This monetization terms and conditions (this “Agreement”) sets forth your relationship with NativeX, LLC. In this Agreement, “we”, “our”, “us”, or NativeX means NativeX, LLC and “you”, your”, or “Partner” means the person or entity agreed to this Agreement and any applicable Service Order.

 

  1. NativeX Obligations.
  2. NativeX shall provide Partner with the Feed that Partner will imbed in its Application to enable display of Ad Units.
  3. NativeX shall maintain the Feed, Ad Formats, and Ad Units.
  4. Reporting. NativeX shall provide the Partner with online reports. The online reports will be on NativeX’s online platform.

 

  1. Partner Obligations.
  2. Partner must implement the Feed as specified by NativeX. Partner shall accept the Feed as is and without restrictions.
  3. Unless prohibited by law, the FTC, or the Platform Provider, Partner shall provide a device ID to NativeX. If transferring a device ID is prohibited under this provision, then the parties agree to discuss in good faith alternative methods which are not prohibited.
  4. Partner shall ensure the Application incorporates the Feed. NativeX reserves the right to review and approve Partner’s implementation of the Feed and Ad Formats in accordance with the guidelines provided by NativeX.
  5. The Partner must provide NativeX with performance data as called for by NativeX’s integration documentation.
  6. Partner is solely responsible for ensuring that Users are not fraudulently completing offers or ads. Partners must put mechanisms and/or processes in place to ensure that Users are not fraudulently completing offers or ads. Partner and its User may not use a fake user ID or device ID of any kind. If Partner or a User completes an offer or ad fraudulently, as solely determined by NativeX, NativeX will not pay Partner for that traffic.
  7. Testing and Optimization. NativeX may, in its discretion and without approval, conduct tests on alternative Templates and design elements. Partner agrees to implement any new Templates or design elements that outperform existing Templates or design elements across all traffic within 10 days. Partner expressly allows NativeX to use Partner’s experimentation data and results in NativeX marketing material, including without limitation specific Templates and percentage gains.
  8. Partner must disclose to NativeX all other services, Ad Formats, and Placements they are currently running in the Applications and must provide notice to NativeX if they add any new services, Ad Formats or Placements to the Applications.

 

  1. APPOINTMENT/GRANT OF LICENSE.
  2. License Grant. NativeX grants the Partner a non-exclusive, non-transferable, non-sublicensable, worldwide license to imbed the Feeds into the Application.
  3. End User License. The Partner shall provide each User a license to download, store, and use the Application.
  4. Intellectual Property Ownership. Partner retains all rights in and to the Application, including all Intellectual Property Rights therein. NativeX retains all rights in and to the Feeds, Ad Formats, Ad Units and Ad Creatives, including all Intellectual Property Rights therein. NativeX shall own all data, including user data, which NativeX collects through the Feeds. NativeX shall own all Templates or custom designs that NativeX creates for Partner and Partner may not re-use the Templates or the custom designs. Neither party will construe anything in this agreement as granting any intellectual or other rights in the other party’s intellectual property.
  5. Restrictions. Neither party will: (i) create, attempt to create, or reverse engineer the other party’s software; or (ii) develop any derivative works of the other party’s software.

 

  1. PAYMENT TERMS

NativeX shall pay Partner the Revenue Share Payments as outlined in the Service Order. NativeX shall make all Revenue Share Payments within 45 days after the end of the calendar month in which the Revenue was earned and collected. NativeX shall not make payment (and shall have no liability to Partner) when offers or ads are completed fraudulently or by non-human user (i.e. a bot, macro program, internet agent, or other automatic means), as solely determined by NativeX.

 

  1. TERM AND TERMINATION
  2. Term. This agreement has an initial term of one year and will automatically renew for additional one year terms (the “Term”), unless terminated earlier. NativeX may terminate this agreement and any Service Order upon 30 days written notice.
  3. Termination for Breach. This agreement may be terminated by either party for cause immediately by written notice upon the occurrence of any of the following events: (i) if the other ceases to do business, or otherwise terminates its business, other than by reason of a sale of assets, merger or consolidation; (ii) if the other breaches any provision of this agreement; (iii) if the other becomes insolvent or seeks protection under any bankruptcy, receivership or other comparable proceeding; and (iv) if the transactions contemplated by this agreement have become impracticable by reason of the institution of threat by state, local, or federal government authorities.
  4. Effect of Termination. All provisions by their nature that are intended to survive termination or expiration of this agreement, including sections 3(c), 3(d), and 6-10, will survive the termination or expiration of this agreement.

 

  1. CONFIDENTIALITY AND PUBLICITY
  2. Confidentiality. Each party acknowledges that it will receive Confidential Information from the other party. Confidential information shall be deemed to include all the information one party receives from the other, except anything designated as not confidential. Each party agrees not to disclose the other party’s Confidential Information to any third party. Confidential Information may only be disclosed to those persons who have a need to know it to perform under this Agreement.
  3. Publicity. Either party may use the name or logo of the other party in publicity, advertising or other marketing activities by providing the other party with two business days’ notice to the other party. If a party objects to the use of their name or logo then the name or logo will not be used. Neither party may use the other party’s name or logo in a way that will detrimentally effect the other party’s reputation. Notwithstanding the foregoing, the Partner hereby consents to NativeX’s use of the Partner’s name and logo in customer listings. In addition, Partner expressly allows NativeX to use Partner’s performance and experimentation data in NativeX marketing material, including without limitation specific Templates and percentage gains.

 

  1. REPRESENTATIONS
  2. Partner Representations. The Partner represents that: (a) it has the authority to enter into this agreement and to grant the licenses contained herein; (b) it is duly organized, validly existing and in good standing under the laws of its state of organization; (c) the execution of this agreement and the performance of its obligations in this agreement have been duly authorized; (d) the performance of its obligations in this agreement will not violate any agreement to which it is bound; (e) its collection and use of PII is clearly disclosed in its privacy policy and the collection or subsequent use of PII will comply with all privacy and consumer protection laws; (f) it is the exclusive owner of all rights and interest in the Application (exclusive of those elements licensed from third parties); (g) it will not and the Application will not infringe upon, misappropriate or otherwise violate the Intellectual Property Rights of any third party; (h) the Application does not violate any law, rule, or regulation in any U.S. or international jurisdiction; (i) its performance of its obligations under this agreement will not violate any law, rules, or regulation in any U.S. or international jurisdiction; (j) it will comply with all United States export control laws and economic sanctions administered by the Office of Foreign Assets Control; (k) the Application does not contain any material that is defamatory, obscene, indecent, or pornographic or any computer virus or other computer programming routine that damages, detrimentally interferes with, surreptitiously intercepts or expropriates any system, data or PII; (l) the installation, use or uninstall of the Application will not result in any consumer fraud, product liability, breach of contract or cause injury to any third party or computer; (m) the Application will comply with the iPhone Developer Program License Agreement, the Android Market Developer Distribution Agreement, and any other terms required by the Platform Provider; and (n) it will, at all times, conspicuously post a privacy policy on its websites. Partner’s privacy policies shall: (1) comply with all laws and regulations regarding the privacy of visitor information; (2) be commercially reasonable; and (3) fully and accurately disclose their collection, use and disclosure of visitor information.
  3. NativeX Representations. NativeX represents that: (a) it has the authority to enter into this agreement and to grant the licenses contained herein; (b) it is duly organized, validly existing and in good standing under the laws of its state of organization; (c) the execution of this agreement and the performance of its obligations in this agreement have been duly authorized; (d) the performance of its obligations in this agreement will not violate any agreement to which it is bound; (e) its collection and use of PII is clearly disclosed in its privacy policy and the collection or subsequent use of PII will comply with all privacy and consumer protection laws; (f) it will comply with all United States export control laws and economic sanctions administered by the Office of Foreign Assets Control; (g) it will not infringe upon, misappropriate or otherwise violate the Intellectual Property Rights of any third party; (h) its performance of its obligations under this agreement will not violate any law, rules, or regulation in any U.S. or international jurisdiction; and (i) it will, at all times, conspicuously post a privacy policy on its websites. NativeX’s privacy policies shall: (1) comply with all laws and regulations regarding the privacy of visitor information; (2) be commercially reasonable; and (3) fully and accurately disclose their collection, use and disclosure of visitor information.

 

  1. INDEMNIFICATION

Each party agrees to defend at its own cost and expense any third party claim or action against the other party, its affiliates and their respective officers, directors, employees, representatives, suppliers, and agents arising out of: (a) a breach of any of the indemnifying party’s obligations or representations; (b) infringement of any Intellectual Property Rights of any third party; and (c) any injuries or damage to persons or property caused or allegedly caused by the willful misconduct or negligent acts or omissions of the indemnifying party. Furthermore, Partner agrees to indemnify NativeX against any and all User claims alleging that Partner failed to provide the User with the virtual currency or other consideration promised. Each party agrees to indemnify the other party harmless against all liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) associated with any such claim or action. The indemnifying party may conduct the defense of any such claim or action and all negotiations for its settlement or compromise, except that (i) no settlement or compromise affecting the financial or legal obligations of the indemnified party will be agreed to without the indemnified party’s prior written approval (approval will not be unreasonably withheld); (ii) the indemnified party may participate, at its own expense, in the defense and/or settlement of any such claim or action; and (iii) the indemnified party notifies the indemnifying party of a claim (provided, failure to provide timely notice will not alter the indemnifying party’s obligations except to the extent that party is materially prejudiced thereby).

 

  1. LIMITATION OF LIABILITY
  2. Lost Profits; Consequential Damages. Except for a party’s indemnification obligation, neither party is liable to the other party or any other person for any indirect, special, punitive or consequential damages, including damages for loss of goodwill, work stoppage, computer failure or malfunction, even if the party has been informed of the possibility of those damages.
  3. Limitation Direct Damages. Neither party will be liable for direct damages in excess of the amounts paid by NativeX to the Partner during the six-month period immediately prior to the time that the cause of action arose. The limitation of liability in this section will not apply to any of the following: (i) a breach of either party’s confidentiality obligations; (ii) a party’s indemnification obligation; or (iii) gross negligence or willful misconduct.
  4. Force Majeure. Without limiting the foregoing, neither party is liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strike whether legal or illegal, labor or material shortage, transportation interruption, work slowdown or any other condition beyond the control of the party.

 

  1. GENERAL
  2. Relationship of the Parties. NativeX is deemed an independent contractor supplying services to the Partner. Neither party has the power to bind or commit the other.
  3. Notices. Notices hereunder may be given by fax, U.S. mail; personal delivery, or by email provided the sender can confirm receipt of the email message by the recipient. Notices to NativeX shall be sent to NativeX, LLC, Attn: Legal Department, 1900 Medical Arts Avenue South, Sartell, MN 56377, Email:legal@nativex.com. Notices to Partner shall be sent to the address identified in the Service Order.
  4. Entire Agreement. This agreement contains the entire agreement of the parties and supersedes all prior agreements between the parties regarding the same subject matter.
  5. Modifications. NativeX may modify any of the terms and conditions contained in this agreement, at any time and in our sole discretion, by posting a new agreement. Modifications may include changes in the scope of available fees, fee schedules, payment procedures, and policies. If any modification is unacceptable to you, your only recourse is to terminate this agreement. Your continued participation following a change will constitute binding acceptance of the change.
  6. Construction. The terms of this agreement are construed in accordance with the meaning of the language used and will not be construed for or against each party by reason of the authorship of this agreement.
  7. Governing Law, Jurisdiction and Venue. The laws of the state of Minnesota will govern all matters arising out of this agreement, without regard to its conflict of laws provisions and principles, regardless of the domicile of any party. If Company’s principal place of business is in the United States of America then any action arising out of or relating to this agreement, its performance, enforcement or breach will have exclusive jurisdiction and venue in a state or federal court situated within the state of Minnesota. The parties irrevocably consent and submit themselves to the personal jurisdiction of said courts for all such purposes. If Company’s principal place of business is outside of the United States of America then any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Minneapolis, Minnesota, United States of America. The language of arbitration shall be English. If Company’s principal place of business is in China then the laws of Hong Kong will govern matters arising out of this agreement and any controversy or claim arising out of or relating to this agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Hong Kong. The language of arbitration shall be English.
  8. Non-Waiver and Cumulation of Remedies. The failure by either party to enforce any of the provisions of this agreement or any right or remedy available hereunder or at law or in equity will not constitute a waiver of such provision, right, remedy or affect the validity of this agreement. The waiver of any default by either party is not deemed a continuing waiver. Except as provided herein, all remedies available to either party are cumulative and may be exercised concurrently or separately.
  9. Recovery of Fees by Prevailing Party. If a legal action is brought relating to this agreement, the prevailing party is entitled to reimbursement of its attorneys’ fees and all its related costs.
  10. Counterparts. This agreement may be executed in two or more counterparts, each of which is deemed an original and all of which together constitutes the same instrument.

 

  1. Glossary of Terms

Ad Creative means the advertising content that is created and delivered to the User.

Ad Format(s) means NativeX’s various formats for displaying the Ad Creative, including but not limited to video, interstitials, text alerts, discovery/offer wall, and featured alerts.

Ad Unit means a combination of the Ad Creative and Template that is served up within the Placement.

Application means any mobile application identified in a Service Order and any mobile application that Partner adds through NativeX’s self-service portal or via email notice to NativeX and all Derivative Works.

Confidential Information means all information disclosed or made available by one party to the other party that is identified as proprietary or confidential at the time of disclosure or that the receiving party should reasonably understand to be confidential including financial information, business and marketing plans, operations and systems, intellectual property, data, databases, information concerning sales representatives, employees, customers and vendors, or technology, discoveries, inventions, improvements, research, development, know how, designs, product specifications, software, object code, source code, flow charts, schematics, blue prints, prototypes, devices, hardware, technical documentation and processes. Confidential Information does not include any information that: (a) was in the public domain at the time of disclosure or became publicly available after disclosure without breach of this agreement; (b) was lawfully received from a third party without confidentiality restrictions; (c) was known to the receiving party, its employees or agents without confidentiality restrictions before it was disclosed under this agreement; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information.

Derivative Works means a work based upon one or more pre-existing works as defined in 17 U.S.C. § 101.

Intellectual Property Rights means, on a world-wide basis, any and all now known or hereafter known tangible and intangible: (a) rights associated with works of authorship, including copyrights, moral rights and mass-works; (b) trademark, service mark and trade name and all similar rights along with all associated goodwill; (c) trade secret rights; (d) patents, patentable material, designs, algorithms and other industrial property rights; (e) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise; (f) rights of privacy and publicity; and (g) all registrations, applications, renewals, extensions, continuations, divisions or reissues of the foregoing now or hereafter in force.

Partner Trademarks means trademarks and brand licenses owned or managed by the Partner, or where the Partner is a licensor through a third-party agreement with rights to use those licenses as part of this agreement.

Personally Identifiable Information (or PII) means any information (i) that identifies or is used to identify, contact or locate the person to whom that information pertains, or (ii) from which identification or contact information of an individual person is derived. PII includes, but is not limited to name, address, phone number, fax number, email address, financial profiles, medical profile, social security number, and credit card information. Additionally, to the extent unique information (which by itself is not PII), including a personal profile, unique identifier, biometric information, and or IP address is associated with PII, then that unique information also will be considered Personally Identifiable Information. Notwithstanding the above, PII does not include information that is collected anonymously (i.e., without identification of the individual user) or demographic information not connected to an identified individual.

Placement means the various locations, timing and other factors which dictate when and where an Ad Unit is shown.

NativeX Revenue means the total amount NativeX receives from advertisers in connection with the Feeds within the Application less any taxes, agency, broker fees, bad debt, third party data fees and other direct expenses.

Template means Partner’s content which house the Ad Units.

User means an individual who installs the Application and views the Ad Unit. It excludes bots, macro programs, internet agents, emulators and other automatic means user to simulate actions by a natural person.