Terms and Conditions
Last revised: 5/1/20
By participating in Mobile Evolution Marketing (“Mobe Growth” or “Mobe”) advertising programs and services (including, but not limited to, Organic Ranks Accelerator, Paid media campaigns, Online Surveys, Marketing plan, etc.), or by executing an Insertion Order or other form that reference these terms, you hereby agree to the terms set forth herein, including any terms specified herein (the “Agreement“), as may be amended from time to time.
This Agreement is between you, as an individual or the entity you represent (“Advertiser“), and Mobe, a company with its registered place at 2755 Paloma Street, Pasadena, CA, USA, and its affiliates and collectively “Parties“.
1.1 “Ads”and/or “surveys” means all text, images, links, web pages, signs, banners, audio, video, visual works, or any other content owned by or licensed to Advertiser for the purpose of promotion and display on the Inventory (as defined herein), including any Proprietary Rights contained therein, including any content to which the Ads direct end users (such as web landing pages and/or app store pages) along with the related URLs and redirects and all related content, materials and metadata submitted by Advertiser to Mobe.
1.2 “Mobe Website” available at: www.mobe.agency
1.3 “Campaign Data” shall mean data regarding a campaign gathered during delivery of Ads and online surveys pursuant to the Agreement (e.g., number of impressions, interactions, and header information), as well as any data that identifies or allows identification of Publisher, Publisher’s site, app, brand, content, context, or users as such, and any details set forth herein (including on the Insertion Order, if applicable) including pricing information, placement and targeting information.
1.4 “Confidential Information” shall mean any non-public, proprietary, confidential and/or trade secret information of a Party hereof, whether furnished before or after the Effective Date (as set forth in the Insertion Order), and regardless of the manner in which it is furnished, and which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive, including, without limitation, business procedures, technology and any related documentation, client list, developments, business partners or other information disclosed by a Party (the “Disclosing Party“) to the other Party (the “Receiving Party“) either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information shall not, however, include any information which: (i) was known to the Receiving Party or in its possession at the time of disclosure without any confidentiality obligation; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is independently developed by the Receiving Party without reliance on or use of the Confidential Information or any part thereof and the Receiving Party can show written proof of such independent development; (iv) required to be disclosed by applicable law, regulatory authority or a valid court order, provided that the Receiving Party shall provide the Disclosing Party with reasonable prior written notice of the required disclosure in order for the Disclosing Party to obtain a Protective Order and the disclosure shall be limited to the extent expressly required; (v) is approved for release by prior written authorization of the Disclosing Party; or (vi) the Receiving Party can demonstrate was disclosed by the Disclosing Party to a third party without any obligations of confidentiality.
1.5 “Insertion Order” means a schedule or other document (including an online registration page or online order form) entered into or accepted by Mobe and Advertiser that incorporates this Agreement.
1.6 “Objectionable Content” shall mean content that is, promotes or contains links to content that is (i) pornographic, sexually explicit, obscene or adult content, (ii) harassing, threatening, abusive, offensive, violent, shocking, racist, or any content that promotes hatred or intolerance against others; (iii) illegal, contrary to public policy or that could facilitate the violation of any applicable law, regulation or government policy, (iv) libelous or defamatory, (v) infringes upon the Proprietary Rights or other right of any third party, including privacy or publicity rights; (vi) offers or disseminates any counterfeit or fraudulent goods (such as replicas or knockoffs), or services, schemes, investment opportunities or promotions or advice not permitted by law; (vii) containing misleading, deceptive or unrealistic promotions (such as by portraying nonexistent functionality (such as a non-operable “play” or “close” button), making false statements or claims, falsely implying affiliation with, or endorsement by another organization or service, misleading or tricking the user into interacting with the Ads, or impersonating system or browser warnings or error messages); (viii) promoting the use of drugs and drug paraphernalia, illegal substances or dangerous products (such as firearms or explosives), tobacco or alcohol products; (ix) harmful to Mobe’s or any other party’s systems and networks, including any Malicious Code; (x) facilitating illegal activity under applicable law or regulations; (xi) offering little or non-unique value to end users, or is focused primarily on traffic generation; (xii) directed to children under the age of 16; or (xiii) does not comply with the Store Policies.
1.7 “Malicious Code” shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users’ web or mobile navigation or intervenes with the end users’ control over the operating system, browser settings, browser functionality or webpage’s display.
1.8 “Payment Model” shall mean any of the following: (i) cost per installation (“CPI“) model; (ii) cost per thousand impressions (“CPM“) model; (iii) cost per action (“CPA“) model; or (iv) cost per click (“CPC“) model or any other model as described in the Insertion Order or Agreement.
1.9 “Proprietary Rights” shall mean all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered: marks, trademarks, service marks, trade names, trade dress and associated logos, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and Confidential Information; (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).
1.10 “Store” means the Google Play Store or the App Store, as applicable.
1.11 “Store Policies” means Google Play Content Policies (as available here: https://developer.apple.com/app-store/review/guidelines/), or the App Store Review Guidelines, (as available here: https://developer.apple.com/app-store/review/guidelines/), as applicable.
1.12 “User Action” means any user’s interaction with the Ads and/or Surveys, including without limitation impressions, clicks, conversions, installations, and any other user action.
1.13 “User Data” means any personal and non-personal information pertaining to users, including User Actions, and including any custom audience segmentation, post-install events, unique device identifiers and attribution data.
2. License and Service
2.1 Advertiser hereby grants to Mobe and its affiliates a worldwide, non-exclusive, royalty-free right and license to use, serve, copy, reproduce, distribute and display, in any known medium or hereafter developed, the Creative and/or Ads, on any online properties (“Inventory” or “Placements“) made available by Mobe’s publishers (“Publishers“), and promote the Ad Campaign(s), subject to this Agreement and/or (if applicable) the Insertion Order (the “Service“).
2.2 In the event the Parties has entered into an Insertion Order, the Parties acknowledge that such Insertion Order may set forth the details of the Ad Campaign, including the type and quantity of ad placements, the rate price per ad placement, the daily budget target allotted to the campaign, etc., and which shall incorporate by reference these Advertiser Terms.
2.3 Mobe and its affiliates may make available to Advertiser certain features to assist Advertiser with the generation, selection and optimization of users’ targeting decisions (“Targeting“). Advertiser hereby acknowledges that the Advertiser is solely responsible for the Ads (including any content made available thereof) and for the Targeting.
2.4 Mobe shall use commercially reasonable efforts to serve or place the Ads and Surveys on the Inventory, pursuant to the Targeting. Advertiser acknowledges that Mobe shall be under no obligation to display or deliver a minimum number of Ads’ impressions, clicks or other User Actions, and may reduce, reject or remove Ads at any time at its sole discretion.
3. Ad Campaigns
3.1 Advertiser shall develop all aspects of the Ad and Surveys Campaign, and shall provide Mobe all creative and substantive materials (“Creative“) required for the promotion or distribution of the Ads and Surveys in connection with a campaign (“Ad Campaign“ and/or “Survey campaign”), in whatever format (including without limitation banners, links, fields, video, rich media, and any other creative content as required, including any content to which the Creative directs users, along with the related URLs), together with any measurements or specifications parameters for the Ads’ units (“Measurements“).
3.2 Ad Campaigns and Surveys campaigns may be accessible through whatever online means or devices, including (without limitation) on websites, non-mobile websites, mobile applications, and/or mobile websites or by any other online and mobile marketing means as determined by Mobe. If the Advertisers desires to only target specific placements, Advertiser must make that request to Mobe before the launch of the Ad Campaigns or surveys Campaigns and such requirements shall be included in the Insertion Order.
3.3 Mobe shall exercise reasonable efforts to endeavor that the Creative is used in connection with the delivery of the Ads and that the Ads are delivered in accordance with the Measurements specified by the Advertiser; however, Mobe does not warrant or otherwise undertake that the Creative shall be used in any Ad Campaign or Surveys Campaign, or that the Ad Campaign or that the Survey Campaign shall achieve any specific performance or volumes within the term of the Ad Campaign or Survey Campaign and with the budget agreed for such Ad Campaign or Survey Campaign.
3.4 Mobe makes no guarantee regarding the placement, positioning, specifications, dimensions, frequency, volume, ranking or timing of Ads delivery, and any editorial decisions related to the Creative and/or Ads, which shall be made by the Publishers in their sole discretion. Mobe makes no representation as to the performance of any Ads, Ad Campaign or Survey Campaign and disclaims all representations, warranties and liability with respect to the success or return on investment of any Ads, Ad Campaigns or Survey Campaigns, including with respect to User Actions. Furthermore, Mobe does not guarantee that advertiser will reach any top ranks in the app stores or a determined number of completed surveys within the allotted time-frame for any Ad Campaign and/or Survey Campaign. Also, Advertiser hereby acknowledges and understands that no past performance is representative of future performance and holds Mobe not responsible for any of the Ad Campaigns or Survey Campaigns performance.
3.5 Although Mobe shall exercise reasonable efforts to endeavor that Advertiser’s daily target budget shall not exceed the amount set forth in the Insertion Order, Advertiser shall remain liable to pay for any User Actions in accordance with this section even if the daily target budget was exceeded.
3.6 Advertiser acknowledges and agrees that Mobe is not responsible and has no liability whatsoever for the Ads and the Creative, and that Mobe has no obligation to monitor the foregoing. Notwithstanding anything to the contrary stated in this Agreement, Mobe reserves the right at its discretion and without notice, to remove or refuse to distribute any Ads and/or Creative or any content associated therewith.
3.7 Mobe reserves the right, in its reasonable discretion and without liability to reject, limit, remove, exclude, suspend or terminate any Ad Campaign or Survey Campaign, for any reason at any time, whether or not such Ad Campaign or Survey Campaign was previously acknowledged, accepted or published by Mobe.
3.8 Advertiser is responsible for immediately terminating expired Ad Campaigns or Survey Campaign which suffer from technical problems (e.g. broken links). In case of a failure by Advertiser to terminate such Ad Campaigns or Survey Campaign, Advertiser shall be liable to pay for lost clicks – $0.10 per click.
3.9 Tracking. Mobe will host the Ad Campaign or Survey Campaign tracking and provide the tracking solution or otherwise enable the Advertiser to provide a different tracking solution. Notwithstanding the foregoing, Mobe’s tracking count shall be used for all purposes under the Agreement, including billing and measurement of Ad Campaign’s or Survey Campaign’s performance.
3.10 Unless otherwise stated in writing by Mobe, each Creative used by Mobe in connection with an Ad Campaign or Survey Campaign must include, in an unaltered form, the special transaction tracking computer code or tracking link provided by Mobe (“Tracking Codes“). In the event the Parties agreed to utilize a tracking solution offered by a third party provider recognized by Mobe (“Tracking Partner“), Mobe shall reserve the right to count additional installations and/or conversions which it has recognized in addition to those tracked by the Tracking Partner. Advertiser shall deliver to Mobe on a real-time basis the performance reports with respect to each Ad Campaign or Survey Campaign, based on the results measured by the Tracking Partner, and as requested by Mobe upon demand. The reports shall meet, in form and substance, the reasonable requirements of Mobe.
3.11 The Advertiser acknowledges that Mobe may also be entitled to prepare a tracking report based on the results measured by the Tracking Partner and for such purpose shall have the additional right, to interface with the tracking solution offered by the Tracking Partner.
3.12 It is noted that for accurate attribution Ad effectiveness, Mobe shall activate an installations’ and/or conversions’ attribution for any installation or conversion made 24 hours following a view of an Ad, regardless of the last click.
4. Registration and credit check
4.1 Advertiser agrees that Mobe may disclose any or all information it has concerning Advertiser to any third parties, including credit-reporting or collections agencies, for the purpose of assessing Advertiser’s credit or determining a payment plan or method, or for the purpose of collecting outstanding and unpaid amounts.
5.1 Advertiser shall pay all charges incurred in connection with the Service to Mobe, in accordance with the rates communicated to the Advertisers, which shall be based on the Payment Model agreed upon between the Parties in the Insertion Order. Mobe may determine a minimum rate which can be changed by Mobe from time to time.
5.2 Advertiser acknowledges that it shall remain liable to pay for any User Actions which occur up to 30 days following the termination of an applicable Ad Campaign. Such provision shall not be enforced for Survey Campaigns, where the Advertiser will be billed for exactly the number of conversions ordered in the Insertion Order.
5.3 Unless otherwise agreed between the Parties, the Advertiser shall be charged by Mobe through the payment method approved by the Parties (such as through PayPal, credit card or ACH) as per the payment terms agreed by both parties in either the Insertion Order, agreement, via email, or other.
5.4 In order to verify the payment method, Mobe may make a one-time test charge of $5 which will be credited to the Advertiser’s account and used against their first invoice.
5.5 All charges as reflected in the invoice shall be calculated solely based on Mobe’s measurements and applicable billing metrics; Mobe shall track, manage and report such measurements in good faith to Advertiser.
5.6 The Advertiser alone shall bear any and all wire transfer fees and processing fees related to its payment (e.g. bank fees, PayPal, credit card, etc.). Payment will be made in the currency specified in the invoice. Unless specified otherwise in the invoice, 5% processing fees will be included in all automated transactions.
5.7 Advertiser shall submit to Mobe any disputes relating to the measurement or calculation of any User Action, in writing or by email specifying the reason for such objection, including providing reasonable proof, within seven (7) days as of the occurrence of said User Action. If no such dispute has been made within the foregoing time period, the User Action shall be deemed as accepted by Advertiser and billed accordingly. Any portion of a charge not disputed in good faith must be paid in full, and Mobe will not process or accept any refunds and/or chargebacks related to disputes that were not raised with the seven (7) days as of the occurrence of any User Action.
5.8 Mobe will not process any refunds and/or chargebacks to Advertiser accounts which have been suspended, blocked or terminated due to fraudulent activities.
5.9 It is hereby affirmed that without concrete and specific proof of fraudulent activity by one of the Publishers through the Service, Mobe shall not be entitled to reimburse any fees, any complaint in regards to low retention rates for the advertised application or other performance indicators will not serve as proof of fraud and as such Mobe shall not be obliged to reimburse any fees.
5.10 Advertiser will have no right to setoff, withhold or otherwise deduct any amount owed to Mobe hereunder (and accordingly transfer to Mobe when due any such amount whether in dispute or not) against any amount owed or claimed to be owed by Mobe to Advertiser (under any theory of liability).
5.11 All charges shall be remitted to Mobe in U.S. dollars within payment terms as per Insertion Order. Late payments shall bear interest at the rate of 1.5% per month (compounded and computed daily). Advertiser shall pay reasonable expenses and attorneys’ fees Mobe incurs in collecting late payments.
5.12 All charges due to Mobe under this Agreement will be exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes“). Advertiser will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder, other than any taxes based on Mobe’s net income. If Advertiser is required by any law or regulation to make any withholding or deduction from fees payable to Mobe on account of any Taxes, Advertiser shall, together with the relevant payment, pay such additional amount and will ensure that Mobe receives an amount equal to the sum it would have received if no such withholding or deduction had been required. Upon Advertiser’s request, Mobe shall provide it with such available information and documents as reasonably necessary for obtaining an exemption from the withholding or deduction of amounts or for a refund of the amounts withheld or to be withheld by Advertiser on the account of taxes, duties or levies under any applicable tax jurisdiction.
5.13 Advertiser must ensure that any payment mechanism (e.g. credit card, direct transfer, etc.) which Advertiser elects to utilize remains current and operable throughout the term of the applicable Service. Advertiser shall be responsible for any fees and/or charges that Mobe may levy upon Advertiser because of late or delinquent payments resulting from invalid payment authorization.
6. Intellectual Property
6.1 Without limiting the rights herein, Advertiser shall have all right, title and interest in its Creative. Mobe retains all right, title and interest in the Proprietary Rights in the Service, as well as any derivative therefrom, and Mobe’s Publishers retain all right, title and interest in the Proprietary Rights in the Inventory. If Advertiser provides Mobe with any feedback regarding the Service, Mobe may use all such feedback without restriction. Nothing herein shall be interpreted to provide Advertiser any rights in the Service and/or the Inventory except the limited right to use the Service as set forth herein.
6.2 In the event Mobe develops any Creative and/or Ads for Advertiser, or in the event any content provided by Mobe (such as logos, designs, or other promotional artwork) is used to create such Creative and/or Ads, whether by Mobe or any third party, then Mobe retains all right, title and interest in the foregoing.
6.3 Nothing in this Agreement shall be construed as providing the Advertiser a right to use any of Mobe or its affiliates’ trade names, trademarks, service marks, logos, or other distinctive brand features. Mobe reserves all rights in the Service not expressly licensed above. You agree that your use of any components of the SDK that are licensed under an open source software license are subject to and governed solely by the terms of the applicable license(s) for that software, and not by this Agreement.
7.1 Mutual Warranties. Each Party represents and warrants that (a) it is duly organized under applicable law and has sufficient authority to enter into this Agreement and that, (b) the execution and performance under this Agreement does not conflict with any contractual obligations such party has to any third party.
7.2 Mobe Warranties. Mobe represents and warrants that the Service (a) does not, to the best of its knowledge, infringe the intellectual property rights of any third party, (b) comply with all applicable law and regulations; (c) does not to the best of its knowledge contain any Malicious Code.
7.3 Mobe reserves the right, in its sole discretion and without liability, to reject or remove any Ads or Creative from the Service. Advertiser acknowledges that any campaign may be terminated or suspend, whether by Mobe or its Publishers, at any time and without notice to Advertiser. Advertiser hereby acknowledges that Mobe is providing the Service as an intermediary between Advertisers and Publishers and as such Mobe shall not be held responsible or liable for any actions or omissions performed or omitted by any third parties (including with respect to the content of the Creative or Ads, or the Inventory).
7.4 Advertiser Warranties.
7.4.1 Advertiser represents and warrants that the Creative does not contain any Objectionable Content.
7.4.2 The Advertiser is responsible for the content of any Creative, including with respect to complying with applicable laws and regulatory guidelines, including age-gating where necessary, as well as any additional guidelines issued by Mobe.
7.4.3 Advertiser represents and warrants that:
i. It is properly licensed and obtained sufficient rights to submit the Creative pursuant to this Agreement;
ii. It shall submit the Creative in accordance with any technical specifications provided by Mobe;
iii. Any information the Advertiser provides Mobe (including contact information or payment information) will at all times be complete and accurate, and will be maintained up-to-date at all times.
iv. It shall make available to Mobe, upon request, with any information relating to the Ad Campaign, and shall ensure that the distribution or promotion of the Ads is in compliance with the Campaign Conditions.
7.4.4 Advertiser further represents and warrants that it will not:
i. Promote any mobile applications (“Application“) which are not available for download on the applicable Store. Upon removal of an Application from the Store, Advertiser shall promptly inform Mobe of such occurrence and immediately cease to run the Ad Campaign associated with such Application.
ii. Use the Service to syndicate, mediate or broker campaigns or the distribution of Ads through other third parties or affiliates, without the express written approval of Mobe, except where the Advertiser has entered into a direct relationship with the third party or affiliate where from the Ads are sourced.
iii. Copy, decompile, disassemble, adapt, translate, create derivatives works of, reverse engineer or attempt to find the underlying source code of, the Service;
iv. Modify, change, edit, amend, truncate, alter, disable, bypass or reorder any aspect of the Service or the Inventory, or in any other way manipulate the Service in any way;
v. Sell, re-sell, lease, rent, sublicense, distribute, display or make any other use of Service or the Inventory, except as expressly permitted hereunder;
vi. Remove or obscure any credits, watermarks, tradenames, trademarks, logos, service marks or copyright notices set on the Ads;
vii. Use the Service to create (or facilitate the creation of) any product or service that is competitive with the Service;
viii. Copy, crawl, index, cache or store any information derived by Mobe, except as expressly permitted hereunder, or otherwise use robots, spiders, scraping or other technology to access or use the Service to obtain any information beyond what Mobe provides Advertiser under the Agreement.
ix. Engage in any action or practice that disparages or devalues Mobe, or the reliability, reputation or goodwill of Mobe or its affiliates, or engage in any action or practice that might impede the performance, reliability or quality of the Service.
7.4.5 To the extent any of the restrictions set forth above are not enforceable under applicable law, Advertiser shall inform Mobe in writing prior to engaging in any of the applicable activities.
7.4.6 Advertiser acknowledges and agrees that at any time during the term of the Agreement, if Mobe believes, in its reasonable discretion, that Advertiser or anyone on its behalf is engaged in any conduct or activity which is prohibited under this Agreement, Mobe or any of its Publishers reserve the right without prior notice to Advertiser to (i) remove or reject and Ads and/or Creative, or suspend or terminate any Ad Campaign or Survey Campaign , or take any measures needed to prevent or correct such conduct or activity from being used in connection with the Service, without any liability to Advertiser whatsoever as a result of any of the foregoing actions taken by Mobe or its Publishers.
8.1 During the Term and thereafter, each party agrees that it will not disclose or use the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own Confidential Information, during the Term and for a period of three (3) years thereafter to prevent the disclosure of the Disclosing Party’s Confidential Information other than to its employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for such Party to perform its obligations or exercise its rights hereunder, who will each agree to comply with this section.
8.2 Upon termination or expiration of this Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all materials containing Confidential Information.
9. Data Protection
9.1 Advertiser warrants and represents that it:
9.1.2 Except where authorized by Mobe, shall collect and use the User Data only on an anonymous basis, and shall not collect, use or share any User Data which may be considered as personal data under applicable laws and regulations, for the purpose of delivering Ads, retargeting users or constructing profiles of end users;
9.1.6 Advertiser shall use User Data and Campaign Data solely to the extent necessary for the performance of this Agreement, and/or on an aggregated basis for its internal business analysis or internal reporting.
10. Campaign performance and Mobe website information and claims
10.1 It is fully understood by Advertiser that Mobe does not guarantee campaign performance and that any claim’s made on Mobe’s website are for marketing purposes and not meant to represent future performance for any advertiser.
10.2 Advertiser acknowledges that Mobe’s experience as stated on the Mobe website and all of its marketing materials and marketing collateral, including but not limited to number of app launches, app ranks achieved, number of downloads achieved, client logos, number of users are for marketing purposes only and do not represent any claims of future performance for any and all of Advertiser’s campaigns by Mobe.
103. Advertiser acknowledges that all third party logos represented on Mobe’s website and all of its marketing materials and marketing collateral, including but not limited to app clients’ logos and past Mobe projects, represent both direct and indirect experience by Mobe, its affiliates, its employees, its third party vendors, traffic sources, programmatic platforms, ad networks, publishers and other. Advertiser fully understands that Mobe makes no claim to have worked with all the companies, apps, or third party vendors listed on its web site and all of its marketing materials and marketing collateral.
11.1 Mobe Indemnification. Mobe shall defend, indemnify and hold harmless Advertiser (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees; collectively “Damages“)) which Advertiser may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party (“Claim“) arising from: (a) any breach of Mobe’s obligations, representations or warranties herein; or (b) a claim that the underlying technology of the Service infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Mobe shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Service not in compliance with this Agreement or applicable law, (b) the combination of the Service with any code or services not provided by Mobe, (c) the modification of the Service by any party other than Mobe.
11.2 Advertiser Indemnification. Company shall defend and indemnify Mobe (and its affiliates, officers, directors and employees) from and against any and all Damages which Mobe may suffer or incur in connection with any Claim arising from: (a) any breach of Advertiser’s obligations, representations or warranties herein; (b) any use of the Service in violation of any applicable law or regulations; and (c) the Creative.
11.3 Procedure. The obligations of either Party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought (provided that the indemnified party’s failure to notify the indemnifying party will not diminish the indemnifying party’s obligations under this Section 12 except to the extent that the indemnifying party is materially prejudiced as a result of such failure), (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
12. Disclaimer of Warranties
12.1 Except as expressly provided herein, Advertiser accepts the Mobe Service on an “AS IS” and “AS AVAILABLE” basis, and acknowledges that Mobe makes no other warranty and disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
12.2 Mobe does not guarantee that the Service will always be complete, accurate, safe, secure, bug-free or error-free, or that the foregoing will always function without disruptions, delays or imperfections, nor that performance will always be as requested by advertiser. Mobe may change, suspend or discontinue the Service at any time, including the availability of any feature or database, without notice or liability. In addition, Mobe may modify, remove or limit certain features or restrict the Advertiser’s access to the Service without notice or liability.
13. Limitation of Liability
13.1 In no event shall Mobe, its directors, officers, affiliates or agents be liable for any consequential, indirect, special or punitive damages, arising out of or relating to the Service or the arrangements contemplated herein.
13.2 Except for intentional misconduct or gross negligence, Mobe’s entire liability for the provision of the Service or under any provision of this Agreement shall not exceed the amount of payment received by Mobe from Advertiser in the three (3) months preceding the applicable claim.
14. Term and Termination
14.1 The term of this Agreement shall commence on the Effective Date and shall continue until terminated by either Party pursuant to the Insertion Order or Agreement (“Term“). Either Party may terminate the Agreement at any time by providing a prior written notice to the other Party, without liability to the other Party with a 24 hour written advance notice. Upon any termination or expiration of the Agreement, Mobe will cease providing the Service and all licenses and rights provided herein shall be revoked. In the event of any termination (a) any outstanding amounts due to Mobe shall be paid without delay to Mobe. Any obligations of the Parties that by their nature are intended to survive the termination or expiration of this Agreement, including the obligations of the Parties in Sections 3 and 5 – 14 of this Agreement, shall survive any termination thereof.
15.1 Updates. If Mobe provides Advertiser with any upgrades, patches, enhancements, or fixes for the Service (“Updates”), or if Mobe notifies of such Updates through its platform or integration section, then such Updates will become part of the Service and subject to this Agreement. The Company is required to use the most updated and current version of the Service upon such notice. Mobe shall have no obligation, however, under this Agreement to provide any Updates or any other support to the Advertiser for the Service.
15.2 Modifications. Mobe makes no guarantees with respect to the availability or uptime of its Service, however Mobe shall use its reasonable commercial efforts to ensure that the availability or uptime of the Service shall meet industry standards. Mobe may change the method of access to the Service at any time. In the event of degradation or instability of the Service or an emergency, Mobe may, in its sole discretion, temporarily suspend Advertiser’s access to the Service.
15.3 Publicity. During the Term, Mobe may refer to Advertiser as a customer of Mobe, including by displaying Advertiser’s name and logo on Mobe’s website and other marketing materials.
15.4 Entire Agreement and severability. This Agreement and any amendments thereto, and any additional agreements Advertiser may enter into with Mobe, represent the entire and complete agreement between the Parties regarding the subject matter hereof and supersedes any and all other agreements between the Parties, whether written or oral, regarding the subject matter hereof. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
15.5 Headings. The sections and paragraphs headings in this Agreement are for convenience only and shall not affect their interpretation.
15.6 Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect.
15.7 Force Majeure. Either Party shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond its reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
15.8 No waiver. The failure of either Party to exercise any right provided for herein shall not be deemed a waiver of any further rights hereunder. All waivers must be in writing. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Mobe may provide Advertiser with notices required hereunder by contacting Advertiser at any email address Advertiser provided, including in its registration information.
15.9 Notices. Mobe reserves the right to determine the form and means of providing notifications to you, and Advertiser agrees to receive legal notices electronically if Mobe so choose. Mobe may send Advertiser marketing communications, from time to time, relating to our business or the businesses of carefully-selected third parties. By providing us your contact details (whether through an online registration form, or in any other way) Advertiser specifically agree to this. Advertiser may unsubscribe at any time from such marketing communication.
15.10 Amendments. Mobe may revise this Agreement from time to time, in its sole discretion, and the most current version will always be posted on Mobe’s website (as reflected in the “Last Revised” heading). By continuing to access or use the Service after any revisions become effective, the Advertiser agrees to be bound by the revised Agreement.
15.11 Assignment. Advertiser may not assign any of its rights or obligations under this Agreement without the prior written consent of Mobe, except in the event of an assignment by Advertiser to a purchaser of all or substantially all of the Advertiser’s assets or share capital, in which event the Advertiser shall provide Mobe with written notice of the assignment. Assignment in violation of the foregoing shall be void.
15.12 Governing law. This Agreement shall be governed by the laws of the state of California, USA, and the competent courts in the county of Los Angeles shall have exclusive jurisdiction to hear any disputes arising hereunder.