Acquire Terms of Service
Effective: June 22, 2021
These Acquire Terms of Service, formerly known as the CrossInstall Terms of Service, (“Terms”) are part of a legally binding agreement between Customer and MoPub and govern Customer’s access and use of the Acquire Platform, the creation and use of Custom Ads for Customer, and all insertion orders or change orders entered into by the Parties that incorporate these Terms by reference (each, an “IO,” and together with these Terms, the “Agreement”).
By executing an IO, creating any Account, or by otherwise accessing or using the Acquire Platform, Customer agrees to be bound by the terms of the Agreement. If Customer does not agree to the terms of the Agreement, it may not create an Account, or otherwise access or use the Acquire Platform. This Agreement does not alter in any way any other agreement Customer may have with any MoPub company for products, services, or otherwise, including services provided to publishers or services provided in connection with the real-time information service, commonly referred to as “Twitter.”
MoPub and Customer (each, a “Party” and collectively the “Parties”) hereby agree as follows:
1. DEFINITIONS. In addition to terms defined elsewhere in the Agreement (including in an IO), the following terms have the meaning provided below:
1.1. “Account” means each account that Customer creates via the Acquire UI to access the Acquire Platform.
1.2. “Acquire Materials” means any application programming interfaces (“APIs”), software code or tracking technology owned or licensed by MoPub and provided by MoPub to Customer for use in connection with the Acquire Platform, and expressly excluding Custom Ads.
1.3. “Acquire Platform” means the platform and any other software, assets, documentation and technology owned or licensed by MoPub and used or otherwise made available by MoPub in connection with the services it performs under the Agreement, including the Acquire UI, Acquire Materials, Custom Ads (excluding any Customer Materials embedded therein), and any developments or improvements to any of the foregoing.
1.4. “Acquire UI” means the online user interface that MoPub makes available to access certain aspects of the Acquire Platform.
1.5. “Ad” means any advertisement (including any Custom Ads) delivered via the Acquire Platform, including any Customer Materials and Acquire Materials to the extent incorporated therein.
1.6. “Ad Campaign” means a campaign pursuant to which Ads are delivered for Customer via the AcquirePlatform to purchased inventory.
1.7. “Ad Campaign Fees” means the fees payable by Customer to MoPub for all engagements, impressions, clicks or installs on Ads for each Ad Campaign.
1.8. “Advertiser” has the meaning ascribed to it in an IO.
1.9. “Custom Ad” means any Ad created by MoPub in connection with the Creative Services provided under this Agreement.
1.10. “Customer” has the meaning ascribed to it in an IO.
1.11. “Customer Materials” means any Advertiser’s mobile application, website or other online services and any creative, content, URLs, titles, descriptions, tracking technology, trademarks, metadata and other materials that are provided by or on behalf of Customer to MoPub for inclusion in Ads or development of Custom Ads.
1.12. “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.
1.13. “International Trade Laws” means any applicable laws, regulations, orders, and licenses governing or relating to sanctions and export controls now existing, or to be enacted or amended in the future, including, without limitation, those administered and enforced by the United States (including by the Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), U.S. Department of Commerce Bureau of Industry and Security (“BIS”), and U.S. Department of State), United Kingdom (including Her Majesty’s Treasury), European Union or any of its member states, United Nations Security Council, and any other relevant government authority.
1.14. “MoPub” (formerly referred to as "CrossInstall") means: (a) Twitter, Inc., on behalf of itself and its affiliates, when the principal place of business of Customer is in North America (including Hawaii) or South America; or (b) Twitter International Company, on behalf of itself and its affiliates, when the principal place of business of Customer is in any country or territory outside of North America (including Hawaii) or South America.
1.15. ”Personnel” means any individual that uses the Acquire UI on behalf of Customer.
1.16. “Publisher Platform” means any website, mobile application or other online service upon or through which Ads may be delivered via the Acquire Platform, including any mobile device operating system, supply-side service, ad exchange or other third-party platform.
1.17. “Restricted Party” means an individual or entity that is, or is owned 50 percent or more, individually or in the aggregate by, controlled by, or acting on behalf of, a person located in a jurisdiction subject to comprehensive sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine), or identified on a prohibited persons list promulgated by (i) the United States (including OFAC’s Specially Designated Nationals and Blocked Persons List and BIS’s Denied Persons List, Entity List, Unverified List, or Military End User List); (ii) the United Kingdom; (iii) the European Union and its Member States; (iv) the United Nations Security Council; and (v) any other relevant governmental authority.
2. ACQUIRE PLATFORM
2.1. Acquire UI. Subject to the terms of this Agreement, MoPub grants Customer (and its Personnel) a non-exclusive, non-transferable, revocable right to access and use the Acquire UI to monitor Ad Campaign performance and perform other actions expressly permitted via the Acquire UI in connection with Ad Campaigns. Customer will and will ensure each of its Personnel: (a) provide accurate, current and complete Account information; (b) keep such Account information accurate and complete at all times; (c) maintain the security of its Accounts and associated credentials; and (d) immediately notify MoPub of any unauthorized access or use of the Accounts or associated credentials.
2.2 Acquire Materials. Subject to the terms of this Agreement, MoPub hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable license during the term of the Agreement to use any Acquire Materials made available by MoPub in accordance with MoPub’s then-current documentation solely for Customer’s internal business purposes and solely in connection with monitoring Ad Campaign performance or managing Ad Campaigns. MoPub reserves the right to: (a) establish and enforce limitations related to use of any Acquire Materials, including maximum use and traffic limitations for APIs; and (b) limit, terminate or suspend access to or use of any Acquire Materials, including if the Account is not in good standing, or if MoPub reasonably believes that any such use exceeds reasonable or established limitations, or in the event of an actual or reasonably suspected security breach or threat. Customer will protect any Acquire Materials, including any API key(s), from unauthorized access, use and disclosure, and promptly notify MoPub if it discovers or otherwise suspects any such unauthorized access, use or disclosure.
2.3. Updates. If MoPub makes any updates available to any Acquire Materials, the license granted to Customer for prior versions of any such Acquire Materials will immediately terminate and Customer will immediately discontinue using such prior versions. The terms of this Agreement will govern any such update, unless MoPub provides separate license terms in connection with such update.
2.4. Implementation. Customer will provide all assistance necessary to MoPub to enable any integration of the Acquire Platform with Customer’s software and services, including mechanisms for collection and transmission of data regarding Ad impressions and clicks, app installs or other conversion events (“Conversion Data”).
2.5. Ad Campaign Tracking. Customer acknowledges that information regarding the delivery of any Ad Campaign for the purpose of billing and optimization will be measured solely by records maintained by, or sourced at the direction of, MoPub. If Customer purchases inventory for placement of Ads delivered via an Ad Campaign (“Inventory”) on a cost-per-install basis, Customer will (or will cause a third party approved by MoPub to) provide MoPub with device-level Conversion Data that is sufficient, in MoPub’s sole discretion, to identify all events giving rise to the applicable Ad Campaign Fees. At Customer’s request (email to be sufficient), MoPub may transmit data regarding Ad Campaigns to a third party designated by Customer and approved by MoPub.
2.6. Restrictions. Customer will not: (a) reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Acquire Platform or any portion thereof or otherwise attempt to derive the underlying know-how or algorithms of the Acquire Platform; (b) use the Acquire Platform for benchmarking or for any other competitive intelligence purpose; (c) use any data mining, robots or similar data gathering or extraction methods in connection with the Acquire Platform; (d) download (other than page caching) any portion of the Acquire Platform or any information contained therein, except as expressly permitted through download tools made available by the Acquire UI; (e) use the Acquire Platform in a manner that could damage or hinder the operation or functionality of the Acquire Platform or that could reflect unfavorably on the reputation of MoPub, its partners or customers; (f) enable the transmission via any portion of the Acquire Platform, including via API, of any viruses, trojan horses, malware, spyware, adware or any other software code designed to disrupt, damage, or perform unauthorized actions on a computer system; (g) work around, interfere with, exceed or circumvent any technical limitations in, or features or functionality of, the Acquire Platform; or (h) otherwise use the Acquire Platform other than for its intended purpose.
2.7. Third-Party Materials. Customer’s use of any third-party data, software or services included or otherwise made available via the Acquire Platform (“Third-Party Materials”) may be subject to separate terms of the provider of the Third-Party Materials. MoPub is not responsible for Third-Party Materials. Customer is solely responsible for complying with the terms applicable to its use of Third-Party Materials.
3.1. Creative Services. This section only applies if MoPub creates Custom Ads for Customer pursuant to an IO or as agreed via email. In consideration of the applicable Minimum Budget (defined in the Cancellation section below), and Customer’s compliance with the terms of this Agreement, MoPub may, upon the mutual written acknowledgement of the Parties (via IO or email), create one or more Custom Ads for distribution by MoPub for the Ad Campaign (“Creative Services”). As part of the Creative Services, Customer authorizes MoPub to alter, revise, change, arrange, rearrange, modify, edit, or adapt the Customer Materials for creation of or inclusion in Custom Ads, and to distribute any such Custom Ads via an Ad Campaign, in each case without prior notice to or approval by Customer. The value associated with the Creative Services provided under the Agreement (including any IO) by MoPub is non-transferable to any third party and will not be eligible for exchange or refund of any kind. Customer’s sole and exclusive remedy, and MoPub’s sole liability, in connection with the Custom Ads or the Creative Services, including for any error or defect in the Custom Ads, will be for MoPub to use reasonable efforts to modify the Custom Ads for use in subsequent Ad Campaigns, if any. Customer will promptly provide MoPub with all Customer Materials and all reasonable cooperation and assistance requested by MoPub in connection with the creation of Custom Ads.
3.2. License to Customer Materials. During the term of the Agreement, Customer hereby grants to MoPub an irrevocable, sublicensable, non-exclusive, worldwide and royalty-free right and license to: (a) copy, adapt, reproduce, distribute, publicly display, publicly perform, create derivative works of and otherwise use Customer Materials for the purpose of creating Custom Ads; (b) use, copy, adapt, reformat, recompile, truncate, reproduce, distribute, publicly display, and publicly perform Ads containing any Customer Materials for the purpose of hosting and delivering Ads in connection with any Ad Campaign; and (c) access, index, and cache any website, mobile application, landing page or other destination to which Ads link or to which end users are otherwise directed following any engagement with any Ad, including related URLs, waypoints, and redirects (each, a “Destination”), or any portion thereof, by any means, including web spiders and/or crawlers. Without limiting the foregoing, the foregoing license will be sublicensable to any subcontractor of MoPub, and the license in subsection (b) of this section will be sublicensable to any Publisher Platform. Customer hereby waives and agrees to procure a waiver of any moral rights or equivalent rights Customer or a third party may have in the Customer Materials throughout the world, to the maximum extent permitted by law. To the extent a waiver is not permitted, Customer agrees not to assert any such rights against MoPub.
3.3. Policies. Customer will comply with, and will ensure that each Ad delivered via an Ad Campaign complies with, any policies, requirements or guidelines made available by MoPub from time to time (whether posted via the Acquire Platform, on a MoPub website, or provided by URL, email or otherwise) (“Ads Requirements”).
3.4. Prohibited Ads. In addition to other restrictions set forth in any Ad Requirements, Customer will not enable distribution of any Ad via an Ad Campaign that allows end users to manually enter personal information or other text directly through the Ad.
3.5. Responsibility. Customer will ensure that each of the following complies with the terms of this Agreement and any applicable privacy policies, laws, rules, regulations, self-regulatory regimes, and third-party agreements (including applicable agreements of any Publisher Platform) (collectively, “Legal Requirements”): (a) any Ad distributed via an Ad Campaign; (b) any Destination; and (c) services, materials and products advertised in the Ads or within any Destination. Customer will be solely responsible for any Ad distributed via an Ad Campaign and the contents of any Destination. Customer shall submit Customer Materials conforming with the requirements of this Agreement to MoPub at least five (5) business days prior to the anticipated start date of the applicable Ad Campaign for MoPub’s review and approval. Customer remains solely responsible for all Ads delivered via an Ad Campaign, including any Custom Ad created by MoPub in connection with the Creative Services and any other Ad distributed via the Acquire Platform. MoPub’s review, creation, modification, approval or distribution of any Ad shall not relieve Customer of its responsibility for Ads or otherwise exonerate Customer from its obligations, representations, warranties and indemnities under this Agreement, and MoPub will not have any liability for the Ads, Customer Materials or Destinations, and may refuse, reject, cancel or suspend any Ad or Customer Material.
3.6. Ad Campaign Details. Details applicable to an Ad Campaign(s) may be specified in an IO or otherwise agreed upon in writing (email suffices) by the Parties; provided, however, that MoPub will only be bound by emails sent or received by the designated MoPub sales representative, analyst or account manager. MoPub may change its sales representative, analyst or account manager from time to time upon notice (email suffices) to Customer. MoPub controls all aspects of Ad Campaign fulfillment, including by determining Ad placement, determining which Ads to place, and by delivering the type of engagement agreed by the Parties by bidding on and purchasing Inventory on a different cost basis. When placing Ads, MoPub does not guarantee any aspect of the Ad Campaign, including that Ads will reach Customer’s intended target or achieve Customer’s specified outcome. Customer will have no right to receive any refund, credit or other makegood for previously delivered Ads or Ad Campaigns.
3.7. Cancellation. The Parties may establish one or more minimum budget commitments for an Ad Campaign as set forth in the applicable IO (each, a “Minimum Budget”). Once all Minimum Budgets for an Ad Campaign have been spent, Customer may cancel such Ad Campaign, or any portion thereof, at any time, by sending an email to the MoPub account manager or sales representative and copying email@example.com. Ads may run for 48 hours after MoPub receives such notice of the cancellation. Customer will be responsible for paying for all Ads that run, including for all conversion event fees attributable to any Ad delivered (which includes app installs occurring following expiration or cancellation of an Ad Campaign or following termination of the Agreement). If Customer cancels an IO prior to meeting any Minimum Budget or if the Minimum Budget is not reached within the timeline specified on the IO, Customer shall be responsible for paying MoPub the entire remaining balance of the Minimum Budget.
4. IP OWNERSHIP. As between the Parties, MoPub owns and will retain all right, title and interest in and to the Acquire Platform, including any Intellectual Property Rights therein. As between the Parties, Customer owns and will retain all right, title and interest in and to the Customer Materials, including any Intellectual Property Rights therein. Aside from the rights granted in this Agreement, neither Party grants to the other any other right, express or implied, and each Party reserves all rights not expressly granted hereunder.
5. DATA PRIVACY
5.1. Customer Data. From time to time, Customer (or any third-party data partner designated by Customer and approved by MoPub) may provide MoPub with data relating to end users or their devices, including, for example, device identifiers (“Customer Data”). If Customer Data is necessary for an Ad Campaign, Customer will provide Customer Data to MoPub in a format selected by MoPub within a sufficient period of time prior to the scheduled start date of the applicable Ad Campaign.
5.2. Compliance. Customer must, and represents and warrants that it will, process all personal information it collects, discloses or otherwise processes in connection with this Agreement in accordance with all Legal Requirements. Without limiting the foregoing, Customer represents and warrants that Customer and any person or entity that provides data to MoPub on Customer’s behalf (each a “Data Partner”), if applicable: (a) have secured all necessary rights, consents, waivers, and licenses to share with MoPub, and for each Party to use and otherwise process, Customer Data and Conversion Data as described in the Agreement, (b) have provided end users of its mobile applications, websites or other online services with legally-sufficient notice that it is working with third parties to collect data for purposes of personalized advertising and has obtained legally-sufficient and required consent for this activity, including by providing instructions to end users on how they can opt out of personalized advertising, which, at a minimum, must include notice to mobile application end users of how to opt out of personalized advertising (either using the settings available on their mobile devices or directly via the mobile application, as applicable); (c) where required by Legal Requirements, have obtained express, freely given, specific, informed and unambiguous consent from end users for the data processing described in the Agreement (“Express Consent”); and (d) will ensure that Customer Data and Conversion Data provided to MoPub does not contain any data pertaining to any end users who: (i) have declined to opt into, or who have exercised an option to opt out of, personalized advertising, and (ii) where required by Legal Requirements, have not provided (or have revoked) their Express Consent.
5.4. Customer Restrictions. In connection with any MoPub Data that Customer receives from MoPub, Customer will: (a) not use any such data for the purposes of retargeting an end user or appending data to an end user profile; (b) use any such data only in aggregated form for purposes of analyzing Ad Campaign performance; and (c) treat such data as Confidential Information of MoPub; and (d) in the event Customer receives any such data that is not in already in aggregated and anonymous form, destroy such data (i) the sooner of 6 months following receipt of such data or when it no longer has a legitimate business need to retain it, or (ii) within 90 days following receipt if it contains data that would reasonably enable identification of a specific individual or device.
5.5. Child Data. Customer represents and warrants that it will not, and will not allow others to, transmit or otherwise disclose to MoPub any data: (a) about or relating to an individual under the age of 13, under the age of 16 if the individual is located within California, or under the age of consent in the European Union, EFTA States, or the United Kingdom; or (b) collected from any mobile application, website, or other online service that is directed to children under the age of 13.
6.1. Payments. Customer shall pay the MoPub entity identified in the applicable invoice all fees payable under this Agreement in U.S. Dollars within 30 days of the date of invoice (unless a different number of days is expressly set forth on the applicable IO). The Ad Campaign Fees will be calculated by MoPub based solely upon measurements and records maintained by, or sourced at the direction of, MoPub. Any late payments will accrue interest equal to one- and one-half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. Further, if Customer fails to make any payment as set forth herein, it will pay all reasonable expenses (including attorneys’ fees or other collection costs) incurred by MoPub in collecting such charges. Except as expressly agreed by MoPub, Customer’s Ad Campaign Fees or other fees under this Agreement shall not apply towards any other commitments or to achieve any other incentives Customer may have with MoPub.
6.2. Taxes. Charges and fees do not include any applicable sales, use, value-added, withholding, excise, or any other taxes or government charges, which are payable by Customer and are in addition to any amounts due hereunder. If withholding taxes are imposed by any jurisdiction on the transactions described in the Agreement, Customer will pay such taxes, without offset or deduction, and will promptly provide to MoPub the applicable certificates and receipts regarding such remittances. If Customer claims sales or use tax exemption, Customer must submit to MoPub a valid tax exempt certificate. If Customer is in the European Union, an EFTA State, or the United Kingdom, MoPub reserves the right, upon at least thirty (30) calendar days’ prior written notice, to audit Customer’s books, records, and accounts for the sole purpose of verifying Customer’s taxable status. MoPub may, at its sole discretion, reclassify Customer for VAT collection purposes or immediately terminate the Agreement in the event Customer has misrepresented Customer’s VAT status (and in either case to collect any applicable taxes and other charges).
6.3. Disputes. If Customer disputes the charges on any MoPub invoice, then Customer must raise such dispute within 60 days following the date of any invoice or will waive the right to dispute and such charge will be final and not subject to dispute.
7.1. Definition. “Confidential Information” means any information disclosed by one Party (or its affiliate) to the other, either directly or indirectly, in writing, orally, or by inspection of tangible objects, that is marked as confidential or that the receiving party reasonably should know is confidential given the nature of the information or the circumstances of the disclosure. The obligations in Section 7.2 below will not apply to information that the receiving Party can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure; (b) becomes publicly known and made generally available after disclosure other than through the receiving Party’s action or inaction or any unauthorized act of a third party; (c) is in the receiving Party’s possession, without confidentiality restrictions, prior to the time of disclosure, as shown by the receiving Party’s records; or (d) is collected by the receiving Party independent of the Agreement, as shown by the receiving Party’s records. The Acquire Platform, and the terms and conditions of any IO, will be deemed MoPub’s Confidential Information.
7.2. Confidentiality Obligations. The receiving Party will not access, use, reproduce, or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed and in accordance with the Agreement. The receiving Party will take reasonable measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Confidential Information. Except as otherwise expressly permitted under the Agreement, the receiving Party will not disclose or otherwise make available the disclosing Party’s Confidential Information to any third party without the prior written consent of the disclosing Party. The receiving Party may disclose Confidential Information to its affiliates, agents, professional advisors, or third-party contractors (“Delegates”) who are bound in writing by use and confidentiality restrictions which are no less protective than those contained in the Agreement and who have a legitimate need to know such Confidential Information in connection with the Agreement. The receiving Party may also disclose Confidential Information when legally compelled by a court or other government authority. To the extent permitted by law, the receiving Party will promptly provide the disclosing Party with sufficient notice of all available details of the legal requirement and reasonably cooperate with the disclosing Party’s efforts to challenge the disclosure, seek an appropriate protective order, or pursue such other legal action, as the disclosing Party may deem appropriate. Customer will not name MoPub or use MoPub’s brand features in any press release, public announcement, advertisement, blog, or other form of publicity in relation to the Agreement or otherwise without securing the prior written consent of MoPub.
7.3. Betas. MoPub may, at its sole discretion, provide Customer with early access to non-generally available alphas, betas, research studies, pilots, marketing services and/or other programs from time to time (each, a “Beta”). All Betas will be considered MoPub Confidential Information. Customer agrees that participation in any Beta may assist MoPub in research, analyzing and validating some existing and/or prospective programs, products and/or tools.
7.4. Feedback. MoPub will be free to use any feedback, comments or suggestions provided by Customer related to MoPub, any Betas or any other of MoPub’s products or services (“Feedback”) in any way without any compensation or obligation to Customer or any third party, and such Feedback shall be deemed the Confidential Information of MoPub. Customer hereby irrevocably assigns to MoPub all right, title, and interest to Feedback. For clarification, Feedback does not include the right to, and MoPub will not, publicly disclose Customer’s name or its Beta performance results unless MoPub receives Customer’s prior written consent (email sufficing).
8. REPRESENTATIONS AND WARRANTIES
8.1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full power and authority to enter into this Agreement and grant the licenses and rights herein; (b) the execution of this Agreement and its performance under this Agreement do not violate any other agreements to which it is a Party; and (c) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
9. TERM, SUSPENSION AND TERMINATION
9.1. Term. The term of this Agreement continues until terminated in accordance this Section 9.
9.2. Suspension. MoPub may suspend Customer’s use of the Acquire Platform or any Ad Campaign immediately without notice, including if MoPub reasonably believes that: (a) Customer’s use of the Acquire Platform or any Ad Campaign would cause damage to, or an inordinate burden upon, the Acquire Platform; or (b) Customer has violated its obligations under this Agreement.
9.3. Termination. Either Party may terminate this Agreement: (a) for material breach, if the other Party fails to cure such breach within 10 days of receiving notice; or (b) for convenience, upon 30 days prior written notice, provided, however, that if terminated by Customer, and subject to the survival clause below, the Agreement will continue in effect until all IOs have expired or have been cancelled in accordance with this Agreement. Subject to the foregoing, upon termination for any reason, Customer’s right to use the Acquire Platform shall immediately terminate and Customer shall promptly pay any outstanding fees owed to MoPub.
9.4. Survival. Any provisions which by their nature should survive termination of this Agreement, will survive termination of this Agreement, including this subsection and sections with the following headings: Definitions, Advertisements (except for the License subsection which terminates when all Ad Campaigns terminate), IP Ownership, Data Privacy, Fees, Confidentiality, Representations and Warranties, Disclaimer, Indemnity, Limitation of Liability, Representatives and Miscellaneous.
THE ACQUIRE PLATFORM, MOPUB DATA AND ALL OTHER MOPUB SERVICES PERFORMED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND (INCLUDING THE RESULTS OF ANY AD CAMPAIGN), EXPRESS, IMPLIED, OR STATUTORY, OR ARISING OUT OF CUSTOM, COURSE OF DEALING OR TRADE USAGE, AND CUSTOMER’S USE THEREOF IS AT ITS OWN RISK. MOPUB DOES NOT GUARANTEE THAT ADS WILL APPEAR IN A PARTICULAR POSITION IN THE INVENTORY OR ACHIEVE ANY PARTICULAR RESULT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, MOPUB DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE ACQUIRE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
Customer will defend, indemnify and hold harmless MoPub, its licensors, independent contractors, and suppliers, and its and their agents, directors, officers and employees (collectively, the “Indemnified Persons”) from and against any claim, allegation, liability, damage, loss or expense (including reasonable attorneys’ fees and costs) arising out of or related to: (a) Customer’s alleged or actual breach of this Agreement; (b) any Ad delivered via an Ad Campaign; and (c) any Destination. Customer will not enter into any settlement or compromise of any such claim without MoPub’s prior written consent. MoPub may participate in the defense of any such claim by counsel of its own choosing, at its cost and expense.
12. LIMITATION OF LIABILITY
12.1. SUBJECT TO THE EXCLUSIONS SPECIFIED BELOW, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF THE INDEMNIFIED PERSONS AND CUSTOMER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE, WILL BE STRICTLY LIMITED TO THE LESSER OF THE AMOUNT ALREADY PAID BY CUSTOMER TO MOPUB UNDER THE AGREEMENT IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR U.S. $250,000.
12.2. SUBJECT TO THE EXCLUSIONS SPECIFIED BELOW, IN NO EVENT WILL THE INDEMNIFIED PERSONS OR CUSTOMER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. CUSTOMER WILL NOT HOLD THE INDEMNIFIED PERSONS RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO ACTIONS BY ANY THIRD PARTY RELATING TO OR IN CONNECTION WITH ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
12.3. THE LIMITATIONS IN THIS SECTION WILL NOT APPLY TO (A) CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, (B) CUSTOMER’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND (C) AMOUNTS DUE AND PAYABLE BY CUSTOMER HEREUNDER.
This section applies if any agency named in an IO (“Representative”) executes an IO on behalf of an Advertiser.
13.1. Representative Obligations. Representative represents, warrants, and covenants that: (a) it is the authorized agent of the Advertiser and has the legal authority to enter into the Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser's accounts; (b) it will perform its duties pursuant to the Agreement in a professional manner consistent with the requirements established by MoPub; (c) it will not use data or information received in connection with the Agreement to conduct any marketing efforts targeted at other advertisers, or with any other advertiser other than the Advertiser named on the applicable IO in connection with which such data or information was received; and (d) it will not, without MoPub’s prior written consent (i) make any representation, guarantee, condition, or warranty concerning the Acquire Platform, including that Representative is an affiliate or partner of MoPub, (ii) make any commitments (e.g., guarantees as to placement of Ads) to any party regarding the Acquire Platform, or (iii) negotiate any terms or conditions related to the Acquire Platform which may affect the rights, protections, and/or obligations of MoPub, and/or that are inconsistent with the Agreement. Representative will defend and indemnify the Indemnified Persons for any claim, allegation, liability, damage, loss or expense (including reasonable attorneys’ fees and costs) arising out of or relating to Representative’s actual or alleged breach of this section.
13.2. Evidence of Authority. Upon MoPub’s request, Representative will immediately deliver to MoPub each written agreement that designates Representative as the Advertiser’s agent and authorizes Representative to act on the Advertiser’s behalf in connection with the Agreement. In the event of a termination of Representative’s relationship with an Advertiser: (a) Representative agrees to promptly notify MoPub and MoPub reserves the right to continue enabling access to the Acquire UI by such Advertiser, including Account and performance history with respect to its Ads; and (b) Representative will no longer access the Accounts or the Acquire UI.
13.3. Payment Liability. Unless otherwise agreed upon in writing between or among Representative or Advertiser, on the one hand, and MoPub, on the other hand, and to the fullest extent permitted by law, Representative and each Advertiser will be jointly and severally liable for all obligations under the Agreement, including payment obligations, and Representative hereby waives any right under applicable law that may require MoPub to proceed against Representative or Advertiser prior to proceeding against the other who may also be liable (including if payment is made, in whole or in part, through the application of a credit line extended by MoPub). Should Representative enter into an IO for its own benefit, in countries where it is authorized to do so, this Agreement will govern, and the Representative will be deemed the Advertiser in those instances.
14.1. Entire Agreement. This Agreement is the entire agreement of the Parties relating to the Acquire Platform, and supersedes all prior commitments, negotiations and understandings relating to the subject matter thereof. Without limiting the foregoing, none of Customer’s pre-printed forms, purchase orders, or online terms, whether or not signed by or accepted by a representative of MoPub, will apply, and all such terms shall automatically be null and void.
14.2. Conflicts. To the extent of any conflict between an IO and these Terms, these Terms shall prevail unless the IO specifically identifies a provision in these Terms that it intends to override, and in which case such IO will only control for the Ads delivered pursuant to that IO.
14.3. Assignment. Customer will not assign (whether by operation of law or otherwise) this Agreement or any rights or obligations under this Agreement to any third party, without the prior written consent of MoPub. Any assignment, transfer, or attempted assignment or transfer in violation of this section will be void and of no force or effect. MoPub and its subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time the Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
14.4. Choice of Law; Arbitration; Class Action Waiver. The terms of this Agreement and any dispute relating thereto between Customer and MoPub will be governed by the following: (a) the laws of the State of California, without regard to conflict/choice of law principles if Twitter, Inc. is the contracting MoPub entity under the Agreement (as indicated via the IO); and (b) the laws of Ireland, excluding application of its conflicts of law principles if Twitter International Company is the contracting MoPub entity under the Agreement (as indicated via the IO). The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Except with respect to payment disputes, which will be resolved as described in the Fee section above, in the event of any dispute, claim, or controversy arising out of or relating to this Agreement (each, a “Dispute”), Customer agrees to provide MoPub with notice of the Dispute in accordance with Section 14.7, and to provide a ten (10) business day resolution period in which the Parties may attempt to work out the Dispute informally. If, after the ten (10) business day resolution period, the Parties cannot work out the Dispute, Customer and MoPub agree to bring such Dispute to binding arbitration before a single, mutually agreed upon arbitrator. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Dispute, including, but not limited to, any claim that all or any part of the Agreement is void or voidable, or whether a Dispute is subject to arbitration. In the event of arbitration, Customer and MoPub hereby expressly waive trial by jury. The arbitration shall be administered by JAMS pursuant to the JAMS Streamlined Arbitration Rules & Procedures, available at www.jamsadr.com. CUSTOMER AND MOPUB AGREE THAT ANY ARBITRATION OR CLAIM AGAINST THE OTHER PARTY SHALL ONLY BE CONDUCTED IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHTS TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. Unless Customer and MoPub both agree, the arbitrator may not consolidate more than one Dispute. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, provided that such relief (including injunctive relief) is limited to Customer’s individual circumstances.
Notwithstanding the requirements of this arbitration provision, if the Dispute involves a claim for public injunctive relief, either Party may choose to sever that claim from the arbitration proceeding and bring it in any court of proper jurisdiction.
In a Dispute involving U.S. $25,000 or less, the arbitrator will hold any hearing by telephone or video, unless the arbitrator determines that good cause exists to justify an in-person hearing. Any in-person hearing will take place in San Francisco, California. Judgment on any award may be entered in any court having jurisdiction. As an alternative to arbitration, Customer may bring its Dispute in its local “small claims” court if permitted by that small claims court’s rules. Customer agrees that any Dispute (except as provided in the preceding paragraph) must be filed within one (1) year from the date the Dispute first arose.
This Agreement to arbitrate is subject to the Federal Arbitration Act and interpreting case law without regard to state law or other applicable law.
If it is determined that any part of this Agreement to arbitrate cannot be enforced as to a particular Dispute, then that Dispute (and only that Dispute) shall be severed and must be brought in a court of proper jurisdiction and any other Disputes must be arbitrated.
14.5. Severability. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected.
14.6. Waiver. The failure of a Party to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. A Party’s waiver of any default is not a waiver of any subsequent default.
14.7. Notices. MoPub may give notices to Customer by email to the contact email address provided on an IO. Customer must ensure that its contact and account information remain current and correct, and must promptly notify MoPub in writing of any changes to any such information. Except for cancellation notices sent pursuant to Section 3.7 above, Customer will send all notices to MoPub via recognized overnight courier or certified mail, return receipt requested, to Twitter, Inc., 1355 Market Street, Suite 900, San Francisco, CA 94103, to the attention of the Legal Department, with a copy via email to firstname.lastname@example.org, and all such notices to MoPub are deemed given upon receipt.
14.8. Interpretation. As used in the Agreement, the words “include” and “including” are terms of enlargement meaning “including without limitation” and do not denote exclusivity, the singular includes the plural and vice versa, and the words “will,” “shall,” and “must” are equivalent and denote a mandatory obligation or prohibition, as applicable.
14.9. Amendment. MoPub reserves the right to change or modify any of the terms and conditions contained in these Terms, including any terms, policies, guidelines or requirements incorporated by reference herein, at any time and in its sole discretion upon providing notice to Customer. Any changes or modifications will be effective immediately upon posting the revised Terms through the Acquire UI or the MoPub website (as applicable), and Customer waives any right it may have to receive additional notice of such changes or modifications. Customer’s continued use of any portion of the Acquire Platform (including any continuation of Ad Campaigns) following the posting of any revised Terms will constitute Customer’s agreement to be bound by the revised Terms. If Customer does not agree to any terms of the amended Terms, it must stop using the Acquire Platform and discontinue all open Ad Campaigns.
14.10. Force Majeure. If the performance of any part of this Agreement by MoPub is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, strike, riot, fire, insurrection, explosion, war, earthquake, natural disaster, judicial or governmental action, labor disputes, epidemic, pandemic or other contagion, act of God, outage, denial of service attack or any other causes beyond the reasonable control of MoPub, regardless of whether such cause is foreseeable as of the Effective Date or thereafter, then MoPub will be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
14.11. Independent Contractors. MoPub and Customer are not legal partners or agents, but are independent contractors, and neither Party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
14.12. International Compliance. Customer will not use or access the Acquire Platform or any Acquire Materials in violation of applicable International Trade Laws. Customer represents and warrants that it is not a Restricted Party.