7.1. Subject to compliance with all terms and conditions of the present Agreement, as well as in consideration of full and timely payments of the fees hereunder and all the Customer's warranties, representations and guarantees and covenants hereunder given, AdEx grants the Customer the non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, limited by the term, worldwide license to utilize AdEx's Software and Service during the term of this Agreement and in accordance with the respective Insertion Orders (if any).
7.2. The Customer shall be entitled to utilize the Software and/or the Service only for the purposes of Traffic / Data examination / analysis and check, and always subject to the terms and conditions of the Agreement.
7.3. The Software and the Service utilization by the Customer hereunder shall always be strictly for non-commercial purposes. The Customer shall not under any circumstances be entitled to sale, resale, offer for sale or otherwise capitalize on AdEx's Software and Service.
7.4. The Customer shall always enjoy the License hereunder only subject to applicable laws, legal norms, standards, requirements and etc., as well as shall never infringe or try to infringe any third party's rights (e.g. personal rights, Intellectual Property rights, etc.) or the terms and conditions of this Agreement.
7.5. The term of the License shall be limited by the term of the Agreement (in case of the free trial period – until termination / expiration of the free trial period). The License shall be valid from the Effective Date and during the term of the Agreement, i.e. until expiration or termination (for any reason) of the Agreement (in case of the free trial period – until termination / expiration of the free trial period). Once the present Agreement is expired or terminated (for any reason) the License hereunder granted by AdEx to the Customer shall automatically be considered as terminated, and the Customer shall stop any utilization of the Software and/or the Service. If the Customer utilizes the free trial period hereunder, then the term of such free trial period is to be incorporated into the total term of the Agreement.
7.6. Despite the worldwide nature of the License, it shall be restrained only to URLs of Traffic / Data used by the Customer in pursuance to the present Agreement.
7.7. AdEx reserves the right at any time and for any reason (or without such) to revoke the License by giving you a notice (including via email or in your Account). Subject to any revocation of the License, the Customer shall remain liable in full for payment of all and any balance amounts accrued prior to the License revocation, and AdEx shall be fully entitled to withhold all and any sums remaining on the balance of the Customer's Account.
7.8. The Customer grants AdEx the non-exclusive, royalty-free, worldwide, unconditional, irrevocable, limited by the term of the Agreement, sub-licensable, transferable and assignable right to utilize the Traffic / Data / Materials, as well as any other data, materials, information, records and etc., provided by the Customer to AdEx for the purposes of the Service and execution of the Agreement. AdEx shall be entitled to sublicense the right to utilize the Traffic / Data / Materials, as well as any other data, materials, information, records and etc., provided by the Customer to AdEx to its Affiliates and those third parties which are engaged in the Agreement execution.
8. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
8.1. The Customer hereby acknowledges and agrees that all rights, title, and interest in and to the Software and/or the Service shall at all times remain the sole and exclusive property of AdEx. During the term of the Agreement and forever thereafter, the Customer shall not take any actions adverse to AdEx's rights, title and interest to all and any: (i) elements of the Software / Service; and/or (ii) any other Intellectual Property owned by AdEx; as well as shall not challenge, and/or assist any third party to challenge, the validity of the Software / Service, AdEx's ownership in and/or any other rights to the Software / Service; shall not conduct any registration or apply for registration for the Software / Service or any elements thereof; as well as shall not represent or act in any manner that the Customer has any title, registration, ownership in or any other rights to the Software / the Service. The Customer acknowledges, understands and confirms that following the term of this Agreement expiration / termination (for any reason), the License granted by AdEx hereunder shall be considered as automatically terminated and be of no further force and effect.
8.2. AdEx shall retain all Intellectual Property rights, as well as any other property rights in and to the Software, the Service and other services, reports, information, materials and data that is provided by AdEx under this Agreement, including source codes, databases, hardware and/or any other materials (e.g. documentations, developments, functions, reports, report templates and preparatory material).
8.3. The Customer shall remain the owner and reserves all the rights, title and interest in and to the Traffic / Data / Materials, as well as any other data, materials, information, records and etc., provided by the Customer to AdEx for the purposes of the Service and execution of the Agreement. Except for as expressly set forth in this Agreement, no right, title or interest to the Customer's Traffic / Data / Materials, as well as any other data, materials, information, records and etc., provided by the Customer to AdEx hereunder is transferred to AdEx.
9. WARRANTIES AND REPRESENTATIONS
9.1. As from the Effective Date, during the entire term of the Agreement and for one (1) year further to expiration / termination (for any reason) of the Agreement, the Customer shall represent, warrant, guarantee and covenant that:
9.1.1. if he/she is an individual, then he/she is of legal age (according to any applicable law) or has obtained all necessary permissions and consents from his legal representative (if the Customer is under the legal age); acts in his/her good faith; is of sound mind and memory, is capable to understand the meaning of his actions and to control them; is not a person, recognized incapable or incapacitated by the court; is not under influence of misconception, deception, violence, threat, concourse of grave circumstances or willful agreement with any third party;
9.1.2. it is not bound by any obligations and/or there aren't any circumstances, which prevent the Customer from conclusion of the Agreement and/or proper fulfillment of all its obligations hereunder, including that it is not bound by any contract/agreement obligations with the third parties in respect of the subject of this Agreement;
9.1.3. during the term of this Agreement it will not assume fulfillment of obligations, which may prevent from proper fulfillment of the Agreement;
9.1.4. it has studied thoroughly the Agreement, and understands all the terms and conditions of the Agreement; by concluding the Agreement and/or by actual Access to / use of the Software and/or the Service, the Customer shall agree with all the terms and conditions, specified in the Agreement, and shall observe them inviolately and in full;
9.1.5. conclusion of the Agreement will not violate lawful rights of the third parties, including, without limitation, proprietary rights, Intellectual Property rights, personal, civil, contract and other rights, arising out of any sort of transactions, regulatory legal and other acts, court decisions and other grounds, as well as will not damage honesty, dignity and/or business reputation of third parties;
9.1.6. the Customer has the full right and authority to enter into this Agreement and grant the rights herein granted, including that the Customer has in advance obtained all and any legal licenses, permissions, powers, allowances and etc. under the applicable corporate and other laws (if applicable);
9.1.7. the Customer has not made and will not make any commitment nor do any act in conflict with this Agreement or AdEx's rights hereunder;
9.1.8. there is no claim, action, suit, and/or proceeding pending, or, to the Customer's actual knowledge, threatened, which if adversely determined would affect the ability of the Customer to enter into this Agreement or to perform the duties and obligations hereunder;
9.1.9. the Customer will observe and comply with all AdEx's requirements and instructions relating to the security of all hardware and Software used by the Customer;
9.1.10. the Customer has all necessary rights, permits and licenses to check, examine, control, manage, analyze and otherwise utilize the Traffic, Data, Data Feed and any other data, materials, information, records and etc., provided by the Customer to AdEx for the purposes hereunder, as well as has the full legal right and ability to grant AdEx the right to utilize the Traffic, Data, Data Feed and any other data, materials, information, records and etc., provided by the Customer to AdEx for the Agreement execution;
9.1.11. the Customer has all necessary rights, permits and licenses to operate the Customer's websites and business activities in the applicable jurisdictions;
9.1.12. the Customer will not use the Account / Website, or other AdEx's system interfaces, available to the Customer in connection with the execution of this Agreement, in any ways not provided for by this Agreement, including not to distribute or transfer them to any third party;
9.1.13. it has duly provided AdEx with all accesses and other technical requirements necessary for the last to receive the Traffic / Data information, so that to effectuate the Service hereunder, and that AdEx shall not be liable for any default or improper Service occurred due to the Customer's failure to provide AdEx with all necessary accesses and technical arrangements necessary for the Agreement execution;
9.1.14. AdEx shall not in any case and under any circumstances be responsible or liable for the contents and legality of the Traffic / Data / Materials / Data Feed and any other data, materials, information, records and etc., provided by the Customer to AdEx for the Agreement execution;
9.1.15. AdEx shall not be liable and considered as in default or improper fulfilment of the Agreement subject to (i) that the Platform(s) are secured with any firewalls, protection codes, antiviruses or any other protective measures, blocks and instruments hindering or preventing the proper use of the Service hereunder; and/or (ii) any other reasons beyond AdEx's reasonable control, each and every of which may make the Software utilization and use of the Service hereunder impossible or incorrect;
9.1.16. The Customer accepts and acknowledges the full responsibility for and liability in should the Traffic / Data / Data Feed / Materials and any other data, materials, information, records and etc., provided by the Customer to AdEx for the Agreement execution, be deemed invalid, violating, infringing, unlawful or illegal in any applicable jurisdiction;
9.1.17. you don't use automated tools, including robots, scripts, or spiders, for generation of the inquiries or gather information from the interface of AdEx;
9.1.18. you will not use the Software / Service / Website / Account or any other AdEx's interface and/or system for any purposes that violate any applicable laws or rights of any third parties, including their personal and Intellectual Property rights;
9.1.19. you shall NOT modify, adapt, translate, disassemble or otherwise attempt to derive the source code of the Software or any other software used in the Website / Account / AdEx's interface, system, program, etc.;
9.1.20. you are to provide AdEx with all the documentation or its equivalents, needed for identification of the parties, ascertainment of the legal fact and fulfilment of its obligations under this Agreement, within ten (10) calendar days from the date of a respective request;
9.1.21. you irrevocably authorize AdEx to transfer a request received by us to provide information for the payment directly to your financial institution available;
9.1.24. utilization by AdEx of all and any Traffic / Data / Materials / Data Feed and any other data, materials, information, records and etc., provided by the Customer to AdEx for the Agreement execution, will not violate or infringe legal rights and/or interest of any third parties, including their personal, Intellectual Property, exclusive and any other rights;
9.1.25. you warrant that the Platforms are in compliance with all applicable laws and terms and conditions of the Agreement, and does not contain or promote, nor links to another Platform that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, infringing, sexually explicit, illegal or any other objectionable content, including copyright ownership infringements and unlawful use of Intellectual Property;
9.1.26. you have provided and you will maintain accurate, complete and up-to-date data during registration, monitor its updating and that you will inform AdEx about unauthorized access to your Account and/or unauthorized access and/or use of your password and login;
9.1.27. you agree and undertake not to promote via AdEx / Software / Services and other AdEx's Intellectual Property and assets any libelous, defamatory, abusive, violent, prejudicial, obscene, infringing, sexually explicit, illegal, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering or any other objectionable content;
9.1.28. you will not engage in any illegal activity, in accordance with applicable law, whatsoever, is not allowed;
9.1.29. you will not illegally upload, store, publish, distribute and provide access to or otherwise use the Intellectual Property of any third parties;
9.1.30. you will not utilize Software / Service / Website / Account (including links to them) in any manner that may violate any applicable law, as well as the rights and interests of any third parties (including the Intellectual Property rights);
9.1.31. you will not make any actions or disseminate unverified, false, misleading and other information that causes and/or may cause harm to AdEx and its Software, as well as AdEx's reputation and goodwill;
9.1.32. you will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the Software / Service / Website / Account and their tags, source codes, links, pixels, modules or other data provided by or obtained from AdEx;
9.1.33. you will not in any way use the Software / Service / Website / Account and carry out any actions with them aimed at disrupting the normal functioning of the Platform(s) or any other networks, websites, resources of your own and/or of any third parties, nor will you use automated tools, including robots / scripts / spiders / programs / malware / adware / cloaking and phishing methods / etc. to generate inquiries and misleads, as well as to perform any other illegal, fraudulent or immoral actions;
9.1.34. you will not in any way, including, but not limited to, by deception, abuse of trust, hacking, attempt to gain access to the login and password of other users / customers; illegally collect and process personal data of other persons, carry out / try to get access to any Service in any other way than through the Website and Account provided by AdEx;
9.1.35. you confirm that AdEx does not represent, warrant or make any specific or implied promises as to the successful use of the Service / Software;
9.1.36. if you are notified that fraudulent activities may be occurring on the Platform(s), and you do not take any actions within your reasonable control to stop the fraudulent activities, then you are responsible for all associated costs and legal fees resulting in these fraudulent activities;
9.1.37. you will not take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large loan on our technology infrastructure or otherwise make excessive demands on it;
9.1.38. you will not disable, circumvent or otherwise interfere with security related features of our Software / Service or features that prevent or restrict use or copying of any part of our Software / Service, or which enforce limitations on the use of our Software / Service;
9.1.39. you hereby irrevocably confirm and authorize AdEx to transfer a request received by AdEx to provide information for the payment directly to your financial institution available;
9.1.40. the Platform(s) does not contain any sexual or erotic material that depicts persons under the age of eighteen (18) or in a manner that suggests that they are under the age of eighteen (18);
9.1.41. if any errors or undesirable results occur due to no fault of AdEx, AdEx shall not be responsible for any damages and losses and you may not be compensated / indemnified;
9.1.42. you will ensure that your technical preferences / Platform(s) support the Traffic / Data redirection / utilization through our Service / Software. AdEx takes no responsibility for all and any consequences in the event your technical preferences / Platform(s) cannot support the Traffic / Data redirection / utilization through our Service / Software. You shall test your Platform to ensure its correct appearance in different web browsers, devices or systems and optimize it if necessary, so that to duly receive the Service / utilize the Software;
9.1.43. you will not make any representations, warranties or other statements concerning AdEx or other users / customers or any of their respective products or services, except as expressly authorized herein;
9.1.44. you will make sure that the Platform(s) does not copy or resemble the look and feel of AdEx or create the impression that the Platform(s) is endorsed by AdEx or is a part of the AdEx Service, without the prior written consent of AdEx;
9.1.45. you will comply with all obligations, requirements and restrictions under this Agreement and applicable laws, rules and regulations as they relate to your business, the Platform(s) or your use of the Service / Software;
9.1.46. you will comply with all the terms, conditions, guidelines and policies of AdEx;
9.1.48. you acknowledge that every case of violation of the terms of this Agreement by you will lead to material and business standing losses of AdEx in the amount of at least $1000 (One thousand US dollars). Therefore, we reserve the right to stop the Service, and/or withhold your Account balance, and/or fine you to recover damages caused in the specified amount, or the amount of actually incurred losses, in the event of your breach of the Agreement. Such losses may be deducted from the balance of your Account on the Website.
9.2. The Customer acknowledges and agree that any Customer's material violation of any representation, warranty, guarantee and/or covenant set forth herein shall be a material breach of this Agreement.
9.3. In case of a breach of any representation, warranty, guarantee and/or covenant specified hereunder, AdEx may terminate this Agreement and/or revoke the License at any time without prior notice to the Customer, withhold any funds or Account balance of the Customer, and claim for compensation / indemnification of the losses and damages incurred.
9.4. The Customer further represents, warrants, guarantees and covenants that any and all materials and information furnished by the Customer hereunder will comply with AdEx's rules and policies and shall not violate the civil or proprietary rights of any third parties. The Customer will not enter into any other agreement or become subject to any other obligation which materially conflicts with this Agreement or the rights and obligations hereunder.
9.5. Each Party will make every effort to uphold the highest ethical and commercial standards.
9.6. AdEx gives no representations, warranties, guarantees, covenants, etc. in respect of the connectability and workability of the Software (neither by the Code Integration, nor by the Redirect Webpage) with any particular Platform(s), nor AdEx represents, warrants, guarantees, covenants, etc. that the Software will not in any way affect the work, connection, operation, etc. of any Platform(s).
9.7. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, WARRANTIES, GUARANTEES AND COVENANTS ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY. NOTHING IN THIS CLAUSE LIMITS OR EXCLUDES EITHER PARTY'S LIABILITY FOR FRAUD.
10. FRAUD DETECTION PROVISIONS
10.1. YOU SHALL NOT CHEAT, DEFRAUD OR MISLEAD US, OR ATTEMPT TO CHEAT, DEFRAUD OR MISLEAD US, IN ANY MANNER.
10.2. You are expressly prohibited from using any means, program, tools, devices or arrangements and/or the Service / Software hereunder received to commit fraud, violate any applicable law, interfere with other any third parties or falsify information in connection with the Service or exceed your permitted Access to the Software / Service. You are forbidden from any practice of disguising (cloaking) the advertisements / Materials and/or any other information with different content or landing page and you are prohibited from using any preference / method resulting to the redirection of the end user to the Platform(s) when such end user has at least once previously chosen through a certain action to leave your webpage.
10.3. The prohibited activities include but not limited to: framing an ad-banner's click-through destination, invisible iframe, auto-spawning of browsers, running "spiders"/"bots", automatic redirecting of users and any other techniques of generating automatic or fraudulent click-through, impressions, statistics, information and etc. In any case AdEx shall make all determinations about fraudulent activity hereunder in its sole discretion.
10.4. If you are suspected for any fraudulent activity, AdEx shall have the right to stop your participation in the Service and/or License, to ban your Account, to withhold Account balance and to take all necessary legal actions to remedy the damages caused by this violation. In any case AdEx shall make all determinations about fraudulent activity hereunder in its sole discretion.
10.5. This section of the Agreement outlines the AdEx's approach concerning any kind of fraudulent Traffic / Data, which is/are strictly prohibited, and facilitate the development of controls and rejection procedures. Fraudulent Traffic / Data refer to actions performed or information (statistics) generated by means of any device, program, robot, sign-up script, automatic entry system or any other malicious software, mobile device farms, and any other actions, directed to deceit of AdEx and getting illegal benefit, which is materially injurious to AdEx or any other third parties.
10.6. The reports provided by AdEx shall be treated by the Customer as sufficient evidence for the Traffic / Data being subject to fraudulent activity.
10.7. The Customer hereby agrees not be paid or pay for fraudulent Traffic / Data.
10.8. The results of the Traffic / Data quality assessment will be provided to the Customer in the form of following reports:
• Aggregated reports indicating the total number of fraudulent Impressions in the Traffic / Data;
• AdEx's detailed fraud reports to be provided at the request of the Customer (within Account).
10.9. To ensure that the fraudulent Traffic / Data are rejected for the payment purposes AdEx also reserves the right to:
• Decide whether to suspend the Traffic / Data Feeds or sources of the Customer, or any online campaigns of Customer unilaterally without further explanation of the reasons of such suspension (if AdEx has a reasonable legal right to effect such actions as described above, including through AdEx's Affiliates);
• To ask the Customer to submit to AdEx the additional information about the Traffic / Data / Materials, methods of conducting online campaigns, as well as any other reasonable information in this connection, which at AdEx's sole discretion is or might be helpful for identifying and preventing fraudulent actions against AdEx or any other third party;
• Based on the principles specified by the Interactive Advertising Bureau (IAB) - IAB Anti-Fraud Principles and Taxonomy, - do not provide the Customer with additional information on the detected fraudulent Traffic / Data to avoid the risk of adaptation approaches used by fraudsters.
10.10. In addition to the above, the Customer agrees with requirements of AdEx on that:
• Any online campaign or action of the Customer must be conducted in accordance with all applicable local, state, national and international laws and regulations;
• During the term of the Service, the Customer is prohibited from using the illegal, libelous, offensive, fraudulent, obscene or otherwise objectionable Materials, as well as the Materials that contain viruses or which are otherwise able to interfere or attempt to interfere with the proper operation of the Service / Software;
• All information received by the Customer, including but not limited to the reports hereunder, shall be treated by the Customer as confidential, and shared only in case when the disclosure of such information is necessary to observe any applicable law, regulation, litigation or government request.
11.1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT OF ALL APPLICABLE LAWS, THE WEBSITE AND THE ACCOUNT (INCLUDING ALL THE INFORMATION AND INTERFACE THEREON), THE SOFTWARE AND THE SERVICE ARE PROVIDED BY US AS A NEUTRAL HOST AND ON AN "AS IS" BASIS, AND WE DISCLAIM: (I) ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE SOFTWARE, SERVICE, WEBSITE, ACCOUNT OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (II) ANY REPRESENTATION AND WARRANTY THAT THE SOFTWARE, WEBSITE, ACCOUNT, OUR PRODUCTS, SERVICE OR INFORMATION WILL OPERATE UNINTERRUPTED, ERROR-FREE, OR THAT THE SERVERS ARE FREE OF VIRUSES, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS; AND (III) LIABILITY FOR ANY THIRD PARTY'S SECURITY METHODS AND PROTECTION PROCEDURES. FURTHER, WE MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SOFTWARE AND SERVICE AND/OR ASSOCIATED PRODUCTS. YOU MUST USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. WE GIVE NO ADVICE OR INFORMATION, WHETHER VERBAL OR WRITTEN, THROUGH THE SOFTWARE, WEBSITE, ACCOUNT AND/OR OTHERWISE, AND WE GIVE / CREATE NO REPRESENTATION, WARRANTY, GUARANTEE AND/OR COVENANT NOT EXPRESSLY STATED HEREIN.
11.2. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED SERVICE INCLUDING, BUT NOT LIMITED TO, THE RISK OF FAILURE OF HARDWARE, SOFTWARE AND INTERNET CONNECTIONS, THE RISK OF MALICIOUS SOFTWARE INTRODUCTION, AND THE RISK THAT THIRD PARTIES MAY OBTAIN UNAUTHORIZED ACCESS TO INFORMATION STORED WITHIN YOUR ACCOUNT, INCLUDING, BUT NOT LIMITED TO, THE TRAFFIC / DATA. THE CUSTOMER IS HEREBY WARNED OF ANY POSSIBLE ERRORS, MISTAKES, DEFAULTS, CRASHES AND ETC. OF THE PLATFORM(S) AND ITS(THEIR) OPERATION WHICH MAY ARISE SUBJECT TO THE SERVICE / SOFTWARE UTILIZATION HEREUNDER. THE CUSTOMER UNDERSTANDS, CONFIRMS AND AGREES THAT ANY UTILIZATION BY THE CUSTOMER OF THE SERVICE / SOFTWARE SHALL BE CONSIDERED AS AT THE CUSTOMER'S SOLE DISCRETION PERFORMED AT THE CUSTOMER'S OWN RISK, AND IT IS ONLY THE CUSTOMER, AND NOT ADEX, WHO SHALL BE RESPONSIBLE IN FULL FOR ANY POSSIBLE OR EVENTUAL ERRORS, MISTAKES, DEFAULTS, CRASHES AND ETC. OF THE PLATFORM(S) / ITS(THEIR) OPERATION, AS WELL AS FOR ANY CONTEMPLATED DAMAGES AND LOSSES RESPECTIVELY INCURRED THEREWITH.
11.3. THE CUSTOMER AGREES AND UNDERSTANDS THAT THE SERVICE / SOFTWARE HAS THE TECHNICAL LIMITS OF THE ABILITY TO ANALYZE / EXAMINE / CHECK / ETC. THE TRAFFIC / DATA, AND THAT THE CUSTOMER SHALL NOT REQUIRE, DEMAND, REQUEST OR OTHERWISE ASK FOR ANY SERVICE, OR ANALYSIS / EXAMINATION / CHECK / ETC. OF ANY ELEMENT OF THE TRAFFIC / DATA WHICH ARE BEYOND THE TECHNICAL INSTRUMENTS AND ABILITIES OF THE SERVICE / SOFTWARE. HENCE, FOR INSTANCE AND WITHOUT LIMITATIONS, THE CUSTOMER HEREBY IS INFORMED OF THE SERVICE / SOFTWARE INABILITY TO DEAL WITH AND/OR ANALYZE / EXAMINE / CHECK / ETC. THE INSTALLS WITHIN THE TRAFFIC / DATA, OR TO DETECT THE FRAUDULENT INSTALLS THEREUNDER. THE CUSTOMER HEREUNDER AGREES AND CONFIRMS TO UTILIZE THE SERVICE AND THE SOFTWARE ONLY TO THE EXTEND THE SERVICE / SOFTWARE CAN ACTUALLY PROVIDE FOR FROM THE TECHNICAL POINT OF VIEW.
11.4. ADEX IS NOT A SERVICE PROVIDER AND DOES NOT PROVIDE ANY KIND OF SERVICES / PERFORM ANY KIND OF WORKS HEREUNDER OR IN ANY OTHER WAY. ADEX MERELY GRANTS THE RIGHT TO UTILIZE THE SOFTWARE (THE LICENSE) AND ENJOY THE DELIVERABLES OF SUCH UTILIZATION (THE SERVICE).
12. SERVICE AVAILABILITY
12.1. Upon receipt of the Service, the Customer may notify AdEx in writing regarding any obvious defects and we shall timely remedy any such defects. In such case, the Customer shall provide AdEx with any information or documents required to analyze or debug the Software and/or the Service, and shall provide AdEx with access to the Customer's servers if it is reasonably necessary for the purposes of the defects detection and elimination, and hereby grants its approval to provide such access to AdEx.
12.2. Subject to compliance with all terms and conditions hereunder, the Software and/or the Service shall be available to the Customer. AdEx points out that the Software / Service may be interrupted or disrupted by circumstances beyond AdEx's reasonable control, including but not limited to acts of third parties that do not act on AdEx's behalf, technical conditions of the Internet, any other circumstances that AdEx has no reasonable control over, or owing to Force Majeure.
13. TERM; TERMINATION
13.1. The term of this Agreement shall commence on the Effective Date and shall continue until the earliest of the following: (i) expiration / termination of the free trial period as provided for hereunder (in absence of the Customer's decision to continue to enjoy the Service); or (ii) expiration / termination (for any reason) of the Agreement as provided for hereunder. For avoidance of a doubt, expiration / termination of the Agreement shall not affect the Parties' obligations arisen prior to such expiration / termination.
13.2. Both Parties may immediately terminate this Agreement:
• if the other Party becomes insolvent, subject to the insolvency proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets;
• if the other Party breaches this Agreement and fails to remedy such violation within thirty (30) calendar days of receipt of a written request.
13.3. AdEx may immediately terminate this Agreement:
• if the Customer breaches its material obligations, and/or its representations, warranties, guarantees and covenants given pursuant to this Agreement;
• if the Customer is in default of payment and does not settle the outstanding payment upon receipt of a warning letter with a thirty (30) calendar day deadline for payment.
13.4. Each Party may terminate this Agreement at any time provided that such Party submits thirty (30) calendar days prior written notice to the other Party. However, if the Customer terminates the Agreement, then the Customer shall be liable for outstanding payments for the Service.
13.5. Upon termination of this Agreement, the Customer is obliged to delete all codes and other materials that were provided by AdEx (and their copies).
13.6. Upon termination of the Agreement (for any reason), the following terms apply: (a) the Customer's License and any and all other licenses and rights granted to you in connection with this Agreement shall immediately and automatically cease and terminate. You are to be responsible for any outstanding balances and expenses incurred.
13.7. No claim by the Customer for a breach of any representation or warranty by AdEx shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was disclosed to the Customer and/or actually known by the Customer prior to Agreement termination.
13.8. If AdEx revokes the License hereunder granted in accordance with the terms and conditions herein, the Agreement shall be considered as terminated and the Customer shall be responsible for any outstanding balances and expenses incurred.
14. LIMITATIONS OF LIABILITY
14.1. IN NO EVENT SHALL ADEX BE LIABLE FOR ANY DAMAGES OF ANY KIND AND EXPRESSLY DESCLAIMS ANY AND ALL RESPONSIBILITY IN RELATION TO ANY CLAIMS ARISING OUT FROM AND/OR IN CONNECTION WITH YOUR USE OF THE SERVICE, SOFTWARE, WEBSITE, ACCOUNT; AND/OR YOUR PARTICIPATION IN ANY SERVICE / SOFTWARE UTILIZATION; AND/OR FROM OUR EFFORT AND/OR OUR ACTIONS INTENDING TO ANALYZE / CHECK / EXAMINE / ETC. THE TRAFFIC / DATA OF/ON THE PLATFORM(S) EITHER TAKEN WITH OR WITHOUT YOUR CONSENT INCLUDING BUT NOT LIMITED TO BROKEN IMAGES, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF ADEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADEX IS ONLY OFFERS THE SEVICE, AND ADEX IS ONLY THE TOOL FOR THE TRAFFIC / DATA ANALYZING, EXAMINING, CHECKING, ETC. THROUGH ITS SERVICE. THE INFORMATION, REPORTS, STATISTICS AND OTHER ADEX'S SERVICE ARE PROVIDED ON AN "AS IS" BASIS WITH NO REPRESENTATIONS, WARRANTIES, GUARANTEES AND/OR COVENANTS, EXCEPT AS EXPRESSLY SET FORTH HEREIN. YOU USE THE SERVICE AND RUN THE SOFTWARE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ADEX EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND COVENANTS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION OF THE SOFTWARE / SERVICE, REPORTS, STATISTICS AND OTHER INFORMATION PROVIDED BY ADEX HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ADEX DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION OF/IN THE SERVICE, SOFTWARE, REPORTS, STATISTICS OR ACCOUNT / WEBSITE / MOBILE APPLICATION OR OTHER INFORMATION PROVIDED BY ADEX IS ACCURATE, COMPLETE OR CURRENT, NOR THAT THE SERVICE WILL BE UNINTERRUPTED, COMPLETELY SECURED AND/OR FREE OF SOFTWARE ERRORS.
14.2. LIABILITY OF ADEX IN ANY CASES, INCLUDING CLAUSE 14.1. HEREOF, IS LIMITED TO A TOTAL MAXIMUM AMOUNT OF €1000 (ONE THOUSAND EURO). ALL OTHER LIABILITIES ARE EXCLUDED.
15.1. You, at your own expense, will defend, indemnify and hold AdEx and our Affiliates, Personnel, directors, officers, shareholders and representatives harmless against any losses, damages, liabilities, penalties, costs and expenses, including without limitation reasonable attorneys' fees, and pay any settlement amounts or awarded damages arising out of any third party claims, lawsuits, demands, actions or proceedings, to the extent that such claims, suits, demands, actions or proceedings are based on a fact or allegation that: (i) your performance of any of the Customer's obligations contemplated under this Agreement infringes any rights of any third party (including, without limitation, any trade secret, trademark, copyright, patent, any other Intellectual Property rights, privacy rights or publicity rights); or (ii) you have breached any of your obligations, representations, warranties, guarantees or covenants hereunder.
16. GOVERNING LAW AND JURISDICTION
16.1. This Agreement is governed by and construed in accordance with applicable law of the Republic of Cyprus, without regard to its principles of conflict of laws.
16.2. Each Party irrevocably agrees, for the sole benefit of AdEx that, subject as provided for below, the courts of Cyprus shall have exclusive jurisdiction over any dispute, demand or claim (including non-contractual disputes, demands or claims) arising out of or in connection with this Agreement, its subject matter, validity, formation or termination. Nothing in this clause shall limit the right of AdEx to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings by AdEx in any one or more jurisdictions preclude the taking by it of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
17. DATA PROTECTION
17.1. The Customer is obliged to inform its users / Platforms' users about the option to reject being subject to analysis / checking / examining / tracking according to the respective applicable data protection laws of the relevant country. Where applicable users must have the option to opt out of being subject to analysis / checking / examining /t racking as per hereunder.
17.2. The Customer who does not comply with the applicable requirements on personal data protection has to delete its Account.
18.1. Notwithstanding any of the provisions of this Agreement, we reserve the right at any time and for any reason (or without such) to immediately suspend / terminate your use of the Software and/or Service (the "Suspension") where we, at our sole discretion, believe that: (a) you breached this Agreement; (b) you or your partners are conducting commercial activities that are not fully compliant with all applicable local, state and federal laws and regulations; (c) continuing business relationships with you may harm our legal rights, interests, business reputation and goodwill.
19.1. The Customer may cancel the Service in accordance with the terms and conditions of the Agreement. Cancellation requires to be in written form by sending an email to firstname.lastname@example.org or by cancelling the Service within the Account.
20.1. MODIFICATION OF THE AGREEMENT. AdEx reserves the right to amend / shorten / supplement / change or otherwise modify any terms and conditions of this Agreement at any time, at its own discretion. You may refer to the Agreement revisions on the Website. The terms and conditions of the present Agreement (as published on the Website) bind the Parties from the Effective Date or the date the Service is actually used, and shall apply to each and any Service of AdEx. This Agreement shall take precedence over any other terms and conditions issued or stated or referenced to apply relating to the Service.
20.2. CONFIDENTIALITY. Each Party (the "Receiving Party") understands that the other Party (the "Disclosing Party") may disclose the information of a confidential nature including, without limitation, product information, data, pricing, financial information, software, specifications, research and development and proprietary algorithms, stats and reports, personal data or other materials that is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation "confidential" or any similar designation is used ("Confidential Information").
The Receiving Party agrees, for itself, its agents, subcontractors, representatives, suppliers, vendors and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party given in each instance. Neither Party will make any public announcement regarding the existence or content of the Agreement without the other's prior written approval.
The Parties agree that if disclosure is made to their professional advisors, auditors or bankers this shall be done subject to each Party procuring each such recipient's agreement to keep such information confidential to the same extent as if such recipient were Party to this Agreement.
The foregoing obligations under this section of the Agreement shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party's possession at the time it was received by the Receiving Party free from any obligation of confidentiality; (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party's Confidential Information, or (vi) if the express written consent has been given prior to disclosure of such information.
In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial, regulatory or governmental order or requirement, or any tax authority to which that Party is subject or submits, wherever situated, whether or not the requirement for information has the force of law the Receiving Party shall promptly notify the Disclosing Party in order to allow such Party to contest the order or requirement or seek confidential treatment for such information.
Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other all of such other Party's Confidential Information, or to certify to the Disclosing Party in writing that all such material has been destroyed, however, destruction is only permitted after Disclosing Party's prior approval.
20.3. RESTRICTIONS. Unless otherwise indicated hereunder, the Software and the Service, as well as all content, including, without limitation, entire or partial algorithms, code and code segments, trading strategies, data transformations, data analysis and manipulation functions, tools, software, data, databases, text, messages, images, graphics, video files, audio files, ideas and other information and materials, and the selection and arrangement thereof, are the proprietary and exclusive property of AdEx, or if such ownership is unavailable under the applicable law, then they shall be considered as licensed to us, and protected by Republic of Cyprus and international Intellectual Property laws. Any use, copying, redistribution and/or publication of any part of the Software / Service, other than as expressly authorized in writing by AdEx, is strictly prohibited. In addition, the look and feel of the AdEx's Service, Software, Website and Account are part of our marks / logos and may not be copied, imitated or used, in whole or in part, without our prior written permission. You do not acquire any ownership / proprietary / exclusive or any other rights to the Software, Service, Account, Website or any of our materials / information / data made available by us and through the Service, Software, Account or Website, and we shall reserve in full all the rights not expressly granted in this Agreement.
20.4. ENTIRE AGREEMENT AND PREVIOUS CONTRACTS. This Agreement contains the entire agreement between the Parties relating to its subject matter hereof and supersedes any prior agreements, representations or understandings between them (written or oral), unless expressly incorporated in writing by reference to this Agreement and signed by the Parties'. Each Party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud, willful negligence or fraudulent misrepresentation.
The present Agreement is the principal document in legal relationship of the Parties, and shall be deemed an entire agreement of the Parties. In case of any contradictions or discrepancies in using the Service or the Software, the present Agreement shall prevail in any case.
20.5. RIGHTS OF THIRD PARTIES. For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a Party to it any right to enforce any of its provisions.
20.6. MITIGATION. In respect of any indemnity given by either Party under this Agreement, the Party which receives the benefit of the indemnity shall take all reasonable steps so that to reduce or mitigate the loss covered by the indemnity.
20.7. FORCE MAJEURE. The Force Majeure events are understood as events which occur after the Effective Date, regardless of the will of the Parties, and which could not be foreseen and prevented by any reasonable actions of the Parties. The influence of these events may postpone the performance of all or several parts of present Agreement or other terms and conditions agreed by the Parties. Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder owing to the Force Majeure.
If execution of the Agreement has been postponed due to the Force Majeure, the Party affected by Force Majeure shall notify the other Party in writing about the day of the Force Majeure commencement within five (5) business days of their occurrence. With the cessation of Force Majeure and the restoration of normal conditions, the Party which was affected by Force Majeure shall notify the other Party in writing within five (5) business days of the date of their termination.
20.8. FURTHER ASSURANCE. Each Party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.
20.9. NOTICES. Notices under this Agreement are to be in writing and shall be sent to the address submitted by you when registering the Account by certified mail, fax, email or courier. Notices may be given, and will be deemed received if correctly addressed:
• By email as mentioned herein: within twenty-four (24) hours from the moment of an email sending, subject to that there is no automated reply about failure in the email delivery;
• By first-class post: at the moment of signing the delivery receipt by the recipient; or
• By hand: on delivery.
The notices shall be given in the English language.
You agree on using by AdEx of any communication method (email message / SMS message / phone) with contact details provided in your Account, as well as you agree on notices receipts through the system messages in your Account.
You shall always submit all and any notices to the following email address: email@example.com.
20.10. SURVIVAL. The following sections hereof shall survive any termination of the Agreement: 5, 6, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 20. The provisions which by their terms or intent are to survive termination of this Agreement shall do so as well.
20.11. RELATIONSHIP. The relationship between the Parties will be that of independent contractors and nothing in this Agreement is intended to, nor will establish any relationship of partnership, joint venture, employment, franchise, agency or other form of legal association between the Parties. Neither Party will have, nor will represent to any third party that it does have any power or authority to bind the other Party or incur any obligations on the other Party's behalf.
20.12. SEVERABILITY. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
20.13. COMPLIANCE WITH LAW. Each Party at its own expense (unless otherwise is expressly agreed in writing) shall comply with and ensure that in performance of its respective obligations hereunder its employees, agents and representatives will comply with all applicable laws and regulations.
20.14. ASSIGNMENT AND SUBCONTRACTING. AdEx may assign, transfer, subcontract or encumber any right or obligation under this Agreement, in whole or in part, to its Affiliates or other third parties without any prior approval of the Customer. The Customer shall not assign, transfer, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the AdEx's prior written consent.
20.15. SUCCESSION. This Agreement shall be binding upon, and enure to the benefit of each of the Parties, their respective personal representatives and their respective successors in title.
20.16. WAIVER. The failure of a Party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a Party of any condition or of any breach of any term, condition, representation, warranty, guarantee or covenant contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances, or a waiver of any other condition or breach of any other term, condition, representation, warranty, guarantee or covenant contained in this Agreement.
20.17. ADDITIONAL PROVISIONS
The Customer acknowledges and agrees that by entering into this Agreement it has not relied and is not relying on any representations, warranties or other statements whatsoever, whether written or oral other than those expressly set forth in this Agreement or other terms and conditions published at the Website, and that it will not have any right or remedy arising out of or in connection with any representation, warranty, guarantee, covenant or other statement not expressly set forth in this Agreement.
Headings to sections and subsections in this Agreement are for the convenience of the Parties only and are not intended to be a part of or affect the meaning or interpretation hereof.