USER AGREEMENT BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING, OR INSTALLING ANY PART OF THE SERVICE DESCRIBED HEREIN, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED AND USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICES DESCRIBED IN THIS AGREEMENT.
- Publisher means mobile app developer or mobile app owner that desire to distribute advertisements to users of their mobile app. Publishers may not be non-business consumers.
- Advertiser means company, advertising agency or broker that desires to have advertisements distributed through mobile apps.
- User means either an Advertiser or a Publisher.
- The Company means The Company that provides the Services described below
- Services means the facilitating of purchase and sale of mobile advertisements between Publishers and Advertisers and other services provided to Users by The Company as described below and on the Website.
- Website means The Company's internet website and links located at: www.adviator.com
- Services for Advertisers. Subject to full and timely compliance of this Agreement, including the payment of all fees, The Company allows Advertisers to upload content, including but not limited to text ads, text links, banners, videos, and graphics ("Advertisements" or "Advertiser Works") for display on a Publisher's mobile app. Each Work is uploaded and licensed independently. Advertiser shall be solely responsible for providing, updating, and uploading the Advertiser Works.
- Services for Publishers. Subject to full and timely compliance with this Agreement, The Company allows Publishers to run Advertiser Works via Publisher's mobile app and Publisher hereby grants The Company the right to access, index, store and cache requests made from Publisher's app to The Company, including by automated means. Advertiser Works may be delivered to the notification tray of phones or by other means as indicated on the Website.
- Availability of Services. Subject to the terms and conditions of this Agreement, The Company shall attempt to provide the Services for twenty-four (24) hours a day, seven (7) days a week. User agrees that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which The Company may undertake from time to time; or (iii) causes beyond the control of The Company or which are not reasonably foreseeable by The Company , including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. Notwithstanding the foregoing, User agrees that has no control of availability of Services on a continuous or uninterrupted basis and The Company shall have no liability for tailing to maintain service availability.
- The Company Materials. In connection with performance of the Services and at the sole discretion of The Company with no obligation to The Company , The Company may provide to User certain materials, including, without limitation, modifications to Advertiser Works, JAR/JAD software development kit ("SDK") files, computer software (in object code or source code form), data, documentation or information developed or provided by The Company or its suppliers under this Agreement, domain names, electronic mail addresses and other network addresses assigned to User, and other know-how, methodologies, equipment, and processes used by The Company to provide the Services to User ("The Company Materials").
User must register as either a Advertiser or Publisher to create an The Company account ("Account"). During the registration process, User agrees to provide true, current and complete information. If User provides information that is, or The Company believes is, untrue or inaccurate, The Company may suspend or terminate a User's account. User may not select a password or user name that violates the Rules of Conduct policy described in this Agreement. User agrees that The Company shall communicate with User using the e-mail address supplied by the User at registration or as updated by User, from time to time, as provided on the Website.
Licenses and Proprietary Rights
- License of Advertiser Works Advertiser hereby grants to The Company and Publisher, and The Company and Publisher accepts from Advertiser, a nonexclusive, worldwide and royalty free license to copy, display, distribute, create derivative works, use and transmit works on and via the Internet the Advertiser Works in connection with The Company 's performance or enforcement of this Agreement or Publisher's performance of this Agreement. Advertiser specifically authorizes The Company to catalog, describe, add meta data, staff reviews, quality scores, or perform such other activities with or to the Work, in order to offer the Work to Publishers.
- The Company Proprietary Rights. The Company shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the The Company Materials and all legally protectable elements, derivative works, modifications and enhancements thereto, whether or not developed in conjunction with Advertiser, and whether or not developed by The Company, Advertiser or any contractor, subcontractor or agent for The Company or Advertiser.
Website and Services Terms and Limitations
- Passwords. If User's password is lost, stolen or otherwise compromised, User shall promptly notify The Company, whereupon The Company shall suspend access to the Services by use of such password and issue a replacement password to User's authorized representative.
- Rules of Conduct. User is solely responsible for all acts, omissions and use under and charges incurred with User's account or password or in connection with the Website or any Advertiser Works displayed, linked, transmitted through or stored on the Website. In addition to Content Guidelines and other rules posted on the Website, User agrees not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, racist, vulgar, threatening or malicious; (iii) disseminate or transmit Advertiser Works, content films, files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which User does not have authorization to access or at a level exceeding User's authorization; (vii) disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program; (viii) engage in any other activity deemed by The Company to be in conflict with the spirit or intent of this Agreement or any The Company policy; (ix) run mail list, list serve, any form auto-responder, or "spam" on the website or services, or processes that run or are activated while user is not logged in; (x) engage in, authorize or encourage any third party to generate fraudulent impressions or fraudulent clicks on any advertisement, including but not limited to, through repeated manual clicks, the use of robots or automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software.
- Rights of The Company. User agrees that The Company may, in its sole discretion, remove or disable access to all or any portion of the Website or Advertiser Works stored on the Website at any time and for any reason. The Company has no obligation to monitor the Website or any Advertiser Works, but reserves the right in its sole discretion to do so.
Unless otherwise provided on the Website or agreed to in writing by User and The Company, The Company will post on the Website the fees for Services and associated payment terms. The Company may change the fees and/or post new fees from time to time. If User is an Advertiser, all fees must be prepaid.
1. Advertiser Payment Terms.
Advertisers must maintain a positive cash account balance in the Advertiser's Account in order to initiate and maintain an advertising campaign ("Campaign"). Advertiser's Account may be funded via credit card, check, wire transfer or Automated Clearing House ("ACH"). The Company reserves the right to restrict access of any aforementioned payment method to an Advertiser, or place limits on use of a payment method. Specific instructions as to how to fund Advertiser's Account via check, wire transfer or ACH will be provided by advertiser's account manager at the request of Advertiser. The minimum starting balance for new accounts is US$500. Program charges will be automatically credited against Advertiser's Account balance until the balance is exhausted. If Advertiser's Account balance goes to zero, Advertiser's participation, including the continuation of any ongoing campaign, will be paused without notice. Advertiser may at any time replenish or add to Advertiser's Account balance in prepayment blocks of at least US$100. An auto-funding credit card option is available to eligible Advertisers which allows them to automatically maintain their account balances at specified levels. To fund Advertiser's Account via credit card, Advertiser is required to provide Company with (1) a signed credit card authorization form in the form provided by Company; (2) a copy of a government issued photo identification (passport for non US residents), and (3) a copy of Advertiser's credit card (front and back). These documents may be delivered via email to email@example.com. Individual credit card transactions may not exceed US$10,000 (US$5,000 for international accounts) per transaction or US$150,000 (US$75,000 for international accounts) per calendar month. Funding in excess of the foregoing amounts must be remitted via wire transfer, check, or ACH. Advertiser agrees that under no circumstances will Advertiser rescind or "charge back" payments (and any associated taxes or other charges) made to Company via credit card. Advertiser may check Advertiser's Account balance at any time via the Site. Campaign charges are generally posted to Advertiser's Account within 24 hours following the delivery of an Advertisement. Program fees do not include any applicable taxes, duties or other governmental charges, all of which shall be Advertiser's responsibility. The Company may modify its fee structure including then-current minimum bid levels at any time with prior notice to Advertiser which notice shall be communicated either through a posting on The Company website or via email. To pause account charges, Advertiser must log on to the Site and follow account pause procedures. Advertiser understands and agrees that unless and until Advertiser has completed the procedures to pause or terminate (as applicable) Advertiser's Account, Advertiser will be responsible for all charges incurred. Advertiser will also be responsible for all reasonable expenses (including attorneys' fees) incurred by Company in collecting delinquent, withheld or rescinded amounts. Advertiser will be charged and agrees to pay for each Served Advertisement pursuant to the terms of Advertiser's Campaign. If Advertiser or The Company pauses or terminates any Campaign pursuant to this Agreement, Advertiser will also be charged and agrees to pay for charges incurred during the time period (up to a maximum of twenty-four hours) during which it takes to pause or terminate such Campaign. . If you have chosen a Payment Plan providing for a daily budgeted delivery charge for a given campaign, Advertiser agrees that up to the limit of the account balance in excess of your stated cap, The Company may charge you for such overage provided that The Company has actually delivered the requisite clicks for which it delivered. The Company will not charge above your stated account balance, regardless of how many clicks The Company actually delivers in excess of your daily budgeted cap. Advertiser understands and agrees that all Program charges will be calculated solely based upon The Company records. No other measurements or statistics of any kind shall be accepted by The Company or have any effect under this Agreement. If Advertiser disputes any charge made under the Program, Advertiser must notify The Company in writing within fifteen (15) days of any such charge; failure to so notify The Company shall be deemed a waiver by Advertiser of any claim relating to the disputed charge. Advertiser further understands and agrees that Advertiser will be responsible for the payment of any amounts due hereunder whether or not Advertiser is paid by the third party(ies), if any, on behalf of whom Advertiser is creating, delivering, disclosing or distributing one or more Advertisements. IF ADVERTISER'S ACCOUNT IS INACTIVE FOR MORE THAN THREE (3) CONSECUTIVE MONTHS, ADVERTISER'S ACCOUNT WILL BE CLOSED AND ANY BALANCE THEREIN WILL BE FORFEITED UNLESS SUCH FORFEITURE IS WAIVED BY COMPANY, IN ITS SOLE DISCRETION.
2. Publisher Payment Terms.
Publishers shall receive a percentage of net revenue of Advertiser Works associated with User's use of the Services as solely determined by The Company. Unless otherwise posted on the Website or otherwise agreed to in writing between The Company and Publisher, net revenue shall include revenue actually received by The Company on account of Advertisements running on a Publisher's mobile app less any applicable taxes, commissions, carrier fees and other similar taxes, fees and expenses less any returns, credits or other similar allowances made by The Company to a particular Advertiser. User agrees that The Company shall have no liability whatsoever to pay the percentage of net revenue unless The Company receives full payment by the Advertiser. In addition, User agrees that there is no duty to pay a percentage of net revenue on any revenue received by The Company for any Services provided by The Company to Advertisers for consulting, ad lay-out, copy writing or any other similar services. The percentage of net income shall be payable on the first and fifteenth of every month on all balances which exceed ($40) forty dollars. All disputes by Publisher over any amounts paid must be made within (30) thirty days after The Company makes a payment for the applicable time period. The Company shall use its internal data to calculate the percentage of net revenue due to a Publisher and no other data shall be used or provided to Publisher. In addition, no net revenue shall be paid for use or data that is in breach of this Agreement.
Warranties and Disclaimers
- The Company Warranties and Disclaimers. User agrees that the Services and all content on the Website are provided "As Is" and without warranty. The Company may change, suspend or discontinue the Services (or User's access) at any time, including the availability of any feature, advertisement, publisher or content without notice or liability. The Company reserves the right, at its discretion, to refuse to allow access to the Services to any User at any time.
- User Agreements, Representations and Warranties. User represents and warrants to The Company that: (i) it is a business and not a consumer; (ii) User is over the age of eighteen (18) and has the power and authority to enter into and perform User's obligations under this Agreement; (iii) User shall comply with all terms and conditions of this Agreement, including, without limitation, the Rules of Conduct set forth at Section 6(c); (iv) User has provided and will continue to provide accurate and complete registration information to The Company; and (v) User is the authorized signatory of the credit or charge card provided to The Company to pay any fees described in this Agreement.
- Advertiser Warranties. Advertiser represents and warrants to The Company that: (i) Advertiser has the power and authority to enter into and perform its obligations under this Agreement; (ii) Advertiser Works does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Advertiser owns the appropriate rights to Advertiser Works and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use, distribute, create derivative works, publicly perform and display the Advertiser Works on and within the Website. In the event that an advertising agency is executing this Agreement on behalf of an Advertiser, such agency executing this Agreement as agent of the Advertiser shall, with such Advertiser, be jointly and severally liable for all covenants, representations and payment obligations made hereunder.
- Placement Disclaimer. Users hereby acknowledge that The Company cannot guarantee or control which Advertisements are placed on a Publisher's mobile app. The Company makes no representation or warranty regarding whether the advertisements or products or services described in the Advertisements contain information that may be offensive or inappropriate for a Publisher's app or the Publisher's app users. The Company is a hosting and conduit company only and is not responsible or liable for the accuracy of any content, copyright, legal compliance or decency of any content provided by or accessed through the services. The Company is not responsible for the use of any advertisement by a Publisher and does not guarantee the accuracy of any impressions, clicks, timing or delivery of any content, impressions or clicks.
- The Company Disclaimer of Warranties. The Company MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT CONCERNING ANY SUBJECT MATTER OF THIS AGREEMENT.
The Company Limitation of Liability
IN NO EVENT SHALL The Company BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY DAMAGES RELATING TO INFRINGEMENT OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF The Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Company 'S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500).
User agrees to indemnify, hold harmless and defend The Company and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney's fees and costs, arising from or relating to: (i) User's breach of this Agreement, (ii) any negligence or willful misconduct of User; (iii) any allegation that the Website or Advertiser Works infringes a third person's copyright, trademark or proprietary or intellectual property right, or misappropriates a third person's trade secrets due to an act or omission of User; or (iv) any action or conduct of The Company undertaken pursuant to this Agreement resulting in a third party claim against The Company and due to an act or omission of User. User agrees that The Company shall have the right to participate in the defense of any such claim through counsel of its own choosing.
Term and Termination
This Agreement may be terminated: (i) by User upon thirty (30) days written notice to The Company ; (ii) by The Company immediately upon notice to User; or (iii) by a written agreement executed by the parties. Notwithstanding the foregoing, The Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to suspend User's access to or use of the Website, Services or any portion thereof. If, upon termination of this Agreement, Advertiser has a positive balance in Advertiser's Account due to prior prepayments, Company shall refund to Advertiser the amount of such balance (after deducting Program fee charges and any other charges which may have been incurred prior to and through the effective date of termination). All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranties, disclaimers, and limitations of liability.
- Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- Assignment. User may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, and any attempt to do so shall be deemed void and/or a material breach of this Agreement. The Company may assign this agreement without notice.
- Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
- Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
- Notice. All notices shall be in writing and shall be deemed to be delivered when received by e-mail. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party.
- Amendment. The Company may amend this Agreement at any time. User agrees to review this Agreement prior to each use and by continuing use or continued use of the Services, agrees to any modifications made to this Agreement by The Company.
- Arbitration. The parties shall submit any dispute concerning the interpretation of or the enforcement of rights and duties under this Agreement to final and binding arbitration pursuant to the American Arbitration Association Commercial Arbitration Rules. Arbitration shall be conducted by a single, neutral arbitrator, acceptable to the parties. The arbitrator may award damages and/or permanent injunctive relief, but in no event shall the arbitrator have the authority to award punitive or exemplary damages. Notwithstanding the foregoing, a party may apply to a court of competent jurisdiction for relief in the form of a temporary restraining order or preliminary injunction, or other provisional remedy pending final determination of a claim through arbitration in accordance with this paragraph. If proper notice of any hearing has been given, the arbitrator will have full power to proceed to take evidence or to perform any other acts necessary to arbitrate the matter in the absence of any party who fails to appear.
- Law. User agrees that this Agreement has been made in the State of Colorado. This Agreement shall be governed in all respects by the laws of the State of Colorado without regard to its conflict of laws provisions. Venue for any dispute shall be the State of Colorado.
- Survival. The definitions of this Agreement and the respective rights and obligations of the parties under Sections 4, 6, 7, 8, 9, and 11 shall survive any termination or expiration of this Agreement.
- Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. In case of any discrepancy between this Agreement and the Website or Website links, this Agreement shall control the Website links and Website and the Website links shall control the Website.
User has read, understands and agrees to the Terms and Conditions of this Agreement