These Terms of Use (the “Agreement”) govern the relationship between you (“User,” “you” or “your”) and AdvMobi Corporation, a Delaware corporation, or AdvMobi (HongKong) Ltd., a HongKong company, if applicable (collectively, “AdvMobi,” “we” or “our,” and together with “User,” the “Parties,” and each a “Party”) and apply to your use of the Services (as defined below).
Your access to and use of the Platform or the Services may also be subject to additional terms or agreements between us and you.
If you have entered into this Agreement on behalf of a company or other entity, you represent that you have been duly authorized with the authority to enter into this Agreement on behalf of that company or other entity, and you expressly represent that the company or other entity agrees to be bound by this Agreement. If you have entered into this Agreement on an individual basis, you represent that you are the age of legal majority or older in your jurisdiction (aged 18 and over) and have the legal capacity to enter into and be bound by this Agreement.
As described below, the Platform, the Services, and the Software may fall within United States export controls. You may not use the Platform or the Services if United States law or other applicable law preclude you from receiving products, including services or the Software, from the United States or from using the Platform, the Services, or the Software. Registration for and use of the Platform or the Services where prohibited will be void.
1. Your Use of the Platform and the Services
Advertisers’ Use of the Platform and the Services—Advertisers, media buyers, ad agencies, demand-side platforms, e-commerce platforms, channel partners, or merchants, or other providers of advertisements (collectively, “Advertisers” or an “Advertiser”) may provide content, including text links, banners, videos, artwork, and graphics (“Advertisements”), and AdvMobi may collect content, including text links, videos, artwork, and other files, for display on any Property.
In addition, you hereby grant AdvMobi a perpetual, irrevocable, sublicensable, non-exclusive, worldwide, and royalty-free right and license to copy, adapt, reproduce, distribute, display, publicly perform, and otherwise use Advertisements and other content, including any intellectual property rights contained on these materials, for the purpose of providing the Services, including serving the Advertisements and distributing Advertisers’ platforms, products, or services to end users. In addition, you grant AdvMobi a perpetual, irrevocable, sublicensable, non-exclusive, worldwide, and royalty-free right and license to use and retain data collected from you for purposes of improving the Services, including our AI-powered technologies and Software.
Publishers’ Use of the Platform and the Services—Developers and other businesses (collectively, “Publishers” or a “Publisher”) may list digital properties, including mobile applications, websites, connected TV devices, and other platforms or services (each a “Property,” and collectively “Properties”), and make them available for Advertisements (as defined above).
I. Any Advertisement (as defined above) through any means. AdvMobi will determine what constitutes valid impressions, clicks, requests, valid traffic, and valid activity, and payments to you as a Publisher may be withheld or adjusted if you engage in any actual or suspected violation of this Agreement.
In addition, you hereby grant AdvMobi all the necessary rights and permissions to: (a) use your Property’s or Properties’ intellectual property rights provided during the Services for the purpose of fulfilling AdvMobi’s obligations; (b) access, index, store, and cache requests made from Property or Properties to the Services, including by automated means; and (c) access your Property or Properties to provide the Services, including placing or displaying Advertisements. In addition, you grant AdvMobi a perpetual, irrevocable, sublicensable, non-exclusive, worldwide, and royalty-free right and license to use and retain data collected from you for purposes of improving the Platform and the Services, including our AI-powered technologies and Software.
Eligibility to Use the Platform and the Services — You agree to use the Platform and the Services consistent with this Agreement and all laws and regulations, including United States export controls. In addition, you may not use the Platform, the Services, or the Software if you or any of your affiliates or, to your knowledge, any director, officer, manager, or employee of such entities: (i) cannot receive products, including services or the Software, from the United States (because for example you live in a country embargoed by the United States) or have been the target of sanctions by any governmental entity; (ii) cannot access or use the Platform, the Services, or the Software in compliance with this Agreement under the applicable laws of your jurisdiction; and (iii) have previously been suspended from the Services.
Third-Party SDKs or Other Software Integrations — Your use of any third-party SDKs, APIs, pixels, connections, or similar software in connection with the Services will be governed by the terms of any agreement applicable to those integrations, connections, or software. We have no responsibility for any aspect of these third-party integrations, connections, or software, including any ad serving or data processing that may occur through them. You and the third-party provider must ensure compliance with all applicable laws and regulations, including those concerning privacy and data protection, age-related restrictions, labeling and disclaimer requirements, advertising guidelines, and any similar requirements.
2. Data Privacy and Data Sharing
Data Processing Agreement — To the extent that any Personal Data (as defined under applicable data protection laws) is shared hereunder, the
Data Sharing Representations and Warranties — You represent and warrant, as applicable, that:
- You will comply with all applicable laws, rules, and regulations relating to the collection, use, and sharing of information about any end user who interacts with the Services.
- You will ensure that you will have, at all times, a clearly labeled and easily accessible privacy policy that complies with all applicable laws and specifically provides end users with clear information about SDKs, cookies, device-specific information, location information, and other information stored on, accessed on, or collected from end users’ devices in connection with the Services.
- You will ensure (where required by law) that each end user consents to the storing and accessing of cookies, device-specific information, location information, or other information on the end user’s device by AdvMobi in connection with the Services, and upon AdvMobi’s request, provide us with written evidence of such consent, including the date of the consent and the consent language presented to the end user.
- You will ensure that you have adequate rights and have obtained all necessary permissions and consents required under applicable laws to disclose Personal Data to AdvMobi for purposes consistent with this Agreement, including improving the Services.
- You shall, at all times and in accordance with the requirements of applicable data protection laws, make available, maintain, and make operational on your properties: (i) a mechanism for obtaining such consent from end users; and (ii) a mechanism to honor end users’ data subject rights (opt-out of sale for interest-based advertising, deletion, access, etc.).
3. Prohibition on Advertisements to and Personal Information from Children and Apps Exclusively Designed for or Exclusively Directed to Children
You acknowledge and agree that you will not use the Services in connection with any Property or Advertisement exclusively designed for or exclusively directed to children as defined and required by applicable laws, or for any Property or Advertisement that could implicate the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. 6501, et seq.) (“COPPA”), laws of similar effect in any applicable jurisdiction, as well as any applicable app store policies. You shall be solely responsible for ensuring that any Property or Advertisements comply with all age-related laws and applicable app store policies, including COPPA or laws of similar effect in any applicable jurisdiction.
4. Fees and Payments
a. Fees from Advertisers’ Use of the Services
Invoices to Advertisers — For purposes of your use of the Services, AdvMobi will provide you with access to an online reporting system. You acknowledge and understand that AdvMobi will invoice you for Advertisements served through the Services exclusively based on the numbers in AdvMobi’s online reporting system. Unless otherwise indicated, payment will be due within thirty (45) days of the invoice date, and all amounts will be payable in U.S. Dollars regardless of your primary place of business.
b. Payments to Publishers
Payments to Publishers — For purposes of your use of the Services, AdvMobi will provide you with access to an online reporting system. You acknowledge and understand that AdvMobi will pay you monthly earnings for valid impressions filled by AdvMobi, calculated exclusively based on AdvMobi’s accounting and the numbers in AdvMobi’s online reporting system, and subject to the minimum applicable payment threshold (communicated through the Services). Payments to you will be calculated by AdvMobi based on valid impressions shown on your Property and the pricing associated with those impressions, which could take the form of cost per mille (CPM) or a percentage of Net Revenue (as defined below) as determined by AdvMobi.
- Invalid Activity — For purposes of calculating these payments, AdvMobi will, in its sole discretion, determine what constitutes valid impressions, clicks, requests, valid traffic, and valid activity. Invalid activity includes: (i) spam, invalid impressions, or invalid clicks on Advertisements generated by any person, bot, automated program, or similar device, including through any clicks or impressions originating from your IP addresses, computers under your control, or similar self-click schemes; (ii) clicks solicited or impressions generated by payment of money and false representation; (iii) clicks or impressions co-mingled with a significant amount of the activity described in (i) and (ii) above; or (iv) any breach of this Agreement.
- Net Revenue — For purposes of calculating these payments, “Net Revenue” means revenues actually received by AdvMobi from the sale, use, or other disposition of Advertisements displayed on your Property, less Taxes (as defined below), less any agency commissions, buyer fees, carrier and/or partner fees, and less any allowances actually made or taken for returns, cash discounts, or promotional allowances, but excluding other revenues indirectly earned, if applicable, for consulting, planning and targeting, copywriting, site building, account management, or technical modifications or technical innovations that may be charged by AdvMobi to third parties from time to time. The portion of Net Revenue received by User will generally be determined on the first Monday of each calendar month, on which day those revenues accrued to your account thirty (30) or more days earlier shall become eligible to be paid.
Subject to the foregoing and the minimum applicable payment threshold, AdvMobi will pay your monthly earnings according to the payment details entered into your AdvMobi account. Depending upon those payment details, you may be responsible for certain bank fees associated with the transmission of payments from your AdvMobi account. As set forth above, to help ensure proper payment, you remain solely responsible for providing and maintaining accurate contact and payment information associated with your account.
Our Right to Withhold, Adjust, or Offset Payments — We may withhold, adjust, or offset payments to you based upon any amounts you owe to AdvMobi under this Agreement or any other agreement, any amounts refunded or credited to Advertisers, any amounts arising from invalid activity, or if you engage in any actual or suspected violation of this Agreement, in any case as determined by AdvMobi in its sole discretion.
Payments from Other Networks — Your monthly earnings for impressions filled through the Services by other networks, as may be reflected in AdvMobi’s online reporting system, will be paid in accordance with the policies and practices of those other networks.
c. Miscellaneous Provisions
Taxes — You will pay any direct or indirect local, state, federal or foreign taxes, levies (including any equalization levy), duties, or similar governmental assessments of any nature, including but not limited to VAT, GST, excise, sales, use, consumption, and withholding taxes (collectively, “Taxes”) or other charges in connection with its use of the Platform, the Services, or the Software, including any Taxes AdvMobi is legally obligated to charge. AdvMobi’s fees do not include Taxes and you agree to pay, in addition to such fees, all applicable Taxes imposed by any taxing authority in connection with your use of the Services. You shall pay the full amount owed to AdvMobi, inclusive of and without deduction for, any invoiced Taxes. You may provide AdvMobi with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case AdvMobi will not charge or collect the Taxes covered by such certificate. Where a Publisher supplies a Property or Properties to AdvMobi which is subject to any Taxes, Publisher shall be responsible for remitting the Taxes to the proper authorities. Where applicable, Publisher agrees to GST self-billing for Singapore GST purposes and agrees to remit all GST output tax to the proper authorities, as required by law, as shown on each AdvMobi self-billed invoice. Upon request, Publisher shall provide AdvMobi with its GST registration number.
Changes to Fees or Charges — AdvMobi reserves the right to change its fees and to institute new charges at any time, upon prior notice, and to invoice for fees and/or make payments for earnings from any of our affiliates.
5. Confidentiality Obligations
AdvMobi Confidential Information — “AdvMobi Confidential Information” includes: (a) all Software, technology, and documentation relating to the Platform and the Services and any other non-public technical or business information; (b) the existence of, and information about, beta features in the Services (or any aspect of them); (c) the terms of any order with AdvMobi, pricing information related to the Services, and any statistics provided by AdvMobi concerning your use of the Platform and the Services; and (d) any other information made available to you by AdvMobi that either has been marked as confidential or would ordinarily be considered confidential given the nature of the information or the relevant circumstances. AdvMobi Confidential Information does not include information (i) that you already knew prior to your use of the Services or the Platform, (ii) that becomes public through no fault of yours or breach by you of this Agreement, (iii) that you independently developed without use of AdvMobi Confidential Information, or (iv) that you rightfully obtained from a third party without restriction on use or disclosure.
Use and Disclosure Restrictions — You agree not to use AdvMobi Confidential Information except as permitted under this Agreement or any other agreement, terms, or policies that govern your access and use of the Platform and the Services. You further agree not to disclose AdvMobi Confidential Information without our prior written consent. In addition, without our prior written consent, you will not post, copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce any (i) AdvMobi Confidential Information or (ii) copyrighted material, trademarks, or other proprietary information accessible through the Platform or the Services. These restrictions do not prevent you from disclosing AdvMobi Confidential Information: (a) pursuant to a court order or other lawful process, provided that you first give AdvMobi sufficient advanced notice of such disclosure pursuant to any such order or other lawful process; and (b) on an as-needed confidential basis to your legal or financial advisors.
6. Warranty Disclaimers and Limitation of Our Liability
Some jurisdictions do not allow the exclusion of certain warranties or the limitation of certain liabilities. In those jurisdictions, the exclusions and limitations below shall apply only to the extent permitted by the laws of these jurisdictions.
Warranty Disclaimers — You access and use the Platform, the Services, and the Software at your own sole risk. We provide the Platform, the Services, and the Software on an “as is” and “as available” basis, and explicitly disclaim all warranties of any kind to the full extent permitted by applicable law.
- We make no representations or warranties of any kind, express or implied, as to the operation of the Platform, the Services, or the Software, the Advertisements, Properties, or content included on or otherwise made available through the Services, or any other information, content, materials, or other services included on or otherwise made available through the Platform and the Services. In addition, we may suspend, withdraw, or restrict the availability of all or any part of the Platform, the Services, or the Software (including “beta” features or tools) at any time and for any reason.
- You expressly agree that you use the Platform, the Services, and the Software at your sole risk. To the full extent permissible by law, we disclaim all warranties, express or implied, about the Platform, the Services, and the Software, including implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, non-infringement or availability, and any warranties arising out of course of dealing or usage of trade. No advice or information, whether oral or written, obtained from us or elsewhere will create any warranty or condition not expressly stated in this Agreement.
- We do not warrant that the Platform, the Services, or the Software will meet your requirements or be available on an uninterrupted, secure, or error-free basis (meaning free of viruses or other harmful components), that defects will be corrected, or that you will not encounter any connectivity problems or other technical issues.
- We make no warranty regarding the quality, accuracy, or appropriateness of any Advertisement, Property, or content included on or otherwise made available through the Platform or the Services. You acknowledge and agree that AdvMobi has no control over (or responsibility for) any content that may be submitted or published by any advertiser (including Advertisements) or any content that may be available or published on any Property (or otherwise).
- YOU ACCESS AND USE THE PLATFORM, THE SERVICES, AND THE SOFTWARE AT YOUR SOLE RISK. WE EXPLICITLY DISCLAIM ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT THE PLATFORM, THE SERVICES, AND THE SOFTWARE.
7. Your Indemnification of Us
You will indemnify and hold AdvMobi, its officers, managers, directors, employees, affiliates, and subsidiaries, and each of their respective legal representatives, successors, and assigns, harmless (and, at AdvMobi’s request, defend AdvMobi) against any and all claims, demands, losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of (a) your use of the Platform or the Services, (b) your violation of any term of this Agreement, including your representations and warranties, (c) your violation of any third-party rights, or (d) your violation of any applicable laws, rules, or regulations, including those concerning privacy and data protection.
At AdvMobi’s option, you will assume control of the defense, but AdvMobi retains the right to elect to take over the defense at any time. You may not enter into a settlement covered by this indemnification clause without AdvMobi’s prior written consent. If AdvMobi elects to assume control of the defense, you agree to cooperate fully in that defense.
8. Ending Your Relationship with the Services (and vice versa)
Termination by Us — We may suspend or terminate this Agreement, your account(s), or your access to and use of the Platform, the Services, and the Software (or any portion of them) at any time, for any reason or no reason, and without notice or explanation to you. In addition, we reserve the right to remove your account information or data from the Platform, the Services, the Software, and any other records at any time, for any reason or no reason, and without notice or explanation to you.
Termination by You — You may terminate this Agreement at any time by following the instructions on the Platform or in other documentation, or by sending a notice of cancellation to AdvMobi Support.
Survival and Effect of Termination — Upon suspension or termination of this Agreement, your account(s), or your access to and use of the Platform, the Services, and the Software (or any portion of them), your right to use the Platform, the Services, and the Software will immediately cease and you must promptly remove all Software and pay any amounts owed to AdvMobi pursuant to the applicable invoices. In addition, all provisions of this Agreement which by their nature should survive will survive, including, without limitation, confidentiality provisions, fees and payments, indemnification, warranty disclaimers, limitations of our liability, and dispute resolution provisions.
9. Your Representations and Warranties to AdvMobi
Representations and Warranties by Publishers — If you access and use the Platform, the Services, or the Software as a Publisher, you represent and warrant that: (i) you own each Property that you use in connection with the Services or that you have the legal authority and authorization to act on behalf of the owner of such Property for purposes of this Agreement; (ii) you have all necessary rights, power, and authority to enter into this Agreement and to perform the acts required hereunder; (iii) any data supplied or disclosed to AdvMobi under or in connection with the Platform, the Services, or the Software shall be controlled, collected, and transferred in accordance with any applicable data protection laws and regulations; (iv) any data supplied or disclosed to AdvMobi includes all necessary rights, licenses, consents, and permissions for AdvMobi to receive, use, share, and transfer such data as set forth in this Agreement.
In addition, you represent and warrant that each of your Properties and any material displayed on those Properties: (a) comply with all applicable laws, statutes, ordinances, and regulations, including consumer protection, commerce, advertising, and product laws; (b) do not breach and have not breached any third-party rights, including intellectual property rights, rights of publicity or privacy, or rights, duties, or obligations under consumer protection, commerce, product liability, advertising, tort.
Representations and Warranties by Advertisers — If you access and use the Platform, the Services, or the Software as an Advertiser, you represent and warrant that: (i) you own each Advertisement you designate in connection with the Services or that you have the legal authority and authorization to act on behalf of the owner of such Advertisement for the purposes of this Agreement; (ii) you have all necessary rights, power, and authority to enter into this Agreement and to perform the acts required hereunder; (iii) any data supplied or disclosed to AdvMobi under or in connection with the Platform, the Services, or the Software shall be controlled, collected, and transferred in accordance with any applicable data protection laws and regulations; (iv) any data supplied or disclosed to AdvMobi includes all necessary rights, licenses, consents, and permissions for AdvMobi to receive, use, share, and transfer such data as set forth in this Agreement.
In addition, you represent and warrant that each of your Advertisements and any material displayed therein: (a) comply with all applicable laws, statutes, ordinances, and regulation, including consumer protection, commerce, advertising, and product laws; (b) do not breach and have not breached any third-party rights, including intellectual property rights, rights of publicity or privacy, or rights, duties, or obligations under consumer protection, commerce, product liability, advertising, tort, or contract theories; (c) do not include viruses and any other form of contaminants of any nature.
10. Governing Law and Venue for Legal Disputes Not Subject to Arbitration
This Agreement, and all claims or defenses based on, arising out of, or related to this Agreement or the relationship of the Parties under this Agreement, including those arising from or related to the negotiation, execution, performance, or breach of this Agreement, shall be governed by, and enforced in accordance with, the internal laws of the State of California, without reference to its choice of law rules or any principle calling for application of the law of any other jurisdiction.
Except as provided below, any disputes not subject to the Agreement to Arbitration set forth in this Agreement shall be heard only in the state or federal courts located in Santa Clara County, California, unless we mutually agree to some other location. Each of us consents to venue and personal jurisdiction in Santa Clara County, California, for purposes of any such action.