Last revised: 1/4/2020
This Appnext Publisher Agreement (“Agreement”) is entered by and between 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 “), and you and the company or entity that you represent (“Company “, “You ” or “Your “; together with Appnext “Parties “, and each “Party “).
1.1 “Action ” shall include any of the following: view, click, installation of any software or application, or any other action, as applicable and agreed upon between the Parties, provided the foregoing was performed by an actual end user in the normal course of using any device.
1.2 “Ads ” or “Advertisements ” shall mean any promotional content, in whatever format (including without limitation text, graphics, video, audio, rich media and links), provided by Appnext’s upstream advertisers (“Advertisers”) to be served through or displayed on the Property in connection with the Service.
1.3 “Approved Transactions ” shall mean an Action, excluding any Action which: (i) resulted from or engaged with Fraudulent Activity, as determined by Appnext in its sole discretion; (ii) was performed by the Company’s employees, agents or contractors; or (iii) violates the Campaign Conditions.
1.4 “Campaign Conditions” means conditions and/or restrictions imposed by the Advertiser for the promotion and distribution of the Ads.
1.5 “Confidential Information ” shall mean any non-public, proprietary, confidential and/or trade secret information of a party hereof, whether furnished before or after the Effective Date (as hereinafter defined), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, research and development, formulas, programming, know-how, proprietary knowledge, technology and any related documentation, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications, financial and marketing information, business plans, business procedures, clients’ list, business partners or other information disclosed by one of the parties hereto (the “Disclosing Party “) to the other party (the “Receiving Party “) either directly or indirectly in writing, orally or by drawings. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) is required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a protective order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality. Appnext’s Confidential Information includes the terms and pricing of this Agreement.
1.6 “Fraudulent Activity ” shall mean (a) the display, promotion, distribution or interaction with the Advertisements in any manner which engages with anything other than natural persons viewing actually displayed Advertisements in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform, as determined by Appnext in its sole discretion which may lead to falsely generated or artificially-inflated revenues; and/or (b) the automatic redirection of visitors, blind text links, misleading links, forced clicks, etc. from the Advertisements. Without limiting the foregoing, Fraudulent Activity shall include any of the following practices: (i) inclusion or counting of views or clicks: by a natural person who has been engaged for the purpose of viewing the Advertisements, whether exclusively or in conjunction with any other activities of that person (including, without limitation, employing any means to induce, encourage, incentivize or trick the end user into viewing or clicking on the Advertisements); and/or by non-human visitors (such as bots); and/or that are not actually visible to the human eye, discernible to human senses or perceived by a human being; (ii) masking or cloaking any URL, or employing any means to obscure the true source of traffic, or conceal conversions; (iii) generating automated, fraudulent or otherwise invalid impressions, inquiries, views, clicks or conversions, or artificially inflating impressions, inquiries, views, clicks, or conversions, or employing any misleading or practices (such as repeated manual clicks); (iv) Installing or transmitting Malicious Code.
1.7 “Malicious Code ” shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users’ web or mobile navigation or intervenes with the end users’ control over the operating system, browser settings, browser functionality or webpage’s display.
1.8 “Objectionable Content ” shall mean content that promotes or contains links to content that is (i) pornographic, sexually explicit or obscene, (ii) harassing, threatening, abusive, inflammatory or racist, (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) is misleading or deceptive; (vi) violates the Proprietary Rights, or the privacy, publicity, moral or any other right of any third party; (vii) offers or disseminates any counterfeit or fraudulent goods, or services, schemes, investment opportunities or promotions or advice not permitted by law; (viii) promotes the use of drugs or drug paraphernalia, illegal substances or dangerous products; (ix) promotes online gambling, or (x) harmful to Appnext’s or any other party’s systems and networks, or includes Malicious Code.
1.9 “Proprietary Rights ” shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
2. Service and license
2.1 Subject to the Company’s compliance with the terms hereof, during the Term, Appnext hereby grants the Company a limited, worldwide, personal, non-sublicensable, non-transferable, royalty-free, non-exclusive license to use the SDK solely for the purpose of serving Ads through Appnext’s proprietary app discovery platform, including through Appnext’s website, available at: https://www.appnext.com/ (“Appnext Website “; collectively, the “Service “).
3.1 In order to use the Service, Company will be required to register an account with Appnext (“Account “). Company must provide all information necessary for the registration process. Company represents and warrants that all such information shall be accurate, complete and up-to-date. Company shall immediately notify Appnext if there is any change in such information or security breach of the Account. Company will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password, and shall remain fully and solely responsible for any and all actions taken under the Account. Appnext reserves the right to reject the registration of any Account, in its sole discretion, without liability to any person.
4.1 Except as set forth expressly herein or as permitted by the Service, Company shall not, and shall not permit any third party, to (a) copy, decompile, disassemble, adapt, translate, create derivatives works of, reverse engineer or attempt to find the underlying code of, the Service or the SDK; (b) modify the Service, or insert any code or product, or in any other way manipulate the Service in any way; (c) modify the SDK in any way without Appnext’s prior written consent, (d) sublicense, sell, rent, lease or distribute the SDK or bypass any security measure of Appnext with respect to the Service, (e) distribute the SDK on a stand-alone basis, (f) use the SDK to create (or facilitate the creation of) any product or service that is competitive with the Service; (g) alter, modify, crop or create derivatives works of the Ads, or any other creative and substantive materials, in whatever format, provided by Appnext or its Advertisers for the purpose of the delivery of the Ads (“Creative”); or (h) use the Service except for Company’s own internal purposes. Publisher releases Appnext from and waives any and all claims and/or demands against Appnext in connection with all aspects of the Creative.
4.2 To the extent any of the restrictions set forth above are not enforceable under applicable law, Company shall inform Appnext in writing prior to engaging in any of the applicable activities.
4.3 Company may not use robots, spiders, scraping or other technology to access or use the Service to obtain any information beyond what Appnext provides to Company under the Agreement;
4.4 Company may not use the Service to syndicate, mediate or broker campaigns or the distribution of Ads through other third parties or affiliates, without the express written approval of Appnext. Company shall make available to Appnext, upon request, with any information relating to the Property and any campaign, and shall ensure that the distribution or promotion of the Ads is in compliance with the Campaign Conditions.
4.5 Company undertakes to use Appnext’s programmatic campaign pulling tools and remain updated with Appnext’s API every 10 minutes to verify the availability and the Campaigns Conditions. Appnext reserves the right to retain payments in case of failure of Company to observe the terms of this section.
5.1 Mutual Warranties. Each Party represents and warrants that (a) it is duly organized under applicable law and has sufficient authority to enter into this Agreement and that, (b) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
5.2 Appnext Warranties. Appnext represents and warrants that the Service (a) does not, to the best of its knowledge, infringe the intellectual property rights of any third party, (b) comply with all applicable law and regulations (provided, that with respect to data provided by Company to Appnext, Appnext’s compliance with applicable law is subject to Company’s full compliance with applicable law with respect to such data, including its transfer to, and processing by, Appnext), (c) does not to the best of its knowledge contain any Malicious Code.
5.3 Appnext reserves the right, in its sole discretion and without liability, to reject or remove any Ads or Creative from the Service. Company acknowledges that any campaign may be terminated or suspend, whether by Appnext or its Advertisers, at any time and without notice to Company. Company hereby acknowledges that Appnext is providing the Service as an intermediary between Advertisers and Company and as such Appnext shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties (including with respect to the content of the Creative or Ads).
6. Intellectual Property.
6.1 Company shall have all right, title and interest in its Property. Appnext retains all right, title and interest in the Proprietary Rights in the SDK and the Service, as well as any derivative therefrom. If Company provides Appnext with any feedback regarding the SDK and/or the Service, Appnext may use all such feedback without restriction. Nothing herein shall be interpreted to provide Company any rights in the SDK or the Service except the limited right to use and receive the SDK as set forth herein.
6.2 Nothing in this Agreement shall be construed as providing the Company a right to use any of Appnext or its affiliates’ trade names, trademarks, service marks, logos, or other distinctive brand features. Appnext reserves all rights in the SDK not expressly licensed above. You agree that your use of any components of the SDK that are licensed under an open source software license are subject to and governed solely by the terms of the applicable license(s) for that software, and not by this Agreement. Open source software components provided with the SDK are listed [here].
7.1 Subject to the terms herein, Appnext shall make payments to the Company subject to the terms communicated to the Company, solely in consideration for Approved Transactions. The payments due to Company (“Consideration “) shall be solely calculated and based on Appnext’s tracking systems and/or reports, which shall be considered final and binding, and no other measurements or statistics of any kind shall be accepted or have any effect. Appnext shall make available to Company such reports on a monthly basis.
7.2 Unless otherwise specified to the Company, the Considerations shall be based on a revenue share model, under which the Company shall be entitled to an agreed-upon percentage of the actual revenues generated by Appnext, as communicated to the Company and agreed upon by the Parties, as a result of Approved Transactions, as determined and tracked by Appnext, whether through its own tracking system or a third party’s tracking system.
7.3 Notwithstanding anything to the contrary, Considerations shall be made solely for Approved Transactions, and Appnext shall not be obligated to remit Considerations, and shall be entitled to withhold Considerations or demand a refund (in the event Consideration were already paid): (a) in connection with payments that were not fully remitted to Appnext from its Advertisers, or approved by its Advertisers; or (b) if determined by Appnext, at its sole discretion, that Company has engaged in Fraudulent Activity, was in breach of this Agreement or that Consideration were paid for Approved Transactions that are later determined to have not met the requirements set forth herein to be an Approved Transaction.
7.4 Company is solely responsible for providing and maintaining accurate contact and payment information associated with Company’s account. Any bank fees and other commissions incurred by Appnext due to any error or omission of contact or payment information may be deducted by Appnext from any Consideration due to Company. It is hereby clarified that Company shall not be entitled to receive any additional payment except for the Consideration agreed upon by Appnext and as communicated to Company.
7.5 Appnext reserves the right to deduct, set off, claw back or charge back any amounts Company may owe to Appnext against any amounts payable or otherwise owing to Company.
7.6 All payments due to Company under this Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT, if applicable) (collectively, “Taxes “). Company will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Appnext’s net income. Appnext may be obligated by law to obtain tax information from Company and payments to Company may be withheld until Company provide this information or otherwise satisfy Appnext that Company is not a person from whom Appnext is required to obtain tax information or, if required by applicable law, may be subject to tax withholding.
7.7 Appnext reserves the right to make payments only when the monthly payment due to the Company exceeds USD200 (in the event Company elected to receive payment by wire transfer) or USD20 (in the event Company elected to receive payment by PayPal or similar service; in either case, “Minimum Balance “). Notwithstanding the foregoing, the Minimum Balance for the first payment for a Company using PayPal or similar service is USD100.
7.8 If the monthly payment does not exceed the Minimum Balance, Appnext shall have the right to roll over such payments to the following month until such time when the total payment owed to Company exceeds the Minimum Balance.
7.9 All Consideration shall be remitted to Company in USD (unless Appnext decides otherwise) within net thirty (30) days as of date of issuance of invoice and subject to its approval by Appnext, whether by wire transfer or PayPal (or similar service) to the account specified by the Company in its Account. All the fees and/or commissions related to the payment shall be at the exclusive charge of Company.
8. Data Protection.
8.1 The Service enables the Company to collect and track data concerning the characteristics and activities of Property’s end users as long as the SDK is installed, including Data pertaining to end users or their devices, whether identifiable or not (“Data”), pursuant to the Property’s existing device permissions.
8.4 Company shall not provide to Appnext any data regarding children under the age of 13, or any health, financial, or insurance data or other data which may be considered as of sensitive nature.
8.5 By entering into the Agreement, Company hereby agrees to the terms of the Data Protection Addendum, available at [here], which is incorporated herein by reference.
9.1 During the Term and thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the Term and for a period of three (3) years thereafter to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
9.2 Upon termination or expiration of this Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all materials containing Confidential Information.
10.1 Appnext Indemnification. Appnext shall defend, indemnify and hold harmless Company (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively “Damages “)) which Company may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party (“Claim “) arising from: (a) any breach of Appnext’s obligations, representations or warranties herein; or (b) a claim that the underlying technology of the SDK infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Appnext shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the SDK or Service not in compliance with this Agreement or applicable law, (b) the combination of the SDK or Service with any code or services not provided by Appnext, (c) the modification of any SDK or Service by any party other than Appnext or (d) the use of any SDK that is not the most up-to-date SDK.
10.2 Company Indemnification. Company shall defend and indemnify Appnext (and its affiliates, officers, directors and employees) from and against any and all Damages which Appnext may suffer or incur in connection with any Claim arising from: (a) any breach of Company’s obligations, representations or warranties herein; or (b) any use of the Service in violation of any applicable law or regulations.
10.3 Procedure. The obligations of either Party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section 12 except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
11. Disclaimer of Warranties.
11.1 Except as expressly provided herein, Company accepts the SDK and Service on an “AS IS” and “AS AVAILABLE” basis, and acknowledges that Appnext makes no other warranty and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
11.2 Appnext does not guarantee that the Service will always be complete, accurate, safe, secure, bug-free or error-free, or that the foregoing will always function without disruptions, delays or imperfections. Appnext may change, suspend or discontinue the Service at any time, including the availability of any feature or database, without notice or liability. In addition, Appnext may impose limits on certain features and services or restrict the Company’s access to the Service without notice or liability.
12. Limitation of Liability.
12.1 In no event shall Appnext, its directors, officers, affiliates or agents be liable for any consequential, indirect, special or punitive damages, arising out of or relating to the Service or the arrangements contemplated herein.
12.2 Except for intentional misconduct or gross negligence, Appnext’s entire liability for the provision of the Service or under any provision of this Agreement shall not exceed the amount of payment received by Company from Appnext in the three (3) months preceding the applicable claim.
13. Term and Termination.
13.1 The term of this Agreement shall commence on the Effective Date and shall continue until terminated by either Party pursuant to this Agreement (“Term “). Either Party may terminate this Agreement at any time by providing a prior written notice to the other Party, without liability to the other Party. Upon any termination or expiration of this Agreement, Appnext will cease providing the Service and all licenses and rights provided herein shall be revoked. In the event of any termination (a) any outstanding amounts of Approved Transactions will be paid to Company within a net thirty (30) days period after such termination; (b) any outstanding debit balance shall be paid by Company within 7 business days after such termination. Any obligations of the Parties that by their nature are intended to survive the termination or expiration of this Agreement, including the obligations of the Parties in Sections 3 – 9 and 12 – 15 of this Agreement, shall survive any termination thereof.
14.1 Updates. If Appnext provides the Company with any upgrades, patches, enhancements, or fixes for the SDK (“Updates“), or if Appnext notifies of such Updates through its platform or integration section, then such Updates will become part of the SDK and subject to this Agreement. The Company is required to use the most updated and current version of the SDK upon such notice. Appnext shall have no obligation, however, under this Agreement to provide any Updates or any other support to the Company for the SDK.
14.2 Modifications. Appnext may modify or discontinue offering the SDK, or any of its features, at any time and without notice to the Company. Appnext makes no guarantees with respect to the availability or uptime of its Service, however Appnext shall use its reasonable commercial efforts to ensure that the availability or uptime of the Service shall meet industry standards. Appnext may change the method of access to the Service at any time. In the event of degradation or instability of the Service or an emergency, Appnext may, in its sole discretion, temporarily suspend Company’s access to the Service.
14.3 Publicity. During the Term, Appnext may refer to Company as a customer of Appnext, including by displaying Company’s name and logo on Appnext’s website and other marketing materials.
14.4 Export Controls. You shall not distribute or export the SDK outside the United States in a manner that is prohibited by applicable export laws, restrictions, and regulations. You represent and warrant that You (i) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) are not identified as a “Specially Designated National;” by the Office of Foreign Assets Control; (iii) are not placed on the U.S. Commerce Department’s Denied Persons List; and (iv) will not access or use any Service if any applicable laws in Your country prohibit You from doing so in accordance with this Agreement.
14.5 Entire Agreement and severability. This Agreement and any amendments thereto, and any additional agreements Company may enter into with Appnext, represent the entire and complete agreement between the Parties regarding the subject matter hereof and supersedes any and all other agreements between the Parties, whether written or oral, regarding the subject matter hereof. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
14.6 Headings. The sections and paragraphs headings in this Agreement are for convenience only and shall not affect their interpretation.
14.7 Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect.
14.8 Force Majeure. Either Party shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
14.9 No waiver. The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Appnext may provide Company with notices required hereunder by contacting Company at any email address Company provided, including in its registration information.
14.10 Notices. Appnext reserves the right to determine the form and means of providing notifications to you, and Company agrees to receive legal notices electronically if Appnext so choose. Appnext may send you marketing communications, from time to time, relating to our business or the businesses of carefully-selected third parties. By providing us your contact details (whether through an online registration form, or in any other way) you specifically agree to this. You may unsubscribe at any time from such marketing communication.
14.11 Amendments. Appnext may revise this Agreement from time to time, in its sole discretion, and the most current version will always be posted on Appnext’s website (as reflected in the “Last Revised” heading). By continuing to access or use the Service or SDK after any revisions become effective, the Company agrees to be bound by the revised Agreement.
14.12 Assignment. Company may not assign any of its rights o obligations under this Agreement without the prior written consent of Appnext, except in the event of an assignment by Company to a purchaser of all or substantially all of the Company’s assets or share capital, in which event the Company shall provide Appnext with written notice of the assignment. Assignment in violation of the foregoing shall be void.
14.13 Governing law. This Agreement shall be governed by the laws of Singapore, and the competent courts of Singapore shall have exclusive jurisdiction to hear any disputes arising hereunder.