| By downloading the AdColony SDK, you are granted a limited, non-commercial |
| license to use and review the SDK solely for evaluation purposes. If you wish to |
| integrate the SDK into any commercial applications, you must register an account |
| with AdColony and accept the terms and conditions on the AdColony website. |
| |
| Note that U.S. based companies will need to complete the W-9 form and send it to |
| us before publisher payments can be issued. |
| |
| Terms of Service for Publishers AdColony publishing and monetization partners |
| must sign, acknowledge, and agree to their own terms of service document within |
| the AdColony portal. The version below is for general reference purposes and |
| does not serve as a legal or binding agreement with any entity. |
| |
| Additional agreements and terms of service may be required on a per client basis |
| to comply with regulatory needs. Contact support@adcolony.com for more details. |
| |
| SDK License and Publisher Terms |
| |
| These AdColony SDK License and Publisher Terms (this “Agreement”) is made |
| available by AdColony, Inc. (“AdColony”). By downloading or using the AdColony |
| SDK, you and any company, entity, or organization on behalf of which you are |
| accepting this Agreement (“Developer”) hereby agrees to be bound by all terms |
| and conditions of this Agreement, and you represent and warrant that you are an |
| authorized representative of Developer with the authority to bind Developer to |
| this Agreement. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS |
| AGREEMENT, DO NOT DOWNLOAD OR USE THE ADCOLONY SDK. |
| |
| 1. Definitions |
| |
| “Advertisers” means third-party advertisers. “Developer Apps” means the mobile |
| applications owned and/or controlled by Developer, including all content images, |
| music and text contained therein, that Developer wishes to use with the AdColony |
| SDK and AdColony Platform. “I/O” means a fully executed insertion order |
| containing advertising campaign details for user acquisitions and campaigns run |
| by Developer on AdColony’s Platform. “AdColony Ads” means video, playable, |
| display, or any type of media advertisements, sourced by or on behalf of |
| AdColony, which are routed and/or served by the AdColony Platform to the |
| Developer Apps. “AdColony Platform” means AdColony’s advertising system or |
| network, which supports advertisement insertion within mobile applications, and |
| related advertisement reporting tools. “AdColony SDK” means the software |
| development kit and any other software and documentation that may be provided by |
| AdColony to Developer with the software development kit, including any updates |
| thereto. “Personally Identifiable Information” or “PII” means information that |
| specifically identifies or locates a particular person or entity such as name, |
| postal address, telephone number, and email address. “Pseudonymous Identifiers” |
| means data that is linked or reasonably linkable to a particular computer or |
| device resettable device identifiers such as Google Advertising ID, Apple |
| Identifier for Advertisers, IP address, or other similar identifiers. |
| Pseudoymous Identifiers may not be utilized to identify a particular person. 2. |
| AdColony SDK License |
| |
| License Grant. Subject to the terms and conditions of this Agreement, AdColony |
| grants Developer a non-exclusive, non-transferable, non-sublicenseable, |
| worldwide license to: (a) integrate the AdColony SDK with Developer Apps solely |
| for internal use; (b) use, reproduce and distribute certain portions of the |
| AdColony SDK as required for Developer’s distribution of Developer Apps, solely |
| as enabled by, and in accordance with documentation provided by AdColony; and |
| (c) use the AdColony SDK and AdColony Platform to have advertisements, including |
| AdColony Ads, distributed and presented within Developer Apps. SDK Updates. |
| AdColony periodically releases new versions of the AdColony SDK which may |
| contain new features and fixes, and AdColony may sunset versions of the AdColony |
| SDK. Developer is encouraged to check the AdColony website (or |
| AdColony-designated distribution site) from time to time for the latest version |
| releases, and to download and integrate such new versions within the Developer |
| Apps, subject to this Agreement (including any amendments). C. License |
| Restrictions. Except as expressly provided in this Agreement, Developer shall |
| not (and shall not allow any third party to): (a) decompile, reverse engineer, |
| disassemble, modify, adapt, create derivative works of, copy or distribute the |
| AdColony SDK or AdColony Platform, (b) modify, remove, or obscure any copyright, |
| trademark, patent or other proprietary notices or legends from the AdColony SDK |
| or AdColony Platform; (c) copy, distribute, rent, lease, lend, sublicense, |
| transfer or make the AdColony SDK or AdColony Platform available to any third |
| party, and (d) use the AdColony SDK or AdColony Platform to develop, upload, or |
| transmit any software viruses or other computer code, files or programs designed |
| to interrupt, destroy, or limit the functionality of any software or hardware. |
| |
| Intellectual Property. All ownership rights, title, and interest in and to the |
| AdColony SDK and AdColony Platform, including all intellectual property rights |
| therein, as such may be modified, upgraded, or enhanced from time to time |
| (“AdColony Property”) will remain and belong exclusively to AdColony. AdColony |
| reserves all rights not expressly granted to Developer herein. Developer shall |
| retain all ownership rights, title and interest in and to the Developer Apps, |
| including all intellectual property rights therein, as such may be modified, |
| upgraded or enhanced from time to time. Advertising via The AdColony Platform |
| AdColony Insertion & Sale of Ads. Developer hereby grants AdColony the right to |
| sell, and have sold, advertisement inventory in the Developer Apps, and to |
| insert AdColony Ads within such inventory. In addition, Developer hereby grants |
| AdColony the non-exclusive, worldwide right and license to use, reproduce, |
| distribute and display Developer’s and the Developer Apps’ trademarks, logos, |
| and images of the Developer Apps, in connection with the sale of AdColony Ads |
| hereunder, including: (a) listing the Developer Apps and inventory in pitch |
| materials to prospective Advertisers; (b) reporting the inclusion of Developer |
| Apps and inventory as part of AdColony’s advertising network; and (c) |
| identifying the Developer as a publishing partner on AdColony’s website and |
| other marketing materials. AdColony also reserves the right to utilize publisher |
| results (both specific and aggregate) in case studies and white papers for |
| promotional purposes. Developer Ad Campaigns. For user acquisitions and other |
| campaigns run by Developer on the AdColony Platform, Developer shall provide |
| AdColony with a signed I/O. The terms of the I/O, including the Interactive |
| Advertising Bureau terms and conditions incorporated into the I/O (the “IAB |
| Terms”) shall govern such advertising campaigns. In the event of any conflict |
| between the I/O and such IAB Terms, the I/O shall govern and control with |
| respect to such campaign. Developer Apps Content Policy. The Developer Apps will |
| not contain, consist of, or promote discrimination, illegal activities, hate |
| speech, defamation, graphic violence, firearms, tobacco, illegal drugs, |
| pornography, profanity, obscenity or sexually explicit material (“Developer Apps |
| Content Policy”). Developer will notify AdColony immediately of any Developer |
| Apps relating to alcohol or gambling or that are child-directed as defined under |
| COPPA. Developer agrees that AdColony has no responsibility for the Developer |
| Apps, including any content therein, and AdColony has no obligation or ability |
| to monitor or edit the Developer Apps. Developer will provide as much advance |
| written notice as reasonably practicable, but in no event less than fifteen (15) |
| days’ notice, regarding any material changes to the nature or design of any |
| Developer App, including without limitation, changes to the placement of |
| AdColony Ad inventory, any action that will increase or reduce expected AdColony |
| Ad inventory within the Developer Apps, the type of content contained within the |
| Developer Apps, or the target audience of the Developer Apps. Ad Restrictions. |
| Developer may not, and may not authorize or encourage any third party to: (a) |
| generate fraudulent impressions of, or fraudulent clicks on any AdColony Ads, |
| including through repeated manual clicks, the use of robots or other automated |
| tools or any other method that may lead to artificially high numbers of |
| impressions, clicks, downloads, installs, app-opens, installed app user |
| activity; or (b) edit, modify, filter, or change the order of the information |
| contained in any AdColony Ad, or remove, obscure or minimize any AdColony Ad in |
| any way. Developer shall promptly notify AdColony if it suspects that any third |
| party may be tampering with, abusing or manipulating the AdColony Platform or |
| the AdColony Ads within the Developer App. AdColony may suspend Developer’s use |
| of the AdColony Platform and/or terminate this Agreement immediately should |
| Developer violate the foregoing provisions of this Section as determined by |
| AdColony’s sole discretion upon evaluating its fraud detection and reporting |
| systems, and Developer shall not be entitled to any revenue associated with the |
| applicable campaign(s). |
| |
| 1. Data & Privacy |
| |
| Collection of Data. Developer acknowledges and agrees that Pseudonymous |
| Identifiers may be used in connection with the performance of this Agreement in |
| order to collect and use data from end users and their devices (“App Data”) in |
| connection with advertisement performance, targeting, and end user interests |
| (“Performance Data”), and to display AdColony Ads to end users. Developer agrees |
| that in connection with AdColony Ads, AdColony may access or call to the |
| Developer Apps, or the servers that make them available, and cause the routing, |
| transmission, reproduction, and presentation of AdColony Ads as contemplated |
| herein. Additionally, Developer agrees that AdColony may collect App Data and |
| Performance Data, including Pseudonymous Identifiers , usage data, and streaming |
| data, with regard to the Developer Apps (and included content) within which |
| AdColony Ads are routed and/or served and (i) disclose such information to third |
| parties (including Advertisers and attribution partners) as reasonably necessary |
| in connection with the operation of the AdColony Platform, (ii) disclose such |
| data if required by any court order, process, law or governmental agency; (iii) |
| disclose such data generally when it is aggregated, such that the specific |
| information relating to Developer is not identified as such; and (iv) use such |
| information for AdColony’s internal business purposes, including to develop and |
| improve the AdColony SDK and AdColony Platform. AdColony will collect and use |
| the data in accordance with the Digital Advertising Alliance Self-Regulatory |
| Principles (“DAA Codes”), which are available at |
| http://www.aboutads.info/principles and AdColony Privacy Policy, which is |
| available at https://www.adcolony.com/privacy-policy/ (as updated from time to |
| time) and is hereby incorporated by reference. Compliance with Laws. Developer |
| agrees to comply with all Privacy Requirements (as defined below), including |
| conspicuously posting a privacy policy that accurately describes the Developer’s |
| and third parties’ collection, use, and disclosure of end user data from the |
| Developer Apps, which include disclosure that third parties may collect or |
| receive information and use that information to provide measurement services and |
| targeted ads, and disclosure of how and where users can opt-out of collection |
| and use of information for ad targeting. Developer will not pass any PII to |
| AdColony unless expressly permitted in writing, and as permitted under any |
| Privacy Requirements. Developer represents and warrants that any data Developer |
| provides to AdColony regarding devices, location, or users, and the ability for |
| AdColony to collect the App Data and Performance Data, is permitted and provided |
| in compliance with all Privacy Requirements including Developer’s posted privacy |
| policy. Developer further represents and warrants that it has made any and all |
| disclosures and obtained any and all consents or permissions required by law |
| with respect to Developer’s privacy practices, including without limitation: (a) |
| any end user data Developer collects, uses, and/or discloses, (b) the use and |
| disclosure of App Data and Performance Data to AdColony via the AdColony SDK and |
| AdColony Platform, and (c) notice and parental consent required by the |
| Children’s Online Privacy Protection Act (“COPPA”). AdColony reserves the right |
| to modify, suspend, or terminate this Agreement should Developer violate this |
| Section, and/or to remain compliant with law. C. “Privacy Requirements” means |
| all (i) applicable laws (including COPPA), governmental regulations, court or |
| government agency orders, and decrees relating in any manner to the collection, |
| use, or dissemination of information from or about users, user traffic, or |
| otherwise relating to privacy rights; (ii) the DAA Codes; and (iii) Developer’s |
| posted privacy policy. |
| |
| 1. Developer Payments |
| |
| Developer Payment. Subject to the terms and conditions of this Agreement, |
| AdColony shall pay to Developer Net Revenue amounts determined by AdColony. All |
| revenue received from activities that AdColony deems to be fraudulent may be |
| refunded to the Advertiser(s) in AdColony’s sole discretion. Payment Terms. |
| AdColony will pay any Developer Payment due to Developer sixty (60) days after |
| the completion of the month in which such AdColony Ad campaign runs; provided |
| that, AdColony may withhold payment until the following month for Developer |
| Payment amounts less than $100 U.S. Developer shall be responsible for any bank, |
| transfer or transaction fees (e.g., PayPal). AdColony may deduct any |
| withholding, sales, value added, and other applicable taxes (other than its net |
| income taxes) as required by law. Developer is responsible for paying any other |
| taxes, duties, or fees for which Developer is legally responsible. Earnings are |
| forfeited by publisher if a) the publisher’s lifetime earnings are less than |
| $100 and it has been more than 12 months since the publisher had earnings or b) |
| the publisher has not provided payment information, outstanding earnings are |
| less than $1,000 and it has been more than 12 months since the publisher had |
| earnings. 7. Term and Termination |
| |
| Term. This Agreement is effective until terminated in accordance with this |
| Agreement. Termination by AdColony. AdColony may terminate this Agreement at any |
| time by providing sixty (60) days’ notice to Developer. Additionally, AdColony |
| may terminate this Agreement immediately if Developer breaches any provision of |
| this Agreement. Termination by Developer. Developer may terminate this Agreement |
| at any time by providing written notice to AdColony (email to suffice), ceasing |
| all use of the AdColony Platform and AdColony Property, and destroying or |
| removing from all hard drives, networks, and other storage media all copies of |
| the AdColony Property. Effect of Termination. Upon termination of this Agreement |
| by Developer, the Agreement (including all rights and licenses granted and |
| obligations assumed hereunder) will remain in force and effect until the |
| completion of all AdColony Ad campaigns associated with the Developer Apps in |
| effect on the date of such termination (“Sell-Off Period”). AdColony’s payment |
| obligations will remain in effect during the Sell-Off Period. Upon any |
| termination of this Agreement, each party will promptly return or destroy all |
| copies of any Confidential Information in its possession or control. Sections 3, |
| 7(D) through 13 shall survive any expiration or termination of this Agreement. |
| 8. Confidentiality |
| |
| A. Definition. “Confidential Information” means any and all business, technical |
| and financial information or material of a party, whether revealed orally, |
| visually, or in tangible or electronic form, that is not generally known to the |
| public, which is disclosed to or made available by one party (the “Disclosing |
| Party”) to the other, or which one party becomes aware of pursuant to this |
| Agreement (the “Receiving Party”). The AdColony SDK is AdColony’s Confidential |
| Information, and the terms and conditions of this Agreement shall remain |
| confidential. The failure of a Disclosing Party to designate as “confidential” |
| any such |
| |
| information or material at the time of disclosure shall not result in a loss of |
| status as Confidential Information to the Disclosing Party. Confidential |
| Information shall not include information which: (i) is in or has entered the |
| public domain through no breach of this Agreement or other act by a Receiving |
| Party; (ii) a Receiving Party rightfully knew prior to the time that it was |
| disclosed to a Receiving Party hereunder; (iii) a Receiving Party received |
| without restriction from a third-party lawfully possessing and lawfully entitled |
| to disclose such information without breach of this Agreement; or (iv) was |
| independently developed by employees of the Receiving Party who had no access to |
| such information. |
| |
| B. Use and Disclosure Restrictions. The Receiving Party shall not use the |
| Confidential Information except as necessary to exercise its rights or perform |
| its obligations under this Agreement, and shall not disclose the Confidential |
| Information to any third party, except to those of its employees, |
| subcontractors, and advisers that need to know such Confidential Information for |
| the purposes of this Agreement, provided that each such employee, subcontractor, |
| and advisor is subject to a written agreement that includes binding use and |
| disclosure restrictions that are at least as protective of the Confidential |
| Information as those set forth herein. The Receiving Party will use at least the |
| efforts such party ordinarily uses with respect to its own confidential |
| information of similar nature and importance to maintain the confidentiality of |
| all Confidential Information in its possession or control, but in no event less |
| than reasonable efforts. The foregoing obligations will not restrict the |
| Receiving Party from disclosing any Confidential Information required by |
| applicable law; provided that, the Receiving Party must use reasonable efforts |
| to give the Disclosing Party advance notice thereof (i.e., so as to afford |
| Disclosing Party an opportunity to intervene and seek an order or other relief |
| for protecting its Confidential Information from any unauthorized use or |
| disclosure) and the Confidential Information is only disclosed to the extent |
| required by law. The Receiving Party shall return all of the Disclosing Party’s |
| Confidential Information to the Disclosing Party or destroy the same, no later |
| than fifteen (15) days after Disclosing Party’s request, or when Receiving Party |
| no longer needs Confidential Information for its authorized purposes hereunder. |
| |
| 1. Representations and Warranties of Developer. Developer represents, warrants |
| and covenants to AdColony that: (a) it has all necessary rights, title, and |
| interest in and to the Developer Apps, and it has obtained all necessary |
| rights, releases, and permissions to grant the rights granted to AdColony in |
| this Agreement, including to allow AdColony to sell and insert the AdColony |
| Ads as contemplated herein; (b) it shall not use the AdColony Platform to |
| collect or discern any personally identifiable information of end users, or |
| use the data received through the AdColony Platform to re-identify an |
| individual; and (c) the Developer Apps will comply with the Developer Apps |
| Content Policy, and will not infringe upon, violate, or misappropriate any |
| third party right, including any intellectual property, privacy, or |
| publicity rights. |
| |
| 2. Warranty Disclaimer. THE ADCOLONY SDK AND ADCOLONY PLATFORM ARE PROVIDED “AS |
| IS”. ADCOLONY DOES NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR |
| OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, |
| NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED |
| WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. ADCOLONY AND ITS |
| SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE ADCOLONY PLATFORM |
| OR ADCOLONY SDK WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS |
| WILL BE CORRECTED, OR THAT THE ADCOLONY PLATFORM OR ADCOLONY SDK ARE FREE OF |
| VIRUSES OR OTHER HARMFUL COMPONENTS. ADCOLONY DOES NOT WARRANT THE RESULTS |
| OF USE OF THE ADCOLONY PLATFORM OR ADCOLONY SDK. DEVELOPER ACKNOWLEDGES THAT |
| ADCOLONY MAY MODIFY OR SUSPEND THE ADCOLONY PLATFORM AT ANY TIME IN ITS SOLE |
| DISCRETION AND WITHOUT NOTICE. |
| |
| 3. Indemnification. |
| |
| Developer Indemnification. Developer agrees to indemnify, defend, and hold |
| harmless AdColony and its affiliates, and their directors, officers, employees, |
| and agents from and against any liabilities, damages, costs and expenses |
| (including reasonable attorneys’ fees) arising out of any claim, demand, action, |
| or proceeding initiated by a third party arising from or in connection with any |
| breach of Developer’s obligations, representations or warranties set forth in |
| this Agreement; provided that, AdColony: (a) promptly notifies Developer in |
| writing of the claim, except that any failure to provide this notice promptly |
| only relieves Developer of its responsibility to the extent its defense is |
| materially prejudiced by the delay; (b) grants Developer sole control of the |
| defense and/or settlement of the claim; and (c) reasonably cooperates with |
| Developer in connection with such claim at Developer’s cost and expense. |
| AdColony Indemnification. AdColony agrees to indemnify, reimburse and hold |
| harmless, Developer, its officers, directors, employees, and agents from and |
| against any and all third party claims, liabilities, demands, causes of action, |
| damages, losses and expenses, including, without limitation, reasonable |
| attorneys’ fees and costs of suit, arising out of or in connection with |
| AdColony’s infringement or misappropriation of a third party U.S. copyright, |
| trademark or trade secret by the use of the AdColony Platform and/or the |
| AdColony SDK by Developer as permitted hereunder; provided that, Developer: (a) |
| promptly notifies AdColony in writing of the claim, except that any failure to |
| provide this notice promptly only relieves AdColony of its responsibility to the |
| extent its defense is materially prejudiced by the delay; (b) grants AdColony |
| sole control of the defense and/or settlement of the claim; and (c) reasonably |
| cooperates with AdColony in connection with such claim at AdColony’s cost and |
| expense. In addition, if the use of the AdColony Property by Developer has |
| become, or in AdColony’s opinion is likely to become, the subject of any claim |
| of infringement, AdColony may at its option and expense (i) procure for |
| Developer the right to continue using the AdColony Property as set forth |
| hereunder; (ii) replace or modify the AdColony Property to make it non- |
| infringing so long as the AdColony Property has substantially equivalent |
| functionality; or (iii) if options (i) or (ii) are not reasonably practicable, |
| terminate this Agreement. AdColony shall have no liability or obligation under |
| this Section with respect to any claim if such claim is caused in whole or in |
| part by (x) compliance with designs, data, instructions, or specifications |
| provided by Developer; (y) modification of the AdColony Property by any party |
| other than AdColony without AdColony’s express consent; or (z) the combination, |
| operation, or use of the AdColony Property with other applications, portions of |
| applications, product(s), data or services where the AdColony Property would not |
| by itself be infringing unless AdColony has required or expressly allowed such |
| combination, operation, or use. THE INDEMNIFICATION RIGHTS CONTAINED IN THIS |
| SECTION 11 ARE DEVELOPER’S SOLE REMEDY FOR THIRD PARTY INFRINGEMENT CLAIMS |
| RELATING TO ADCOLONY’S SDK AND THE ADCOLONY PLATFORM. 12. Limitation of |
| Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREIN AND |
| BREACHES OF SECTIONS 2 and 8, NEITHER PARTY SHALL BE LIABLE TO OTHER PARTY FOR |
| ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, |
| INCLUDING LOST BUSINESS, DATA, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON |
| BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR |
| NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH |
| RESPECT TO INDEMNIFICATION OBLIGATIONS HEREIN AND BREACHES OF SECTIONS 2 and 8, |
| IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED |
| THE TOTAL DEVELOPER PAYMENT PAYABLE TO DEVELOPER UNDER THIS AGREEMENT BY |
| ADCOLONY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE |
| CLAIM. |
| |
| 1. General. |
| |
| Relationship of the Parties. Each Party shall be and act as an independent |
| contractor and not as partner, joint venturer, or agent of the other. No party |
| shall have any right to obligate or bind any other party. Assignment. Neither |
| party may assign any of its rights or obligations under this Agreement without |
| the prior written consent of the other party, except in connection with any |
| merger (by operation of law or otherwise), consolidation, reorganization, change |
| in control or sale of all or substantially all of its assets related to this |
| Agreement or similar transaction. Notwithstanding the foregoing, Developer may |
| not assign this Agreement to a direct competitor of AdColony without AdColony’s |
| prior written consent. This Agreement inures to the benefit of and shall be |
| binding on the parties’ permitted assignees, transferees and successors. |
| Amendments; Waiver. No changes or modifications or waivers are to be made to |
| this Agreement unless evidenced in writing and signed for and on behalf of both |
| parties. The failure by either party to insist upon the strict performance of |
| this Agreement, or to exercise any term hereof, will not act as a waiver of any |
| right, promise or term, which will continue in full force and effect. Governing |
| Law; Jurisdiction. This Agreement shall be governed by, and construed in |
| accordance with, the laws of the State of California, without reference to |
| conflicts of laws principles. The parties agree that the federal and state |
| courts in Los Angeles County, California will have exclusive jurisdiction and |
| venue under this Agreement, and the parties hereby agree to submit to such |
| jurisdiction exclusively. Entire Agreement. This Agreement contains the entire |
| understanding of the parties regarding its subject matter and supersedes all |
| other agreements and understandings, whether oral or written. |