These terms and conditions for publishers (“Publisher Terms”) are between Hera Performance LLC , with its registered office at 711 S Carson St, Ste 4 Carson City, Nevada 89701 and the party submitting an application to participate as a publisher in advertiser programs set up on www.heraperformance.com (hereinafter referred to as “Publisher” ).
Hera Performance LLC and Publisher shall collectively be referred to as “the parties” and singularly “the party”.
Hera Performance LLC operates an affiliate network (hereinafter referred to as “the Hera Performance Network”), which provides performance marketing and related services (hereinafter “the Hera Performance LLC Services”) for Hera Performance LLC´s advertising partners (hereinafter referred to as “Advertisers”).
The Hera Performance Network enables registered Publishers to participate in partner programs (hereinafter referred to as “Partner Programs”) set up by Advertisers, which gear towards supporting the Advertiser's online services such as, but not limited to, mobile and/or online games and/or applications.
After successful registration to the Hera Performance Network and acceptance to a Partner Program, Publisher may incorporate and / or embed Advertiser ads (as defined below) into Publisher’s Media (as defined below), which then may result into a payment for an Action (as also defined below) according to such Partner Program terms and the applicable Campaign Terms (as defined below).
The following definitions shall apply to Publisher Terms and the Agreement:
2.1 The Publisher may apply to participate in the Hera Performance Network by registering on www.heraperformace.com the underlying technical platform (hereinafter “Hera Performance Platform”). During registration, the Publisher must create a unique password – protected account and provide the information requested by Hera Performance LLC, fully and accurately (hereinafter “account”). Hera Performance LLC may set up an account for the Publisher with his consent in his stead.
2.3 In the event that Campaign Terms and these Publisher Terms contradict each other, the Campaign Terms, shall prevail.
2.4 Any terms and conditions of Publisher that are contrary to or deviate from or are supplemental to these Publisher Terms and/or the Campaign Terms shall not be recognized unless the express written consent of Hera Performance LLC has been provided. The applicability of these Publisher Terms shall not be impaired by the fact that Hera Performance LLC – with knowledge of any terms and conditions of Publisher, that are contrary or supplemental to or deviate from these Publisher Terms – renders the Hera Performance LLC Services without reservations.
2.5 If Publisher operates a publisher network with its own (sub-) publishers, Publisher shall make sure that the terms of the Agreement, including, but not limited to the Campaign Terms, are also effectively imposed on its sub-publishers and Publisher shall bear full responsibility to comply with the terms of the Agreement, regardless of any fault of any sub-publisher.
2.6 Upon request by Hera Performance LLC, Publisher shall give evidence, through verifiable means, that Publisher´s sub-publishers have accepted effectively the Agreement including the Campaign Terms prior to allowing to display the Advertiser Ads on such sub-publisher Publisher’s Media. Publisher agrees to maintain at all times its sub-publisher network according to the highest industry standards. All sub-publishers must be in good standing with Publisher. In case of doubt, any reference in the Agreement to Publisher shall refer to Publisher as well as to a sub-publisher.
2.7 In case of an alleged or actual breach of the Agreement, including the Campaign Terms, to be determined upon Hera Performance LLC´s sole discretion, by a sub-publisher of Publisher, Publisher shall immediately
2.8 Publisher shall be solely responsible for safeguarding and maintaining the confidentiality of its account. Publisher shall remain fully and solely responsible for any and all actions take under its account, whether authorized by advertiser or not. Publisher shall immediately inform Hera Performance LLC of any unauthorized use of its account.
2.9 Publisher shall be responsible for keeping its account information current, complete and accurate. Hera Performance LLC shall especially not be responsible or liable for any information or notice not delivered to Publisher as a result of inaccurate account information.
2.10 The Campaign Terms stated within the Hera Performance Network shall become automatically part of the Publisher Terms with the application of Publisher to a Partner Program and / or the integration of the Advertiser Ads on Publisher’s Media. Any modification of the Campaign Terms shall be communicated individually to Publisher and shall become binding between the parties after a period of 48 h, if not previously explicitly objected by Publisher in writing.
2.11 Hera Performance LLC may modify the Campaign Terms, terminate or pause the Partner Program and/ or Campaign, at any time with future effect, upon 48 hours prior notice, without having to give any specific reasons. The current Campaign Terms may be viewed on the Hera Performance Platform. Hera Performance LLC reserves the right to modify the Campaign Terms, terminate or pause them within 24 hours if extraordinary circumstances occur.
2.12 Once the Campaign Terms have been accepted by Publisher, Publisher may display the Advertiser Ads on Publisher’s Media.
3.1 Hera Performance LLC shall provide Publisher through the Hera Performance Platform or through any other suitable means with the relevant Advertiser Ads of the Partner Program that Publisher has been accepted to.
3.2 Hera Performance LLC grants Publisher a non – exclusive, worldwide, royalty-free license to use, perform, reproduce, display, transmit, modify, copy and distribute the Advertiser Ads on Publisher’s Media in accordance with the Agreement.
3.3 Hera Performance LLC shall not be obliged to render the Hera Performance LLC Services to Publisher to a certain extent and no term in the Agreement shall be understood in the sense that Hera Performance LLC must do so.
3.4 The Hera Performance Platform shall be rendered under the reservation of availability. As an availability of 100 % is technically not possible, Hera Performance LLC will use its best endeavors to keep the Hera Performance Platform constantly available. However, Hera Performance LLC reserves the right, at its own discretion, to modify, update, maintain or suspend the Hera Performance Network, the Hera Performance Platform, and the Hera Performance LLC´s tracking tools (“technical measures”). In such an event, Hera Performance LLC shall notice Advertiser, as far as plannable, with a period of 48 hours in advance of such technical measures, if such technical measures have an substantial impact on the Hera Performance LLC Services rendered to Publisher. Publisher acknowledges that access and use of the Hera Performance Network and the Hera Performance Platform may be impossible or limited for the duration of the technical measures.
The Advertiser Ads and implemented tracking pixels or other appropriate tracking means serve to identify Publisher as a member of the Partner Program and will establish a link from Publisher’s Media to the Advertiser Media. Publisher shall therefore not alter, modify or otherwise change any Advertiser Ads provided by Hera Performance LLC, in any manner whatsoever, without Hera Performance LLC´s prior written consent.
5.1 Unless otherwise agreed in the Campaign Terms, Hera Performance LLC´s tracking technology, preliminary results of which may be accessed by Publisher through the Hera Performance Platform, shall be the sole and conclusive technical system to track applicable Actions. Publisher hereby accepts and acknowledges that Hera Performance LLC´s tracking technology shall be the sole and conclusive basis for any commissions paid to Publisher under the Agreement.
5.2 A validated Action shall solely be constituted by the following premises, all of which have to be fulfilled cumulatively
5.3 Hera Performance LLC reserves the right to not-confirm an Action as being valid, if the Action
5.4 An Action shall be considered especially, but not exclusively, non – valid and therefore not being subject to any commission, if it
6.1 Hera Performance LLC shall pay to Publisher a performance related remuneration (hereinafter referred to as “commission”) for each validated Action as set out in sec. 5.2, initiated on Publisher’s Media, based on the pay-outs as described in further detail in the relevant Campaign Terms.
6.2 Hera Performance LLC will not be charged by Publisher for any additional ads above any level guaranteed or capped in the Campaign Terms.
6.3 Publisher will issue invoices to Hera Performance LLC on a monthly basis. Hera Performance LLC will issue to Publisher upon its request a preliminary monthly report of validated Actions per target countries, the Advertiser services and aggregated commissions for the previous calendar month, however, not prior to the 15th of each calendar month. The invoice shall be sent to firstname.lastname@example.org. All invoices shall include
6.4 Commissions to Publisher may be effected without a final review by Hera Performance LLC as to whether the commission is based on validated Actions. If Actions cannot be validated as set out in sec. 5.2 following a review by Hera Performance LLC, Hera Performance LLC shall be entitled to re-debit Publisher within a period of 12 weeks following a disbursement and / or demand a repayment and / or offset any amount of the disbursed amount paid for non – valid Actions with any amounts then due to Publisher.
6.5 In addition to any other rights and remedies available to Hera Performance LLC, Hera Performance LLC reserves the right to withhold or freeze any unpaid commissions or re-debit, demand repayment and / or set off any disbursed commissions – partially or in total - with any commissions then due to Publisher, if Hera Performance LLC finds sufficient evidence, that Actions were non – valid as set out in sect. 5.4 a) and d).
6.6 Hera Performance LLC reserves the following rights with regards to payments:
6.7 To reduce administrative costs, the parties agree that Hera Performance LLC shall not be required to make any payment to Publisher until such time that the commission owed to Publisher equals or exceeds $500.00 (five hundred Dollars).
6.8 Unless otherwise explicitly agreed between the parties, all payments to Hera Performance LLC shall be made in US Dollars.
7.1 Publisher represents and warrants that,
7.2 Publisher shall indemnify and hold harmless, at first request, Hera Performance LLC from any and against any and all liability, losses, damages or expenses (including, without limitation, reasonable attorney's fees, costs and expenses) arising out of or related to any claim of any third party related to Publisher´s breach of warranties set out in this section 7.
8.1 Hera Performance LLC shall not be liable to for the content on Publisher’s Media, for damage or other disturbances caused by defects and / or interoperability of Advertiser Ads and / or for damages resulting from the insufficient availability or imperfect functioning of the internet and / or app stores.
8.2 HERA PERFORMANCE LLC SHALL NOT BE LIABLE TO PUBLISHER FOR LOSS OF PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES EVEN IF HERA PERFORMANCE LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY IN ALL CIRCUMSTANCES. IN NO EVENT SHALL HERA PERFORMANCE LLC’S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT COLLECTED BY HERA PERFORMANCE LLC PURSUANT TO THE TERMS HEREOF.
8.3 Insofar the liability of Hera Performance LLC is restricted or excluded according to the provisions set forth above, this shall also apply to the personal liability to Hera Performance LLC´s employees, personnel, staff and other agents as well as authorized representatives.
9.1 The parties undertake to treat confidentially also beyond the end of the Agreement any and all information which is protected by law or contains business or trade secrets or which is designated as being confidential, that is disclosed or provided to them by the other contracting party respectively within the context of the contractual negotiations or performance (“Confidential Information”).
9.2 The parties shall disclose any Confidential Information to their employees or any third parties on a strict need to know basis only.
9.3 Notwithstanding the foregoing, Confidential Information shall not include information of which it is proven by the receiving party that:
10.1 At no time shall Publisher directly or indirectly call on, engage, contract with, bargain with, agree to agree, solicit, or attempt to do any of the foregoing, in any manner, for any reason, any Advertiser. Specifically, Publisher shall not, under any circumstance, without the prior, express written agreement of Hera Performance LLC, directly or indirectly circumvent, bypass, or otherwise deny, limit, evade, equivocate, or reduce the interest, profit, share, or participation of Hera Performance LLC in any proposed transaction related to the Services.
11.1 The Agreement shall commence upon Publisher’s registration to the Hera Performance Network and acceptance of these Publisher Terms.
11.2 Either party may terminate the Agreement for convenience purposes 48 hours prior written notice to the other party. The right to termination for cause shall remain unaffected.
11.3 Upon termination, Publisher shall remove any and all Advertiser Ads from Publisher’s Media within 24 hours.
11.4 After termination, Publisher will be removed from Hera Performance Network.
12.1 Hera Performance LLC reserves the right to amend or modify the Publisher Terms. If Hera Performance LLC intends to amend or modify essential contractual duties as set out in sect. 8.2, Hera Performance LLC shall inform Publisher of the intended amendments or modifications. If Publisher does not object in line with formal requirements, and in good time, the amended or modified Publisher Terms shall become effective two (2) calendar weeks following the receipt of notification. Publisher´s objection shall only be deemed in line with the formal requirements, and in good time, if the objections is lodged in writing, and is received within the aforementioned period following receipt of notification. Hera Performance LLC shall inform Publisher of his right to object, the formal requirements and period and the legal consequences of failing to object.
13.1 Nothing in the Agreement is intended to, or shall be deemed to establish a partnership or joint venture between Hera Performance LLC and Publisher. The Agreement shall not constitute either party to be the agent of the other party for any purpose. Neither party shall have the authority to act as an agent for, or to bind, the other party in any way. Publisher expressly agrees that any obligations set out in the respective Partner Program of advertiser shall in no way be construed as obligations to Hera Performance LLC.
13.2 Publisher shall not, partially or entirely, at any time assign or transfer any rights and / or obligations under the Agreement to any third party without Hera Performance LLC´s prior written consent. Hera Performance LLC may at any time, assign or transfer any rights and / or obligation under the Agreement to any third party.
13.3 Should any individual provision of the Agreement be regarded as being invalid, partially or entirely, this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed to be replaced by a provision that is legally effective and comes closest, in the usual understanding, the economic intend and purpose of the invalid provision. The same shall apply to any unintentional omission to Publisher Terms.
13.4 The Agreement shall be governed according to the laws of the State of New York and the federal and state courts of New York County. Both parties submit to exclusive personal jurisdiction in New York and agree that any cause of action arising under or related in any manner to this Agreement (whether in tort, contract or otherwise) shall be brought in the state and federal courts of the State of New York, New York County.