Terms and Conditions

The following terms and conditions, together with the SDK License Agreement (“License Agreement”), which is incorporated herein by reference, and any and all other policies, including but not limited to the Platform Policies (as defined below), Company’s Privacy Policy and/or any Acceptable Use Policies, referenced herein or otherwise provided to you by Company (collectively the “Policies”), constitute the binding legal agreement (this "Agreement") between Millennial Media, Inc. ("Company") and you ("You" or "Your"), the User (as defined below) of the mMedia website ( the "Site") and the mMedia mobile platform service (the “Service”). You and Company may also be individually referred to herein as a "Party" and collectively as "Parties." You agree to use the Site, the Service and any additional products and/or services offered by Company in the future only in accordance with this Agreement. Company reserves the right to make changes to the Site, the Service and the terms and conditions of this Agreement at any time. The latest Agreement will be posted on the Site. You should regularly check the Site for updates and/or changes. This Agreement applies to and governs Your relationship with Company in all matters including, without limitation, as a User, participating in Company’s Service as an Advertiser and/or Developer (each as applicable, and as defined below). For purposes of this Agreement “User” means You individually (in the event You do not represent a company), or the company or entity registering with Company and, without limitation, any parent entities, owners, subsidiaries, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same. You represent and warrant that You are authorized to bind User to this Agreement and You agree and acknowledge that You and User shall be jointly and severally liable for all obligations hereunder. All references herein to “You” and “Your” shall be deemed to include User. You must be 18 or older to use this Site and the Service.  Your continued use of the Site and/or the Service indicates Your acceptance of this Agreement, including any modification thereof, and shall constitute Your consent to this Agreement, and any modification thereof. If You do not agree to the terms and conditions contained within this Agreement in their entirety, You are not authorized to register as a User, or use the Site and/or Service in any manner or form whatsoever.

1. Background and Use of the Site and the Service.

Company provides advertising content (“Ads”) including images and text (“Creatives”) in connection with various advertising campaigns run by Company on behalf of advertising clients (“Advertisers”) on mobile web sites or in mobile applications provided by publishers and/or developers (collectively “Developers”) in Company’s proprietary network (“Campaign(s)”). Approved Advertisers pay Company based on the successful delivery of specified Campaign events (“Events”) including, as applicable, the display of an Ad, an end user clicking on an Ad, or an end user completing some action after viewing or clicking on an Ad. Company provides software code (“Ad Code”) to approved Developers for inclusion in the Developer’s Mobile Web Sites (“Web Sites”) or in their Mobile Applications (“Mobile Apps”) in order to request Creatives in an automated fashion. Company pays Developers, subject to and in accordance with the terms of this Agreement, for Campaigns that are displayed on Developer’s Web Sites and/or Mobile Apps. You may take part in the Site and Service as an Advertiser, as a Developer, or as both an Advertiser and a Developer.

(a) This Section 1(a) applies to You if You are an Advertiser. Approved Advertisers shall be permitted to run Campaigns. As applicable, each Campaign shall specify the information necessary for Company to run Campaigns for You. The information requested may be modified from time to time, but will generally include, but not be limited to, the name and category of such Campaign, the maximum amount to spend on such Campaign both daily and in total, the minimum bid price for such Campaign and the start and end dates for such Campaign. Subject to the terms and conditions herein, You may pause or terminate a particular Campaign; or cease participation entirely by terminating this Agreement as provided in Section 7 below, unless otherwise specified in these or other applicable Company terms or policies. Company is responsible for displaying and administrating all active Campaigns and, except as otherwise provided herein, tracking and calculating associated Campaign payments owed. Except as otherwise provided herein, Company shall compile, calculate and electronically deliver data to You regarding Your Campaign including, but not limited to, the applicable Events and the spend/cost of Campaigns (the “Advertiser Data”). Company’s figures and calculations regarding the Advertiser Data shall be final and binding: provided that Company reserves the right to correct such figures and calculations. Should You have any questions regarding the Advertiser Data provided by Company, You must submit such questions in writing within fourteen (14) days of receipt of the Advertiser Data. Company will consider such questions in its discretion, but unless Company expressly determines otherwise in writing, the Advertiser Data will be deemed accurate and accepted as such by You. Notwithstanding the foregoing, You may only submit requests for spend/cost adjustments to the Advertiser Data where the alleged discrepancy is equal to or above the equivalent of Fifty US Dollars ($50) (“Discrepancy Threshold”).

(b) This Section 1(b) applies to You if You are a Developer. Approved Developers shall be permitted to download the Ad Code to request Ads: (i) for display on Web Sites, owned, operated and/or controlled by Developer or (ii) for display within Mobile Apps, owned, operated and/or controlled by Developer. Company may change a Campaign at any time. Subject to the terms and conditions herein, You may cease participation at any time by terminating this Agreement as provided in Section 7 below, unless otherwise specified in these or other applicable Company terms. Company is responsible for displaying and administrating all active Campaigns and, except as otherwise provided herein, tracking and calculating associated Campaign payments owed. Except as otherwise provided herein, Company shall compile, calculate and electronically deliver the data necessary to determine Your billing and compensation (the “Developer Data”). Company’s figures and calculations regarding the Developer Data shall be final and binding; provided that Company reserves the right to correct such figures and calculations. Should You have any questions regarding the Developer Data provided by Company, You must submit such questions in writing within fourteen (14) days of receipt of the Developer Data. Company will consider such questions in its discretion, but unless Company expressly determines otherwise in writing, the Developer Data will be deemed accurate and accepted as such by You. Notwithstanding the foregoing, You may only submit requests for payment adjustments to the Developer Data that are equal to or above the Discrepancy Threshold.

In certain instances, upon mutual agreement, the Company may provide a mediation service in connection with Ads that are supplied not directly by Advertisers of Company, but by third party networks (the “Mediation Service”). Unless otherwise agreed by Company in writing, you are required to have a separate agreement with each applicable third party network in order to use the corresponding Mediation Service and all payments owed to you in connection with any Ads displayed in conjunction with any Mediation Service will be tracked by and paid by the applicable third party network and not by Company. You agree and acknowledge that Company reserves the right to not provide the Mediation Service at all in its sole discretion, and/or to charge additional fees for the Mediation Service.

You agree and acknowledge that Company may place Ads in connection with the Service that request that end users participate in Company’s Network Survey Program, which is intended to survey end users regarding user demographics, preferences, advertising impact and other relevant research data points.

2. Eligibility, Content Policies and Licenses.

You must obtain official approval from Company before You may become a User. Company may reject Your User application and/or terminate or change Your participation in any Campaign and/or the Site and/or Service, as applicable, at any time and for any or no reason, in Company’s sole discretion. Only Developer Properties (as defined below) and/or Ads, Creatives or Campaigns (collectively, “User Content”), as applicable, which have been reviewed and approved by Company may be utilized in connection with the Site and/or Service. Company reserves the right to withhold or refuse approval of any User Content for any or no reason, whatsoever, in Company’s sole discretion.

(a) This Section 2(a) applies to You if You are a Developer. In order to be eligible to become a Company Developer, and in order to maintain an active Developer status, Your Web Sites and/or Mobile Apps (collectively, “Developer Properties”) must meet the following criteria at all times:

1. Your Developer Properties must contain distinct and legitimate content, substance and material, not, for example, simply a list of links or advertisements. Further, the applicable Developer Properties must serve a purpose substantially or completely separate and distinct from merely being designed to earn money solely from Company’s Advertisers or other third party advertisers;

2. In the case of Your Web Site, each must be represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable);

3. Your Web Site cannot be offered as a part of a community-based website personal entry or personal page;

(b) This Section 2(b) applies to You if You are a Developer or an Advertiser. Your User Content (including any content linked to by your User Content) must meet the following criteria at all times:

1. Your User Content may not incentivize end users to click on ads (except for any incentives that have been expressly authorized by Company that clearly and conspicuously specifies that the User Content includes such incentives). Incentives include, but are not limited to, awarding users cash, points, prizes, contest entries, etc.

2. Your User Content must be fully functional at all levels; no "under construction" sites or sections are permissible; and

3. Spawning process pop-ups and exit pop-ups may not be activated through Your User Content.

(c) Your User Content, including but not limited to any material within Your User Content and content linked to by your User Content, must not promote, advocate, facilitate or otherwise include any of the following:

 1. Racial, ethnic, political, hate-mongering or otherwise objectionable content;

2. Investment, money-making opportunities or advice not permitted under law;

3. Violence or profanity;

4. Pornographic, obscene, sexually explicit or related content;

5. Material that defames, abuses, is libelous, is tortious or threatens physical harm to others;

6. Material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person;

7. Material that impersonates any person or entity;

8. Any indication that any statements You make are endorsed by Company or, as applicable, an Advertiser, without Company’s specific prior written consent;

9. Promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.);

10. Promotion of any tobacco products, firearms or alcoholic beverages (unless promotion of any tobacco products, firearms or alcoholic beverages has been expressly authorized by Company that clearly and conspicuously specifies that the User Content will promote the products in question);

11. Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;

12. Content which is inappropriate or harmful to children;

13. Promotion of terrorism or terrorist-related activities, sedition or similar activities;

14. Software Pirating (e.g., warez, hotline);

15. Hacking or Phreaking;

16. Any material that contains software viruses or any other computer code, files or campaigns designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

17. Any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, campaigns designed to send unsolicited advertisements (e.g. “spamware”), services that send unsolicited advertisements, campaigns designed to initiate “denial of service” attacks, mail bomb campaigns and campaigns designed to gain unauthorized access to networks on the Internet;

18. Any software, product or service that harvests or collects the personal information of users, whether or not for commercial purposes, without the express consent of such users;

19. Any spoofing, redirecting or trafficking from other sites in an effort to gain traffic;

20. Any content that infringes upon the intellectual property rights of any third party;

21. Any material that otherwise infringes or is alleged to infringe upon or violate the rights of any third parties including, without limitation, material may give rise to any claim of false or misleading advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or violation any other right of any person or entity;

22. Gambling, contests, lotteries, raffles, or sweepstakes (except for any contest or sweepstakes that has been expressly authorized by Company that clearly and conspicuously specifies that the User Content relates to a contest or sweepstakes);

23. Any material that violates the CAN-SPAM Act of 2003, as amended ("CAN-SPAM");

24. Any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other jurisdiction in which You operate);

25. Any content that solicits a subscriber of a mobile service provider to switch to another mobile service provider; or

26. Any content that is unfair, deceptive, or otherwise in violation of any applicable laws, rules, and/or regulations.

27. Any User Content that has not been provided to Company for review and approval prior to publication (except for any User Content for which Company has expressly waived its right to review and approve).

Upon approval of Your User application, Company grants to You a non-transferable, revocable, non-exclusive, royalty-free, limited license to use the Site, the Service, Creative, Ad Code, Ads, as applicable, and any data, reports, information and/or analyses arising out of such use that Company makes available to You (the “Company Content”) during the Term of this Agreement, subject to the terms and conditions set forth herein, and subject to the License Agreement which is incorporated herein. You acknowledge and agree that You do not have, nor will You claim any right, title or interest in, the Company Content, including but not limited to the Site, the Service and any software, applications, data, methods of doing business or any elements thereof. You may only access the Site or other Company Content via web browser, email or in a manner otherwise approved by Company. No part of the Site or other Company Content may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Company Content or any portion thereof. Company reserves any rights not explicitly granted in this Agreement. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site, the Service, the Company Content or other Company technology or materials. You may not take any action that imposes an unreasonable or disproportionately large load on the Company infrastructure. Your right to use the Site and Company Content is not transferable. In addition, Ad Code included in the Advertiser Creative or otherwise may not be altered under any circumstances. Altering Ad Code may jeopardize Your ability to be paid for Events and would be grounds for immediate termination of Your User account.

You grant to Company and its agents, contractors and designees any and all necessary rights and permissions to use Your trademarks, trade names, logos, copyrights and other intellectual property provided by or through You for the purpose of fulfilling Company’s obligations under this Agreement. You further acknowledge that Company may market and promote You and/or Your Web Sites and/or Your Mobile Apps worldwide to potential customers and advertisers, in connection with the Service. With respect to all of the foregoing, you grant Company all necessary rights and permissions on a worldwide, perpetual, irrevocable royalty-free basis.

3. Ad Materials

This Section 3 applies to You if You are an Advertiser. Company reserves the right within its discretion to reject or remove from its Site and/or Service any Ads that do not comply with its policies, including but not limited to the eligibility and content policies set out in Sections 2(b) and 2(c) above, or that in Company’s sole judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Company reserves the right within its discretion to reject or remove from its Site and/or Service any Ads which would bring, or may tend to bring, disparagement, ridicule, or scorn upon Company or any of its affiliates, Developers or other business partners, or it otherwise deems inappropriate in its sole discretion.

4. Invalid Activity.

Company reserves the right to actively monitor traffic, Events, Net Revenue (as defined below) share, spend/cost and other Campaign-related activities for invalid activity. If Company suspects that Your account has been used in an invalid manner; if You invalidly generate clicks, conversions, or other Events, or inflate clicks, conversions, or other Events, through the use of invalid means (as determined solely by Company, such as pre-population of forms or mechanisms not approved by Company such as rapid refreshing); if Company detects that Your account has been used in an invalid manner; or if You provide any information that is untrue, inaccurate, not current or incomplete, Your account may be deactivated effective immediately and with no notice to You pending further investigation and, without limiting Your obligations to make any payments due hereunder, You may forfeit any payments otherwise owed to you for all Your Campaigns, not just those payments associated with the invalid activity. Company reserves sole judgment in determining invalid activity, and You agree to be bound these determinations. When invalid activity is suspected, it is the obligation of User to prove to Company that User has not engaged in invalid activity. Company will hold Your payments in 'Pending Status' until You have satisfactorily provided evidence that You have not engaged in invalid activity. Company may use a variety of methods, at its discretion, to flag accounts for possible invalid activity; provided that Company does not make any representations or warranties as to the effectiveness or results of its invalid activity detection program and shall not be responsible for its failure to detect any invalid activity.

Company uses a variety of methods to flag accounts for possible invalid activity, examples of which include but are not limited to identifying accounts that:

(a) Have click-through rates that are much higher than industry averages and where solid justification is not evident;

(b) Have only click campaigns generating clicks with no indication, based upon site traffic statistics, that it can sustain the clicks reported;

(c) Have shown invalid conversions as determined by Company or its Advertisers;  

(d) Use fake redirects, automated software and/or invalid activity of any kind to generate clicks or conversions from Campaigns; and

(e) Have excessive traffic originating from privately operated WAP Gateways.

5. Use of SMS/MMS for Marketing Purposes.

Push marketing to mobile phones is not an acceptable method to drive traffic to Your User Content except with explicit opt-in that complies with all applicable laws.

6. Payment and Platform Credits.

Payment and Platform Credits as described in this Section 6, below, shall be implemented in accordance with the Platform Policies, which are incorporated herein by reference. The Platform Policies can be found here, and may be modified by Company from time to time in its sole discretion. It is Your responsibility to remain informed regarding the Platform Policies.

(a) Payments to You as a Developer. You will be paid a Net Revenue share for Campaigns that are run in Your Developer Properties, subject to the terms and conditions of this Agreement. The Parties understand and agree that payment will be owed to Developer from the applicable Advertiser(s), and that corresponding payments shall be made from Company out of the funds actually collected by Company from the applicable Advertiser(s). Payments shall be made for Net Revenue share realized each month, in accordance with the Platform Policies. The term “Net Revenues” shall mean actual collections from Advertisers received by Company, not including any third party commissions, taxes, rebates, refunds, make-goods and/or other set-offs of any kind, if any. Company may also deduct certain third-party costs incurred before calculating Net Revenues. All accounts will be paid in US dollars ($US). No payments will be issued for any amounts less than the Payment Threshold (as defined in the Platform Policies). In the event that Company fails to receive the applicable corresponding payments due from the respective Advertiser(s), Company shall have no payment obligation to Developer. Net Revenue calculations shall be based on the Events and corresponding Net Revenue share as recorded and calculated by Company, and shall be based upon a percentage determined by Company in its reasonable discretion, it being understood that Company may change this percentage from time-to-time. Company will not be responsible to compensate You for Events that are not recorded due to Your error. Company expressly reserves the right to set off amounts owed to Company by You (as an Advertiser or otherwise) against any amounts owed to You (as a Developer or otherwise) and you agree that Company shall have the right to do so.

(b) Payments to Company for Campaigns.

i. Platform Credits. This Section 6(b)(i) applies to You if You are a Developer, and you purchase Campaigns. A credit will be made available to You on the Site based upon Your Net Revenue for your activities as a Developer (“Platform Credits”), and in accordance with the Platform Policies. Platform Credits may only be used to purchase Campaigns and will not otherwise be paid out to You, except as payments in accordance with Section 6(a), above. Company reserves the right to require that you repay to Company any Platform Credits made available to you upon notice to You if Company determines, in its sole and absolute discretion, that the Platform Credits made available to you were incorrectly calculated, unearned, or otherwise based on invalid activities. Company may, without limiting or waiving other remedies, withhold payments under Section 6(a) until such amounts are repaid.

ii. This Section 6(b)(ii) applies to You if You purchase Campaigns by pre-payment. In order to use the Service, You will pre-pay all applicable fees in connection with the Service selected by You. You must provide to Company Your pre-payment using one of methods accepted by Company (“Payment Method”). You must also designate a method of payback of funds, if applicable (“Payback Method” and collectively with Payment Method, “Methods”). The Methods that Company accepts and the timing for billing of any fees and/or payments may vary, and shall be set forth in the Platform Policies. Company may, upon notice required by applicable laws, at any time change: (a) the amount of or basis for determining any fee, charge and/or payment, (b) institute new fees or charges with respect to the Service, (c) Methods that Company accepts, or (d) the timing for billing of any fees or payments. All payments (including for fees) will be made in US dollars. Company may provide additional funds and/or incentives to Advertisers using the Service in its sole and absolute discretion. Any such additional funds and/or incentives are not redeemable for cash, and may not be credited towards other services.  

You represent and warrant (a) that any and all information You provide in connection with the Methods is valid, accurate, current, and complete, and (b) to maintain and promptly update that information to keep it true, accurate, current, and complete. You also authorize Company to update Your information with data Company obtains from the issuer of Your designated Methods. You authorize Company to retain and store Your information until such time You revoke this authorization. Any revocation of this authorization will become effective when all charges and fees associated with Your use of the Service have been fully satisfied, as determined by Company. Your revocation of this authorization will have no effect on Your liability for charges and fees that You have incurred in connection with Your use of the Service prior to such revocation.

When You supply Company with a designated Method and related information, You authorize Company to bill and/or pay that Method for any and all charges, fees and/or payments (as applicable) experienced in connection with the Service. The terms of Your designated Methods are determined by any agreement(s) between You and the provider of the Methods. If Company is unable to receive payment from Your designated Method successfully, or if Company does not otherwise receive timely payment, You will pay all amounts then owing to Company upon Company’s demand and, in addition to other rights, Company may suspend or terminate the Service, and delete all of your information contained within the Service. Company accepts no liability for information that is deleted due to an invalid Payment Method.

iii. This Section 6(b)(iii) applies to You if You purchase Campaigns that are invoiced for payment as expressly authorized  by Company in its sole discretion.  The initial invoice will be sent by Company upon completion of the first month’s delivery, or within thirty (30) days of completion of the Campaign, whichever is earlier. You will make payment 30 days from Your receipt of invoice.  All such payments (including for fees) will be made using a Method that the Company accepts, as set forth in the Platform Policies.  Late payments will be subject to an interest charge of the greater of one and one-half percent (1-1/2%) per month or the highest rate permitted by applicable law. Customer will pay reasonable expenses and attorneys’ fees that Millennial incurs in collecting late payments that are not disputed in good faith.

(c) Taxes.

i. Fees to Company. All fees payable in connection with the Service selected by You are (1) exclusive of any applicable sales, use, gross receipts, value added, or similar transaction based taxes, and (2) will be paid without deduction or withholding of any present or future taxes. To the extent that Company is required to collect and/or remit any such taxes in connection with the Service selected by You, You shall reimburse Company for such taxes. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your use of the Service. All fees owed by User to any third party based on the activity covered by this Agreement are solely the responsibility of You and User, jointly and severally.

ii. Fees to Developers.

1. Tax Reporting and Withholding.

a. Certificates or Other Documentation. Upon acceptance of the Agreement, You agree to complete and provide either an Internal Revenue Service Form W-9 or an appropriate Form(s) W-8 (W-8BEN, W-8ECI, W-8IMY or W-8EXP) with required attachments, as applicable and as requested by the Company, by which You certify your tax status under the United States Internal Revenue Code and, if applicable, claim treaty or other relief from withholding. You agree to complete the forms or provide other documentation or information in a true and accurate manner and to provide original, current, active, and up-to-date versions of such forms to the Company. You agree to complete and provide any other governmental forms, certificates, or documentation that the Company determines are required in its reasonable discretion.  For additional information, see the Platform Policies.

b. Withholding from Payments. All payments by the Company made in connection with this Agreement or made in accordance with any provision herein, will be made free and clear of and without deduction or withholding for or on account of any present or future taxes, duties, fees, assessments or governmental charges of whatever nature levied, collected, withheld or assessed by or on behalf of any relevant jurisdiction or any political sub-division or any authority thereof or therein, unless deduction or withholding of such present or future taxes, duties, fees, assessments or governmental charges is, in the Company’s reasonable discretion, required by law. The Company may deduct and withhold any taxes, duties, fees, assessments or governmental charges (including taxes that the Company reasonably determines were required to have been withheld out of previous payments, but were erroneously not withheld) that the Company determines in its reasonable discretion are required to be withheld; in such case, the Company shall pay to You payments required under this Agreement, net of such taxes, duties, fees, assessments, or governmental charges. For avoidance of doubt, any such withholding shall not reduce the share of fees that Company is entitled to under this Agreement. Nothing in this Agreement requires the Company to bear any amount on account of or in relation to any income or withholding tax, fine, penalty, interest or other amount imposed on You or on any payment made to You by the Company.

7. Termination.

This Agreement shall commence upon Company’s acceptance of Your User application and remain in effect until terminated as set forth herein (“Term”). This Agreement may be terminated by either Party upon three (3) days’ prior written notice. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right, in its sole and absolute discretion, to pause or terminate a Campaign and/or remove any Creative and/or Ads at any time for any reason, with or without notice to You. Company also reserves the right to terminate Your access to the Service, the Site or other Company Content at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. All legitimate, undisputed moneys and/or Platform Credits due to User that are retained from User but have not yet been spent on any Campaign, even amounts below the Payment Threshold, will be paid during the next applicable payment cycle following termination of this Agreement. If User conducts invalid activity in connection with the Service or any Campaign, violates this Agreement, and/or violates the Policies, and/or the License Agreement in any way, then such moneys and/or Platform Credits otherwise due User shall be deemed waived by You and revoked, as determined by Company in its sole and absolute discretion. The representations, warranties, limitations and obligations contained in Sections 6, 8, 9, 10 and 11 hereof shall remain in full force and effect after termination of this Agreement. Subject to the terms and conditions herein, all payment obligations accruing prior to the date of termination shall survive until fully fulfilled. You may terminate a particular Campaign through the Site, however, a Campaign that has been terminated may not be restarted. Any remaining, undisputed funds designated for such Campaign that have not yet been spent, unless such funds would otherwise be deemed waived and revoked in connection with a termination as provided above, may be applied to future Campaigns or refunded to You.

8. Representations and Warranties.

You represent and warrant that:

(a) Your User Content is, and shall remain at all times during the Term hereof, in compliance with all applicable laws (including, without limitation, applicable consumer privacy laws) and do not contain or promote, or link to another location that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content;

(b) Your User Content is, and shall remain at all times during the Term hereof, in compliance with all applicable Site and/or Service rules and policies, including the eligibility and content policies set out in Section 2(b) (above);

(c) Your User Content is, and shall remain at all times during the Term hereof, in compliance with any other applicable rules and policies set forth and communicated to You by Company;

(d) You agree not to send unsolicited bulk email, SMS, or MMS (e.g., SPAM) or otherwise violate any of the provisions of the CAN-SPAM and/or any applicable law;  

(e) You agree not to promote on or through Your User Content, nor link to content containing, any pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering or otherwise objectionable content;

(f) You will be solely responsible for the development and maintenance of any User Content and for any and all materials that appear therein. Such responsibilities include, without limitation: (i) creating and posting content, descriptions and references on or through the User Content; (ii) the accuracy and propriety of materials posted on or through the User Content; and (iii) if applicable, technical operation of the Developer Properties and all related equipment;

(g) You agree not to engage in any illegal activity, and shall at all times be in compliance with any and all applicable laws, rules and regulations;

(h) There is no pending or threatened claim, action or proceeding against You;

(i) Your acceptance and performance of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which You are subject; (ii) any order, judgment or decree applicable to You; (iii) any provision of Your corporate by-laws or certificate of incorporation, if applicable; (iv) any agreement or other instrument applicable to You; or (v) Your posted privacy policy;

(j) You own, or have all necessary rights and permissions to use and distribute all content, copyrighted material, products, data and services displayed on or through Your User Content;

(k) You have the right, power, and authority to enter into this Agreement and grant the rights specified herein;

(l) You will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the Ad Code, source codes, links, pixels, modules, data or Company Content provided by or obtained from Company that allows Company to measure the performance of Creative, calculate Net Revenue share and/or Events and otherwise provide the Service;

(m) You will not “frame” or “mirror” any part of the Site and/or Service, without our prior written authorization;

(n) You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Campaigns or the Service;

(o) If You are notified that invalid activities may be occurring in connection with or through Your Campaign, and You do not take any action to stop the invalid activities from continuing, then You are responsible for all associated costs, damages and legal fees resulting from these invalid activities;

(p) You agree to comply with the technical specifications provided by Company to enable proper display of the Ads in connection with the Service;

(q) You agree to direct to Company, and not to any other User, all communications regarding any matter arising out of Your use of the Service;

(r) You agree to provide Company with accurate, complete, and updated registration information, as required by Company in its sole discretion;

(s) If You are required by Company, in its sole discretion, to select a password as a condition of using the Site and Service, You agree to be responsible for maintaining the confidentiality of Your password;

(t) You agree not to post any messages to newsgroups, chat rooms, bulletin boards or any other places that mention specific Developers, Advertisers or Campaigns unless You obtain express prior written permission from Company;

(u) You agree to not use any fraudulent and/or deceptive practices when marketing Ads or presenting Ads to consumers;

(v) If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Creative, Ads, and/or Company Content;

(w) If You are a Developer you have a privacy policy posted on your Web Sites and/or Mobile Apps that is in compliance with any and all applicable laws, rules and regulations;

(x) If You are a Developer, You agree to display the Creative exactly as it is made available to You in connection with the applicable Campaign and You will not alter in any way any Creative that has been made available to You by and through the Site; and

(y) If You are an Advertiser, You acknowledge and agree that Company has no control over any content that may be available or published on any mobile web sites or in any mobile applications provided by Developers in Company’s Service (or otherwise), and that You are solely responsible (and assume all liability and risk) for determining whether or not such content is appropriate or acceptable to You.

9. Privacy and Data; Non-Disclosure.

(a) You agree to comply with all Relevant Privacy Requirements. The term “Relevant Privacy Requirements” shall mean, for purposes of this Agreement, all (i) applicable laws, governmental regulations and court or government agency orders, decrees and policies relating in any manner to the collection, use or dissemination of information from or about users, user traffic or otherwise relating to privacy rights or with respect to the sending of marketing and advertising communications; (ii) any written agreements You or Company may have with non-governmental certification or self-regulatory bodies; (iii) Your posted privacy policy; and (iv) Company’s privacy policy as posted on its web-site and updated from time to time. You represent and warrant that to the extent You provide any information regarding devices and/or users to Company and/ or permit Company to collect such information, it is provided in compliance with all Relevant Privacy Requirements including Your posted privacy policy. You further represent and warrant that you have provided all required notices and obtained any and all consents or permissions necessary under Relevant Privacy Requirements, including without limitation all necessary and valid consents from individuals, to provide data to Company and to authorize Company’s use of such data as provided for herein. Company hereby permits You to identify Company in Your privacy policy, and to provide a link to Company’s privacy policy in Your privacy policy.  Company reserves the right to modify, suspend, or terminate the performance of the Service to remain compliant with law.

(b) You acknowledge that all business, technical and financial information made available by Company hereunder or otherwise as part of the Service is proprietary to and owned by Company (“Proprietary Information”). Except as expressly allowed herein, You will hold in confidence and not use or disclose any Proprietary Information of Company. You shall not be obligated under this Section 9(b) with respect to information You can document: (i) is or has become readily publicly available without restriction through no fault of You or Your employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in Your possession without restriction prior to its disclosure by Company; or (iv) was independently developed by Your employees or consultants without access to such Proprietary Information. All Proprietary Information may be protected by copyright, trademark, trade secret and other intellectual property laws. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any Proprietary Information of Company in any manner. These non-disclosure obligations shall survive termination or expiration of this Agreement.

(c) This Section 9(c) applies to You if You are an Advertiser. Unless otherwise authorized by Company, You will not use data gathered during delivery of an Ad pursuant to any Campaign contemplated by this Agreement (e.g., number of impressions, interactions, and header information), for retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of a Campaign contemplated by this Agreement. Company may use non-PII (as defined below) data and/or aggregate data that is generated or collected in connection with the Campaign (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Company, so long as the Permitted Data or its use does not identify User, and is not used to target based upon User’s PII (as defined below) and/or Advertiser brand’s identity.

(d) This Section 9(d) applies to You if You are a Developer. Unless otherwise authorized by Company, You will not use data gathered during delivery of an Ad pursuant to any Campaign contemplated by this Agreement (e.g., number of impressions, interactions, and header information), for retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of a Campaign contemplated by this Agreement. You represent and warrant that, with respect to precise geo-location data (i.e., latitude/longitude of the device) and/or hashed device identifiers, You have obtained affirmative consent from the device user to provide such data to Company in connection with this Agreement, and for Company to use such data as provided for herein. You further agree that you shall not pass any personally-identifiable information (“PII”) to Company unless expressly provided for in writing, and it is permitted to do so under all Relevant Privacy Requirements. All information submitted by or otherwise gathered from end-users (“Customer Information”) in connection with a Campaign or Ad shall be considered proprietary to and owned by Company and/or Company’s advertising clients. Such Customer Information is Proprietary Information and may not be used or disclosed by You. You acknowledge that Company may, to the extent it deems appropriate, collect and compile certain information generated in connection with campaigns run by You (collectively referred to as “Campaign Data”). Campaign Data may include, without limitation, Customer Information, data regarding user traffic and advertising delivery, information concerning the content delivered by You, information regarding the device and/or user passed from You to Company, advertising impressions served, and/or content accessed by or through the Company Service. Campaign Data shall be deemed to be Proprietary Information and You agree not to use or disclose Campaign Data other than as expressly permitted herein. Without limiting the foregoing, Company may use and disclose the Campaign Data (other than PII) (i) for Company’s reporting purposes that may be subsequently provided to Company’s customers, potential customers and/or disclosed to the general public; (ii) if required by any court order, law, or governmental agency; and (iii) for other legitimate Company business purposes, including without limitation, optimization, ad-decisioning, and/or audience building.

10. Limitation of Liability; Disclaimer of Warranty.

IN NO EVENT SHALL COMPANY OR THE COMPANY PARTIES (AS DEFINED BELOW) BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SITE, THE SERVICE OR ANY COMPANY CONTENT, OPERATION OF A CAMPAIGN, ADVERTISERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CREATIVE ON OR THROUGH YOUR USER CONTENT INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IF COMPANY AND/OR THE COMPANY PARTIES ARE FOUND LIABILE TO YOU FOR DAMAGES COMPANY AND THE COMPANY PARTIES’ MAXIMUM AGGREGATE LIABILITY TO YOU, USER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THREE HUNDRED DOLLARS ($300). YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SITE, CREATIVE, ADS, CAMPAIGNS, INFORMATION, CONTENT AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE, CREATIVE, ADS, CAMPAIGNS AND/OR COMPANY CONTENT MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY AND THE COMPANY PARTIES HAVE NO LIABILITY, WHATSOEVER, TO YOU, USER OR ANY THIRD PARTY, FOR YOUR USE OF, OR INABILITY TO USE, THE SITE, THE SERVICE, CREATIVE, ADS, CAMPAIGNS AND/OR COMPANY CONTENT AND COMPANY AND THE COMPANY PARTIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT YOUR USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE CAMPAIGNS WILL BE AVAILABLE TO YOU. YOU FURTHER AGREE NOT TO HOLD COMPANY RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITH RESPECT THIRD PARTY ACTIONS RESULTING IN EVENTS (AS DEFINED ABOVE), REGARDLESS OF THE INTENT OF SUCH THIRD PARTY. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE SITE, SERVICE, CREATIVE, ADS, CAMPAIGNS AND/OR COMPANY CONTENT WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. COMPANY AND THE COMPANY PARTIES MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SITE, CREATIVE, ADS, CAMPAIGNS AND/OR COMPANY CONTENT, INCLUDING, WITHOUT LIMITATION, THAT ANY PARTICULAR NUMBER OF USERS WILL VIEW THE ADS, CLICK ON THE ADS OR MAKE ANY PURCHASES AFTER CLICKING ON THE ADS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM COMPANY THROUGH THE SITE, CREATIVE, ADS, CAMPAIGNS AND/OR COMPANY CONTENTSHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

11. Indemnity.

You shall indemnify, defend and hold Company, its parents, Developers, Advertisers and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys (the “Company Parties”), harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or related to: (a) Your improper use of the Site, Creative or any Ad; (b) Your improper operation of a Campaign; (c) any third party claim related to Your User Content and/or Your marketing practices; (d) any content, goods or services offered, sold or otherwise made available by You on or through the User Content or otherwise; (e) any claim that Company or any Company Party is obligated to pay any taxes, including withholding taxes and any other taxes (including interest and penalties thereon), in connection with payment made in connection with this Agreement and/or any Campaign; (f) any claim that Company is obligated to pay any revenue share to any third party such as wireless service providers in connection with payment made to You in connection with this Agreement; (g) any breach or violation of this Agreement and/or any representation or warranty contained herein; and/or (h) Your use of the Service, in any manner whatsoever.

12. Assignment and Jurisdiction.

Company may assign, transfer, sublicense or delegate this Agreement, in whole or in part, with or without Your consent. You may not assign, transfer, sublicense or delegate this Agreement or any part hereof without the prior written consent of Company, which may be withheld for any reason. This Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns. This Agreement shall be construed and governed by the law of the State of Maryland. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Maryland for any actions arising from or relating to this Agreement.

13. Severability.

If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect.

14. Force Majeure.

Company shall not be liable to You by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of Company.

15. Attorneys' Fees.

Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.

16. Miscellaneous.

You agree that any unauthorized and/or unlawful use of the Company Content and/or Campaigns would result in irreparable injury to Company for which monetary damages would be inadequate. In such event, Company shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against You without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to Company. This Agreement, together with the License Agreement and the Policies, contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants except if the Parties have entered into a separate Mobile Advertising Agreement. Such Mobile Advertising Agreement will supersede the terms of this Agreement that expressly apply to Developers only but will not supersede those terms that are applicable to Advertisers and all other terms of this Agreement will remain in full force and effect. Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Except as necessary to allow Company to perform hereunder, neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf. All notices shall be sent to the addresses submitted by You when signing up for the service by certified mail, fax, email or courier. Company’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Company reserves the right to change any of the terms and/or conditions of this Agreement at any time, with notice to You (which notice may be posted on the Site).

Updated: June 28, 2013

© Copyright 2013 Millennia Media, Inc.. All rights reserved. A service of Millennial Media, Inc.