicly known through no breach by you or THECACTUSROAD, or information that has been (i) independently developed without access to THECACTUSROAD Network Confidential Information, as evidenced in writing; (ii) rightfully received by you from a third party; or (iii) required to be disclosed by law or by a governmental authority.

12. Data protection

Please read the Privacy policy.

13. Indemnification. Limitation of liability

13.1. Indemnification. You agree to indemnify, defend and hold KIMA and its officers, directors, shareholders, successors, affiliates, employees, agents and representatives harmless from and against any and all costs, claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any claims and lawsuits or proceeding for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation on the THECACTUSROAD Network, (ii) operation of the Publisher's site(s) submitted to THECACTUSROAD for participation on the THECACTUSROAD Network or (iii) otherwise arising from a relationship with THECACTUSROAD. You also agree to indemnify THECACTUSROAD for any legal fees incurred by THECACTUSROAD, acting reasonably, in investigating or enforcing its rights under these Terms of Service.

13.2. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL THECACTUSROAD BE LIABLE TO THE PUBLISHER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OF SERVICE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGALOR EQUITABLE THEORY, WHETHER OR NOT THECACTUSROAD HAS BEEN ADVISED OF T HE POSSIBILIT Y OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIALOR EXEMPLARY DAMAGES ARISING FROMANY PROVISION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL THECACTUSROAD'S AGGREGATE LIABILITY ARISING FROM THESE TERMS OF SERVICE EXCEED THE PAYMENTS TO THE PUBLISHER HEREUNDER.

14. Modification

14.1. THECACTUSROAD reserves the right to amend these provisions of the present Terms of Service which are minor in scope or nature, and to do so without citing any reasons, provided such modifications do not lead to these Terms of Service being restructured as a whole. THECACTUSROAD will communicate, by email, the modified conditions prior to the effective date. Publishers who do not object in text form (letter, email, fax) to the modification within four weeks after the receipt of the email will be deemed to have accepted the respective modification. THECACTUSROAD will specifically indicate the possibility of objecting to the modification.

14.2. If the Publisher(s) objects to the new (modified) Terms, THECACTUSROAD's request to so modify them will be deemed to have been rejected. The Terms of Service will then be continued without the proposed modification. The right of the parties to terminate their participation on the THECACTUSROAD Network remains unaffected hereby. The possibility of terminating the Terms of Service will also be indicated specifically.

15. Dispute resolution

15.1. These Terms of Service shall be governed by, and interpreted in accordance with, the laws of Spain.

15.2. For any matter related to the interpretation or execution of these Terms of Service, the parties expressly waive to submit to any courts, which might have jurisdiction over the subject matter, and agree to submit to the sole competence and jurisdiction of the Madrid Courts.

16. General provisions

16.1. Force Majeure. Except for payment obligations, if either party is prevented from performing or is unable to perform any of its obligations under these Terms of Service due to causes beyond the reasonable control of the party invoking this provision, including, but not limited to, acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each a “Force Majeure Event”), such party's performance shall be excused and the time for performance shall be extended accordingly provided that the party immediately takes all reasonably necessary steps to resume full performance.

16.2. Severability. Should any of the provisions of these Terms of Service be adjudged invalid or unenforceable by the rules and regulations of Spain or a Spanish court, such provisions shall be deemed separate from the remainder of these Terms of Service and not affect the validity or enforceability of the remainder of these Terms of Service. In that case, such provisions shall be changed and interpreted to achieve the purposes of those provisions as much as possible within the extent of relevant laws or judgment of the court.

16.3. Survival. Sections 9, 10, 11 and 14 shall survive termination or expiration of these Terms of Service for any reason. All other rights and obligations of the parties under these Terms of Service shall expire upon termination of these Terms of Service, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.

16.4. Assignment. Neither party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under these Terms of Service without the prior written consent of the other party. Notwithstanding the foregoing, either party may, without the consent of the other party, assign these Terms of Service to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume in writing all rights and obligations under these Terms of Service.

16.5. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by internationally recognized commercial delivery service), and on the day the notice is sent when sent by verified facsimile, if the time of transmission is during the recipient's business day, or if not on the next business day thereafter, in each case to the respective parties at the addresses provided by them in writing.

Either party may change its address by providing the other party with written notice of the change in accordance with this section.

16.6. Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. These Terms of Service will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

16.7. Waiver. No delay or failure by either party to exercise any right or remedy under these Terms of Service will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the party waiving its rights. A waiver by any party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.

16.8. Entire Terms of Service. These Terms of Service constitute the entire Terms of Service between the parties and supersede all previous Terms of Service, oral or written, with respect to the subject matter of these Terms of Service. The information and documents provided by Publisher(s) and Advertiser(s) to THECACTUSROAD, as requested by the latter in order to enter these Terms of Service, shall be also considered as part of these Terms of Service. These Terms of Service may not be amended without the written consent of the parties.

16.9. Headings. The headings of the articles and paragraphs contained in these Terms of Service are inserted for convenience and are not intended to be part of, or to affect, the interpretation of these Terms of Service.

16.10. Construction. The parties acknowledge and agree that these Terms of Service have been jointly prepared and their provisions will not be construed more strictly against either party as a result of its participation in such preparation.

16.11. Counterparts. These Terms of Service may be executed in counterparts, which taken together shall form one legal instrument.


16.12. No Third Party Beneficiaries. These Terms of Service shall be binding and inure solely to the benefit of the parties hereto and their permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Service.

16.13. Amendments. These Terms of Service may not be amended or modified except by an instrument in writing signed by, or on behalf of, THECACTUSROAD, Publisher(s) and/or Advertiser(s).