Saily General Terms and Conditions for Marketing Activities

Effective Date: 2024-03-25

These Saily General Terms and Conditions for Marketing Activities (“General Terms”) shall apply to any marketing activity (“Marketing Activity”) implemented by service providers, including, but not limited to, Affiliates, Mobile Affiliates and Influencers (“Service providers”, “you”, “your”), for peakstar technologies Inc., a corporation organized under the laws of the State of Delaware, United States of America, under registration number 7600176, registered address 16192 Coastal Highway, Lewes, Delaware 19958, County of Sussex, United States of America (“Saily”, “us” or “we”, “our”).

These General Terms exclude and supersede any previous agreements, understandings, other terms and conditions or other similar documentation discussed or exchanged between the parties regarding the subject matter contained herein.

Saily reserves the right to modify these General Terms at any time in Saily’s sole discretion. Such modifications shall take effect upon posting to the Saily’s website. Saily, in its sole discretion, reserves the right to notify the Service providers by e-mail and further reserves the right to withhold notification of any changes made to the General Terms.

Particular terms of the engagement may be specified in a separate Insertion Order (“IO”). These General Terms, and the IO are together referred to as the “Agreement”.

    1. Subject to the terms set out in the Agreement, the Service provider undertakes to implement the Marketing Activity by providing services (“Services”) and(or) content (“Content”), and Saily undertakes to pay for the properly provided Services and(or) Content.
    2. Specific Services and(or) Content, their scope, requirements, obligations of the parties and other terms and conditions shall be defined in the IO.
    1. Parties agree that Content is subject to written approval by Saily before Content is made available. Saily shall issue written approval within a period of time established in particular IO or issue request to amend respective Content or part thereof.
    2. Service provider shall use its efforts to remedy the disapproved Content. The maximum round of revisions shall be established in the IO.
    3. In case of a failure to submit Content for prior written approval leads to upload of Content without Saily written approval, the Service provider, upon Saily’s request, shall provide separate Content free of charge. Saily may request provision of Content in cases of details provided in the Content is incorrect. If Content which is uploaded without Saily’s approval may do any harm to Saily, it should be removed immediately after Saily’s notice.
    4. After the Content is made available it, including the tracking link, shall remain available to the public on the designated platform and/or channel as long as it is active, but not less than the minimum period established in the IO.
    5. If the content underperforms views-wise or revenue-wise, Saily has the right to ask for a makegood, which should be agreed in written terms. That includes bonus shoutouts or repetitive integrations which will be done as a compensation and will not be charged additionally.
    1. Saily shall pay an agreed fee ("Fee") for the Services and(or) Content provided by the Service provider.
    2. Saily applies different payment models for the Services and(or) Content provided, including, but not limited to:
      1. Fixed Fee – a fixed Fee for the provided Services and(or) Content;
      2. CPA (cost per action) – a Fee per acquisition of a client. The formula according to which Saily pays for Service provider is: (total sales - refunds during 30 days period);
      3. CPC – a Fee per click;
      4. CPM – a Fee per thousand impression;
      5. Revenue share payment model – agreed percentage of the revenue generated by the Service provider while providing Services and(or) Content.
    3. Particular payment model and payment terms shall be indicated in the respective IO.
    4. Payments are based on invoices issued by the Service provider. Service provider shall issue invoices after the Services and(or) Content is provided, unless agreed otherwise. Invoice payment terms shall be indicated in particular the IO.
    5. In case the Parties agree on payment model which is based on the traffic/sales generated by Service provider, Saily shall not be obligated to pay for unapproved traffic, i.e.:
      1. Fraudulent, Incomplete, Unqualified, Duplicate;
      2. Device fraud – Fake devices, Duplicate users, APK installs, Incorrect region, Incorrect telco;
      3. Distribution Fraud – OS, ISP, Device, IP;
      4. Incentive Fraud;
      5. Compliance Fraud - Context fraud, Undisclosed traffic incentivization;
      6. Mis-targeted ads, Geo-masking, Undisclosed re-marketing, Fraudulent arbitrage, Deceptive ads, Domain spoofing;
      7. Incentivised, Adult, Brand harming.
      8. In case payment model which is based on the traffic/sales generated by Service provider is agreed between the Parties, calculation of said traffic/sales shall be made using software tools chosen by Saily, unless agreed otherwise in writing.

    6. Parties have a right to agree on a payment model not indicated in this chapter. In case of application of certain payment models, the maximum cap of payments according to a certain payment model might be established.
    7. Taxes. Each Party shall be solely and separately responsible for any applicable taxes and other governmental charges, bank charges, etc.
    1. Saily grants the Service provider a limited, revocable, non-exclusive, non-transferrable, worldwide license only to Saily’s intellectual property that is provided by Saily to the Service provider for the performance of the Services and(or) Content and for the validity of the respective IO. If the Service provider is not an influencer (e.g. an agency, another entity or natural person), the license granted to the Service provider by Saily hereunder is sub-licensable only to the extent needed to perform obligations under the Agreement. For the sake of clarity, as an example, it may be sub-licensed to the influencer only to the extent needed to create and communicate to the public the Content under the respective IO.
    2. Saily retains and does not transfer to the Service provider any right, title, interest and ownership, express or implied, in and to any Saily intellectual property, including, without limitation, trademarks, logos, design marks, graphics, tradenames, legal entity names, texts, photographs, artwork, software, active URLs, banners, creative, copy or other material used or owned by, or licensed to, Saily in any way (“Saily intellectual property”). The Service provider shall use Saily intellectual property only to the extent the express license is granted to the Service provider by Saily in these General Terms and /or the IO.
    3. The Service provider is also bound by Saily Trademark Guidelines.
    4. The Service provider represents and warrants that:
      1. any and all Services and(or) Content provided under the Agreement do not violate intellectual property rights of any third party;
      2. any and all intellectual property transferred or licenced to Saily under the Agreement is owned by the Service provider or licensed to the Service provider and that the Service provider has the power and authority to transfer or grant to Saily the license for that intellectual property;
      3. in the countries where moral rights apply, the creator of intellectual property transferred or licenced to Saily under the Agreement irrevocably consents not to use its moral rights to such intellectual property, to the extent allowed by law, so that Saily would exclusively hold economic rights to it.
    5. The Service Provider grants to Saily a perpetual, irrevocable, non-exclusive, sub-licensable, royalty-free, worldwide license to use the Content (and/or other results of the Services) created under the Agreement, without compensation, without any obligation to report on such use, and without any other restriction. The Saily’s rights granted in the previous sentence include, without limitation, the following rights: (i) reproduction of the Content (and/or other results of the Services); (ii) broadcasting, making available to the public over computer networks, publication of the Content (and/or other results of the Services), including (re)sharing of such objects; (iii) adaptation or other modification of the Content (and/or other results of the Services), including creation of derivative works based on such objects.
    1. The Service provider represents and warrants that:
      1. the Service provider has power and authority, as well as any and all necessary consents, permits, licenses, and clearances to provide Services and(or) Content subject to the Agreement and applicable law;
      2. any and all Services and(or) Content provided under the Agreement do not and will not violate the requirements of applicable law;
      3. the Service provider itself, the Services and(or) Content, Service provider’s other activities, public appearance, and its reputation comply with established business practice, professional standards, industry codes, the standards of democracy, self-expression, public conventions, morality and ethics, and that its participation in any and all Marketing Activities will not damage the good name, reputation, brand, image, likeness, expression in the public domain of Saily, its representatives, affiliates, officers, directors, employees, agents, clients, service providers and all other related third parties;
      4. it entered into this Agreement in good faith, on its own free will, in the absence of any fraud, intimidation and(or) violence.
    1. The Service provider hereby covenants and agrees that, during the term indicated in the IO, it shall not, directly or indirectly, provide services and(or) content of identical or similar nature to the Services and(or) Content provided under the IO in favor of a competing business of Saily. The term “competing business” shall mean and include any legal or natural person that during the validity of the exclusivity obligation provides identical or similar services to Saily services.
    2. The remuneration under the IO is deemed by the parties to include any and all payments required in order for the exclusivity obligation in this chapter.
    3. If the Service provider is not an influencer (e.g. an agency, another entity or natural person), the Service provider represents and warrants that such exclusivity obligation under this chapter shall be binding to the influencer under a separate agreement between the Service provider and the influencer.
    4. Seeking continuous cooperation between the parties, the Service Provider in good faith will put its best efforts to grant Saily cooperation priority before reaching out to competing businesses even after the end of exclusivity obligation under this chapter.
    1. Confidential Information” means this Agreement and any information or materials in whatever form which is disclosed by Saily to the Service provider and which would be regarded as confidential by a reasonable person including all business, technical, statistical, financial, prices, sales, marketing and personnel information, customer or supplier details, know-how, designs, trade secrets, creative information or materials or software of Saily, the terms of this Agreement, mutual cooperation conditions or any information that is identified as “Confidential”. Information that was disclosed to the Service provider by any of other Saily’s partners or on behalf of any of them in relation to this Agreement is also considered Confidential information.
    2. Information which (i) was publicly available at the moment of disclosure or has become publicly available after such disclosure without the breach of this Agreement; (ii) was already lawfully in the possession of the Service provider from other source which was not bound by confidentiality obligations; (iii) must be disclosed in accordance with applicable legal requirements shall not be considered Confidential Information.
    3. The Service provider undertakes to keep the Confidential Information strictly confidential and secret, and not to, directly or indirectly, utilize, use and(or) disclose any part thereof to any third party other than to the extent such disclosure is necessary for the proper performance of its obligations related to this Agreement. The Service provider shall not use any Confidential Information obtained from Saily to develop, enhance or operate a service that competes with the Services and(or) Content, or assist any third party to do the same.
    4. Permitted disclosure. Confidential Information may be disclosed by the Service provider in cases where such disclosure:
      1. is required by law or pursuant to any order of court or other competent authority or tribunal; or
      2. has been confirmed by Saily in writing in advance; or
      3. is made to its auditors or professional advisers (who are bound to such party by a duty of confidentiality which applies to any information disclosed) or to finance institutions.
    5. If the Service provider is required, in circumstances specified in section 7.4.1. above, to disclose any Saily’s Confidential Information, it shall, except as prohibited by law, provide Saily with prompt written notice of any such requirement so that Saily may seek a protective order or other remedy. If, in the absence of a protective order or other remedy or the receipt by the Service provider of a waiver from Saily, the Service Provider may, without liability hereunder, disclose only that portion of the Confidential Information which is legally required to be disclosed.
    1. The Service Provider is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates, or falsify and/or hide information in connection with referrals or the generation of traffic/sales. Such acts include, but are in no way limited to, using automated means to increase the number of clicks or completion of any required information, hiding traffic or making it otherwise unavailable to Saily, using spyware, using steal ware, cookie-stuffing and other deceptive acts, click-fraud, etc. Such acts shall constitute a material breach of this Agreement. Determinations about fraudulent activity shall be made in Saily’s sole discretion.
    2. If Saily believes the Service provider uses or is being used to conduct fraudulent activities and/or fraudulent transactions or is in any way associated with fraudulent activity, Saily may reject any payments of Fees in full or in part, terminate this Agreement, and/or require to reimburse any Fees paid.
    1. The parties undertake to abstain from any actions detrimental to the other party.
    2. In the event of a breach of the provisions of this Agreement, the Service provider shall compensate any and all damages incurred by Saily as a result of such breach.
    3. Neither Saily nor any of its parents, subsidiaries or affiliates, nor any of their principals, directors, officers, partners, agents, employees, or assignees, shall be liable for any indirect, punitive, incidental, special, consequential damages, or any loss of revenue, profit, or data, or any other damages arising out of or in any way related to the Agreement and(or) the Marketing Activity, and(or) based on contract, tort, strict liability or otherwise, even if Saily has been advised of the possibility of such damages.
    1. The Service provider will defend, indemnify, and hold harmless Saily and each of its parents, subsidiaries, affiliates, their principals, directors, officers, partners, agents, employees, and assignees (and keep them indemnified and held harmless) from and against any and all damages, claims, suits, actions, judgments, settlements, contributions, fines, penalties, costs and expenses whatsoever, including, but not limited to, reasonable legal fees and costs, resulting from or based on:
      1. any actual or alleged breach of the Saily Confidential Information or the Saily’s intellectual property rights;
      2. the Service provider’s representations and warranties under the Agreement;
      3. the Service provider’s provision of Services and(or) Content in breach of terms as set out in this Agreement;
      4. any actual or alleged claim by a third party regarding the infringement of any intellectual property rights or Confidential Information in Services and(or) Content; or
      5. any breach by the Service provider of the terms of this Agreement or any applicable law.
  12. Marketing Activities’ programmes and Saily services provided in connection therewith are provided to the Service provider “as is”. Except as expressly set forth herein, Saily expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, and fitness for a particular purpose, and any warranties arising out of course of dealing, usage, or trade.

    1. To the extent that the Service provider processes any information that constitutes "personal data" within the applicable personal data protection legislation, the parties acknowledge and agree that each party shall be a data controller of the personal data it processes and shall be responsible for its own obligations as a data controller under the Agreement, including in particular, but without limitation: (a) ensuring that there is a lawful basis on which personal data can be processed by it; (b) ensuring that it keeps personal data secure at all times, including by implementing and maintaining appropriate technical and organizational measures in relation to its processing of personal data so as to ensure a level of security appropriate to the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed. Each party shall be individually responsible for the notification of its employees and any other representatives involved in the performance of the Agreement that their data will be processed by the other party.
    2. The following is applicable in cases where the Service provider is a natural person: by signing this Agreement, the Service provider confirms its awareness of the fact that Saily processes the Service provider’s personal data indicated in the Agreement solely for the purpose of performance of the Agreement and on the ground that data processing is necessary for the purpose of performance of the Agreement. The Service provider may contact Saily for any additional information on the data processing or the associated rights.
    1. The Service provider may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, transfer or delegate such rights or obligations without the Saily’s prior written approval will be null and void.
    2. Notwithstanding Clause 13.1, the Service provider may use third parties to perform the Agreement. However, even in this case, the Service provider shall be liable to Saily for the proper performance of the Agreement as if it was performed by itself.
    3. Saily may resell, assign, transfer, or delegate any of its rights or obligations hereunder without Service provider’s prior written consent. All terms and conditions in these General Terms, and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
    1. Without Cause. Saily may, without limitation and free from any and all liability, terminate the IO, or any portion thereof, with a 3 (three) days’ prior written notice to the Service provider. Parties agree that in case IO is terminated based on this clause, Service provider shall be entitled to payment for Services provided until termination on pro rata basis, unless agreed otherwise in the IO.
    2. For Cause. Saily may, without limitation and free from any and all liability, terminate the IO, or any portion thereof, immediately at any time if the Service provider is in a material breach of its obligations established in the IO and hereunder. Saily may, in its sole discretion, grant to the Service provider an additional period to cure the breach, but this does not limit Saily’s right to terminate the IO at any time. Instances of material breach include, but is not limited to, cases when:
      1. Services and(or) Content provided under the IO: (a) are not compliant, fully or in part, with the IO; (b) are not compliant, fully or in part, with established business practice, professional standards, industry codes; (c) violate any applicable law, regulation, judicial or administrative action, or rights of a third parties; (d) are defamatory, obscene, harassing, tortuous, vulgar, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (e) damage the reputation, brand, image, likeness, expression in the public domain of Saily, its representatives, affiliates, officers, directors, employees, agents, clients, service providers and all other related third parties;
      2. the Service provider breaches the General Warranties and Representations of the Service Provider specified in chapter 5;
      3. the Service provider breaches the Section “Period of making available the Content” indicated in the IO.
    1. This Agreement and the relations between the parties in connection with this Agreement (including the matters of entering into, validity, invalidity, implementation and termination of this Agreement) will be governed and the Agreement will be construed in accordance with the Laws of the Netherlands.
    2. The parties will attempt to settle any claim or controversy arising out of this Agreement through consultations in the spirit of mutual cooperation. If the parties shall be unable to reach amicable settlement within 30 (thirty) days of delivery of a written notice by one party to the other party, then any disputes (including all claims, controversies, and disagreements) arising in connection with the present Agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The arbitral tribunal shall be composed of one arbitrator. The arbitral tribunal shall be appointed according to the list procedure. The place of arbitration shall be Rotterdam. The proceedings shall be conducted in the English language.
    1. Validity
    2. These General Terms and each IO come into force and shall be valid for the term as specified in the IO. No expiration or termination of the Agreement shall affect the rights or obligations of a party pursuant to any provision of the Agreement that, by its sense and context, is intended to survive expiration or termination, including, without limitation, provisions at Sections 6, 7, 8, 9, 11, 12, 14.

    3. Amendments
    4. All amendments to the particular IO are only valid when made in writing and properly executed by the parties. A term or condition of the particular IO can be waived or modified only by written consent of both parties.

    5. Conflict
    6. In case of conflict between these General Terms and the IO the IO shall prevail over General Terms.

    7. Authorizations
    8. Each of the parties warrant and represent to each other that persons signing this Agreement on behalf of the parties have all the proper powers, authorizations, consents, as well as all the documents supporting the authorizations, required to sign this Agreement and duly execute the obligations hereunder.

    9. Waiver
    10. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

    11. Communication
    12. Appointed contact persons shall be responsible for the contacts between the parties. If the Service provider appoints a new contact person, it shall notify this to Saily immediately, but not later than in five (5) days after such appointment. If the Service provider fails to notify Saily about the appointment of the new contact person, any communication sent by Saily to the contact person of the Service provider which was notified to Saily will be held as delivered properly.

      All messages, deliveries, notification and other correspondence of the parties shall be delivered to the party by hand, sent by reputable courier, by e-mail or certified/registered mail (return or delivery receipt requested, postage prepaid), unless otherwise specified in the Agreement. A document sent by e-mail shall be deemed to have been received by the other party on the same business day if the e-mail is sent during normal business hours of the receiving party, or on the next business day if sent after normal business hours. A document sent by certified/registered mail shall be deemed to have been received on the third business day following the day on which the document sent to the addressee is served on the postal service provider.

      Written approval referred to in these General Terms also includes approval via email.

    13. Independent Contractors
    14. The parties of the Agreement are independent contractors. Nothing in the present Agreement creates a partnership, joint venture, agency, franchise, sales representative, shareholder, or employer/employee relationship between the parties. Service provider understands that it has no authority to act on behalf of Saily in any matter whatsoever.

    15. Severability
    16. If any provision of this Agreement, or portion thereof, is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct.

    17. Counterparts and Signing of the IO
    18. The IO may be executed in two counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement between the parties.

      The IO signed and transmitted electronically by facsimile, email, DocuSign platform or any other manner acceptable to both parties is to be treated as an original and shall have the same binding effect as an original signature on an original document.