(updated June, 10th, 2013)
Thank you for using appnext. Please read the terms and conditions set forth below carefully as they contain the legal terms that govern your use of any Website, Web page, Software Development Kit, app and/or Web or Other Service (collectively "Service") operated or provided by AppNext Ltd. The terms and conditions may be modified by appnext from time to time in its sole discretion and posted on www.appnext.com (the "Site") so please return to the terms and conditions from time to time to review them. Participation in the appnext online services indicates that you accept these terms and conditions (the "Agreement"). If you do not agree with any of the terms and conditions you may not use this Service. "You" or "Your" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency, network or other third party that has access to Your account and/or Your Services (as defined above), which will also be bound by the terms and conditions of this Agreement. The appnext Services are available only to individuals who are at least 18 years old and to companies that are appropriately licensed and otherwise legally permitted to conduct business. You represent and warrant that (a), if you are an individual, you are at least 18 years old, and (b) if you are a company, that you are appropriately licensed and is legally permitted to conduct business. This Agreement constitutes the entire and only agreement between You and AppNext, Ltd. ("appnext"), and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Service provided by appnext, and the subject matter of this Agreement.
If you are a publisher during the Services Term (as defined below), Appnext will serve to You advertisements provided by third party advertisers ("Services Ad(s)"), for display on the app(s) which use the Services ("Services App(s)"), based upon the criteria selected by You and/or Your advertisers via the protocol and/or user interface provided by Appnext for accessing the Services. This protocol and/or user interface may be updated by Appnext from time to time without notice to you ("Services Interface"). If you are an advertiser during the Services Term, you will provide Services Ads for display on the Services Apps.
You will implement the Services in a manner that complies with the technical and implementation requirements provided on the Site or in writing by Appnext to You from time to time, including those instructions contained in the documentation regarding the Services Interface. Without limiting the foregoing, You acknowledge and agree to the following:
a) Services Obligations. In order for the Services to work correctly on mobile platforms, You must provide the following information with every ad request: (i) a Unique Device Identifier or other Device ID, (ii) Ad Unit ID, mapped to the correct application that is in use by the end user, (iii) device type, (iv) language, (v) OS version, (vi) SDK version, (vii) device model, (viii) display type and (ix) country. You must also notify appnext when an application is opened by the user. You will be solely responsible for all, without limitation, Services Ad content, Services Ad information, Services Ad URLs, editorial, text, graphic, audiovisual, and other content and any other information You enter into the Services, whether generated by or for You ("Services Data"). You will protect any Services accounts, usernames or passwords and take full responsibility for Your own, and third party, use of any Services accounts, usernames or passwords. You will obtain appnext's prior written consent (to include email) for any third party use of the Services except for (i) a third party's use solely to provide analytics information for Your Apps and (ii) a bona fide advertising agency's use. If You permit any third party to access your Services account, you agree that You are liable for any such third party usage. You will not permit access to the third party unless and until it agrees to comply with appnext's terms and conditions. Any data collected or accessed through the Services must be directly accessible by appnext. Your use of an intermediary who has sole direct access to user data arising from the Services is prohibited.
c) Prohibited Actions. You will not, and will not allow any third party to: (a) directly or indirectly access, launch and/or activate the Services through or from, or otherwise incorporate the Services in, any software application, website or other means other than the Services App(s), and then only to the extent expressly permitted herein; (b) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co- branding, timesharing, service bureau or other unauthorized purposes the Services or access thereto (including, but not limited to ads, including without limitation Services Ads, or any part, copy or derivative thereof); (c) directly or indirectly generate queries, or impressions of or clicks on ads, including without limitation Services Ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro Services, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Services Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services, appnextʼs then current protocol for accessing and implementing the Services (the "appnext Protocol"), or any other appnext technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (f) remove, deface, obscure, or alter appnextʼs copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Services, the appnext Protocol, or any other appnext technology, software, materials and documentation; (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Services or proprietary information related thereto; or (h) utilize any feature or functionality of the Online Services, or include anything in Services Data or Services Ads, that could be so utilized, to personally identify and/or personally track individual end users or any other persons.
d) Restrictions. You must use the Services only for serving advertisements and promotions to Services Apps. You may use the Services only with free Apps. You may not use the Services to serve other content. You may not serve advertisements that interfere with the correct operation of the userʼs mobile device. You may not use the Services with Services Apps that: (i) promote or depict illegal activity or violence, (ii) advocate against a particular group , (iii) infringe a third party's rights, (iv) introduce viruses, spyware, and malware, (v) contain sexually explicit content, (vi) depict illicit drugs and drug paraphernalia, (vii) promote online casinos and gambling, (viii) promote weapons or ammunition, (ix) promote hard alcohol, (x) could harm minors in any way, or (xi) contain any content that is illegal, promotes illegal activity, misleading, inaccurate, or infringes on the legal rights of others.
e) No Endorsement. appnext does not represent or endorse any ads, links, content, advice, opinion, offer, proposal, statement, data or other information from any third party products/services ("Disclaimed Content") that is displayed or distributed through Online Services. appnext hereby disclaims any liability or responsibility for any Disclaimed Content. appnext reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any Disclaimed Content, in whole or in part, that in appnext, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.
Services Term. This Agreement will be effective as of the date appnext activates Your Services account and will continue until terminated as provided in this Agreement (the " Services Term"). You may terminate this Agreement, with or without cause, at any time by sending written notice of Your desire to cancel Your participation in the Services to firstname.lastname@example.org. This Agreement will be deemed terminated within ten (10) business days of appnextʼs receipt of Your notice. If You violate this Agreement, appnext may in its sole discretion, without notice, terminate this Agreement, or suspend or terminate the participation of Your Services App in all or part of the Services. In addition, appnext may terminate this Agreement, or suspend or terminate the participation of Your Services App in all or part of the Services, with or without cause, upon thirty (30) dayʼs prior notice. Services Advertiser Obligations. You will be solely responsible for all matters related to Your third party advertisers who provide advertisements to You in connection with the Services ("Services Advertisers"), including without limitation the solicitation and trafficking of Services Ads, billing and payment of Services Advertisers, providing all technical support services to Services Advertisers, and handling all other inquiries and disputes of any type or nature. Services Fee. Some of the services in the Services require payment of fees. appnext reserves the right to change its price list and to institute new charges at any time, upon thirty (30) days prior notice to You, which may be sent by email or posted on the Site. If You are an advertiser, You will pre-pay all applicable fees, as described on the Site unless otherwise agreed to in writing by an authorized appnext representative. If You are an advertiser and choose to run a Cost Per Install ("CPI") campaign without having properly integrated the appnext SDK for tracking purposes, You will be charged $0.10 per click for all the clicks delivered in that campaign, and the campaign will be automatically terminated when detected. Impressions and clicks are tracked instantly. Installs are tracked whenever a user opens the application they have downloaded. appnext will keep the install loop open for a period of 21 days. During this time, installs will still be reported for campaigns that might be off (not displaying any new impressions) but the advertiser will still be accountable for the install and the publisher will be paid for installs coming from clicks that they delivered in the past. This only affects CPI campaigns, not Cost Per Click ("CPC").
If You are a publisher of network advertising campaigns, You will receive a percentage of Net Revenue. "Net Revenue" means revenues actually received by appnext from the sale, use or other disposition of advertisements that are part of network advertising campaigns displayed on publisher's Services App less taxes, agency commissions, carrier and/or partner fees, and any allowances actually made or taken for returns, cash discounts or promotional allowances. The portion of Net Revenue received by publisher shall be determined on the first day of each calendar month, on which day those revenues accrued to publisher's in the previous month shall become eligible to be paid. Until notified in writing otherwise, the portion of Net Revenue paid is seventy percent (70%). Payments to publisher shall be sent by appnext only if publisher's earned balance is greater than or equal to $200 (Two Hundred US Dollars). If publisher's earned balance is less than $200, no payment shall be sent until the following calendar month, on the first day of which appnext shall make the aforesaid determination anew. In addition, if You are a publisher, You agree that any payments that may become due to You are specifically conditioned upon appnext's receipt of full payment from the applicable advertiser. If appnext does not receive the applicable payment in full from any such advertiser, appnext shall have no liability or responsibility to publisher (and publisher hereby releases appnext) with respect thereto. Payment shall be calculated solely based on records maintained by appnext. No other measurements or statistics of any kind shall be accepted by appnext or have any effect under this Agreement. appnext shall not be liable for any payment based on (i) any fraudulent impressi ons generated by any person, robot, automated Services or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by appnext; (ii) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above; or (iii) any breach of this Agreement by You. If payment is by electronic bank transfer, appnext is not responsible for any associated fees charged by your banking institution.
Cross-Promotion Advertising. If you are a publisher of network advertising campaigns you have the option to reinvest a set portion of your earned balance toward CPC campaigns at the rate established by appnext and that may be amended from time to time. Cross-promotion campaigns may be turned on or off at any time. Once turned on, the cost of each click will be deducted from the earned balance in a near real-time manner.
License to Services Interface. appnext grants to You a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Services Term to use the Services Interface solely for the purpose of transmitting Services Requests and other required information and receiving Services Results Sets solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, appnext does not grant, and You will not acquire, any right, title or interest (including, without limitation, any implied license) in or to any appnext intellectual property rights; and all rights not expressly granted herein are reserved to Appnext.
Confidentiality; Publicity. Each party agrees not to disclose the other party's Confidential Information without the other partyʼs prior written consent. "Confidential Information" includes without limitation: (a) all software, technology, programming, specifications, materials, guidelines and documentation relating to the Services, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (b) any statistics relating to the performance of the Services; (c) any other information designated in writing by either party as "Confidential" or an equivalent designation; and (d) information disclosed under circumstances that a reasonable person should know such information is confidential/proprietary. Confidential Information does not include information that has become publicly known through no breach by the receiving party, or information that has been (i) independently developed without access to the disclosing party's Confidential Information as evidenced in writing; (ii) rightfully received by the receiving party from a third party; or (iii) required to be disclosed by law or by a governmental authority. Neither party will use the other party's name and logo in any news release, public announcement, advertisement, or other form of publicity without the prior written consent of the other party (which includes email), except that either party may use the other party's name and logo on such party's website and in publicity that announces the parties are working together. In addition, Appnext may use any content used with the Services in any form of publicity.
Disclaimer. appnext does not represent or warrant that the Services is reliable, accurate, complete, or otherwise free from defects. Accordingly, the Services is made available for use "as is", and any use thereof will be undertaken solely at Your own risk. appnext reserves the right, in its sole discretion, to include or cease providing the Services at any time (subject to notice as may be required herein), and appnext does not give or enter into any conditions, warranties or other terms with regard to the Services. In particular, no condition, warranty or other term is given or entered into to the effect that the Services will be of satisfactory quality, and not infringing, or that the Services will be fit for any particular purpose.
Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY.
In any event, each party's total cumulative liability to the other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed the net amount paid by You to appnext in the six month period immediately preceding the date of the claim.
Representations and Warranties. You represent and warrant that: (i) You have and will maintain throughout the Services Term all end user consents and all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Services Ads or Services Data to permit appnext to perform the Services contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Services Ads or Services Data); (ii) You will not advertise anything illegal or engage in any illegal or fraudulent business practice; (iii) all of the information provided by You to Appnext to enroll in the Services is correct and current; (iv) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (v) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. appnext represents and warrants that: (i) it has the power and authority to grant the rights and perform the obligations to which it commits herein; and (ii) its Services Interface will not knowingly violate the intellectual property rights of any third party.
Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of Cyprus without regard to the conflicts of laws provisions thereof. Neither partyʼs waiver of any default is a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the partiesʼ intention, and remaining provisions of the Agreement will remain in full effect. You may not assign any of Your rights hereunder and any such attempt is void (except to Your successor in the event of Your merger, acquisition or sale of all or substantially all or Your assets). appnext and You are not legal partners or agents, but are independent contractors. The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder.