These Inneractive General Terms (“Terms”) apply to your usage of the Services (as defined herein). If you have entered a Supply Partner Agreement with Inneractive Ltd. (“Inneractive” or “we”) regarding your use of the Services (“Agreement”), then these Terms also serve as an Appendix to such agreement and constitute an integral part thereof.
Before using the Services, we ask that you read these Terms carefully, as by using and/or accessing the Services, you hereby agree and accept these Terms in full. We recommend that you print out or save a local copy of these Terms for your records. Capitalized terms in these Terms will have the meaning ascribed to it in Appendix A attached hereto.
IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES. IF YOU ARE AN INDIVIDUAL WHO CONSENT TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS AND YOUR CONSENT TO THESE TERMS WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, “BUSINESS”, “YOU” OR “YOUR” WILL REFER AND APPLY TO THAT BUSINESS. YOU ALSO CONSENT TO THE USE OF: (A) ELECTRONIC MEANS TO CONSENT TO AND COMPLETE THESE TERMS AND TO PROVIDE YOU WITH ANY NOTICES GIVEN PURSUANT TO THESE TERMS; AND (B) ELECTRONIC RECORDS TO STORE INFORMATION RELATED TO THESE TERMS AND YOUR USE OF THE SERVICES. FROM TIME TO TIME WE MAY CHANGE THESE TERMS. WE WILL MAKE REASONABLE COMMERCIAL EFFORTS TO NOTIFY YOU OF ANY UPDATES TO THESE TERMS BY MAKING SUCH UPDATES AVAILABLE ON OUR WEBSITE AND.OR THE INNERACTIVE CONSOLE. NOTWITHSTANDING THE FOREGOING, YOUR CONTINUED USE OF THE SERVICES WILL BE DEEMED ACCEPTANCE TO AMENDED OR UPDATED TERMS.
- SCOPE OF SERVICES; LICENSE
1.1. During the term hereof, and subject to your compliance with these Terms, Inneractive will provide you with a license to access and use the Inneractive Exchange, the Inneractive Console, SDK or Tag and other products, services or tools as provided in Section 1.2 below, including advertising management services, such as optimization, ad serving, trafficking, campaign management and the compilation of relevant statistical data (collectively, the “Services”).
1.2. Inneractive hereby grants you a non-transferable, non-assignable, revocable, non-exclusive, royalty free right and license to: (a) connect to and use the Inneractive Exchange and the Inneractive’s proprietary Software Developer Kit (“SDK”) if applicable to your App integration, solely for the purposes of: (i) selling Ad Inventory on your App(s) to Advertisers; and (ii) allowing Ads provided by Advertisers to be delivered and placed on the App via the SDK or Tag (as applicable); (b) access and use the Inneractive Console for the purpose of reviewing your activity on the Inneractive Exchange and (c) access and use Metamarkets (for as long as Inneractive is using such third- party tool) for insights and analytics on the App’s auction behavior (collectively, the “Supply Partner License”).
1.4. No Implied License. Except as expressly provided herein, nothing in these Terms will be construed to confer any ownership interest, license, sale or other rights upon you or Inneractive (as applicable) by implication, estoppel or otherwise as to any Intellectual Property Rights of the other Party or any third party.
1.5. The Inneractive Exchange, Inneractive Console, SDK or Tag may include open source software (“OSS”). To the extent so stipulated by the license that governs each OSS (“OSS License“), each such OSS is subject to its respective OSS License, not these Terms. If, and to the extent, an OSS License requires that these Terms effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into these Terms, as required, and shall supersede any conflicting provision of these Terms, solely with respect to the corresponding OSS which is governed by such OSS License. If, and to the extent, an OSS License requires that the source code of the OSS it governs be made available, Inneractive hereby grants a written offer, valid for the period prescribed in such OSS License, to obtain a copy of the source code of the OSS, from Inneractive. To take up this offer, contact Inneractive at email@example.com.
- REVENUE SHARE AND PAYMENT
2.1. As part of the Services, Inneractive will enter into written agreements with the Advertisers in its own name and for its own account. Inneractive will be responsible for invoicing and collection of all amounts from Advertisers for Ads delivered and placed on the App via the Services and will pay you the Supply Partner Share of Net Revenue in accordance with the payment terms set forth in Section 2.3 below.
2.2. Unless agreed otherwise in writing, each calendar month of the Term, you will be eligible to receive sixty-five percent (65%) of all Net Revenue (the “Supply Partner Share of Net Revenue”) and Inneractive will be eligible to receive thirty-five percent (35%) of all Net Revenue (the “Inneractive Share of Net Revenue”). Inneractive will retain the Inneractive Share of Net Revenue and will pay you the Publisher Share of Net Revenue in USD in accordance with the payment terms set forth herein below.
2.3. Payment Terms. You will be provided with access to an online reporting system via the Inneractive Console, through which you will be able to view the estimated Supply Partner Share of Net Revenue and will be required to approve, at the end of each calendar month, the updated and final monthly invoice. Inneractive will pay the Supply Partner Share of Net Revenue of each respective invoice within sixty (60) days from the end of each calendar month in which Ads were delivered and placed via the Services on the App.
2.4. If Inneractive incurs any costs or expenses (including, without limitation, attorneys’ fees) to collect any amount directly connected to the determination of the Net Revenue or any other amount paid or payable to you, then such amount will be reduced by such costs and expenses and the Net Revenue or any other amount payable with respect to the same will be proportionately reduced. Upon Inneractive’s request, you will promptly refund to Inneractive any amount overpaid to you (e.g. on account of any adjustment under this paragraph or otherwise).
2.5. Each party shall bear its own expenses (including but not limited to any tax obligations) relating to the activities and payments received under these Terms or the Agreement (as applicable). All sums payable under these Terms or the Agreement are exclusive of any applicable tax. Notwithstanding the foregoing, if the total amount payable under this Section 2 do not equals or exceeds two hundred USD ($200), then Inneractive shall have the right to withhold payment to you until the next regularly scheduled payment date on which the amount payable to you equals or exceeds two hundred USD ($200).
2.6. You will not be eligible to receive the Supply Partner Share of Net Revenue for actions by you and/or any third party on your behalf that Inneractive determines, in its sole discretion, were associated with any Prohibited Activity and/or Fraudulent Activity. Calculation of Net Revenue will be made solely based on Inneractive’s reporting system and statistics calculated through its tracking pixels. Without derogating from any other right or remedy in accordance with any applicable law, Inneractive shall have the right to suspend or deactivate the Services or immediately terminate these Terms or the Agreement (as applicable) in case of any such Prohibited Activity and/or Fraudulent Activity.
2.7. Set-Off. You may not set-off any amount which is due to you from Inneractive from any amount payable by you to Inneractive (if any). You hereby acknowledge and agree that Inneractive will have the right to set-off any and all amounts due to it under these Terms or the Agreement (as applicable), from any amount payable by Inneractive to you (if any).
- REGISTRATION TO THE INNERACTIVE CONSOLE
3.1. Subject to your consent to these Terms, Inneractive will provide you with access to the Inneractive Console and Metamarkets.
3.2. During registration to the Inneractive Console and Metamarkets, you may choose a username and password with which you shall be able to access your account at the Inneractive Console and Metamarkets (the “Account“) and use the Inneractive Console and Metamarkets in accordance with your authorizations. You will keep your login details in confident and not share them with or transfer them to any third party. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You agree to notify Inneractive in writing of any unauthorized and/or fraudulent use of your Account.
3.3. Inneractive will not be liable for any unavailability or inaccuracy, temporary or otherwise, of any reports, data or information provided via the Inneractive Console or Metamarkets.
- YOUR RESPONSIBILITIES AND UNDERTAKINGS
4.1.You shall be responsible and hereby undertake and agree: (a) to perform, on your own expense, any and all Quality Assurance (QA) testing necessary for successful integration with the Inneractive Exchange; (b) to ensure that your technical contact person will start working on the integration with the Inneractive Exchange immediately following the Effective Date and in accordance with Inneractive’s directions and guidelines; (c) if integrated via the SDK, to provide your assent to the Inneractive’s End-User License Agreement (“EULA”) available at: http://inner-active.com/sdk-eula which is required as part of the SDK installation process; (d) to use commercially reasonable efforts to provide even and consistent distribution of Ads on the App and to immediately inform Inneractive of any of your actions that might increase or reduce expected Ads inventory onto the App; (e) not to attempt to or interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services for your own use as permitted herein); (f) to ensure that its inventory specifications and criteria provided to the Inneractive Exchange are true and accurate; (g) not to engage in any Fraudulent Activity and/or Prohibited Activity or allow others to do so; (h) copy, create derivative works of or modify the Services or any part thereof; (i) provide, lease, transfer, sublicense, lend, use for timesharing, or otherwise allow others to use the Services, or any part thereof, except as specifically licensed to you hereunder or under the Agreement; (h) use the Services to compete with Inneractive or to develop similar services to third parties; (j) remove the Inneractive Marks, or any identification, or proprietary or copyright restrictions from the Services or any part thereof; (k) develop methods to enable unauthorized parties to use the Services; (l) conduct your business in a way that reflect poorly on Inneractive and/or the Services or any part thereof; and (m) promptly notify Inneractive if you suspects that any third party may be conducting or is or might be involved in any Prohibited Activity and/or Fraudulent Activity. You acknowledge and agree that Inneractive may, but is under no obligation to, in its sole discretion, monitor and review (i) impressions, click-throughs or other actions relating to the Ads placed on the App by Inneractive; and/or (ii) the App’s Content or any policy linked or made available by you thereto.
4.2. Without limiting any other terms of these Terms, you acknowledge and agree that, at any time during the Term, Inneractive has the right, at its sole discretion (without notice) to: (a) remove Prohibited Activity and/or Fraudulent Activity from the Services; (b) take any action needed to prevent or correct Prohibited Activity; (c) assist any governmental agency or other applicable legal authorities with respect to any Prohibited Activity that was detected by Inneractive; and/or (d) report any Prohibited Activity to any governmental agency or other applicable legal authority with respect to any Prohibited Activity.
4.3. You will not to use the Services to offer, display, distribute, transmit, route, provide connections to or store any Content on your App or any other material that infringes copyrighted works or otherwise violates or promotes the violation of the Intellectual Property Rights of any third party. You bear sole and exclusive responsibility for ensuring the accuracy, adequacy, completeness, authenticity, validity, and legality of the App’s Content.
- INNERACTIVE’S RESPONSIBILITIES AND UNDERTAKINGS
5.1. Inneractive will make reasonable commercial efforts (i) to resolve any QA problems that arise in connection with the Inneractive Exchange and cannot be solved and/or be within scope of QA by/of you; and (ii) to ensure that no illegal Ads will be delivered on the App via the Services; (iii) remove an illegal Ad as soon as reasonably possible in the event Inneractive is aware of any illegal Ad delivered on the App via the Services.5.2. Inneractive will have no responsibility or liability for any content, materials, discounts, rewards, or other deals made available through the Inneractive Exchange by you.5.3. Inneractive retain the exclusive right in its sole discretion to: (a) determine which features, tools or views, will be available to you, added or removed from or via the Service, including the Inneractive Exchange and the Inneractive Console; (b) customize, modify and update the Services, including the Inneractive Exchange and the Inneractive Console or any part thereof from time to time without notice; (c) remove any Content, or any part thereof, from the Inneractive Exchange which violates these Terms or the Agreement (if applicable) or require you to do so; and (d) add, change or remove, at any time, any Content, materials and/or functionality made available in the Services, or any part thereof, for any reason and without notice.
- PROMOTION AND MARKETING
6.1. You will not issue any press release or any other marketing materials regarding these Terms and/or the Agreement (if applicable) without Inneractive’s prior written approval.
6.2. You will not remove nor conceal any Inneractive’s Mark appearing on the Inneractive Console, or from any documentation provided to you by Inneractive in connection with the Services. You will not add any other Mark to the same without Inneractive’s prior written consent.
6.3. You agree that Inneractive may identify you (with your name and logo) as a customer of the Inneractive Exchange in its website(s), newsletters, case studies, emails or promotional posts in social media; (In the event that you wish to be excluded from a specific promotion/publication of Inneractive, you may notify Inneractive in writing and Inneractive will cease using your name and logo in such publication. Unless otherwise agreed by Parties, you will not be entitled to any compensation as a result of any such publication.
- OWNERSHIP OF INTELLECTUAL PROPERTY
7.1. As between you and Inneractive, Inneractive will retain all right, title and interest in and to the Services, including the Inneractive Exchange, the SDK, the Inneractive Console, the Inneractive Marks and any and all marketing, promotional materials and documentation provided by Inneractive to you in connection with the Services, and any customization and/or derivatives thereof (whether developed by you or by Inneractive), including any Intellectual Property Rights therein (collectively: “Inneractive’s IP”); and (ii) all use of the Inneractive’s IP shall inure to the benefit of Inneractive and you will not: (y) contest, or assist others to contest, Inneractive’s rights or interests in and to the Inneractive IP or the validity of Inneractive’s rights in and to the Inneractive’s IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to said Inneractive’s All rights in the Inneractive’s IP which are not expressly granted herein are reserved by Inneractive.
7.2. As between you and Inneractive, you retain all right, title and interest in and to the App and its Content and to your Marks that were made available via your App, and any derivatives thereof, including any Intellectual Property Rights therein (collectively: “Your IP”). All use of Your IP shall inure to your benefit and Inneractive shall not: (y) contest, or assist others to contest, your rights and/or interests in and to Your IP or the validity of your rights (as applicable) in and to Your IP and all applications, registrations or other legally recognized interests therein, or (z) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to Your IP.
7.3. It is hereby agreed that the Advertisers retains all rights, title and interest in and to the Advertiser Data and/or derivatives thereof, including any Intellectual Property Rights therein (collectively: the “Advertiser IP”). All use of the Advertiser IP shall inure to the benefit of Advertiser. You and Inneractive will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Advertiser IP.
7.4. You will not assert any Intellectual Property Rights with respect to the Inneractive IP or any element, derivation, adaptation, variation or name thereof.
7.5. You will not remove, obscure or alter any notices of Intellectual Property Rights or disclaimers appearing in or on any Content provided by Inneractive, whether available via the Services.
7.6. Inneractive encourages all its business partners to raise, offer and/or suggest additional functionality, features, improvements, business models, ideas or inventions in connection with the Services (collectively, “Inventions”). When doing so, you grant Inneractive an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sub-licensable and worldwide license, to use, reproduce, distribute, transmit, make derivative works of, display, copy, make available to the public and perform the Inventions, whether through the web, software application, device or otherwise, in any media formats and through any media channels known today and developed in the future (“Inneractive License to Inventions”). Subject to the above mentioned, you retain all right, title and interest in and to the Inventions, including any Intellectual Property Rights pertaining thereto. Nevertheless, it is hereby acknowledged and agreed that any application or registration of any of Inventions (e.g. patent, copyright or trademark application or registration, or other application or registration of intellectual property rights) will be subject to Inneractive License to Inventions, and you will not undermine Inneractive’s rights under the Inneractive License to Inventions herein in any manner.
8.1. During the term of these Terms or your Agreement (as applicable), we (the “Disclosing Party”) may have disclosed or may disclose to you (the “Receiving Party”) certain Confidential Information. Receiving Party (a) will use the Confidential Information solely for its performance hereunder or under the Agreement (as applicable); (b) is authorized to disclose Confidential Information to any such employees of receiving party, and solely with respect to Inneractive, also to any of its shareholders, directors consultant and Affiliates, who are actively and directly participating in the performance by Inneractive hereunder or under the Agreement (as applicable) or who otherwise need to know for such purpose, and whom the Receiving Party shall first inform of and require to adhere to these Terms (c) will use at least the same degree of care to safeguard the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, and in any event not less than a reasonable degree of care; (d) will make copies of materials embodying Confidential Information only as needed for the performance hereunder or Agreement or (if applicable), all of which will include any existing markings indicating that they are the Confidential Information of Disclosing Party, or will have markings supplied by Disclosing Party; (e) will immediately upon becoming aware of a breach of its security that reasonably may have resulted in unauthorized access to the Disclosing Party’s Confidential Information, notify Disclosing Party and shall cooperate fully with Disclosing Party’s investigation of and response to the incident; and (f) will not, without the prior written consent of the Disclosing Party, disclose to any person the existence of the discussions, these Terms or the Agreement.
8.2. Disclosing Party will not be liable for disclosure of Confidential Information if made in response to a valid order of a Court or authorized agency of government; provided that (to the extent permitted by law) the Receiving Party provides the Disclosing Party with written notice promptly upon the Receiving Party’s knowledge or receipt of notification of the order, so that such party, if appropriate, may seek relief in the form of a protective order, an agreement to maintain the confidentiality by the body who demanded the disclosure or initiate any other steps to limit or avoid disclosure. In the event that such protective order or other relief is not obtained, receiving party will disclose only that portion of the disclosing party’s Confidential Information that its counsel advises that it is legally required to disclose, and at the Disclosing Party’s cost and expense, will work with disclosing party to minimize the extent and effects of such disclosure.
8.3. At any time during the term of hereof and the term of the Agreement (if applicable), upon the written request of the Disclosing Party, Receiving Party shall promptly either: (i) return to the Disclosing Party all Confidential Information furnished to the Receiving Party by the Disclosing Party, without retaining any copies thereof or (ii) destroy all Confidential Information furnished to the Receiving Party by the Disclosing Party, including any writing or recordings whatsoever prepared by the Receiving Party or its representatives based upon the Disclosing Party’s Confidential Information, and receiving party will furnish to Disclosing Party a certificate signed by an authorized officer of Receiving Party supervising such destruction and attesting under penalty of perjury that Confidential Information has been permanently destroyed, except to the extent a party is advised by counsel that such destruction is prohibited by law. Notwithstanding the foregoing, neither the Receiving Party nor any of its representatives shall be obligated to return or destroy Confidential Information that has been electronically archived by any such party in accordance with its automated security and/or disaster recovery procedures and made in the ordinary course of business; provided further that any Confidential Information so shall remain subject to the confidentiality provisions contained herein for so long as it is retained by the Receiving Party, irrespective of these Term and/or the Agreement (if applicable).
8.4. The duty to protect Confidential Information shall expire three (3) years from the date of termination of these Term or the term of the Agreement (if applicable).
- INNERACTIVE DMCA POLICY.
Inneractive respects the intellectual property rights of others and expects its partners to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website athttp://www.copyright.gov/legislation/dmca.pdf, and specifically in accordance with 17 USC § 512(c)(3), Inneractive will respond expeditiously to claims of copyright infringement on mobile app/site which are using the Inneractive ad exchange and/or the Inneractive website if such claims are reported to Inneractive’s Designated Copyright Agent in accordance with the Inneractive DMCA Policy.
- REPRESENTATIONS AND WARRANTIES
10.1. Mutual. Either Party represents and warrants that: (a) it has all requisite power and authority to execute and enter into these Terms and perform its obligations therein and hereunder and that it is a valid and binding agreement by such Party; and (b) the execution of these Terms, and the performance under it, will not constitute a breach or default of or otherwise violate any agreement to which either one is a party to or violate any right of any third parties arising therefrom;
10.2. Your Representations and Warranties.
10.3. Inneractive’s Representations and Warranties. Inneractive represent and warrant that: (a) the Services shall, in all relevant manners, operate materially as set out in their respective service description and shall be and are in compliance with the applicable law and does not infringe any third-party Intellectual Property Rights; and (ii) it retains all required licenses and rights to provide you with the Services.
10.4. Inneractive does not make any representation with respect to so-called “open source” or free software that may be included in the Inneractive Exchange, Inneractive Console, SDK or Tag. Inneractive hereby disclaims any and all liability to you or any third party related to any open source software that may be accompanying the Inneractive Exchange, Inneractive Exchange, Inneractive Console, SDK or Tag.
- NO WARRANTY
11.1. THE SERVICES ARE PROVIDED BY INNERACTIVE “AS IS”. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE FULLEST EXTENT ALLOWABLE BY LAW, INNERACTIVE MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF BUSINESS ABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT, OR THOSE ARISING IN THE COURSE OF OR CONNECTED TO THE PERFORMANCE HEREUNDER, AND DISCLAIMS SUCH WARRANTIES. IN ADDITION, INNERACTIVE DOES NOT REPRESENT OR WARRANT THAT: (I) THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE CONSOLE WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) THE OPERATION OF THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE CONSOLE, WILL BE UNINTERRUPTED; OR (III) YOU WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM YOUR USE OF THE SERVICES. ANY RELIANCE ON THE SERVICE, INCLUDING THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE CONSOLE IS AT YOUR OWN RISK, AND INNERACTIVE DO NOT AND WILL NOT BE LIABLE FOR THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE CONSOLE, INCLUDING WITHOUT LIMITATION ANY MISTAKES OR INACCURACIES IN ANY ADS MADE AVAILABLE THROUGH THE INNERACTIVE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED NO ASSURANCES FROM INNERACTIVE THAT YOU WILL EARN ANY PARTICULAR AMOUNT OF NET REVENUES OR THAT YOU WILL RECOUP ANY EXPENDITURE MADE IN FULFILLMENT OF YOUR OBLIGATIONS UNDER THIS AGREEMENT or that INNERACTIVE shall fill any percentage of available AD SPACE ON ANY APP.
11.2. Inneractive is not responsible for and does not provide any warranty with respect to any Content (including, without limitation, Ad Content or any App that is connected to the Inneractive Exchange. Inneractive does not have any obligation to monitor the Ad Content or the Content available on your App, and, as a result, is not responsible for the accuracy, completeness, appropriateness, legality or applicability of the Ad Content or the App Content.WHILE INNERACTIVE IS UNDER NO OBLIGATION TO DO SO, WITHOUT LIMITING ANY OTHER TERMS OF THESE TERMS, INNERACTIVE RESERVES THE RIGHT TO REMOVE AND PERMANENTLY SUSPEND ITS SERVICES WITHOUT NOTICE IN THE EVENT THE APP CONTENT IS PROVIDED IN VIOLATION OF THESE TERMS.
12.1. You (the “Indemnifying Party“) shall defend, hold harmless, and indemnify Inneractive and/or its directors, officers, employees, agents, successors and permitted assignees and/or its Affiliates and/or its directors, officers, employees, agents, successors and permitted assignees (collectively “Indemnified Party“), from and against any and all claims, damages (including punitive and exemplary), losses, fines, penalties and interests, liabilities, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, “Claims“) brought or made by any third party against the Indemnified Party arising out of or connected with the following: (a) a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under these Terms and/or the Agreement (if applicable); and/or (b) any use by Indemnifying Party, or any one on its behalf, of the Services in any manner inconsistent with or in breach of these Terms and/or the Agreement (if applicable).
12.2. The Indemnified Party shall: (a) promptly notify the Indemnifying Party of such Claim; provided that a failure to give such prompt notice shall not excuse or diminish the Indemnifying Party’s obligations under this Section, (b) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the lawsuit or Claim, and (c) give the Indemnifying Party full control and sole authority over the defense and settlement of such Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval and provided further that Indemnified Party shall not be required to allow Indemnifying Party to assume the control of the defense of a Claim to the extent that Indemnified Party determines that (i) such claim relates to the Inneractive Platform or any part thereof, (ii) any relief other than monetary damages is sought against Indemnified Party, (iii) there may be a conflict of interest between the Indemnifying Party and Indemnified Party in the conduct of the defense, or (iv) settlement of, or an adverse judgment with respect to, such Claim could reasonably be expected to establish a precedential custom or practice materially adverse to the continuing business interests of Indemnified Party, and in such events the costs of defense will be considered “Claims” as defined above. The Indemnified Party may join in the defense of such Claim with counsel of its choice at its own expense.
12.3. Infringement Claims. If in Inneractive’s sole discretion, the Services, the Inneractive Exchange, SDK or Inneractive Console is or is likely to become, subject of an infringement Claim, then Inneractive may, at its expense, either: (a) procure the right to continue distributing and using the Services the Inneractive Exchange, SDK or Inneractive Console; (b) replace or modify the Services, Inneractive Exchange, SDK or Inneractive Console so that it becomes non-infringing; or (c) terminate these Terms and the Agreement (if applicable). Notwithstanding the foregoing, Inneractive shall have no obligation for any Claim of infringement arising from: (1) any combination of the Services, Inneractive Exchange, SDK or Inneractive Console with programs, equipment or hardware not supplied or approved in writing by Inneractive, where such infringement would not have occurred but for such combination; (2) the adaptation or modification of the Services, Inneractive Exchange, SDK or Inneractive Console by you, where such infringement would not have occurred but for such adaptation or modification; or (3) the use of a the Services, Inneractive Exchange, SDK or Inneractive Console in a manner for which it was not designed or intended or which is not permitted hereunder, where such infringement would not have occurred but for such use.
THIS SECTION STATES THE ENTIRE LIABILITY OF INNERACTIVE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
- LIMITATION OF LIABILITY
IN NO EVENT WILL INNERACTIVE, ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE CONFIGURATION, INSTALLATION, DISTRIBUTION, DISPLAY OR USE OF OR INABILITY TO USE THE SERVICES, THE INNERACTIVE EXCHANGE, SDK OR THE INNERACTIVE CONSOLE UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT INNERACTIVE OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT, SHALL INNERACTIVE’S AND/OR ITS THIRD-PARTY LICENSORS’ AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE INNERACTIVE SHARE OF NET REVENUE DURING A THREE (3) MONTHS PERIOD PRECEDING THE CLAIM IN THE APPLICABLE TERRITORY AND BUSINESS SEGMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
- TERM AND TERMINATION
These Terms shall commence on the date you have provided your consent to these Terms or on the Effective Date of the Agreement (if applicable) and shall continue in force thereafter, until terminated or expired as provided herein (the “Term“):
14.1 Termination for Convenience. Either Party may terminate these Terms and/or the Agreement (as applicable you), at any time for any reason and without liability by thirty (30) days prior written notice of to the other Party for such termination.
14.2. Immediate Termination. Inneractive may immediately suspend and/or deactivate the Account, the Services, or terminate these Terms and the Agreement (as applicable), in any one of the following instances: (a) if you materially breached any obligation, representation and/or warranty contained in these Terms and/or the Agreement; (b) if you breached any obligation, representation and/or warranty contained in these Terms and/or the Agreement and failed to cure such breach within two (2) business days after receiving written notice thereof by Inneractive; (c) if you breached any material obligation, representation and/or warranty contained in these Terms and/or the Agreement and failed to cure such breach within two (2) days after receiving written notice thereof by Inneractive; (d) if you engaged in any action that, in Inneractive’s sole discretion, reflects poorly on Inneractive and/or the Services or otherwise disparages or devalues Inneractive’s reputation or goodwill; (e) if Inneractive is required to suspend or deactivate the Services or any part thereof in accordance with any applicable law or due to a court or governmental order; (f) if you become insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within thirty (30) days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. If you become subject to any of the events described in this clause (e) it shall immediately notify Inneractive in writing; or (g) if Inneractive reasonably determines that it is commercially impractical for Inneractive to continue supporting the Services, or any part thereof, under these Terms and/or the Agreement as a result of legal, business or technical considerations.
14.3. Effect of Termination. Upon the termination or expiration of the Agreement, including these Terms, for any reason: (a) all rights and licenses granted hereunder by either Party shall cease immediately, except for the Inneractive License to Inventions and you shall immediately cease using the Services and your Account; and (b) you shall promptly return to Inneractive, or destroy and certify the destruction of, all of Inneractive’s Confidential Information, in accordance with Section 8 and return to Inneractive all marketing and promotional materials provided to you by Inneractive. UPON ANY TERMINATION OR SUSPENSION, YOUR ACCOUNT WILL NO LONGER BE ACCESSED BY YOU. Furthermore, Inneractive will have no obligation to maintain any information stored in its data centers related to your Account or to forward any information to you or any third party.
14.4. The following Sections: 2.6, 6-8, 11-13, this Section 14.4 and Section 15, as well as other provisions of these Terms that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of these Terms, shall survive any termination or expiration of the Agreement.
15.1. Nothing in the Agreement, including these Terms, shall be construed as preventing or otherwise limiting Inneractive from entering into similar agreements with any third party and/or receiving similar or different services from any third party.
15.2. To enter to the Agreement, including to these Terms, you must be at least 18 years old or the legal age of majority in the jurisdiction in which you reside.
15.3. All rights which are not expressly granted herein are reserved by Inneractive. You may not make any use of the Services in whole or in part in any manner not expressly permitted by these Terms and/or the Agreement.
15.4. These Terms together with the Agreement (if applicable), constitute the entire agreement between the Parties with respect to the subject matter hereof. These Terms, together with the Agreement (if applicable) supersede any other prior or collateral agreements with respect to the subject matter hereof, whether oral or written.
15.5. Neither these Terms nor the Agreement (if applicable), nor any right, obligation or interest herein or thereto, may be assigned or delegated by you without the prior written consent of Inneractive. Any attempted unauthorized assignment or delegation shall be null and void. Inneractive may assign the Agreement, including these Terms, or any rights or delegate any obligations of Inneractive under the Agreement, including hereunder, without your consent. Inneractive will be released of all rights or liabilities under these Terms and the Agreement (as applicable), including, upon consummation of such assignment, transfer or delegations.
15.6. These Terms, together with the Agreement, shall be binding on and inure to the benefit of each of the Parties and their respective successors and assignees. The Agreement, including these Terms, are not made for the benefit of any third party who is not a party hereto, and only the parties hereto or their respective successors and permitted assigns will acquire or have any benefit, right, remedy or claim under or by reason of the Agreement, including these Terms. You will not use the Agreement, including these Terms, to enforce any contractual relationship or provision on each other and/or on Inneractive. Inneractive will not be a party to any dispute between you arising out of and/or in connection with the Agreement, including these Terms.
15.7. These Terms and the Agreement (if applicable), shall be governed by and construed under the laws of Israel, excluding its conflict of law rules and principles. Each Party agrees to submit to the personal and exclusive jurisdiction of the courts of Tel-Aviv, Israel. The parties specifically exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Notwithstanding the foregoing, Inneractive may lodge a claim against you pursuant to the indemnification clauses above, in any court adjudicating a third-party claim against Inneractive, in which case the law that governs the third-party claim against Inneractive shall also govern Inneractive’s indemnification claim against you.
15.8. Neither Party shall be liable under these Terms and/or the Agreement (if applicable), by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, acts of God, war, governmental action, or any other cause that is beyond the reasonable control of such party.
15.9. If any provision of these Terms or the Agreement (if applicable), is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of these Terms or the Agreement (if applicable), and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties hereto and has like economic effect.
15.10. The failure to require performance of any provision of these Terms or the Agreement (if applicable) shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself.
15.11. The Parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create any agency, partnership or joint-venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other, nor shall either party have any right or authority to create any obligation on behalf of the other party.
15.12. All notices required or permitted under these Terms and/or the Agreement (if applicable), shall be in English and in writing and shall be delivered (a) to Inneractive by facsimile, e-mail or other electronic means, by registered or certified mail (postage prepaid) or by overnight courier service, at the address: 17 Hamefalsim St. Petach -Tikva 4951447, P. O. BOX 3102, Israel or at such other address as Inneractive shall have furnished to you in writing and also to email: legal@Inner-active.com. Any notice to you shall be delivered to your address set forth in your Account and/or the Agreement (if applicable) or to any other address furnished by you in writing. A notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon verification of receipt via facsimile or e-mail, (iii) within one (1) business day of being sent by overnight courier, or (iv) within three (3) business days of being sent by registered or certified mail, and (b) to you – to the e-mail address provided by you in connection with your Account or the Agreement (as the case may be). For purposes of the foregoing, Inneractive shall be permitted to rely upon the e-mail address provided by you to Inneractive as provided above and shall not be responsible for delays in the delivery of e-mails which delays are not associated with Inneractive’s mail server.
Last Update Date: May 3, 2017
The following capitalized terms shall have the following meanings:
- “Advertisement” or “Ad” means the promotional text, graphics, video or rich media.
- “Advertiser(s)” means a person, organization or company that is engaged by written contract with Inneractive for the purchase of Ad Inventory and the placement of Ads via the Inneractive Exchange, including Ad agency, Ad network and demand side platforms.
- “Advertiser Data” means: (i) all data Advertiser submits to the Inneractive Exchange in a Bid for a single Ad impression, including the Ad Content, and (ii) all data Advertiser collects following the purchase of a such impression (i.e. post Bid-win) by using its own technology independently of Inneractive, excluding Ad Request.
- “Ads Inventory” means the Ad slots available on the App on which Ads may be displayed through the Services.
- “Affiliates” means any and all entities which, directly or indirectly, control, being controlled by or under common control with Inneractive.
- “App” means a mobile application or a mobile website developed and/or owned by you.
- “Ad Request” means any parameter or information transmitted to Inneractive from the App and/or from Supply Partner in connection with the App.
- “Confidential Information” means any proprietary, confidential and/or trade secret information of disclosing party and/or others possessed by disclosing party, whether furnished before or after the Effective Date of your consent to these Terms or your Agreement (as applicable), regardless of the manner in which it is furnished. Such information includes without limitation, the following: (a) any information, artwork, designs, ideas, concepts, know-how, data, products, services, processes, techniques, drawings, programs, code, inventions, computer program, formulae or test data, work in progress, engineering, manufacturing, marketing, financial, sales, suppliers, customers, investors and/or business information, whether in oral, written, graphic, or electronic form; and/or (b) any document, diagram, drawing, computer program and/or code or other communication; and/or (c) the terms and conditions of your Agreement. Any information disclosed by the disclosing party whether it is conspicuously marked “confidential”, is known or if it should have been reasonably known by the receiving party to be confidential in nature shall be considered as Confidential Information. For purposes of these Terms, Confidential Information shall not include any information that: (a) is, or subsequently becomes, publicly available without receiving party’s breach of any obligation owed to disclosing party; (b) became known to receiving party prior to disclosing party’s disclosure of such information to receiving party; (c) became known to receiving party from a source other than disclosing party by means other than by a breach of an obligation of confidentiality owed to disclosing party; or (d) is independently developed by receiving party without the use of any of disclosing party’s Confidential Information. If a particular portion or aspect of the Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of these Terms.
- “Content” means data, information, graphics, links, web pages, signs, images, software and code, files, texts, photos, audio or video, sounds, visual works, musical works, works of authorship, and components.
- “Costs” means serving costs and discrepancies related disputes, billing and payment processing fees, credit risk assessment management, fraud prevention fees, all up to a maximum 10% of the Revenue.
- “End User” means an individual user who uses the App.
- “End User Content” means any Content, information or other materials which any End User posted, uploaded, linked or otherwise submitted to or via the App and any other data collected in connection with such End User use of the App.
- “Fraudulent Activity” means any of the following activities: (a) disassemble, decompile, attempt to derive the source code of the Services or any part thereof, in whole or in part, or permit or authorize any other person or entity to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition; (b) circumvent the requirement to accept the EULA as part of the SDK installation process; (c) reverse engineer, bypassing, circumventing or manipulating the Services or any part thereof and/or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services or any part thereof; (d) hacking to a Services or any part thereof, or using the Services, or any part thereof, in order to hack into public or private infrastructure or equipment; (e) using in connection with the Services, or any part thereof, any material that contains software viruses or any other computer code, files or programs designed to interrupt, hijack, destroy or limit the functionality of any computer software, hardware, network or telecommunications equipment; or (f) any act or attempt to bypass, tamper with, abuse, manipulate and/or alter, modify or otherwise interfere with the operation of any of the Ads or any link contained within any click-through Ads, the SDK, API, the Inneractive Exchange, or the Ads placement onto the App, including without limitation, automated and/or fraudulent clicks on Ads.
- “Inneractive Console” means Inneractive’s proprietary online reporting and analysis dashboard regarding your activity via the Inneractive Exchange, developed and owned by Inneractive, excluding third party services that may be available therein (such as GeoEdge).
- “Inneractive Exchange” means a proprietary technology platform developed by Inneractive which enables App developers to sell their App’s Ad space inventory to Advertisers programmatically.
- “Intellectual Property Right(s)” means: (i) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (ii) all registered and unregistered trademarks, service marks, trade names, trade dress, logos and registrations and applications for registration thereof; (iii) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (iv) all trade secrets and confidential business and technical information (including, but not limited to, research and development, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production and other designs, drawings, engineering notebooks, industrial models, software and specifications); (v) all rights in databases and data compilations, whether or not copyrightable; and (vi) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
- “Marks” mean trademarks, service marks, trade names, trade dress and associated logos, in each case, whether or not registered.
- “Metamarkets” means a third-party tool that generates additional information on the auction behavior via the Inneractive Exchange that provides insights and analytics in connection with yield management.
- “Net Revenue” means all amounts received by Inneractive from Advertisers for Ads delivered and placed on the App via the Services minus taxes, Costs, rebates, refunds, charge-backs, make-good, bad debts or any other uncollected amounts.
- “Prohibited Activity” means: (a) any activity or use that (i) violates any applicable law, including without limitation, data protection laws, regulations or order of any court or tribunal, including without limitations, collecting, using or disclosing personal identifiable information (“PII”) from any individual (or “personal data” of End Users within the meaning of EU Directive 95/46/EC and 2002/58/EC (as amended by Directive 2009/136/EC) without obtaining End User’s prior written consent for such collection and use, collection of PII from minors in violation of the Children’s Online Privacy Protection Act of 1998 (“COPPA”) or any other similar legislation in a different jurisdiction relating to the security and privacy of minors and their personal information online; (ii) violating any industry best practices and industry self-regulatory guidelines, including the Digital Advertising Alliance Self-Regulatory Principles (“DAA”) or any other similar self-regulatory guidelines in a different jurisdiction relating to mobile advertising and protection of End User’s rights; (iii) violates, misappropriates, or infringes any third party Intellectual Property Rights, privacy rights, rights of publicity, or other proprietary or legal rights; and (iv) materially interferes or disrupts Ad serving, auction or otherwise in the proper function of the Services; (v) mask the App’s URL or App’s bundle ID, or employ any means to obscure the true source of traffic; (vi) artificially inflate impressions, clicks, or Ad requests; induce or trick the end user into clicking on an Ad (e.g. placing arrows or text such as “Click here” next to an Ad); and/or (b) include in the App any Content which: (i) is, promotes, presents, or advocates pornographic, obscene, offensive, libelous, defamatory, abusive, gambling-related, or discriminatory, promotes illegal drugs or arms trafficking, violates US export control laws, creates a risk to a person’s safety or health, or is misleading or deceptive material or is any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; (iii) contains any Nazi symbols or references; (iv) include materials which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, (c) contain viruses or similar programs that might harm data or computer systems, or (e) is otherwise or unlawful or inappropriate as determined by Inneractive in its sole discretion;
- “Revenue” means all amounts received by Inneractive from Advertisers for Ads delivered and placed on the App via the Service.
- “Tag” means Inneractive’s proprietary HTML code through which Inneractive enables the Ads to be delivered on the App in case the App is a mobile website.