ADTRIAL TERMS OF SERVICE
Last update: March 30th 2017
ANY USE OF ADTRIAL WEBSITE AND RELATED SERVICES IMPLIES THAT YOU HAVE READ AND CONSENT TO THESE TERMS.
These Terms of Service constitute a binding agreement (this “Agreement”) between Playdigious SAS. with registered office located at 4 rue Piroux 54000 Nancy, FRANCE (“Company”) operating the service AdTrial and the Developer or Advertiser (the “Customer”) using AdTrial website (the “Site”) and/or related services (the “Company System”).
Company can review these Terms of Service at any time. In the event of changes, the applicable Terms of Service shall be those in force on the date of use. The Customer is informed of each change one month before its enforcement. If the Customer refuses to apply the new Terms and Conditions, he may close his/her account within one month following the notification of the change.
SECTION I – DEVELOPER TERMS
- License and Services.
Developer hereby grants Company the non-exclusive, worldwide right and license to solicit and sell Ads on Developer’s designated Mobile Apps (“Company Campaigns”), as set forth in Developer’s account on the Site, and to have such Ads served and displayed in Developer’s designated Mobile Apps.
- Developer’s Responsibilities.
(a) Valid Impressions and Clickthroughs. Developer shall not run “robots” or “spiders” against its Mobile Apps or use any means to artificially increase the number of impressions or clickthroughs available. For purposes of clarification, a “Clickthrough” is generated when a user clicks on an Ad in order to move to the Advertiser’s web site or trigger any other follow-on action.
(b) Cooperation. Developer shall use commercially reasonable efforts to cooperate with any reasonable Company effort or initiative relating to auditing traffic on the Mobile Apps, obtaining enhanced demographic information about users of the Mobile Apps, or other activity designed to increase the value or effectiveness of the Company System.
(c) Data Collection and Use/Personally Identifiable Information. Company will have the right to collect anonymous data (e.g., user clics, stream quality) and other related user and device information (e.g., IP address; device ID; device type; OS) through identifiers on the Mobile Apps and the Ads served thereon. This anonymous data may be used by Company and shared, in aggregated form, with advertisers and third party service providers for purposes of attribution, verification, reporting and Ad delivery optimization and targeting in and on the Company System. Company agrees not to collect any personally identifiable information about any customer or end user of the Mobile Apps.
(d) Mobile Apps Information. Upon Company’s reasonable request, Developer shall provide Company with information about its Mobile Apps to better market Ads on the Mobile Apps. Such information includes, without limitation, total downloads, monthly active users, monthly sessions, average session length and other key information that will enable Company to better market the Mobile Apps for advertising campaigns.
(a) Promotion. Subject to Developer’s prior written consent, Company may place the name and/or logo of Developer on the Site and within any of Company’s media kits and hot link to the Mobile Apps.
(b) Marketing Materials. Subject to Developer’s prior written consent, Developer acknowledges that Company may market and promote (and engage or authorize third party sales agents to market and promote) the Mobile Apps to potential Advertisers, including, without limitation, listing the Mobile Apps in directories, trade publications, Company proposals, presentations and marketing materials, and other promotional opportunities.
(a) Company Campaigns-Standard Developer’s Revenue Share. For all Company Campaigns, Developer shall receive sixty percent (60%) of Net Advertising Revenue (as defined below) (“Developer’s Revenue Share”), subject to the Bonus Developer’s Revenue Share Tiers 1 and 2 set forth below.
(b) Company Campaigns-Bonus Developer’s Revenue Share. Developer shall be entitled to receive the following respective higher “bonus” percentages of Net Advertising Revenue based on the specified aggregate number of Developer’s Playable Ads viewed within a given calendar month:
- (i) Bonus Developer’s Revenue Share Tier 1 (from 5,000,000 to 29,999,999 displays): sixty five percent (65%); and
- (ii) Bonus Developer’s Revenue Share Tier 2 (For over 30,000,000 displays): seventy percent (70%)
(c) Company can at it sole discretion sign a specific Insertion Order (the “IO”) with the Developer to settle on a specific Fee. In such case, any Term provided in the IO signed by both parties shall prevail.
“Net Advertising Revenue” is defined as gross advertising revenue recognized through the delivery of Ads by Company on Developer’s Mobile Apps, less: (i) taxes required to be paid by Company in connection with the Service, including without limitation, excise, sales, use or value added taxes or tariffs; (ii) commissions, discounts and referral fees in connection with selling Ads; (iii) technology and other transaction related costs or fees in connection with selling, serving and/or displaying Ads in Developer’s Mobile Apps; and (iv) credits required to be provided to advertisers, including any Bonus Impressions (as defined below).
(d) Advertiser-Specific Adjustments and Allocations. In cases where the Advertiser or the Advertiser’s agency uses a third party Ad measurement, invoicing or reporting system, Company may be required to deliver the Ad and/or collect fees based on the measurements and calculations of such system. This may in some cases require over-delivery of the number of campaign impressions or clicks. Company may also be required in the context of an Ad campaign to authorize “free”, “value-add” or “bonus” impressions or clicks (collectively, “Bonus Impressions”). Such Bonus Impressions may be related to delivery of a survey or may be part of the pricing of the Ad campaign. In all such cases, Developer authorizes Company to deliver such Bonus Impression on Developer’s Mobile Apps as it determines is commercially reasonable to execute and complete the Ad campaign.
- Billing and Payment.
(a) Company Billing and Payment Terms. Company shall remit Developer’s Revenue Share to Developer within sixty (60) days following the end of the calendar month in which the Developer’s Revenue Share was generated. To the extent Company pays Developer ahead of collections from any Advertiser, Company shall have a right to recapture payments to Developer in the event Advertiser fails to pay Company amounts due related to completed Ad campaigns. Company shall remit payments to the address and contact information provided by Developer after registering for a Developer account on the Company System.
(b) Discrepancies. Developer has ninety (90) days from the receipt of payment to report any discrepancy or to question the payment. Company will maintain accurate records with respect to the calculation of all payments due by Company to Developer under this Agreement. In the event there is a discrepancy of greater than fifteen (15) percent between Company’s calculation and Developer’s calculation, Developer may, no more than once per calendar year upon no less than fifteen (15) days prior written notice to Company, cause an independent auditor of nationally recognized standing to inspect the appropriate records of the Company reasonably related to the calculation of payments due hereunder during Company’s normal business hours. Such examination will be undertaken in a manner reasonably calculated not to interfere with Company’s normal business operations. The fees charged by such auditor in connection with the inspection will be paid by Developer, unless the auditor discovers an underpayment of greater than ten percent (10%), in which case Company will pay the reasonable fees of the auditor.
Developer agrees to comply with any and all technical specifications provided or posted by Company or displayed on the Site (including as necessary, incorporating any Company System SDK or other technology into Developer’s Mobile Apps) to enable the serving and display of Ads in Mobile Apps. Developer may not utilize the services of any third party advertising network mediator without Company’s prior written authorization or unless such third party has been officially certified by Company.
SECTION II – ADVERTISER TERMS
Advertiser can advertise mobile application on App Store and Google by using Company System. To do so, Advertiser can create an advertising campaign (“Campaign) defined by a Cost Per Click (“CPC”) or a Cost Per Install (“CPI”), a list of targeted country, the targeted platform that could be iOS or Android (“Platform”) and the Daily Budget.
Company does not provide a tracking system to establish and certify the Installations issued from the Campaign. Company is registered with Third party tracking system (“Third Party Tracking System”) including AppsFlyer, Adjust, MAT/Tune and Kotachava. If Advertiser is willing to run a CPI campaign, he should specify the tracking link provided by Third Party Tracking System.
Advertiser will also have the choice to allow or not the advertisement of it’s Ads on third party traffic sources that does not directly integrate Company SDK.
Company provides a Service turning Android native game demo into iOS or Android Ads. Company grants Advertiser using such feature a non-exclusive, worldwide and revocable license to use such service but exclusively through Company SDK or approved Third Parties. Failure to do so should result in the termination for breach of this agreement.
- Advertiser Fees and Payments
Advertising on Company System will require payment of fees that will be defined on a CPC or CPI base. Advertiser could define for each campaign the CPC or CPI fee he is willing to pay on specific Platforms and specific Countries. Low amount would result is low or no Ad display.
Advertiser will have the choice to pre-pay by using Company System or to sign an IO with Company that would detail specific conditions. In such case, any Term provided in the IO signed by both parties shall prevail.
(a) Promotion. Subject to Advertiser’s prior written consent, Company may place the name and/or logo of Advertiser on the Site and within any of Company’s media kits.
(b) Marketing Materials. Subject to Advertiser’s prior written consent, Advertiser acknowledges that Company may market and promote (and engage or authorize third party sales agents to market and promote) the Campaigns to potential Developers, including, without limitation, Company proposals, presentations and marketing materials, and other promotional opportunities.
SECTION III – COMMON TERMS
- COMPANY INTELLECTUAL PROPERTY RIGHTS; LICENSES.
Company owns and retains all right, title and interest in and to the Company System, including, but not limited to, all software, computer code, data, and other technologies related to the Company System, any enhancements, modifications or derivative works thereto, any materials or data made accessible to Customer by Company through the Company System, and all intellectual property and proprietary rights of any kind, anywhere in the world, in and to all of the foregoing. Company hereby grants Customer a non-exclusive, limited, revocable, license, without right of sublicense, to access and use the Company System for the sole purpose of making use of the Services as described herein. No rights are granted to combine or bundle the Company System SDK or related technology with or into any third party advertising network SDK, system or technology, or to distribute or sublicense the Company System SDK, whether or not on a stand-alone basis, to any third parties. Company reserves any and all rights not expressly granted to herein and disclaims all implied licenses, including, without limitation, implied licenses to trademarks, copyrights, trade secrets and patents.
The term “Content” as used herein specifically includes any Mobile Apps, Playable Demo, Ads or other content or materials (including, but not limited to, text, graphics, photographs, images, illustrations) made available or submitted by Customer in connection with the Site and the Services. Customer shall abide by all copyright notices, information, and restrictions contained in any Content submitted or uploaded to the Site and/or accessed in connection with the Services.
- CONTENT RESTRICTIONS.
Unless otherwise agreed in writing, Customer shall at all times comply with, and cause all of its submitted Content to comply with, the following Content restrictions and requirements (collectively, the “Content Requirements”). No Content shall contain, or contain links to, any indecent, deceptive, defamatory, libelous, fraudulent, obscene or pornographic material, hate speech, viruses, trojan horses, worms, time bombs, cancel bots or other computer code or programming routines that are intended to damage, disable, interfere with, permit unauthorized access to, surreptitiously intercept or expropriate any system, data, software or personal information, or any material that violates any other applicable law, regulation or third party right. Company reserves the right to reject, suspend or remove from the Company System any Mobile Apps that are in violation of the Content Requirements as determined by Company in its sole discretion.
- DISCLAIMERS/ASSUMPTION OF RISK.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. THE SERVICES, COMPANY SYSTEM, CONTENT, AND SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE POPULARITY OF ANY MOBILE APPS, THE RESULTS OR EFFECTIVENESS OF ANY ADS, THE BENEFITS THAT CUSTOMER MAY OR MAY NOT OBTAIN FROM THIS AGREEMENT, THE USE OF THE SERVICES AND/OR ADVERTISING THROUGH ANY MOBILE APPS THROUGH USE OF THE COMPANY SYSTEM, AND CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
- REPRESENTATIONS AND WARRANTIES; INDEMNITY.
6.1 By Customer. Customer represents and warrants to Company that: (a) Customer owns or controls the necessary legal rights to any Content that Customer designates or transmits in connection with the use of the Services; (b) Customer has all necessary rights, power and legal authority to enter into this Agreement and to access the Site and use the Services; and (c) Customer’s Content: (i) complies with the Content Requirements and all other applicable laws, statutes, ordinances and regulations; (ii) does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is free from viruses and any other contaminants of any nature whatsoever. Customer will indemnify and hold Company, and any of their parents, subsidiaries, affiliates, officers and employees, harmless, from any claim, demand, damages or loss, including costs and attorneys’ fees, due to or arising out of the breach or alleged breach of this Agreement or any of the foregoing representations and warranties by Customer.
6.2 By Company. Company represents and warrants to Customer that: (a) company owns or controls the necessary legal rights to perform the Services as contemplated by this Agreement; (b) Company has all necessary rights, power and legal authority to enter into this Agreement and to provide the Services; (c) the Services are free from viruses and any other contaminants of any nature whatsoever; and (d) the Services do not violate the intellectual property rights of any third party. Company will indemnify and hold Customer, and any of its parents, subsidiaries, affiliates, officers and employees harmless from any third party claim, demand, damages or loss, including costs and attorneys’ fees, arising out of Company’s breach of this Agreement or any of the foregoing representations and warranties.
- LIMITATION OF LIABILITY.
EXCEPT FOR EACH PARTY’S OBLIGATIONS OF INDEMNIFICATION AND CONFIDENTIALITY, NEITHER PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, SHALL EXCEED THE FEES PAID OR PAYABLE TO COMPANY BY CUSTOMER IN CONNECTION WITH SUCH CUSTOMER’S USE OF THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM. EXCEPT FOR EACH PARTY’S OBLIGATIONS OF INDEMNFICIATION AND CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR BUSINESS, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
The term “Confidential Information” shall mean this Agreement, and all information about the disclosing party’s (the “Disclosing Party”) (or its suppliers’) business, products, technologies, strategies, customers, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by the Disclosing Party to the other party (“Receiving Party”). Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure, and such persons shall have agreed in writing to maintain the confidentiality of such information. The Receiving Party shall have no obligation with respect to information which: (a) was rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (b) is, or subsequently becomes, legally and publicly available without breach of this Agreement; (c) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; or (d) is disclosed by the Receiving Party under a valid order of a court or government agency, provided that the Receiving Party provides prior written notice to the Disclosing Party of such obligation and the opportunity to oppose such disclosure. Upon termination of this Agreement for any reason or other written demand of the Disclosing Party, the Receiving Party shall cease using the Confidential Information provided by the Disclosing Party and return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of notice.
Either party may terminate the Services at any time by notifying the other party by any means. Either party may terminate this Agreement upon ten (10) days written notice, if the other party breaches any of the terms or conditions of this Agreement and such breach remains uncured during the ten (10) day notice period. Any fees paid hereunder are non-refundable and non-cancelable. Upon termination of this Agreement, Customer’s right to use the Services and the Company System will immediately cease, and if Developer has integrated the Company Service SDK into any of its Mobile Apps, Developer shall have ninety (90) days from termination to remove such SDK from its Mobile Apps. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
This Agreement shall be governed by and construed in accordance with the laws of France without regard to the conflict of laws provisions thereof. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent; provided, however, that either party may freely assign this Agreement without the other party’s consent to its parents or affiliates or to a third party in connection with a merger or acquisition of all or substantially all of the assets or equity of such party.