NATIVEX PROGRAM TERMS AND CONDITIONS – Updated June 20, 2018
The following terms and conditions will govern your various relationships and interactions with NativeX, LLC. You agree to be bound by the terms and conditions that are applicable to your relationship with NativeX.
ADVERTISER TERMS AND CONDITIONS
This Agreement sets forth the terms of your participation in the NativeX Advertising Program (the “Program”). In this Agreement, “we”, “our”, “us”, or “NativeX” means NativeX, LLC and “you” or “your” refers to you, the “Advertiser.”
- Enrollment in the Program.
To enroll, you must submit a completed registration in writing via email or the Program Site. We may reject your registration in our sole discretion. We may terminate this Agreement and your participation in the Program, in our sole discretion. When enrolling in the Program, you will be required to select a User Name or use your email as the User Name and Password. You are responsible for maintaining the confidentiality of your User Name and Password and are fully responsible for all activities that occur under your User Name and Password. If you believe that your account is no longer secure, you must promptly change your Password and inform us of the violation at firstname.lastname@example.org.
- Description of Services.
NativeX shall promote the Applications through NativeX’s reward and non-reward feeds and through third party campaigns (the “Services”). NativeX does not guarantee the number of Installs provided. Advertiser expressly acknowledges that NativeX’s sole obligation under the terms of this Agreement is to render the Service.
- Advertiser’s Obligations.
Advertiser agrees to provide NativeX the Application’s iTunes or Google Play link and any other materials requested so that NativeX can promote the Application. In addition, Advertiser agrees to timely incorporate the Service according to NativeX’s implementation guidelines.
NativeX will not be responsible for any content with which the Application may be associated with through the Services 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 Application, advertisement, or offer through the Service.
Advertiser shall manage all campaigns through the Program Site 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 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 the Program Site or via email. Advertiser is responsible for paying NativeX for all Impressions, installs, completed actions or clicks (the “Volume”) generated by NativeX and for any third party campaign costs. All prices are in United States dollars and do not include taxes that may be assessed by any jurisdiction which shall be Advertiser’s responsibility. 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 Installs, Impressions, clicks and actions based on NativeX’s targeting and determination of a user’s location.
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 will used (“NativeX Tracking”). 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 install/action/click counts reports on a monthly basis. The reports will reflect the total spend and impression, Install, actions and/or click counts 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.
- 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 the end of the month for any amount that exceeds the Prepayment. If NativeX approves Advertiser for credit terms, then Advertiser shall pay NativeX net 30 after the end of the month 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 and court costs) for collection of unpaid amounts. All credit card payments are non-refundable. 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.
Advertiser grants NativeX a world-wide, non-exclusive right and license to use, copy, reproduce, distribute, and display the Application and related materials through the Service. Advertiser agrees that we can include Advertiser’s company, application, icons, trademarks and logos in our marketing materials and to promote the Service. The Program Site provides you with access to NativeX’s reports, creative, campaign, payment, and other information (“Information”). All Information and materials on the Program Site are proprietary and copyrighted property of NativeX or its licensors. Subject to these Terms, NativeX grants you a limited license to use the Program Site, only insomuch as your use is consistent with conducting business with NativeX. Any other use of the Program Site without NativeX’s prior written consent is prohibited, including: (a) any resale or commercial use of the Program Site or Information; (b) the retransmission, distribution, display or publication of the Information or any other materials available on the Program Site; (c) making derivative uses of the Program Site and Information; (d) downloading any portion of the Program Site or any Information, except as expressly permitted on the Program Site; or (e) any use of the Program Site or Information other than for its intended purpose.
- Term and Termination.
- Term. This Agreement will commence when NativeX approves your registration and shall continue for a period of one year (the “Term”). Thereafter, this Agreement will automatically renew for successive one year terms.
- 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.
- 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.
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.
- Data Ownership.
NativeX shall own all data, including user data, which NativeX collects through its API or SDK.
- 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 defamation; or (v) any negligence, gross negligence or misconduct.
- 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).
- 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.
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.
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.
- 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.
- 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 one. 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 one. 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 one. The place of arbitration shall be Hong Kong. The language of arbitration shall be English.
- 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
- 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.
- 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.
- 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.
- 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 the Program Site. 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 the Program Site will constitute binding acceptance of the change.
- 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.
- Entire Agreement. 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 custom Advertiser Terms and Conditions, the custom Advertiser Terms and Conditions shall supersede these Advertiser Terms and Conditions.
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. “Application(s)” means all mobile applications that are owned by or licensed to Advertiser. “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 Application 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.
“Program Site” means https://platform.nativex.com or https://selfservice.nativex.com/, where Advertiser can access their account.
“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; and/or (c) other Laws that are similar, equivalent to, successors to, or that are intended to or implement the Laws that are identified in (a) and (b) 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.
MONETIZATION TERMS AND CONDITIONS
This Agreement sets forth the terms of your participation in the NativeX Monetization Program (the “Program”). In this Agreement, “we”, “our”, “us”, or “NativeX” means NativeX, LLC and “you” or “your” refers to you, the Publisher.
- NativeX OBLIGATIONS.
NativeX shall provide you with the Feed that you will imbed in the Application to enable display of Ad Units.
b. NativeX shall maintain the Feed, Ad Formats, and Ad Units.
c. Reporting. Unless otherwise agreed upon in an insertion order, where NativeX Tracking is used, NativeX shall provide Publisher with online reports. The online reports will be on NativeX’s online platform.
- PUBLISHER OBLIGATIONS.
- Publisher must implement the Feeds as specified by NativeX. Publisher shall accept the Feeds as is and without restrictions.
- Unless prohibited by law, the FTC, or the Platform Provider, Publisher 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.
- Publisher shall ensure the Application incorporates the Feed. NativeX reserves the right to review and approve Publisher’s implementation of the Feed and Ad Formats in accordance with the guidelines provided by NativeX.
- The Publisher must provide NativeX with performance data as called for by NativeX’s integration documentation.
- Publisher represents and warrants that: (i) the Application is not directed at children under the Children’s Online Privacy Protection Act (COPPA) and any implementing rules; or (ii) notwithstanding 2.e.(i) if the Application is or becomes directed at children under COPPA, Publisher shall promptly notify NativeX of such change.
- Publisher is solely responsible for ensuring that Users are not fraudulently completing offers or ads. Publisher shall implement mechanisms and/or processes to ensure that Users are not fraudulently completing offers or ads. Publisher and its User may not use a fake user ID or device ID of any kind. If NativeX determines that there is possible criminal activity or if it is likely that a Publisher or a User has completed an offer or ad fraudulently, as solely determined by NativeX, NativeX will not pay Publisher for that traffic.
- Testing and Optimization. NativeX may, in its sole discretion and without approval, conduct tests on alternative Templates and design elements. Publisher agrees to implement any new Templates or design elements that outperform existing Templates or design elements across all traffic within 10 days. Publisher expressly allows NativeX to use Publisher’s experimentation data and results in NativeX marketing material, including without limitation specific Templates and percentage gains.
- APPOINTMENT/GRANT OF LICENSE.
- License Grant. NativeX grants the Publisher a non-exclusive, non-transferable, non-sublicensable, worldwide license to imbed the Feeds into the Application.
- End User License. The Publisher shall provide each User a license to download, store, and use the Application.
- Intellectual Property Ownership. Publisher 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 Publisher and Publisher 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.
- 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.
- PAYMENT TERMS.
As consideration for Publisher’s compliance with the terms of this Agreement, NativeX shall pay a Commission to Publisher. Commissions will be based on then current rates and adjusted NativeX Revenue as reported by NativeX, provided that any refunds due to an advertiser after the reporting period shall be payable from Publisher to NativeX and NativeX reserves the right to offset these amounts from future Commissions. NativeX shall make all Commission 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 Publisher) when offers or advertisements 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.
- TERM AND TERMINATION.
- 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 upon 30 days written notice.
- 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.
- 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.
- CONFIDENTIALITY AND PUBLICITY.
- 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.
- 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 Publisher hereby consents to NativeX’s use of the Publisher’s name and logo in customer listings. In addition, Publisher expressly allows NativeX to use Publisher’s performance and experimentation data in NativeX marketing material, including without limitation specific Templates and percentage gains.
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, Publisher agrees to indemnify NativeX against any and all User claims alleging that Publisher 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).
- LIMITATION OF LIABILITY.
- 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.
- Limitation Direct Damages. Neither party will be liable for direct damages in excess of the amounts paid by NativeX to the Publisher 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.
- 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.
- Notwithstanding Sections 9(a) – 9(c), Publisher agrees to pay (exclude from the foregoing limitation of liability) NativeX any damages including direct, incidental, and consequential damages if Publisher or its User engage in fraud, as solely determined by NativeX. For avoidance of doubt Publisher shall be liable for all direct, incidental, and consequential damages if Publisher’s actions cause one of NativeX’s advertisers to terminate its relationship with NativeX.
- Relationship of the Parties. NativeX is deemed an independent contractor supplying services to the Publisher. Neither party has the power to bind or commit the other.
- Notices. Notices hereunder may be given by fax, U.S. mail; personal delivery to Publisher at the address listed in the Publisher’s account and to NativeX at the address listed below, or by email provided the sender can confirm receipt of the email message by the recipient.NativeX
Attn: Legal Department,
4150 2nd St. S #315
St. Cloud, Minnesota 56301
FAX 320-257-7639 320-257-7639
- Entire Agreement. In the event Publisher and NativeX have signed a custom agreement, that custom agreement shall supersede these Monetization Terms and Conditions.
- 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 the Program Site. 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 in the Program following our posting of a new agreement on the Program Site will constitute binding acceptance of the change.
- 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 Publisher’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.
- 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.
- 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.
- 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.
11. GLOSSARY OF TERMS.
For purposes of the Monetization Terms and Conditions, these terms are defined as follows.
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(s) means all mobile applications that are owned by or licensed to Publisher 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.
Feed means collectively any API, SDK, or other technical means provided by NativeX to display Ad Formats and Ad Units.
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.
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.
Publisher Trademarks means trademarks and brand licenses owned or managed by the Publisher, or where the Publisher 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, refunds, third party data fees and other expenses.
Template means Publisher’s content which house in 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.