This Contract shall commence on the date on which you Accept these Conditions upon Your registration with Addvertize and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract.
- PROVISION OF THE SERVICES AND THE ADDVERTIZE SDK
With effect from the Effective Date, Addvertize shall, subject to these Conditions:
- make available and allow You to access the Services;
- make available to You (by download or any other method notified to You) a copy of the Addvertize SDK and any other Addvertize Materials or Advertisements which Addvertize deems appropriate.
You acknowledge and agree that it is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any Addvertize Materials and that Addvertize shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the Addvertize Materials.
In the event Your Network comprises of mobile applications which are enlisted or distributed through Google Play Store, You agree that for such applications.
You acknowledge that Addvertize may immediately by notice in writing to You suspend Your access to the Services (or any part thereof) and/or the Addvertize Materials. Further Addvertize shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any Addvertize Materials (or any part thereof).
You acknowledge and agree that (i) nothing in this Contract guarantees that the Services, Addvertize Materials and/or Advertisements will be free from interruption or errors, (ii) there will be periods when the Services, Advertisements and/or Addvertize Materials are unavailable and cannot be accessed and (iii) Addvertize shall not be liable for any loss or damage You may suffer or incur as a result of any Service (or any part of a Service) Advertisements and/or any Addvertize Materials (or any part thereof) being unavailable at any time.
You may use Addvertize’s technology products for obtaining Services including any fixes, updates and upgrades thereto as may be provided by Addvertize from time to time.
- PROPRIETARY RIGHTS
You acknowledge that You have and obtain no rights in the Services, Advertisements and/ or in any Addvertize Materials or the Intellectual Property Rights in or relating to them or to receive the Services save as expressly provided in the Contract.
Addvertize grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Contract to access the Services solely for Your own internal business purposes as they relate to tracking the performance of ad-networks engaged by You and for no other purpose whatsoever.
Addvertize grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable licence for the term of the Contract to use the Addvertize Materials solely for the purpose of enabling You to receive the benefit of the Services. You will have no right to use, perform, display, reproduce and distribute Addvertize Materials for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by Addvertize or updated in Addvertize website from time to time.
- USE RESTRICTIONS
You shall not:
- by accessing the Services, store, transmit, distribute, disseminate, publish or post any material in such a way as to breach any applicable law or regulation or to infringe the rights of, or restrict or inhibit the access to and enjoyment of the Services by, any other person;
- by accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items on to any Addvertize or third party systems;
- distribute the Addvertize Materials to any third party;
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the Addvertize SDK or any other software to which You are given access by Addvertize, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
- assist or attempt to assist any third parties in obtaining access to the Services or the Addvertize Materials;
- Re-order, modify, edit obscure or truncate in any way the Advertisements including without limitation, the advertising content, graphics, format, audio, video, sequence, or any aspect of the Addvertize Materials.
- Share, display or disclose any Addvertize Materials including Advertisements on any part of Your Network that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third party rights or which are reasonably likely to subject Addvertize or its affiliates or advertisers or business partners to negative publicity.
- Engage in any Fraudulent Activities or illegal practices.
You shall be responsible and liable to Addvertize for all acts or omissions of Your Personnel in accessing and use of the Addvertize Materials, Advertisements and Services. Any breach of any provision of the Contract caused by any such persons shall be deemed a breach of the Contract by You.
- YOUR DATA
You shall own all rights, title and interest in and to all of Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data.
Addvertize shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to Addvertize to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of Services by Addvertize (including the provision of the Services to third parties).
If Your Network is based in the US or are targeted to or utilised by end-users based in the US, in addition to complying with applicable laws including Children's Online Privacy Protection Act (“COPPA”), You will ensure that appropriate technical measures have been undertaken, as applicable, in order for Addvertize to determine that such mobile application and/or website are directed to children under the age of thirteen (13) including notification to Addvertize regarding the nature of such application or website to facilitate Addvertize’s compliance with COPPA. In any event, you will not share any personally identifiable information regarding users of COPPA flagged applications or websites, with Addvertize.
Subject to the terms and conditions of this Contract, Addvertize will pay You a percentage of Net Revenue relating to Advertisements run on Your properties during any given calendar month.
Addvertize shall provide You with reasonable access to its online publisher dashboard (“Dashboard”) which shall be used for monthly calculations of the payment to be made by Addvertize to You. The Dashboard shall, on the 6th of every calendar month, reflect the amounts payable by Addvertize to You for the preceding calendar month (“Dashboard Date”) and Addvertize will make the payment within sixty (60) days (a) of the Dashboard Date; or (b) from the date of receipt by Addvertize of a valid invoice raised by You, whichever is later. The payment shall be made after the conversion of the amounts in the local currency (if applicable) provided the Net Revenues are collected by Addvertize from applicable advertisers, subject to You providing Addvertize, complete and accurate information relating to remittance of payment.
The Net Revenue percentage paid to You shall be determined by Addvertize and may be varied in its reasonable discretion from time to time. In case of any conflict with the amount payable under the Dashboard and the amount as raised in the invoice, the amount as reflected in the Dashboard shall prevail.
All payments will be made in US dollars ($US) unless otherwise agreed (email accepted). Notwithstanding the foregoing and Section 6.2, the payment for publishers and developers based out of China, Japan, Korea or India will be made in the local currency. For publishers and developers based out of China, Japan and Korea, Addvertize shall make the applicable payments within forty-five (45) days of (a) the Dashboard Date or (b) from the date of receipt by Addvertize of a valid invoice raised by You, whichever is later.
In the event of an error in payments made to You as determined by Addvertize, whether as a result of inaccurate information provided by a third party or otherwise, Addvertize shall allocate any deficient amounts or deduct any overpayment in the subsequent calendar month payment due to You.
Both parties agree that Addvertize expressly reserves the right to set off amounts owed to You against any other amounts owed by You relating to other Addvertize services.
Addvertize reserves the right to discontinue Service, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if Addvertize reasonably suspects that any of the following have occurred on Your properties: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on Addvertize, its advertisers or business partners. Without limitation to the foregoing, Addvertize may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity.
Taxes: All payments are inclusive of taxes. Excluding any taxes on the income of a Party, any taxes, including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, applicable in connection with this Contract shall be borne and remitted by You to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, Addvertize may withhold such amounts, unless You provides a certificate of exemption from such withholding taxes. Amounts payable to You shall not be grossed up on account of withholding taxes.
Further Addvertize and You shall co-operate to enable each party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
You grant to Addvertize any and all necessary rights and permissions to use Your mobile web or app trademarks, trade names, logos, copyrights and other intellectual property provided during the course of the Services (“Your IPRs”) for the purpose of fulfilling Addvertize’s obligations. Addvertize may mention Your name as a customer in its website, marketing, social media and sales materials.
You acknowledge that Addvertize and/or any third party instructed or engaged by Addvertize may in its sole discretion market, promote, reference, present and link Your IPRs to all Addvertize’s potential customers in connection with the provision of the Services and You grant Addvertize all necessary rights and permissions with respect to Your IPRs on a worldwide, perpetual, irrevocable royalty-free basis.
Each party acknowledges that Confidential Information under its control may be disclosed to the other party during the performance of this Contract. Each party agrees that it shall use the other’s Confidential Information solely for purposes of performing its obligations under the Contract and to take reasonable steps, which shall include, at a minimum, the steps it takes to protect its own Confidential Information, to prevent the duplication or disclosure of the other’s Confidential Information, other than by or to its employees, Affiliates or agents who must have access to the Confidential Information to perform such party’s obligations hereunder. Publisher also acknowledges that Addvertize may need to share Publisher information including Confidential Information with third parties (such as its data management partners, licensors, media vendors and/or for API reporting purposes). Provided however, that in each such case, a Party shall ensure that the recipient employees, Affiliates, agents or third parties have each agreed to or shall each agree to be bound by confidentiality obligations no less restrictive than the terms of this Section 8. Each party agrees that it shall not be a breach of this Section 8 to disclose the other party’s Confidential Information that is required to be disclosed by law, regulation or order of any governmental body or regulatory authority; provided, however, that such disclosing party must first give written notice of such required disclosure to the other party, make a reasonable effort, at the other party’s sole cost and expense, to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which disclosure is required and allow the disclosing party to participate in the proceeding. The confidentiality obligations set forth herein shall continue for two (2) years following termination or expiration of this Contract with respect to Confidential Information. If the Advertisement transmission from Addvertize includes any bid data or other financial information relating to the Advertisement, all such data shall be treated as Confidential Information belonging to Addvertize.
Return of Confidential Information. Upon termination of this Contract, or upon disclosing party’s request, the receiving party shall promptly return or destroy all manifestations of Confidential Information of the disclosing party and so certify to the disclosing party in writing provided however that a party may retain a copy of such Information solely for archival purposes.
Remedies. Each party acknowledges that any breach of its confidentiality obligations would cause irreparable injury to other party for which monetary damages would not be an adequate remedy. Accordingly, in addition to other available remedies, in the event of such a breach, the non-breaching party shall be entitled to appropriate injunctive relief and other equitable remedies without the posting of any bond.
Each party may disclose the existence of this Contract, but agrees that the terms and conditions of this Contract will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Contract: (i) as required by law; (ii) as part of filings with any court or governmental entities, including without limitation national securities exchanges; (iii) to legal counsel of the parties; (iv) under the terms and conditions of a non-disclosure contract to accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Contract or rights under this Contract; or (vi) under the terms and conditions of a non-disclosure contract, in connection with an actual or proposed merger, acquisition, or similar transaction.
You will indemnify, defend and hold Addvertize, its parents, subsidiaries, affiliates, shareholders, licensors, customers, officers, and employees harmless, including costs, expenses and attorneys’ fees and other legal costs, from any and all losses, damages, penalties liability, claim or demand made by any third party due to or arising out of: (a) Your use of the Services or Addvertize Intellectual Property Rights; (b) any violation of this Contract by You including without limitation breach of representations and warranties and obligations related to confidentiality; (c) infringement by You of any third party Intellectual Property Rights or other right of any person or entity; (d) wilful misconduct or gross negligence by You; (e) fraudulent or unlawful act of You. (f) Your breach or alleged breach of any warranties or representations made under Section 9; (g) Any material displayed in Your Network which do not comply with all applicable laws, statutes and regulations; (f) Any material displayed in Your Network which contain content that is obscene, defamatory, libelous, or slanderous, or hate-related.
Any claim for indemnification hereunder shall be subject to the following provisions: (i) the You shall be given prompt written notice of the claim by Addvertize, provided that any delay in providing notice shall not relieve You of Your indemnity obligations under this Contract unless, and only to the extent, You were prejudiced by the delay; and (ii) Addvertize shall reasonably cooperate with You and Your counsel at Your cost and expense. Addvertize may participate in the defense and settlement of the claim and using attorneys selected by Addvertize. Each party shall make all reasonable efforts to mitigate damages.
Save as set out in these Conditions or the Contract and to the maximum extent permitted by applicable law, Addvertize excludes and disclaims all conditions, terms, representations (other than fraudulent misrepresentations) and warranties relating to the subject matter thereof, whether imposed by statute or by operation of law or otherwise, that are not explicitly stated in the Contract including the implied warranties of satisfactory quality and fitness for a particular purpose.
Addvertize shall not be liable, however that liability arises, for the following losses arising out of or in connection with the Contract: consequential, special, incidental or indirect losses ; loss of profits; loss of revenue; loss of business; loss of technology; loss of opportunity; loss of contracts; loss of anticipated savings; loss of goodwill; or loss of, or damage to, data, even if such loss was reasonably foreseeable or Addvertize had been advised or notified of the possibility of You incurring such losses.
The aggregate liability of Addvertize for all claims arising out of or in connection with the Contract (however that liability arises) shall be limited to actual direct damages up to $500.
Notwithstanding any provision to the contrary, nothing in these Conditions or the Contract limits or excludes Addvertize’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation or for any liability, which may not be lawfully limited or excluded.
You acknowledge and agree that the limitations and exclusions of liability contained in these Conditions and the Contract are reasonable in view of the nature and extent of the obligations accepted by each Party under the Contract and the fact that the Services are provided without any monetary charge and that this Condition 11 shall prevail over all other provisions in the Contract.
If any limitation provision contained in these Conditions or the Contract is held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted, but if a Party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in these Conditions.
For the purposes of this Condition 11, ‘however that liability arises’ means howsoever arising, whether in contract, tort (including negligence and strict liability), breach of statutory duty, or otherwise.
Notwithstanding anything else in the Contract, Your liability with regard to Indemnification obligations under Section 10 shall be unlimited.
Either Party may terminate this Contract at any time by providing 15 days’ written notice (email sufficient) to the other party.
On termination of the Contract for any reason:
- All licenses granted by Addvertize under this Contract shall immediately terminate; and
- You shall uninstall or otherwise remove any means of access to the Services provided under the Contract including client software and Addvertize SDK supplied by Addvertize for that purpose;
- You shall immediately return any and all of the Confidential Information of Addvertize and any and all of the Addvertize Material provided to You by Addvertize.
The termination of the Contract shall be without prejudice to any accrued rights and obligations of the Parties arising under the Contract prior to such termination.
The following Conditions shall survive the expiry or termination of the Contract: (a) 4.2, 5.2, 8, 9, 10, 11, 13, 14 and 15; and (b) any other provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of Addvertize (which may be delayed or withheld in its discretion).
Assignment and Subcontracting by Addvertize: Addvertize shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract.
Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). Addvertize shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Addvertize’s reasonable control.
Amendments: Addvertize reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by Addvertize, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to Addvertize. In the event of such termination, clause 12 above shall apply.
- GOVERNING LAW AND JURISDICTION
These Conditions, the Contract and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of EU.
Unless otherwise agreed to by parties in an agreement and/or addendum, the Parties irrevocably agree that the courts of the EU shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions and/or the Contract or their subject matter or formation (including non-contractual disputes or claims).
- DEFINITIONS AND INTERPRETATION
Unless the context otherwise requires, the following definitions apply in these Conditions:
- Accept means Your clicking 'Accept' to signify that you accept these Conditions and agree to this Contract;
- Advertisements: means all the advertising content provided by Addvertize on behalf of advertisers for distribution on Your Network;
- Confidential Information means information (including confidential or sensitive commercial; financial; marketing; and/or technical information in written, electronic or any other form or medium) which is marked ‘confidential’ or ‘secret’ or is, by its nature shall be considered confidential by a reasonable prudent person;
- Conditions means these terms and conditions;
- Contract means the agreement formed between You and Addvertize, on the terms set out in these Conditions, when you click accept;
- Effective Date means the date on which You Accept these Conditions;
- End User means visitors to the website(s) or application(s) that comprise Your Network;
- Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (a) generate impressions of or clicks on any Advertisement through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (b) mislead users to click on Advertisements; (c) in any way minimize or obstruct the display of any Advertisements, or edit, modify, filter or change the order of the information contained in any Advertisements; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by Addvertize; or reverse engineer, decompile or disassemble any software components of the advertising services provided by Addvertize;
- Gross Revenues means the amounts due and owing to Addvertize from advertisers for distribution of Advertisements on Your Network as received by Addvertize;
- Group Company means (in relation to a Party) any subsidiary or holding company from time to time of a Party, or any subsidiary from time to time of a Party’s holding company;
- Addvertize means Addvertize PTE Ltd, a company incorporated and existing in accordance with the laws of the country of Singapore, with registered office at 30 Cecil Street #19-08, Prudential Tower, Singapore 049712, acting on behalf of itself and its affiliates;
- Addvertize Materials means any materials (including software, manuals, developers notes or other materials) provided to You by Addvertize in relation to this Contract, including the Addvertize SDK;
- Addvertize SDK means the software development kit provided to You by Addvertize to allow you to generate data which will be processed as part of the Services;
- Intellectual Property Rights means trademarks, service marks, and rights in the nature of passing off and unfair competition, get-up, trade dress, registered designs and unregistered designs and design rights, business and trading names, domain names, topography rights, copyright (including copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future subsist in any part of the world (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, each for their full term including extensions, revivals and renewals thereof;
- Net Revenues means Gross Revenues, less Addvertize’s creative charges, cost of sales and Advertisement serving costs, including (a) any commissions due to, or revenue shares retained by, third party advertising sales networks or agencies, (b) any out of pocket costs paid by Addvertize to third parties to serve the Advertisements pursuant to this Contract (c) data enrichment and directed marketing costs, and (d) refunds to advertisers, credit card or bank charges, foreign exchange fluctuations impact, electronic payment processing fees, chargebacks, and bad debt;
- Party means each of Addvertize and You and Parties shall be construed accordingly;
- Personnel means a Party’s directors, officers, employees, workers, agents, third party service providers, successors, subcontractors and permitted assignees;
- Regulator means any regulator or regulatory body which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Contract or any other aspect of Your business or affairs;
- Services means the provision of an independent and open platform to track conversions of ad campaigns across mobile websites and apps and across campaigns running on any advertising network;
- Your Network means (a) the mobile website(s) or mobile application(s) owned/ operated or contracted by You, and (b) the mobile websites or applications that are added or removed from Your Network during the Term;
- You means the person accessing the Services and/or using the Addvertize Materials; and
- Your Data means any data belonging to You or to third parties and used by You under licence which is stored and/or processed by Addvertize as a result of the use of the Services.
A reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute, as may be amended and in force from time to time.
The words and phrases "include", "including" and "in particular" (and any variations of these words, or similar words) shall be deemed to be immediately followed by the words "without limitation" (where such words do not already immediately follow in these Conditions).
References to a person include an individual, company, corporation, body corporate or unincorporated, firm, partnership, public body, charity or other legal entity and that party’s personal representatives, successors and permitted assigns.
Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.
Terms for participating in Addvertize Exchange. If you do not opt out from participating in Addvertize Exchange within 30 days from the date of notification, you shall be deemed to have accepted these terms.
Terms of Service