DataLift Terms and Conditions

DataLift DSP Terms of Service

By signing an Order Form that references these Terms of Service, you agree to these Terms of Service.

1.0 DEFINITIONS AND INTERPRETATION

1.1 In these Terms of Service, unless the context otherwise requires, the following expressions shall have the meanings set out against them :

Ad Inventory” or “Inventories” means advertising space on, within or associated with Publisher Sites or applications offered through the Auction Platform.

Auction” means a real-time auction through the Auction Platform for the placement of Creatives on Placement.

Auction Platform” means that technology licensed or created by AppLift on which a Registered Bidder may Bid for Ad Inventory.

AppLift Marks” means AppLift's trademarks, service marks, and logos.

Bid Request” shall mean the HTML encoded text sent from AppLift to Partner offering a single Impression of Ad Inventory for purchase in real-time.

Campaigns” shall mean marketing, advertising or public relations-related activities through which organizations such as Partner reach their target audience.

"Confidential Information" means: (i) trade secrets, business plans, strategies, methods and/or practices; (ii) computer systems architecture and network configurations; (iii) any and all information which is governed by any now-existing or future non-disclosure agreement between the Parties hereto; (iv) any other information relating to a Party that is not generally known to the public, including information about such Party’s employees, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (v) any and all analyses, compilations, studies, notes or other materials prepared that contain or are based on Confidential Information received from a Party.

Content Guidelines” shall refer to the Ads Content Guidelines.

Creative” or “Ad” means the creative or advertisements in graphic, video, video companion banners or text file(s) provided by Partner to AppLift to be displayed by on Placement on behalf of Partner.

Partner Bid” is the price that Partner offers to AppLift for an Impression in the RTB auction, in response to a Bid Request.

End-User” shall mean any visitors to, or users of, Publisher Sites accessed through a Mobile Device.

Floor Price” means the price as determined by a specific Publisher or as determined by AppLift based on various historical or other performance indicators.

Impression” means the time a Creative is served to, and received by, an End-User viewing the Placement as measured by AppLift.

Other Fees” mean such other fees as may be agreed in writing between the Parties and shall include without limitation “Data Service Fees” and “Special Inventory Fees”.

Platform Service Fee” is the amount AppLift will invoice Partner for the usage of the Auction Platform, and is computed as a percentage of the sum total of Clearing Bid Prices at the end of each calendar month.

Platform Services” shall mean the services as defined herein and described hereto under Clause I of the Order Form.

Publisher” shall mean an entity or an individual (including AppLift where applicable) that owns or makes available mobile website(s) or mobile application(s) for the purposes of offering for sale the Ad Inventory.

Publisher Site(s)” shall mean the websites, mobile websites, applications, mobile applications, portals, games, devices owned by AppLift or managed by AppLift on behalf of Publishers, and where the Ad Inventory is located.

Placement” mean those Publisher Sites for which the Partner has placed a Partner Bid for Impressions.

Term” means the term of the Agreement as defined in Clause IV. of the Order Form.

Timeframe” shall mean the period of time set by AppLift and communicated in the Tech Specs within which the Partner Bid must be sent in response to a Bid Request.

Total Sum” means the aggregate of all sums due and payable to AppLift for services rendered under the Agreement including without limitation the Platform Fee, the Platform Set-up Fee, the Platform Service Fees and Other Fees and the Clearing Bid Price.

Winning Bid” means a bid for an Impression that is selected as the winning bid by the Auction Platform.

Clearing Bid Price” means the price at which the Auction Platform awards Impressions to a bidding party and shall be as determined in Clause 2.4.

Winning Bidder” means the Partner that participates in an Auction and is selected as the winning bidder by the Auction Platform according to the rules and procedures set forth in these Terms of Service.

1.2 In these Terms of Service:

(a) Words importing the singular number include the plural and vice versa where the context so requires. Words importing a particular gender shall include all the genders;

(b) Words importing persons shall include firms (whether incorporated or unincorporated) and corporations;

(c) A reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted whether before or after the date of the Agreement so far as such modification, re-enactment or consolidation applies or is capable of applying to any transactions entered into in accordance with the Agreement prior to Completion and (so far as liability thereunder may exist or can arise) and shall include all by-laws, instruments, orders, rules and regulations made thereunder;

(d) A reference to a document includes an amendment or supplement to or replacement or novation of that document;

(e) The Agreement is written in English and, if it is translated into any other language, the English-language version shall control.

1.3 Any express statement of a right of a party under the Agreement is without prejudice to any other right of that party provided under the Agreement or arising at law or in equity.

1.4 References to a date or time in the Agreement shall be a reference to that date or time in Germany unless otherwise indicated.

2.0 THE AUCTION PLATFORM AND PLATFORM SERVICES

2.1 Licence to Access and Use the Auction Platform.

(a) Licensed Purposes. Subject to the terms and conditions of these Terms of Service, AppLift hereby grants to Partner, for the Term of the Agreement, a limited, royalty-free, non-exclusive, non-transferable, non-assignable licence to access and use the Auction Platform as hosted by AppLift, for the purpose of bidding for Impressions of Ad Inventory for delivery on Placement (the “Licensed Purpose”). Except as expressly provided herein, Partner shall not license, sublicense, sell, resell, lease, transfer, reverse engineer, decompile, disassemble, assign, distribute or otherwise exploit or make available the Auction Platform or Platform Services to any third party, without the prior written approval of AppLift, except to the extent that such restrictions are expressly prohibited by applicable law. Without prejudice to any other rights of AppLift, the licence for Partner to use the Auction Platform and Platform Services for the Licensed Purpose shall terminate immediately in the event that Partner violates any provision of the Agreement or the Agreement is terminated pursuant to Clause 5 hereof.

(b) Contractual Relationship. No contractual relationship is established between AppLift and the Partner’s clients and/or advertisers (“Partner Advertisers”). Partner shall remain AppLift’s sole point of contact for the use of Platform Services. All requests for services shall be made by Partner’s employees. All sums owed by Partner shall be due and payable by Partner.

(c) The Auction Platform and the Platform Services shall be accessed only by employees of Partner.

(d) Intellectual Property Rights. Partner agrees and acknowledges that AppLift shall remain the sole owner of, and retain all right, title and interest in, the Auction Platform, the Platform Services, the AppLift Marks, and/or all intellectual property and documentation provided to Partner pursuant to these Terms of Service. Except as provided in Clause 2.1(a) above, no licence to use any intellectual property rights of AppLift are granted to Partner or shall be implied hereunder.

2.2 Right to Reject Ads.

Partner acknowledges that AppLift is entitled to reject Ads where AppLift, in its sole discretion, believes that such Ads do not comply with the Content Guidelines as specified in Appendix I.

2.3 Conduct of Auction.

(a) The Clearing Bid Price and Winning Bidder will be determined by an auction mechanism that takes into consideration the Partner Bid, the bids of other participants in the Auction Platform for the same Impressions, and the Floor Price, if any. The Clearing Bid Price will not be greater than the highest bid of the auction or less than the Floor Price.

(b) By placing a bid on the Auction Platform, Partner irrevocably agrees to pay the Clearing Bid Price in the event Partner is determined to be the Winning Bidder. Partner will be the Winning Bidder of each Auction in which Partner submits the highest Bid, provided that the Bid of Partner exceeds the Floor Price, if any. The Clearing Bid Price for each such Auction shall be equal to the higher of: (i) the sum of the second-highest Bid submitted in the Platform Auction plus US$[0.01] or (ii) the Floor Price. Notwithstanding anything to the contrary herein, the Clearing Bid Price is exclusive of applicable taxes or other governmental fees, levies or duties, which, if applicable, shall be paid by Partner.

2.4 Login Credentials, APIs and Bidder IDs. AppLift will provide Partner with a user name and password that Partner must use in order to gain access to the Auction Platform (the “Login Credentials”) and the application program interface (“API”) needed to link Partner's systems with the Auction Platform for placing Bids. AppLift will also provide Partner with a bidder identifier that must be used in connection with each Bid submitted by Partner (the “Bidder ID”). Partner hereby assumes all responsibility and liability associated with the use of such Login Credentials, API and Bidder ID by Partner, its employees, or any other persons to whom Bidder or any of its employees disclose such information and any persons or automated systems which access the Auction Platform and/or place Bids using the Login Credentials or Bidder ID. Partner will inform AppLift as soon as he becomes aware that unauthorized third parties have access to the Login Credentials or the Bidder ID. Partner is responsible for keeping the Account information provided to AppLift current, complete and accurate, and Partner acknowledges and agrees that AppLift will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.

2.5 Partner Obligations. Partner shall provide AppLift with all Creatives in such format as shall be required by AppLift (the “Ad Code”). Partner grants to AppLift a non-exclusive, worldwide, transferable license to use and deploy the Ad Code and Creatives in connection with AppLift’s obligations under this Agreement.

2.6 Services.

(a) Partner understands and agrees that from time to time the Auction Platform may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which AppLift may undertake from time to time; or (iii) causes beyond the control of AppLift or which are not reasonably foreseeable by AppLift, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion, or other failures. While AppLift will attempt to provide access to the Auction Platform on a continuous basis, Partner acknowledges and agrees that AppLift has no control over the availability of the Auction Platform on a continuous or uninterrupted basis and any failure resulting from technical difficulties does not represent a failure by AppLift to meet its obligations of this Agreement. All this unless otherwise specified in the Support and Service Level Agreement in Appendix II.

(b) Partner also understands and agrees that AppLift is not responsible for the functionality of any third-party website or interface over which it does not exercise control including the Publisher Sites unless explicitly stated otherwise in these Terms of Service.

(c) Terms of this Agreement are subject to AppLift hardware, software, and bandwidth traffic limitations. The Support and Service Level Policy in Appendix II applies.

(d) AppLift reserves the right to discontinue offering any of the functions on the Auction Platform and/or Platform Services at any time. AppLift inform Partner about the discontinuation of a faction with at least 30 days prior notice. Partner has the right to terminate this Agreement with immediate effect if the discontinuation of a function is unreasonable when accounting for Partner’s interest.

(e) Except as otherwise specified by AppLift, Partner agrees that it will direct all communications relating to any Auction Platform, Platform Services, Ad, Publisher, or its participation therein directly to AppLift and not to any other entity.

2.7 Use of the Services.

(a) Partner shall only use the Auction Platform in accordance with the Licensed Purpose, the terms and conditions and the legitimate purposes as envisaged under the Agreement, especially the Ads Content Guidelines. Any unapproved use will be considered a breach of the Agreement.

(b) Partner must not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, services or benefits obtained from the Auction Platform, except as expressly provided herein.

(c) At all times, Partner remains solely responsible for its information, unless AppLift has expressly overtaken responsibility pursuant to the Agreement.

3.0 PAYMENT

3.1 General. AppLift will render an invoice for the Total Sum via email to an email address specified by Partner. The Total Sum shall be due and payable immediately and Partner shall make payment of the invoice no later than fifteen (15) calendar days from the date of issue of invoice (“Invoice Date”). Any dispute concerning the amount of any invoice must be raised within seven (7) days of the Invoice Date failing which the invoice amount shall be presumed to be correct. Payment shall be denominated in US dollars and paid by any of the payment methods set out in invoices provided by AppLift to Partner on a monthly basis. AppLift may from time to time notify Partner in writing of any change of payment methods and/or information and upon receipt of notice of such change then Partner shall make all payment using the new payment methods and/or information as notified. AppLift will notify Partner about any changes to the payment methods at least two monthly invoices in advance if the old payment method is completely discontinued. Partner has to object to the new payment method at least one monthly invoice in advance and terminate the Agreement pursuant to Section 5.2 (a). If Partner does not object, the new payment method is accepted. Changes to payment information are not changes to payment methods.

All amounts invoiced for the Clearing Bid Price shall be based solely on data generated and provided by AppLift, including Impressions and Campaigns delivered.

Partner shall not dispute such amounts invoiced unless there is clear and obvious error.

However, any measured deviation from the service availability committed by AppLift as ascribed in the Support and Service Level Policy, shall be applied in accordance with the conditions set forth therewith.

3.2 Platform Fees. The Platform Setup and Service Fees are defined in the Order Form

3.3 Taxes. All such payments to be made to AppLift under this Agreement shall be free from any deduction or withholding (whether in respect of set off, counterclaim, duties, tax including turnover tax, value added tax, goods and services tax, withholding tax, charges or otherwise whatsoever).

4.0 REPORTING AND USE OF DATA

4.1 Data Privacy. Each Party agrees to comply with all relevant and applicable privacy policies; laws and regulations as they may change from time to time (“Relevant Privacy Regulations”). Each Party agrees to post on its respective website its privacy policies, which shall comply with the Relevant Privacy Regulations.

4.2 Use and collection of Data. The Parties agree that certain End-User Data as well as Site Data may be generated in connection with AppLift Platform Services. For the purposes of these Terms of Service:

(i) “End-User Data” means any individual element of information of an identified or identifiable End-User (including but not limited to name, email address, IP address, device identifier or other such unique identifiers, various demographics, location or similar End-User information and any other information disclosed by or otherwise collected from an End-User and combined with any of the foregoing identifiers);

(ii) “Site Data” shall mean such data including but not limited to Publisher Sites, publisher click-stream, publisher type, brand and content, statistic data regarding number of impressions, Ads, clicks and similar performance related data.

(iii) “Data” shall mean End-User Data and Site Data.

4.3 Collection, Storage and Use of Data and Confidentiality Obligation. Under these Terms of Service any Data shall be seen as Confidential Information of AppLift and Partner, and Partner is allowed neither to store nor to use any of such Data except for the purposes of performing its obligations under the Agreement. Further, Partner understands that any Data received by Partner from AppLift in connection with the use of the AppLift Platform Services shall be exclusively limited to the use solely as agreed and permitted herein and exclusively for the purposes of the Agreement. Partner undertakes to delete all Data received through the AppLift Platform Services after termination of the Agreement or if the data is no longer necessary to perform an obligation under the Agreement.

Partner shall refrain from using the Data for the purposes of creating divisions or segments regarding End-User profiles and/or End-User targeted segments. The non-winning Bidder is prohibited to store any of the Site Data and/or End-User Data. The non-winning Bidder shall remove all and any Data received from AppLift through the Auction Platform.

4.4 Transfer and Ownership of Data. Partner understands that under no circumstances it is allowed to transfer, share, sell or assign to or with any third parties any of the Data provided by AppLift or use the Data to create various derivatives. Further, it is agreed and understood between the Parties that AppLift, to the extent permitted by law, owns and retains all the rights on the Data.

4.5 Auditing. AppLift reserves the right, no more than once in any twelve (12) month period, with prior written notice of not less than thirty (30) days, to request for an audit of Partner’s log files or other directly relevant records, for the purpose of verifying Partner’s compliance and use of Data under the Agreement. AppLift will pay the cost for the audit unless audit reveals a misuse of data which is not compliant with this agreement.

5.0 TERMINATION

Either Party may terminate the Agreement for any reason whatsoever upon thirty (30) days prior written notice to the other Party.

Notwithstanding the foregoing, the Agreement may be terminated immediately by either Party upon a material breach by the other Party; provided, however that if the breach is curable, the other Party may only terminate the Agreement if the Party in breach fails to cure such breach within thirty (30) days from receipt of written notice from the other Party.

Either Party has the right to terminate the Agreement immediately by written notice if:

(i) The other Party ceases or threatens in writing to not carry on its business;

(ii) The other Party is the subject of a bankruptcy order or becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors or if any of the other Party’s assets are the subject of any form of seizure, or the other Party goes into liquidation either voluntary (otherwise than for reconstruction or amalgamation) or compulsory that is not dismissed within ninety (90) days, or a receiver or administrator is appointed over the other’s assets.

5.3 Effect of Termination. Without prejudice to all other rights of the Parties for antecedent breach, upon termination or expiration of the Agreement, (a) all licences granted to Partner hereunder shall immediately terminate; (b) Partner shall cease to access the Auction Platform and/or use the Platform Services; and Partner shall pay AppLift all amounts due and owing to AppLift immediately.

5.4 Survival of Obligations. Clauses 5, 7, 8, 9 and 12.1 of these Terms of Service, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement. Clause 8 shall not survive for longer than five years after expiration or termination of the Agreement.

6.0 LIMITATION OF LIABILITY

(a) AppLift shall be liable under the terms of the Agreement only in accordance with the provisions set out in Clauses 6 (a) (aa) to (ee). Except in case of intent or gross negligence, any liability of AppLift shall be disclaimed. The same applies in case of slight negligence by agents or assistants in performance. However, the foregoing does not apply in the following cases:

(aa) AppLift shall be unrestrictedly liable for losses caused intentionally or with gross negligence by AppLift, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance; in respect of gross negligence of other assistants in performance AppLift’s liability shall be as set forth in the provisions for simple negligence in (Section 6 (a) (ee) (ii) ) below.

(bb) AppLift shall be unrestrictedly liable for death, personal injury or damage to health caused by the intent or negligence of AppLift, its legal representatives or assistants in performance.

(cc) If AppLift provides a warranty it shall be liable for losses arising from the lack of any warranted characteristics up to the amount which is covered by the purpose of the warranty and which was foreseeable for Licensor at the time the warranty was given.

(dd) AppLift shall be unrestrictedly liable in accordance with the German Product Liability Act in the event of product liability.

(ee) AppLift shall be liable for losses caused by the negligent (including simple negligence) or intentional breach of its primary obligations by Licensor, its legal representatives or assistants in performance.

(i) Primary obligations are such basic duties, which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Partner may rely.

(ii) If AppLift breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by AppLift at the time the respective service was performed.

(iii) Damages shall be restricted to 5 times the fees provided under this Agreement in the past twelve (12) months.

(b) Subject to Clause 6 (a) and other than in case of intent AppLift does not accept any liability under or in relation to the Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any indirect damage and consequential damage, in particular, not for loss of profit, interruption in business and/or interruption of operations at Partner or its customers, unless explicitly specified otherwise in the Agreement.

6.1 Under no circumstances shall AppLift be liable to Partner whether in tort (including for negligence), contract, misrepresentations or otherwise for any loss of profit, loss of business, loss of income, loss of customers or any indirect, incidental, consequential, special, or exemplary damages (even if AppLift was or should have been aware or was advised of the possibility of such damages), arising from any aspect of the relationship provided herein. In no event shall AppLift’s total aggregate liability arising out of or in connection with the Agreement or from the use of or inability to use the Auction Platform or Platform Services exceed the revenue actually retained by AppLift under the Agreement in the last six (6) months immediately preceding the date on which the claim arose or one hundred dollars (USD100) if Partner has not paid any amounts to AppLift. These limitations of damages are fundamental elements of the basis of the bargain between the Parties. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply. In that event, our liability will be limited to the fullest extent permitted by applicable law.

6.2 Release. Partner agrees to release AppLift and its officers, directors, managers, members, agents, affiliates and employees from claims, demands and damages of every kind and nature, known and unknown, arising out of or in any way connected with a dispute arising between Partner and one or more publisher.

7.0 INDEMNIFICATION & REMEDIES

7.1 Indemnification by Partner. Partner hereby agrees to indemnify, defend, and hold harmless AppLift and its officers, directors, managers, members, agents, affiliates and employees from all claims, actions, losses, expenses, damages, costs (including, without limitation, reasonable or statutory attorneys’ fees) or liabilities (including liability for Partner’s infringement of a third party’s intellectual property) in connection with: (i) the Creative; (ii) the Ad Code; (iii) Partner’s breach of term, condition, representation or warranty under the Agreement; and (iv) the acts or omissions of Partner or a third party under Partner’s control.

7.2 AppLift’s Remedies. In the event of a breach of any provision of the Agreement by Partner, including without limitation Partner’s failure to timely pay the fees, Partner agrees that, in addition to pursuing any other rights or remedies available at law or in equity, AppLift may temporarily suspend Partner’s access to the Auction Platform, its use of Platform Services and/or prevent Partner from placing Bids in connection with the Auctions.

8.0 CONFIDENTIALITY

8.1 Definitions and Obligations. Each Party agrees to: (i) use the Confidential Information of the other Party only for the purposes of exercising rights or performing obligations in connection with the Agreement; and (ii) protect from disclosure to any third party any Confidential Information; and (iii) treat and maintain in full confidence all Confidential Information.

8.2 Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to recipient; (ii) was or becomes generally available to the public through no fault of recipient; (iii) was rightfully in recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to recipient; or (iv) was developed by the recipient independently of, and without reference to, the Confidential Information.

8.3 Confidential Information may be disclosed only to: (i) employees and agents of the Parties that have a need to know such information in the course of their duties (and with respect to agents, who are under a contractual duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 8); (ii) legal or financial advisors or potential acquirers of each of the Parties on a need to know basis (provided that such advisors and/or acquirers are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 8); (iii) the applicable Publisher and/or Advertiser (provided that such Publisher and/or Advertiser are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 8); or (iv) if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable prior written notice to the Disclosing Party (if legally permissible) and uses commercially reasonable efforts to cooperate with the Disclosing Party’s attempt to obtain a protective order). Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information that is in the possession of the Receiving Party.

8.4 The Recipient acknowledges damages alone will not be an adequate remedy for the breach of its obligation under this Clause 8 and that the appropriate remedies for such a breach or threatened breach shall include, at the election of the Disclosing Party, orders for specific performance and injunctive relief, in addition to all other remedies available to them at law or in equity.

9.0 REPRESENTATIONS AND WARRANTIES

9.1 Partner Representations and Warranties. Partner represents and warrants that:

(a) Partner has all necessary right, title and interest in the Creative(s) and Ad Code(s), and/or that it has obtained all consents, licenses, permissions and releases necessary to use the Creative(s) and to utilize the Ad Code(s) in the manner as envisaged in these Terms of Service;

(b) The Creative(s) and Ad Code(s) do not, and will not, violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right or constitute a defamation or libel of AppLift or any third party and will not result in the obligation of AppLift to make payment of any third party licensing fees;

(c) Partner shall comply with the Content Guidelines; and

(d) Pursuant to the license granted by Partner to AppLift in Clause 2.4 above, AppLift has all necessary right, title and interest in the Creative(s) and Ad Code(s) to perform its obligations under the Agreement, including without limitation placing the Creative(s) on the Placement and utilizing the Ad Code(s) as provided herein.

9.2 AppLift’s Warranties. AppLift warrants and represents that it is the sole owner of the Auction Platform and has secured all necessary licenses, consents and authorizations for operation of the Platform Services;

9.3 Mutual Representations and Warranties. Each Party represents and warrants to the other that (i) it has the full right, power, and authority to enter into the Agreement; (ii) the execution of the Agreement and performance of its obligations under the Agreement do not and will not violate any other agreement to which it is a party; and (iii) the Agreement constitutes a legal, valid and binding obligation when agreed to.

10.0 NO OTHER WARRANTIES AND GUARANTEES

The services of AppLift under the Agreement are provided on an “as is,” “where is,” and “as available” basis, and, to the maximum extent permitted by law, AppLift excludes, and Partner hereby waives, all representations and warranties, express or implied, arising by operation of law or otherwise, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and title, as well as any warranties arising from a course of dealing, usage or trade practice. AppLift further disclaims any warranties regarding the security reliability, timeliness, and performance of the auction platform, ad inventory, or Placement. Partner understands and acknowledges that there is no guarantee that any minimum level of revenue, or any revenue, will be generated as a result of the Agreement.

AppLift will use commercially reasonable efforts to ensure no ad is placed on a Publisher Site that violates the Content Guidelines, AppLift does not guarantee and therefore shall not be held liable whether the content of the Publisher Sites meet such guidelines and Partner understands that AppLift only facilitates transactions between Publishers, Partner and advertisers. AppLift has no responsibility to regularly review the Publisher Sites or content provided by its Publishers.

11.0 GOVERNING LAW & JURISDICTION

The Agreement shall be governed by and construed in accordance with the laws of Germany. Each Party irrevocably submits to the exclusive jurisdiction of the German courts in Berlin over any claim, dispute or matter arising under or in connection with this Agreement or its enforceability.

12.0 GENERAL PROVISIONS

12.1 Non-Solicitation.

(a) During the term of the Agreement, Partner will not induce, or assist in the indictment of, any employee of AppLift or any of its affiliates. This shall apply to the extent permissible under Sec. 75f of the German Commercial Code

(b) This obligation shall continue for twelve (12) months after any termination of the Agreement becomes effective or the Agreements ends otherwise.

12.2 Binding. The Agreement shall inure to the benefit of, and be binding upon, the Parties hereto, together with their respective legal representatives, successors, and assigns.

12.2 Force Majeure. Neither Party shall be liable for delay or default in the performance of its obligations under the Agreement if such delay, stoppage or default is caused by conditions beyond its reasonable control which prevents or substantially limits performance, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, acts of God, or labour disputes. If a Party claims occurrence of the Force Majeure event, it will promptly notify the other Party of such in writing giving the reasons for, and the expected period of any delay or stoppage of the other Party’s performance. Either Party may, if the delay or default or stoppage caused by the Force Majeure Event continues for more than 30 continuous days, terminate the Agreement with immediate effect by giving written notice to the other Party and both Parties will be discharged from any future liability to perform and neither Party will be liable to the other Party for such termination or the consequences thereof.

12.3 Waiver. No failure or delay by AppLift to exercise any right, power or privilege under the Agreement or any other documents called for by the terms of the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or privilege preclude any further exercise thereof or of any right, power or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.

12.4 Notices. All notices, requests, approvals, demands and other communications hereunder must be in writing and shall be deemed given: (i) if delivered personally, on the date given; (ii) sent via facsimile; (iii) if delivered by a courier express delivery service, on the date of delivery or (iv) if by certified or registered mail, postage prepaid, return receipt requested, five (5) days after mailing, to the applicable party at the applicable address contained herein, or at such other addresses as such party may designate by notice in the manner aforesaid given at least fifteen (15) days before the effective date of such change.

12.5 Severability. In the event that any or any part of the provisions contained in the Agreement is determined to be invalid, unlawful or unenforceable to any extent, such provision shall be severed from the remaining provisions which shall continue to be valid and enforceable to the fullest extent permitted by law.

12.6 Counterparts. The Order Form may be executed in counterparts, each of which when executed shall be deemed an original and all of which together shall constitute one and the same document. A facsimile or electronic copy of the Order Form, including its signature pages, will be deemed to be an original.


APPENDIX I

ADS CONTENT GUIDELINES

In the event of any inconsistency between this Appendix I and the Agreement, this Appendix I shall prevail.

A. Partner shall ensure that any Creative or Campaign will comply with the following conditions (non-exhaustive):

1. The Ads do not include any 'virus' or other destructive programming or device that could impair or injure any data, computer system or software;

2. The Ads do not contain content or links related to pornographic, obscene or sexually explicit images or activity;

3. The Ads do not violate any applicable laws or regulations or guidelines or codes of practice, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws;

4. The Ads do not contain content that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation;

5. The Ads do not contain content or links that is disparaging to AppLift or any of its Ads vendors or Publishers;

6. The content of the Ads do not and will not infringe any Intellectual Property Rights or other proprietary rights;

7. Partner and/or the Ads do not engage in, promote or facilitate illegal activities such as pirating, hacking, terrorism or any other activities.

8. In respect of unlawful activity or content contributed to the Ads without Partner's knowledge or awareness of its unlawfulness, Partner undertakes to take it down as soon as reasonably practicable.

B. Partners shall also make all reasonable efforts that all Creatives and/or Campaigns comply with the following guidelines:

1. Style & Grammar Guidelines

(a) Proper grammar conventions should be followed.

(b) Use of common text message abbreviations is permitted.

2. Links & Phone Numbers Guidelines

(a) Partner advertiser’s destination URL must be viewable in mobile web browsers.

(b) Partner advertiser’s destination URL must link to a working mobile website written in a supported markup language (xhtml, wml, chtml, or html for PDAs).

(c) Partner advertiser may not link to an email address or a file (for example, an image, audio, video, or document file that requires an additional program or application to open or run).

(d) The landing page for Ads cannot be under construction.

(e) Partner advertiser’s destination URL must link to an actual mobile web page with content relevant to the applicable Advertisement.

(f) Partner advertiser’s destination URL must work properly.

(g) “Click-to-call” numbers must connect customers to advertiser’s business.

(h) Phone numbers must be functional.

(i) Phone numbers may not connect customers to a fax number.

(j) Phone numbers must be local or domestic to the country advertiser’s Ads are targeting.

(k) Telephone numbers must use the correct format for the target country.

(l) Toll or fee-based telephone numbers that require additional payment by the caller are not allowed.

APPENDIX II

Support and Service Level Policy

Support Hours and Response Time

AppLift provides 9to5 tele support and 24X7 email support. For inbound service issues, response time will vary based upon time of day. Certain requests will be responded to more promptly, based on urgency and priority level (see below for a timetable on priority levels).

An Account Manager will be available during regular business hours between 9AM – 6PM (in the respective time zone the Partner is located). During non-business hours, incoming calls will be handled by the Support personnel and re-directed to appropriate Account Manager available.

Priority 1: 24/7 2 hours

Priority 2: 24/7 8 hours

Priority 3: 9/5 2 business days

Service Availability

AppLift will maintain in a calendar month an uptime rate of 99.5% on Ad-Serving, and 99.0% on the Service availability. AppLift may change the methodology by which the availability determinations are measured by providing Partner with at least thirty (30) days’ notice. When changing the methodology AppLift will take Partner’s interests in the subject matter of this Agreement into account and make only reasonable changes. AppLift will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week Service.

99.0% Monthly Uptime Commitment: No credit

98.9% - 98.0%: Credit = 5% on AppLift Platform Service Fee otherwise due in the month

97.9% - 97%: Credit = 10% on AppLift Platform Service Fee otherwise due in the month

96.9% - 96%: Credit = 15% on AppLift Platform Service Fee otherwise due in the month

95.9% - 95%: Credit = 20% on AppLift Platform Service Fee otherwise due in the month

Below 95%: Credit = 25% on AppLift Platform Service Fee otherwise due in the month

AppLift will apply any Platform Service Fee credit only against future invoices. Platform service credit will not entitle you to any refund on AppLift Platform Service Fee.

AppLift will provide monthly reports to Partner demonstrating compliance with the Service Levels above and will automatically apply to Partner’s monthly invoice any credits due.

Exceptions: The following will be excluded from the measurement of compliance with any Service Level: planned downtime and scheduled maintenance.

  1. Scheduled maintenance: From time to time, AppLift may need to perform maintenance on one or more services. Except in the case of emergency, AppLift will provide at least two (2) business days’ notice before performing maintenance and make every effort to perform maintenance during non-business hours.
  2. Any factors outside of our reasonable control, including any force majeure (Act of God) event or Internet access or related problems beyond the demarcation point of AppLift.
  3. That result from any actions or inactions of you or any third party
  4. Any downtime experienced as a result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control) or your third party services engaged.
  5. Downtime arising due to AppLift’s Direct or Indirect Supply Partners
  6. Arising from Partners’ suspension and termination of the right to use AppLift’s platform in accordance with the AppLift DSP Agreement.

Definition of Ad-Serving downtime: AppLift uses a standardized method of monitoring ad-serving service levels. AppLift will monitor ad-serving uptime through a dedicated server that makes ad requests to the Service once every two (2) minutes.

Definition of Client Dashboard downtime: AppLift will monitor the uptime of the Service through a dedicated server that requests the main access page of the Service once every two (2) minutes.