BEFORE USING THE ADVERTISING SERVICES (DEFINED BELOW), CAREFULLY READ THESE APPDRIVE ADVERTISER TERMS AND CONDITIONS (THE “TERMS AND CONDITIONS”). BY CLICKING A BUTTON AND/OR BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN INSERTION ORDER OR OTHER FORM THAT REFERENCES THESE TERMS AND CONDITIONS, YOU AGREE TO THESE TERMS AND CONDITIONS. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN YOU MUST NOT ACCEPT THESE TERMS AND CONDITIONS AND MAY NOT USE THE ADVERTISING SERVICE.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, AppDrive, Inc. (“AppDrive") and the other entity on whose behalf the Agreement is entered (“Advertiser”) hereby agree as follows:
1.1 Advertiser and AppDrive shall mutually agree upon the terms of an insertion order (or other contracting mechanism, as applicable) (referred to herein as an “Insertion Order” or “IO”) setting forth the details of the advertising campaign, which details may include among others: the type and quantity of ad placements, the rate price per ad placement, the maximum budget allotted to the campaign, the flight and campaign dates, etc., and which shall incorporate by reference these Terms and Conditions.
1.2 Advertiser will deliver the Advertisements (defined below) and implement conversion tracking in accordance with the applicable technical specifications provided by AppDrive, and AppDrive will make commercially reasonable efforts to serve the Advertisements to the AppDrive Inventory (defined below) in accordance with the applicable Insertion Order (the “Advertising Service”). As between the parties, Advertiser is solely responsible for any and all costs Advertiser incurs for the production and delivery of the Advertisements in accordance with the aforementioned technical specifications and for any programming undertaken by Advertiser related thereto. Advertiser is solely responsible for the content of any Advertisement, and AppDrive will not make modifications or alterations thereto without Advertiser’s prior written consent except as required for or otherwise incidental to any technical implementation by AppDrive of an Advertisement.
1.3 Advertiser shall have the ability to select a particular implementation of the Advertising Service through the AppDrive dashboard located at http://AppDrive.mobi/advertiser/dashboard/index or at such other URL as provided by AppDrive from time to time (the “AppDrive Dashboard”). Advertiser may use the AppDrive Dashboard to specify certain requirements of a particular advertising campaign covered by an IO, including setting the campaign budget, sums to be spent on a daily basis, and dates / targets for delivery of Advertisements. Advertiser acknowledges that the sums allocated for a particular day and targets for delivery are estimates and are not guaranteed. To this end, AppDrive shall not be liable for sums spent by Advertiser on a particular day which are less than or more than the intended amount. By way of example, if Advertiser sets a daily spend limit, it may be necessary for AppDrive to deliver Advertisements in excess of the corresponding conversion amounts, in anticipation that not all Advertisements delivered will be converted. Advertiser acknowledges that placement and promotion of Advertisements shall be, as between the parties, at AppDrive’s discretion.
Advertiser hereby grants to AppDrive the worldwide, non-sublicenseable (except to the extent required by AppDrive to fulfill the purposes hereof), non-exclusive, royalty-free, fully paid up, right and license to use, serve, copy, reproduce, distribute and display, in any medium now known or hereafter developed, the advertisements and all related content, materials and metadata submitted by Advertiser to AppDrive (collectively, “Advertisement(s)”), along with the data referenced in Section 14 below.
3.1. Advertiser acknowledges the unique value of using the Advertising Service to access the various types of advertising placement inventory of publishers in the AppDrive network (the “AppDrive Publishers” or the “AppDrive Inventory”). To this end, Advertiser will not (a) modify or interfere with the Advertising Service, including systems for calculating conversions; or (b) knowingly bypass or circumvent the Advertising Service, including by engaging directly with such AppDrive Publishers to access their advertising inventory during the term of this Agreement. By way of example, and without limiting the generality of the foregoing, Advertiser shall not create or attempt to create a linking or other arrangement circumventing the Advertising Service such that AppDrive is unable to fully track and monitor the conversions and other events that are the basis for calculating the payments owed by Advertiser to AppDrive. For all pay-per-install campaigns, Advertiser must ensure that its systems promptly notify AppDrive the first time the relevant application is installed and opened.
3.2. Advertiser acknowledges that the Advertising Service is not available to entities that run, provide, enable or promote similar advertising services, whether for themselves or for others. Advertiser represents, warrants and covenants that it is not such an entity and that it shall not act, directly or indirectly, on its own behalf or on behalf of a third party, in such a capacity during the term of this Agreement.
4.1 Advertiser will pay AppDrive for all conversions generated during each advertising campaign, whether or not Advertiser has reported such transactions to AppDrive. AppDrive’s system will be the exclusive system of record for all reporting and calculations. For purposes of calculating such conversions, AppDrive shall measure the period of the applicable campaign plus the following time periods thereafter: (a) forty-eight (48) hours for campaigns using cost per install (“CPI”) and cost per engagement (“CPE”) measurements; (b) seven (7) days for video to install campaigns; and (c) an unlimited period of time for campaigns using cost per action other than install (“CPA”) measurements (collectively the “Post Campaign Conversion Period(s)”). Notwithstanding the foregoing, if AppDrive’s customer service department subsequently determines a conversion to have occurred, such conversion shall also be included within the Post Campaign Conversion Period, regardless of when such determination is made or when a user claim is made with respect to such conversion(s). Advertiser will pay AppDrive amounts based on AppDrive’s invoice. Payments are due ten (10) days after receipt of invoice. Without waiver to such payment obligation, if Advertiser, in good faith, disputes any amount due, then Advertiser shall provide notice to AppDrive within ten (10) days of the invoice date. Advertiser acknowledges and agrees that failure to notify AppDrive of disputed amounts within said 10-day time period shall be deemed acceptance of the applicable invoice and waiver of any right to dispute the invoiced amount. AppDrive reserves the right to charge, and Advertiser agrees to pay, interest on amounts due but not paid in the time frame set forth above an amount equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by applicable law. Any pre-paid account balances are non-refundable and will be reduced to offset amounts owed as they are incurred, and Advertiser hereby consents to such right of offset. For all other amounts requiring adjustments, in lieu of cash payments, AppDrive reserves the right to offer marketing credits in the form of non-monetizable and non-transferable credits issued for promotion through the Advertising Service. Such credits, if any, shall be Advertiser’s sole and exclusive remedy regarding any claim asserting non-fulfillment, in whole or in part, of an Insertion Order. All billing and transaction times referenced in the Agreement are on Coordinated Universal Time. All amounts shall be invoiced and paid in United States dollars and do not include taxes that may be assessed by any jurisdiction or transmission fees that may be assessed by Advertiser’s banking institution, each of which shall be Advertiser’s sole responsibility. If withholding taxes or other taxes are imposed by any jurisdiction on the transactions made pursuant to this Agreement, Advertiser will promptly pay such taxes to ensure that AppDrive receives the full amount invoiced to Advertiser without offset or deduction. Upon payment of such taxes, Advertiser will furnish to AppDrive the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable and in any case within five (5) business days of written request.
4.2. Advertiser shall provide AppDrive with all reporting required in order to satisfy the requirements of the Advertising Service, including reporting used to calculate sums owed to AppDrive. To this end, Advertiser shall use all tracking and other technology reasonably required by AppDrive including, as applicable, the AppDrive SDK or a third party SDK approved by AppDrive. If a third party SDK or other technology is used, then Advertiser shall provide AppDrive with all information necessary in order for AppDrive to access applicable data made available therefrom, including any username and password. Except where otherwise provided through the aforementioned technology, such reporting shall be sent to Advertiser’s account manager at AppDrive or to firstname.lastname@example.org.
AppDrive employs systems designed to detect and filter potentially fraudulent or invalid Advertisement conversion activity, but such systems cannot guarantee detection of all potentially suspect activity. Accordingly, Advertiser is responsible for identifying and reporting any such alleged activity to AppDrive as soon as possible and, in any case, within thirty (30) days from the date of receipt the applicable invoice. Advertiser shall timely notify AppDrive in writing of any such activity by emailing both Advertiser’s AppDrive account manager and also email@example.com.
Advertiser acknowledges and agrees that AppDrive is not responsible and has no liability whatsoever for the Advertisements or any content with which the Advertisements may be associated through Advertiser’s website or other properties, and that AppDrive has no obligation to monitor the foregoing. Advertiser is solely responsible (and assumes all liability and risk) for determining whether or not such content is appropriate or acceptable. Notwithstanding anything to the contrary stated in the Agreement, AppDrive reserves the right at its discretion and without notice, to remove or refuse to distribute any Advertisement through the Advertising Service or any content associated therewith.
Advertiser represents, warrants, and covenants that it will use the Advertising Service and provide Advertisements in compliance with all applicable local, state, national and international laws, rules and regulations, including the CAN-SPAM Act of 2003 and any laws regarding the transfer or transmission of data to the United States. Advertiser will not, will not agree to, and will not permit, authorize, or encourage any third party to: (a) use the Advertising Service to transmit or otherwise distribute any Advertisement or content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by AppDrive; (b) interfere or attempt to interfere with the proper working of the Advertising Service or prevent others from accessing or using the Advertising Service; or otherwise (c) use the Advertising Service in a manner not expressly authorized hereunder or for any fraudulent or unlawful purpose. Breach or violation of any of the foregoing may result in immediate termination of this Agreement, at AppDrive’s sole discretion, and may subject Advertiser to state and federal penalties and other legal consequences. Advertiser will promptly notify AppDrive in writing if it learns of any potential breach of any of subparts (a) through (c) or of any potentially fraudulent or abusive activity. Without waiver of Advertiser’s obligations, AppDrive reserves the right, without obligation, to review the Advertisements and Advertiser’s use of the Advertising Service in order to determine whether a breach of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
Without limiting any other representation, warranty, or covenant of either party herein, each party hereby represents, warrants and covenants to the other that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations. Without limiting any other representation, warranty or covenant herein, Advertiser hereby represents and warrants that (i) it has the right to grant the rights granted herein; (ii) no Advertisement contains any material that infringes upon or violates any third-party right, including rights arising from contracts between Advertiser and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person; (iii) no Advertisement provided by it contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Advertising Service, or intercept or expropriate any system data or personal information from the Advertising Service; (iv) no Advertisement will be directed to children under the age of 13; and (v) any Advertisements directed to children aged 13 and older will comply with the guidelines of the Children’s Advertising Review Unit, or the applicable local equivalent where the Advertisements will be displayed.
Each party will indemnify, defend and hold harmless the other and its affiliates and each of their respective officers, directors, employees, and agents from and against any losses, costs, liabilities, damages, claims and expenses, including reasonable attorneys’ fees, arising out of any breach of the representations, warranties and covenants made by such party herein. The indemnifying party reserves the right, at its expense, to assume the exclusive defense and control of any matter for which it is required to indemnify the indemnified party, and the indemnified party agrees to reasonably cooperate with the indemnifying party’s defense of such claims and shall have the right to participate with counsel of its own choosing at its own expense. The indemnifying party will not enter into any settlement of any claim without the prior written consent of the indemnified party, such consent not to be unreasonably withheld or conditioned.
10.1 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 ABOVE, APPDRIVE ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO ANY MATTER, INCLUDING BUT NOT LIMITED TO: ADVERTISING; THE ADVERTISING SERVICE; APPLICATION ADVERTISERS; APPLICATIONS, INCLUDING BUT NOT LIMITED TO APPLICATIONS IN THE APPDRIVE NETWORK AND ANY APPLICATION(S) IN WHICH ADVERTISEMENTS ARE PLACED; THE AppDrive SDK; AND ANY OTHER AppDrive PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR UNINTERRUPTED OR ERROR-FREE SERVICE. AppDrive MAKES NO GUARANTEE REGARDING THE VOLUME OR TIMING OF ACTIONS IN CONNECTION WITH THE ADVERTISING SERVICE. APPDRIVE DOES NOT WARRANT THE RESULTS OF USE OF THE ADVERTISING SERVICE, INCLUDING THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND ADVERTISER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPDRIVE DISCLAIMS ALL GUARANTEES REGARDING POSITIONING, RANKING, RATING, LEVELS, OR TIMING OF: (A) ADVERTISEMENTS’ DELIVERY ON SPECIFIC PUBLISHERS’ INVENTORY; OR (B) CLICKS, CONVERSION RATES, OR OTHER USER ACTIONS. ADVERTISER ACKNOWLEDGES THAT THE ADVERTISING SERVICE IS BASED, IN WHOLE OR IN PART, ON AN AUCTION MODEL, AND CONSEQUENTLY VOLUMES VARY BASED ON PRICE, CONVERSION RATES, AND OTHER FACTORS THAT MAY NOT BE WITHIN APPDRIVE’S CONTROL.
10.2 Advertiser acknowledges and agree that AppDrive is not affiliated with or responsible for any third-party products or services displayed, distributed or otherwise promoted in connection with the AppDrive Advertiser Services, including without limitation, the Advertisements. AppDrive neither represents nor endorses the quality, accuracy, reliability, integrity or legality of any third party products or services, nor the truth or accuracy of the description of any Advertisements, links, content, advice, opinions, offers, proposals, statements, data or other information from any third party products or services that are displayed, distributed or otherwise used in connection with the AppDrive Advertiser Services.
UNDER NO CIRCUMSTANCES WILL APPDRIVE OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, DATA OR BUSINESS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, WARRANTY OR OTHERWISE), EVEN IF SUCH PARTY OR SUCH PARTY’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL APPDRIVE’S OR ITS AFFILIATES’ TOTAL LIABILITY TO ADVERTISER OR TO ANY OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY APPDRIVE FROM ADVERTISER FOR THE INSERTION ORDER TO WHICH THE CLAIM RELATES IN THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD. ADVERTISER SHALL NOT, AND HEREBY WAIVES THE RIGHT TO, COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST AppDrive MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM FIRST AROSE.
12.1 As between the parties, AppDrive owns and will retain all rights, title, and interest in and to the Advertising Service, including all software and data related thereto. Advertiser acknowledges that such software and data (including any usage data or compilations thereof but expressly not including any user information submitted to Advertiser through the Advertising Service) are copyrighted by AppDrive and may contain trade secrets or other intellectual property owned by AppDrive. Advertiser will not copy, alter, modify, or create derivative works of the Advertising Service or otherwise use the Advertising Service in any way that violates the restrictions contained in this Agreement. For the avoidance of doubt, AppDrive does not grant to Advertiser any license, express or implied, to the intellectual property of AppDrive or its licensors.
13.1 “Confidential Information” means any information designated in writing, or identified orally at the time of disclosure, by the disclosing party as “confidential” or “proprietary.” For the avoidance of doubt, the Advertisements, prior to publication, are Advertiser’s Confidential Information; and the existence or content of the Agreement, as well as all statistics or other data relating to the Advertising Service, are AppDrive’s Confidential Information. During the term of this Agreement, and for a period of two (2) years following termination, subject to the terms of Section 14 (“Data”) below, each party will keep confidential, and neither party will use or disclose, Confidential Information of the other party, except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without use of or access to the other party’s Confidential Information and without any breach of any this Agreement; (b) is or has become publicly known through no breach of this Section 13 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure and unencumbered by any duty to confidentiality; or (d) has been approved for release in writing by the disclosing party. Disclosure of Confidential Information that is required by a competent legal or governmental authority to be disclosed shall not constitute a breach of this Section 13, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure.
13.2 AppDrive reserves the right to access, read, preserve and disclose any information, including Confidential Information, as it reasonably believes is necessary to
(a) satisfy any applicable law, regulation, legal process or governmental request;
(b) enforce this Agreement, including investigation of potential violations hereof;
(c) detect, prevent, or otherwise address fraud, security, or technical issues;
(d) respond to user support requests; or
(e) protect the rights, property or safety of AppDrive, its users and the public.
15.1 The term shall commence on the earlier of the acceptance of these Terms and Conditions and continue until either party terminates this Agreement as set forth herein. AppDrive may terminate this Agreement immediately upon written notice to Advertiser. Advertiser may terminate this Agreement upon fifteen (15) days prior written notice to AppDrive. For the avoidance of doubt, the termination of this Agreement shall also terminate any outstanding IO’s between the parties.
15.2 In the event of any termination, Advertiser will remain liable for any and all amounts due under the Agreement through the effective date of termination and, in the case of Post Campaign Conversions, whenever such conversions arise, and such obligation to pay shall survive any termination of this Agreement.
15.3 The following sections of these Terms and Conditions shall survive expiration or termination of the Agreement for any reason: 2, 4.1, 5-14, 15.2, 15.3, 16-20.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S., without giving effect to principles of conflicts of law.
17.1 Informal Resolution. In the event of a dispute, claim, or controversy arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the AppDrive Advertiser Services, any person’s or entity’s access to and/or use of the AppDrive Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the AppDrive Advertiser Services, AppDrive or you must first give the other notice of the dispute, claim, or controversy, and the notice must include a brief written statement that sets forth the name, address, and contact information of the party giving it, as well as the facts giving rise to the dispute, claim, or controversy and the relief requested. Notices must be made in accordance with Section 19 hereof. AppDrive and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. AppDrive and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, AppDrive or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the AppDrive Advertiser Services. Nothing in this subsection 17.1 limits AppDrive’s ability to suspend the Advertiser Services in the event of Problem Events.
17.2 Formal Resolution by Arbitration. Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between AppDrive and you arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the AppDrive Advertiser Services, any person’s or entity’s access to and/or use of the AppDrive Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the AppDrive Advertiser Services, if unresolved through informal discussions within thirty (30) days of the sending of the notice described above, shall be resolved by binding arbitration to be held in San Francisco, California, U.S. The arbitration shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms of Service, and administered by JAMS. The JAMS Rules and fee information are available at www.jamsadr.org or at such other URL as JAMS may provide from time to time, or by calling JAMS at + 1-800-352-5267. The decision of the arbitrator will be in writing and binding and conclusive on AppDrive and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. AppDrive and you agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator must follow these Terms of Service and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. AppDrive and you understand that, absent this mandatory arbitration provision, AppDrive and you would have the right to sue in court and have a jury trial. AppDrive and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
17.3 Exceptions. Notwithstanding the foregoing, disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, Confidential Information, and trade secrets and claims of piracy or unauthorized use of the AppDrive Advertiser Services shall not be subject to arbitration. You or AppDrive may choose to pursue a claim in small claims court where jurisdiction and venue over you and AppDrive otherwise qualify for such small claims court and where the claim does not include a request for any type of equitable relief. If for any reason a claim, dispute or controversy between AppDrive and you is before a court (e.g., if the arbitration provisions are found unenforceable or if pursuant to these Terms of Service the matter is not subject to arbitration), AppDrive and you agree to exclusive personal jurisdiction and venue in the state and federal courts located in San Francisco, California and agree to waive, to the fullest extent allowed by law, any trial by jury.
17.4 Applicability. This Section 17 will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of AppDrive, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (including with respect to their validity or enforceability), the AppDrive Advertiser Services, any person’s or entity’s access to and/or use of the AppDrive Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the AppDrive Advertiser Services.
All comments, feedback or materials submitted by Advertiser to AppDrive including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by AppDrive on a non-confidential and unrestricted basis. AppDrive will be free to use, display, perform, distribute, copy, adapt, and promote, in any medium now known or later developed, without compensation to Advertiser, the Feedback along with all ideas, concepts, know-how, techniques or methodologies contained in such Feedback, for any purpose whatsoever, including without limitation, developing, marketing and selling products and services incorporating such Feedback. Advertiser agrees that, in submitting Feedback, it will not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity. Advertiser further agrees that no Feedback Advertiser submits will be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of “spam.”
Any notice provided pursuant to the Agreement shall be provided in accordance with this Section 19. Notices to Advertiser shall be sent by email to the address provided for Advertiser in the AppDrive Dashboard or in the then most current Insertion Order. Notices to AppDrive shall be sent by email to Advertiser’s AppDrive account manager, with a copy to firstname.lastname@example.org Notwithstanding the foregoing, any notice concerning termination, breach, indemnification or other legal matters shall also concurrently be sent by overnight courier or by prepaid, U.S. certified mail, return receipt requested, to AppDrive at: AppDrive, Inc., 111 Sutter Street, 12th Floor, San Francisco, CA 94104 USA, Attn: Legal Department.
The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” The Agreement, and any rights and licenses granted hereunder, may not be transferred, or assigned by Advertiser without AppDrive’s prior written consent, provided, however, that Advertiser may assign the Agreement without such consent to any entity (provided that it is not a competitor of AppDrive) in connection with the merger, consolidation, sale of all or substantially all of its assets, or any other transaction in which more than fifty percent (50%) of Advertiser’s voting securities are transferred. AppDrive may freely transfer or assign any or all of its rights and obligations associated with this Agreement at any time. This Agreement shall inure to the benefit of and be binding upon each party’s respective successors and assigns. AppDrive and Advertiser are independent contractors, and neither AppDrive nor Advertiser is an agent, representative or partner of the other. This Agreement sets forth the entire agreement between AppDrive and Advertiser, and supersedes any and all prior and concurrent agreements (whether written or oral) with respect to the subject matter hereof. In the event of any conflict or inconsistency between an applicable Insertion Order and these Terms and Conditions, the terms of the Insertion Order shall govern and control. The terms of any Insertion Order may only be modified upon mutual written agreement of the parties executed by representatives of each party, respectively; provided, however, that certain IO modifications, including modifications to bid price and campaign dates, shall be deemed effective upon email confirmation by Advertiser to AppDrive. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Neither party shall be responsible for failure to perform any obligations hereunder (other than the obligation to pay amounts due) due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as possible after the cause no longer prevents performance. The use of headings herein is for convenience only and shall not be used to interpret this Agreement.
All Rights Reserved © 2016, Appdrive.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, AppDrive and Publisher hereby agree as follows:
Capitalized terms not otherwise defined herein shall have the meanings set forth below:
2.1 Order Summary. Publisher may engage one or more of the AppDrive Publisher Services defined through Publisher’s Account Configuration. Where applicable, AppDrive will provide Publisher with an Order Summary for the relevant AppDrive Publisher Service.
2.2 Service Types.
3.1 Access and Use. AppDrive will provide Publisher with the ability to create a password-protected account (“Publisher Account”) in order to use the AppDrive Publisher Services. Access to each Publisher Account is provided only to that Publisher, and Publisher is strictly prohibited from providing access to the Publisher Account to any third party. As between the parties, Publisher is at all times responsible for maintaining the strict confidentiality of the Publisher password and is responsible for any access to or use of Publisher Account, including any fees, costs, or expenses incurred or accumulated as a result of such use, by Publisher or by any other person or entity using the Publisher password, whether or not such access or use has been authorized by or on behalf of Publisher, and whether or not such person or entity is Publisher’s employee or agent. Publisher agrees to (a) notify AppDrive immediately of any unauthorized use of the Publisher password or Publisher Account or any other breach of security; and (b) ensure that Publisher (or the Publisher employee, as applicable) exits from the Publisher Account at the end of each session. AppDrive is not responsible or liable for, and Publisher hereby waives any claim against AppDrive in connection with, any loss or damage arising from Publisher’s failure to comply with this Section 3.1.
3.2 Ad Monetization Services; Additional Services.
3.3 Analytics Services.
3.4 Exchange Services
The following obligations will apply in addition to the obligations set forth in Section 3.2 above.
3.5 General Requirements and Restrictions.
AppDrive reserves the right, in its sole discretion, to reject or remove any Application and to restrict, suspend, or terminate Publisher’s access to the AppDrive Publisher Services at any time, for any or no reason, with or without prior notice, and without liability.
6.2 Ad Monetization Services.
AppDrive may suspend or terminate this Agreement or any portion hereof, or any Order Summary or amendment, or any portion thereof, at any time for any reason or for no reason without notice to Publisher. Publisher may terminate this Agreement at any time for any reason or for no reason upon at least thirty (30) days’ prior written notice to AppDrive. Upon termination of this Agreement, each party will remain liable to the other for any amounts due and owing to the other party as of the date of termination, and such obligation to pay shall survive the termination of this Agreement. Upon any termination of this Agreement, Publisher will cease distribution of any Application that incorporates the SDK and certify thereto in writing to AppDrive within five (5) business days of such termination.
Publisher hereby grants to AppDrive a royalty-free, fully paid up, sub-licensable, transferable, nonexclusive, worldwide, irrevocable and perpetual license to reproduce, display, distribute, and otherwise use, in connection with the AppDrive Publisher Services, the trademarks, service marks, logos or other indicia of origin associated with Publisher and its Application(s), for the purpose of promoting Publisher and its Application(s) in AppDrive’s advertising, marketing, promotions and promotional materials.
In addition to the representations, warranties and covenants made under other sections of this Agreement, Publisher further represents, warrants and covenants that: (a) Publisher is the owner or legally authorized to act on behalf of the owner of each Application for which Publisher engages any AppDrive Publisher Service; (b) Publisher has and will maintain all necessary rights, power, licenses and authority to enter into this Agreement and to perform the acts required of Publisher hereunder and to permit AppDrive to perform its obligations contemplated under this Agreement; (c) the Applications, including software, documentation and other information related thereto, are in compliance with the Guidelines and do not infringe the intellectual property rights, privacy rights or other rights of any person or entity; (d) Publisher has complied, and will continue to comply, with all applicable laws, statutes, ordinances, and regulations (including but not limited to, any relevant data protection or privacy laws); (e) Publisher will obtain and comply with any and all applicable consents, authorizations and clearances from Users to allow AppDrive to collect, store, and use User Data; and (f) Publisher will at all times comply with the terms of this Agreement (including but not limited to these Terms of Service and the terms of an applicable Order Summary or amendment for the applicable AppDrive Publisher Services), all AppDrive policies, the Guidelines, and any other Terms of Service provided by AppDrive in connection with any one or more of the AppDrive Publisher Services, or any amendments to the foregoing, and with the applicable laws, regulations and rules of all applicable countries and other jurisdictions.
14.1 APPDRIVE, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THE APPDRIVE PLATFORM, INCLUDING THE APPDRIVE PUBLISHER SERVICES, THE CONTENT, FUNCTIONALITY OR PERFORMANCE OF ANY OF THE APPDRIVE PUBLISHER SERVICES, THE SDK, ANY ADVERTISEMENT OR ANY APPLICATION, AND ANY OTHER APPDRIVE PRODUCTS OR SERVICES TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE APPDRIVE PLATFORM AND ALL APPDRIVE PUBLISHER SERVICES AND SDK ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, APPDRIVE DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT THE APPDRIVE PLATFORM OR THE AppDrive PUBLISHER SERVICES OR SDK ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR VIRUS-FREE OR THAT THE OPERATION OF THE APPDRIVE PUBLISHER SERVICES OR SDK WILL BE UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO PUBLISHER. APPDRIVE DOES NOT WARRANT OR GUARANTEE: (A) THE RESULTS OF USE OF THE APPDRIVE PUBLISHER SERVICES INCLUDING THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL); (B) THE RESULTS OF ANY CONSULTING, DEVELOPMENT, OR OTHER SERVICES PROVIDED BY APPDRIVE; OR (C) THE ACCURACY OR COMPLETENESS OF THE REPORTS. Without limiting the generality of the foregoing, Publisher acknowledges that some of the AppDrive Publisher Services are based, in whole or in part, on an auction model and some of the main factors that determine the revenue therefrom are not within AppDrive’s control.
14.2 Publisher acknowledges and agrees that AppDrive is not affiliated with or responsible for any third-party products or services displayed, distributed or otherwise promoted in connection with the AppDrive Publisher Services, including without limitation, the Advertisements. AppDrive neither represents nor endorses the quality, accuracy, reliability, integrity or legality of any third party products or services, nor the truth or accuracy of the description of any Advertisements, links, content, advice, opinions, offers, proposals, statements, data or other information from any third party products or services that are displayed, distributed or otherwise used in connection with the AppDrive Publisher Services.
NOTHING IN THESE TERMS AND CONDITIONS SHALL LIMIT OR EXCLUDE APPDRIVE’S LIABILITY FOR:
(A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS OR SUB-CONTRACTORS; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. IN NO EVENT WILL AppDrive, ITS PARENT, SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTRACTORS (COLLECTIVELY, THE “APPDRIVE PARTIES”), BE LIABLE TO PUBLISHER OR ANY OTHER PERSON OR ENTITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF APPDRIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE APPDRIVE PARTIES’ AGGREGATE LIABILITY IN RESPECT OF ALL OTHER LOSSES ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100) USD. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE AppDrive PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE APPDRIVE PUBLISHER SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS, AND PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN ARE FAIR AND REASONABLE AND WILL SURVIVE EVEN IF THE APPDRIVE PUBLISHER SERVICES, THIS AGREEMENT, ANY APPLICABLE ORDER SUMMARY OR AMENDMENT, OR ANY ELEMENT THEREOF IS FOUND TO HAVE FAILED IN ITS OR THEIR ESSENTIAL PURPOSE. PUBLISHER ACKNOWLEDGES AND AGREES THAT ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE RAISED WITHIN 12 MONTHS FROM THE DATE OF ACCRUAL THEREOF OR SUCH CLAIM SHALL BE FOREVER WAIVED. IF PUBLISHER IS DISSATISFIED WITH ANY ASPECT OF THE AppDrive PUBLISHER SERVICES OR THIS AGREEMENT AT ANY TIME, PUBLISHER’S SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE APPDRIVE PUBLISHER SERVICES.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S., without giving effect to principles of conflicts of law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. AppDrive and you (Publisher) agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation of these arbitration provisions.
All comments, feedback or materials submitted by Publisher to AppDrive including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by AppDrive on a non-confidential and unrestricted basis. AppDrive will be free to use, display, perform, distribute, copy, adapt, and promote, in any medium now known or later developed, without compensation to Publisher, the Feedback along with all ideas, concepts, know-how, techniques or methodologies contained in such Feedback, for any purpose whatsoever, including without limitation, developing, marketing and selling products and services incorporating such Feedback. Publisher agrees that, in submitting Feedback, it will not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity. Publisher further agrees that no Feedback Publisher submits will be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of “spam”.
Notices to Publisher shall be sent by email to the address provided for Publisher in the Account Configuration. Notices to AppDrive shall be sent by email to email@example.com provided, however, that any notice concerning termination, breach, indemnification or any other legal concern (collectively, “Legal Notice”) shall be made in writing and delivered by hand delivery, or by internationally recognized overnight courier service, or by prepaid, certified U.S. mail return receipt requested to: AppDrive, Inc., 111 Sutter Street, 12th Floor, San Francisco, CA 94104, USA, Attn: Legal Department. Notices shall be effective upon receipt; provided that notices sent by email shall be effective as of the email date absent receipt by the sender of a bounce back or error message, and provided further that Legal Notices shall be effective only if made and delivered in the manner expressly set forth above.
The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” This Agreement sets forth the entire agreement between AppDrive and Publisher, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned without AppDrive’s prior written consent, and any attempt to do so in breach of the foregoing will be null and void. This Agreement shall inure to the benefit of and be binding upon each party’s respective successors and assigns. AppDrive and Publisher are independent contractors, and neither AppDrive nor Publisher is an agent, representative or partner of the other. AppDrive may amend or update these Terms of Service at any time in its sole discretion by posting any such amended or updated Terms of Service to AppDrive’s website or otherwise notifying Publisher. Publisher’s continued use of the AppDrive Publisher Services following such posting or notice of amended and/or updated Terms of Service shall constitute Publisher’s acceptance of the amended and/or updated Terms of Service. AppDrive reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the AppDrive Publisher Services without notice. AppDrive will not be liable to Publisher or to any third party for any modification, suspension, or discontinuance of all or any portion of the AppDrive Publisher Services. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions will remain in full force and effect. In case of any conflict or inconsistency among these Terms of Service, the terms contained in an applicable Order Summary, any amendment to the Terms of Service or Order Summary, or the Guidelines, the terms of the applicable amendment shall govern and control, followed in precedence by the applicable Order Summary, these Terms of Service, and followed then by the Guidelines. Any preprinted terms on any other transactional or other document issued in connection herewith (including, without limitation, purchase orders, RFPs, bills of lading, etc.) are per se null and void and of no force or effect. The following sections of these Terms of Service shall survive expiration or termination of this Agreement: Sections 3.5, 4, 5, 6 (with respect to any payment obligations existing as of the effective date of termination or expiration), and Sections 7 through 20. Neither party shall be responsible for failure to perform hereunder due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as commercially practicable after the cause no longer prevents performance. The use of headings herein is for convenience only and is not intended as nor shall it be used as an aid to interpretation.
AppDrive Publisher Terms of Service updated February 16, 2016.