Terms of Service
Effective from: April 15th, 2018
This Agreement shall commence on the date of your acceptance of these Terms of Service (hereinafter referred to as “Terms”). Terms shall be deemed accepted upon Your registration with MAGGOMEDIA and shall remain in full force and effect unless and until terminated by either Party in accordance with the terms of the Agreement.
- PROVISION OF SERVICES AND USE OF THE MAGGOMEDIA SDK
2.1 Effectively commencing on the Effective Date, MAGGOMEDIA shall, subject to these Terms:
(a) allow You access to the Services;
(b) provide You (by way of download or other suitable method) with access to the MAGGOMEDIA SDK, other MAGGOMEDIA Materials or Advertisements as MAGGOMEDIA may deem necessary or appropriate.
2.2 You acknowledge and agree that it is Your responsibility to ensure that You have secured appropriate protection for Your computers, software, data and/or applications, including any systems that You use to access the Services or any MAGGOMEDIA Materials. You also acknowledge and agree that MAGGOMEDIA shall not be held responsible for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your accessing the Services or use of MAGGOMEDIA Materials.
2.3 You acknowledge and agree that MAGGOMEDIA may, immediately upon service of written notice to You, suspend Your access to the Services and/or MAGGOMEDIA Materials, or any portion thereof. Further MAGGOMEDIA shall not be liable to You for any loss or damage You may sustain or incur as a result of the suspension of, or limitation to Your access to the Services, MAGGOMEDIA Materials, or any portion thereof.
2.4 You acknowledge and agree that (i) nothing in this Agreement guarantees that the Services, MAGGOMEDIA Materials and/or Advertisements will be free from interruption or errors, (ii) there will be periods when the Services, Advertisements and/or MAGGOMEDIA Materials may be unavailable and may not be accessed by You and (iii) MAGGOMEDIA shall not be liable to You for any loss or damage You may sustain or incur as a result of any Service, Advertisements , MAGGOMEDIA Materials, or any portion thereof, being unavailable to You at any time.
2.5 You may use MAGGOMEDIA’s technology products, including MAGGOMEDIA’S SDK, to receive Services including any fixes, updates and upgrades thereto as such technology products may be provided by MAGGOMEDIA from time to time.
- INTELLECTUAL AND OTHER PROPRIETARY RIGHTS
3.1 You acknowledge and agree that, except for the limited rights granted to You herein, specifically the right to be provided the Services in accordance with the provisions expressly provided in the Agreement, You do not have or in any way be granted any rights, title, interest or other Intellectual Property Rights in and to the Services, Advertisements and/ or in any MAGGOMEDIA Materials or related materials or services thereto.
3.2 MAGGOMEDIA grants You, effective on the Effective Date, a limited, revocable, non-exclusive, non-transferable license to use and access the Services, for the duration of the Term of this Agreement, to access solely for Your own internal business purposes as they relate to tracking the performance of ad-networks engaged by You and for no other purpose whatsoever.
3.3 MAGGOMEDIA grants You, effective on the Effective Date, a limited, revocable, non-exclusive, non-transferable license to use the MAGGOMEDIA Materials, for the duration of the Term of the Agreement, solely for the purpose of enabling You to receive the benefit of the Services. You are specifically not granted the rights to use, perform, display, reproduce or distribute MAGGOMEDIA Materials for any other purpose. You further agree that You shall comply with any and all reasonable instructions, conditions and security requirements of MAGGOMEDIA, as it may be notified to You in writing by MAGGOMEDIA or updated in MAGGOMEDIA’s website, from time to time.
- USE RESTRICTIONS
4.1 You shall not:
(a) by accessing the Services, store, transmit, distribute, disseminate, publish or post any materials that breach any applicable laws or regulations or, infringe upon the rights of other third parties, or restrict or inhibit the access to and enjoyment of the Services by any other persons;
(b) by accessing the Services, deliberately, purposely, recklessly, or maliciously introduce any computer viruses, worms, software bombs or similarly disruptive items on to any of MAGGOMEDIA’s or third parties’ systems;
(c) distribute MAGGOMEDIA’s Materials to any third party;
(d) attempt to reverse engineer, reverse compile, disassemble, or otherwise reduce to human-readable form any component of the MAGGOMEDIA SDK or any other software to which You are given access by MAGGOMEDIA, except as may be allowed by applicable laws, or disallowed for exclusion by agreement of the Parties;
(e) assist or attempt to assist any third parties in accessing the Services or MAGGOMEDIA Materials;
(f) Re-order, modify, edit, obscure or truncate in any way the Advertisements including without limitation, the advertising content, graphics, format, audio, video, sequence, or any aspect of the MAGGOMEDIA Materials.
(g) Share, display or disclose any MAGGOMEDIA Materials including, but not limited to, Advertisements on any part of Your Network that may be deemed to contain, in any way, hate-related/motivated, pornographic, libelous, sexually explicit, violent or otherwise offensive content; or contain any other materials, products or services that violate, or encourage conduct that would violate any applicable laws, any third party rights, or which are reasonably expected to disparage and/or negatively depict MAGGOMEDIA, its affiliates, advertisers or business partners.
(h) Engage in any Fraudulent Activities or illegal practices.
4.2 You shall be responsible and liable to MAGGOMEDIA for any and all acts or omissions of Your Personnel or agents committed while accessing or using the MAGGOMEDIA Materials, Advertisements and Services. Breaches of any provision of this Agreement caused by You, your agents or Your Personnel shall be deemed a breach of the Agreement by You.
- YOUR DATA
5.1 You shall own all rights, title and interest in and to all of Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and/or quality of Your Data.
5.2 MAGGOMEDIA shall not be liable to You for the loss, corruption or lack of accessibility, whether temporarily or permanently, of Your Data.
5.3 You hereby grant MAGGOMEDIA a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of Services by MAGGOMEDIA (including the provision of the Services to third parties).
5.4 If Your Network is based in the US, is targeted to or it is utilized by end-users based in the US, in addition to complying with applicable laws including Children’s Online Privacy Protection Act (“COPPA”), You will ensure that appropriate technical measures have been undertaken, as applicable, to allow MAGGOMEDIA to determine that such mobile applications and/or websites, directed to children under the age of thirteen (13), are compliant with the mandates of COPPA. In addition, You agree to notify MAGGOMEDIA in advance of the nature of such applications or websites to facilitate MAGGOMEDIA’s compliance with COPPA. Further, You agree not share any personally identifiable information of users of COPPA flagged applications or websites with either MAGGOMEDIA or other third parties.
6.1 Subject to the terms and conditions of this Agreement, MAGGOMEDIA will pay You an agreed upon percentage of Net Revenue relating to Advertisements run on Your properties during any given calendar month.
6.2 MAGGOMEDIA shall provide You with reasonable access to its online publisher dashboard (“Dashboard”) which shall be used for monthly calculations of the payment due by MAGGOMEDIA to You. The Dashboard shall, on the 7th day of every calendar month, reflect the amounts payable by MAGGOMEDIA to You for the preceding calendar month (“Dashboard Date”) and MAGGOMEDIA will make the payment no later than sixty (60) days (a) of the Dashboard Date; or (b) from the date of receipt by MAGGOMEDIA of a valid invoice issued by You, whichever is later. The payment shall be made after the conversion of the amounts in the local currency (if applicable) provided the Net Revenues are collected by MAGGOMEDIA from applicable advertisers, subject to You providing MAGGOMEDIA, complete and accurate information relating to remittance of payment.
The Net Revenue percentage paid to You shall be determined by MAGGOMEDIA. MAGGOMEDIA may, at its own, reasonable discretion, and from time to time, negotiate with You different Net Revenue percentages payable to You as they apply to different campaigns or Advertisements. In case of any conflict with the amount payable under the Dashboard and the amount as shown in the invoice, the amount as reflected in the Dashboard shall prevail.
6.3 All payments will be made in US dollars ($US) unless otherwise agreed upon in writing by the parties (email communications shall be deemed acceptable).
6.4 Foreign Exchange Conversion: Any applicable conversion from local currency to USD and from USD to any local currency would be at the current average exchange rate officially published by www.oanda.com based on the monthly average exchange rate for such month (month of burn) (For e.g., the amounts payable by MAGGOMEDIA to You for the month of April shall be reflected in the Dashboard on 7th May and accrued and converted into USD as per the current average exchange rate based on the average exchange rate for the month of April as published by www.oanda.com, and the payment shall be made on or before 7th of July or sixty (60) days from the receipt of valid invoice, as the case may be). The parties agree that data obtained from Dashboard shall be relied upon unless more than a 5% margin error or problem is reported by MAGGOMEDIA or You and subsequently confirmed.
6.5 In the event of an error in payments made to You as determined by MAGGOMEDIA, whether as a result of inaccurate information provided by a third party or otherwise, MAGGOMEDIA shall allocate any such erroneous amounts or deduct any overpayment in the subsequent calendar month payment due to You.
6.6 Both parties agree that MAGGOMEDIA expressly reserves the right to set off any amounts owed to You against any other amounts owed by You relating to MAGGOMEDIA services.
6.7 MAGGOMEDIA reserves the right to discontinue Service, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if MAGGOMEDIA reasonably suspects that any of the following have occurred on Your properties: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to be disparaging or have a negative commercial impact on MAGGOMEDIA, its advertisers or business partners. Without limitation to the foregoing, MAGGOMEDIA may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which MAGGOMEDIA subsequently determines accrued as a result of such Fraudulent activity or illegal activity.
6.8 Taxes: All payments are inclusive of taxes. Excluding any taxes levied on the income of a Party, any taxes on sales, including but not limited to, GST, VAT, excise, service tax, use tax or such other transaction based taxes, applicable in connection with this Agreement shall be borne and remitted by You to the relevant tax authorities. If applicable laws require withholding of any amount on account of tax withholdings, MAGGOMEDIA shall withhold such amounts, unless You provide a certificate of exemption from such tax withholdings. Amounts payable to You shall not be grossed up on account of tax withholdings.
6.9 Further MAGGOMEDIA and You shall co-operate to enable each party to more accurately determine and minimize the parties’ respective tax liability, to the extent allowed under the law.
7.1 You grant to MAGGOMEDIA any and all necessary rights, licenses and permissions to use Your mobile web or app trademarks, trade names, logos, copyrights and other applicable intellectual property provided during the course of the Services (“Your IPRs”) for the exclusive purpose of fulfilling MAGGOMEDIA’s obligations. MAGGOMEDIA may mention Your name as a customer in its website, marketing, social media and sales materials.
7.2 You acknowledge and agree that MAGGOMEDIA and/or any third party instructed or engaged by MAGGOMEDIA to such effect may, in its sole discretion, market, promote, reference, present and link Your IPRs to all MAGGOMEDIA’s potential customers in connection with the provision of the Services and You grant MAGGOMEDIA all necessary rights, license and permissions with respect to Your IPRs on a worldwide, perpetual, irrevocable royalty-free basis.
8.1 Each party acknowledges and agrees that Confidential Information under its control may be disclosed to the other party during the performance of this Agreement. Each party agrees that it shall use the disclosing party’s Confidential Information solely for purposes of performing its obligations under the Agreement and to take reasonable steps, which shall include, at a minimum, the steps it takes to protect its own Confidential Information, to prevent the duplication or disclosure of the disclosing party’s Confidential Information; including, but not limited, to the disclosure made to its employees, Affiliates or agents who must have access to the Confidential Information to perform such party’s obligations hereunder. Publisher also acknowledges and agrees that MAGGOMEDIA may need to share Publisher’s information, including Confidential Information, with third parties (such as its data management partners, licensors or media vendors, or with other parties for API reporting purposes). Provided however, that in each such case, a Party shall ensure that the recipient’s employees, Affiliates, agents or third parties have each agreed to be bound by confidentiality obligations no less restrictive than the terms of this Section 8. Each party agrees that the disclosure of the disclosing party’s Confidential Information required to be disclosed by law, a court order, applicable regulations, or orders of any governmental body or regulatory authority with proper jurisdiction shall not be a breach of this Section 8; provided, however, that such disclosing party must first give written notice to the affected party of the required disclosure. The confidentiality obligations set forth herein shall continue for two (2) years following termination or expiration of this Agreement with respect to Confidential Information. If the Advertisement transmission from MAGGOMEDIA includes any bid data or other financial information relating to the Advertisement, all such data shall be treated as Confidential Information belonging to MAGGOMEDIA.
8.2. Return of Confidential Information. Upon termination of this Agreement, or upon disclosing party’s request, the receiving party shall promptly return or destroy all physical or electronic manifestations of Confidential Information of the disclosing party and shall certify to the disclosing party, in writing, that such destruction took place. Notwithstanding the foregoing, a party may retain a copy of such Information solely for archival purposes.
8.3 Remedies. Each party acknowledges and agrees that any breach of its confidentiality obligations would cause irreparable harm and injury to other party for which monetary damages would not be an adequate remedy. Accordingly, in addition to other available remedies in law or in equity, in the event of such a breach, the non-breaching party shall be entitled to obtain injunctive relief protection and other equitable remedies without the obligation to post bonds.
8.4 Each party may disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by law; (ii) as part of filings with any court or governmental entities, including without limitation national securities exchanges; (iii) to legal counsel of the parties; (iv) to accountants, banks, and financing sources and their advisors under the terms and conditions of appropriate non-disclosure agreements thereto; (v) in connection with the enforcement of the provisions of this Agreement; or (vi) in connection with an actual or proposed merger, acquisition, or similar transaction under the appropriate terms and conditions of a non-disclosure agreement thereto.
- DATA PROTECTION & COOKIES
9.1 MAGGOMEDIA’s SDK integration requires certain permissions for its proper operation to meet the objectives of this Agreement. You acknowledge and agree that You have read and understood the SDK integration guide, if applicable, made available at the MAGGOMEDIA.com site. Also, by integrating with the MAGGOMEDIA SDK, You are deemed to have granted such permissions including, but not limited, to MAGGOMEDIA’s ability to collect or receive performance data of a user such as IP address, device id, latitude/longitude information regarding the device, or such other performance user data. You further acknowledge and agree that where any such data or component thereof is considered as personally identifiable information under applicable laws, You will obtain, prior to You granting MAGGOMEDIA such permissions, all necessary consents for collection, sharing, and/or use of such data for behavioral targeting or analytical purposes.
9.2 In the event You are sharing or allowing MAGGOMEDIA to infer fine location of an end-user from WIFI identifiers, You will ensure that You have obtained consent of such end-user prior to sharing or providing such permissions.
9.3 You warrant and represent that, (i) any personally identifiable information or personal data as such terms are envisaged under applicable privacy legislation (including for end-users in EEA under General Data Protection Regulation (GDPR)) supplied or disclosed to MAGGOMEDIA under, or in connection with, the Agreement shall be collected and transferred in accordance with applicable privacy legislation and with all relevant requirements and guiding notes issued, from time to time, by any Regulator with jurisdiction and; (ii) You have obtained any and all legally required consents to effectively collect, transfer and use such personal data or personally identifiable information by MAGGOMEDIA for its business purposes, including targeted advertising / surveys whether through technical integration or otherwise. You further warrant and represent that You shall in all respects abide by the terms of all applicable laws; (iii) where You are sharing any Personal Data of Data Subjects in EEA (as such terms are defined under GDPR), You agree to accept the terms of MAGGOMEDIA’s Data Protection Rider as set out in http://www.maggomedia.com/publisher-data-protection-rider whereby You acknowledge that MAGGOMEDIA is a joint controller as envisaged under GDPR.
9.4 You shall specifically notify MAGGOMEDIA when an end-user has exercised his/her right to opt-out of behavioral targeting through Your Network.
10.1 You will indemnify, defend and hold MAGGOMEDIA, its parent company, subsidiaries, affiliates, shareholders, licensors, customers, officers, and employees harmless, including but not limited, from any and all costs, expenses and attorneys’ fees and any other legal costs, from any and all losses, damages, penalties, liabilities, claims or demands made by any third party due to or arising out of: (a) Your use of the Services or MAGGOMEDIA Intellectual Property Rights; (b) any violation of this Agreement by You including without limitation breach of representations and warranties and obligations related to confidentiality; (c) infringement or alleged infringement by You of any third party Intellectual Property Rights or other right of any persons or entities; (d) willful misconduct or gross negligence by You; (e) any fraudulent or unlawful acts committed by You; (f) Your breach or alleged breach of any warranties or representations made under Section 9; (g) Any material displayed in Your Network which does not comply with all applicable laws, statutes and regulations; (f) Any material displayed in Your Network which contains content that is obscene, defamatory, libelous, or slanderous, or hate-related.
10.2 Any claim for indemnification hereunder shall be subject to the following provisions: (i) MAGGOMEDIA shall give You prompt written notice of any claim of MAGGOMEDIA, provided, however, that any delay in providing notice shall not relieve You of Your indemnity obligations under this Agreement; and (ii) MAGGOMEDIA shall reasonably cooperate with You and Your counsel, at Your sole cost and expense. MAGGOMEDIA may participate in the defense and settlement of the claim, using legal counsel selected by MAGGOMEDIA, at MAGGOMEDIA’s cost and expense. Each party shall make all reasonable efforts to mitigate and limit any damages arising therefrom.
11.1 Except as set out in these Terms or the Agreement and to the maximum extent permitted by applicable law, MAGGOMEDIA excludes and disclaims all conditions, terms, representations (other than fraudulent misrepresentations) and warranties relating to the subject matter thereof, whether imposed by statute or by operation of law or otherwise, that are not explicitly stated in this Agreement.
SOFTWARE AND MATERIALS PROVIDED AS PART OF THE PROVISION OF SERVICES ARE PROVIDED “AS-IS” WITH NO WARRANTIES OR INDEMNITIES OF ANY KIND, NEITHER MAGGOMEDIA NOR ITS LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCTS OR SERVICES, OTHERWISE RELATED TO THIS AGREEMENT. MAGGOMEDIA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF PRODUCTS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAGGOMEDIA DISCLAIMS ALL WARRANTIES IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY REMEDIES EXPRESSLY PROVIDED IN THIS AGREEMENT WILL BE YOUR SOLE AND EXCLUSIVE REMEDIES.
THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL ON THEIR ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY WILL NOT APPLY, HOWEVER, IN CASES OF WILFUL MISCONDUCT, PERSONAL INJURY OR BREACHES OF MAGGOMEDIA’S LICENSE RESTRICTIONS.
IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS. REPRESENTATIVES, LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF: A) PROFITS, B) REVENUE, C) DATA, D) TECHNOLOGY, E) OPPORTUNITY, F) CONTRACTS, G) ANTICIPATED SAVINGS, H) GOODWILL, TOLL FRAUD, OR COST OF COVER EVEN IF SUCH LOSSES WERE REASONABLY FORESEEABLE OR MAGGOMEDIA HAD BEEN NOTIFIED OR ADVISED OF THE POSSIBILITY OF YOUR INCURRING SUCH LOSSES.
THE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE ACTUAL DIRECT DAMAGES DIRECTLY RELATED TO THE CLAIM OR FIVE HUNDRED DOLLARS ($500) WHICHEVER IS LOWER.
THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR EACH AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNT EQUAL TO THE AGGREGATE TOTAL AMOUNT OF THE ACTUAL DIRECT DAMAGES DIRECTLY RELATED TO THE CLAIM OR FIVE HUNDRED DOLLARS ($500) WHICHEVER IS LOWER.
The limitations of liability in this Section also will apply to any liability of directors, officers, employees, agents and suppliers. Directors, officers, employees, agents and suppliers will be third party beneficiaries of this contractual limitation of liability and will be entitled to enforce this limitation directly against the other party.
11.2 Notwithstanding any provision to the contrary, nothing in these Terms or the Agreement shall limit or exclude MAGGOMEDIA’s liability for: a) death or personal injury arising out of MAGGOMEDIA’s negligence, fraudulent acts or representations; or b: for any MAGGOMEDIA’s liabilities which may not be limited or excluded by operation of law.
11.3 You acknowledge and agree that the limitations and exclusions of liability contained in these Terms and the Agreement are reasonable and commensurate with the nature, scope and extent of the obligations assumed by each Party under this Agreement. You further acknowledge and agree that if the Services are provided to You free of monetary charges, the provisions of this Section 11 shall govern and prevail over any other provision to the contrary contained in this Agreement.
11.4 In the event that any provision of this Agreement is declared invalid, illegal or unenforceable by an arbitrator or any court of competent jurisdiction, it shall be ineffective to the extent of such invalidity, illegality or unenforceability, while the remaining provisions of the Agreement shall not be affected thereby and shall remain in full force and effect.
11.5 Notwithstanding anything to the contrary in this Agreement, Your liability and Indemnification obligations under Section 10 shall be and remain unlimited.
Either Party may terminate this Agreement at any time by providing fifteen (15) days written notice to the other party. For purposes of this Agreement, the parties agree that e-mail notifications shall be deemed acceptable vehicles of notification between the parties.
- CONSEQUENCES OF TERMINATION
13.1 Upon termination of this Agreement for any reason:
(a) All licenses granted by MAGGOMEDIA under this Agreement shall immediately terminate; and
(b) You shall uninstall or otherwise remove any means of access to the Services provided under the Agreement including client software and MAGGOMEDIA SDK, if applicable, supplied by MAGGOMEDIA for that purpose;
(c) You shall immediately return any and all Confidential Information of MAGGOMEDIA as well as any and all MAGGOMEDIA Materials provided to You.
13.2 The termination of this Agreement shall be without prejudice to any accrued rights or obligations of the Parties arising hereunder prior to such termination.
13.3 The following Terms shall survive the expiry or termination of the Agreement: (a) 4.2, 5.2, 8, 9, 10, 11, 13, 14 and 15; and (b) any other provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, MAGGOMEDIA HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
15.1 Except as otherwise provided in this Agreement, no party may assign, sub-contract or deal in any way with, any of its rights or obligations under this Agreement or any document referred to in it without the express, written consent of the other party. However, MAGGOMEDIA will have the right to assign this Agreement, its rights or obligations under it, in whole or in part, to any present or future affiliate, to the entity resulting of a merger or consolidation of the company into one or more other entities or, to any entity which acquired from MAGGOMEDIA 1) more than fifty percent (50%) of the issued and outstanding capital stock of the company, or 2) substantially all of the assets of MAGGOMEDIA, or 3) the operating assets utilized by MAGGOMEDIA to fulfill its obligations under the Agreement. MAGGOMEDIA may subcontract work to be performed under the Agreement, but will retain responsibility for such work.
Notwithstanding the foregoing, upon acceptance of the assignment and the assumption of the duties and liabilities by the assignee, the assignor shall be released and discharged, to the extent of the assignment, from all further duties and liability under this Agreement except for assignor’s obligations of confidentiality and any obligations or liabilities that arose prior to the assignment that are retained by the assignor. This Agreement shall inure and be binding upon the Parties’ respective successors in interest.
15.2 No Waiver: The failure of either Party to enforce its rights under this Agreement, at any time, for any period, shall not be construed as a waiver of such rights.
15.3 Severability: If any provision of this Agreement is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Agreement in such jurisdiction shall not be affected and continue to be in full force and effect. Further, the legality, validity and enforceability of the whole of this Agreement in any other jurisdiction shall remain in full force and effect.
15.4 Entire Agreement: This Agreement constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter hereof.
15.5 Force Majeure: Neither Party will be liable to the other Party if it is rendered unable by an event of Force Majeure (as defined herein) to perform in whole or in part any obligation or condition of the Agreement for so long as the event of Force Majeure exists and to the extent performance is hindered by the event of Force Majeure; provided, however, the Party unable to perform will use all commercially reasonable efforts to avoid or remove the event of Force Majeure. The term “Force Majeure” will mean any cause not within the reasonable control of the Party claiming suspension and which by the exercise of due diligence such Party could not have prevented, including, but not limited to, physical events such as acts of God, landslides, lightning, earthquakes, fires, storms or storm warnings, such as hurricanes resulting in evacuation, floods, washouts, explosions, machinery malfunctions or breakdowns, inability to obtain fuel, power, or materials necessary for production, deficient transportation, electric power outages, strikes, lockouts, or other industrial disturbances, acts of a public enemy, sabotage, wars, blockades, insurrections, riots, acts of terror, and compliance with any law, order, rule, or regulation of any governmental agency. The term “Force Majeure” expressly excludes a failure of performance of any person other than the Parties, except to the extent that such failure was caused by an event that would otherwise satisfy the definition of a Force Majeure event as set forth in this Section.
The foregoing will not apply to payments of Fees for Products delivered or installed, as applicable, or for Services performed.
15.6 Amendments: MAGGOMEDIA reserves the right to amend these Terms at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately upon written notice to You. In the event that You object to any amendment to these Terms made by MAGGOMEDIA, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Agreement by written notice to MAGGOMEDIA. In the event of such termination, clause 12 above shall apply.
- GOVERNING LAW AND JURISDICTION
16.1 These Terms, this Agreement and any dispute or claim arising in connection with them or their subject matter (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania.
16.2 Unless otherwise agreed to in writing by parties, the Parties irrevocably agree that the courts sitting in the county of Allegheny, Pennsylvania, shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and/or this Agreement, or their subject matter thereof (including non-contractual disputes or claims).
- DEFINITIONS AND INTERPRETATION
17.1 Unless the context otherwise requires, the following definitions apply in these Terms:
- Accept means Your clicking ‘Accept’ which shall signify your acceptance of and agreement to these Terms and this Agreement;
- Advertisements: means all the advertising content provided by MAGGOMEDIA on behalf of advertisers for distribution on Your Network;
- Confidential Information means information (including confidential or sensitive commercial; financial; marketing; and/or technical information in written, electronic or any other form or medium) which is marked ‘confidential’ or ‘secret’ or, any such items which, by their nature, be considered confidential by a reasonably prudent person;
- Terms means these terms and conditions;
- Agreement means the agreement formed between You and MAGGOMEDIA, on the terms set forth herein, when you click accept;
- Effective Date means the date on which You Accept these Terms;
- End User means visitors to the website(s) or application(s) that comprise Your Network;
- Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (a) generate impressions of or clicks on any Advertisement through any automated, deceptive, fraudulent or other invalid means, including but not limited to, repeated manual clicks and/or automated query tools; (b) mislead users to click on Advertisements; (c) in any way minimize or obstruct the display of any Advertisements, or edit, modify, filter or change the order of the information contained in any Advertisements; (d) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by MAGGOMEDIA; or (e) reverse engineer, decompile or disassemble any software components of the advertising services provided by MAGGOMEDIA;
- Gross Revenues means the amounts due and owed to MAGGOMEDIA from advertisers for distribution of Advertisements on Your Network as received by MAGGOMEDIA;
- Group Company means (in relation to a Party) any subsidiary or holding company of a Party, or any subsidiary of a Party’s holding company;
- MAGGOMEDIA means MAGGO, LLC dba MAGGOMEDIA, a company organized and existing in accordance with the laws of the State of Pennsylvania, with registered office at 18 Woodbrook Drive Pittsburgh, PA 15215, acting on behalf of itself and its affiliates;
- MAGGOMEDIA Materials means any materials (including software, manuals, developers notes or other materials, if applicable) provided to You by MAGGOMEDIA in relation to this Agreement, including the MAGGOMEDIA SDK;
- MAGGOMEDIA SDK means the software development kit provided to You by MAGGOMEDIA to allow you to generate data which will be processed as part of the Services;
- Intellectual Property Rights means trademarks, service marks, trade dress, registered designs and unregistered designs and design rights, business and trading names, domain names, topography rights, copyright (including copyright in software), moral rights, database rights, rights in inventions, patents, know-how, trade secrets and other confidential information, and all other intellectual property rights and rights of a similar or corresponding character which may exist now or in the future, subsist in any part of the world, (whether registered or not or the subject of an application for registration) and including all rights to apply for, and obtain, registrations in respect of any and all of the foregoing, for their full term including extensions, revivals and renewals thereof;
- Net Revenues means Gross Revenues, less MAGGOMEDIA’s creative charges, cost of sales and Advertisement serving costs, including (a) any commissions due to, or revenue shares retained by, third party advertising sales networks or agencies, (b) any out of pocket costs paid by MAGGOMEDIA to third parties to serve the Advertisements pursuant to this Agreement (c) data enrichment and directed marketing costs, and (d) refunds to advertisers, credit card or bank charges, foreign exchange fluctuations impact, electronic payment processing fees, chargebacks, and bad debt;
- Party means each of MAGGOMEDIA and You and Parties shall be construed accordingly;
- Personnel means a Party’s directors, officers, employees, workers, agents, third party service providers, successors, subcontractors and permitted assignees;
- Regulator means any regulator or regulatory body which, whether under statute, rules, regulations, codes of practice or otherwise, is entitled to regulate, investigate, or influence the matters dealt with in this Agreement or any other aspect of Your business or affairs;
- Services means the provision of an independent and open platform to track conversions of ad campaigns across mobile websites and apps and across campaigns running on any advertising network;
- Your Network means (a) the mobile website(s) or mobile application(s) owned/ operated or contracted by You, and (b) the mobile websites or applications that are added or removed from Your Network during the Term;
- You means the person accessing the Services and/or using the MAGGOMEDIA Materials; and
- Your Data means any data belonging to You or to third parties and used by You under licence which is stored and/or processed by MAGGOMEDIA as a result of the use of the Services.
17.2 A reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute, as may be amended and in force from time to time.
17.3 The words and phrases “include”, “including” and “in particular” (and any variations of these words, or similar words) shall be deemed to be immediately followed by the words “without limitation” (where such words do not already immediately follow in these Terms).
17.4 References to a person include an individual, company, corporation, body corporate or unincorporated, firm, partnership, public body, charity or other legal entity and that party’s personal representatives, successors and permitted assigns.
17.5 Any obligation on a Party not to do something includes an obligation to not to allow that thing to be done.
Terms for participating in MAGGOMEDIA Exchange. If you do not opt out from participating in MAGGOMEDIA Exchange within 30 days from the date of notification, you shall be deemed to have accepted these terms.
If you are an advertiser, please refer the Advertiser Terms to comply with any specific requirements, regulations and/or laws.