Last Revised: February 4, 2014
IMPORTANT: PLEASE READ THE TERMS OF THIS PUBLISHER AGREEMENT (THIS "AGREEMENT") CAREFULLY. BY CLICKING ON THE "I AGREE" BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE PUBLISHER (THE "PUBLISHER"), AND TO BIND THE PUBLISHER TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD CLICK ON THE "CANCEL" BUTTON TO DISCONTINUE THE USE OF THE SERVICE AND SOFTWARE.
This Applifier Ads Publisher Agreement ("Agreement") has been entered into on today by and between:
a) Applifier Oy, with offices at the address Kaisaniemenkatu 2 B, FI-00100 Helsinki, Finland ("Applifier") and
b) the publisher company ("Publisher”) that accepted this agreement.
Applifier and the Publisher may be hereinafter referred to either alone as a "Party" and both together as the "Parties".
This Agreement sets forth the legally binding agreement for the Publisher's use of the Applifier.com web site's Admin section, Applifier Ads SDK, and Applifier Ads service owned and operated by Applifier (collectively, the "Service") in connection with Publisher’s applications that incorporate the Service (the “Applications”). The Service includes Applifier serving advertisements in the Applications to end users of the Application (“End Users”).
This Agreement governs the Publisher's use of all aspects of the Service. In case of any conflicts between this Agreement and other agreements, the stipulations of this Agreement shall prevail unless otherwise expressly provided.
1.1 Access. Applifier provides Publisher with access to the Service subject to the terms and conditions of this Agreement. Continued access is subject to the ongoing approval by Applifier. Applifier reserves the right to terminate this Agreement and to refuse access and any service associated therewith to the Publisher at any time and for any reason, or for no reason, in its sole discretion. Applifier reserves the right, in its sole discretion and without liability, to reject, omit or exclude the Publisher, or any Application, for any reason, or for no reason, from the Service or any other service associated therewith, regardless of whether the Publisher or the Application was previously accepted.
1.2 Publisher License Grant. By using the Service in connection with Applications, the Publisher hereby grants Applifier and its partners a limited, world-wide, non-exclusive right to (i) sell and have sold advertisement inventory on the Publisher's Application during the term of this Agreement, including but not limited to the right to list such inventory in pitch materials to prospective advertisers and to report such inventory as being part of Applifier's ad network to outside reporting agencies, (ii) serve, distribute, publish and insert advertisements onto the Publisher's Application and (iii) access or call to the Applications, or the servers that make them available, as is necessary to cause the transmission, reproduction, display, troubleshooting and error correction of advertisements as contemplated herein. Applifier has final authority on, decisions related to such advertisement inventory, including selection, packaging, pricing, placement, promotional offers, and all other related deal terms. Applifier reserves the right at all times, at its discretion, and without notice, to remove or refuse to distribute any advertisements through the Service.
1.3 Integration. The Publisher acknowledges that certain aspects of access require integration of the Service to the Publisher's Application. Publisher agrees to comply with any and all technical specifications provided or posted by Applifier or displayed on the Service (including as necessary, incorporating any Applifier Ads SDK into Publisher’s Application. The Publisher and Applifier will work together in good faith to incorporate such appropriate integration as determined by Applifier, and to address any other technical issues relating to the integration of the Service into the Publisher's Application. The Publisher and Applifier shall each bear their own costs related to such integration. Applifier reserves the right to audit the integration performed by the publisher. In the case of improper integration, as determined by Applifier in its sole discretion, Applifier may prohibit the publisher from using the Service until such time that the integration is deemed complete by Applifier.
1.4 Admin Panel. The Applifier admin panel (currently located at: https://my.applifier.com/) provides the Publisher full control to enable and disable the Service and its aspects per the Publisher's Application and additional information about the statistics and integration of the Service. This information is provided solely for the Publisher's convenience and does not affect or reduce the Publisher's obligations and restrictions to implement the integration as set forth in this Agreement.
1.5 Market Conditions. The Publisher acknowledges and agrees that Applifier does not make any guarantees regarding the ability of Service to deliver any ads to the Publisher's Application, as the delivery of ads is dependent on a variety of conditions, such as market conditions and on the acceptability of the ads and their content.
1.6 Availability of Services. The Publisher understands and agrees that from time to time the Service may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Applifier may undertake from time to time; or (iii) other causes beyond the control of Applifier, 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 Applifier will attempt to provide the Service on a continuous basis, the Publisher acknowledges and agrees that Applifier has no control over the availability of the services on a continuous or uninterrupted basis and that THE SERVICE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. The Publisher also understands and agrees that Applifier is not responsible for the functionality of any third-party application, website, or interface. Failure to deliver ads because of technical difficulties does not represent a failure to meet any obligations of this Agreement. The Publisher shall follow any further guidelines as they may be posted on the Applifier web site that govern how the Service may be used.
1.7 Electronic Approval of Agreement. To use the Service the Publisher agrees that: (a) the Publisher will communicate with Applifier electronically to enter into this Agreement by submitting Applifier relevant information as requested by Applifier from time to time. The Publisher may start using the Service only after Applifier has given the electronic approval for the Publisher; (b) the Publisher will maintain the accuracy of the Publisher related information at Applifier; and (c) the Publisher will notify Applifier immediately of any unauthorized use of the Publisher's user rights relating to the Service or any other breach of security. Any notices to be given under this Agreement may be given by Applifier to the Publisher to the email or other addresses in the Publisher's account information.
1.8 Suspension & Modification. The Service and the specific features and functionality thereof are subject to modification, suspension or termination at any time without notice. Applifier will endeavor to notify the Publisher in advance about such changes, but delivery of such notices is not guaranteed. Without limiting the generality of the foregoing, Applifier may suspend the Publisher's use of the Service at any time, including in the event that the Publisher is in breach of any of the terms and conditions of this Agreement.
1.9 Representations. By accessing or using the Service in any manner the Publisher represents and warrants that:
i) the Publisher has (a) the legal capacity in the jurisdiction where the ads are published and (b) the right and authority to enter into this Agreement;
ii) Publisher will (a) post clear and conspicuous privacy notices in the Applications as described in Section 6.2 below; (b) comply with all privacy laws and regulations and all self-regulatory guidelines applicable to the use of the Service in Publisher Applications, including but not limited to the Federal Trade Commission Act, applicable Federal Trade Commission regulations and the Children’s Online Privacy Protection Act (“COPPA”); and (c) notify Applifier whether any Application that incorporates the Service is “directed to children” as defined by COPPA, in accordance with Section 3.2 below. Publisher agrees to take full responsibility, and to indemnify Applifier in accordance with Section 11.3 below), for any COPPA violations that may occur due to any failure of Publisher to properly notify Applifier if an Application is directed to children.
1.10 Publisher Obligations.
i) the Publisher will be solely responsible for all costs, expenses, losses and liabilities that may incur to the Publisher in relation to the Publisher's activities in connection with the Service, including, but not limited to the Publisher's cost and expense of the telecommunication networks, hardware and software utilized by the Publisher;
ii) the Publisher must promptly notify Applifier of any changes to the Application if it would have an effect on the use of the Service;
iii) the Publisher shall not (directly or indirectly) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service or the underlying software, including the Applifier Ads SDK, except to the limited extent applicable laws specifically prohibit such restriction, or modify any part of the Service or software underlying the Service, or transfer, rent, lease or loan, or provide application service access to the Service; and
1.11 Third Party Sites, Materials and Ads. Publisher understands and agrees that:
i) when the Publisher or any End User connects to third party websites or mobile sites, third party applications, or any content, information, or products originating from or provided by a third party (collectively the “Third Party Sites and Materials”) through the Service, Applifier does not control the content or functionality of such Third Party Sites and Materials (and is merely a passive conduit with respect thereto), does not endorse or approve such Third Party Sites and Materials , and is not responsible or liable for such Third Party Sites and Materials or for their availability, functionality, content, advertising, products, or services.
ii) the ads served by Applifier in connection with the Service are provided by third parties advertisers or advertising agencies, and Applifier is merely acting as an intermediary and is not responsible or liable in any manner for any ads provided through the Service, including for their content or functionality or for compliance with any applicable laws, rules or regulations relating to such ads.
2.1 Applifier Ads SDK. "Applifier Ads SDK" shall mean the Applifier's software development kit (including but not limited to libraries, APIs, plug-ins, source code, and extensions) that allows publishers to use the Service in connection with their Application(s). The Publisher agrees to implement the version of the Applifier Ads SDK applicable to the Publisher's use within the Application(s) according to Applifier's specifications.
2.2 Limited License. Applifier hereby grants to the Publisher a non-exclusive, non-transferable license (without the right to sublicense) to download, install and use the Applifier Ads SDK internally for the sole purpose of using the Service in connection with the Applications, in the manner enabled by Applifier and solely in accordance with all documentation provided by Applifier and the terms and conditions set forth in this Agreement. The Publisher may not use the Applifier Ads SDK for any other purpose or in any other manner, including but not limited to modification, distribution, transmission or reproduction, electronically or otherwise. The Publisher may not implement the Applifier Ads SDK on any applications, websites or online services other than the Applications without the express prior written consent of Applifier. Publisher also is not licensed to implement the Applifier Ads SDK on any Applications that are “directed to children” as defined under COPPA unless Publisher has identified the Application as such in accordance with Section 3.2 below prior to any use of the Service in such Application.
2.3 Ownership. As between the Parties, the Applifier Ads SDK provided hereunder is the property of Applifier or its third party licensors. Applifier shall retain all right, title and ownership interest and all intellectual property rights in and to the Applifier Ads SDK and any copies, derivative works, upgrades, updates, improvements and modifications thereof, including without limitation, translations, regardless of the form or media in which, or on which, the original and any other copies, derivative works, upgrades, updates, improvements or modifications may exist. THE PUBLISHER SHALL HAVE NO RIGHT TO CREATE OR DISTRIBUTE, IN ANY MANNER, ANY DERIVATIVE WORK, UPGRADE, UPDATE, IMPROVEMENT OR MODIFICATION OF THE APPLIFIER ADS SDK.
2.4 No Other Rights. No other rights or licenses are granted to the Applifier Ads SDK in this Agreement expressly, by implication, estoppel or otherwise. This Agreement is not for a sale of any interest in the intellectual property rights or other proprietary interests embodied in the Applifier Ads SDK or any copy, derivative work, upgrade, update, improvement or modification thereof.
3.1 Responsibility for Applications. The Publisher shall be solely responsible for Applications and any content on the same, and the Publisher acknowledges and agrees that Applifier has no control over, or duty, ability or obligation to monitor, the Publisher's Applications or their content. The Publisher represents and warrants that the Publisher owns, or has all necessary and applicable licenses, rights, consents, and permissions with respect to all Intellectual Property Rights, privacy rights, rights of publicity and other proprietary rights that are necessary to provide the Application for the Publisher's customers as well as enable use of the Service in connection with the Applications and Content without any violation, misappropriation, breach or infringement of any third party rights. The fact that Applifier may have reviewed or selected the Application or its changes will not relieve the Publisher of any of these responsibilities. It is also the Publisher's sole responsibility to obtain the approval from End Users for any necessary purpose.
3.2 Applications Directed to Children. Publisher agrees to notify Applifier prior to any use of the Service in connection with a particular Application, if such Application is “directed to children” as defined by COPPA. This notification must be made by configuring the Application as “directed to children” using the Applifer Admin Panel. Publisher agrees to take full responsibility for any failure to notify Applifier that the Application is directed to children and assumes all liability for any COPPA violations or other liability that may occur with respect to any Application for which Publisher has failed to so notify Applifier or if Publisher incorrectly identifies the Application as not directed to children. Publisher should consult with its legal counsel to determine whether its Applications are “directed to children” under COPPA.
3.3 Prohibited Applications and Content. The Publisher represents and warrants that it shall not use the Service in connection with any Applications or any content that (i) are unlawful, misleading, fraudulent, deceptive, defamatory, slanderous, libelous, threatening, sexually explicit, harassing, hateful, racially or ethnically offensive; (ii) promote piracy, hacking, discrimination, violence, gambling, alcohol, drugs, tobacco or firearms or any conduct that could be considered a criminal offense, give rise to civil liability, or violate any law, rule or regulation; (iii) infringe, misappropriate or violate any intellectual property rights, privacy rights, rights of publicity or other proprietary rights of any third party; (iv) consist primarily of advertising content or are placeholders for "parked" domain names; (v) contain code that would allow a "drive-by" download, drag along technologies or technology that allows other programs or applications to be automatically installed or updated; (vi) contain or enable Trojan Horses, back-doors, hooks, viruses or similar contaminating, destructive or invasive features; (vii) interfere with or modify any aspect of end users' system configuration, including without limitation web browser-related preferences, search engine settings or add icons or shortcuts; (viii) contain forums, discussion boards, chat rooms, or any content area that is open to public updates without regulation; (ix) that are hosted by a free hosting provider; or (x) that are of poor quality or design. Applifier may at any time in its sole discretion prohibit the use of the Service with any Application without any liability to Publisher.
3.4. Application Information. Publisher shall provide Applifier with information about its Applications to better market the Service. Such information includes, without limitation, total downloads, monthly and daily active users, geographical distribution of users and other information deemed relevant by Applifier. Such information may only be disclosed by Applifier to third parties in anonymized form aggregated with data from other Applications using the Service.
4.1 Compliance with Laws. As a condition of the Publisher's use of the Service, the Publisher shall not use the Service for any purpose, or in connection with any Application, that is unlawful or prohibited by this Agreement. The Publisher is responsible for complying with all applicable rules, laws, and regulations.
4.2 Click Fraud. The Publisher may not, and may not authorize or encourage or allow any third party to: (i) generate fraudulent impressions of or fraudulent clicks on any advertisements, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, clicks, or installs or requests to support the Applications through clicks or installs or offering any incentives specifically for clicks or installs; (ii) edit, modify, filter, or change the order of the information contained in any advertisement, or remove, obscure or minimize any advertisement in any way; (iii) redirect an end user away from any web page accessed by an end user after clicking on any part of an advertisement ("Advertiser Page"), provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page, or intersperse any content between the advertisement and the Advertiser Page; (iv) use any automated means, including agents, robots, scripts, or spiders, to access or manage the Publisher's account with the Service or to monitor or copy the Service or the content contained therein; or (v) display any advertisements on any error page. In addition, the Publisher or any of its personnel may not click on advertisements served by Applifier on any web sites in order to purchase products or services.
4.3 Prohibited Uses. Under no circumstances shall the Publisher be permitted to run video advertisements in placements that i) are below-the-fold and autostart; or ii) by default (i.e., without user interaction) do not play the sound track of the video advertisement; or iii) play any other soundtrack than of the video advertisements during the playback of the video advertisement; or iv) autostart and are presented or located in such a manner that would make it unlikely that the ads would be viewed by humans, whether or not the sound is defaulted to off; or v) are located in pop-up, pop-under or similar windows other than provided by Applifier. Further, the Publisher may not use the Service in any manner that in Applifier's sole discretion could damage, disable, overburden, or impair it or interfere with any other party's use of the Service. The Publisher may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, or features that enforce limitations on the use of the Service. When the Service on behalf of the Publisher's Application makes a programmatic advertising call to Applifier or to its third party ad networks, if the recipient responds with an available advertisement, the Publisher agrees to not to intervene to the Service to deliver said advertisement. Publisher is also prohibited from implementing the Service on any Applications that are “directed to children,” as defined under COPPA, unless Publisher has first identified the Application as such to Applifier as set forth in Section 3.2.
5.1 Payment Amounts. Upon the Publisher fulfilling its obligations under this Agreement the Publisher shall receive payment based on video views of Ads served through the Service by the End Users. Applifier reserves the right to determine the amount to be paid to Publisher for each video view by an End User based on factors such as the geographic location of the user, quality of the traffic sent by the Publisher’s Application(s), or other means decided on by Applifier in its sole discretion. Applifier reserves the right to deduct from the payments (i) any refunds to advertisers; (ii) a flat deduction (as determined by Applifier from time to time) to cover expenses related to discounts, campaign referral fees, payment transaction fees, telecommunications, data center and other serving costs, cost-of-money/bad-debt fees and other writeoffs, taxes and currency exchange fees; and (iii) any amounts payable by Applifier to providers of targeting, reporting, verification or other data, technology or services utilized for a given advertisement campaign hereunder. The Publisher acknowledges and agrees that the cost per view (“CPV”) payment that the Publisher shall receive hereunder shall be reported and paid on an aggregate basis. Any disputes concerning payment must be contested in writing; failure to contest any payment within thirty (30) days of receipt of Applifier’s payment of Publisher’s invoice constitutes waiver of any claim relating thereto. All decisions regarding collection of debt from advertisers are within the sole discretion of Applifier. For the avoidance of doubt all payments hereunder are based on advertisement events actually served by the Service, and not on requests for advertisements made by any Application or web site.
5.2 Payment Terms. Amounts earned for a video view shall be calculated to their final value seven (7) days after a video view in the Publisher’s Application has been completed and will be reflected to Publisher’s account. Publisher may request payment from Publisher’s account by issuing an invoice for the requested payment amount to Applifier by email to email@example.com, provided that invoices may be issued to Applifier no more than once every thirty (30) days.. Applifier shall wire payments to the bank account indicated by the Publisher within forty five (45) calendar days after receiving a valid invoice. Payment may not be requested for any amount less than one hundred (100) US dollars except for the final payment of remaining funds on Publisher’s account when the Publisher is terminating this Agreement. However, Applifier may initiate payments to Publisher at any time in its sole discretion, and such payment may be in whatever amounts and by whatever payment methods are determined by Applifier.
5.3 Taxes etc. Each Party is responsible for paying any taxes, duties or fees for which it is liable.
6.4 The Publisher also acknowledges and agrees that the Publisher shall not copy, reproduce, alter, modify, change, broadcast, publish, distribute, transmit, transfer, disseminate, sell or offer for sale the Service Data in any manner, at any time anywhere in the world except as expressly authorized in writing by Applifier. Nothing herein shall be construed as a grant or assignment to the Publisher or any third party of any right, title or interest in any Service Data owned by Applifier, including, without limitation, any of its trademarks or service marks.
7.1 For the purposes of this Agreement " Confidential Information" shall mean any non-public information relating to Service or to the business of Applifier, including, without limitation, information about its customers, services, software and other products, documentation, plans, materials, pricing principles, designs, specifications, trade secrets, processes, techniques, inventions, statistics, the Applifier Ads SDK, the Applifier Admin Panel and any other information designated by Applifier as confidential.
7.2 Publisher agrees not to disclose any Confidential Information to any third parties, without first obtaining Applifier’s prior written consent. Publisher may use the Confidential Information solely as necessary to exercise its rights and perform its obligations under the Agreement without Applifier’s prior written consent. However, Publisher may disclose the Confidential Information to its employers and contractors who need to know such information to carry out their duties for Publisher and who are subject to confidentiality agreements protecting the Confidential Information to the same extent as in this Agreement.]
7.3 Confidential Information shall not include information which (i) is publicly available at the time of disclosure or later becomes publicly available through no fault of Publisher, (ii) was known by Publisher before receiving such information from Applifier; (iii) is disclosed to Publisher without restriction as to use or disclosure, by a third party who, in making such disclosure, did not violate any obligation of confidentiality; (iv) Publisher can document is independently developed by Publisher without use, directly or indirectly, of the Confidential Information; or (v) is disclosed by Publisher in accordance with a judicial or other governmental order provided that Publisher, subject to what is permitted under the applicable law, gives Applifier reasonable notice prior to such disclosure and restricts disclosure of the Confidential Information to the extent what is mandatory under the order.
7.4 The obligations under this Section 7 shall survive any termination of this Agreement.
8.1 Termination by Applifier. Applifier reserves the right, in its sole discretion and without liability, to terminate this Agreement and the Publisher's access to the Service at any time, with or without cause. Notwithstanding the previous sentence, Applifier reserves the right to terminate this Agreement and the Publisher's access to the Service at any time immediately upon notice, if Applifier in its sole discretion determines that the Publisher is breaching this Agreement. Applifier also has the right to terminate use of the Service with any particular Application at any time immediately upon notice, with or without cause.
8.2 Termination by Publisher. The Publisher shall have the right to terminate this Agreement immediately upon written notice to Applifier at any time, with or without cause.
8.3 Post-termination. Upon termination, the Publisher agrees to remove from its Applications any and all Applifier's ad serving code supplied to the Publisher by Applifier and stop all use of the Service. The Publisher will be paid, in the next scheduled payment cycle following termination, all payments due through and including the time of termination. The sections 1.9, 1.10. 1.11, 2.3, 2.4, 3.1, 3.2, 3.3, 4, 6, 7, 8, 9 , 10, 11 and 12 shall survive termination of the Agreement.
9.1 Applifier reserves the right, in its sole discretion, with or without notice, without liability to (i) refuse anyone access (ii) terminate or suspend the Publisher's account and/or the Publisher's access to the Service after the Publisher has registered, (iii) change, suspend, or discontinue the Service or any part of it at any time, (v) impose limits on certain features and services or restrict the Publisher's access to parts or all of the Service.
10.1 The Publisher hereby acknowledges and agrees that Applifier or its licensors shall have the exclusive right, title and interest in and to any and all patents, inventions, trade secrets, trademarks, service marks, methods, processes, copyrights, and rights in know-how (whether registered or unregistered and including applications for grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may now or at any time hereafter exist anywhere in the world in and to the Service, contents of and the underlying software of the Service and materials and information provided by Applifier, including but not limited to any and all their improvements (by whomever made) and any and all new intellectual property rights (by whomever made) relating to them. Applifier shall also have the exclusive right to amend and further develop the same and transfer any rights to the same to any third party.
11.1 DISCLAIMER OF WARRANTY. APPLIFIER PROVIDES THE SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. APPLIFIER AND ITS SUPPLIERS HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AS TO THE SERVICE AND ANY ADVERTISING OR OTHER MATERIALS PROVIDED OR ACCESSED THROUGH THE SERVICE. APPLIFIER PROVIDES NO GUARANTEES REGARDING THE PERFORMANCE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, THE NUMBER OF IMPRESSIONS, VIEWS OR CLICKS ON THE ADVERTISEMENTS NOR ON THE TIMING OF DELIVERY OF SUCH IMPRESSIONS, VIEWS OR CLICKS. APPLIFIER ALSO DOES NOT PROVIDE ANY WARRANTY THAT THE SERVICE WILL BE ERROR-FREE, WILL RUN WITHOUT INTERRUPTION, BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PUBLISHER WILL ACHIEVE ANY PARTICULAR RESULTS ARISING OUT OF THE PUBLISHER'S USE OF THE SERVICE.
11.2 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL APPLIFIER OR ITS DIRECTORS, MEMBERS, EMPLOYEES, SUPPLIERS, OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE OR THE ADVERTISING OR OTHER ITEMS OR MATERIALS PROVIDED OR ACCESSED THROUGH THE SERVICE, INCLUDING FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF THE SERVICE. AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF APPLIFIER OR ITS DIRECTORS, MEMBERS, EMPLOYEES, SUPPLIERS, OR AGENTS, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES OR TO THIS AGREEMENT TERMS EXCEED $100
11.3 Indemnity. The Publisher agrees to defend, indemnify and hold harmless Applifier and its distribution partners, subsidiaries, affiliates, and their directors, officers, agents, members, shareholders, co-branders or other partners, employees, and advertising partners from any and all liabilities, losses, actions, damages, claims, obligations, costs, expenses, or demands (including, but not limited to attorneys' fees, costs, and expenses) arising out of or related in any way to (i) this Agreement or the Publisher's or its End User’s use of or connection with the Service, (ii) any breach or alleged breach of any representation or warranty set forth in this Agreement or any other violation of any term of this Agreement, (iii) any claim arising under COPPA with respect to any Application that Publisher did not identify as being directed to children or any failure of Publisher to comply with the requirements of COPPA, and (iii) any claim relating to the Application, including without limitation that the Application caused damage to or violates the rights of a third party.
12.1 Entire Agreement. This Agreement represents the complete agreement concerning the subject matter hereof between the Parties and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
12.2 No Waiver. The failure of Applifier to act with respect to a breach of this Agreement by the Publisher or by others does not constitute a waiver and shall not limit Applifier's rights with respect to such breach or any subsequent breaches.
12.3 Transfer. This Agreement is specifically only for the Publisher and may not be assigned or transferred for any reason whatsoever without our consent and any action or conduct in violation of the foregoing shall be void and without effect. Applifier expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
12.4 Use of Publisher Names and Content. The Publisher agrees that Applifier may use the Publisher's and the Publisher’s Application(s) name and logo and any Content of Publisher’s Application(s) in presentations, marketing materials, customer lists, financial reports and listings of customers. If the Publisher wishes to use Applifier's trade names, trademarks, logos, domain names, and other materials, the Publisher may do so, so long as such use is in compliance with this Agreement.
12.5 Notices. Any notices required under this Agreement shall be made by Applifier to the e-mail address the Publisher has used to register for the Service, and shall be made by the Publisher to the e-mail address firstname.lastname@example.org each of which shall constitute written notice. Applifier may post and update these information and policies relating to the Service.
12.6 Disputes. In the event of any dispute arising under this Agreement, the Publisher agrees to submit to Applifier's internal dispute resolution process. In the event a mutually agreeable solution is not reached through the internal dispute resolution process, and without limiting Applifier's right to seek injunctive or other equitable relief in court, the dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Finland Chamber of Commerce in Helsinki in English language.
12.7 Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws Finland, excluding any conflicts of law rules.