Terms of Service
LAST UPDATED: 5 Oct 2019
This Contract shall commence on the date on which you Accept these Conditions upon Your registration with Advetly and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Contract.
2. PROVISION OF THE SERVICES AND THE Advetly SDK
2.1 With effect from the Effective Date, Advetly shall, subject to these Conditions:
(a) make available and allow You to access the Services;
(b) make available to You (by download or any other method notified to You) a copy of the Advetly SDK and any other Advetly Materials which Advetly deems appropriate.
2.2 You acknowledge and agree that it is Your responsibility to ensure that You have appropriate protection for Your computers and any systems that You use to access the Services or any Advetly Materials and that Advetly 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 access of the Services or use of the Advetly Materials.
2.3 You acknowledge that Advetly may immediately by notice in writing to You suspend Your access to the Services (or any part thereof) and/or the Advetly Materials. Advetly accepts no liability for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any Advetly Materials (or any part thereof)
2.4 You acknowledge and agree that (i) nothing in this Contract guarantees that the Services will be free from interruption or errors, (ii) there will be periods when the Services are unavailable and cannot be accessed and (iii) Advetly accepts no liability for any loss or damage You may suffer or incur as a result of any Service (or any part of a Service) or any Advetly Materials (or any part thereof) being unavailable at any time.
2.5 You may use Advetly’s technology products for obtaining Services including any fixes, updates and upgrades thereto as may be provided by Advetly from time to time. In connection with the Services, Advetly may provide You with certain analytics reports (“Reports”) which analyzes the data collected by Advetly from end-users. This data concerns the characteristics and activities of end-users and facilitates management of end-user data by You.
3. PROPRIETARY RIGHTS
3.1 You acknowledge that you have and obtain no rights in the Services or in any Advetly Materials or the Intellectual Property Rights in or relating to them or to receive the Services save as expressly provided in the Contract.
3.2 Advetly grants to You, with effect from the Effective Date, a limited, non-exclusive, non-transferable licence for the term of the Contract to access the Services solely for Your own internal business purposes as they relate to tracking the performance of ad-networks engaged by you and for no other purpose whatsoever.
3.3 Advetly grants to You, with effect from the Effective Date, a limited, non-exclusive, non-transferable licence for the term of the Contract to use the Advetly Materials solely for the purpose of enabling You to receive the benefit of the Services. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by Advetly.
4. USE RESTRICTIONS
4.1 You shall not:
(a) by accessing the Services, 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 of the Services by, any other person;
(b) by accessing the Services, deliberately, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similar items on to any Advetly or third party systems;
(c) distribute the Advetly Materials to any third party;
(d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any component of the Advetly SDK or any other software to which You are given access by Advetly, 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 third parties in obtaining access to the Services or the Advetly Materials.
4.2 You shall be responsible and liable to Advetly for all accessing of the Services and use of the Advetly Materials by those of Your Personnel who access the Services and/or the Advetly Materials. Any breach of any provision of the Contract caused by any such persons shall be deemed a breach of the Contract by You.
5. YOUR DATA
5.1 You shall own all rights, title and interest in and to all of Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
5.2 Advetly shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
5.3 You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to Advetly to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision and operation by Advetly of the Services (including the provision of the Services to third parties).
6. PUBLISHER PAYMENTS
6.1 Subject to the terms and conditions of this Contract, Advetly will pay You a percentage of earnings relating to advertisements run on Your properties during any given calendar month.
6.2 Payment will be made by Advetly within 60 days after the end of each calendar month from Net Revenue collected by Advetly from applicable advertisers. The Net Revenue percentage paid to You shall be determined by Advetly and may be varied in its reasonable discretion from time to time. Advetly shall make payment within 45 days after the end of each calendar month for all publisher companies operating within China that require (CNY/RMB) payment.
6.3 “Net Revenues” shall mean actual collections received by Advetly from Advertisers less the deduction of any (a) commissions due to, or revenue shares retained by, third party advertising sales networks or agencies; (b) other relevant third party commissions, taxes, rebates, refunds, make-goods and/or other set-offs of any kind; (c) any out of pocket costs paid by Advetly to third parties to serve the Advertisements pursuant to this Contract, including without limitation, data enrichment and directed marketing costs; and (d) refunds to advertisers, credit-card or electronic payment processing fees, charge-backs and provisions for bad debt and write off.
6.4 All payments will be made in US dollars ($US) unless an alternative payment currency is specifically agreed in writing by both parties.
6.5 In the event of an error in payments made to You as determined by Advetly, whether as a result of inaccurate information provided by a third party or otherwise, Advetly shall allocate any deficient amounts or deduct any overpayment in the subsequent calendar month payment due to You.
6.6 Both parties agree that Advetly expressly reserves the right to set off amounts owed to you You against any other amounts owed by You relating to other Advetly Services.
6.7 Advetly reserves the right to discontinue service, withhold payment at anytime, and/or terminate any agreement with You, without liability to You, if Advetly reasonably suspects that any of the following have occurred on the Your properties: (i) any form of fraud or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable law or is reasonably likely to have a negative commercial impact on Advetly, its advertisers or business partners. Without limitation to the foregoing, Advetly may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such fraudulent or illegal activity.
7.1 You grant to Advetly any and all necessary rights and permissions to use Your mobile web or app trademarks, trade names, logos, copyrights and other intellectual property provided during the course of the Services (“Your IPRs”) for the purpose of fulfilling Advetly’s obligations.
7.2 You acknowledge that Advetly and/or any third parties instructed or engaged by Advetly may in its sole discretion market, promote, reference, present and link (“Your IPRs”) to all potential customers and clients of Advetly in connection with the provision of the Services and You grants Advetly all necessary rights and permissions on a worldwide, perpetual, irrevocable royalty-free basis.
8.1 Each Party shall keep the other Party’s Confidential Information confidential.
8.2 The obligations of confidentiality in Condition 8.1 shall not prevent any disclosure of information which:
(a) is in, or has become part of, the public domain other than by a breach of the Contract;
(b) becomes available to the disclosing Party in a lawful manner from a third party;
(c) can be proven was independently developed by or for the disclosing Party;
(d) is required to be disclosed by law or because of a stock exchange requirement.
9. DATA PROTECTION & COOKIES
9.1 You acknowledge and agree that Advetly may, as a result of You accessing the Services, process personal data (as such terms are defined in the Data Protection Legislation) on Your behalf.
9.2 The Parties each acknowledge that You shall be the data controller and Advetly shall be the data processor (as such terms are defined in the Data Protection Legislation) in respect of all personal data processed by Advetly on Your behalf.
9.3 You warrant and represent that any personal data supplied or disclosed to Advetly under or in connection with the Contract shall be controlled, collected and transferred in accordance with the Data Protection Legislation and with all relevant requirements and guidance notes issued from time to time by any Regulator and in particular You warrant and represent that You have obtained (or will procure the obtaining of) any legally required consents to such control, collection and transfer and the processing of such personal data and/or any other tracking technology used by Advetly in providing the Services and that You shall in all respects abide by the terms of all applicable data protection laws and regulations (including the Data Protection Legislation).
You will indemnify, defend and hold Advetly, its parents, subsidiaries, affiliates, shareholders, licensors, customers, officers, and employees harmless, including costs, expenses and attorneys’ fees and other legal costs, from any liability, claim or demand made by any third party due to or arising out of: (a) Your use of the Services or Advetly Intellectual Property Rights; (b) any violation of this Contract by You including without limitation breach of representations and warranties and obligations related to confidentiality; (c) infringement by You of any third party Intellectual Property Rights or other right of any person or entity; (d) willful misconduct or gross negligence of You; (e) fraudulent or unlawful act of You.
11.1 Notwithstanding any provision to the contrary, nothing in these Conditions or the Contract limits or excludes Advetly’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation or for any liability, which may not be lawfully limited or excluded.
11.2 Save as set out in these Conditions or the Contract and to the maximum extent permitted by applicable law, Advetly 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 implied warranties of satisfactory quality and fitness for a particular purpose.
11.3 Subject to Condition 11.1, Advetly shall not be liable, however that liability arises, for consequential, special, incidental or indirect losses arising out of or in connection with the Contract.
11.4 Subject to Condition 11.1, Advetly shall not be liable, however that liability arises, for the following losses arising out of or in connection with the Contract: 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 Advetly had been advised or notified of the possibility of the Customer incurring such losses.
11.5 Subject to Condition 11.1, the total liability of Advetly under or in connection with the Contract (however that liability arises) shall be limited to $500.
11.6 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 the fact that the Services are provided without any monetary charge and that this Condition 11 shall prevail over all other provisions in the Contract.
11.7 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.
11.8 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 but not including the liability governed by Condition 11.1.
12.1 Either Party may terminate this Contract at any time by written notice to the other.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Contract for any reason:
(a) all licences granted by Advetly under this Contract shall immediately terminate; and
(b) the Customer shall uninstall or otherwise remove any means of access to the Services provided under the Contract including client software supplied by Advetly for that purpose.
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 Contact:
(a) 4.2, 5.2, 8, 9, 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.
14.1 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 Advetly (which may be delayed or withheld in its discretion).
14.2 Assignment and Subcontracting by Advetly: Advetly shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
14.3 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.
14.4 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.
14.5 Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract.
14.6 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, 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”). Advetly shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Advetly’s reasonable control.
14.7 Amendments: Advetly reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by Advetly, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to Advetly. In the event of such termination, clause 12 above shall apply.
15. GOVERNING LAW AND JURISDICTION
15.1 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 United States.
15.2 The Parties irrevocably agree that the courts of the United States 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).
16. DEFINITIONS AND INTERPRETATION
16.1 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;
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, clearly confidential;
Conditions means these terms and conditions;
Contract means the agreement formed between You and Advetly, on the terms set out in these Conditions, when you click accept;
Data Protection Legislation means the Data Protection Directive 95/46/EC, the Privacy & Electronic Communications Directive 2002/58/EC (as amended by Directive 2009/136/EC), and all laws implementing them in any European Economic Area jurisdiction, together with any and all succeeding, amending or replacement legislation and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioural advertising including, where applicable, the guidance and codes of practice issued by any Regulator;
Effective Date means the date on which you Accept these Conditions;
Group Company means (in relation to a Party) any subsidiary or holding company from time to time of a Party, or any subsidiary from time to time of a Party’s holding company;
Advetly means Advetly, a company incorporated and existing in accordance with the laws of the United States, with registered address at 535 Fifth Avenue, 4th floor, New York, NY, 10017, United States
Advetly Materials means any materials (including software, manuals, developers notes or other materials) provided to You by Advetly in relation to this Contract, including the Advetly SDK.
Advetly SDK means the software development kit provided to You by Advetly to allow you to generate data which will be processed as part of the Services.
Intellectual Property Rights means trade marks, 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;
Party means each of Advetly 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;
Services means the provision of an independent and open platform to track conversions of ad campaigns across mobile websites and apps and across campaigns running on any advertising network.
You means the person accessing the Services and/or using the Advetly Materials; and
Your Data means any data belonging to You or to third parties and used by You under licence which is stored and/or processed by Advetly as a result of the use of the Services by the Customer.
16.2 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.
16.3 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).
16.4 References to a person include an individual, company, corporation, body corporate or unincorporate, firm, partnership, public body, charity or other legal entity and that party’s personal representatives, successors and permitted assigns.
16.5 Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.
Terms for participating in Advetly Exchange. If you do not opt out from participating in Advetly Exchange within 30 days from the date of notification, you shall be deemed to have accepted these terms.