Terms of Service
Effective from: January 1, 2020 (Effective Date)
This Contract shall commence on the earlier date on which You start providing Inventory or participate in the SSP or the Mediation Platform (as such terms are defined hereunder) pursuant to the Effective Date or when You Accept these Conditions upon Your registration with Advertly and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract.
2. SCOPE AND PROVISION OF INVENTORY
2.1 As a publisher or supply partner to Advertly, You agree to participate in the supply side platform managed and operated by Advertly or its Affiliates (“SSP”) and Marketing Platform to facilitate distribution of Advertisements of Demand Partners on Your Network (collectively “Inventory”). You may also elect to participate in the mediation platform provided by Advertly which allows You to serve Your or third-party Advertisements that You make available for display on the applications and websites that You designate based upon the criteria selected by You (“Mediation Platform”).
2.2 With effect from the Effective Date, Advertly shall, subject to these Conditions,
(a) make available and allow You to access the SSP or Mediation Platform, as the case may be;
(b) make available to You (by download or any other method notified to You) a copy of SDK, API and any other Advertly Materials or Advertisements which Advertly deems appropriate in the context of this Contract.
2.3 You acknowledge and agree that it is Your responsibility to ensure that You have appropriate security for Your computers, software, data and applications including any systems that You use to provide Inventory or access any Advertly Materials or platforms and that Advertly shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your provision of Inventory or use of the Advertly Materials or platforms. You also agree to comply with the terms and conditions of any application distribution platform where Your application or site is made available for download.
2.4 These Terms do not apply to Advertly’s China SDK, and they do not authorize your integration of Advertly’s China SDK into your Inventory. Please contact your Advertly representative for China-specific integration and note that the terms of service for China integration are separate and this Contract does not apply to the same.
2.5 You acknowledge that Advertly is not obligated to fill Your Inventory with demand or allow You to access the SSP, Mediation Platform and/or Advertly Materials. Further, You acknowledge and agree that (i) nothing in this Contract guarantees that Advertly’s platforms or Advertly Materials and/or Advertisements will be free from interruption or errors, (ii) there will be periods when the same is unavailable and cannot be accessed. Advertly shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of engagement in relation to the foregoing (apart from any undisputed accrued payments due to a Party).
3. PROPRIETARY RIGHTS
3.1 You acknowledge that You have and gain no rights in the Services, Advertisements and/ or in any Advertly Materials or Advertly platforms/offerings or the Intellectual Property Rights in or relating to them save as expressly provided in the Contract.
3.2 Advertly grants to You, with effect from the Effective Date, a limited, revocable, non-exclusive, non-transferable (unless permitted) licence in Advertly Materials, that are provided to You by Advertly, at its sole discretion, for the term of the Contract to solely provide Inventory or access the Mediation Platform, to the extent applicable.
3.3 As of the Effective Date, Advertly grants to You a limited, revocable, non-exclusive, non-transferable licence for the term of the Contract to use the Advertly Materials solely for the purpose of enabling You to provide Inventory or participate in the Mediation Platform. You will have no right to copy, modify, perform, display, reproduce, make derivative works of, distribute and/or use Advertly Materials for any other purpose. You shall comply with any and all reasonable instructions, policies, conditions and security requirements in respect thereof as shall from time to time be notified to You by Advertly or updated on Advertly website from time to time, as relevant to You. Advertly reserves all right, title and interest in Advertly Materials, platforms and offerings.
4. USE RESTRICTIONS
4.1 You represent and warrant that You shall not:
(a) in the course of provision of Inventory or use of SSP or Mediation Platform, store, transmit, distribute, disseminate, publish or post any material in such a way as to breach any applicable law or regulation or to infringe the rights of, or restrict or inhibit the access to and enjoyment thereof by, any other person; (b) deliberately, recklessly, or maliciously introduce any computer viruses, worms, logic bombs or similar malware into any Advertly or third party systems; (c) distribute the Advertly Materials to any third party or provide any Inventory that You do not have the right to provide;
(d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of Advertly Materials, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
(e) assist or attempt to assist any unauthorized third parties in obtaining access to Advertly Materials or platforms/offerings without Advertly’s express authorization; (f) Re-order, modify, edit obscure or truncate in any way the Advertisements including without limitation, the advertising content, graphics, format, audio, video, sequence, or any aspect of the Advertly Materials;
(g) Share, display or disclose any Advertly Materials including Advertisements on any part of Your Network or Inventory in violation of the Content Guidelines for Publishers as available on Advertly’s website or that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third party rights;
(h) Engage in any Fraudulent Activities or illegal practices and shall comply with all laws that apply to You or Your obligations under this Contract.
4.2 You shall be responsible and liable to Advertly for all acts or omissions of Your personnel in accessing and use of the Advertly Materials platforms and Advertisements. Any breach of any provision of the Contract caused by any such persons shall be deemed a breach of the Contract by You.
5.1 Between Advertly and You, You own all rights, title and interest in and to all of Your Data and are solely responsible for the legality, rights to license, reliability, integrity, accuracy and quality of Your Data.You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to Advertly to use, process, copy, modify, amend and create derivative works of Your Data for any purpose connected with Inventory, Marketing Platform, SSP and/or Mediation Platform (including for the benefit of third parties).
5.2 Advertly has the right to make aggregated analysis, reports and/or inferences from Advertly’s use of Your Data (collectively, “Inferred Data”) and as between You and Advertly, Advertly holds all right, title and interest in such Inferred Data. Inferred Data may be used by Advertly or its Affiliates for any of its or their business purposes including without limitation for creation of audience segments, analytics, reports, insights, data platform service(s), content personalization for applications etc. for the benefit of its or their customers/partners.
5.3 If Your Network, Inventory is based in the US or is targeted to or utilised by End-Users based in the US, in addition to complying with applicable laws, You represent and warrant that Your Network, Inventory and Your Data will be in compliance with all requirements and restrictions including age gating and consent requirements under the Children’s Online Privacy Protection Act (“COPPA”) and the California Consumer Privacy Act (“CCPA”), as applicable. If applications on Your Network or Inventory are directed to children under the age of sixteen(16), You will obtain verifiable user or parental consent , as required under the applicable privacy and data protection law(s) for the collection and sharing of Your Data with Advertly and you will specifically identify to Advertly the applications/Inventory that are directed to children. Advertly may elect not to serve any behavioural advertising on Inventory targeted to children.
6.1 Subject to the Conditions of this Contract and for provision of Inventory, Advertly will pay You a percentage of Net Revenue relating to Advertisements run on Inventory during any given calendar month.
6.2 Advertly shall provide You with reasonable access to its online publisher dashboard (“Dashboard”) which shall be used for monthly calculations of the payment to be made by Advertly to You. The Dashboard shall, on the 6th of every calendar month, reflect the amounts payable by Advertly to You for the preceding calendar month (“Dashboard Date”) and Advertly will make the payment within sixty (60) days (a) of the Dashboard Date; or (b) from the date of receipt by Advertly of a valid invoice raised by You, whichever is later. The payment shall be made after the conversion of the amounts in the local currency (if applicable) provided the Net Revenues are collected by Advertly from applicable advertisers or Demand Partners, subject to You providing Advertly, complete and accurate information relating to remittance of payment. The Net Revenue percentage paid to You shall be determined by Advertly and may be varied in its reasonable discretion from time to time. In case of any conflict with the amount payable under the Dashboard and the amount as raised in the invoice, the amount as reflected in the Dashboard shall prevail.
6.3 All payments will be made in US dollars ($US) unless otherwise agreed (email accepted). Notwithstanding the foregoing and Section 6.2, the payment for publishers and developers based out of China, Japan, Korea or India will be made in the local currency.
6.4 Foreign Exchange Conversion: Any conversion from local currency to USD and from USD to any local currency would be at the current average exchange rate officially published by www.xe.com based on the monthly average exchange rate for such month (month of burn) (For e.g., the amounts payable by Advertly to You for the month of April shall be reflected in the Dashboard on 6 May and accrued and converted into USD as per the current average exchange rate based on the average exchange rate for the month of April as published by www.xe.com, and the payment shall be made on or before 6th of July or sixty (60) days from the receipt of valid invoice, as the case may be). The data obtained from Dashboard shall be relied upon unless more than a 5% error or problem is detected by Advertly or You.
6.5 In the event of an error in payments made to You as determined by Advertly, whether as a result of inaccurate information provided by a third party or otherwise, Advertly shall allocate any deficient amounts or deduct any overpayment in the subsequent calendar month payment due to You.
6.6 Advertly will provide its basic Mediation Platform offering, free of charge, for Your Inventory provided You participate in SSP as a supply partner or publisher. If however, You elect to upgrade to Advertly’s premium Mediation Platform offering requiring value-added services from Advertly, then You will be charged a fee set forth in a separate insertion order for Advertisements served on Inventory. Except as otherwise set out in an insertion order for participation in premium Mediation Platform offering, You shall make the applicable payments within sixty (60) days of the date of a valid invoice sent by Advertly. Both parties agree that Advertly expressly reserves the right to set off amounts owed to You against any other amounts owed by You to Advertly.
6.7 Advertly reserves the right to discontinue Your participation in the Mediation Platform as a supply partner, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if Advertly reasonably suspects that any of the following have occurred on Your Network or Inventory: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on Advertly, its advertisers or business/Demand Partners. Without limitation to the foregoing, Advertly may, at its sole discretion, credit back to advertisers or Demand Partners and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity.
6.8 Taxes and other charges: All payments are inclusive of taxes. Excluding any taxes on the income of a Party, any taxes, including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, applicable in connection with this Contract shall be borne and remitted by the recipient Party to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, Advertly may withhold such amounts, unless You provide a certificate of exemption from such withholding taxes. In certain cases, banks may levy bank charges on payments and deduct such charges prior to remission of the same. Amounts payable to a recipient Party shall not be grossed up on account of withholding taxes or bank charges.
6.9 Advertly and You shall co-operate to enable each Party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
7.1 You grant to Advertly any and all necessary rights and permissions to use Your mobile web, site or app trademarks, trade names, logos, copyrights and other intellectual property incorporated therein for the purpose of fulfilling Advertly’s obligations including provision of the same to its Demand Partners in connection with this Contract. Advertly may mention Your name and Your Network as a customer/partner in its website, marketing, social media and sales materials.
8.1 Each Party acknowledges that Confidential Information under its control may be disclosed to the other Party during the performance of this Contract. Each Party agrees that it shall use the other’s Confidential Information solely for purposes of performing its obligations under the Contract and to take reasonable steps, which shall include, at a minimum, the steps it takes to protect its own Confidential Information, to prevent the duplication or disclosure of the other’s Confidential Information, other than by or to its employees, Affiliates or agents who must have access to the Confidential Information to perform such Party’s obligations hereunder. Publisher also acknowledges that the general restrictions under this Section 8 are subject to the express permissions granted under Section 5 (Your Data) and Section 9 (Data Collection and Use Cases). Advertly may need to share certain Publisher information including data related to Your Network (whether deemed to be Confidential Information or not) with third parties such as its data management partners, Demand Partners, attribution partners and licensors for participating on exchange(s)/marketplace, bidding, analytics, fraud detection, attribution and/or reporting purposes. Provided however, that in each such case, a Party shall ensure that the recipient employees, Affiliates, agents or third parties have each agreed to or shall each agree to be bound by confidentiality obligations no less restrictive than the terms of this Section 8. Each Party agrees that it shall not be a breach of this Section 8 to disclose the other Party’s Confidential Information that is required to be disclosed by law, regulation or order of any governmental body or regulatory authority; provided, however, that such disclosing Party must first give written notice of such required disclosure to the other Party, make a reasonable effort, at the other Party’s sole cost and expense, to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which disclosure is required and allow the disclosing Party to participate in the proceeding. The confidentiality obligations set forth herein shall continue for two (2) years following termination or expiration of this Contract with respect to Confidential Information. If the Advertisement transmission from Advertly includes any bid data or other financial information relating to the Advertisement, all such data shall be treated as Confidential Information belonging to Advertly.
8.2. Return of Confidential Information. Upon termination of this Contract, or upon disclosing Party’s request, the receiving Party shall promptly return or destroy all manifestations of Confidential Information of the disclosing Party and so certify to the disclosing Party in writing provided however that a Party may retain a copy of such Information solely for archival purposes. Requirements of deletion, return or destruction of Confidential Information will not apply to any Confidential Information incorporated within any Merged Data except to the extent required by applicable privacy laws.“Merged Data” means Your Data that has been incorporated into or merged with Advertly or its Affiliates’ existing data base/sets or pool of existing user data sets in such a manner that Your Data cannot be extracted in standalone form.
8.3 Remedies. Each Party acknowledges that any breach of its confidentiality obligations would cause irreparable injury to other Party for which monetary damages would not be an adequate remedy. Accordingly, in addition to other available remedies, in the event of such a breach, the non-breaching Party shall be entitled to appropriate injunctive relief and other equitable remedies without the posting of any bond.
8.4 Each Party may disclose the existence of this Contract, but agrees that the terms and conditions of this Contract will be treated as Confidential Information; provided, however, that each Party may disclose the terms and conditions of this Contract: (i) as required by law; (ii) as part of filings with any court or governmental entities, including without limitation national securities exchanges; (iii) to legal counsel of the parties; (iv) under the terms and conditions of a non-disclosure contract to accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Contract or rights under this Contract; or (vi) under the terms and conditions of a non-disclosure contract, in connection with an actual or proposed merger, acquisition, or similar transaction.
9. DATA – COLLECTION AND USE CASES
9.1 Advertly’s supply side integration requires certain permissions for its operation to meet the objectives of this Contract. You acknowledge that You have read and understood the publisher integration guide made available at our website at https://advertly.com/user-guide/. By virtue of integrating with the SDK or API or otherwise providing Inventory, You grant such permissions including Advertly’s ability to collect or receive data of an End User including IP address, device identifiers, advertising identifiers, online identifiers, latitude/longitude information, information regarding the device, survey inputs, carrier/manufacturer, OS type, header/footer information, demographic data, OTT (Over the top) identifiers for smart devices/T.V.s such as IFA and desktop identifiers (to the extent applicable to Your Inventory) or other performance data generated from an End-User’s interaction with Advertisements or Inventory. You acknowledge and agree that where any such data or component thereof is considered as personal data or personal information under applicable privacy or data protection laws, You undertake that prior to You granting Advertly such permissions, You will notify your End Users that you provide such information to other partners like Advertly, and will obtain all necessary consents for collection, sharing, and/or use thereof by such partners (as permitted) including Advertly or its Affiliates as envisaged under this Contract namely for targeted advertising, hosting survey based campaigns, data analytics (including creation of audience profiles, segments, insights) and content personalization through various channels.
9.3 In the event You are sharing or permitting Advertly to infer fine location of an End-User from WIFI identifiers, You will ensure that You have obtained consent of such End-User prior to sharing or providing such permissions.
9.4 You warrant and represent that, (i) any personal information or personal data as such terms are envisaged under applicable privacy and data protection legislation (including for End-Users in EEA under General Data Protection Regulation (GDPR) and for End Users in California, the CCPA) supplied or disclosed to Advertly under or in connection with the Contract shall be collected and transferred in accordance with the applicable privacy legislation and with all relevant requirements and guidance notes issued from time to time by any Regulator and; (ii) You have, where applicable, provided the requisite notice to End Users and obtained any legally required consents to effectuate collection, transfer and use of such personal data or personal identifiable information by Advertly for its business purposes including targeted advertising / surveys whether through technical integration or otherwise and that You shall in all respects abide by the terms of all applicable laws;
9.5 where You are sharing any Personal Data of Data Subjects in EEA (as such terms are defined under GDPR), You agree to accept the terms of Advertly’s Data Protection Rider as set out in www.Advertly.com/publisher-data-protection-rider whereby You acknowledge that Advertly is a controller as envisaged under GDPR.
9.6 where You are sharing any personal information of a California based consumer as envisaged under CCPA (as such terms are defined under CCPA), You agree to comply with the requirements of CCPA prior to provision of such End-User’s personal information with Advertly for the purposes set out under this Contract.
Where You are sharing personal information of End-Users based out of U.S. or California as a supply partner through SDK integration, You agree to accept the terms of Advertly’s Privacy Addendum Supply Partners whereby You acknowledge that Advertly is business as envisaged under CCPA.
Where You are sharing personal information of End-Users based out of U.S. or California as a supply partner monetizing through affiliate promotion channel (off-network), You agree to accept the terms of Advertly’s Privacy Addendum for Publishers participating in affiliate program whereby You acknowledge that Advertly is business as envisaged under CCPA.
Where You are sharing personal information of End-Users based out of U.S. or California as a supply exchange partnering with us through our demand-side platform, You agree to accept the terms of Advertly’s Privacy Addendum for Supply Exchange whereby You acknowledge that Advertly is business as envisaged under CCPA.
9.7 You shall promptly and no later than within forty-eight (48) hours of receiving notice from an End-User (pursuant to verification), notify Advertly (email accepted), in the event an End-User has exercised his/her right to opt-out of behavioural targeting or to the extent available to such End-Users under applicable data protection laws the right to opt-out of selling of his/her personal information or other data subject rights such as right to know, right to information, right to access, right to request correction or right to request deletion of their data etc. through Your Network (collectively “Opt-Out”).
9.7 If the Advertisement transmission from Advertly includes any bid data or other financial information relating to the Advertisement, all such data shall be treated as Confidential Information belonging to Advertly.
10.1 You will indemnify, defend and hold Advertly, its parent, subsidiaries, affiliates, shareholders, licensors, customers, officers, and employees harmless, including costs, expenses and attorneys’ fees and other legal costs, from any and all losses, damages, penalties liability, claim or demand made by any third party due to or arising out of: (a) Your provision of Inventory, use of SSP or Advertly Materials; (b) any material violation of this Contract by You including without limitation breach of representations and warranties and/or obligations related to confidentiality and Your Data; (c) infringement by You of any third party Intellectual Property Rights or other right of any person or entity; (d) wilful misconduct or gross negligence by You; (e) fraudulent or unlawful act of You; (f) Your breach or alleged breach of any undertaking made under Section 9; (g) Any material displayed in Your Network which do not comply with all applicable laws, statutes and regulations; (f) Any material displayed in Your Network which contain content that is obscene, defamatory, illegal, libellous, or slanderous, or hate-related.
10.2 Any claim for indemnification hereunder shall be subject to the following provisions: (i) You shall be given prompt written notice of the claim by Advertly, provided that any delay in providing notice shall not relieve You of Your indemnity obligations under this Contract unless, and only to the extent, You were prejudiced by the delay; and (ii) Advertly shall reasonably cooperate with You and Your counsel at Your cost and expense. Advertly may participate in the defense and settlement of the claim and using attorneys selected by Advertly. Each party shall make all reasonable efforts to mitigate damages.
11.1 Save as set out in these Conditions or the Contract and to the maximum extent permitted by applicable law, Advertly excludes and disclaims all conditions, terms, representations (other than fraudulent misrepresentations) and warranties relating to the subject matter thereof, whether imposed by statute or by operation of law or otherwise, that are not explicitly stated in the Contract including the warranties of satisfactory quality, merchantability, non-infringement and fitness for a particular purpose.
11.2 Advertly shall not be liable, however that liability arises, for the following losses arising out of or in connection with the Contract: consequential, special, incidental or indirect losses; loss of profits; loss of revenue; loss of business; loss of technology; loss of opportunity; loss of contracts; loss of anticipated savings; loss of goodwill; or loss of, or damage to, data, even if such loss was reasonably foreseeable or Advertly had been advised or notified of the possibility of You incurring such losses.
11.3 The aggregate liability of Advertly for all claims arising out of or in connection with the Contract (however that liability arises) shall be limited to actual direct damages up to $1000.
11.4 Notwithstanding any provision to the contrary, nothing in these Conditions or the Contract limits or excludes Advertly’s liability for fraud or fraudulent misrepresentation or for any liability, which may not be lawfully limited or excluded.
11.5 You acknowledge and agree that the limitations and exclusions of liability contained in these Conditions and the Contract are reasonable in view of the nature and extent of the obligations accepted by each Party under the Contract and that this Condition 11 shall prevail over all other provisions in the Contract.
11.6 If any limitation provision contained in these Conditions or the Contract is held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted, but if a Party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out in these Conditions.
11.7 For the purposes of this Condition 11, ‘however that liability arises’ means howsoever arising, whether in contract, tort (including negligence and strict liability), breach of statutory duty, or otherwise.
11.8 Notwithstanding any Conditions to the contrary stated in the Contract, Your liability with regard to Section 9 and Indemnification obligations under Section 10 shall be unlimited.
Either Party may terminate this Contract at any time by providing 15 days’ written notice (email sufficient) to the other Party.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Contract for any reason:
(a) All licenses granted by Advertly under this Contract shall immediately terminate; and (b) You shall uninstall or otherwise remove any means of access to the SSP including client software and Advertly SDK/API supplied by Advertly for that purpose; (c) You shall immediately return any and all of the Confidential Information of Advertly and any and all of the Advertly Materials provided to You by Advertly.
13.2 The termination of the Contract shall be without prejudice to any accrued rights and obligations of the Parties arising under the Contract prior to such termination.
13.3 The following Conditions shall survive the expiry or termination of the Contract: (a) 4, 5, 8, 9, 10, 11, 13, 14 and 15; and (b) any other provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
15.1 Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under this Contract to any third party without the prior written consent of Advertly (which may be delayed or withheld in its discretion).
15.2 Assignment and Subcontracting by Advertly: Advertly shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
15.3 No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
15.4 Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
15.5 Entire Agreement: This Contract constitutes the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) between the Parties relating to the subject matter of this Contract. If You enter into a written contract for provision of Inventory with Advertly, the terms of the written contract shall prevail over this Contract, to the extent of any inconsistencies, provided however that, if You continue to provide Inventory to Advertly pursuant to expiry or termination of the written contract, You agree that the Conditions of this Contract will apply to such transactions.
15.6 Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, cyber intrusion/hacks not arising out of a Party’s negligence or recklessness, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). Advertly shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Advertly’s reasonable control.
15.7 Amendments: Advertly reserves the right to amend these Conditions at any time with prior written notice to You, without incurring any liability to You. All amendments shall take effect 15 days from the notice date of such change. In the event that You object to any amendment to these Conditions made by Advertly, You shall be entitled, during the period of 15 days following notice the amendment, to terminate this Contract by notice in writing to Advertly. In the event of such termination, Section 12 above shall apply. If You continue to provide Inventory or access SSP or Mediation Platform 15 days after notice, You shall be deemed to have accepted the amended Conditions and the same shall be binding upon You. We urge You to check the Conditions periodically to note any such amendments.
16. GOVERNING LAW AND JURISDICTION
16.1 These Conditions, the Contract and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of New York, United States.
16.2 Unless otherwise agreed to by parties in an agreement and/or addendum, the Parties irrevocably agree that the Courts of New York shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Conditions and/or the Contract or their subject matter or formation (including non-contractual disputes or claims).
17. DEFINITIONS AND INTERPRETATION
17.1 Unless the context otherwise requires, the following definitions apply in these Conditions:
- Accept means Your clicking ‘Accept’ to signify that you accept these Conditions and agree to this Contract;
- Advertisements: means all the advertising content provided by Advertly on behalf of Demand Partners for distribution on Your Network;
- Affiliate as used herein means, with respect to a Party, an entity that directly or indirectly controls, is controlled by or is under common control with such arty. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest of an entity.
- Confidential Information means information (including confidential or sensitive commercial; financial; marketing; and/or technical information in written, electronic or any other form or medium) which is marked ‘confidential’ or ‘secret’ or is, by its nature shall be considered confidential by a reasonable prudent person;
- Conditions means these terms and conditions;
- Contract means the agreement formed between You and Advertly, on the terms set out in these Conditions, when you click accept;
- Demand Partners mean partners who purchase digital inventory through the Marketing Platform for the purpose of displaying Advertisements;
- End-User means visitors, users, consumers of the digital properties, site(s) and/or application(s) that comprise Your Network or Inventory;
- Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (a) generate impressions of or clicks on any Advertisement through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (b) mislead users to click on Advertisements; (c) in any way minimize or obstruct the display of any Advertisements, or edit, modify, filter or change the order of the information contained in any Advertisements; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by Advertly; or reverse engineer, decompile or disassemble any Advertly Materials;
- Gross Revenues means the amounts due and owing to Advertly from advertisers/Demand Partners for distribution of Advertisements on Your Network as received by Advertly;
- Advertly means Advertly LLC, a company incorporated and existing in accordance with the laws of the New York, United States with registered office at 535 Fifth AvenueNew York, NY, 10017, United States, acting on behalf of itself and its Affiliates;
- Advertly Materials means any materials (including software, data, platforms, manuals, developers notes or other materials) provided to You by Advertly or its Affiliates in relation to this Contract, including the Advertly SDK or API;
- Advertly SDK means the software development kit provided to You by Advertly or its Affiliates to allow you to generate data in the course of provision of Inventory;
- Intellectual Property Rights means trademarks, service marks, and rights in the nature of passing off and unfair competition, get-up, trade dress, registered designs and unregistered designs and design rights, business and trading names, domain names, topography rights, copyright (including copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future subsist in any part of the world (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, each for their full term including extensions, revivals and renewals thereof;
- Marketing Platform means suite of advertising or monetization services/products (including survey based) whether run on network, exchanges or off-network channels, owned and operated application(s)/widgets, end-to-end marketing automation solutions for marketers, fraud detection, reporting, audiences, attribution and analytics;
- Net Revenues means Gross Revenues, less Advertly’s creative charges, cost of sales and Advertisement serving costs, including (a) any commissions due to, or revenue shares retained by, third party advertising sales networks or agencies, (b) any out of pocket costs paid by Advertly to third parties to serve the Advertisements pursuant to this Contract (c) data enrichment, measurement costs, and directed marketing costs, and (d) refunds to advertisers/Demand Partners, credit card or bank charges, foreign exchange fluctuations impact, electronic payment processing fees, chargebacks, and bad debt;
- Party means each of Advertly and You and Parties shall be construed accordingly;
- Personnel means a Party’s directors, officers, employees, workers, agents, third party service providers, successors, subcontractors and permitted assignees;
- Regulator means any regulator or regulatory body which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Contract or any other aspect of Your business or affairs;
- Your Network means (a) digital website(s), properties or application(s) owned/ operated or contracted by You (with third parties), and (b) the digital websites, properties or applications that are added or removed from Your Network during the Term including desktop, mobile, smart appliances or gadgets, over-the-top applications (OTT) etc. as approved by Advertly from time to time;
- You means the person or entity accessing the SSP or providing Inventory or participating as a supply partner in Mediation Platform; and
- Your Data means any data including End-User data obtained from You or collected by You or Your third parties and which is provided to Advertly and/or obtained or permitted to be collected by Advertly as a result of the provision of Inventory or Your participation in the SSP or Mediation Platform.
17.2 A reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute, as may be amended and in force from time to time.
17.3 The words and phrases “include”, “including” and “in particular” (and any variations of these words, or similar words) shall be deemed to be immediately followed by the words “without limitation” (where such words do not already immediately follow in these Conditions).
17.4 References to a person include an individual, company, corporation, body corporate or unincorporated, firm, partnership, public body, charity or other legal entity and that Party’s personal representatives, successors and permitted assigns.
17.5 Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.
18. Terms for participating in Advertly Exchange. If you do not opt out from participating in Advertly Exchange within 30 days from the date of notification, you shall be deemed to have accepted these Conditions.
If you are an advertiser/Demand Partner, please refer the Advertiser Terms to comply with any specific requirements, regulations and/or laws.