Last revised: 1/4/2020
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 PTE. Ltd, a Singapore registered entity with registered office at 600 North Bridge Road, #23-01, Parkview Square, Singapore 188778, and its affiliates (“Appnext“; each “Party” and collectively “Parties“).
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; (xii) directed to children under the age of 16; or (xiii) 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, including User Actions, and including any custom audience segmentation, post-install events, unique device identifiers and attribution data.
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.
4.1 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.
4.3 Advertiser agrees that Appnext may disclose any or all information it has concerning Advertiser to any third parties, including credit-reporting or collections agencies, for the purpose of assessing Advertiser’s credit or determining a payment plan or method, or for the purpose of collecting outstanding and unpaid amounts.
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 In order to verify the payment method, Appnext shall make a one-time test charge of $5 which will be credited to the Advertiser’s account and used against their first invoice. The Advertiser will be charged automatically each time activity reaches a predetermined amount ($200 by default or the equivalent agreed by both parties), or at the end of the month, whichever comes first.
5.5 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.
5.6 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 all automated transactions.
5.7 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, and Appnext will not process or accept any refunds and/or chargebacks related to disputes that were not raised with the seven (7) days as of the occurrence of any User Action.
5.8 Appnext will not process any refunds and/or chargebacks to Advertiser accounts which have been suspended, blocked or terminated due to fraudulent activities.
5.9 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.
5.10 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).
5.11 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.
5.12 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.
5.13 Advertiser must ensure that any payment mechanism (e.g. credit card, direct transfer, etc.) which Advertiser elects to utilize remains current and operable throughout the term of the applicable Service. Advertiser shall be responsible for any fees and/or charges that Appnext may levy upon Advertiser because of late or delinquent payments resulting from invalid payment authorization.
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.
7.1 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.
8.1 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:
9.1.2 Except where authorized by Appnext, shall collect and use the User Data only on an anonymous basis, and shall not collect, use or share any User Data which may be considered as personal data under applicable laws and regulations, for the purpose of delivering Ads, retargeting users or constructing profiles of end users;
9.1.3 Where Advertiser collects from the Publisher’s Inventory or otherwise shares with Appnext any Campaign Data or User Data that may be considered as personal data under applicable laws and regulations (such as through the use of Tracking and Attribution Tools), then the Advertiser shall comply with the Advertiser Data Protection Addendum, available here.
9.1.6 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.
10.1 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.
14.1 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.
14.10 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.
14.11 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.
14.12 Governing law. This Agreement shall be governed by the laws of Singapore, and the competent courts of Singapore shall have exclusive jurisdiction to hear any disputes arising hereunder.