Updated February 12, 2013
Section 1, General
- The content of the pages of this website is for your general information and use only. It is subject to change without notice.
- Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
- Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
- This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited of all and any part of this website by you.
- Unauthorized use of this website may give rise to a claim for damages and/or be a criminal offence.
- From time to time, this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
- Appatyze provides in-house customer support by email and online helpdesk. We also provide telephone support should you need additional assistance having exhausted the online options available.
- Agreement to the Terms and our relationship hereunder do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between us, and neither of us shall suggest otherwise.
- At any time during the term of our engagement, Appatyze and you shall have the right to terminate the engagement without prior notice and for any reason or for no reason. In the event of termination of the engagement hereunder, all amounts due and owing as of the termination effective date shall be paid promptly, and those provisions and obligations in the Terms, which by their nature and context reasonably should survive termination, shall so survive.
Section 2, Registration
To access and use Appatyze services, you must complete the registration process and create an Appatyze account (the “Account”) by providing current, complete and accurate information as prompted by the registration form. You are responsible for any activities or actions under your Account, whether or not you have authorized such activities or actions, and you must promptly notify Appatyze of any unauthorized use of your Account. Account registration is subject to Appatyze’s prior approval and your compliance with the Terms. Appatyze reserves the right to refuse registration for any reason.
Section 3, Services
The below is a concise description of Appatyze's main services which may be provided to you through our website, subject to the Terms, and other guidelines and policies which we may post or notify of from time to time, and as may be changed, added, suspended or removed from time to time at Appatyze's sole discretion (the "Appatyze Service").
- Appatyze provides developers of applications (the “Developers”) with a placement Tag that enables the Developers to expose features of the Appatyze Service within an application page (the “Tag”). Each unique Tag may be placed on the corresponding application page you own or control solely as provided to you by Appatyze and without modification of any kind, and in accordance with any applicable guidelines or restrictions which may be imposed by Appatyze. You may not sublicense, further distribute or syndicate the Tag or use it otherwise then intended by Appatyze. With the sole exception of the snippet of HTML code provided to you by Appatyze for inclusion on your site, you may not reproduce or distribute any Appatyze materials on any other website.
- You must ensure that any logos, branding and other visual interface elements are visible and unmodified, and that any and all links back to the Appatyze Service or other third party web properties included in the Tag are implemented without modification and are functional across browsers. You may not use Tags in a way that might confuse third parties as to the source or origin of the Tag or the content they contain, the service the Tag connect to, or the content on the site you embed the Tag on.
- As a Developer you are able to download your free unique Tag through your Account on our web-based console (the “Product Console”).
- Appatyze offers a marketplace for advertisements (the “Marketplace”) through which Developers may specify one or more uniquely defined, named and described advertising opportunities (the “Placements”) and make each such opportunity available for advertisers and advertising agencies (the “Advertisers”) to purchase Placements for display of their advertisements (the “Market Ad(s)”). Advertisers specify the parameters that define which Placements to target for delivering such Market Ads (“Ad Targeting”), as well as the maximum amount they are willing to pay (the “Bid”) for display of the Market Ads. Developers specify the parameters that define which ads may be shown in each Placement (“Placement Restriction(s)”).
- Appatyze determines on the Developer's behalf a minimum Market Price (as defined below) for each application we are willing to accept for ads in their Placement (“Reserve Price”).
- For each ad opportunity associated with a particular Placement, the Marketplace determines a set of Market Ad campaigns that match the Placement according to the Ad Targeting and Placement Restrictions (the “Matching Ad(s)”). The Marketplace then uses an auction mechanism to select a particular Market Ad to display (the “Winning Ad”) and to determine the price (the “Market Price”) for displaying the Market Ad. The auction mechanism takes into consideration, among others, the winning Bid, the Bids of the other Matching Ads, and the Reserve Price set by Appatyze on the Developer's behalf. The Market Price will never be greater than the winning Bid or less than the Reserve Price.
- As an Advertiser in the Marketplace, you can create Market Ad campaigns, configure your Ad Targeting and submit or modify Bids through our Product Console that provides setup, administration, configuration, support and reporting features. For each of your Market Ad campaigns and bids in the Marketplace, you agree to provide accurate information, and you grant Appatyze a limited, nonexclusive right and license to display your Market Ads in the Marketplace to be viewed by Developers in accordance with the Ad Targeting defined by you.
- As a Developer in the Marketplace, you can list Placements, control your inventory, request Placement Restrictions through the Product Console. You hereby specifically authorize Appatyze to determine the Reserve Price on your behalf and acknowledge and agree that the Reserve Price may be set by Appatyze at its sole discretion and take into account various considerations. The Reserve Price may vary between one Developer to another, one campaign to another, etc.
- Appatyze has developed the Exchange Service to facilitate the advertising and promotion of Developers' applications, websites and other properties. This service can be enabled on the Developer's applications, websites or other properties (collectively, the “Application”) through integrating an Appatyze provided cross-promotional banner (the “Exchange Bar”) or other Exchange provided ad units (collectively the “Appatyze Adverts”) into the Application.
- Certified Clicks accumulated by the Developer from the Tag/Exchange Bar (clicks by Developer's users on third party applications) generate credit towards return traffic to Developer's Application (the "Exchange Credits") as further described herein. As used herein, "Certified Click" means a click by an actual human user, other than any individual that is your employee, independent contractor, affiliate or agent, or otherwise acting on your behalf, on a link in a properly implemented Tag, and for which such user has not been given any financial or other incentive to click (including without limitation any virtual currency or property), expressly excluding any and all traffic generated by any bot, spider, or other automated process, or through the use of any other technique or device designed to provide inflated or otherwise misleading click statistics or any other kind of fraudulent or dishonest behavior. The determination of whether or not a particular click is a Certified Click and how many Exchange Credits to issue therefor is at the sole discretion of Appatyze.
- Accruing Exchange Credits. As further provided in these Terms, Appatyze issues Exchange Credits to you as a result of Certified Clicks, as follows: you accrue credits for your Certified Clicks, at a rate determined by Appatyze in its discretion as listed that is based among others on the geographical location of the user generating the Certified Click as well as any other considerations decided by Appatyze at its sole discretion. The rate of credits accrual may vary from one Developer (or group of Developers) to another. We reserve the right to change conversion rates from time to time on a going forward basis at our discretion.
- Redeeming Credits. Exchange Credits are redeemed for Developers automatically through the Appatyze Exchange Service, meaning that if a Developer has available Exchange Credits, a link to the Developer's Application may be displayed in Tag published on other Appatyze users' Facebook application pages. Note that availability of Exchange Credits in a Developer's account does not guarantee that the link to such Developer's Application will be so displayed. Exchange Credits are automatically deducted from the Developer's credit balance when its link is clicked (the "Inbound Clicks"). Appatyze weighs the value of Inbound Clicks differently based among others on the geographical location of the user originating the Inbound Click as well as any other considerations decided by Appatyze at its sole discretion. The value of Inbound Clicks may vary from one Developer (or group of Developers) to another. We reserve the right to change the method of weighting the value of Inbound Clicks from time to time on a going forward basis at our discretion. While the rate at which Exchange Credits are redeemed for Inbound Clicks may vary, each Inbound Click requires the redemption of a minimum amount of Exchange Credits.
- Appatyze may also allow Developers to redeem Exchange Credits for cash, subject to revenue share arrangements with Appatyze and to other terms and conditions, as shall be determined by Appatyze from time to time at its sole discretion.
- Appatyze provides Developers with information through the Product Console on their Certified Clicks, Exchange Credits, and Inbound Clicks. In the event that any Developer is unsatisfied with the Appatyze Service, including the conversion rates of Certified Clicks into Exchange Credits, or Exchange Credits into Inbound Clicks, such Developer's sole remedy is to terminate its use of the Appatyze Service in accordance with these Terms.
- Appatyze delivers a range of functions that together form the Appatyze Service offered through our platform. The Appatyze Service includes, but is not limited to, the hosting, delivery and recording of advertising impressions and clicks as well as the promotion of the service to generate the advertising income in the first place. All of these services are free to use and serve the sole function of attracting new users and retaining existing ones. Appatyze generates revenue from the commission that is deducted from Developers when a Certified Click is registered. The revenue, net of any commission and/or service charge, is transferred from an Advertiser's Account Balance (as defined below) to a Developer's Account Balance. Additional services may be developed and introduced from time to time at Appatyze's discretion.
- Appatyze is entitled to use any content on appatyze.com, including but not limited to application profile information, screenshots of applications, application profile images and advert content added to the Appatyze system, in marketing and promotional material to endorse the Appatyze Service. The content owner may specifically withhold permission at their discretion however until such permission is withheld it shall be deemed to be granted to Appatyze without any restrictions.
Section 4, Prohibited Practices
- The Developers and Advertisers must not use illegitimate or dishonest methods to distort advertising impressions, clicks or any other metrics in order to generate revenue.
- You must not attempt to exploit any perceived weakness in any part the Appatyze system in order to illegitimately generate revenue, control auction placement or awarded CPC rates or other compensation, falsely incentivize clicking on a link or distort any other Appatyze system data.
- In using the Appatyze Service, you may not (or authorize or encourage any third party to):
- reverse engineer, decompile or disassemble any software components used to provide the Appatyze Service, create any derivative works of the Appatyze Service, or use the Appatyze Service to compete with Appatyze in any way;
- use the Appatyze Service in a manner that (i) violates any applicable government laws, rules or regulations, any third party’s proprietary or privacy rights, or any Appatyze policies, or (ii) is deceptive, unethical, false or misleading;
- interfere or attempt to interfere with the proper working of the Appatyze Service or any other user’s use of the Appatyze Service;
- interfere or attempt to interfere with the full, complete, immediate and direct display of any advertisements, or
- disseminate any malware, viruses, or other destructive code.
- Appatyze may terminate your account, suspend Account Balance withdrawals and automatic payments if there is evidence of illegitimate or dishonest attempts to distort advertising impressions, clicks and any other metrics, fraudulently distort the Account Balance and monies owed, or damage the Appatyze system in any way.
Section 5, Advertising Guidelines
- The content of advertising, created or published using the Appatyze system, must adhere to the Facebook Advertising Guidelines and any other policies and guidelines in relation to prohibited content, image content and ad copy. All advertisements must also comply with any other applicable laws or regulations from time to time.
- The Advertiser must have full permission from the copyright holder to use all imagery and/or other content uploaded in the process of creating an advertisement.
- The approval of an advertisement may be withdrawn at any time and for any reason. This may result in the temporary suspension of a campaign should approval of all advertisements utilized by that campaign be withdrawn. Appatyze can accept no responsibility for any failure to achieve campaign goals as a result of campaign suspension of any kind.
Section 6, Intellectual Property
- All Placements shall at all times comply with Appatyze's editorial policy applicable from time to time.
- All intellectual property including without limitation all trademarks (including without limitation the name Appatyze) and copyright in or relating to the Appatyze Service and/or the Appatyze technology, software, domains, know-how, etc. shall belong to Appatyze or other third parties (including all modification and derivative works thereof and all intellectual property rights associated with the above) and you shall have no right whatsoever whether by license or otherwise to use or modify in any way whatsoever any right any of the same (except as may be expressly decided by Appatyze in its sole discretion) in the provision of the Appatyze Service and/or the use of such service by you in accordance with these Terms.
- You receive no implied licenses to any of Appatyze's intellectual property and no rights whatsoever therein, except as explicitly agreed by Appatyze in writing. Any feedback, comments, or suggestions you provide regarding the Appatyze Service are entirely voluntary, and Appatyze will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such feedback, comments or suggestions as it sees fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise. In the event that, by operation of law or otherwise, any right, title, or interest in or to the Appatyze Service or any of the above intellectual property, or any portion thereof (including any modifications or derivative works thereof), shall vest in you, you hereby irrevocably and unconditionally transfer and assign to Appatyze or its licensors (as applicable), and forever waive and agree never to assert, any and all such right, title, and interest, and agree to execute all documents, and undertake all other activities reasonably required by Appatyze or its licensors (as applicable), in order to vest solely and exclusively in Appatyze or its licensors (as applicable) all right, title, and interest in such right, title and interest.
Section 7, Commission and Service Charges
- Appatyze will be entitled to a commission and or service charge from all advertising revenue earned through the Appatyze Service by the Developers.
- Appatyze reserves the right to change the commission rate at its discretion. The Developers will be informed via general notification on appatyze.com, of any changes to the rates of commission they are due to pay no less than seven (7) in advance of the change being made.
Section 8, Account Balance & Payments
Payments by Advertisers
- As an Advertiser using the Marketplace service, you will pay Appatyze the Market Price for each and every time Appatyze displays your Market Ads in Placements to human users as counted by Appatyze using a methodology substantially similar to industry standards. For each twenty-four (24) hour period in which your Market Ads are displayed in Placements, Appatyze will aggregate the corresponding Market Price amounts (the “Spend”) and calculate and report any Spend to you through the Product Console.
- Payments are deducted from the Advertisers Product Console Account Balance (the “Account Balance”).
- The Account Balance is credited via PayPal or Bank transfer only. The minimum accepted payment into the Account Balance via PayPal is $100 USD (maximum $2000 USD), the minimum accepted payment via Bank Transfer is $1000 USD.
- Other payment terms may be made available from time to time at Appatyze's discretion.
- All payments will be made in U.S. dollars. Payments are calculated solely based on records maintained by Appatyze.
- Charges may be levied on Advertisers wishing to withdraw unspent balance. Bank charges will be incurred for international (and cross currency) bank transfers. We do not absorb these costs. Bank transfer costs are split equally between Appatyze and you. Additional charges may be applied by Appatyze depending on the circumstances of the withdrawal. We may apply a $40 USD charge to international bank transfers to cover the cost of transferring the money.
- If you dispute any payment made in connection with the Marketplace, you must notify Appatyze in writing within thirty (30) days of any such payment. Failure to so notify Appatyze will result in your waiver of any claims related to such disputed payment. If you fail to pay Appatyze on time, Appatyze may suspend delivery of your Market Ads until your account is made current, including payment of late fees at the higher of (i) 4% per month, or (ii) the maximum rate allowed by law.
- You will be responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your use of the Appatyze Service.
Payments to Developers
- As a Developer in the Marketplace, Appatyze will pay you at least the Reserve Price for each and every time Appatyze displays a Market Ad in your Placements to human users as counted by Appatyze (not including displays which are not considered as legitimate by Appatyze under these Terms and/or any other policies applies by Appatyze or by any relevant third party including Facebook from time to time) using a methodology substantially similar to industry standards. For each twenty-four (24) hour period in which Market Ads are displayed on your Placements, Appatyze will aggregate the amounts due you from the associated payments received from Advertisers (the “Earnings”), and calculate and report net Earnings to you through the Product Console.
- Earnings stored in a "Locked Balance Account" are not available to spend or withdraw for a period of up to sixty (60) days, after which reconciled net earnings will appear on your monthly statements and transferred to your Account Balance.
- All payments will be made in U.S. dollars. Appatyze may make payments only when an outstanding Account Balance exceeds $50 USD (or following the termination of your Account). Payments are calculated solely based on records maintained by Appatyze. If you dispute any payment made in connection with the Marketplace, you must notify Appatyze in writing within thirty (30) days of any such payment. Failure to so notify Appatyze will result in your waiver of any claims related to such disputed payment.
- Developers will incur withdrawal charges based on the chosen withdrawal method. PayPal will apply a charge to the party receiving the funds. Bank charges will be incurred for international (and cross currency) bank transfers. We do not absorb these costs. Bank transfer costs are split equally between Appatyze and you. Additional charges may be applied by Appatyze depending on the circumstances of the withdrawal. We apply a $40 USD charge to international bank transfers to cover the cost of transferring the money. This charge will be waived for payments of over $2000 USD but only if the funds represent Developer earnings.
- Appatyze reserves the right to withhold payment if you (i) breach the Terms, or (ii) engage in any deceptive, dishonest, fraudulent or other illegitimate or forbidden activity, including, without limitation, clicks without referring URLs, extraordinarily high numbers of repeat clicks, fraudulent impressions generated by any person, robot, automated program or similar device, or any clicks from non-approved root URLs (as determined by Appatyze in its sole discretion). Appatyze will not, however, withhold payment with respect to unaffected campaigns (regarding which Appatyze is comfortable you have not breached the Terms or engaged in deceptive or otherwise inappropriate conduct), notwithstanding any ongoing concern regarding a separate affected campaign, as long as Appatyze itself has received full payment for the unaffected campaign and the relevant Advertiser has not raised a concern about deceptive/inappropriate conduct regarding the unaffected campaigns and as long as Appatyze has not incurred any additional damages and/or liabilities which cannot be compensated or covered from the affected campaign alone.
- You will be responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your applications and your use of the Appatyze Service.
The above terms shall apply, mutatis mutandis, to other payments made by in connection with the use of any of the Appatyze Services, unless specifically stated otherwise in the applicable Insertion Order executed between you and Appatyze.
Section 9, Warranties
- You represent and warrant to Appatyze that: (i) You are over 18 years of age, (ii) You own or have the legal right to use for the purposes of the Appatyze Services and the Appatyze technology all rights and title including without limitation all intellectual property in and to the relevant Application, (iii) Your use of the Appatyze Service and/or the Appatyze technology and/or Appatyze's continued use of the Appatyze Service and/or the Appatyze technology in respect of the relevant Application shall not infringe the rights including without limitation the intellectual property rights and/or privacy rights of any third party, (iv) You own or otherwise have access to the canvas page of the relevant application.
- Each party represents and warrants that: (i) it has all necessary rights and authority to enter into and to perform its obligations hereunder, and that its signatory is fully authorized to agree to these Terms; (ii) it will conduct its business and fulfill its obligations hereunder in compliance with its published privacy and other policies and with all applicable laws, rules and regulations.
Section 10, Limitation of Liability and Disclaimers
- You will indemnify Appatyze for any and all losses it may suffer including without limitation loss of profits or any other form of consequential losses in each case whether of a direct or indirect nature arising from any breach of these Terms by you.
- Except as expressly set out in these Terms, all warranties, terms and conditions whether oral or written, express or implied by law, custom, course of dealings or otherwise including without limitation in relation to the provision or access to any of the Appatyze Services are hereby excluded by Appatyze.
- Neither Appatyze nor you excludes or restricts its liability for death or personal injury resulting from its own negligence.
- Appatyze shall not be liable to you in contract, tort (including without limitation negligence, misrepresentation or negligent misrepresentation or breach of any statutory duty) or otherwise for: (i) Any loss of profit, business, goodwill, contract, revenue, anticipated business or savings in each case whether of a direct or indirect nature, (ii) Any loss of or damage to or corruption of any relevant Application or software or other data, (iii) Any special, consequential or indirect loss or damage of any nature whatsoever.
- In addition to any of other remedies available to Appatyze hereunder or under any applicable law, Appatyze shall be entitled to suspend any of the Appatyze Services and/or the use of the Appatyze technology in respect of the relevant Application if there has been or Appatyze reasonably suspects you have breached any provision of this agreement.
- None of the above shall restrict Appatyze's rights to seek injunctive or other form of equitable relief in respect of any matter whatsoever.
- The Appatyze Services are provided “AS IS” and on an “AS AVAILABLE” basis. APPATYZE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE APPATYZE SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, NOTWITHSTANDING ANY SUBSEQUENT ORAL STATEMENTS, APPLICABLE INDUSTRY STANDARDS, COURSE OF DEALING OR COURSE OF PERFORMANCE.
- WITHOUT LIMITING THE FOREGOING, APPATYZE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE THIRD PARTY PRODUCTS AND SERVICES PROVIDED AS PART OF THE APPATYZE SERVICES. APPATYZE’S LICENSORS ARE INTENDED THIRD PARTY BENEFICIARIES OF THE TERMS, AND YOU EXPRESSLY RELEASE THEM FROM ANY AND ALL CLAIMS RELATING TO YOUR USE OF ANY APPATYZE SERVICES PROPERTY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THERE ARE NO INTENDED THIRD PARTY BENEFICIARIES OF APPATYZE’S DUTIES OR OBLIGATIONS UNDER THE TERMS, AND NO THIRD PARTY SHALL BE PERMITTED TO ASSERT ANY CLAIM AGAINST APPATYZE RELATING TO THE TERMS AS AN INTENDED THIRD PARTY BENEFICIARY.
- APPATYZE PROVIDES NO GUARANTEES REGARDING THE PERFORMANCE OF THE APPATYZE SERVICE INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF IMPRESSIONS OR CLICKS ON THE APPATYZE ADVERTS NOR ON THE TIMING ON THE DELIVERY OF SUCH IMPRESSIONS OR CLICKS.
- APPATYZE DOES NOT GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT ANY OF THE APPATYZE SERVICES (INCLUDING ANY THIRD PARTY COMPONENT THEREIN) WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, CAUSED BY ANY FAILURE OF YOUR EQUIPMENT, SYSTEMS OR LOCAL ACCESS SERVICES, FOR SCHEDULED MAINTENANCE OR OTHERWISE RELATING TO EVENTS BEYOND APPATYZE’S (OR ITS AFFILIATES) CONTROL.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT APPATYZE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, ANY ERRORS; MISTAKES; INACCURACIES; LOSS OF DATA; WHILST USING THE SERVICE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL APPATYZE'S AGGREGATE LIABILITY ARISING OUT OF, OR IN CONNECTION, WITH THESE TERMS EXCEED THE LESSER OF THE AMOUNTS ACTUALLY PAID BY YOU TO APPATYZE DURING THE TWELVE (12) MONTHS RECEDING THE APPLICABLE EVENT OR FIFTY DOLLARS ($50 USD). THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
Section 11, Indemnification
- Each party (“Indemnitor”) agrees to defend, indemnify, and hold harmless the other party (and their respective officers, directors, employees, shareholders, affiliates, representatives and agents) (collectively, “Indemnitee”) from and against any and all claims, liabilities, losses, damages, injuries or expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses) directly or indirectly arising from any third party claim relating to:
- Indemnitor’s violation of any applicable law or regulation;
- Indemnitor’s gross negligence or willful misconduct;
- Indemnitor’s breach of the Terms, or
- infringement or violation of the third party’s intellectual property, privacy or other rights by Indemnitor’s products, services or conduct.
- In addition to the above, as an Advertiser in the Marketplace, you are solely responsible for all content appearing on the Marketplace, and you will defend, indemnify and hold harmless Appatyze and Developers utilizing Placements on which your Market Ads appear (and their respective officers, directors, employees, shareholders, affiliates, representatives and agents) from and against any and all loss, damage, liability and expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) relating to any third party claim regarding your advertisements. Developers utilizing Placements on which your Market Ads appear are intended third party beneficiaries of the indemnities from you, and you will not assert against any such Developer any defense based on lack of privity of contract should such a Developer seek indemnification from you hereunder. You are also an intended third party beneficiary of the indemnities Appatyze receives from Marketplace Developers.
- In addition to the above, as a Developer in the Marketplace, you are solely responsible for all content appearing on your Placements and will defend, indemnify and hold harmless Appatyze and Advertisers of Market Ads on your Placements (and their respective officers, directors, employees, shareholders, affiliates, representatives and agents) from and against any loss, damage, liability and expense (including reasonable attorneys’ fees, costs and expert witness expenses) relating to any third party claim regarding your Placements (excluding the content of the Market Ads). You acknowledge that Advertisers of Market Ads on your Placements are intended third party beneficiaries of the indemnities from you, and you will not assert against any such Advertiser any defense based on lack of privity of contract should such an Advertiser seek indemnification from you under the Agreement. You are also an intended third party beneficiary of the indemnities Appatyze receives from Marketplace Advertisers.
- In each case, the Indemnitee must:
- give the Indemnitor prompt written notice of the claim (in the event of delay in providing such notice, the Indemnitor shall be relieved of its obligations to the extent the delay prejudices its ability to effectively defend or settle the claim);
- cede full control over the defense and settlement of the claim to the Indemnitor (although the Indemnitor shall provide reasonable cooperation in the event the Indemnitee chooses to involve independent counsel at its own expense;
- provide such reasonable assistance and cooperation in connection with the defense and settlement of the claim as the Indemnitor may reasonably request, at the Indemnitor’s reasonable expense; and
- comply with any settlement or court order made in connection with the claim (provided that the Indemnitee shall not be unreasonably required to consent to any settlement that adversely affects its interests).
Section 12, Collection and Use of Information and Data; Confidential Information
- Through your use of the Appatyze Services, Appatyze may collect certain data, including, without limitation, various identities, counts and characteristics of placements (including the content therein) and advertisements (including the content therein) (collectively, “Data”). Appatyze uses such information to provide the Appatyze Services and has the right to use and share with third parties, including for commercial purposes, certain aggregate Data (Data aggregated with other users’ information) that is not identifiable of any particular user of the Appatyze Services. You hereby authorize Appatyze to use such Data as set forth above. Appatyze will not share with any third party any of your Data that is identifiable of you, without first receiving your prior approval. You acknowledge, however, that certain Data identifiable of you may be transmitted to third parties by third parties (including Facebook), depending on how you configure your settings when using the Appatyze Services.
- You may only use any data, statistics, and other information derived from using or analyzing the Appatyze Services (e.g., any IO terms, information or data about placements or advertisements or their performance, any pricing information, or any information regarding any user of the Appatyze Services (collectively “Other Data”) in connection with your use of the Appatyze Services, including any advertising campaign-planning purposes. All Other Data is the Confidential Information (as defined below) of Appatyze and/or the party that provided the information.
- In the course of our dealings under these Terms, we may exchange “Confidential Information,” defined as any trade secrets, or non-public or proprietary information or materials provided by the disclosing party (“Discloser”), that is designated in writing as confidential, or that ought to be considered confidential by the receiving party (“Recipient”) based on the nature of the information or materials and the circumstances of disclosure. For the avoidance of any doubt, Appatyze's Confidential Information shall include among others the Other Data. For three (3) years from the date of disclosure of the relevant Confidential Information:
- the Recipient will not use the Discloser’s Confidential Information other than in furtherance of our relationship in accordance with these Terms; and
- the Recipient will not disclose the Discloser’s Confidential Information except to the Recipient’s employees, contractors, directors, shareholders and legal and financial advisers who have a reasonable “need to know” and are bound by reasonable confidentiality obligations comparable to those herein; provided, however, that Recipient’s confidentiality obligations regarding trade secrets shall be perpetual.
- The Recipient will take the same precautions to safeguard the Discloser’s Confidential Information as for its own Confidential Information, but not less than reasonable measures.
- Each party retains exclusive ownership of its own Confidential Information.
- The confidentiality restrictions of this paragraph shall not apply to information that:
- was independently developed without any use of the Confidential Information of the Discloser as established by written evidence;
- was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the Recipient;
- was rightfully known to the Recipient, without restrictions on disclosure, prior to the time of disclosure; or
- is disclosed pursuant to applicable law or the order or requirement of a court, administrative agency or other governmental body (provided Recipient uses reasonable diligence to limit disclosure, and to obtain confidential treatment for the relevant Confidential Information or an appropriate protective order, and has provided Discloser reasonable notice to enable Discloser to participate in the legal proceedings).
- Upon termination of the Terms, or upon written request by the Discloser, the Recipient shall:
- cease using the Confidential Information,
- return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within fourteen (14) business days of receipt of request; and
- upon request of Discloser, confirm in writing that Recipient has complied with these obligations.
Section 13, Changes to Service and Website
- Appatyze reserves the right, in its sole discretion, to modify or replace any of the Terms and to add additional terms, policies and guidelines. It is your responsibility to check the Terms periodically for changes. Your continued use of the Appatyze Service following the posting of any changes to the Terms constitutes acceptance of those changes. Appatyze will post all modifications and changes to these Terms on its website. You must discontinue using the Appatyze Service if you don’t agree to the amended or additional Terms.
- Appatyze reserves the right, in our sole discretion, with or without notice, without liability (i) refuse anyone access (ii) terminate or suspend your account and/or your access to the Appatyze Service after you are registered (iii) remove, modify, or delete content and any of your submissions (although we do not monitor the Appatyze Service for content), (iv) change, suspend, or discontinue the Appatyze Service or any part of it at any time, (v) impose limits on certain features and services or restrict your access to parts or all of the Appatyze Service.
Section 14, Governing law; Disclosures; Taxes; Additional Provisions
- The laws of England and Wales, excluding its conflicts-of-laws principles, shall govern any and all claims and disputes regarding the Terms. Any action or proceeding relating to the Terms will be resolved solely by the competent courts in London, England.
- The Appatyze Services are offered by Appatyze Limited. Appatyze can be contacted via email at firstname.lastname@example.org.
- The Terms and our relationship hereunder do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between us, and neither of us shall suggest otherwise.
- You will be responsible for complying with all applicable export and tax laws, regulations and rules (including, without limitation, paying all taxes applicable to your income), and for satisfying all of your responsibilities regarding your own employees. In the event that any tax is imposed on any payment you are obligated to make hereunder, you shall gross up the applicable payment such that the receiving party shall receive the applicable payment net of any such taxes. The same grossing up mechanism shall apply to any withholding obligation with respect to any of your payment obligations hereunder.
- Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of the Terms or any portion thereof. If any provision of the Terms is held invalid or unenforceable at law, such provision will be deemed stricken and the remainder of the Terms will continue in effect and be valid and enforceable to the fullest extent permitted by law. Except as otherwise provided herein, the failure of either party to enforce at any time the provisions of the Terms shall not be construed as a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.