NativeX PROGRAM TERMS AND CONDITIONS – Updated February 8, 2021The following terms and conditions and applicable Insertion Orders (each an “Insertion Order” or “IO”) (collectively, the “Agreement”) signed between you and us will govern your various relationships and interactions with Nativex, LLC. You agree to be bound by the Agreement that is applicable to your relationship with Nativex.
ADVERTISER TERMS AND CONDITIONSThis Agreement sets forth the terms of your engaging in the Nativex Advertising Service (the “Service”). In this Agreement, “we”, “our”, “us”, or “Nativex” means Nativex, LLC and “you” or “your” refers to you, the “Advertiser.”
1. Description of Services.Nativex shall promote the Products through Nativex Platform or through third party campaigns. Nativex does not guarantee the number of Impressions, installs, completed actions, clicks or sales (the “Volume”) provided. Advertiser expressly acknowledges that Nativex’s sole obligation under the terms of this Agreement is to render the Service.
2. Advertiser’s Obligations.Advertiser agrees to provide Nativex the Product’s URL and any other materials requested so that Nativex can promote the Product. In addition, Advertiser agrees to timely incorporate the Service according to Nativex’s implementation guidelines.
3. Content.Nativex will not be responsible for any content with which the Product may be associated with through the Service and has no obligation to monitor such third-party content or applications. Nativex reserves the right, at its discretion and without notice, to remove or refuse to distribute the Product, advertisement, or offer through the Service.
4. Campaigns.Advertiser shall manage all campaigns through the Nativex Platform or through email confirmation by setting budgets, campaign rates, campaign dates and all other information relevant to a campaign. If problems arise with the performance of a campaign, Advertiser may with at least three (3) business days prior notice, request a campaign to be temporarily suspended to allow the parties to resolve and repair any possible issues. Upon receipt of notice, Nativex shall implement the suspension as soon as is practicable for Nativex provided that such implementation does not exceed three (3) business days. The campaign will resume after the problems or issues have been resolved. Unless otherwise agreed in writing between the parties, Advertiser shall pay Nativex for all reported Installs that result from Advertiser suspending or terminating (or Advertiser’s request to suspend or terminate) the campaign at any time for any reason prior to completion of the campaign. Advertiser expressly agrees to any campaign changes that Advertiser makes through Nativex Platform or via email. Advertiser is responsible for paying Nativex for all Volume generated by Nativex and for any third party campaign costs. Advertiser may, in an insertion order, request that Nativex associate a user’s location or implement other user targeting. A user’s location or other methods for user targeting will be determined solely by Nativex or its third party service provider and Advertiser agrees to pay for all Volume based on Nativex’s targeting and determination of a user’s location.
5. Reporting.Unless the applicable insertion order states that and Advertiser’s own data tracking system or its Mobile Measurement Platform (“MMP”) will be used, Nativex’s or its affiliated third party’s or service provider’s data tracking system (“Nativex Tracking”) shall prevail. However, in the event that Nativex’s Tracking is unavailable, we may at our sole discretion to rely on the Advertiser’s Mobile Measurement Platform (“MMP”) for tracking. The aforementioned MMP includes, among others, TUNE, Kochava, Adjust and Appsflyer (Nativex’s Tracking, and Advertiser’s data tracking system and the MMP each individually and collectively, the (“Data Tracking System”). Except as otherwise agreed by the parties in an applicable insertion order, view-based attribution model will be the default method applicable to the Data Tracking System. Where Nativex Tracking is used, Nativex will provide Advertiser the aggregated Volume reports on a monthly basis. The reports will reflect the total spend and Volume from Nativex’s data tracking system, Both Parties shall confirm the Volume within first 5 business days of the report and Advertiser shall pay in full within 30 days as of the issuance date of the invoice by Nativex or its Related Entity. Nativex reserves the right to exercise a “look back” and attribution window during the applicable reporting period, commencing upon the time the targeted user has viewed or clicked onto an advertisement (“Look-Back Window”). During the Look Back Window period, an Install from a user will be counted as an Install for Nativex, and Advertiser agrees to pay Nativex for such Installs. Except as otherwise agreed in writing by the parties, view-based attribution model (i.e. cost per either an Impression or a click/Intsall/other action) will be the default method which apply to the Data Tracking System. Final Volume will be included on the invoice provided by Nativex or its Related Entity. Advertiser agrees to pay for all non-reward Installs generated for up to 21 days after the campaign end date and for all reward Installs for up to 7 days after the campaign end date. Advertiser agrees to pay for all Volume on the final invoice. Advertiser may dispute an invoice within 10 days of Advertiser’s receipt of such invoice by providing Nativex with (a) written explanation of such dispute to Nativex and (b) reasonable documentation supporting the disputed amount. Nativex shall review any written explanation and supporting documentation and if it is determined that Nativex has over-reported by at least 15%, then Advertiser shall be entitled to a refund for the overcharged amount. Advertiser agrees that all undisputed invoices or undisputed portions of invoices shall be deemed accepted by the Advertiser and final after 10 days from the date in which Advertiser received such invoice.
6. Payment Terms.Nativex requires a non-refundable minimum prepayment of $3,000 prior to the start of any campaign (the “Prepayment”). Advertiser shall pay Nativex net 30 after receipt of invoice issued for any amount that exceeds the Prepayment. If Nativex approves Advertiser for credit terms, then Advertiser shall pay Nativex net 30 after receipt of invoice issued for all amounts owed. Nativex will charge the lesser of 1 ½% monthly or the highest rate allowed by law on all late payments. Advertiser shall pay all Nativex’s cost (including reasonable attorneys’ fees, court costs and collection fees paid to collection agency) for collection of unpaid amounts. Except as provided for herein, Advertiser will be responsible for all costs and expenses incurred by it in connection with the Agreement. All payments will be in U.S. currency and do not include taxes, duties, fees, and other amounts assessed or imposed by any government entity. All credit card payments are non-refundable. Advertiser shall have no right to set off any amount owed under this Agreement for any reason or purpose whatsoever except by mutual consent of the Parties.
7. License.Advertiser grants Nativex a world-wide, non-exclusive right and license to use, copy, reproduce, distribute, and display the Product and related materials through the Service. Advertiser agrees that Nativex can include Advertiser’s company, application, icons, trademarks and logos in our marketing materials and to promote the Service. Nativex Platform provides you with access to Nativex’s reports, creative, campaign, payment, and other information (“Information”). All Information and materials on Nativex Platform are proprietary and copyrighted property of Nativex or its licensors. Subject to these Terms, Nativex grants you a limited license to use Nativex Platform, only insomuch as your use is consistent with conducting business with Nativex. Any other use of Nativex Platform without Nativex’s prior written consent is prohibited, including: (a) any resale or commercial use of Nativex Platform or Information; (b) the retransmission, distribution, display or publication of the Information or any other materials available on Nativex Platform; (c) making derivative uses of Nativex Platform and Information; (d) downloading any portion of Nativex Platform or any Information, except as expressly permitted on Nativex Platform; or (e) any use of Nativex Platform or Information other than for its intended purpose.
8. Term and Termination.
8.1. Term.This Agreement will commence when Advertiser confirms and accepts this Agreement and shall continue for a period of one year (the “Term”). Thereafter, this Agreement will automatically renew for successive one year terms.
8.2. Termination.Either party may terminate this Agreement at any time upon five days written notice to the other party. Nativex may immediately terminate this Agreement if Advertiser is in breach of any terms of this Agreement.
8.3. Survival.All provisions by their nature that are intended to survive termination or expiration of this agreement, including those regarding confidentiality, representations, indemnification, and payment of fees, will survive the termination or expiration of this agreement.
9. Representations.Each party represents that the person signing this agreement on its behalf has all corporate authority to do so and to bind that party to all of its obligations hereunder; and that party is under no obligation, nor will it assume any obligation that would materially interfere with its ability to perform its obligations. Each party also represents that it will not violate any third party proprietary or intellectual property rights, applicable laws, rules or regulations. In addition, each party represents that it will comply with all United States export control laws and economic sanctions administered by the Office of Foreign Assets Control. Advertiser further represents that it will comply with all terms required by a Platform Provider and will comply with all laws and regulations regarding privacy.
11. Data Ownership.Nativex shall own all data, including user data, which Nativex collects through its API or SDK.
12.1. Indemnification.Each party agrees to indemnify the other party, its officers, directors, employees, contractors and agents from all claims (including attorneys’ fees and court costs) which allege: (i) infringement of any valid trademark, copyright, or any other intellectual property or other third party rights; (ii) a breach of any representation or obligation; (iii) a consumer complaint or government agency claim arising out of the activities of the other party, including for spam, fraud, infringement of privacy or intellectual property rights; (iv) libel or slander; or (v) any negligence, gross negligence or misconduct.
12.2. Indemnification Process.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).
13. Limitation of Liability.In no event will either party be responsible to the other party for any consequential, special, punitive or other damages, including lost revenue or profits, arising out of or related to this agreement, even if a party has been advised of the possibility of such damages. In no event will either party’s liability to the other party exceed the total amount actually paid by Advertise to Nativex during the three-month period prior to the first date on which the liability arose. 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.
14. Non-Solicitation.During the term of this Agreement and for 90 days following termination or expiration, Advertiser shall not solicit, induce, recruit, and encourage, directly or indirectly, any third party traffic distribution network whose identity is disclosed by Nativex. This section shall not apply: (a) to any third party who Advertiser has a pre-existing business relationship (evidenced by dated written documentation) for the provision of the services contemplated in a campaign; or (b) if Nativex materially breaches this Agreement and the Agreement has been terminated.
15. Confidentiality.Any information relating to or disclosed in the course of this Agreement that is or should be reasonably understood to be confidential or proprietary to Nativex, including the terms of this Agreement, information about Nativex, technical process, marketing guidelines, product designs, business plans, and marketing data, will be kept confidential by Advertiser. Furthermore, Advertiser specifically agrees not to disclose our Service rates or to provide copies of screenshots of any of our websites including but not limited to the Program Site.
16.1. Consent to Receive Electronic Records.By participating in this Program, you acknowledge that you are doing so for a business purpose with the intention of earning money. As such, you are not our customer or user and you agree that you may receive information in electronic form. Subsequent to the execution of this Agreement, you may withdraw your consent to receive electronic records and receive a paper version of any document by printing it or by emailing us your name and address. However, we may use this as a basis for terminating this Agreement, as the only way to ensure that you are current with the most recent versions of any agreement is to require that all Advertisers be able to receive and consent to receive information in electronic format, including by e-mail. You will need a computer with a web browser and internet access to receive electronic records. You may need Adobe Reader available for free from www.adobe.com for some documents. Electronic record may include terms and conditions, agreements, privacy policies, and other items. You should also have a printer connected to your computer on which you may print documents that you wish to retain as an archive or to be available to review when you are not able to access the public internet.
16.2. Governing Law.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 Advertiser’s principal place of business is in the United States of America then any controversy or claim arising out of or relating to this contract, or the breach thereof, will be determined by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The number of arbitrators will be three. The place of arbitration will be St. Cloud, Minnesota, United States of America. The language of arbitration will be English. If Advertiser’s principal place of business is outside of the United State of American then any controversy or claim arising out of or relating to this contract, or the breach thereof, will be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators will be three. The place of arbitration will be St. Cloud, Minnesota, United States of America. The language of arbitration will be English. If Advertiser’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 three. The place of arbitration shall be Hong Kong. The language of arbitration shall be English.
16.3. Notices.All notices, requests, demands, reports or other communications required or permitted under this Agreement will be in writing and are deemed to have been duly given or served when delivered to or received by mail or email. If to Advertiser, at the address or email address set forth in their application. If to Nativex: Attn: Legal Department.
Address: 4150 2nd St. S #315
St. Cloud, Minnesota 56301
17. Independent Contractors.The parties to this Agreement are independent contractors. Neither party is a partner of the other party. Neither party may enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement is not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
18. Severability/ Non-Waiver.Every provision of this Agreement is construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held invalid, illegal or otherwise unenforceable, such provision is deemed severed from this Agreement, and all other provisions will remain in full force and effect. The failure to enforce the strict performance of any provision of this Agreement or to exercise any right under this Agreement will not constitute a waiver of any party’s right to subsequently enforce such provision of any other provision of this Agreement.
19. Force Majeure.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.
20. 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 on its official website. Modifications may include changes in the scope of available referral 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 in the Program following our posting of a new agreement on its official website will constitute binding acceptance of the change.
21. Assignment.You may not assign this Agreement without the prior written consent of Nativex. This Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Nativex may freely transfer or assign any or all of its rights and obligations associated with this Agreement at any time and without consent.
22. Entire Agreement and Order of Precedence.This Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of your general terms and conditions of purchase regardless whether or when you submitted a purchase order or such terms. Nativex fulfilling your order or accepting your payment by itself does not constitute acceptance of any of your additional or different terms and conditions and does not serve to modify or amend this Agreement. In event Advertiser and Nativex have signed Insertion Orders additionally, the terms of an Insertion Order may amend and supersede these Advertiser Terms and Conditions.
23. Definitions.In addition to the capitalized terms defined within the text of these Advertiser Terms and Conditions, the following capitalized terms shall be applicable to these Advertiser Terms and Conditions.
"Advertiser" means the person or entity that signs up for the Nativex or its Related Entity’s Advertising Program.
"Product" means the mobile game and/ or the application developed and/or distributed by Advertiser that are identified on an Insertion Order.
"Confidential Information" means (i) a party’s or its Related Entity’s trade secrets, business plans, strategies, methods and/or practices; (ii) computer systems architecture and network configurations; (iii) all information which is governed by any now-existing or future non-disclosure agreement between the parties hereto; (iv) any other information relating to a party that is not generally known to the public, including information about the party’s personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (v) all analyses, compilations, studies, notes or other materials prepared which contain or are based on Confidential Information received from a party.
"Impression" means each unique instance in which the user views the Ad Unit. For video ads, an impression will be counted as a video start based on the applicable Data Tracking System.
"Install" means each time the user views and then installs the Product within the Look Back Window (as defined herein these terms), or views and/or clicks the advertisement and agrees to engage or engages in a further action(s) or step(s) such as completing a tutorial or becoming a user or member of Advertisers application or community, such further action or step(s) to be defined in an insertion order. Unless otherwise mutually agreed upon in an insertion Order, an Install is solely determine by Nativex Tracking.
"Offer/Advertisement" means a video offer, web offer, or any other non-app offer made available to users through the Service.
"Platform Provider(s)" means any mobile platform including but not limited to Apple, Google (Android), and Amazon.
"Related Entity" means a company related to Nativex, which provides certain management and other services related to the Nativex, and its successors or assigns. Any duties or obligations of Nativex hereunder may be performed by the Related Entity at the election of Nativex without notice to Advertiser, provided that Nativex remains primarily responsible for the performance of its obligations hereunder.
"Data Protection Laws" means any applicable data protection or privacy Laws. It shall include (a) the EU Data Protection Directive 95/46/EC and EU e-Privacy Directive 2002/58/EC as implemented by countries within the European Economic Area (“EEA”); (b) from 25 May 2018, the EU General Data Protection Regulation (“GDPR”) as implemented by countries within the EEA and in the UK; c) from 1 January 2020, the California Consumer Privacy Act, and/or (d) other Laws that are similar, equivalent to, successors to, or that are intended to or implement the Laws that are identified in (a), (b) and (c) above.
The terms “data controller”, “data subject”, “personal data”, “processing”, and “sensitive personal data” shall have the same meanings ascribed to them under Data Protection Laws.