This Appnext Advertiser Terms & Conditions (“Advertiser T&C”), shall govern the relationship between Appnext Ltd., a BVI company with its registered place of business at Intershore Chambers, Road Town, Tortola, Alberta, British Virgin Islands (“Appnext”) and each advertiser who created an account with Appnext (“Advertiser”). Advertisers may obtain access to the Appnext advertising network (“Appnext Advertising Network”) of registered third party publishers (“Publishers”), and related technology and software (“Appnext Advertising Platform”), for the purpose of promoting mobile applications available from time to time on the Apple Store and/or on the Google Play Store (“Applications”). In order to launch a campaign (“Ad Campaign”), Advertiser will also be required to fill in the campaign settings on the Appnext website which shall detail, among others, the platform (i.e. Android or IOS) and devices, the geography of the Ad Campaign, payout definition (i.e. CPI), daily as well as total budget for the Ad Campaign (“IO” and together with these Advertiser T&C, the Agreement). Unless expressly stated otherwise, in case of any discrepancy between the IO and these T&C, the terms contained in the IO shall prevail. These Advertiser T&C may be modified by Appnext from time to time in its sole discretion and posted on the Appnext Website at https://www.appnext.com/terms.html. The continued use of the Appnext Advertising Network and Services by Advertiser after the effective date of the updated Advertiser T&C shall constitute Advertiser’s binding acceptance to such modification(s). If the Agreement is entered into by any agency, network or other third party on behalf of the Advertiser (but always with Advertiser’s express consent), the Agreement shall jointly bind the Advertiser and such third party.

1. CREATION OF AN ACCOUNT

1.1 Upon confirmation of these Advertiser T&C by Advertiser and subject to receiving the necessary identification information as specified in Appnext’s Website’s log-in page, Appnext will create a dedicated password protected account for the Advertiser (“Account”).

1.2 The Appnext Advertising Network and the Services are only available to legal entities and individuals who are 18 years or older having full legal capacity to conclude contracts.

1.3 Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsible for any and all actions taken under Advertiser’s Account. Advertiser undertakes to provide Appnext with prompt written notification of any known or suspected unauthorized use of its Account or any breach of the security of its Account. Advertiser is responsible for keeping the Account information provided to Appnext current, complete and accurate.

1.4 Appnext shall be entitled to refuse to open an Account (or if the Account has already been opened, immediately deactivate it and cease any Ad Campaign associated with such Account) without any liability to Appnext, if, in Appnext’s sole discretion, Advertiser is not in compliance with the provisions herein or is in violation of any applicable laws, Appnext’s rules or policies (all of which are incorporated herein by reference).

2. SERVICES

2.1 Advertiser agrees to acquire from Appnext, and Appnext agrees to provide, the Services. As part of the Services, Appnext enables the Advertiser, through the use of the Appnext Advertising Platform, to carry out Ad Campaigns for the purpose of distributing and promoting Applications through the Appnext Advertising Network. As used in these T&C, “Services” means the range of services provided by Appnext to Advertisers through the Appnext Advertising Platform.

2.2 Advertiser will implement the Services in a manner that complies with the technical and implementation requirements provided on the Appnext’s website or in writing by Appnext to Advertiser from time to time, including those instructions contained in the documentation regarding the Services Interface.

2.3 The use of the Services is permissible only to developers which desire to promote their own Applications or to agencies which possess the express authority of the Application developer to promote its Application via the Services. For the removal of doubt, the Services may not be used by any person who is interested in promoting Applications from third party advertising networks.

3. AD CAMPAIGN

3.1 Unless otherwise agreed between the parties in writing, Advertiser shall develop all aspects of the Ad Campaign. Advertiser shall provide to Appnext all creative and substantive materials (“Creative”) required for the marketing of the Ad Campaign, including but not limited to: banners, links, fields, video, rich media, and any other creative content as required. Advertiser alone shall be responsible for the content of its Ad Campaigns.

3.2 Unless otherwise expressly designated in an IO, Ad Campaigns may be placed via the Appnext Advertising Platform on non-mobile websites, mobile applications, and /or mobile websites or by any other online and mobile marketing means as determined by Appnext for cost per install (“CPI”) Ad Campaigns.

3.3 Advertiser acknowledges that, except as otherwise agreed in writing, Appnext will host the Ad Campaign and provide the tracking solution. Appnext’s tracking count shall be used for all purposes under the Agreement. Unless otherwise stated in writing by Appnext, each Creative used by Appnext in connection with an Ad Campaign must include, in 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”), Advertiser shall deliver to Appnext, on a monthly basis, no later than 5 days following the beginning of each colander month performance reports with respect to each Ad Campaign, based on the results measured by the Tracking Partner. The reports shall meet, in form and substance, the reasonable requirements of Appnext. 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 right, among others, to interface with the tracking solution offered by the Tracking Partner. The report indicating the higher number of installations shall be used to determine the Advertiser’s payment obligation. Advertiser will not, either directly or indirectly, modify, circumvent, impair, disable or otherwise interfere with any Tracking Codes and/or other technology and/or methodology required or made available by Appnext or the Tracking Partner (as the case may be) for the purpose of tracking the performance of the Ad Campaign. Without derogating from any other remedy available to Appnext under applicable law, Appnext shall be entitled to charge Advertiser an amount equal to the revenue lost by the Publishers plus an administrative fee of 10% of such loss per each installation that has not been reported as a consequence of violating this Section ‎3.3.

3.4 The positioning, placement, frequency and other editorial decisions related to the Creative shall be made by Appnext and/or its Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where the Creative may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where the IO specifies that the entire Appnext Advertising Network is open for distribution of the Ad Campaign, the Creative may appear at any point of placement and/or distribution that Appnext and/or its Publishers may determine, in their respective sole discretion. Appnext shall not be held liable or responsible for any actions or omissions of its Publishers.

3.5 Advertiser will own and have right and title to its trade names, trademarks, service marks, logos, and domain names (collectively “Marks”). In the event Appnext develops any Creative for Advertiser, any other logos, designs, or other promotional artwork (collectively “Appnext Content”) used to create such Creative by Appnext for use directly in connection with Advertiser’s Marks is Appnext’s work product and shall belong entirely to Appnext and may not be used for any other use or by any other party without Appnext’s consent.

3.6 Advertiser hereby grants to Appnext, and its Publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Ad Campaign(s) in connection with any Services performed by Appnext pursuant to the Agreement.

3.7 Appnext reserves the right, in its reasonable discretion and without liability to reject, omit, exclude or terminate any Ad Campaign for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad Campaign was previously acknowledged, accepted or published by Appnext. Without derogating from the generality of the above, Appnext shall be entitled to so act where it determines that the Ad Campaign, the Creative or the Application promoted thereby (i) violates any applicable law, rule, regulation or other judicial or administrative order or the rules or policies of any Store (Apple store or Google Play Store) (ii) promotes or depicts illegal activity or violence, (iii) advocates against a particular group, (iv) infringes upon a third party's rights, (v) introduces viruses, spyware, and malware, (vi) contains sexually explicit content, (vii) depicts illicit drugs and drug paraphernalia, (viii) promotes online casinos and gambling in jurisdictions where such activity is prohibited, (ix) promotes weapons or ammunition, (x) promotes hard alcohol, (xi) could harm minors in any way, or (xii) contain any content that is illegal, promotes illegal activity, misleading, inaccurate, or infringes on the legal rights of others, or (xiii) where the foregoing may otherwise harm Appnext, its business or reputation.

3.8 Advertiser is precluded from promoting any applications which are not available for download on the applicable Store. Upon removal of an Advertiser’s Application from the Store, Advertiser shall promptly inform Appnext of such occurrence and immediately cease to run the Ad Campaign associated with such Application.

3.9 Appnext does not warrant or otherwise undertake that an 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.

3.10 Although Appnext shall exercise reasonable efforts to endeavor that Advertiser’s daily budget shall not exceed the amount set forth in the IO, Advertiser shall remain liable to pay for installations in accordance with Section ‎4 even if the daily budget was exceeded.

4. ADVERTISER’S PAYMENT OBLIGATION

4.1 Advertiser shall pay Appnext based on the number of installs in accordance with the rate set forth in the IO. Appnext may determine a minimum rate which can be changed by Appnext from time to time.

4.2 Advertiser shall also remain liable to pay Appnext for any installations which occur up to 30 days following the termination of an applicable Ad Campaign.

4.3 Appnext shall invoice Advertiser on a monthly basis. Payment will be due to Appnext within 10 (ten) days of the date appearing on each invoice (net 10). Advertiser alone shall bear any and all wire transfer fees and processing fees related to its payment (e.g. bank fees, PayPal, etc.). Payment will be made in the currency specified in the invoice. Advertiser shall submit to Appnext any objections relating to an invoice in writing or by email specifying the reason for such objection within 48 (Forty Eight) hours upon receipt of the invoice. If no such objection has been made within such 48 hours, the invoice shall be deemed accepted by Advertiser.

4.4 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).

4.5 Appnext reserves the right to charge interest and other fees with respect to payment obligation which become past due. For each full week beyond the 30th day after the date of invoice, Advertiser is due to pay 1.5% interest of the full amount. In the event Advertiser is more than 30 days past due in paying amounts owed, Advertiser is liable for attorney’s fees and other costs of collection.

4.6 If the Services are subject to VAT under any applicable tax jurisdiction, VAT in the statutory amount applicable at the time of payment shall be added and paid on the agreed payment by Advertiser to Appnext. 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, duties or levies in connection with the provision of the Services to Advertiser, Advertiser shall, together with the relevant payment, pay such additional amount as 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.

5. APPNEXT ADVERTISING PLATFORM

5.1 Appnext may modify the Appnext Advertising Platform or any of the features provided in connection with the Appnext Advertising Platform at any time with or without notice to Advertiser. Accordingly, Advertiser shall have the right to use only the current version of the Appnext Advertising Platform as existing at the relevant time.

5.2 Appnext reserves its right to cease operation of the Appnext Advertising Platform at any time, at its sole discretion and without notice. Advertiser shall be entitled to receive any balance owed to it. Any other claims are excluded.

5.3 Appnext makes no guarantees with respect to the availability or uptime of the Appnext Advertising Platform, its website or Services. Appnext may conduct maintenance on or stop providing any portion of the Appnext Advertising Platform, at any time with or without notice to Advertiser. Appnext may change the method of access to the Appnext Advertising Platform at any time. It is in the best interests of both parties that Appnext maintain a secure and stable environment. In the event of degradation or instability of Appnext system or an emergency, Appnext may, in its sole discretion, temporarily suspend Advertiser’s access to the Appnext Advertising Platform its website or Services.

6. COMPLIANCE WITH LAWS AND REGULATIONS; PROHIBITED ACTIVITY

6.1 Advertiser represents and warrants that at all times it will be compliant with all relevant laws, regulations and generally accepted standards in any relevant jurisdiction as well with the applicable Store’s rules and policies, including without limitations with respect to privacy, collection and processing of personal data and information, protection of minors, the rights of third parties and fair competition.

6.2 In addition, Advertiser shall not and will not allow any third party to: (i) directly or indirectly access, launch and/or activate the Services through or from, or otherwise incorporate such Services in, any software application, website or other means other than the Appnext Advertising Platform, and then only to the extent expressly permitted herein; (ii) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive the source code of the Appnext Advertising Platform or any other Appnext’s technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation or prepare any derivative works thereof; (iii) remove, obscure, or alter any of Appnext’s copyright notices or Marks affixed to or contained within the Appnext Advertising Platform; and (iv) without Appnext’s prior written consent use the Services in any manner that is not permitted hereunder.

6.3 Advertiser may not use robots, spyders, scraping or other technology to access or use the Appnext Advertising Platform or Services to obtain any information beyond what Appnext provides to Advertise under the Agreement.

6.4 Advertiser acknowledges and agrees that at any time during the term of the Agreement, if Appnext believes, in its reasonable judgment, that Advertiser or anyone on its behalf is engaged in any conduct or activity which is prohibited under this Section ‎6 above, Appnext (and any of its Publishers) shall have the right (without prior notice to Advertiser) to (i) remove and take any measures needed to prevent or correct such conduct or activity from being used in connection with the Services; and (ii) suspend or cease Ad Campaign. For the removal of doubt, Appnext shall not have any liability to Advertiser whatsoever as a result of any of the foregoing actions taken by Appnext.

7. INTELLECTUAL PROPERTY

7.1 As between Appnext and Advertiser: (i) Appnext retains all rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Appnext Advertising Platform, Appnext’s website, all of its Services as well as any derivative therefrom; and (ii) Advertiser retains all rights, title and interest in and to all Intellectual Property Rights embodied in or associated with its Application. There are no implied licenses under the Agreement, and any rights not expressly granted to Advertiser hereunder are reserved by Appnext or its suppliers. Advertiser will not take any action inconsistent with Appnext’s ownership of the Appnext Advertising Platform, its website, all of its Services as well as any derivative therefrom. Neither party will exceed the scope of the licenses granted hereunder.

7.2 Advertiser agrees that Appnext, in its sole discretion, may use Advertiser’s Marks for the purpose of advertising or publicizing Advertiser’s use of the Services.

7.3 For the purpose of this Section ‎7, “Intellectual Property Rights” means the right and title in and to all intangible legal rights, whether or not registered, including, without limitation, patents, Marks, copyrights, moral rights, goodwill, know how, databases, trade secrets, confidential business and technical information.

8. CONFIDENTIALITY

8.1 Each of the Advertiser and Appnext (as applicable, “Receiving Party”) shall keep confidential and shall not disclose to any third-party any and all proprietary information or confidential information disclosed to it by the other party (“Disclosing Party”) during the term of the Agreement and/or relating to the business, processes, practices, products, technology, personally identifiable end-user information, customers, accounts, finance or contractual arrangements or trade secrets of the other party and any information concerning the Services or the substance of any report, recommendations, advice, test disclosed in relation to the Services (“Confidential Information”), and shall use such Confidential Information solely for the performance of its obligations under the Agreement.

8.2 The obligations in this Section ‎8.1‎ shall not apply to Confidential Information which the Receiving Party is able to show, through clear and convincing evidence, (i) was already known to the Receiving Party prior to disclosure of Confidential Information to it not through a breach of confidentiality obligation or a wrongful act, (ii) was in the public domain through no fault of the Receiving Party, or (iii) is required to be disclosed by applicable legislation. Either party may disclose Confidential Information that has been approved in advance in writing by the other Party for disclosure.

8.3 Advertiser will not make any public statement regarding the Agreement, the terms of the Agreement, any aspect thereof or the Appnext Advertising Platform without Appnext’s prior written approval which may be withheld in Appnext’s sole discretion. Advertiser permits Appnext to make public statements about Advertiser’s use of the Services.

8.4 The obligation of confidentiality of the Receiving Party pursuant to this Section ‎8 shall survive the termination of the Agreement for a period of 3 years.

9. REPRESENTATIONS AND WARRANTIES

Advertiser represents and warrants that:

9.1 it has the full right, power, legal capacity and authority to enter into and perform its obligations under the Agreement;

9.2 the entering by it into the Agreement and the performance hereof, will not conflict with, or breach the terms, conditions or provisions of, or default under any other agreement to which it is a party;

9.3 it shall comply with relevant data protection legislation and with Appnext’s current privacy policy as posted on its website and updated from time to time;

9.4 it owns and/or has any and all rights to permit the use of the Creative, as contemplated by the Agreement;

9.5 at all times, the Creative and the Applications will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other Intellectual Property Right;

9.6 it shall not engage in any illegal business practices in any jurisdiction in respect of the Appnext website, the Appnext Advertising Platform or the Services and it shall further comply in all matters with all applicable laws, regulations and generally accepted standards with respect to the same; and

9.7 it shall otherwise comply with all of its obligations under the Agreement.

10. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY STATED HEREIN, APPNEXT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. APPNEXT DOES NOT REPRESENT OR WARRANT THAT ITS WEBSITE, SERVICES, OR THE APPNEXT ADVERTISING PLATFORM WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. ALL PRODUCTS AND SERVICES PROVIDED BY APPNEXT HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ADVERTISER ACKNOWLEDGES THAT IT DID NOT ENTERED INTO THE AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. APPNEXT WILL HAVE NO INDIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THE AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. APPNEXT AGGREGATE LIABILITY UNDER THE AGREEMENT (UNDER ANY THEORY OF LIABILITY) IS LIMITED TO AMOUNTS PAID OR PAYABLE TO APPNEXT BY ADVERTISER FOR THE SERVICES IN THE MONTH PRECEDING THE CLAIM. IN THE EVENT THAT THE FORMER LIMITATION OF LIABILITY IS HELD UNENFORCEABLE BY A COMPETENT COURT, APPNEXT’S AGGREGATE LIABILITY IS IN ANY CASE LIMITED TO US$ 5,000 PER EVENT, A SERIES OF EVENTS BEING CONSIDERED AS ONE SINGLE EVENT.

11. INDEMNIFICATION

11.1 Except as expressly provided in the Agreement, Advertiser (the “Indemnifying Party”) shall defend, hold harmless, and indemnify Appnext and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors and permitted assignees (collectively, the “Indemnified Party”) from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) filed by any third party against the Indemnified Party (collectively, “Third Party Claims”) arising out of a breach of any warranty, representation or obligation made by the Indemnifying Party under the Agreement.

11.2 The Indemnified Party shall: (i) promptly notify the Indemnifying Party of any Third Party Claim provided that a failure to give prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Section ‎11 unless such failure shall materially and adversely affect the Indemnifying Party’s ability to defend such Third Party Claim, (ii) provide the Indemnifying Party with reasonable information, assistance and cooperation in defending the Third Party Claim at Indemnifying Party’s cost, and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of such Third Party Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior written approval (which approval shall not be unreasonably withheld or delayed) and provided further that Appnext shall not be required to allow Advertiser to assume the control of the defense of a Third Party Claim to the extent that Appnext reasonably determines that (i) such claim relates to the Appnext Advertising Platform, (ii) any relief other than monetary damages is sought against the Indemnified Party, (iii) in the reasonable judgment of the Indemnified Party’s counsel, there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Third Party Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party. The Indemnified Party may join in the defense of such Third Party Claim with counsel of its choice at its own expense.

11.3 The failure of the Indemnifying Party to comply with Section ‎11.2 will entitle the Indemnified Party to act on behalf of the Indemnifying Party, at the expense of the Indemnifying Party.

12. TERMS AND TERMINATION

12.1 The Agreement shall continue for the term set forth in any underlying IO, subject to the provisions of Section ‎12.2 and Section ‎12.3.

12.2 Either Party (the “Performing Party”) shall be entitled to terminate the Agreement with immediate effect, by written notice to the other Party (the “Defaulting Party”), in the event that the Defaulting Party:

12.2.1 is in material breach of its obligations under the Agreement, where the Defaulting Party has failed to remedy such breach (if capable of remedy) to the reasonable satisfaction of the Performing Party within 7 (seven) days of the Performing Party providing to the Defaulting Party written notice of such breach (which notice shall, in reasonable detail, specify the nature of the breach);

12.2.2 passes a resolution for winding up (other than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, administrative receiver, manager, trustee or similar officer appointed over any of its assets or ceases, or threatens to cease, to carry on business or suffers an analogous event anywhere in the world; or

12.2.3 becomes the subject of a third-party litigation or enforcement proceeding as a result of or in connection with that party’s activities under the Agreement, which is likely to have a material adverse effect on its ability to perform its obligations hereunder.

12.3 In addition, either Appnext or the Advertiser may terminate the Agreement and/or any IO at any time, for convenience upon prior written notice to the other party.

12.4 Upon termination or expiration of the Agreement for any reason:

12.4.1 Advertiser will pay Appnext all amounts then due and owing as of the termination date within 10 (ten) days;

12.4.2 any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and

12.4.3 any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or kept confidential as stated out in Section ‎7.1.

13. GOVERNING LAW

The Agreement shall be governed and construed in accordance with the law of Cyprus and shall be subject to the jurisdiction of the courts located in Limassol, whose jurisdiction shall be exclusive other than in respect of the enforcement of any judgment, where their authority shall be non-exclusive.

14. MISCELLANEOUS

14.1 Subject always to the provisions of Section ‎14.2 below, neither party may assign the Agreement without the other’s prior written consent, which shall neither be unreasonably withheld nor delayed.

14.2 Notwithstanding the foregoing, (i) Appnext shall be entitled to assign the Agreement to any third-party, without need of consent from Advertiser, if such assignment is required as part of a merger, sale of assets, change of control or other similar transaction in which the assigning party or any entity within its group of companies is involved; and (ii) Appnext shall be entitled to assign the Agreement to any of its affiliates (i.e. any person that controls, is controlled by or is under common control with Appnext, where control shall mean the ability to direct the activity of a relevant person).

14.3 The Agreement is the complete and entire agreement between Appnext and Advertiser regarding the subject matter hereof and supersedes all prior agreements or understanding between the parties, and each party acknowledges that it has not relied upon any representation from the other which is not contained in the Agreement in entering into the Agreement.

14.4 Nothing in the Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and no party shall have authority to bind the other party in any way or manner.

14.5 The failure of either party at any time in enforcing any right or remedy under the Agreement shall not be construed as a waiver of any future or other exercise of such right or remedy.

14.6 Notwithstanding that the whole or any part of any provision of the Agreement may prove to be illegal or unenforceable, the other provisions of the Agreement and the remainder of the provision in question shall remain in full force and effect, and the parties shall replace such illegal or unenforceable provision with legal and enforceable provisions which will reflect to the greatest extent possible the intention of the parties hereunder.

This Publisher Terms & Conditions (“Publisher T&C”), shall govern the relationship between Appnext Ltd., a BVI company with its registered place of business at Intershore Chambers, Road Town, Tortola, Alberta, British Virgin Islands (“Appnext”) and each publisher who enrolled into Appnext’s publisher’s program (respectively, “Publisher” and “Publisher Program”). Once enrolled into the Publisher Program, Publisher obtains access to Appnext Advertising Platform. Appnext Advertising Platform is a unique platform which includes a range of technical solutions and services in which Advertisers may select specific publishers for distributing and promoting their Applications by means of Mobile Campaigns. If Publisher is selected by an Advertiser to distribute and promote the Advertiser’s Mobile Campaign, Publisher, through the use of the Appnext Advertising Platform, shall have the opportunity to earn remuneration in connection with an Action in accordance with the Mobile Campaign Conditions. These Publisher T&C may be modified by Appnext from time to time in its sole discretion and posted on the Appnext Website at https://www.appnext.com/terms.html. The continued use of the Appnext Advertising Network and Services by Publisher after the effective date of the updated Publisher T&C shall constitute Publisher’s binding acceptance to such modification(s).

1. CERTAIN DEFINITIONS

Terms not defined elsewhere in these Publisher T&C shall have the following meanings:

1.1 “Action” means, in connection with any Mobile Campaign promoted by Publisher in accordance with these T&C after being selected by Advertiser, the installation and activation of the Advertiser’s Application.

1.2 “Advertiser” an Appnext client promoting Applications (on its behalf or on behalf of any third parties) to a mobile audience through the Appnext Advertising Platform and its network of Publishers.

1.3 “Applications” means third party mobile applications which are offered for download to end users on the Google Play Store and/or the Apple Store.

1.4 “Appnext Advertising Platform” means Appnext’s proprietary Application Programming Interface (API) tools and managed services made available by Appnext to its Publishers, for the launch, management and distribution of specific Mobile Campaigns, which Advertiser selected the Publisher to promote.

1.5 “Appnext Website” means www.appnext.com.

1.6 “Mobile Campaign(s)” means, with respect to each Publisher selected by Advertiser, the promotion and distribution of the Advertiser’s Application(s) via Publisher’s Medium for the purpose of generating a Qualified Transaction.

1.7 “Mobile Campaign Conditions” means conditions and/or restrictions imposed by the Advertiser for the promotion and distribution of the Advertiser’s Application (e.g. geography, platform).

1.8 “Publisher Link” means an internet link provided by Appnext to Publisher for the purpose of promoting and distributing the Mobile Campaign, which link redirect’s to the relevant Store.

1.9 “Publisher Medium” means Website or application directly published by Publisher.

1.10 “Qualified Transaction” means a valid Action voluntarily performed by an end user via a Publisher Link and which is otherwise in compliance with these Publisher T&C.

2. CREATION OF ACCOUNT; DESCRIPTION OF SERVICES

2.1 Publisher shall submit a properly completed application via the Appnext Website for the purpose of enrolling into the Publisher Program, whereupon Appnext shall create a dedicated account for Publisher (“Account”). Appnext reserves the right to reject an application at its sole discretion. Publisher must open the Account on its own name and may not use any aliases or other means to mask its true identity or contact information.

2.2 Publisher will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Publisher shall remain fully and solely responsible for any and all actions taken under the Account. Publisher undertakes to provide Appnext with prompt written notification of any known or suspected unauthorized use of its Account or any breach of the security of its Account.

2.3 Publisher can have access to and manage its Account in a dedicated and secured space on the Appnext Website. In this space Publisher may distribute and promote Mobile Campaigns, which Publisher was selected to distribute by the relevant Advertiser, have access to reporting tools and issue its payment requests to Appnext.

2.4 Publisher shall provide Appnext, upon request, with information concerning the Publisher Medium through which the Mobile Campaign is promoted, including regarding the manner in which the Mobile Campaign is presented. If Publisher is a media partner, it shall ensure that all of its communication with its direct publishers shall be done programmatically.

2.5 Publisher’s distribution efforts of Mobile Campaigns under these Publisher T&C shall only be direct. Publisher may not broker Mobile Campaigns through its own network of affiliates without the express written approval of Appnext.

2.6 Publisher shall ensure that any Mobile Campaigns promoted via the Publisher Medium shall comply with the Mobile Campaign Conditions. In addition, Publisher acknowledges that Mobile Campaigns and the Mobile Campaigns Conditions may be terminated, modified, or updated by the Advertiser or Appnext without notice. Publisher shall ensure that Mobile Campaigns promoted by it shall be and remain as current as Mobile Campaigns made available by Appnext through the Appnext Advertising Platform. For such purpose, Publisher undertakes to use Appnext’s programmatic campaign pulling tools and remain updated with Appnext’s API at least on an hourly basis to verify the availability and conditions of Mobile Campaigns. Appnext reserves the right to retain payments in case of failure of Publisher to observe the terms of this Section ‎2.4.

3. SERVICES

3.1 As part of the Services, Appnext enables Publisher to distribute, through the Appnext Advertising Platform, Mobile Campaigns, with respect to which the Publisher was selected by the relevant Advertiser, for the opportunity to earn remuneration on the basis of Actions by promoting Applications on Publisher Medium in accordance with the Mobile Campaign Conditions.

As used in these Publisher T&C, “Services” means the range of services provided by Appnext to Publisher through the Appnext Advertising Platform.

3.2 Publisher will implement the Services in a manner that complies with the technical and implementation requirements provided on the Appnext Website or in writing by Appnext to Publisher from time to time, including those instructions contained in the documentation regarding the Services interface.

3.3 Publisher hereby acknowledges and agrees that Appnext is providing the Services as an intermediary between Advertisers and Publisher and as such Appnext shall not be held responsible or liable for any actions or omissions performed or omitted by Advertiser.

4. MOBILE CAMPAIGN

4.1 Publisher acknowledges that Advertiser shall develop all aspects of the Mobile Campaign and shall provide to Appnext all creative and substantive materials (“Creative”) required for the marketing of the Mobile Campaign, including but not limited to: icons, links, fields, video, rich media, and any other creative content as required. Accordingly, Publisher acknowledges and agrees that Advertiser alone shall be responsible for the content of its Mobile Campaigns. Publisher hereby releases Appnext from and waives any and all claims and/or demands against Appnext in connection with all aspects of the Mobile Campaign, including without limitation any claims or demands asserting that the Creative violates any relevant rights of any third party, such as intellectual property rights.

4.2 Publisher acknowledges that Appnext will track the performance of the Mobile Campaign via its own or a third party’s tracking solution as elected by Appnext and the relevant Advertiser, in their respective sole discretion. Such chosen tracking solution shall form the sole basis for determining the number of Qualified Transactions. In case of any error in the transmission of any tracking data to Appnext (thus preventing Appnext from determining the number of Qualified Transactions), Appnext may determine the number of Qualified Transactions in accordance with other generally accepted industry methods, such as the use of historic analysis of the promotion of Advertiser by Publisher.

4.3 Publisher hereby acknowledges and agrees that Appnext reserves the right, in its sole discretion and without liability to reject, omit, exclude or terminate any Mobile Campaign for any reason at any time, whether or not such Mobile Campaign was previously acknowledged, accepted or published by Appnext. Without derogating from the generality of the above, Appnext shall be entitled to so act where it determines that the Mobile Campaign, any content or the Application promoted thereby violates any applicable law, rule, regulation or other judicial or administrative order or the rules or policies of any Store (Apple store or Google Play Store) or where the foregoing may otherwise harm Appnext, its business or reputation.

5. REMUNERATION

5.1 Unless otherwise stated in these Publisher T&C, Appnext shall pay Publisher for Qualified Transactions an amount equal to 70% of the actual revenue generated by Appnext as a result of the installation and activation of Applications distributed by Publisher as part of the Mobile Campaign. Appnext shall have the right to retain 30% of such income in consideration for its Services.

5.2 Publisher shall invoice Appnext for its remuneration on a monthly basis based on the reports made available by Appnext to Publisher via the Services. Payment by Appnext is processed within net 10 days from Publisher’s invoice; provided that Publisher’s account balance is greater than US$ 200 (in case Publisher elected to receive payment by wire transfer) or US$ 50 (in case Publisher elected to receive payment by Paypal or similar service) (in either case, “Minimum Balance”). A balance below the Minimum Balance, will roll over to the next month, and will continue to roll over monthly until the Minimum Balance is reached. All payments shall be made in U.S. Dollars. Payment shall be made by wire transfer or Paypal to the account specified by Publisher in its application. All the fees and/or commissions related to the payment shall be at the exclusive charge of Publisher.

5.3 The number of Qualified Transactions, the amount of Publisher’s remuneration as well as any debits for disputed transactions, as calculated by Appnext in good faith, shall be final and binding on Publisher.

5.4 Publisher shall not be entitled to its remuneration in connection with:

5.4.1 Transactions for which Appnext did not receive payment from the applicable Advertiser;

5.4.2 Transactions in which the end user is the Publisher or its agents;

5.4.3 Multiple transactions from the same person, device or IP address;

5.4.4 Transactions which constitute fraud or suspected to be fraudulent as well as transactions which are not in compliance with the Mobile Campaign Conditions;

5.4.5 Transactions which are otherwise not in compliance with these Publisher T&C.

5.5 Appnext reserves the right to charge back to Publisher’s account any previously paid Qualified Transactions that are later determined to have not met the requirements set forth herein to be a Qualified Transaction due to the reasons set forth in Sections ‎5.4.2 to ‎‎5.4.5 (inclusive). In case Publisher’s account balance is lower than the due charge back amount, Publisher will be obliged to transfer the due amount back to Appnext upon request within no more than 7 business days.

5.6 In case Appnext is obliged to pay back monies already collected, either to Advertisers, banks, or payment processors (e.g. credit card companies, PayPal, etc.), such monies are deductible in the month they are paid back.

5.7 Publisher shall be responsible for paying all applicable taxes, duties and other governmental charges imposed on it with respect to its remuneration.

5.8 If Publisher has any payment obligation towards Appnext (whether or not under these Publisher T&C), Appnext may set-off any such payment due to Appnext from amounts payable to Publisher under these Publisher T&C.

6. APPNEXT ADVERTISING PLATFORM

6.1 Appnext may modify the Appnext Advertising Platform or any of the features provided in connection with the Appnext Advertising Platform at any time with or without notice to Publisher. Accordingly, Publisher shall have the right to use only the current version of the Appnext Advertising Platform as existing at the relevant time.

6.2 Appnext makes no guarantees with respect to the availability or uptime of the Appnext Advertising Platform, the Appnext Website or Services, however Appnext shall use its reasonable commercial efforts to ensure that the availability or uptime of the Appnext Advertising Platform shall meet industry standards. Appnext may change the method of access to the Appnext Advertising Platform at any time. It is in the best interests of both parties that Appnext maintain a secure and stable environment. Accordingly, in the event of degradation or instability of Appnext system or an emergency, Appnext may, in its sole discretion, temporarily suspend Publisher’s access to the Appnext Advertising Platform, the Appnext Website or Services.

7. COMPLIANCE WITH LAWS AND REGULATIONS; PROHIBITED ACTIVITY

7.1 Publisher represents and warrants that at all times it will be compliant with all relevant laws, regulations and generally accepted standards in any relevant jurisdiction, including without limitations with respect to privacy, collection and processing of personal data and information, protection of minors, the rights of third parties and fair competition.

7.2 In addition, Publisher shall not and will not allow any third party to: (i) directly or indirectly access, launch and/or activate the Services through or from, or otherwise incorporate such Services in, any software application, website or other means other than the Appnext Advertising Platform, and then only to the extent expressly permitted herein; (ii) directly or indirectly generate installations of Applications through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro services, and Internet agents); (iii) encourage or require users or any other persons, either with or without their knowledge, to click on Mobile Campaigns, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (iv) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive the source code of the Appnext Advertising Platform or any other Appnext’s technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation or prepare any derivative works thereof; (v) remove, obscure, or alter any of Appnext’s copyright notices or trade names, trademarks, service marks, logos, and domain names (“Marks”) affixed to or contained within the Appnext Advertising Platform; and (vi) without Appnext’s prior written consent, use the Services in any manner that is not permitted hereunder.

7.3 Publisher may not use robots, spyders, scraping or other technology to access or use the Appnext Advertising Platform or Services to obtain any information beyond what Appnext provides to Publisher under these Publisher T&C.

7.4 Without derogating from Publisher’s obligation to comply with the relevant Store rules, Publisher shall not promote any Mobile Campaign through any medium that contains or links to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination of any kind, promotes illegal activities (such as gambling where applicable), contains profanity or otherwise contains materials that Appnext informs Publisher that it considers objectionable.

7.5 Publisher acknowledges and agrees that at any time during the term of these Publisher T&C, if Appnext believes, in its reasonable judgment, that Publisher or anyone on its behalf is engaged in any conduct or activity which is prohibited under this Section ‎7 above, Appnext shall have the right (without prior notice to Publisher) to (i) remove and take any measures needed to prevent or correct such conduct or activity from being used in connection with the Services; and (ii) withdraw Publisher from any ongoing Mobile Campaign or remove Publisher from the Publisher Program. For the removal of doubt, Appnext shall not have any liability to Publisher whatsoever as a result of any of the foregoing actions taken by Appnext.

8. LICENSES; INTELLECTUAL PROPERTY

8.1 Subject to these Publisher T&C, Appnext hereby grants to Publisher, a revocable, non-transferable, non-exclusive and non-sublicensable right and license during the term of these Publisher T&C, to use and access the Appnext Advertising Platform solely in connection with the distribution of the Applications via the Publisher Medium.

8.2 As between Appnext and Publisher: (i) Appnext retains all rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Appnext Advertising Platform, the Appnext Website, all of its Services as well as any derivative therefrom; and (ii) Publisher retains all rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Publisher Medium. There are no implied licenses under these Publisher T&C, and any rights not expressly granted to Publisher hereunder are reserved by Appnext or its suppliers. Publisher will not take any action inconsistent with Appnext’s ownership of the Appnext Advertising Platform, the Appnext Website, all of its Services as well as any derivative therefrom. Neither party will exceed the scope of the licenses granted hereunder.

8.3 Publisher agrees that Appnext, in its sole discretion, may use Publisher’s Marks for the purpose of advertising or publicizing Publisher’s use of the Services.

8.4 For the purpose of this Section ‎8, “Intellectual Property Rights” means the right and title in and to all intangible legal rights, whether or not registered, including, without limitation, patents, Marks, copyrights, moral rights, goodwill, know how, databases, trade secrets, confidential business and technical information.

9. CONFIDENTIALITY

9.1 Each of the Publisher and Appnext (as applicable, “Receiving Party”) shall keep confidential and shall not disclose to any third-party any and all proprietary information or confidential information disclosed to it by the other party (“Disclosing Party”) during the term of these Publisher T&C and/or relating to the business, processes, practices, products, technology, personally identifiable end-user information, customers, accounts, finance or contractual arrangements or trade secrets of the other party and any information concerning the Services or the substance of any report, recommendations, advice, test disclosed in relation to the Services (“Confidential Information”), and shall use such Confidential Information solely for the performance of its obligations under these Publisher T&C.

9.2 The obligations in this Section ‎9.1 shall not apply to Confidential Information which the Receiving Party is able to show, through clear and convincing evidence, (i) was already known to the Receiving Party prior to disclosure of Confidential Information to it not through a breach of confidentiality obligation or a wrongful act, (ii) was in the public domain through no fault of the Receiving Party, or (iii) is required to be disclosed by applicable legislation. Either party may disclose Confidential Information that has been approved in advance in writing by the other Party for disclosure.

9.3 Publisher will not make any public statement regarding these Publisher T&C, the terms of these Publisher T&C, any aspect thereof or the Appnext Advertising Platform without Appnext’s prior written approval which may be withheld in Appnext’s sole discretion. Advertiser permits Appnext to make public statements about Advertiser’s use of the Services.

9.4 The obligation of confidentiality of the Receiving Party pursuant to this Section ‎9 shall survive the termination of these Publisher T&C for a period of 3 years.

10. REPRESENTATIONS AND WARRANTIES

Publisher represents and warrants that:

10.1 it has the full right, power, legal capacity and authority to enter into and perform its obligations under these Publisher T&C;

10.2 the entering by it into these Publisher T&C and the performance hereof, will not conflict with, or breach the terms, conditions or provisions of, or default under any other agreement to which it is a party;

10.3 it shall comply with relevant data protection legislation and with Appnext’s current privacy policy as posted on its website and updated from time to time;

10.4 it shall not engage in any illegal business practices in any jurisdiction in respect of the Appnext Website, the Appnext Advertising Platform or the Services and it shall further comply in all matters with all applicable laws, regulations and generally accepted standards with respect to the same; and

10.5 it shall otherwise comply with all of its obligations under these Publisher T&C.

11. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY STATED HEREIN, APPNEXT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. APPNEXT DOES NOT REPRESENT OR WARRANT THAT THE APPNEXT WEBSITE, SERVICES, OR THE APPNEXT ADVERTISING PLATFORM WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. ALL PRODUCTS AND SERVICES PROVIDED BY APPNEXT HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ADVERTISER ACKNOWLEDGES THAT IT DID NOT ENTERED INTO THESE PUBLISHER T&C IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.

APPNEXT WILL HAVE NO INDIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THESE PUBLISHER T&C, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. APPNEXT AGGREGATE LIABILITY UNDER THESE PUBLISHER T&C (UNDER ANY THEORY OF LIABILITY) IS LIMITED TO AMOUNTS RETAINED BY APPNEXT FROM QUALIFIED TRANSACTIONS GENERATED BY PUBLISHER IN THE MONTH PRECEDING THE CLAIM. IN THE EVENT THAT THE FORMER LIMITATION OF LIABILITY IS HELD UNENFORCEABLE BY A COMPETENT COURT, APPNEXT’S AGGREGATE LIABILITY IS IN ANY CASE LIMITED TO US$ 5,000 PER EVENT, A SERIES OF EVENTS BEING CONSIDERED AS ONE SINGLE EVENT.

12. INDEMNIFICATION

12.1 Except as expressly provided in these Publisher T&C, Publisher (the “Indemnifying Party”) shall defend, hold harmless, and indemnify Appnext and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors and permitted assignees (collectively, the “Indemnified Party”) from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) filed by any third party against the Indemnified Party (collectively, “Third Party Claims”) arising out of a breach of any warranty, representation or obligation made by the Indemnifying Party under these Publisher T&C.

12.2 The Indemnified Party shall: (i) promptly notify the Indemnifying Party of any Third Party Claim provided that a failure to give prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Section ‎12 unless such failure shall materially and adversely affect the Indemnifying Party’s ability to defend such Third Party Claim, (ii) provide the Indemnifying Party with reasonable information, assistance and cooperation in defending the Third Party Claim at Indemnifying Party’s cost, and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of such Third Party Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior written approval (which approval shall not be unreasonably withheld or delayed) and provided further that Appnext shall not be required to allow Publisher to assume the control of the defense of a Third Party Claim to the extent that Appnext reasonably determines that (i) such claim relates to the Appnext Advertising Platform, (ii) any relief other than monetary damages is sought against the Indemnified Party, (iii) in the reasonable judgment of the Indemnified Party’s counsel, there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Third Party Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of the Indemnified Party. The Indemnified Party may join in the defense of such Third Party Claim with counsel of its choice at its own expense.

12.3 The failure of the Indemnifying Party to comply with Section ‎12.2 will entitle the Indemnified Party to act on behalf of the Indemnifying Party, at the expense of the Indemnifying Party.

13. TERMS AND TERMINATION

13.1 The Agreement shall continue upon acceptance of these Publisher T&C by Publisher (i.e. to be deemed to occur upon enrolment into the Publisher Program) and shall continue until terminated by either Party for convenience upon prior written notice to the other party.

13.2 Upon termination or expiration of these Publisher T&C for any reason:

13.2.1 Appnext will pay Publisher for any outstanding amounts on account of Qualified Transactions within a net 10 days period after such termination or expiration.

13.2.2 Any outstanding debit balance shall be paid by Publisher within 7 business days of termination of these Publisher T&C;

13.2.3 any and all licenses and rights granted to either party in connection with these Publisher T&C shall immediately cease and terminate; and

13.2.4 any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or kept confidential as stated out in Section ‎9.1.

14. GOVERNING LAW

The Agreement shall be governed and construed in accordance with the law of Cyprus and shall be subject to the jurisdiction of the courts located in Limassol, whose jurisdiction shall be exclusive other than in respect of the enforcement of any judgment, where their authority shall be non-exclusive.

15. MISCELLANEOUS

15.1 Subject always to the provisions of Section ‎15.2 below, neither party may assign the Agreement without the other’s prior written consent, which shall neither be unreasonably withheld nor delayed.

15.2 Notwithstanding the foregoing, (i) Appnext shall be entitled to assign these Publisher T&C to any third-party, without need of consent from Publisher, if such assignment is required as part of a merger, sale of assets, change of control or other similar transaction in which the assigning party or any entity within its group of companies is involved; and (ii) Appnext shall be entitled to assign these Publisher T&C to any of its affiliates (i.e. any person that controls, is controlled by or is under common control with Appnext, where control shall mean the ability to direct the activity of a relevant person).

15.3 These Publisher T&C is the complete and entire agreement between Appnext and Publisher regarding the subject matter hereof and supersedes all prior agreements or understanding between the parties, and each party acknowledges that it has not relied upon any representation from the other which is not contained in these Publisher T&C in entering into these Publisher T&C.

15.4 Nothing in these Publisher T&C shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and no party shall have authority to bind the other party in any way or manner.

15.5 The failure of either party at any time in enforcing any right or remedy under these Publisher T&C shall not be construed as a waiver of any future or other exercise of such right or remedy.

15.6 Notwithstanding that the whole or any part of any provision of these Publisher T&C may prove to be illegal or unenforceable, the other provisions of these Publisher T&C and the remainder of the provision in question shall remain in full force and effect, and the parties shall replace such illegal or unenforceable provision with legal and enforceable provisions which will reflect to the greatest extent possible the intention of the parties hereunder.