Terns & Conditions - AppFoster
Last updated: October 05, 2012
This Agreement constitutes the entire and only agreement between You and Appfoster, Inc. ("Appfoster"), and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the content, products or services provided by Appfoster (the "Online Services"), and the subject matter of this Agreement. This Agreement may be amended at any time by Appfoster from time to time without speciﬁc notice to You. The latest Agreement will be posted on Appfoster.com (the "Site"), and You should review this Agreement prior to using the Site or the Online Services.
- Description of Online Services. During the Online Services Term (as deﬁned below), Appfoster will serve to You advertisements provided by you or third party advertisers ("Online Services Ad(s)"), in addition to advertisements that may be provided through Appfosterʼs Campaigns Ads service ("Appfoster Ads"), for display on the app(s) and site(s) which use the Online Services ("Online Services Site(s)"), based upon the criteria selected by You and/or Your advertisers via the protocol and/or user interface provided by Appfoster for accessing the Online Services, as such protocol and/or user interface may be updated by Appfoster from time to time ("Online Services Interface").
- Implementation of Online Services. You will implement the Online Services in a manner that complies with the technical and implementation requirements provided in writing by Appfoster to You from time to time, including those instructions contained in the documentation regarding the Online Services Interface. Without limiting the foregoing, You acknowledge and agree to the following:
- Online Services Obligations. In order for the Online Services to work correctly, you must provide the following information with every ad request: (i) Unique Device Identiﬁer (UDID) or other Device ID, and (ii) Ad Unit ID, mapped to the correct application that is in use by the end user. You must also notify Appfoster when an application is opened by the user. You will be solely responsible for all, without limitation, Online Services Ad content, Online Services Ad information, Online Services Ad URLs, editorial, text, graphic, audiovisual, and other content and any other information You enter into the Online Services, whether generated by or for You ("Online Services Data"). You will protect any Online Services accounts, usernames or passwords and take full responsibility for Your own, and third party, use of any Online Services accounts, usernames or passwords. Notwithstanding the foregoing, You grant Appfoster permission to utilize a crawl on Your website and app properties that may ignore robots.txt unless You speciﬁcally instruct otherwise the applicable crawler in the robots.txt ﬁle, as speciﬁed by Appfoster.
- Prohibited Actions. You will not, and will not allow any third party to: (a) directly or indirectly access, launch and/or activate the Online Services through or from, or otherwise incorporate the Online Services in, any software application, website or other means other than the Online Services Site(s), and then only to the extent expressly permitted herein; (b) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co- branding, timesharing, service bureau or other unauthorized purposes the Online Services or access thereto (including, but not limited to ads, including without limitation Online Services Ads, or any part, copy or derivative thereof); (c) directly or indirectly generate queries, or impressions of or clicks on ads, including without limitation Online Services Ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro Online Services, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Online Services Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Online Services, Appfosterʼs then current protocol for accessing and implementing the Online Services (the "Appfoster Protocol"), or any other Appfoster technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (f) remove, deface, obscure, or alter Appfosterʼs copyright notice, trademarks or other proprietary rights notices afﬁxed to or provided as a part of the Online Services, the Appfoster Protocol, or any other Appfoster technology, software, materials and documentation; (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Online Services or proprietary information related thereto; (h) utilize any feature or functionality of the Online Services, or include anything in Online Services Data or Online Services Ads, that could be so utilized, to personally identify and/or personally track individual end users or any other persons; or (i) engage in any action or practice that reﬂects poorly on Appfoster or otherwise disparages or devalues Appfosterʼs reputation or goodwill.
- Restrictions. You must use the Online Services only for serving advertisements and promotions to Online Services Sites. You may not use the Online Services to serve other content. You may not serve advertisements that interfere with the correct operation of the userʼs mobile device. You may not use the Online Services with Online Services Sites that: (i) promote or depict illegal activity or violence, (ii) advocate against a particular group , (iii) infringe a third party's rights, (iv) introduce viruses, spyware, and malware, , (v) contain sexually explicit content, (vi) depict illicit drugs and drug paraphernalia, (vii) promote online casinos and gambling, (viii) promote weapons or ammunition, (ix) promote hard alcohol, or (x) contain any content that is illegal, promotes illegal activity, misleading, inaccurate, or infringes on the legal rights of others.
- No Endorsement. Appfoster does not represent or endorse any ads, links, content, advice, opinion, offer, proposal, statement, data or other information from any third party products/services ("Disclaimed Content") that is displayed or distributed through Online Services. Appfoster hereby disclaims any liability or responsibility for any Disclaimed Content. Appfoster reserves the right, but will have no responsibility, to edit, modify, refuse to post or remove any Disclaimed Content, in whole or in part, that in Appfoster, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement.
- Online Services Term. This Agreement will be effective as of the date Appfoster activates Your Online Services account and will continue until terminated as provided in this Agreement (the "Online Services Term"). You may terminate this Agreement, with or without cause, at any time by sending written notice of Your desire to cancel Your participation in the Online Services to info@Appfoster.com. This Agreement will be deemed terminated within ten (10) business days of Appfosterʼs receipt of Your notice. If You violate this Agreement, Appfoster may in its sole discretion, without notice, terminate this Agreement, or suspend or terminate the participation of Your Online Services Site in all or part of the Online Services. In addition, Appfoster may terminate this Agreement, or suspend or terminate the participation of Your Online Services Site in all or part of the Online Services, with or without cause, upon thirty (30) dayʼs prior notice.
- Online Services Advertiser Obligations. You will be solely responsible for all matters related to Your third party advertisers who provide advertisements to You in connection with the Online Services ("Online Services Advertisers"), including without limitation the solicitation and trafﬁcking of Online Services Ads, billing and payment of Online Services Advertisers, providing all technical support services to Online Services Advertisers, and handling all other inquiries and disputes of any type or nature.
- Online Services Fee. Some of the services in the Online Services require payment of fees. Appfoster reserves the right to change its price list and to institute new charges at any time, upon thirty (30) days prior notice to You, which may be sent by email or posted on the Site. If You are an advertiser, You will pre-pay all applicable fees, as described on the Site. If You are an advertiser and choose to run a CPI campaign without having properly integrated the Appfoster SDK, You will be charged $0.04 per click for all the clicks delivered in that campaign, and the campaign will be automatically terminated when detected. Impressions and clicks are tracked instantly. Installs are tracked whenever a user opens the application they have downloaded. Appfoster will keep the install loop open for a period of 21 days. During these time, installs will still be reported for campaigns that might be off (not displaying any new impressions) but the advertiser will still be accountable for the install and the publisher will be paid for installs coming from clicks that they delivered in the past. This only affects CPI campaigns, not CPC. If You are a publisher, You will receive a percentage of Net Revenue. "Net Revenue" means revenues actually received by Appfoster from the sale, use or other disposition of advertisements displayed on publisher's Online Services Site less taxes, agency commissions, carrier and/or partner fees, and any allowances actually made or taken for returns, cash discounts or promotional allowances. The portion of Net Revenue received by publisher shall be determined on the first Monday of each calendar month, on which day those revenues accrued to publisher's account thirty (30) or more days earlier shall become eligible to be paid. Payments to publisher shall be sent by Appfoster only if publisher's earned balance is greater than or equal to $300 (Three Hundred Dollars, US). If publisher's earned balance is less than $300, no payment shall be sent until the following calendar month, on the first Monday of which Appfoster shall make the aforesaid determination anew. In addition, if You are a publisher, You agree that any payments that may become due to You are specifically conditioned upon Appfoster's receipt of full payment from the applicable advertiser. If Appfoster does not receive the applicable payment in full from any such advertiser, Appfoster shall have no liability or responsibility to publisher (and publisher hereby releases Appfoster) with respect thereto. Payment shall be calculated solely based on records maintained by Appfoster. No other measurements or statistics of any kind shall be accepted by Appfoster or have any effect under this Agreement. Appfoster shall not be liable for any payment based on (i) any fraudulent impressions generated by any person, robot, automated Online Services or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by Appfoster; (ii) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in (i) above; or (iii) any breach of this Agreement by You.
- License to Online Services Interface. Appfoster grants to You a limited, revocable, non-transferable, non-exclusive and non-sublicensable license during the Online Services Term to use the Online Services Interface solely for the purpose of transmitting Online Services Requests and other required information and receiving Online Services Results Sets solely to the extent permitted hereunder. Except to the limited extent expressly provided in this Agreement, Appfoster does not grant, and You will not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Appfoster intellectual property rights; and all rights not expressly granted herein are reserved to Appfoster.
- Conﬁdentiality; Publicity. Each party agrees not to disclose the other party's Conﬁdential Information without the other partyʼs prior written consent. "Conﬁdential Information" includes without limitation: (a) all software, technology, programming, speciﬁcations, materials, guidelines and documentation relating to the Online Services, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (b) any statistics relating to the performance of the Online Services; (c) any other information designated in writing by either party as "Conﬁdential" or an equivalent designation; and (d) information disclosed under circumstances that a reasonable person should know such information is confidential/proprietary. Conﬁdential Information does not include information that has become publicly known through no breach by the receiving party, or information that has been (i) independently developed without access to the disclosing party's Conﬁdential Information as evidenced in writing; (ii) rightfully received by the receiving party from a third party; or (iii) required to be disclosed by law or by a governmental authority. Neither party will use the other party's name and logo in any news release, public announcement, advertisement, or other form of publicity without the prior written consent of the other party (which includes email), except that either party may use the other party's name and logo on such party's website and in publicity that announces the parties are working together. In addition, Appfoster may use any content used with the Online Services in any form of publicity.
- Disclaimer. Appfoster does not represent or warrant that the Online Services is reliable, accurate, complete, or otherwise free from defects. Accordingly, the Online Services is made available for use "as is", and any use thereof will be undertaken solely at Your own risk. Appfoster reserves the right, in its sole discretion, to include or cease providing the Online Services at any time (subject to notice as may be required herein), and Appfoster does not give or enter into any conditions, warranties or other terms with regard to the Online Services. In particular, no condition, warranty or other term is given or entered into to the effect that the Online Services will be of satisfactory quality, noninfringement or that the Online Services will be ﬁt for any particular purpose.
- Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE ONLINE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTYHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY. In any event, each party's total cumulative liability to the other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed the net amount paid by You to Appfoster in the six month period immediately preceding the date of the claim.
- Representations and Warranties. You represent and warrant that: (i) You have and will maintain throughout the Online Services Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Online Services Ads or Online Services Data to permit Appfoster to perform the Services contemplated under this Agreement (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Online Services Ads or Online Services Data); (ii) You will not advertise anything illegal or engage in any illegal or fraudulent business practice; (iii) all of the information provided by You to Appfoster to enroll in the Online Services is correct and current; (iv) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (v) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. Appfoster represents and warrants that: (i) it has the power and authority to grant the rights and perform the obligations to which it commits herein; and (ii) its Online Services Interface will not knowingly violate the intellectual property rights of any third party.
- Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the India without regard to the conflicts of laws provisions thereof. Neither partyʼs waiver of any default is a waiver of any subsequent default. Unenforceable provisions will be modiﬁed to reﬂect the partiesʼ intention, and remaining provisions of the Agreement will remain in full effect. You may not assign any of Your rights hereunder and any such attempt is void (except to Your successor in the event of Your merger, acquisition or sale of all or substantially all or Your assets). Appfoster and You are not legal partners or agents, but are independent contractors. The terms and conditions contained in this Agreement that by their sense and context are intended to survive the performance hereof by the parties hereunder.