Terms of Service
Last Updated: September 15, 2026
These Advertiser Terms and Conditions (“Terms”) are entered into between Stacks App LLC (“Stacks”) and the advertiser identified in the applicable Insertion Order (“Advertiser”). These Terms govern Advertiser’s use of Stacks’ performance marketing services and access to Stacks’ network of third-party publishers, media partners, and other distribution partners (collectively, “Publishers”).
Stacks may distribute or facilitate the distribution of advertisements, offers, links, creative materials, landing pages, or other promotional content provided or approved by Advertiser (collectively, “Ads”) through Publishers and other approved media channels in accordance with one or more insertion orders executed by the parties (each, an “IO”).
Each IO, together with these Terms and any applicable Data Processing Addendum (“DPA”), constitutes the agreement between the parties with respect to the applicable advertising campaign (collectively, the “Agreement”).
If Advertiser is an agency entering into an IO on behalf of a client, Advertiser represents and warrants that it has authority to bind such client to the Agreement. Unless otherwise expressly stated in the applicable IO, Advertiser and its applicable client shall be jointly responsible for Advertiser’s obligations under the Agreement.
1. STACKS SERVICES
Stacks provides performance marketing and advertising services through a network of Publishers and other approved media channels. Advertiser may engage Stacks to promote Advertiser’s applications, products, services, or other offerings pursuant to campaign requirements and commercial terms specified in an applicable IO (each, a “Campaign”).
Campaigns may be distributed through websites, applications, digital media, content properties, or other traffic sources approved by Stacks and consistent with the requirements of the applicable IO.
Advertiser may compensate Stacks based on specified performance events or other pricing methodologies identified in the applicable IO, including clicks, leads, registrations, installations, purchases, subscriptions, or other defined conversion events (each, an “Action”).
Stacks does not guarantee any minimum number of impressions, clicks, Actions, conversions, sales, revenue, or other Campaign results unless expressly stated in the applicable IO.
Stacks may determine which Publishers or media sources participate in a Campaign, subject to any traffic-source restrictions, placement restrictions, geographic limitations, or other requirements expressly identified in the applicable IO. Stacks may suspend or remove any Publisher or traffic source from a Campaign when Stacks reasonably determines that doing so is necessary to address suspected fraud, noncompliance, Campaign performance issues, legal or regulatory concerns, or Advertiser requirements.
2. ACCOUNT
Advertiser may be required to establish an account to access Stacks’ platform, reporting, or other services. Advertiser shall provide accurate and complete account information and keep such information reasonably current.
Advertiser is responsible for maintaining the confidentiality and security of its account credentials and for all activity conducted through its account by Advertiser or its authorized users. Advertiser shall promptly notify Stacks of any known or suspected unauthorized access to or use of its account.
Stacks may suspend access to an account if Stacks reasonably believes the account has been compromised, is being used in violation of the Agreement, or presents a security, fraud, legal, or operational risk.
3. ADVERTISER RESPONSIBILITIES AND ADVERTISING MATERIALS
Advertiser shall provide Stacks with the advertisements, offers, links, creative materials, landing pages, product information, disclosures, instructions, and other materials reasonably necessary to perform the applicable Campaign (collectively, “Advertiser Materials”). Advertiser is responsible for the accuracy, completeness, legality, and substantiation of Advertiser Materials and for the products, services, applications, offers, and claims promoted through each Campaign.
Advertiser shall ensure that Advertiser Materials and each Campaign comply with all applicable laws, regulations, and industry requirements, including applicable advertising, consumer protection, intellectual property, privacy, and data protection requirements.
Advertiser represents and warrants that: (a) it has all rights, licenses, permissions, consents, and authority necessary for Stacks and its Publishers to use, reproduce, display, distribute, and otherwise make available the Advertiser Materials as contemplated by the Agreement; (b) the Advertiser Materials and the products, services, applications, and offers promoted through the Campaign do not infringe, misappropriate, or otherwise violate any third-party intellectual property or proprietary rights; (c) all advertising claims and representations contained in the Advertiser Materials are truthful, accurate, not misleading, and adequately substantiated as required by applicable law; (d) Advertiser will maintain all licenses, permits, approvals, disclosures, and authorizations required for the products, services, applications, or offers promoted through the Campaign; and (e) Advertiser will not knowingly provide Stacks with Advertiser Materials containing malware, malicious code, or other technology designed to compromise the security or integrity of Stacks, a Publisher, or an end user’s device or systems.
Advertiser grants Stacks a non-exclusive, worldwide, royalty-free license during the applicable Campaign to use, reproduce, display, distribute, transmit, format, resize, and make technically necessary modifications to Advertiser Materials solely as necessary to provide the Services and perform the Campaign. Stacks may sublicense these rights to participating Publishers solely for the same purposes. Except for the limited license granted above, Advertiser retains all right, title, and interest in and to the Advertiser Materials.
Stacks may reject, suspend, or remove Advertiser Materials or a Campaign if Stacks reasonably believes they violate the Agreement, applicable law, a Publisher requirement, or present a material legal, regulatory, fraud, security, reputational, or operational risk.
4. CAMPAIGN REQUIREMENTS
The commercial and operational requirements applicable to each Campaign shall be set forth in the applicable IO or otherwise agreed in writing by the parties, including as applicable: (a) the applicable Action or conversion event; (b) pricing and payment methodology; (c) Campaign budget, volume cap, or other delivery limitations; (d) geographic or audience restrictions; (e) permitted or prohibited traffic sources, placements, or promotional methods; (f) creative, messaging, or brand requirements; (g) tracking, attribution, and reporting requirements; (h) Campaign start and end dates; and (i) any other Campaign-specific requirements agreed by the parties.
Advertiser shall promptly notify Stacks of any material change to a Campaign, including changes to pricing, conversion requirements, landing pages, tracking, attribution methodology, geographic restrictions, eligibility criteria, or other requirements that could affect Campaign performance or Stacks’ or a Publisher’s ability to comply with the applicable IO.
No material change to pricing, the definition of a billable Action, attribution methodology, Campaign caps, or other material commercial terms shall apply retroactively unless expressly agreed in writing by Stacks.
Advertiser shall provide Stacks reasonable advance notice of Campaign pauses, cancellations, or material changes whenever practicable. Any specific notice period stated in the applicable IO shall control.
Stacks will use commercially reasonable efforts to communicate applicable Campaign requirements to participating Publishers. Publishers remain independent third parties and are not employees, agents, or representatives of Stacks, except to the limited extent expressly stated in the Agreement.
5. TRACKING, REPORTING, AND MEASUREMENT
5.1 Tracking and Attribution. Each Campaign shall use the tracking, attribution, and reporting methodology identified in the applicable IO or otherwise agreed in writing by the parties. Advertiser shall implement and maintain any tracking integrations, pixels, postbacks, mobile measurement partner integrations, APIs, or other technical requirements reasonably necessary to measure Campaign performance and determine billable Actions. Unless otherwise specified in the applicable IO, Advertiser shall provide Stacks with timely access to reporting reasonably sufficient to verify Actions, attribution, and amounts payable under the Campaign.
5.2 Reporting and Reconciliation. Advertiser’s tracking and reporting shall be the source of record for determining billable Actions and amounts payable under each Campaign, unless otherwise expressly stated in the applicable IO. Advertiser shall provide Stacks with timely reporting reasonably sufficient to verify Actions, attribution, and amounts payable. Each party shall use commercially reasonable efforts to promptly notify the other of any material tracking discrepancy, outage, reporting error, or other technical issue that could materially affect Campaign measurement or billing. If the parties’ reporting differs materially, the parties shall cooperate in good faith to investigate and reconcile the discrepancy using available tracking logs, attribution data, transaction records, and other reasonably relevant information. Advertiser’s reporting shall remain subject to the Action validation, rejection, and adjustment requirements of Section 9.
5.3 Tracking Failures. A failure, interruption, or material unreliability of Advertiser-controlled tracking shall not, by itself, eliminate Advertiser’s payment obligation for otherwise valid Actions. If Advertiser’s tracking or reporting is unavailable or materially unreliable, the parties shall cooperate in good faith to determine billable Actions using other reasonably reliable data available to them, including third-party attribution data, Stacks reporting, Publisher reporting, transaction data, historical performance, or other relevant records.
5.4 No Retroactive Measurement Changes. Advertiser shall not retroactively modify attribution rules, tracking methodology, conversion criteria, or other measurement requirements in a manner that reduces amounts payable for Actions generated before Stacks received notice of the applicable change, unless required by applicable law or expressly agreed in writing by Stacks.
5.5 Records. Each party shall maintain records reasonably sufficient to support its Campaign reporting and payment calculations in accordance with its ordinary business practices and applicable law. Upon reasonable request in connection with a good-faith billing dispute, each party shall provide the other with reasonably available supporting information necessary to investigate the disputed amounts, subject to applicable confidentiality, privacy, and security restrictions.
6. PUBLISHER COMPLIANCE AND TRAFFIC QUALITY
6.1 Publisher Requirements. Stacks will use commercially reasonable efforts to communicate applicable Campaign requirements and restrictions to participating Publishers. Stacks may require Publishers to comply with additional network policies, quality standards, or compliance requirements established by Stacks from time to time.
6.2 Traffic Quality. Stacks does not knowingly permit fraudulent or otherwise invalid traffic. Stacks may investigate traffic quality concerns and may suspend or remove a Publisher, placement, or traffic source if Stacks reasonably suspects fraud, material noncompliance with Campaign requirements, or other invalid activity. “Invalid Activity” means Actions generated through bots, automated or fabricated activity, click injection, click flooding, duplicate or manipulated Actions, unauthorized traffic sources, materially misleading promotional practices, or other activity that does not satisfy the applicable Campaign requirements or that the parties otherwise reasonably determine to be fraudulent or invalid.
6.3 Advertiser Notice. Advertiser shall promptly provide Stacks with reasonably available information concerning suspected Invalid Activity, including relevant transaction identifiers, timestamps, reason codes, fraud reports, attribution data, or other supporting information reasonably necessary for Stacks to investigate the affected traffic. Advertiser shall not reject, reverse, or withhold payment for Actions solely based on generalized fraud rates, unsupported conclusions, or allegations that do not reasonably identify the affected Actions or traffic. The timing and procedure for rejecting or reversing individual Actions shall be governed by Section 9.
6.4 Remediation. If Stacks reasonably determines that a Publisher or traffic source has materially violated applicable Campaign requirements, Stacks may take appropriate remedial action, including suspending or terminating the applicable source, excluding Invalid Activity from amounts payable, or implementing additional monitoring or compliance requirements. Stacks does not guarantee that Publishers will at all times comply with Campaign requirements and shall not be responsible for a Publisher’s independent acts or omissions except to the extent expressly provided in the Agreement.
7. FEES AND INVOICING
7.1 Fees. Advertiser shall pay Stacks the fees specified in each applicable IO based on the pricing methodology and billable Actions identified therein.
7.2 Invoicing. Unless otherwise stated in the applicable IO, Stacks shall invoice Advertiser monthly in arrears based on Advertiser’s reporting of billable Actions for the applicable billing period. Advertiser shall provide final or substantially complete reporting for each billing period within a commercially reasonable period following month-end and shall reasonably cooperate with Stacks in obtaining information necessary to prepare and reconcile invoices.
7.3 Campaign Caps. Any Campaign budget, volume cap, daily cap, or similar limitation stated in an IO shall be applied in accordance with the tracking and reporting methodology applicable to the Campaign. Unless otherwise expressly stated in the applicable IO, delivery of up to ten percent (10%) above an applicable Campaign cap shall be considered authorized and billable. Advertiser shall promptly notify Stacks if Advertiser becomes aware that a Campaign is approaching or has exceeded an applicable cap. Stacks shall not be responsible for delivery exceeding the foregoing tolerance to the extent caused by delayed Advertiser reporting, delayed tracking or attribution, reporting latency, or Advertiser’s failure to timely communicate a pause or change.
8. PAYMENT TERMS AND TAXES
8.1 Payment. Advertiser shall pay all undisputed invoices within the payment period specified in the applicable IO. If no payment period is specified, payment shall be due thirty (30) days from the invoice date. Advertiser may not offset or deduct amounts from an invoice except for credits or adjustments agreed by Stacks or properly disputed pursuant to Section 10.
8.2 Late Payments. Undisputed amounts not paid when due may accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. Advertiser shall reimburse Stacks for reasonable third-party costs of collecting materially past-due undisputed amounts. Stacks may suspend Campaigns or decline to accept additional Campaigns if Advertiser has materially past-due undisputed amounts, following reasonable notice to Advertiser.
8.3 Taxes. Each party shall be responsible for its own taxes arising from its income, personnel, property, and business operations. Stacks shall be responsible for taxes imposed on Stacks’ net income, and Advertiser shall be responsible for taxes imposed on Advertiser’s net income. Fees payable to Stacks are exclusive of any applicable sales, use, value-added, goods and services, or similar transaction taxes imposed on the Services. To the extent Stacks is required by applicable law to collect such taxes from Advertiser, Stacks may separately state such taxes on the applicable invoice, and Advertiser shall pay them. If Advertiser is required by applicable law to withhold or deduct taxes from a payment to Stacks, Advertiser shall timely remit the required amount to the applicable taxing authority, provide Stacks with reasonable documentation evidencing the withholding or deduction, and reasonably cooperate with Stacks regarding any available exemption, reduction, or tax credit.
9. ACTION VALIDATION, REJECTIONS, AND ADJUSTMENTS
9.1 Validation Period. Advertiser shall review Actions and report any Actions it reasonably believes are invalid, fraudulent, duplicative, improperly attributed, or otherwise non-billable under the applicable Campaign requirements no later than thirty (30) days following the end of the calendar month in which the applicable Actions occurred (“Validation Period”). Except as provided in Section 9.4, Actions not rejected within the Validation Period shall be deemed approved and billable.
9.2 Rejection Requirements. Any rejection or proposed adjustment must identify the affected Actions with reasonable specificity and include reasonably available supporting information sufficient for Stacks to understand and investigate the basis for the rejection, which may include transaction identifiers, timestamps, reason codes, attribution data, fraud reports, or other relevant records. Advertiser may not reject Actions based solely on generalized fraud percentages, statistical estimates, unsupported conclusions, failure to meet internal performance expectations, or criteria that were not part of the applicable Campaign requirements when the Actions occurred.
9.3 Investigation and Reconciliation. If Stacks reasonably disputes a rejection, the parties shall cooperate in good faith to investigate the affected Actions. Advertiser shall provide reasonably available supporting information requested by Stacks, subject to applicable privacy, confidentiality, and security restrictions. Actions demonstrated to be Invalid Activity or otherwise non-billable under the applicable Campaign requirements may be excluded from invoicing or credited against a subsequent invoice, as applicable.
9.4 Later-Discovered Fraud. After expiration of the Validation Period, Advertiser may request an adjustment for Actions affected by material fraud that could not reasonably have been identified during the Validation Period, provided Advertiser notifies Stacks promptly following discovery and provides reasonably sufficient supporting evidence. Any adjustment under this Section shall be limited to the specifically identified Actions demonstrated to have resulted from such fraud and shall not permit generalized or estimated chargebacks.
9.5 No Retroactive Standards. Actions shall be evaluated based on the Campaign requirements, conversion criteria, attribution methodology, and fraud standards in effect when the applicable Actions occurred. Advertiser may not apply subsequently adopted requirements, methodologies, or standards retroactively without Stacks’ written agreement.
10. BILLING DISPUTES AND RECONCILIATION
10.1 Billing Disputes. Advertiser shall notify Stacks in writing of any good-faith dispute regarding an invoice within thirty (30) days after the invoice date and shall identify the disputed amount and reasonable basis for the dispute. Advertiser shall timely pay all undisputed portions of an invoice while the parties work in good faith to resolve the disputed portion. Failure to dispute an invoice within the foregoing period shall constitute acceptance of the invoice, except for mathematical or clerical errors or circumstances involving fraud that could not reasonably have been identified during the applicable period. Any credit or adjustment agreed by the parties may, at Stacks’ option, be applied against a subsequent invoice or otherwise reconciled between the parties.
11. TERM AND TERMINATION
11.1 Term. These Terms shall remain in effect for so long as an IO between the parties remains in effect or either party has outstanding obligations under the Agreement. Each Campaign shall continue for the period specified in the applicable IO. If no specific Campaign term is stated, either party may terminate or pause the Campaign upon forty-eight (48) hours’ written notice to the other party.
11.2 Termination for Cause. Either party may terminate an IO or the Agreement immediately upon written notice if the other party: (a) materially breaches the Agreement and, if the breach is reasonably capable of cure, fails to cure the breach within ten (10) business days after receiving written notice; (b) engages in fraud, willful misconduct, or unlawful activity materially related to the Agreement; (c) becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy that is not dismissed within sixty (60) days, or ceases substantially all business operations; or (d) creates a material legal, regulatory, security, or reputational risk that cannot reasonably be addressed through suspension or other remedial measures.
11.3 Suspension. Stacks may immediately suspend a Campaign, traffic source, or Advertiser account if reasonably necessary to address suspected fraud, material noncompliance, nonpayment of undisputed amounts, security concerns, legal or regulatory requirements, or material risk to Stacks or its Publishers. Where reasonably practicable, Stacks will notify Advertiser of the suspension and the basis for it.
11.4 Effect of Termination. Termination or expiration shall not relieve either party of obligations accrued before the effective date of termination. Advertiser shall remain responsible for all valid and billable Actions generated before the effective termination or pause of a Campaign, including Actions reported or attributed after termination in accordance with the applicable Campaign attribution methodology. Sections concerning payment obligations, confidentiality, intellectual property, data rights, indemnification, limitation of liability, dispute resolution, and any other provisions that by their nature should survive shall survive expiration or termination.
12. CONFIDENTIALITY
12.1 Confidential Information. “Confidential Information” means non-public information disclosed by or on behalf of one party (“Disclosing Party”) to the other (“Receiving Party”) that is identified as confidential or that reasonably should be understood to be confidential given the nature of the information or circumstances of disclosure. Confidential Information may include business plans, financial information, pricing, Campaign terms, customer and Publisher information, technical information, software, product plans, security information, trade secrets, and other proprietary business information. Confidential Information does not include information that the Receiving Party can demonstrate: (a) is or becomes publicly available through no breach of the Agreement; (b) was lawfully known to the Receiving Party without restriction before disclosure; (c) is lawfully received from a third party without confidentiality obligation; or (d) is independently developed without use of the Disclosing Party’s Confidential Information.
12.2 Protection and Use. The Receiving Party shall use the Disclosing Party’s Confidential Information solely as necessary to perform or exercise its rights under the Agreement and shall protect it using at least reasonable care. The Receiving Party may disclose Confidential Information to its employees, contractors, professional advisers, affiliates, and service providers who have a need to know such information for purposes related to the Agreement and who are subject to confidentiality obligations at least reasonably protective of such information.
12.3 Required Disclosure. If the Receiving Party is legally required to disclose Confidential Information, it may do so to the extent required by law, provided that, where legally permitted, it gives the Disclosing Party reasonable advance notice and reasonable assistance in seeking confidential treatment or other appropriate protection.
12.4 Duration. The obligations in this Section shall continue during the term of the Agreement and for three (3) years thereafter; provided that obligations relating to trade secrets shall continue for so long as such information qualifies for protection as a trade secret under applicable law.
13. INTELLECTUAL PROPERTY AND DATA
13.1 Ownership. Except for the limited rights expressly granted under the Agreement, each party retains all right, title, and interest in and to its pre-existing and independently developed intellectual property, technology, software, systems, methodologies, trademarks, content, data, and other proprietary materials. No rights or licenses are granted by either party except as expressly stated in the Agreement.
13.2 Stacks Technology. Stacks retains all right, title, and interest in and to its platform, technology, software, APIs, reporting systems, methodologies, network infrastructure, documentation, and related intellectual property, including any improvements, modifications, or derivative works thereof. Advertiser shall not reverse engineer, decompile, disassemble, copy, modify, or attempt to derive the source code or underlying structure of Stacks’ technology except to the extent such restriction is prohibited by applicable law.
13.3 Advertiser Materials. Advertiser retains all right, title, and interest in and to Advertiser Materials. Stacks’ rights to use Advertiser Materials are limited to the license granted under Section 3.
13.4 Campaign Data. Each party may use Campaign performance data and other information generated through the performance of the Agreement for billing, reconciliation, attribution, fraud prevention, analytics, optimization, compliance, and operation of its business, subject to the Agreement, the DPA, and applicable law. Stacks may use aggregated or de-identified Campaign data that does not identify Advertiser or any individual for analytics, benchmarking, product development, network optimization, fraud prevention, and other legitimate business purposes. Neither party acquires ownership of the other party’s underlying data solely because such data is transmitted, processed, or made available in connection with a Campaign.
13.5 Personal Data. To the extent either party processes Personal Data in connection with the Agreement, such processing shall be governed by the applicable DPA and applicable data protection law. In the event of a conflict between this Section and the DPA concerning the processing of Personal Data, the DPA shall control.
14. REPRESENTATIONS AND WARRANTIES
14.1 Mutual Representations. Each party represents and warrants that: (a) it has full power and authority to enter into and perform its obligations under the Agreement; (b) its execution and performance of the Agreement will not violate any agreement binding upon it; and (c) it will comply with applicable laws and regulations in connection with its performance under the Agreement.
14.2 Advertiser Representations. In addition to its obligations under Section 3, Advertiser represents and warrants that: (a) Advertiser has all rights, licenses, consents, permissions, and regulatory approvals necessary to advertise, offer, sell, and provide the products, services, applications, and offers promoted through each Campaign; (b) Advertiser Materials, Campaign instructions, landing pages, and Advertiser-controlled portions of each Campaign will comply with applicable law and will not infringe, misappropriate, or otherwise violate the rights of any third party; (c) all claims, disclosures, representations, and material terms relating to Advertiser’s products, services, applications, and offers are truthful, accurate, adequately substantiated, and not misleading; (d) Advertiser will honor the terms of its advertised offers and fulfill its obligations to consumers arising from Advertiser’s products or services; (e) Advertiser will not direct Stacks or any Publisher to engage in conduct that violates applicable law or the Agreement; and (f) any data, instructions, suppression lists, targeting criteria, or other materials supplied by Advertiser for use in a Campaign have been lawfully obtained and may lawfully be used for the purposes contemplated by the Agreement.
14.3 Stacks Representations. Stacks represents and warrants that it will perform the Services in a professional and workmanlike manner and will use commercially reasonable efforts to operate its network and provide the Services in accordance with the Agreement and applicable law.
14.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STACKS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. STACKS DOES NOT WARRANT OR GUARANTEE ANY PARTICULAR CAMPAIGN PERFORMANCE, VOLUME, CONVERSION RATE, REVENUE, PROFITABILITY, USER BEHAVIOR, OR OTHER BUSINESS RESULT. STACKS DOES NOT WARRANT THAT THE SERVICES, THIRD-PARTY SYSTEMS, OR PUBLISHER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
15. INDEMNIFICATION
15.1 Advertiser Indemnification. Advertiser shall defend, indemnify, and hold harmless Stacks, its affiliates, and their respective officers, directors, employees, and agents from and against third-party claims, actions, proceedings, damages, judgments, settlements, penalties, fines, liabilities, costs, and reasonable attorneys’ fees arising out of or relating to: (a) Advertiser Materials or Advertiser’s products, services, applications, offers, landing pages, or other Advertiser-controlled content; (b) Advertiser’s breach of its representations, warranties, or obligations under Sections 3 or 14; (c) any allegation that Advertiser Materials or other materials provided by Advertiser infringe, misappropriate, or violate a third party’s intellectual property or proprietary rights; (d) Advertiser’s violation of applicable law in connection with the Agreement or a Campaign; or (e) Advertiser’s products, services, applications, or offers, including consumer claims relating to their purchase, use, performance, fulfillment, or availability.
15.2 Stacks Indemnification. Stacks shall defend, indemnify, and hold harmless Advertiser and its officers, directors, employees, and agents from and against third-party claims, actions, proceedings, damages, judgments, settlements, penalties, fines, liabilities, costs, and reasonable attorneys’ fees arising out of or relating to: (a) an allegation that Stacks’ proprietary technology, excluding Advertiser Materials, Publisher materials, third-party technology, or modifications not made by Stacks, infringes a third party’s intellectual property rights; (b) Stacks’ gross negligence or willful misconduct in performing the Services; or (c) Stacks’ material violation of applicable law in its performance of the Services.
15.3 Indemnification Procedure. The party seeking indemnification (“Indemnified Party”) shall: (a) promptly notify the indemnifying party (“Indemnifying Party”) of the applicable claim, provided that failure to provide prompt notice shall relieve the Indemnifying Party of its obligations only to the extent materially prejudiced by the delay; (b) provide reasonable cooperation, at the Indemnifying Party’s expense, in the defense of the claim; and (c) permit the Indemnifying Party to control the defense and settlement of the claim. The Indemnifying Party shall not settle any claim in a manner that admits wrongdoing by, imposes non-monetary obligations upon, or materially restricts the business of the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld or delayed.
16. LIMITATION OF LIABILITY
16.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITY, GOODWILL, OR DATA, ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 Liability Cap. EXCEPT FOR THE EXCLUDED OBLIGATIONS IDENTIFIED IN SECTION 16.3, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO AN IO OR THE AGREEMENT, INCLUDING LIABILITY ARISING FROM ITS INDEMNIFICATION OBLIGATIONS, SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY ADVERTISER TO STACKS UNDER THE APPLICABLE IO DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. If the event giving rise to the claim occurs before six (6) months of fees have accrued under the applicable IO, the cap shall equal the fees paid or payable from the effective date of the applicable IO through the date of such event.
16.3 Excluded Obligations. The limitations in Section 16.2 shall not apply to: (a) Advertiser’s obligation to pay undisputed fees properly due under the Agreement; (b) either party’s fraud or willful misconduct; or (c) liability that cannot lawfully be limited or excluded. For clarity, except for the foregoing excluded obligations, the liability cap in Section 16.2 applies to each party’s indemnification obligations, confidentiality obligations, data protection obligations, and intellectual property-related claims.
16.4 Allocation of Risk. The parties acknowledge that the limitations contained in this Section reflect a reasonable allocation of risk between the parties and are an essential basis of the bargain.
17. NON-CIRCUMVENTION
17.1 Protected Relationships. During the term of an applicable IO and for twelve (12) months thereafter, Advertiser shall not knowingly circumvent Stacks by directly contracting with, purchasing substantially similar advertising services from, or otherwise establishing a direct commercial relationship for substantially similar services with a Publisher that: (a) was first introduced to Advertiser by Stacks in connection with a Campaign; and (b) Advertiser did not have a pre-existing material commercial relationship with before such introduction, in each case for the purpose of avoiding fees or other amounts that would otherwise be payable to Stacks.
17.2 Exclusions. This Section does not restrict Advertiser from: (a) maintaining or expanding a relationship that existed independently of Stacks before the applicable introduction; (b) engaging with a Publisher that independently solicits Advertiser without use of Stacks’ Confidential Information and without action by Advertiser intended to circumvent Stacks; (c) conducting business with a Publisher through another channel, product, service, or relationship that is materially unrelated to the Campaign or services for which Stacks introduced the Publisher; or (d) entering into a direct relationship with a Publisher with Stacks’ written consent.
17.3 Remedies. If Advertiser breaches this Section, Stacks may recover its actual damages resulting from the circumvention, including the fees Stacks reasonably would have earned from the circumvented business during the restricted period. The parties acknowledge that damages resulting from circumvention may be difficult to calculate precisely. Nothing in this Section shall entitle Stacks to recover duplicative damages or amounts unrelated to the business actually circumvented.
18. GOVERNING LAW AND DISPUTE RESOLUTION
18.1 Governing Law. The Agreement shall be governed by the laws of the State of Florida, without regard to its conflict-of-laws principles.
18.2 Good-Faith Resolution. Before initiating formal legal proceedings, the parties shall use reasonable good-faith efforts to resolve any dispute arising out of or relating to the Agreement through discussions between representatives with authority to resolve the dispute. Nothing in this Section prevents either party from seeking temporary, preliminary, or other equitable relief where reasonably necessary to prevent immediate or irreparable harm.
18.3 Venue. Any legal action or proceeding arising out of or relating to the Agreement shall be brought exclusively in the state or federal courts located in Sarasota County, Florida, and each party consents to the personal jurisdiction and venue of such courts. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT.
19. NOTICES
19.1 Notices. Notices required under the Agreement shall be in writing and delivered by email, nationally recognized overnight courier, or certified or registered mail to the contact information stated in the applicable IO or to such other contact information as a party may designate in writing. Notices shall be deemed received: (a) for email, when sent, provided the sender does not receive an automated notice of failed delivery; (b) for overnight courier, on confirmed delivery; and (c) for certified or registered mail, on confirmed delivery. Notices of termination, material breach, indemnification claims, or formal legal disputes sent by email shall also be sent to any legal-notice email address identified in the applicable IO, if one is provided. Routine Campaign communications, approvals, reporting, pauses, and operational instructions may be provided through email, the Stacks platform, or other communication methods customarily used by the parties.
20. ASSIGNMENT
20.1 Assignment. Neither party may assign the Agreement without the other party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign the Agreement without consent in connection with a merger, reorganization, sale of substantially all of its assets, or change of control, or to an affiliate capable of performing the assigning party’s obligations under the Agreement. Any attempted assignment in violation of this Section is void. Subject to the foregoing, the Agreement shall bind and benefit the parties and their respective permitted successors and assigns.
21. FORCE MAJEURE
21.1 Force Majeure. Neither party shall be liable for delay or failure to perform its obligations, other than payment obligations for amounts already accrued, to the extent caused by circumstances beyond its reasonable control, including natural disasters, severe weather, fire, war, terrorism, civil unrest, governmental action, labor disruption, widespread internet or telecommunications failures, utility failures, or material failures of third-party infrastructure or services not reasonably within the affected party’s control. The affected party shall use commercially reasonable efforts to mitigate the impact of the event and resume performance as reasonably practicable.
22. RELATIONSHIP OF THE PARTIES
22.1 Independent Contractors. The parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture, fiduciary relationship, franchise, employment relationship, or agency between the parties. Neither party has authority to bind the other or incur obligations on the other’s behalf except as expressly authorized in writing. Publishers are independent third parties and are not employees or agents of Stacks solely by virtue of their participation in Stacks’ network.
23. GENERAL
23.1 Entire Agreement. The Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements, proposals, representations, and communications concerning that subject matter.
23.2 Order of Precedence. In the event of a conflict among the documents comprising the Agreement: (a) the applicable IO shall control with respect to Campaign-specific commercial and operational terms; (b) the DPA shall control with respect to the processing, protection, or handling of Personal Data; and (c) these Terms shall control in all other respects. An IO shall modify or override a legal provision of these Terms only if the IO expressly identifies the applicable provision of these Terms and states the parties’ intent to modify or override it.
23.3 Amendments. The Agreement may be amended only by a written agreement executed by authorized representatives of both parties, except that Campaign-level operational matters that do not materially modify the parties’ legal or financial obligations may be agreed through ordinary-course written communications between authorized representatives.
23.4 Waiver. A party’s failure or delay in exercising a right under the Agreement shall not constitute a waiver of that right. Any waiver must be in writing and applies only to the specific circumstance for which it is given.
23.5 Severability. If any provision of the Agreement is determined to be invalid, illegal, or unenforceable, that provision shall be enforced to the maximum extent permitted by law, and the remaining provisions shall remain in effect.
23.6 No Third-Party Beneficiaries. Except for persons expressly entitled to indemnification under Section 15, the Agreement is for the sole benefit of the parties and does not confer rights or remedies upon any other person.
23.7 Electronic Signatures and Counterparts. An IO or other agreement may be executed electronically and in counterparts, each of which shall be deemed an original and all of which together constitute one instrument.
23.8 Headings. Section headings are for convenience only and do not affect interpretation of the Agreement.
Exhibit A – Data Processing Addendum. The Data Processing Addendum attached as Exhibit A is incorporated into and forms part of these Terms and applies solely to the extent provided therein.
Exhibit A: Data Processing Addendum
This Data Processing Addendum (“DPA”) forms part of the agreement (“Agreement”) between Stacks App LLC (“Stacks”) and the advertiser identified in an applicable Insertion Order (“Advertiser”) and governs the Processing of Personal Data in connection with the Services. Capitalized terms not defined in this DPA have the meanings given in the Agreement or Applicable Data Protection Law.
1. DEFINITIONS
1.1 Applicable Data Protection Law. “Applicable Data Protection Law” means privacy, data protection, and data security laws applicable to a party’s Processing of Personal Data under the Agreement, including, where applicable, the EU General Data Protection Regulation (“GDPR”), the UK GDPR, the California Consumer Privacy Act as amended by the California Privacy Rights Act (“CCPA”), and other applicable U.S. state comprehensive privacy laws.
1.2 Defined Privacy Terms. “Controller,” “Processor,” “Data Subject,” “Personal Data,” “Process,” “Processing,” and “Supervisory Authority” have the meanings given under Applicable Data Protection Law. Where Applicable Data Protection Law uses analogous terms such as “Business,” “Service Provider,” “Contractor,” “Consumer,” or “Personal Information,” those terms shall be interpreted consistently with the applicable law.
1.3 Campaign Data. “Campaign Data” means information Processed in connection with a Campaign, including tracking, attribution, conversion, transaction, reporting, and traffic-quality information.
1.4 Security Incident. “Security Incident” means a confirmed breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data Processed under this DPA.
2. SCOPE AND ROLES OF THE PARTIES
2.1 Scope. This DPA applies to Personal Data Processed by either party in connection with the Services.
2.2 Independent Controller Processing. To the extent each party independently determines the purposes and means of Processing Personal Data in connection with Campaign tracking, attribution, measurement, reporting, fraud detection and prevention, security, compliance, analytics, billing, reconciliation, and operation of its respective business, each party acts as an independent Controller or Business with respect to such Processing. The parties do not intend to act as joint Controllers solely by virtue of entering into the Agreement or exchanging Campaign Data. Each party is independently responsible for complying with the obligations applicable to it under Applicable Data Protection Law with respect to such Processing.
2.3 Processor Processing. To the extent Stacks Processes Personal Data solely on behalf of Advertiser and pursuant to Advertiser’s documented instructions, Advertiser acts as Controller or Business and Stacks acts as Processor, Service Provider, or Contractor, as applicable. Sections 3 through 8 apply to such Processing to the extent required by Applicable Data Protection Law.
2.4 Advertiser Responsibilities. Advertiser represents and warrants that it has a lawful basis and all necessary rights, notices, consents, permissions, and authorizations required to collect, use, disclose, and otherwise Process Personal Data made available to Stacks and to instruct Stacks to Process such Personal Data as contemplated by the Agreement. Advertiser is responsible for ensuring that its Campaign instructions and use of the Services comply with Applicable Data Protection Law.
3. PROCESSING INSTRUCTIONS
3.1 Instructions. Where Stacks acts as a Processor, Service Provider, or Contractor, Stacks shall: (a) Process Personal Data only on Advertiser’s documented instructions, including as set forth in the Agreement, applicable IO, and this DPA, unless otherwise required by applicable law; (b) promptly inform Advertiser if, in Stacks’ reasonable opinion, an instruction violates Applicable Data Protection Law, unless prohibited from doing so by law; (c) ensure that persons authorized to Process Personal Data are subject to appropriate confidentiality obligations; and (d) not Process Personal Data for purposes materially inconsistent with Advertiser’s documented instructions except as permitted or required by Applicable Data Protection Law. The Agreement and applicable IO constitute Advertiser’s documented instructions to Process Personal Data as reasonably necessary to provide the Services.
4. CCPA AND U.S. STATE PRIVACY REQUIREMENTS
4.1 Service Provider / Processor Restrictions. To the extent Stacks Processes Personal Data as a Service Provider, Contractor, or analogous processor under Applicable Data Protection Law: (a) Stacks shall not sell or share Personal Data as those terms are defined by applicable law; (b) Stacks shall not retain, use, or disclose Personal Data outside the direct business relationship between Stacks and Advertiser except as permitted by Applicable Data Protection Law; (c) Stacks shall not retain, use, or disclose Personal Data for purposes other than providing the Services, the business purposes specified in the Agreement, or as otherwise permitted by Applicable Data Protection Law; (d) Stacks shall not combine Personal Data received from or on behalf of Advertiser with Personal Data received from another person or collected from Stacks’ own interaction with a consumer except as permitted by Applicable Data Protection Law; (e) Stacks shall provide the same level of privacy protection required of Advertiser with respect to such Personal Data to the extent required by applicable law; (f) Advertiser may take reasonable and appropriate steps to help ensure that Stacks uses Personal Data consistently with Advertiser’s obligations under applicable law; and (g) Stacks shall notify Advertiser if Stacks determines that it can no longer meet its applicable obligations and shall reasonably cooperate with Advertiser regarding appropriate steps to stop and remediate unauthorized Processing. For clarity, this Section applies only where Stacks is acting in a processor, Service Provider, Contractor, or analogous capacity and does not restrict Stacks’ lawful Processing as an independent Controller or Business under Section 2.2.
5. DATA SUBJECT REQUESTS
5.1 Independent Controllers. Where the parties act as independent Controllers, each party is responsible for responding to Data Subject or consumer requests it receives relating to its own Processing. Where reasonably necessary and legally required, the parties shall provide reasonable cooperation to enable the other party to respond to such requests.
5.2 Processor Processing. Where Stacks acts as Processor, Stacks shall, taking into account the nature of the Processing, provide reasonable assistance to Advertiser in responding to requests by Data Subjects to exercise rights under Applicable Data Protection Law. If Stacks receives a request relating specifically to Personal Data Processed solely on Advertiser’s behalf, Stacks may direct the requester to Advertiser unless applicable law requires otherwise.
6. SECURITY
6.1 Safeguards. Stacks shall implement and maintain reasonable and appropriate technical and organizational safeguards designed to protect Personal Data against unauthorized or unlawful Processing and against accidental loss, destruction, alteration, or disclosure, taking into account the nature of the Personal Data, the risks presented by the Processing, and the state of the art and cost of implementation. Such measures shall include, as appropriate to the Services: (a) access controls and authentication measures; (b) appropriate encryption or other safeguards for Personal Data in transit and at rest; (c) measures designed to maintain the confidentiality, integrity, and availability of systems Processing Personal Data; (d) reasonable vulnerability, patch, and security management practices; (e) personnel confidentiality and security requirements; and (f) incident response procedures.
7. SECURITY INCIDENTS
7.1 Incident Response. Stacks shall notify Advertiser without undue delay after becoming aware of a Security Incident affecting Personal Data Processed by Stacks on Advertiser’s behalf. To the extent reasonably available, such notice shall include information regarding the nature of the Security Incident, categories of affected Personal Data and Data Subjects, likely consequences, and measures taken or proposed to address the Security Incident. Stacks shall take reasonable steps to contain, investigate, mitigate, and remediate the Security Incident and shall reasonably cooperate with Advertiser regarding legally required notifications. Notification of a Security Incident does not constitute an admission of fault or liability by Stacks. Security incidents affecting Personal Data for which Stacks acts solely as an independent Controller shall be handled by Stacks in accordance with its obligations under Applicable Data Protection Law.
8. SUBPROCESSORS
8.1 General Authorization. Where Stacks acts as a Processor, Advertiser generally authorizes Stacks to engage subprocessors to Process Personal Data in connection with the Services.
8.2 Subprocessor Obligations. Stacks shall enter into written agreements with its subprocessors that impose data protection obligations appropriate to the nature of the Processing and materially consistent with Stacks’ applicable obligations under this DPA. Stacks shall remain responsible for its subprocessors’ performance of their applicable data protection obligations to the extent required by Applicable Data Protection Law.
8.3 Information Upon Request. Upon Advertiser’s reasonable written request, Stacks shall provide Advertiser with information regarding the subprocessors then engaged by Stacks to Process Personal Data on Advertiser’s behalf.
8.4 Objections. To the extent Applicable Data Protection Law requires Stacks to provide notice of a new subprocessor or an opportunity to object, Stacks shall provide a legally compliant notice or other mechanism. Any objection must be based on reasonable and documented data protection grounds. The parties shall work in good faith to address a valid objection. If the parties cannot reasonably resolve an objection, Stacks may discontinue the affected portion of the Services or Advertiser may terminate the affected Services without penalty, in each case solely to the extent necessary to address the applicable subprocessor objection.
9. INTERNATIONAL DATA TRANSFERS
9.1 Transfer Mechanisms. Each party is responsible for ensuring that its transfers of Personal Data across national borders comply with Applicable Data Protection Law. Where Stacks receives Personal Data subject to the GDPR or UK GDPR in a country that has not been recognized as providing an adequate level of protection and a lawful transfer mechanism is required, the applicable Standard Contractual Clauses approved by the European Commission (“EU SCCs”) or applicable UK transfer mechanism shall be incorporated into this DPA as necessary. For transfers subject to the GDPR, the parties shall use the controller-to-controller or controller-to-processor module of the EU SCCs, as applicable to the parties’ roles for the relevant Processing. For transfers subject to the UK GDPR, the applicable UK International Data Transfer Addendum to the EU SCCs or other lawful transfer mechanism shall apply as required.
10. DATA RETENTION AND DELETION
10.1 Retention. Each party acting as an independent Controller shall retain Personal Data only for as long as reasonably necessary for the purposes for which it was collected or Processed, including applicable legal, accounting, fraud-prevention, security, and compliance purposes.
10.2 Processor Deletion / Return. Where Stacks acts as Processor, upon termination of the applicable Services and upon Advertiser’s written request, Stacks shall delete or return Personal Data Processed solely on Advertiser’s behalf, unless retention is required by applicable law or the data remains in backup systems maintained in accordance with Stacks’ ordinary retention practices, in which case such Personal Data shall remain protected under this DPA until deleted in the ordinary course. Stacks is not required to delete information that has been aggregated or de-identified so that it no longer constitutes Personal Data under Applicable Data Protection Law.
11. COMPLIANCE INFORMATION AND AUDITS
11.1 Compliance Information. Stacks shall make available information reasonably necessary to demonstrate compliance with its processor obligations under this DPA and Applicable Data Protection Law. Advertiser shall first seek to satisfy any verification or audit requirement through documentation, questionnaires, certifications, summaries of security practices, or other information reasonably available from Stacks.
11.2 Audits. If Applicable Data Protection Law requires further verification, Advertiser may conduct an audit no more than once annually, unless a Security Incident or regulatory requirement reasonably requires additional review. Any audit shall: (a) be conducted on reasonable advance written notice; (b) occur during normal business hours; (c) not unreasonably interfere with Stacks’ operations; (d) be subject to appropriate confidentiality and security restrictions; and (e) be conducted at Advertiser’s expense. Stacks is not required to provide access to information that would compromise the security, confidentiality, or rights of Stacks, its other customers, Publishers, or third parties.
12. PROCESSING DETAILS
12.1 Subject Matter and Duration. The subject matter and duration of Processing are the performance of the Services for the duration of the applicable Agreement and any legally permitted retention period.
12.2 Nature and Purposes. Campaign tracking; attribution; measurement; reporting; conversion validation; billing and reconciliation; fraud detection and prevention; security; analytics; Campaign optimization; compliance; and provision and operation of the Services.
12.3 Categories of Data Subjects. Users or prospective users of Advertiser’s applications, websites, products, or services; individuals who interact with Campaign advertising; customers or prospective customers of Advertiser; and business contacts associated with Advertiser, Publishers, or service providers.
12.4 Categories of Personal Data. Personal Data may include IP addresses; device identifiers and advertising identifiers; click IDs and attribution identifiers; transaction, order, and conversion identifiers; hashed or pseudonymous identifiers; timestamps; device, browser, operating-system, and technical information; Campaign interaction and attribution information; conversion and transaction information; approximate geographic information derived from IP address or Campaign data; and business contact information.
12.5 Sensitive Data. The parties do not intend for Stacks to Process sensitive or special-category Personal Data in connection with the Services. Advertiser shall not provide such data to Stacks unless expressly agreed in writing and appropriate safeguards have been established.
13. LIABILITY
13.1 Contractual Limitations. The liability of each party arising out of or relating to this DPA shall be subject to the exclusions and limitations of liability contained in the Agreement. For clarity, the liability cap established in Section 16 of the Terms applies to claims and obligations arising under this DPA except to the extent such limitation is prohibited by Applicable Data Protection Law.
14. CONFLICT; TERM
14.1 Term. This DPA remains in effect for so long as either party Processes Personal Data subject to this DPA.
14.2 Conflict. In the event of a conflict between this DPA and the Agreement regarding the Processing, protection, or handling of Personal Data, this DPA shall control. Except as modified by this DPA, the Agreement remains in full force and effect.