General Terms & Conditions

Terms & Conditions - Advertisers

Terms & Conditions - Publishers

General Terms & Conditions
Terms & Conditions - Advertisers
Terms & Conditions - Publishers

Thank you for visiting and using the website located at www.appnext.com (the "Website"), which is owned and operated by Appnext Ltd ("we", "us", "our" or "Appnext"). Your use and access of the Website is governed by and subject to the following agreements (collectively, the "Appnext Agreement(s)”), applicable to you and your use of Appnext's programs, as may be amended from time to time:

  • These terms of use ("General Terms of Use");
  • Our Privacy Policy, available here ("Privacy Policy");
  • If you are an advertiser ("Advertiser"), the Advertiser Terms, available here, to which you are a party;
  • If you are a developer ("Publisher") of mobile applications or websites ("Publisher Property"), the Publisher Terms, available here, to which you are a party.

If you do not agree to these General Terms of Use, the Privacy Policy and any of the Appnext Agreements that are Applicable to you, do not use the Website or any services offered through the Website. In all events, by entering accessing, browsing, submitting information to, or otherwise using this website, you agree to comply with and be bound by these General Terms of Use and the Privacy Policy.

Description of the services

Appnext offers an app discovery technology (the "Service") that connects Publishers and Advertisers via our online platform, and enables Advertisers to serve ads to the Publisher Properties based on specific user characteristics. Appnext does not develop any particular Publisher Property and is not responsible for the content, functionality or performance of any ad or Publisher Property. If you are a user, then you may encounter our Service when you download or visit a Publisher Property and one of our Advertisers requests that we serve ads to that Publisher Property.

Eligibility

You affirm that you are above eighteen (18) years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the General Terms of Use, and to abide by and comply with the General Terms of Use.

Member Accounts

If you are a Publisher or an Advertiser, you are required to create a password-protected account ("Account") in order to use certain features of the Website and the Service. You are responsible for maintaining the strict confidentiality of your password, and you shall be responsible for any access to or use of your Account, including any fees, costs, or expenses incurred or accumulated as a result of such use, by you or any person or entity using your password, whether or not such access or use has been authorized by or on behalf of you, and whether or not such person or entity is your employee or agent. You agree to (a) immediately notify Appnext of any unauthorized use of your password or Account or any other breach of security, and (b) ensure that you exit from your Account at the end of each session. It is your sole responsibility to protect your password, control access to and use of your Account, and notify Appnext when you desire to cancel your Account. Appnext will not be responsible or liable for, and you hereby waive any claim against Appnext in connection with, any loss or damage arising from your failure to comply with this provision.

Intellectual Property Ownership

Unless otherwise noted, all text, content, and documents made available via the Website or the Service, including any names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing via the Website or the Service, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works via the Website or the Service (the "Content") are owned by Appnext or used with permission or under license from a third party, and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between Appnext and you, all right, title and interest in and to the Content will at all times remain with Appnext and/or its respective licensors. All brand names, product names, titles, slogans, logos, or service names and other marks used via the Website or the Service, are registered and/or common law trade names, trademarks or service marks of Appnext.

Limited Use; Restrictions on Use

You are only permitted to use the Website and/or any services and products via the Website for lawful purposes as provided in the General Terms of Use and your applicable Appnext Agreement, depending upon whether you are an Advertiser or Publisher. Any other use or misuse of any Service is strictly prohibited. Appnext grants you a non-exclusive, limited, personal, non-transferable, revocable, license to access and use the Website and/or the Service, without right to sublicense, under the following conditions:

  • You shall not, without Appnext's express written consent: (a) copy, retransmit, modify, disseminate, display, perform, reuse, re-post, broadcast, circulate, or otherwise distribute the Website, Service or the Content, or modify or re-use all or any portion of the foregoing, (b) use any trade-name, trademark, or brand name of Appnext in meta-tags, keywords and/or hidden text, (c) create derivative works from or commercially exploit the Website, Service or the Content, in whole or in part, in any way, and (d) use the Website, Service or the Content, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to Appnext or any third party. Appnext reserves all other rights.
  • You shall not alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Website, Service or the Content. Except as expressly provided herein, nothing via the Service shall be construed as conferring any license under Appnext's and/or its licensors' intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Appnext may revoke any of the foregoing rights and/or your access to the Website and the Service, or any part thereof, including the blocking of your IP Address, at any time without prior notice.

Disclaimers

Without limiting the foregoing, the Website, Service and the Content and all other features via the foregoing are provided to you "AS IS" and "AS AVAILABLE" without warranty of any kind with respect to the Website and/or the Service and/or Content, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement. Should applicable law not permit the foregoing exclusion of express or implied warranties, then Appnext hereby grants the minimum express or implied warranty required by such applicable law. No advice or information, whether oral or written, obtained by you from Appnext, its employees, agents, suppliers or any other persons shall create any warranty, representation or guarantee not expressly stated in this section. Additionally, Appnext does not make any warranties that the Website and/or the Service will be uninterrupted, secure or error free or that your use of the Website and/or the Service will meet your expectations, or that the Website, the Service, the Content, or any portion thereof, is correct, accurate, or reliable. Appnext reserves the right to change any part of the Website at any time and without notice.

Limitation of Liability

Your use of this website is at your own risk. Neither Appnext or its affiliates, or any of its respective officers, directors, agents or other representatives will be liable for any damages, direct, indirect, incidental, consequential, special, or punitive, including, without limitation, loss of data, income, profit or goodwill, loss of or damage to property and claims of third parties arising out of your access to or use of this Website or arising out of any action taken in response to or as a result of any Content or other information available via this Website, however caused, whether based on breach of contract, tort (including negligence), proprietary rights infringement, product liability or otherwise. The foregoing shall apply even if Appnext was advised of the possibility of such damages. If you become dissatisfied in any way with the Website, the Service or any applicable Appnext Agreement, your sole and exclusive remedy is to stop your use of the this Website and Service. You hereby waive any and all claims against Appnext and its agents, representatives and licensors arising out of your use of the Website. Some states do not allow the disclaimer of implied warranties or the exclusion or limitation of certain types of damages; accordingly, these provisions may not apply to you. If any portion of this limitation on liability is found to be invalid or unenforceable for any reason, then the aggregate liability of Appnext and its affiliates shall not exceed one hundred dollars ($100.) The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk. The Website would not be provided without such limitations and you agree that the limitations and exclusions of liability, disclaimers and exclusive remedies specified herein will survive even if found to have failed in their essential purpose.

Digital Millennium Copyright Act

Appnext is committed to respecting and protecting the legal rights of copyright owners. As such, Appnext adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the Content on the Service or any advertisement made available via the Service infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a "DMCA Takedown Notice"). To be valid, a DMCA Takedown Notice must (a) be provided to Appnext's designated agent, ("Copyright Agent"), as set forth below, and (b) include the following: A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works; Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material; Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

Appnext's Copyright Agent to receive DMCA Takedown Notices is: support@appnext.com. For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted via the Service. You acknowledge that in order for Appnext to be authorized to remove or disable access to any Content, your DMCA Takedown Notice must comply with all of the requirements of this section.

No Crawling; Framing; Links; Third Party Sites

Crawling, scraping, indexing, framing, in-line linking or other methods of association with the Website, by any means, including accessing the Website by automated means (such as robots or spiders), are expressly prohibited without prior written approval from Appnext. Appnext may allow operators of public search engines to use spiders to index materials from the Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials.

Assignment

The General Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Appnext without restriction.

Choice of Law

By using the Website and/or the Service, you consent that to the application of the laws of the Cyprus with respect to any dispute arising from or related to the Privacy Policy and/or your use of the Website and the Service, and the exclusive jurisdiction of the courts located in the city of Limassol, Cyprus. You submit to the jurisdiction and venue of such courts and waive any objection based on inconvenient forum.

Modifications

From time to time, Appnext may revise these General Terms of Use. To help you stay current of any changes, Appnext notes the date the General Terms of Use was last updated above. Your use of the Website following the posting of any revised General Terms of Use shall be deemed acceptance of the revised policy. Appnext strongly recommends reviewing the General Terms of Use periodically.

Miscellaneous

Appnext's failure to enforce any provision of the General Terms of Use shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of the General Terms of Use is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the General Terms of Use shall continue in effect. A printed version of the General Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the General Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Last revised: 01/2/17

By participating in Appnext's advertising programs, or by executing an Insertion Order or other form that reference these terms, you hereby agree to the terms set forth herein, including any terms specified herein (the "Agreement"), as may be amended from time to time.

This Agreement is between you, as an individual or the entity you represent ("Advertiser"), and Appnext Ltd., a BVI company with its registered place of business at Intershore Chambers, Road Town, Tortola, Alberta, British Virgin Islands, and its affiliates ("Appnext"; each "Party" and collectively "Parties").

1 Definitions.

  • 1.1 "Ads" means all text, images, links, web pages, signs, banners, audio, video, visual works, or any other content owned by or licensed to Advertiser for the purpose of promotion and display on the Inventory (as defined herein), including any Proprietary Rights contained therein, including any content to which the Ads direct end users (such as landing pages) along with the related URLs and redirects and all related content, materials and metadata submitted by Advertiser to Appnext.
  • 1.2 "Appnext Website" available at: www.appnext.com.
  • 1.3 "Campaign Data" shall mean data regarding a campaign gathered during delivery of Ads pursuant to the Agreement (e.g., number of impressions, interactions, and header information), as well as any data that identifies or allows identification of Publisher, Publisher's site, app, brand, content, context, or users as such, and any details set forth herein (including on the Insertion Order, if applicable) including pricing information, placement and targeting information.
  • 1.4 "Confidential Information" shall mean any non-public, proprietary, confidential and/or trade secret information of a Party hereof, whether furnished before or after the Effective Date (as set forth in the Insertion Order), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by a Party (the "Disclosing Party") to the other Party (the "Receiving Party") either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a Protective Order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality.
  • 1.5 "Insertion Order" means a schedule or other document (including an online registration page or online order form) entered into or accepted by Appnext and Advertiser that incorporates this Agreement.
  • 1.6 "Objectionable Content" shall mean content that is, promotes or contains links to content that is (i) pornographic, sexually explicit, obscene or adult content, (ii) harassing, threatening, abusive, offensive, violent, shocking, racist, or any content that promotes hatred or intolerance against others; (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) infringes upon the Proprietary Rights or other right of any third party, including privacy or publicity rights; (vi) offers or disseminates any counterfeit or fraudulent goods (such as replicas or knockoffs), or services, schemes, investment opportunities or promotions or advice not permitted by law; (vii) containing misleading, deceptive or unrealistic promotions (such as by portraying nonexistent functionality (such as a non-operable "play" or "close" button), making false statements or claims, falsely implying affiliation with, or endorsement by another organization or service, misleading or tricking the user into interacting with the Ads, or impersonating system or browser warnings or error messages); (viii) promoting the use of drugs and drug paraphernalia, illegal substances or dangerous products (such as firearms or explosives), tobacco or alcohol products; (ix) harmful to Appnext's or any other party’s systems and networks, including any Malicious Code; (x) facilitating illegal activity under applicable law or regulations; (xi) offering little or non-unique value to end users, or is focused primarily on traffic generation; or (xii) does not comply with the Store Policies.
  • 1.7 "Malicious Code" shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users' web or mobile navigation or intervenes with the end users' control over the operating system, browser settings, browser functionality or webpage's display.
  • 1.8 "Payment Model" shall mean any of the following: (i) cost per installation ("CPI") model; (ii) cost per thousand impressions ("CPM") model; (iii) cost per action ("CPA") model; or (iv) cost per click ("CPC") model.
  • 1.9 "Proprietary Rights" shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
  • 1.10 "Store" means the Google Play Store or the App Store, as applicable.
  • 1.11 "Store Policies" means Google Play Content Policies (as available here: https://developer.apple.com/app-store/review/guidelines/), or the App Store Review Guidelines, (as available here: https://developer.apple.com/app-store/review/guidelines/), as applicable.
  • 1.12 "User Action" means any user's interaction with the Ads, including without limitation impressions, clicks, conversions, installations, and any other user action.
  • 1.13 "User Data" means any personal and non-personal information pertaining to users collected through the Service.

2 License and Service.

  • 2.1 Advertiser hereby grant to Appnext and its affiliates a worldwide, non-exclusive, royalty-free right and license to use, serve, copy, reproduce, distribute and display, in any known medium or hereafter developed, the Creative and/or Ads, on any online properties ("Inventory" or "Placements") made available by Appnext's publishers ("Publishers"), and promote the Ad Campaign(s), subject to this Agreement and/or (if applicable) the Insertion Order (the "Service").
  • 2.2 In the event the Parties has entered into an Insertion Order, the Parties acknowledge that such Insertion Order may set forth the details of the Ad Campaign, including the type and quantity of ad placements, the rate price per ad placement, the daily budget target allotted to the campaign, etc., and which shall incorporate by reference these Advertiser Terms.
  • 2.3 Appnext and its affiliates may make available to Advertiser certain features to assist Advertiser with the generation, selection and optimization of users' targeting decisions ("Targeting"). Advertiser hereby acknowledges that the Advertiser is solely responsible for the Ads (including any content made available thereof) and for the Targeting.
  • 2.4 Appnext shall use commercially reasonable efforts to serve or place the Ads on the Inventory, pursuant to the Targeting. Advertiser acknowledges that Appnext shall be under no obligation to display or deliver a minimum number of Ads' impressions, clicks or other User Actions, and may reduce, reject or remove Ads at any time at its sole discretion.

3. Ad Campaigns.

  • 3.1 Advertiser shall develop all aspects of the Ad Campaign, and shall provide Appnext all creative and substantive materials ("Creative") required for the promotion or distribution of the Ads in connection with a campaign ("Ad Campaign"), in whatever format (including without limitation banners, links, fields, video, rich media, and any other creative content as required, including any content to which the Creative directs users, along with the related URLs), together with any measurements or specifications parameters for the Ads' units ("Measurements").
  • 3.2 Ad Campaigns may be accessible through whatever online means or devices, including (without limitation) on websites, non-mobile websites, mobile applications, and/or mobile websites or by any other online and mobile marketing means as determined by Appnext.
  • 3.3 Appnext shall exercise reasonable efforts to endeavor that the Creative is used in connection with the delivery of the Ads and that the Ads are delivered in accordance with the Measurements specified by the Advertiser; however, Appnext does not warrant or otherwise undertake that the Creative shall be used in any Ad Campaign, or that the Ad Campaign shall achieve any specific performance or volumes within the term of the Ad Campaign and with the budget agreed for such Ad Campaign.
  • 3.4 Appnext makes no guarantee regarding the placement, positioning, specifications, dimensions, frequency, volume, ranking or timing of Ads delivery, and any editorial decisions related to the Creative and/or Ads, which shall be made by the Publishers in their sole discretion. Appnext makes no representation as to the performance of any Ads or Ad Campaign and disclaims all representations, warranties and liability with respect to the success or return on investment of any Ads or Ad Campaigns, including with respect to User Actions.
  • 3.5 Although Appnext shall exercise reasonable efforts to endeavor that Advertiser’s daily target budget shall not exceed the amount set forth in the Insertion Order, Advertiser shall remain liable to pay for any User Actions in accordance with this section even if the daily target budget was exceeded.
  • 3.6 Advertiser acknowledges and agrees that Appnext is not responsible and has no liability whatsoever for the Ads and the Creative, and that Appnext has no obligation to monitor the foregoing. Notwithstanding anything to the contrary stated in this Agreement, Appnext reserves the right at its discretion and without notice, to remove or refuse to distribute any Ads and/or Creative or any content associated therewith.
  • 3.7 Appnext reserves the right, in its reasonable discretion and without liability to reject, limit, remove, exclude, suspend or terminate any Ad Campaign, for any reason at any time, whether or not such Ad Campaign was previously acknowledged, accepted or published by Appnext.
  • 3.8 Advertiser is responsible for immediately terminating expired Ad Campaigns or Ad Campaigns which suffer from technical problems (e.g. broken links). In case of a failure by Advertiser to terminate such Ad Campaigns, Advertiser shall be liable to pay for lost clicks - $0.10 per click.
  • 3.9 Tracking. Appnext will host the Ad Campaign and provide the tracking solution or otherwise enable the Advertiser to provide a different tracking solution. Notwithstanding the foregoing, Appnext’s tracking count shall be used for all purposes under the Agreement, including billing and measurement of Ad Campaign's performance.
  • 3.10 Unless otherwise stated in writing by Appnext, each Creative used by Appnext in connection with an Ad Campaign must include, in an unaltered form, the special transaction tracking computer code or tracking link provided by Appnext ("Tracking Codes"). In the event the Parties agreed to utilize a tracking solution offered by a third party provider recognized by Appnext ("Tracking Partner"), Appnext shall reserve the right to count additional installations and/or conversions which it has recognized in addition to those tracked by the Tracking Partner. Advertiser shall deliver to Appnext on a real-time basis the performance reports with respect to each Ad Campaign, based on the results measured by the Tracking Partner, and as requested by Appnext upon demand. The reports shall meet, in form and substance, the reasonable requirements of Appnext.
  • 3.11 The Advertiser acknowledges that Appnext may also be entitled to prepare a tracking report based on the results measured by the Tracking Partner and for such purpose shall have the additional right, to interface with the tracking solution offered by the Tracking Partner.
  • 3.12 It is noted that for accurate attribution Ad effectiveness, Appnext shall activate an installations' and/or conversions' attribution for any installation or conversion made 24 hours following a view of a an Ad, regardless of the last click.

4. Registration.

  • 4.1 Upon confirmation of this Agreement and subject to receiving the necessary identification information as specified in Appnext Website log-in page, Appnext will create a dedicated password protected account for the Advertiser ("Account").
  • 4.2 Advertiser must provide all information necessary for the registration process, and represents that all such information shall be accurate, complete and up-to-date. Advertiser shall immediately notify Appnext if there is any change in such information or security breach of the Account. Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password, and shall remain fully and solely responsible for any and all actions taken under the Account. Appnext reserves the right to reject, suspend or terminate the registration of any Account, in its sole discretion, without liability to any person.

5. Payments.

  • 5.1 Advertiser shall pay all charges incurred in connection with the Service to Appnext, in accordance with the rates communicated to the Advertisers, which shall be based on the Payment Model agreed upon between the Parties. Appnext may determine a minimum rate which can be changed by Appnext from time to time.
  • 5.2 Advertiser acknowledges that it shall remain liable to pay for any User Actions: (i) generated from different territories than those set forth in the Insertion Order or otherwise specified by the Advertiser, up to a number of installations equal to 10% of the total number of installations from such territories; and (ii) which occur up to 30 days following the termination of an applicable Ad Campaign.
  • 5.3 Unless otherwise agreed between the Parties, the Advertiser shall be charged by Appnext through the payment method approved by the Parties (such as through PayPal or credit card) once the Account's balance has reached USD200 (or the equivalent of such amount if payments are made in different currency). Without limiting of the foregoing, the Advertiser may pre-pay Appnext through wire transfer.
  • 5.4 All charges as reflected in the invoice shall be calculated solely based on Appnext's measurements and applicable billing metrics; Appnext shall track, manage and report such measurements in good faith to Advertiser.
  • 5.5 The Advertiser alone shall bear any and all wire transfer fees and processing fees related to its payment (e.g. bank fees, PayPal, credit card, etc.). Payment will be made in the currency specified in the invoice. Unless specified otherwise in the invoice, 5% processing fees will be included in every transaction.
  • 5.6 Advertiser shall submit to Appnext any disputes relating to the measurement or calculation of any User Action, in writing or by email specifying the reason for such objection, including providing reasonable proof, within seven (7) days as of the occurrence of said User Action. If no such dispute has been made within the foregoing time period, the User Action shall be deemed as accepted by Advertiser and billed accordingly. Any portion of a charge not disputed in good faith must be paid in full.
  • 5.7 It is hereby affirmed that without concrete and specific proof of fraudulent activity by one of the Publishers through the Service, Appnext shall not be entitled to reimburse any fees, any complaint in regards to low retention rates for the advertised application or other performance indicators will not serve as proof of fraud and as such Appnext shall not be obliged to reimburse any fees.
  • 5.8 Advertiser will have no right to setoff, withhold or otherwise deduct any amount owed to Appnext hereunder (and accordingly transfer to Appnext when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by Appnext to Advertiser (under any theory of liability).
  • 5.9 All charges shall be remitted to Appnext in U.S. dollars within thirty (30) days as of the end of the month during which the respective User Actions have occurred. Late payments shall bear interest at the rate of 1.5% per month (compounded and computed daily). Advertiser shall pay reasonable expenses and attorneys’ fees Appnext incurs in collecting late payments.
  • 5.10 All charges due to Appnext under this Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, "Taxes"). Advertiser will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Appnext's net income. If Advertiser is required by any law or regulation to make any withholding or deduction from fees payable to Appnext on account of any Taxes, Advertiser shall, together with the relevant payment, pay such additional amount and will ensure that Appnext receives an amount equal to the sum it would have received if no such withholding or deduction had been required. Upon Advertiser’s request, Appnext shall provide it with such available information and documents as reasonably necessary for obtaining an exemption from the withholding or deduction of amounts or for a refund of the amounts withheld or to be withheld by Advertiser on the account of taxes, duties or levies under any applicable tax jurisdiction.

6. Intellectual Property.

  • 6.1 Without limiting the rights herein, Advertiser shall have all right, title and interest in its Creative. Appnext retains all right, title and interest in the Proprietary Rights in the Service, as well as any derivative therefrom, and Appnext's Publishers retain all right, title and interest in the Proprietary Rights in the Inventory. If Advertiser provides Appnext with any feedback regarding the Service, Appnext may use all such feedback without restriction. Nothing herein shall be interpreted to provide Advertiser any rights in the Service and/or the Inventory except the limited right to use the Service as set forth herein.
  • 6.2 In the event Appnext develops any Creative and/or Ads for Advertiser, or in the event any content provided by Appnext (such as logos, designs, or other promotional artwork) is used to create such Creative and/or Ads, whether by Appnext or any third party, then Appnext retains all right, title and interest in the foregoing.
  • 6.3 Nothing in this Agreement shall be construed as providing the Advertiser a right to use any of Appnext or its affiliates’ trade names, trademarks, service marks, logos, or other distinctive brand features. Appnext reserves all rights in the Service not expressly licensed above. You agree that your use of any components of the SDK that are licensed under an open source software license are subject to and governed solely by the terms of the applicable license(s) for that software, and not by this Agreement. Open source software components provided with the SDK are listed here.

7. Warranties.

  • 7.1 Mutual Warranties. Each Party represents and warrants that (a) it is duly organized under applicable law and has sufficient authority to enter into this Agreement and that, (b) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
  • 7.2 Appnext Warranties. Appnext represents and warrants that the Service (a) does not, to the best of its knowledge, infringe the intellectual property rights of any third party, (b) comply with all applicable law and regulations; (c) does not to the best of its knowledge contain any Malicious Code.
  • 7.3 Appnext reserves the right, in its sole discretion and without liability, to reject or remove any Ads or Creative from the Service. Advertiser acknowledges that any campaign may be terminated or suspend, whether by Appnext or its Publishers, at any time and without notice to Advertiser. Advertiser hereby acknowledges that Appnext is providing the Service as an intermediary between Advertisers and Publishers and as such Appnext shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties (including with respect to the content of the Creative or Ads, or the Inventory).
  • 7.4 Advertiser Warranties.
    • 7.4.1 Advertiser represents and warrants that the Creative does not contain any Objectionable Content.
    • 7.4.2 The Advertiser is responsible for the content of any Creative, including with respect to complying with applicable laws and regulatory guidelines, including age-gating where necessary, as well as any additional guidelines issued by Appnext.
    • 7.4.3 Advertiser represents and warrants that:
      • i. It is properly licensed and obtained sufficient rights to submit the Creative pursuant to this Agreement;
      • ii. It shall submit the Creative in accordance with any technical specifications provided by Appnext;
      • iii. Any information the Advertiser provides Appnext (including contact information or payment information) will at all times be complete and accurate, and will be maintained up-to-date at all times.
      • iv. It shall make available to Appnext, upon request, with any information relating to the Ad Campaign, and shall ensure that the distribution or promotion of the Ads is in compliance with the Campaign Conditions.
    • 7.4.4 Advertiser further represents and warrants that it will not:
      • i. Promote any mobile applications ("Application") which are not available for download on the applicable Store. Upon removal of an Application from the Store, Advertiser shall promptly inform Appnext of such occurrence and immediately cease to run the Ad Campaign associated with such Application.
      • ii. Use the Service to syndicate, mediate or broker campaigns or the distribution of Ads through other third parties or affiliates, without the express written approval of Appnext, except where the Advertiser has entered into a direct relationship with the third party or affiliate wherefrom the Ads are sourced.
      • iii. Copy, decompile, disassemble, adapt, translate, create derivatives works of, reverse engineer or attempt to find the underlying source code of, the Service;
      • iv. Modify, change, edit, amend, truncate, alter, disable, bypass or reorder any aspect of the Service or the Inventory, or in any other way manipulate the Service in any way;
      • v. Sell, re-sell, lease, rent, sublicense, distribute, display or make any other use of Service or the Inventory, except as expressly permitted hereunder;
      • vi. Remove or obscure any credits, watermarks, tradenames, trademarks, logos, service marks or copyright notices set on the Ads;
      • vii. Use the Service to create (or facilitate the creation of) any product or service that is competitive with the Service;
      • viii. Copy, crawl, index, cache or store any information derived by Appnext, except as expressly permitted hereunder, or otherwise use robots, spiders, scraping or other technology to access or use the Service to obtain any information beyond what Appnext provides Advertiser under the Agreement.
      • ix. Engage in any action or practice that disparages or devalues Appnext, or the reliability, reputation or goodwill of Appnext or its affiliates, or engage in any action or practice that might impede the performance, reliability or quality of the Service.
    • 7.4.5 To the extent any of the restrictions set forth above are not enforceable under applicable law, Advertiser shall inform Appnext in writing prior to engaging in any of the applicable activities.
    • 7.4.6 Advertiser acknowledges and agrees that at any time during the term of the Agreement, if Appnext believes, in its reasonable discretion, that Advertiser or anyone on its behalf is engaged in any conduct or activity which is prohibited under this Agreement, Appnext or any of its Publishers reserve the right without prior notice to Advertiser to (i) remove or reject and Ads and/or Creative, or suspend or terminate any Ad Campaign, or take any measures needed to prevent or correct such conduct or activity from being used in connection with the Service, without any liability to Advertiser whatsoever as a result of any of the foregoing actions taken by Appnext or its Publishers.

8. Confidentiality

  • 8.1 During the Term and thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party's prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the Term and for a period of three (3) years thereafter to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
  • 8.2 Upon termination or expiration of this Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all materials containing Confidential Information.

9. Data Protection.

  • 9.1 Advertiser warrants and represents that it:
    • 9.1.1 User Data shall be collected in accordance with Appnext privacy policy, available here: link;
    • 9.1.2 Shall collect or use the User Data only in an anonymous basis, and shall not collect, use or share any User Data which may be considered as personal information or personally identifiable information under applicable laws and regulations, for the purpose of delivering Ads, retargeting users or constructing profiles of end users;
    • 9.1.3 Shall provide the end users with any notice and obtain any consent from end users as required by applicable laws and regulations in connection with the collection, use and disclosure of User Data, and shall maintain, and require that all third parties that collect User Data maintain a publicly available online privacy policy that provides notice of User Data collection practices related to the Ads, including without limitation use of a cookie, web beacon or other tracking mechanisms;
    • 9.1.4 Without limiting from the foregoing, Advertiser shall collect, use and disclose User Data in accordance with any applicable laws, its privacy policy, and with the applicable Store Policies relating to data usage and the use of mobile advertising IDs (e.g., IDFA and Android Advertising ID), and shall allow Appnext to provide any link it seems necessary for the provision of any disclosure or notice in or around the Ads.
    • 9.1.5 Advertiser shall use User Data and Campaign Data solely to the extent necessary for the performance of this Agreement, and/or on an aggregated basis for its internal business analysis or internal reporting.

10. Indemnification.

  • 10.1 Appnext Indemnification. Appnext shall defend, indemnify and hold harmless Advertiser (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively "Damages")) which Advertiser may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party ("Claim") arising from: (a) any breach of Appnext's obligations, representations or warranties herein; or (b) a claim that the underlying technology of the Service infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Appnext shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Service not in compliance with this Agreement or applicable law, (b) the combination of the Service with any code or services not provided by Appnext, (c) the modification of the Service by any party other than Appnext.
  • 10.2 Advertiser Indemnification. Company shall defend and indemnify Appnext (and its affiliates, officers, directors and employees) from and against any and all Damages which Appnext may suffer or incur in connection with any Claim arising from: (a) any breach of Advertiser's obligations, representations or warranties herein; (b) any use of the Service in violation of any applicable law or regulations; and (c) the Creative.
  • 10.3 Procedure. The obligations of either Party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section 12 except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.

11. Disclaimer of Warranties.

  • 11.1 Except as expressly provided herein, Advertiser accepts the SDK and Service on an "AS IS" and "AS AVAILABLE" basis, and acknowledges that Appnext makes no other warranty and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
  • 11.2 Appnext does not guarantee that the Service will always be complete, accurate, safe, secure, bug-free or error-free, or that the foregoing will always function without disruptions, delays or imperfections. Appnext may change, suspend or discontinue the Service at any time, including the availability of any feature or database, without notice or liability. In addition, Appnext may modify, remove or limit certain features or restrict the Advertiser's access to the Service without notice or liability.

12. Limitation of Liability.

  • 12.1 In no event shall Appnext, its directors, officers, affiliates or agents be liable for any consequential, indirect, special or punitive damages, arising out of or relating to the Service or the arrangements contemplated herein.
  • 12.2 Except for intentional misconduct or gross negligence, Appnext's entire liability for the provision of the Service or under any provision of this Agreement shall not exceed the amount of payment received by Appnext from Advertiser in the three (3) months preceding the applicable claim.

13. Term and Termination.

  • 13.1 The term of this Agreement shall commence on the Effective Date and shall continue until terminated by either Party pursuant to this Agreement ("Term"). Either Party may terminate this Agreement at any time by providing a prior written notice to the other Party, without liability to the other Party. Upon any termination or expiration of this Agreement, Appnext will cease providing the Service and all licenses and rights provided herein shall be revoked. In the event of any termination (a) any outstanding amounts due to Appnext shall be paid without delay to Appnext. Any obligations of the Parties that by their nature are intended to survive the termination or expiration of this Agreement, including the obligations of the Parties in Sections 3 and 5 – 14 of this Agreement, shall survive any termination thereof.

14. Miscellaneous.

  • 14.1 Updates. If Appnext provides Advertiser with any upgrades, patches, enhancements, or fixes for the Service ("Updates"), or if Appnext notifies of such Updates through its platform or integration section, then such Updates will become part of the Service and subject to this Agreement. The Company is required to use the most updated and current version of the Service upon such notice. Appnext shall have no obligation, however, under this Agreement to provide any Updates or any other support to the Advertiser for the Service.
  • 14.2 Modifications. Appnext makes no guarantees with respect to the availability or uptime of its Service, however Appnext shall use its reasonable commercial efforts to ensure that the availability or uptime of the Service shall meet industry standards. Appnext may change the method of access to the Service at any time. In the event of degradation or instability of the Service or an emergency, Appnext may, in its sole discretion, temporarily suspend Advertiser's access to the Service.
  • 14.3 Publicity. During the Term, Appnext may refer to Advertiser as a customer of Appnext, including by displaying Advertiser's name and logo on Appnext's website and other marketing materials.
  • 14.4 Entire Agreement and severability. This Agreement and any amendments thereto, and any additional agreements Advertiser may enter into with Appnext, represent the entire and complete agreement between the Parties regarding the subject matter hereof and supersedes any and all other agreements between the Parties, whether written or oral, regarding the subject matter hereof. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
  • 14.5 Headings. The sections and paragraphs headings in this Agreement are for convenience only and shall not affect their interpretation.
  • 14.6 Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect.
  • 14.7 Force Majeure. Either Party shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
  • 14.8 No waiver. The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Appnext may provide Advertiser with notices required hereunder by contacting Advertiser at any email address Advertiser provided, including in its registration information.
  • 14.9 Notices. Appnext reserves the right to determine the form and means of providing notifications to you, and Advertiser agrees to receive legal notices electronically if Appnext so choose. Appnext may send Advertiser marketing communications, from time to time, relating to our business or the businesses of carefully-selected third parties. By providing us your contact details (whether through an online registration form, or in any other way) Advertiser specifically agree to this. Advertiser may unsubscribe at any time from such marketing communication.
  • 14.11 Amendments. Appnext may revise this Agreement from time to time, in its sole discretion, and the most current version will always be posted on Appnext's website (as reflected in the "Last Revised" heading). By continuing to access or use the Service after any revisions become effective, the Advertiser agrees to be bound by the revised Agreement.
  • 14.12 Assignment. Advertiser may not assign any of its rights o obligations under this Agreement without the prior written consent of Appnext, except in the event of an assignment by Advertiser to a purchaser of all or substantially all of the Advertiser's assets or share capital, in which event the Advertiser shall provide Appnext with written notice of the assignment. Assignment in violation of the foregoing shall be void.
  • 14.13 Governing law. This Agreement shall be governed by the laws of the Cyprus, and the competent courts in the city of Limassol shall have exclusive jurisdiction to hear any disputes arising hereunder.

Last revised: 10/1/17

This Appnext Publisher Agreement (“Agreement”) is entered by and between Appnext Ltd., a BVI company with its registered place of business at Intershore Chambers, Road Town, Tortola, Alberta, British Virgin Islands, and its affiliates ("Appnext "), and you and the company or entity that you represent ("Company ", "You " or "Your "; together with Appnext "Parties ", and each "Party ").

By downloading and/or using the Appnext software development kit, and/or code or script (such as JavaScript or tracking pixels) provided by Appnext, and/or APIs provided by Appnext, along with any documentation that accompanies it (collectively, the "SDK ") into its proprietary website, mobile application or other online property ("Property "), You agree to this Agreement. If You do not agree to all of the terms of this Agreement, do not download or use the SDK, or access or use the Service.

1. Definitions.

  • 1.1 "Action " shall include any of the following: view, click, installation of any software or application, or any other action, as applicable and agreed upon between the Parties, provided the foregoing was performed by an actual end user in the normal course of using any device.
  • 1.2 "Ads " or "Advertisements " shall mean any promotional content, in whatever format (including without limitation text, graphics, video, audio, rich media and links), provided by Appnext's upstream advertisers ("Advertisers") to be served through or displayed on the Property in connection with the Service.
  • 1.3 "Approved Transactions " shall mean an Action, excluding any Action which: (i) resulted from or engaged with Fraudulent Activity, as determined by Appnext in its sole discretion; (ii) was performed by the Company's employees, agents or contractors; or (iii) violates the Campaign Conditions.
  • 1.4 "Campaign Conditions” means conditions and/or restrictions imposed by the Advertiser for the promotion and distribution of the Ads.
  • 1.5 "Confidential Information " shall mean any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the Effective Date (as hereinafter defined), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, research and development, formulas, programming, know-how, proprietary knowledge, technology and any related documentation, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications, financial and marketing information, business plans, business procedures, clients’ list, business partners or other information disclosed by one of the parties hereto (the "Disclosing Party ") to the other party (the "Receiving Party ") either directly or indirectly in writing, orally or by drawings. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) is required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality. Appnext's Confidential Information includes the terms and pricing of this Agreement.
  • 1.6 "Fraudulent Activity " shall mean (a) the display, promotion, distribution or interaction with the Advertisements in any manner which engages with anything other than natural persons viewing actually displayed Advertisements in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform, as determined by Appnext in its sole discretion which may lead to falsely generated or artificially-inflated revenues; and/or (b) the automatic redirection of visitors, blind text links, misleading links, forced clicks, etc. from the Advertisements. Without limiting the foregoing, Fraudulent Activity shall include any of the following practices: (i) inclusion or counting of views or clicks: by a natural person who has been engaged for the purpose of viewing the Advertisements, whether exclusively or in conjunction with any other activities of that person (including, without limitation, employing any means to induce, encourage, incentivize or trick the end user into viewing or clicking on the Advertisements); and/or by non-human visitors (such as bots); and/or that are not actually visible to the human eye, discernible to human senses or perceived by a human being; (ii) masking or cloaking any URL, or employing any means to obscure the true source of traffic, or conceal conversions; (iii) generating automated, fraudulent or otherwise invalid impressions, inquiries, views, clicks or conversions, or artificially inflating impressions, inquiries, views, clicks, or conversions, or employing any misleading or practices (such as repeated manual clicks); (iv) Installing or transmitting Malicious Code.
  • 1.7 "Malicious Code " shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users' web or mobile navigation or intervenes with the end users' control over the operating system, browser settings, browser functionality or webpage's display.
  • 1.8 "Objectionable Content " shall mean content that promotes or contains links to content that is (i) pornographic, sexually explicit or obscene, (ii) harassing, threatening, abusive, inflammatory or racist, (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) is misleading or deceptive; (vi) violates the Proprietary Rights, or the privacy, publicity, moral or any other right of any third party; (vii) offers or disseminates any counterfeit or fraudulent goods, or services, schemes, investment opportunities or promotions or advice not permitted by law; (viii) promotes the use of drugs or drug paraphernalia, illegal substances or dangerous products; (ix) promotes online gambling, or (x) harmful to Appnext's or any other party’s systems and networks, or includes Malicious Code.
  • 1.9 "Proprietary Rights " shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).

2. Service and license. Subject to the Company's compliance with the terms hereof, during the Term, Appnext hereby grants the Company a limited, worldwide, personal, non-sublicensable, non-transferable, royalty-free, non-exclusive license to use the SDK solely for the purpose of serving Ads through Appnext's proprietary app discovery platform, including through Appnext's website, available at: http://www.appnext.com/ ("Appnext Website "; collectively, the "Service ").

3. Registration. In order to use the Service, Company will be required to register an account with Appnext ("Account "). Company must provide all information necessary for the registration process. Company represents and warrants that all such information shall be accurate, complete and up-to-date. Company shall immediately notify Appnext if there is any change in such information or security breach of the Account. Company will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password, and shall remain fully and solely responsible for any and all actions taken under the Account. Appnext reserves the right to reject the registration of any Account, in its sole discretion, without liability to any person.

4. Restrictions.

  • 4.1 Except as set forth expressly herein or as permitted by the Service, Company shall not, and shall not permit any third party, to (a) copy, decompile, disassemble, adapt, translate, create derivatives works of, reverse engineer or attempt to find the underlying code of, the Service or the SDK; (b) modify the Service, or insert any code or product, or in any other way manipulate the Service in any way; (c) modify the SDK in any way without Appnext's prior written consent, (d) sublicense, sell, rent, lease or distribute the SDK or bypass any security measure of Appnext with respect to the Service, (e) distribute the SDK on a stand-alone basis, (f) use the SDK to create (or facilitate the creation of) any product or service that is competitive with the Service; (g) alter, modify, crop or create derivatives works of the Ads, or any other creative and substantive materials, in whatever format, provided by Appnext or its Advertisers for the purpose of the delivery of the Ads ("Creative"); or (h) use the Service except for Company’s own internal purposes. Publisher releases Appnext from and waives any and all claims and/or demands against Appnext in connection with all aspects of the Creative.
  • 4.1 To the extent any of the restrictions set forth above are not enforceable under applicable law, Company shall inform Appnext in writing prior to engaging in any of the applicable activities.
  • 4.2 Company may not use robots, spiders, scraping or other technology to access or use the Service to obtain any information beyond what Appnext provides to Company under the Agreement;
  • 4.3 Company may not use the Service to syndicate, mediate or broker campaigns or the distribution of Ads through other third parties or affiliates, without the express written approval of Appnext. Company shall make available to Appnext, upon request, with any information relating to the Property and any campaign, and shall ensure that the distribution or promotion of the Ads is in compliance with the Campaign Conditions.
  • 4.4 Company undertakes to use Appnext’s programmatic campaign pulling tools and remain updated with Appnext’s API every 10 minutes to verify the availability and the Campaigns Conditions. Appnext reserves the right to retain payments in case of failure of Company to observe the terms of this section.

5. Warranties.

  • 5.1 Mutual Warranties. Each Party represents and warrants that (a) it is duly organized under applicable law and has sufficient authority to enter into this Agreement and that, (b) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
  • 5.2 Appnext Warranties. Appnext represents and warrants that the Service (a) does not, to the best of its knowledge, infringe the intellectual property rights of any third party, (b) comply with all applicable law and regulations (provided, that with respect to data provided by Company to Appnext, Appnext's compliance with applicable law is subject to Company's full compliance with applicable law with respect to such data, including its transfer to, and processing by, Appnext), (c) does not to the best of its knowledge contain any Malicious Code.
  • 5.1 Appnext reserves the right, in its sole discretion and without liability, to reject or remove any Ads or Creative from the Service. Company acknowledges that any campaign may be terminated or suspend, whether by Appnext or its Advertisers, at any time and without notice to Company. Company hereby acknowledges that Appnext is providing the Service as an intermediary between Advertisers and Company and as such Appnext shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties (including with respect to the content of the Creative or Ads).
  • 5.3 Company Warranties. Company represents and warrants that its Property (a) does not, to the best of its knowledge, infringe the intellectual property rights of any third party, (b) does not contain any Objectionable Content, and is not directed to or primarily appeals to children under the age of 13, (c) complies with all applicable laws and regulations, including applicable data protection laws, (d) does not collect, use or transfer the data of end users in any manner not clearly and accurately disclosed pursuant to a privacy policy that complies with applicable law and regulations, and (e) does not contain any Malicious Code.

6. Intellectual Property.

  • 6.1 Company shall have all right, title and interest in its Property. Appnext retains all right, title and interest in the Proprietary Rights in the SDK and the Service, as well as any derivative therefrom. If Company provides Appnext with any feedback regarding the SDK and/or the Service, Appnext may use all such feedback without restriction. Nothing herein shall be interpreted to provide Company any rights in the SDK or the Service except the limited right to use and receive the SDK as set forth herein.
  • 6.2 Nothing in this Agreement shall be construed as providing the Company a right to use any of Appnext or its affiliates’ trade names, trademarks, service marks, logos, or other distinctive brand features. Appnext reserves all rights in the SDK not expressly licensed above. You agree that your use of any components of the SDK that are licensed under an open source software license are subject to and governed solely by the terms of the applicable license(s) for that software, and not by this Agreement. Open source software components provided with the SDK are listed [here].

7. Payment.

  • 7.1 Subject to the terms herein, Appnext shall make payments to the Company subject to the terms communicated to the Company, solely in consideration for Approved Transactions. The payments due to Company ("Consideration ") shall be solely calculated and based on Appnext's tracking systems and/or reports, which shall be considered final and binding, and no other measurements or statistics of any kind shall be accepted or have any effect. Appnext shall make available to Company such reports on a monthly basis.
  • 7.2 Unless otherwise specified to the Company, the Considerations shall be based on a revenue share model, under which the Company shall be entitled to an agreed-upon percentage of the actual revenues generated by Appnext, as communicated to the Company and agreed upon by the Parties, as a result of Approved Transactions, as determined and tracked by Appnext, whether through its own tracking system or a third party's tracking system.
  • 7.3 Notwithstanding anything to the contrary, Considerations shall be made solely for Approved Transactions, and Appnext shall not be obligated to remit Considerations, and shall be entitled to withhold Considerations or demand a refund (in the event Consideration were already paid): (a) in connection with payments that were not fully remitted to Appnext from its Advertisers, or approved by its Advertisers; or (b) if determined by Appnext, at its sole discretion, that Company has engaged in Fraudulent Activity, was in breach of this Agreement or that Consideration were paid for Approved Transactions that are later determined to have not met the requirements set forth herein to be an Approved Transaction.
  • 7.4 Company is solely responsible for providing and maintaining accurate contact and payment information associated with Company's account. Any bank fees and other commissions incurred by Appnext due to any error or omission of contact or payment information may be deducted by Appnext from any Consideration due to Company. It is hereby clarified that Company shall not be entitled to receive any additional payment except for the Consideration agreed upon by Appnext and as communicated to Company.
  • 7.5 Appnext reserves the right to deduct, set off, claw back or charge back any amounts Company may owe to Appnext against any amounts payable or otherwise owing to Company.
  • 7.6 All payments due to Company under this Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, if applicable) (collectively, "Taxes "). Company will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Appnext's net income. Appnext may be obligated by law to obtain tax information from Company and payments to Company may be withheld until Company provide this information or otherwise satisfy Appnext that Company is not a person from whom Appnext is required to obtain tax information or, if required by applicable law, may be subject to tax withholding.
  • 7.7 Appnext reserves the right to make payments only when the monthly payment due to the Company exceeds USD200 (in the event Company elected to receive payment by wire transfer) or USD20 (in the event Company elected to receive payment by PayPal or similar service; in either case, "Minimum Balance "). Notwithstanding the foregoing, the Minimum Balance for the first payment for a Company using PayPal or similar service is USD100.
  • 7.8 If the monthly payment does not exceed the Minimum Balance, Appnext shall have the right to roll over such payments to the following month until such time when the total payment owed to Company exceeds the Minimum Balance.
  • 7.9 All Consideration shall be remitted to Company in USD (unless Appnext decides otherwise) within net ten (10) or net thirty (30) days as of date of issuance of invoice and subject to its approval by Appnext, whether by wire transfer or PayPal (or similar service) to the account specified by the Company in its Account. All the fees and/or commissions related to the payment shall be at the exclusive charge of Company.

8. Data Protection.

  • 8.1 The Service enables the Company to collect and track data concerning the characteristics and activities of Property's end users as long as the SDK is installed, including Data pertaining to end users or their devices, whether identifiable or not (“Data”), pursuant to the Property's existing device permissions.
  • 8.2 Company represents and warrants that: (a) Company is permitted to collect, use and transfer Data through the Service; (b) it has provided its end users with sufficient notice (including through an adequate and accessible privacy policy) and obtained their permissions, as required by applicable laws and regulations, as well as any applicable mobile application marketplace's policies and requirements (such as Google Play or the App Store, as applicable), in connection with the collection, use and disclosure of Data through the use of the Service, including with respect to the use of any technological methods for the purpose of collecting such Data (such as cookies), including for the purpose of displaying interest-based or targeted content: (c) it shall collect, use or disclose Data in accordance with any applicable laws and with its privacy policy.
  • 8.3 Appnext's may use the Data in accordance with applicable laws and regulations, and with its own privacy policy, available at [here].
  • 8.4 Company shall not provide to Appnext any data regarding children under the age of 13, or any health, financial, or insurance data or other data which may be considered as of sensitive nature.

9. Confidentiality.

  • 9.1 During the Term and thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party's prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the Term and for a period of three (3) years thereafter to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
  • 9.2 Upon termination or expiration of this Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all materials containing Confidential Information.

10. Indemnification.

  • 10.1 Appnext Indemnification. Appnext shall defend, indemnify and hold harmless Company (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively "Damages ")) which Company may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party ("Claim ") arising from: (a) any breach of Appnext's obligations, representations or warranties herein; or (b) a claim that the underlying technology of the SDK infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Appnext shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the SDK or Service not in compliance with this Agreement or applicable law, (b) the combination of the SDK or Service with any code or services not provided by Appnext, (c) the modification of any SDK or Service by any party other than Appnext or (d) the use of any SDK that is not the most up-to-date SDK.
  • 10.2 Company Indemnification. Company shall defend and indemnify Appnext (and its affiliates, officers, directors and employees) from and against any and all Damages which Appnext may suffer or incur in connection with any Claim arising from: (a) any breach of Company’s obligations, representations or warranties herein; or (b) any use of the Service in violation of any applicable law or regulations.
  • 10.3 Procedure. The obligations of either Party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section 12 except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.

11. Disclaimer of Warranties.

  • 11.1 Except as expressly provided herein, Company accepts the SDK and Service on an "AS IS" and "AS AVAILABLE" basis, and acknowledges that Appnext makes no other warranty and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
  • 11.2 Appnext does not guarantee that the Service will always be complete, accurate, safe, secure, bug-free or error-free, or that the foregoing will always function without disruptions, delays or imperfections. Appnext may change, suspend or discontinue the Service at any time, including the availability of any feature or database, without notice or liability. In addition, Appnext may impose limits on certain features and services or restrict the Company's access to the Service without notice or liability.

12. Limitation of Liability.

  • 12.1 In no event shall Appnext, its directors, officers, affiliates or agents be liable for any consequential, indirect, special or punitive damages, arising out of or relating to the Service or the arrangements contemplated herein.
  • 12.2 Except for intentional misconduct or gross negligence, Appnext's entire liability for the provision of the Service or under any provision of this Agreement shall not exceed the amount of payment received by Company from Appnext in the three (3) months preceding the applicable claim.

13. Term and Termination.

  • 13.1 The term of this Agreement shall commence on the Effective Date and shall continue until terminated by either Party pursuant to this Agreement ("Term "). Either Party may terminate this Agreement at any time by providing a prior written notice to the other Party, without liability to the other Party. Upon any termination or expiration of this Agreement, Appnext will cease providing the Service and all licenses and rights provided herein shall be revoked. In the event of any termination (a) any outstanding amounts of Approved Transactions will be paid to Company within a net ten (10) or net thirty (30) days period after such termination; (b) any outstanding debit balance shall be paid by Company within 7 business days after such termination. Any obligations of the Parties that by their nature are intended to survive the termination or expiration of this Agreement, including the obligations of the Parties in Sections 3 – 9 and 12 – 15 of this Agreement, shall survive any termination thereof.

14. Miscellaneous.

  • 14.1 Updates. If Appnext provides the Company with any upgrades, patches, enhancements, or fixes for the SDK ("Updates "), or if Appnext notifies of such Updates through its platform or integration section, then such Updates will become part of the SDK and subject to this Agreement. The Company is required to use the most updated and current version of the SDK upon such notice. Appnext shall have no obligation, however, under this Agreement to provide any Updates or any other support to the Company for the SDK.
  • 14.2 Modifications. Appnext may modify or discontinue offering the SDK, or any of its features, at any time and without notice to the Company. Appnext makes no guarantees with respect to the availability or uptime of its Service, however Appnext shall use its reasonable commercial efforts to ensure that the availability or uptime of the Service shall meet industry standards. Appnext may change the method of access to the Service at any time. In the event of degradation or instability of the Service or an emergency, Appnext may, in its sole discretion, temporarily suspend Company's access to the Service.
  • 14.3 Publicity. During the Term, Appnext may refer to Company as a customer of Appnext, including by displaying Company’s name and logo on Appnext's website and other marketing materials.
  • 14.4 Export Controls. You shall not distribute or export the SDK outside the United States in a manner that is prohibited by applicable export laws, restrictions, and regulations. You represent and warrant that You (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) are not identified as a “Specially Designated National;” by the Office of Foreign Assets Control; (iii) are not placed on the U.S. Commerce Department’s Denied Persons List; and (iv) will not access or use any Service if any applicable laws in Your country prohibit You from doing so in accordance with this Agreement.
  • 14.5 Entire Agreement and severability. This Agreement and any amendments thereto, and any additional agreements Company may enter into with Appnext, represent the entire and complete agreement between the Parties regarding the subject matter hereof and supersedes any and all other agreements between the Parties, whether written or oral, regarding the subject matter hereof. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
  • 14.6 Headings. The sections and paragraphs headings in this Agreement are for convenience only and shall not affect their interpretation.
  • 14.7 Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect.
  • 14.8 Force Majeure. Either Party shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
  • 14.9 No waiver. The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Appnext may provide Company with notices required hereunder by contacting Company at any email address Company provided, including in its registration information.
  • 14.10 Notices. Appnext reserves the right to determine the form and means of providing notifications to you, and Company agrees to receive legal notices electronically if Appnext so choose. Appnext may send you marketing communications, from time to time, relating to our business or the businesses of carefully-selected third parties. By providing us your contact details (whether through an online registration form, or in any other way) you specifically agree to this. You may unsubscribe at any time from such marketing communication.
  • 14.11 Amendments. Appnext may revise this Agreement from time to time, in its sole discretion, and the most current version will always be posted on Appnext's website (as reflected in the "Last Revised" heading). By continuing to access or use the Service or SDK after any revisions become effective, the Company agrees to be bound by the revised Agreement.
  • 14.12 Assignment. Company may not assign any of its rights o obligations under this Agreement without the prior written consent of Appnext, except in the event of an assignment by Company to a purchaser of all or substantially all of the Company's assets or share capital, in which event the Company shall provide Appnext with written notice of the assignment. Assignment in violation of the foregoing shall be void.
  • 14.13 Governing law. This Agreement shall be governed by the laws of the Cyprus, and the competent courts in the city of Limassol shall have exclusive jurisdiction to hear any disputes arising hereunder.

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