Terms of Service
Last Updated Date: February, 2016IMPORTANT – PLEASE READ THESE TERMS AND CONDITIONS (“AGREEMENT”) CAREFULLY AS THEY CONTAIN THE LEGAL TERMS AND CONDITIONS PURSUANT TO WHICH Moblyft LLC. (“Moblyft”) WILL PROVIDE YOU WITH THE AD MEDIATION AND ANALYTICS PLATFORM OFFERED BY Moblyft (“Moblyft PLATFORM”), INCLUDING THE MOBLYFT PROPRIETARY SOFTWARE, SDK, INTERFACES, AND API PROVIDED TO ACCESS THE MOBLYFT PLATFORM (THE “SOFTWARE” AND, TOGETHER WITH THE MOBLYFT PLATFORM, THE “SERVICES”), FOR USE WITH MOBILE APPLICATIONS DISTRIBUTED BY YOU (EACH, AN “APPLICATION”) TO END USER CUSTOMERS (EACH, AN “END USER”). DURING THE TERM AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PARTIES WILL SHARE ADVERTISING REVENUE AS SET FORTH BELOW. BY CLICKING ON THE “I AGREE” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND THE TERMS OF ANY ORDER FORM YOU ENTER INTO WITH MOBLYFT (“ORDER”) FOR THE SERVICES, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS, PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE PUBLISHER, AND TO BIND THAT COMPANY TO THESE TERMS. THE TERM “PUBLISHER” REFERS TO THE INDIVIDUAL OR A LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR OR USES THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD CLICK ON THE “CANCEL” BUTTON AND THEREBY DECLINE TO USE THE SERVICES.
MOBLYFT RESERVES THE RIGHT TO CHANGE OR MODIFY ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AT ANY TIME, IN ITS SOLE DISCRETION, BY POSTING CHANGES AT HTTP://WWW.MOBLYFT.COM/TERMS-OF-SERVICE (OR SUCH OTHER URL THAT MOBLYFT MAY PROVIDE FROM TIME TO TIME). YOU UNDERSTAND AND AGREE THAT IT IS YOUR OBLIGATION TO CHECK THIS AGREEMENT FROM TIME TO TIME TO APPRISE YOURSELF OF ANY CHANGES. YOUR CONTINUED USE AND/OR INSTALLATION OF ANY PART OF THE SERVICES FOLLOWING THE POSTING OF SUCH CHANGES OR MODIFICATIONS WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
- Services and License.
- Moblyft Platform and Access. Subject to the terms and conditions of this Agreement, Publisher may integrate and use the Moblyft Platform, including the Moblyft SDK, with its Applications. The Moblyft SDK utilizes Software included in each Application that collects information about each End User and their mobile device which is transmitted to the Platform for advertising optimization purposes (“User Data”) (together with all other information transmitted to the Services by Publisher, collectively the “Publisher Data”). Publisher will obtain all consents and licenses necessary, if any, for Moblyft to have the right to use such Publisher Data to provide the Services. The Moblyft Platform is a comprehensive analytics solution that includes analytics and ad mediation, which aggregates ad network partners (“Advertisers”) and selects ads to be delivered via the Application (“Advertising”) based on its framework designed to optimize advertisement delivery and advertising revenue. Subject to the terms of this Agreement, Moblyft hereby grants Publisher the right to access the applicable Services via the web-based platform available at a URL specified by Moblyft.
- Modification. Moblyft endeavors to continuously improve the Services and adds new features and functionality and removes older features and functionality from time to time. As a result, Moblyft reserves the right to, and will, modify the Services from time to time. Moblyft reserves the right to suspend Publisher’s access to the Services: (a) for scheduled or emergency maintenance, (b) in the event Publisher is in breach of this Agreement, or (c) for any other purpose deemed necessary by Moblyft.
- Publisher Data. Publisher hereby grants to Moblyft a limited royalty-free license during the Term to reproduce, translate, encode, publish, use, and distribute the Publisher Data for the purpose of providing, improving and optimizing the Services to Publisher and to fulfill Moblyft’s obligations under this Agreement.
- Software License. Subject to the terms and conditions of the Agreement, Moblyft hereby grants Publisher a non-transferable, non-exclusive non-sublicensable license to install, use, copy and distribute any Software needed to be integrated into Applications in object code format only, as an inseparable part of the Applications and to sublicense the right to use and copy such Software to Publisher’s End Users as part of the Applications. For certainty, Publisher is permitted to make use of the Moblyft Platform only for the purpose of this Agreement and use such Moblyft Software solely to enable the Services.
- Registration And Account Information. To register for the Moblyft Platform, Publisher must complete the registration process to create an Account at https://platform.moblyft.com/signup by providing Moblyft with current, complete and accurate information of the Publisher entity completing the registration process and Moblyft shall host and maintain for the Publisher a password-protected online account (the “Account”). Publisher understands that it is solely responsible for maintaining the confidentiality of any password or other user information on its Account and that Publisher shall be solely and fully responsible for all activities that occur in Publisher’s account with Publisher’s knowledge. Moblyft shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of Publisher’s account or password, except if such an unauthorized use results from a lack of security in the Services. Publisher agrees to promptly notify Moblyft of any known unauthorized use of Publisher’s Account, password, username or any other breach of security. If a password is lost or stolen, it is the user’s responsibility, once aware of it, to change the password and immediately notify Moblyft so that Publisher’s Moblyft Platform and Account remain both secure and functional. Publisher may add Applications to the content already listed on the Account and may select the type of Advertising it wishes to implement via the Account dashboard.
- Reports and Results. Subject to the terms and conditions of this Agreement, and as part of Moblyft Platform, Publisher may remotely access, view on and download from its Account certain tracking reports and other results, data and/or information provided to Publisher through the Moblyft Platform regarding End Users’ activity on each Application separately (collectively, “Reports“). Moblyft shall own and retain all right, title and interest in and to any Reports, at the exception of anything contained therein pertaining to any Publisher Data or elements of the Application itself. Moblyft grants Publisher a perpetual license to make and maintain copies for internal use by Publisher of such Reports in connection with Publisher’s use of the Moblyft Platform pursuant to this Agreement.
- QA Responsibilities and Application Support. Publisher shall be solely responsible for all quality assurance testing for the Applications at its own expense. Publisher shall use commercially reasonable efforts to support Moblyft recommendations for Advertising strategy for the Applications and shall promptly inform Moblyft of any Publisher action that will increase or reduce expected advertising inventory on the Applications.
- Advertising Restrictions. Publisher shall not alter, modify or otherwise interfere with the operation of any of the Advertising or any link contained within any click-through Advertising. Publisher shall promptly notify Moblyft if Publisher suspects that any third party may be tampering, with, abusing or manipulating the Services or the Advertising on the Applications.
- Services Restrictions. Publisher’s use of Moblyft Platform and any accompanying documentation (“Documentation“) is subject to this Agreement and does not include any right (other than as contemplated in this Agreement) to (a) distribute, publicly perform or display the Moblyft Platform, (b) copy, incorporate, modify, create derivative works of or otherwise make any derivative uses of Moblyft Platform or any information or content contained therein, except to the extent necessary to use the Moblyft Platform in connection to the Applications for the purpose described herein, (c) to directly or indirectly disassemble, decrypt, decompile, or otherwise reverse engineer or derive source code from all or any portion of Moblyft Platform or permit or encourage any third party to do so (except to the extent that applicable law prohibits reverse engineering restrictions), (d) resell, lease, rent, assign or other transfer any rights to Moblyft Platform to or for the benefit of third parties, except as specifically licensed hereunder, (e) use of Moblyft Platform or any Documentation other than for its intended purpose and as provided herein, (f) remove Moblyft trademarks, logos, or any identification, or proprietary or copyright restrictions from the Moblyft Platform, or (g) use similar processes and functions to develop competing products intended for commercialization. Any use of Moblyft Platform or Documentation other than as specifically authorized herein, without the prior written permission of Moblyft, email being sufficient, is strictly prohibited and will terminate Publisher’s license rights granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright, trademark and other intellectual property laws.
- Authority. Publisher agrees that, with respect to Publisher’s use of Moblyft SDK, Moblyft shall be its authorized representative with respect to all dealings with Advertisers and fulfillment of Advertising supply including but not limited to: (a) curation, optimization, mediation or other means of choosing which Advertiser will fulfill any Advertising request; (b) collection and reconciliation of all revenues from Advertisers on behalf of Publisher; and (c) negotiations for rates and acceptance of standard terms from Advertising partners on behalf of Publisher.
- Publisher Identification. Publisher hereby grants to Moblyft a non-exclusive, non-transferable (except as provided in Section 10), royalty-free license to use and reproduce Publisher’s name and trademarks solely in connection with identifying Publisher as a current or former customer of Moblyft on its website and in its marketing materials.
- Moblyft Identification. To enable Publisher to notify its End Users of Moblyft’s collection of User Data, Moblyft hereby grants to Publisher a non-exclusive, non-transferable (except as provided in Section 10), royalty-free license, and Publisher hereby agrees, to use and reproduce Moblyft’s name to identify Moblyft as a provider of third party services on Publisher’s website and in its Applications.
- Services. As between the parties, Moblyft and its suppliers shall retain all right, title and interest in and to all IP Rights in the Services, Documentation, and all improvements, modifications, and upgrades thereto. “IP Rights” means all forms of intellectual property rights and protections throughout the world, including, but not limited to, any (i) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof), (ii) copyrights, (iii) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith, (iv) trade secrets, (v) rights in databases and designs (ornamental or otherwise), (vi) moral rights, rights of privacy, rights of publicity and similar rights, and (vii) and any other proprietary rights and protections, whether currently existing or hereafter developed or acquired, whether published or unpublished, arising under statutory law, common law, or by contract, and whether or not perfected, including all applications, disclosures and registrations with respect thereto.
- Publisher Data. As between the parties, Publisher owns all right, title, and interest in and to the Publisher Data, including all IP Rights therein. As a condition of Publisher’s use and access to the Services, Publisher hereby grants Moblyft a royalty-free, fully-paid up, perpetual, irrevocable, transferable and sublicenseable right, for any purpose, to collect, retain, use, and disclose the Publisher Data solely in an aggregate and anonymous manner that does not identify End Users, Publisher, or the Application.
- Feedback. Publisher hereby grants to Moblyft an unlimited, worldwide, royalty-free, fully-paid up, transferable, sublicensable, irrevocable and perpetual right and license to use, distribute, create derivative works of, and otherwise exploit any information provided by Publisher to Moblyft about operating results, known or suspected bugs, errors or compatibility problems and user-desired features in any manner now known or developed in the future.
- Moblyft Revenue. Moblyft will pay to Publisher a portion of the revenue actually received from the Advertising in accordance with Moblyft’s then current publisher partner revenue share policy (“Revenue Share Policy”). Payments will be made to Publisher within fifteen (15) days after the applicable advertising partner has paid Moblyft. (Most advertising partners remit payments within (15 to 30) days following the end of the calendar month in which advertising revenues are generated). The amount of funds available for payment to Publisher will be stated on the monthly statement provided to Publisher via email or the Moblyft dashboard. Moblyft reserves the right to make payments to you only when your accumulated unpaid earnings reach $100 for paypal and $200 USD for Global Bank transfer or Debit MasterCard, and we may deduct any wire transfer fee, if a wire transfer is requested.
- Your Expenses. You agree that you are solely responsible for any and all costs, fees and other expenses incurred by you and resulting from your use of the Services, including but not limited to, costs owed to your cell phone carrier or internet provider, data plan costs, costs associated with any other third parties, platforms, software, or any other incidental fees.
- Confidential Information
“Confidential Information” means any proprietary data and other information disclosed by one party to the other in writing and marked as “confidential” or disclosed orally and, within two (2) weeks, indicated in writing as “confidential.” Upon termination of this Agreement, the parties will either return or destroy all Confidential Information and, upon request, provide written certification of such. Confidential Information shall not include information that is (i) in the public domain through no wrongful act of the receiving party; (ii) rightfully received by the receiving party from a third party that is not bound by a restriction of non-disclosure; (iii) already in the receiving party’s possession without a restriction as to disclosure; or (iv) is required to be disclosed by applicable rules and regulations of government agencies or judicial bodies.
- Indemnification.Publisher shall indemnify, defend and hold harmless Moblyft and its directors, officers, employees, and agents (“Related Parties”) from and against any and all claims, suits, actions, or other proceedings for any loss or damage (including reasonable attorney’s fees) brought by third parties against Moblyft or its Related Parties to the extent: (i) based on or arising from any claim that the Publisher Data infringes or constitutes a wrongful use of any third party’s IP Rights; (ii) caused by, relating to or arising out of Publisher’s use of the Services in violation of this Agreement, the applicable Documentation, or applicable law or regulation; (iii) use of the Services in violation of any third party right of publicity or privacy; or (iv) violation of any applicable laws, rules or regulations. Moblyft reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Publisher, in which event Publisher will fully cooperate with Moblyft in asserting any available defenses.
- Disclaimer of Warranties and Conditions.
MOBLYFT DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICES, TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, SERVICES ARE PROVIDED “AS-IS” INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, MOBLYFT DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, VIRUS OR DEFECT FREE OR THAT THE OPERATION OF SERVICES WILL BE UNINTERUPTED. THE INFORMATION AND SERVICES INCLUDED IN, ACCUMULATED BY OR AVAILABLE THROUGH SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS.
- LIMITATION OF LIABILITY.
- IN NO EVENT SHALL MOBLYFT OR MOBLYFT’S SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOST SAVINGS, OR FOR LOST PROFITS, EVEN IF MOBLYFT IS INFORMED OF THEIR POSSIBILITY (SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY).
- UNDER NO CIRCUMSTANCES WILL MOBLYFT’S TOTAL LIABILITY FOR CLAIMS DURING ANY TWELVE MONTH PERIOD ENDING ON THE DATE THAT THE CLAIM OR DEMAND IS FIRST ASSERTED, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE GREATER OF (A) THE REVENUE SHARE PAYMENTS RETAINED BY MOBLYFT HEREUNDER IN SUCH PERIOD AND (B) USD $100.00. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL MOBLYFT’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS.
- Term and Termination.
- Term. This Agreement shall commence on the date when you accept these terms (as described in the preamble above) and shall continue while you use the Services, unless terminated by either party as permitted herein (the “Term”).
- Termination. Either party may terminate this Agreement at any time for no reason or any reason upon thirty (30) days prior written notice to the other party.
- Effect of Termination. Upon termination of this Agreement, all Publisher’s license rights granted under this Agreement will immediately cease to exist, and Publisher shall promptly (a) discontinue all use of the Software and Services, (b) erase all copies of the Software in Publisher’s possession, (c) cease all distribution of the Software to End Users of Publisher’s Applications, and (d) return to Moblyft or destroy all copies of the Software, Documentation, and all other Moblyft Confidential Information on tangible media in Publisher’s possession or control. Sections 3, 4 (solely to the extent there are outstanding payment obligations that accrued during the Term), 5, 6, 7, 8, 9(c), and 10 will survive expiration or termination of this Agreement for any reason.
- Governing Law and Venue. This Agreement shall be governed by the laws of the State of New York, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York. The parties hereby submit to the jurisdiction of the state and federal courts located in Santa Clara County, New York and agree that such courts shall be the exclusive forum for the resolution of any disputes related to this Agreement. The parties disclaim the application of the United Nations 1980 Convention on Contracts for the International Sale of Goods.
- Severability. If any provision of this Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement and a valid provision, which most closely approximates the intent and economic effect of the invalid provision, will be substituted.
- Assignment. Publisher may not assign this Agreement or any part thereof without the prior written consent of the Moblyft.
- Independent Contractors. Nothing contained in this Agreement is intended to constitute Publisher and Moblyft as partners or joint venturers, or as employees, agents, or representatives of one another.
- Force Majeure. Moblyft will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil or military authorities, Act of God or by the public enemy, acts or omissions of carriers, or other causes beyond the reasonable control of Moblyft.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Electronic Communications. The communications between you and Moblyft use electronic means, whether you use the Services or send Moblyft e-mails, or whether the Moblyft posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from the Moblyft in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Moblyft provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Limitations Period. YOU AND MOBLYFT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Notice. Where Moblyft requires that you provide an e-mail address, you are responsible for providing Moblyft with your most current e-mail address. In the event that the last e-mail address you provided to Moblyft is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Moblyft dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Moblyft at the following address: 401 Park Avenue South, 10th
Floor, New York, NY 10016. Such notice shall be deemed given when received by Moblyft by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Moblyft are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Moblyft products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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End of Agreement