Monetize Terms of Service
Effective: June 22, 2021
This Monetize Terms of Service (“Agreement”), formerly known as the MoPub Terms of Service, forms a legally binding agreement between You (defined below) and Twitter, Inc., on behalf of itself and its affiliates, including Twitter International Company (“MoPub”). This Agreement governs Your use of the MoPub Marketplace (“Marketplace”) and any other ad-related monetization services we offer to publishers, including ad serving, ad network mediation, and advanced bidding (collectively, “Ad Serving Services” and together with Marketplace, the “Monetize Services,” which we formerly referred to as the “Services”).
For purposes of this Agreement,“You” means: (i) you, the individual using the Monetize Services; and (ii) any other person or entity on behalf of which you use the Monetize Services, including as indicated in any account You created for use of the Monetize Services (“Account”).
By clicking to accept this Agreement, signing an amendment that incorporates this Agreement, or by otherwise using any of the Monetize Services, You agree to be bound by the terms of this Agreement. This Agreement does not alter in any way the terms or conditions of any other agreement You may have with any MoPub company for products, services or otherwise that do not relate to the subject hereof, including services provided to advertisers or services provided in connection with the real-time information service, commonly referred to as “Twitter.”
1. Description of Monetize Services.
(a) Marketplace. The Marketplace allows You to offer and sell elements of an application that You designate for placement of ads (“Inventory”) to any advertiser, demand side platform, advertising network or other advertising demand source in the Marketplace (which may include MoPub) (collectively, “Marketplace Demand Partners”). MarketplaceDemand Partners may place, display and serve advertisements on Inventory in Marketplace (“Demand Ads”) made available in the mobile applications identified in Your Account(s) (collectively, “Publisher Network”), based upon the selling criteria You select in the online user interface we provide for use viathe Monetize Services (“Monetize UI”).
(b) Ad Serving Services. The Ad Serving Services allow You to serve Your own ads or directly source ads from other sources (such as third-party advertisers, advanced bidding networks, and other advertising networks with whom You have a direct relationship) (collectively, “Publisher Ad(s)”) for display in Inventory on the Publisher Network, including through network mediation and MoPub’s advanced bidding offering.
2. Marketplace Revenue Share.
MoPub will remit to You a percentage of the Net Marketplace Revenue (defined below) that MoPub collects from Marketplace Demand Partners for the sale of Your Inventory via Marketplace. Absent a separate signed written amendment to this Agreement specifically specifying such percentage, MoPub may establish such percentage in its sole discretion, and MoPub may modify the percentage from time to time, without notice. The amount resulting from applying such percentage to the Net Marketplace Revenue will be the “Revenue Share Fee." “Net Marketplace Revenue” means fees actually collected by MoPub from Marketplace Demand Partners in connection with any Demand Ads served on Inventory You sell through the Marketplace, less any media buying fees or bid reductions, operating fees, fraud, chargebacks, refunds, uncollected amounts, credit card processing fees and other reasonable deductions. MoPub will remit to You the Revenue Share Fee in US Dollars within 60 days after the last day of the calendar month in which MoPub received the applicable Net Marketplace Revenue, provided that no remittances will be made for any amount less than $100 (USD) and any unpaid earnings will rollover and accrue to the next remittance period. MoPub may offset the Revenue Share Fee owed to You by the amount of other fees You owe MoPub under this Agreement or any other agreement You may have with MoPub. MoPub will determine how to measure the number of impressions, inquiries, conversions, clicks, offers, installations, or other actions taken by third parties in connection with Demand Ads, and all remittances will be based on MoPub’s measurements, which shall be final.
You are responsible for any and all withholding, sales, use, value added or other taxes, duties or charges that are imposed by any jurisdiction on the transactions described in this Agreement, other than taxes based on MoPub’s net income (collectively, “Taxes”) associated with the Monetize Services. Each party shall remit the amounts due after deducting any and all Taxes that may be applicable to any applicable remittances. Specifically, MoPub may deduct or withhold any taxes that MoPub may be legally obligated to deduct or withhold from any amounts due to You under the Agreement, and remittance to You as reduced by such deductions or withholdings will constitute full remittance and settlement of amounts due to You under the Agreement. If a tax authority subsequently finds that MoPub’s withholding tax payment is insufficient and requires additional payments, MoPub will make such payments, and, at MoPub’s election, (i) You will reimburse MoPub for such additional withholding tax payments, or (ii) MoPub may deduct such amounts from amounts due to You under this Agreement. Within a reasonable period of time, MoPub will provide You with documentation evidencing its withholding tax payments.
3. Service Implementation.
Solely for purposes of accessing the Monetize Services, You will promptly integrate with the Publisher Network and maintain, including by updating as soon as commercially available, the then-current version of any software development kit (“SDK”), APIs and any other required Monetize Service software (collectively, “MoPub Code”), in a manner that complies with this Agreement and any other technical or implementation requirements or Montize Service protocols provided by MoPub from time to time in documentation or otherwise.
4. Other Obligations.
(a) Content. You are solely responsible for (i) all aspects of the Publisher Network, including the Inventory; (ii) Publisher Ads, including content and placement of those ads; and (iii) all aspects of Your relationship with third parties that provide Publisher Ads (including selling, collection of payment, client service, and all related inquiries).
(b) Your Account. You will protect the Account(s) and any usernames, passwords, verification codes, and any other access or authentication information associated with the Account(s) against any unauthorized access, use, and disclosure, and You will take full responsibility for Your own, and any authorized or unauthorized third party’s, use of the same. You will ensure that all information in Your Account is up-to-date, complete, accurate, and not misleading; failure to do so may delay delivery of remittances MoPub owes You under this Agreement. You may grant third parties access to Your Account solely to allow such third parties to access and manage Your Account on Your behalf; provided, however, that You shall (i) require that such third parties agree to be bound by the terms of this Agreement; and (ii) be fully responsible and liable for the acts and omissions of such third parties, including their failure to comply with this Agreement. If You become aware of a potential breach of security relating to Your Account(s) or its usernames, passwords, verification codes, or other access or authentication information, You will immediately notify MoPub at firstname.lastname@example.org. Misrepresenting ownership or fraudulently claiming ownership or control of applications in the Monetize UI may result in Your permanent ban from the Monetize Services or any other services offered by MoPub. MoPub may use a third-party payment processor to make payments in connection with Your Account (“Payment Processor”). The processing of payments in connection with Your use of the Monetize Services will be subject to the terms, conditions and privacy policies of the Payment Processor, PayPal, Inc. and/or Your bank, as applicable, in addition to this Agreement. MoPub will not be responsible or liable for any payment delays or other payment errors caused by the Payment Processor, PayPal, Inc. and/or Your bank. The parties will cooperate in good faith to resolve any such errors in the event You do not receive the appropriate amount of remittances.
(c) Policies. You will, and will contractually require any third parties within the Publisher Network, including third parties that provide Publisher Ads, to comply with all applicable MoPub policies (currently located at mopub.com/legal/) including the MoPub Policies for Publishers, any of which may be updated by MoPub from time to time (collectively, “MoPub Policies”). Upon request and if applicable, You will reasonably assist MoPub in enforcing the MoPub Policies vis-à-vis third party applications and third parties that provide Publisher Ads within the Publisher Network.
(d) Privacy Compliance. You will comply, and ensure all applications within the Publisher Network comply, with all applicable laws, rules, and regulations, and any third-party agreements to which You are bound, relating to the processing of any information about any end user who views, is able to view, or interacts with any Demand Ad or Publisher Ad.
(e) Misleading Impressions. See the MoPub Policies for information and obligations concerning misleading impressions.
(f) Other Prohibited Actions. You will not, and will not allow any third party to: (i) directly or indirectly access, launch or activate any of the Monetize Services (including any Monetize Service protocols), MoPub Code, or any other MoPub technology, content, software, materials and/or documentation made available in connection with the Monetize Services or the MoPub Code (collectively, the “MoPub Materials”) through or from, or otherwise incorporate any MoPub Materials in, any software, application, site or by any means other than in the Publisher Network or as expressly permitted by this Agreement; (ii) copy, distribute, rent, sell, lease, lend, sublicense, transfer any MoPub Materials or make any Monetize Service available to any third party except as expressly permitted by this Agreement; (iii) decompile, reverse engineer, or disassemble the MoPub Materials; (iv) create derivative works based on the MoPub Materials; (v) modify, remove, or obscure any proprietary notices or legends that appear on the MoPub Materials or during the use and operation thereof; (vi) use any MoPub Materials to directly or indirectly generate queries, or impressions of or clicks on Demand Ads, through any automated, deceptive, fraudulent or other invalid means (including as described in the MoPub Policies); (vii) create or attempt to create a substitute or similar service or product to any Monetize Service through use of or access to any of any MoPub Materials or proprietary information related thereto; (viii) modify any feature or functionality of any Monetize Service to collect personal information not otherwise collected by the Monetize Services; or (ix) engage in any action or practice that reflects poorly on MoPub or otherwise disparages or devalues MoPub’s reputation or goodwill.
(g) No Endorsement. MoPub is not affiliated with or responsible for any third-party products or services You may choose to use in connection with any Monetize Service. MoPub reserves the right, but will have no obligation, to edit, modify, refuse to post, or remove any content, in whole or in part, that MoPub, in its sole discretion, deems objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. MoPub has no obligation to monitor the content of any Demand Ad or Publisher Ad. Notwithstanding the foregoing, MoPub may remove or block any Demand Ad or Publisher Ad if MoPub reasonably determines (i) that such action is appropriate to prevent or limit errors, liability or other harm with respect to any Monetize Service, MoPub or others; or (ii) it violates MoPub’s Policies.
(h) Child-Directed Apps. You represent and warrant that (i) no application within the Publisher Network is a website or online service directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”), and (ii) You will not transmit any “Personal Information” (as defined under COPPA) about or relating to an individual under the age of 13 to MoPub.
(i)Third Party Terms. See the MoPub Policies for obligations and information concerning compliance with third-party contractual terms.
(j) Third Party Services. MoPub may make certain services provided by third parties available to You, including services to view performance metrics. Such third-party services may change at any time, in MoPub’s sole discretion. You are solely responsible for the use of any such third-party services, including use in accordance with the MoPub Materials and Your compliance with the agreements of any such third-party services.
(k) International Compliance. You will not use or access any of the Monetize Services in violation of applicable International Trade Laws. You represent and warrant that You are not a Restricted Party. “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 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, European Union or any of its member states, United Nations Security Council, and any other relevant government authority. “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 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; (v) the United Nations Security Council; and (vi) any other relevant governmental authority.
(l) Independent Controller Relationship. You and MoPub are each independent controllers of any personal data it processes in connection with the Monetize Services about end users located in the European Union, EFTA States, and the United Kingdom. MoPub will individually determine the purposes and means of processing described in this Agreement. In no event will the parties process personal data as joint controllers. Each party shall be individually and separately responsible for the obligations that apply to it as a controller with respect to the processing of personal data about end users located in the European Union, EFTA States, and the United Kingdom. Twitter International Company is the data controller with respect to the processing of any personal data about end users located in the European Union, EFTA States, and the United Kingdom.
(m) GDPR Consent Solution. If You would like to serve personalized advertising to End Users in the European Union, EFTA States, and/or the United Kingdom, You will use the MoPub SDK’s consent solution to obtain consent from such End Users. You will not alter or modify the MoPub SDK’s consent solution or otherwise attempt to fraudulently pass consent on behalf of the End User.
(n) California Terms. You are responsible for compliance with the California Consumer Privacy Act, California Civil Code Section 1798.100, et seq. (“CCPA”). If You use the Services in a way that causes MoPub to collect personal information from California residents, You will provide all notices and offer all opt out choices required by the CCPA in accordance with the MoPub Policies for Publishers. If You do not provide all notices and choices required by the CCPA, You may not use the Services in a way that causes MoPub to collect personal information from California residents. Where and solely to the extent (i) the California Consumer Privacy Act (“CCPA”) applies to the processing of personal information about end users; and (ii) in accordance with the MoPub Policies for Publishers MoPub receives ad requests from You for California residents who have opted out of the sale of their personal information. For such ad requests, MoPub will act as Your service provider as defined by the CCPA and will not retain, use or disclose such personal information other than (i) for purposes of performing obligations under this Agreement, including by providing Your bid requests to Advertising Demand Partners to allow them to bid on and display and serve their ads on Your Inventory based upon the selling criteria selected by You via the MoPub UI, to cap the frequency of ads, for conversion, measurement, and reporting purposes, for fraud detection purposes, or for any other business purpose; or (ii) as may otherwise be permitted for service providers in the CCPA. The provisions of this Section 4(n) are effective solely to the extent the CCPA applies. The terms “sale,” “personal information,” and “service provider” as used in this Section 4(n) shall have the meaning given to them under the CCPA.
5. Licenses and Rights.
(a) Right to use Monetize UI. Subject to the terms of this Agreement, You shall have the right to access and use the Monetize UI solely for purposes of (i) accessing and using the Monetize Services for apps within the Publisher Network, (ii) performing projections of advertising impression inventories that might be available through the Monetize Services, (iii) uploading and storing Publisher Ads for delivery through the Monetize Services, (iv) selecting targeting and delivery criteria for the delivery of Publisher Ads, and (v) receiving reports of ad requests, impressions and other data related to the delivery of Publisher Ads and Demand Ads through the Monetize Services.
(b) License to Publisher Ads. Subject to the terms of this Agreement, You hereby grant MoPub a royalty-free license to (i) host, mediate, serve, route, place, publicly display, adapt, modify and reproduce Publisher Ads in Inventory via the Ad Serving Services, and (ii) create, use and provide reporting related to requests, impressions and other data related to Publisher Ads to provide and improve the Monetize Services.
(c) Right to use Marketplace. Subject to the terms of this Agreement, You shall have the right to access and use the Marketplace solely for purposes of: (i) listing and making available to Marketplace Demand Advertises Inventory in the Publisher Network for sale on the Marketplace; and (ii) receiving reports of Demand Ads requests, impressions and other data related to the delivery of Demand Ads through the Marketplace.
(d) License to Serve Demand Ads. During the Term and in connection with the Marketplace, You hereby grant MoPub a royalty-free license to (i) host, serve, route, place, publicly display, adapt, modify and reproduce Demand Ads in Inventory via Marketplace, and (ii) create, use and provide reporting related to Demand Ads requests, impressions and other data related to Demand Ads to provide and improve the Monetize Services.
(e) MoPub Attribution. MoPub may include MoPub brand features or other attribution or end user notice or choice features (collectively, “Brand Features”) on any Demand Ads or Publisher Ads transmitted by MoPub via any Monetize Service. MoPub may include Brand Features on any webview, website, or other medium displayed to an end user through the SDK’s EU consent solution (which is further described in the MoPub Policies for Publishers).
(f) Marketing and Publicity. You hereby grant MoPub a non-exclusive, royalty-free, worldwide, fully paid-up license to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the applications in the Publisher Network in MoPub’s customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
6. Terms Specific to Ad Serving Services.
(a) Publisher Ads. You shall not include in any Publisher Ads (i) any malware, spyware or any other malicious code or code that may be used to circumvent any MoPub security measure, or (ii) any information or technology that could personally identify an end user or other person.
(b) End User Volunteered Information. See the MoPub Policies for obligations and information concerning information volunteered by end users.
(c) Fees for the Ad Serving Services. MoPub reserves the right to charge You fees for Your use of the Ad Serving Services. MoPub will provide notice prior to charging such fees. Subject to MoPub’s offset right set forth in Section 2, MoPub will invoice You monthly for applicable Ad Serving Fees and You shall pay all such amounts within 30 days of the applicable invoice date. Any amounts due that are not received by the applicable due date will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. You are responsible for all Taxes (if any) associated with the Ad Serving Services (other than Taxes based on MoPub’s net income), and You shall pay all amounts due without any withholding or deduction for Taxes or otherwise.
(d) Reporting. In connection with Your use of the Monetize Services, MoPub, or third party’s on MoPub’s behalf, may provide reporting related to Your use of the Monetize Services including, through the Monetize UI, an API, or otherwise. In order to provide reporting, You: (i) authorize MoPub to collect and use certain information to prepare the enabled reports and otherwise optimize, provide and improve the Monetize Services; (ii) must abide by the MoPub Materials relevant to such reporting, including in connection with sharing of any API Keys; (iii) remain fully responsible for any sharing of MoPub Code (including API keys) and any information collected by a third party that You make available to MoPub; (iv) will prohibit any third party services or networks that You link to the Monetize Services via the Monetize UI for reporting purposes from using any reporting data except to provide services to You; and (v) may only use reporting for internal business purposes.
(e) Mediation Partners. If You enable network reporting access in the Monetize UI, among other reporting options, MoPub may offer revenue reporting for certain third-party mediation ad networks that have been certified and approved by MoPub (“Supported Advertising Mediation Partners”). If you select reporting options that involve Supported Advertising Mediation Partners, You (i) may be required to have an account with each such Supported Advertising Mediation Partner (“Network Account”); (ii) authorize MoPub to access, collect and use data, including impression, click, request, eCPM, revenue and fill rate data, relating to Your Network Account(s) (including by automated means), for use in the reporting and to otherwise optimize, improve and provide the Monetize Services, and (iii) represent and warrant that (1) You are an authorized user of the Network Account, (2) You have all necessary rights to authorize MoPub to access and use Your Network Account as contemplated herein, and (iii) access, collection and use of the data from Your Network Account by MoPub as contemplated herein does not and will not violate any applicable third party agreements or policies (including with Supported Advertising Mediation Partners). You may only use such reporting for internal business purposes, including for purposes of optimization and ad inventory allocation, and solely in compliance with applicable third party terms. Data used in such reporting is provided by the Supported Advertising Mediation Partners and MoPub is not responsible for discrepancies in reporting, or for the performance or results of Supported Advertising Mediation Partners.
7. Term; Termination.
Unless otherwise expressly agreed by You and MoPub, the term of this Agreement will commence on the date You create an Account or sign an amendment with MoPub expressly incorporating this Agreement, whichever is earlier, and will continue until terminated by either party (“Term”). You may terminate this Agreement, with or without cause, at any time by sending written (via email) notice to the address and contact set forth in Section 15(c) below. MoPub may terminate this Agreement or any Account, with or without cause, in MoPub’s sole discretion, at any time without prior notice. Termination by either party will become effective immediately on the date access to Your Account(s) is disabled. Upon termination of this Agreement, any licenses granted to You in this Agreement will automatically terminate, and You must immediately cease all use of the Monetize Services, as well as any MoPub Code, and destroy or erase all copies of any MoPub Materials in Your possession or control. Further, upon expiration or termination, if You are a Marketplace customer and if Your account balance is less than US$50 (the “Termination Threshold”), such earned balance below the Termination Threshold will not be paid and will automatically be forfeited and MoPub will own any such amounts. If Your earned balance at the time of expiration or termination is greater than the Termination Threshold, MoPub will remit to You the amount earned within approximately 90 days of the end of the month of termination. MoPub will attempt to pay You for undisputed, unpaid amounts earned prior to termination, however, if MoPub is unable to remit payment to You due to circumstances beyond MoPub’s control, You will automatically forfeit all such amounts and MoPub will own any such amounts.
8. Suspension; Discontinuance.
MoPub has the right, in its sole discretion, without notice, to suspend (i) any application from Your Publisher Network, (ii) Your Account, or (iii) Your access to the Monetize UI or any Monetize Service. MoPub reserves the right to modify or discontinue any Monetize Service or MoPub Materials, or any features or portions thereof, without prior notice. MoPub will not be liable for damages of any sort that result from any such suspension, modification, or discontinuance.
9. Data Use.
In connection with the operation of any Monetize Service, MoPub and You may collect and receive Service Data. “Service Data” includes any information that You or MoPub collect(s) during the delivery of Demand Ads or Publisher Ads or performance of this Agreement, including end user device information, end user’s session-based browsing behavior, information about ads served, viewed, or clicked on, http header information, as well as any data that You elect to provide MoPub. MoPub reserves the right to collect, use, disclose or otherwise process Monetize Service Data (i) to provide any of the Monetize Services, (ii) for its internal business purposes, (iii) to improve any products or services provided by MoPub, (iv) to enable, and allow for the improvement of, services provided to or by Advertising Demand Partners and other third party partners, (v) as may be required by law or legal process, or (vi) when it is aggregated or anonymized such that it does not identify You, any end user, or individual device. You may use Monetize Service Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations, agreements with third parties, and industry self-regulatory regimes applicable to the processing of Monetize Service Data, and that You provide any notices, offer any choices, and obtain any and all consents or authorizations from end users that may be required in connection therewith.
10. Confidentiality; Publicity; Ownership.
(a) “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 recipient reasonably should know is confidential given the nature of the information or the circumstances of the disclosure. Obligations under this section 10 will not apply to information that the receiving party can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure, (ii) 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, (iii) 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 (iv) is collected by the receiving party independent of the Agreement, as shown by the receiving party’s records. The features and functionality of any Monetize Service and the MoPub Materials will be deemed MoPub’s Confidential Information.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 this 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 obligations which are no less protective than those contained in this section 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.
(b) Publicity. You 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 this Agreement or otherwise without securing the prior written consent of MoPub.
(c) Ownership. As between the parties, MoPub retains all right, title and interest in and to the Monetize Services and MoPub Materials and any materials created, developed or provided by MoPub in connection with this Agreement, including all Intellectual Property Rights (as defined below) related to each of the foregoing. As between the parties, except as set forth herein, You and Your licensors retain all right, title and interest in and to the Publisher Network, including all Intellectual Property Rights related thereto. “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. MoPub will be free to use any feedback, comments, or suggestions you provide in connection with this Agreement, any Monetize Service, or the MoPub Materials (“Feedback”), in any way without any compensation or obligation to You or any third party, and such Feedback shall be deemed the Confidential Information of MoPub. You hereby irrevocably assign to MoPub all right, title and interest to such Feedback. For clarification, Feedback does not include the right to, and MoPub will not, publicly disclose that You provided Feedback unless MoPub receives Your prior written consent (email sufficing).
ALL MONETIZE SERVICES AND THE MOPUB MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND (INCLUDING THE RESULTS OF ANY MONETIZE SERVICES), EXPRESS, IMPLIED, OR STATUTORY, OR ARISING OUT OF CUSTOM, COURSE OF DEALING OR TRADE USAGE, AND YOUR USE THEREOF IS AT YOUR OWN RISK. MOPUB DOES NOT GUARANTEE THAT THE MONETIZE SERVICES WILL YIELD 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 MONETIZE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
12. Limitation of Liability.
NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; PROVIDED, HOWEVER, THE FOREGOING LIMITATION WILL NOT APPLY TO A PARTY’S (A) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH HEREUNDER, AND (B) INDEMNIFICATION OBLIGATIONS HEREUNDER. IN NO EVENT WILL MOPUB’S LIABILITY AND DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATING TO ANY MONETIZE SERVICE OR THIS AGREEMENT EXCEED $500. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13. Representations and Warranties.
(a) Mutual Representations and Warranties. Each party represents and warrants that: (i) it has the full power and authority to enter into this Agreement and grant the licenses and rights herein; (ii) its performance under this Agreement does not violate any other agreements to which it is a Party; and (iii) this Agreement constitutes a legal, valid and binding obligation when entered into.
(b) Your Representations and Warranties. In addition, You represent and warrant that: (i) You have and will maintain throughout the Term all rights and licenses (including any Intellectual Property Rights) that are required to permit MoPub to perform the Monetize Services and take other actions contemplated under this Agreement; (ii) You will not engage in any illegal or fraudulent business practice; (iii) all of the information You provide or make available to MoPub is correct, accurate, complete and current at all times; (iv) if You are entering into this Agreement, or otherwise accessing or using any Monetize Service, on behalf of any other person or entity, You are authorized to enter into this Agreement and to access and use such Monetize Services on such person or entity’s behalf; (v) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including any relevant data protection or privacy laws) in Your performance of any acts hereunder, and You will not cause MoPub to be in violation of any applicable laws; (vi) You comply with and have any and all consents, waivers, approvals, authorizations and clearances from end users to allow MoPub to collect and use the Monetize Service Data in accordance with this Agreement including Section 9, and as may be required for MoPub to provide services hereunder; (vii) You will at all times comply with the applicable MoPub Policies; and (viii) Publisher Ads do not and will not infringe upon or violate any Intellectual Property Rights of any third party.
You will indemnify, defend and hold MoPub, its licensors, independent contractors and suppliers, and its and their agents, directors, officers, and employees (collectively “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees) arising out of or related to (a) the Publisher Network, including any Publisher Ads or Demand Ads displayed or served on the Publisher Network that is not served by MoPub, Your use of any Monetize Service, or Your breach of any term of this Agreement; or (b) any claim or allegation that any Publisher Ad or content of a Publisher Ad infringes upon, violates, or misappropriates any Intellectual Property Rights, or slanders, defames, or libels any person. At its option, MoPub may control the defense of any indemnifiable claim. If MoPub tenders defense of such claim to You, then MoPub may participate in the defense of any such claim by counsel of its own choosing, at its cost and expense. You agree not to settle any claim against any Indemnified Persons without MoPub’s prior written consent.
(a) Choice of Law; Arbitration; Class Action Waiver. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or Your state or country of residence. In the event of any dispute, claim, or controversy arising out of or relating to this Agreement (each, a “Dispute”), You agree to provide MoPub with notice of the Dispute in accordance with Section 15(c), 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, You and MoPub agree to bring any 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 these terms are void or voidable, or whether a Dispute is subject to arbitration. You 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 You and MoPub both agree, the arbitrator may not consolidate more than one person’s claims. 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 Your 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, You may bring Your claim in Your local “small claims” court if permitted by that small claims court’s rules. You agree 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. To the extent state substantive law applies to the Dispute, the law of the State of California shall apply, without regard to conflict of law provisions.
If it is determined that any part of this Agreement to arbitrate cannot be enforced as to a particular claim for relief or remedy, then that claim or remedy (and only that claim or remedy) shall be severed and must be brought in a court of proper jurisdiction and any other claims must be arbitrated.
(b) Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to any Monetize Service, unless You and MoPub have separately executed a written amendment concerning the same. In the event of any conflict between this Agreement and any such amendment, the amendment will take precedence over the specific terms of this Agreement solely to the extent of such conflict. In addition, Your use of certain Monetize Services may be subject to separate terms. If there is conflicting language between those separate terms and this Agreement, the separate terms will control only if the separate terms expressly reference this Agreement and state that the separate terms control.
(c) Notices. Any notices to MoPub must be sent to: Twitter, Inc. 1355 Market Street, Suite 900, San Francisco, CA 94103, to the attention of the Legal Department, via recognized overnight courier or certified mail, return receipt requested, with a copy via email to email@example.com and all such notices to MoPub are deemed given upon receipt. MoPub may send You notices by sending an email to any email address specified in Your Account, or by posting a message to Your Account or the Monetize UI, and is deemed received when sent (for email) or posted.
(d) 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.
(e) Severability. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected.
(f) Amendment. MoPub reserves the right to change or modify any of the terms and conditions contained in this Agreement or the MoPub Policies at any time and in its sole discretion upon providing notice to You. Any changes or modification will be effective immediately upon posting the revised Agreement on the Monetize UI, and You waive any right You may have to receive additional notice of such changes or modifications. Your continued use of any Monetize Service following the posting of any revised Agreement or MoPub Policies will constitute Your agreement to be bound by the revised version of the same. If You do not agree to any terms of the revised Agreement or MoPub Policies, You must stop using the Monetize Services.
(g) Assignment. You may not assign (whether by operation of law or otherwise) this Agreement or any of Your 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 this Agreement, or the rights or obligations hereunder, in whole or in part at any time upon notice to You. 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.
(h) 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, epidemic, pandemic or other contagion, judicial or governmental action, labor disputes, act of God or any other causes beyond the reasonable control of MoPub, regardless of whether such cause is foreseeable as of the effective date of this Agreement or thereafter, then MoPub will be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
(i) Independent Contractors. MoPub and You 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.
(j) Survival. Any provisions which by their nature should survive termination of this Agreement, will survive termination of this Agreement, including Sections 2, 4, and 7-15 will survive any expiration or termination of this Agreement.
(h) 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.