deltaDNA®

Terms of Service

29th November 2016

Please read the following terms of service ("Terms") carefully, as they constitute a binding legal agreement between you (the entity registering to use the service) ("you" or "Client") and deltaDNA®. By clicking “accept”, accessing and/or using the Service (defined below), you acknowledge that you have read and agree to be bound by the Terms. If you do not agree to these Terms, please do not use the service.

From time to time, deltaDNA® may change, modify, add, or remove portions of the Terms, and reserves the right to do so at its discretion. If we modify the Terms, we will make them available and indicate the date of the latest version. We encourage you to review the Terms periodically for changes. Your continued use of the Service after revised terms have become effective indicates that you have read, understood and agreed to the current version of the Terms.

1. DEFINITIONS AND INTERPRETATION

   In the Agreement the following words shall have the following meanings:

   Agreement means these Terms;

   Available means that the Client is able to connect to the website on which the Platform is hosted and access the substantial majority of functionality and content in the Platform, and that the Platform and substantially all components thereof are functioning correctly and accurately with a level of latency no greater than that experienced by services to the Platform with similar technology elements, functionality and numbers of end users;

   Charges means the charges for the Services as set out on the deltaDNA® website unless a bespoke pricing agreement has been agreed.

   Confidential Information means all information disclosed by one party to the other or obtained by a party pursuant to or in connection with the Agreement relating to the customers, trade secrets or business affairs of the other, or relating to the subject matter of the Agreement, and whether expressed to be confidential or not;

   Effective Date means the date you register an account on the deltaDNA® platform;

   deltaDNA® means deltaDNA® Limited (a company registered in Scotland with company number SC383152) whose registered office is at 25 Greenside Place, Edinburgh, Scotland, EH1 3AA and trades as deltaDNA®;

   Intellectual Property means any and all intellectual property or industrial rights of any description anywhere in the world including but not limited to any patents, trade marks, domain names, registered designs, copyright (including but not limited to rights in computer software, object and source code,) rights in the nature of copyright, database rights, semi-conductor topography rights, unregistered design rights, rights in and to trade names, business names, product names and logos, inventions, databases, discoveries, specifications, formulae, processes, know how, trade secrets, confidential information and any analogous or similar right in any jurisdiction (whether any such rights referred to in this definition are registered, unregistered, registerable or not and any applications or rights to apply for registration of any of them);

   Materials means all reports, presentations and other materials to be provided by deltaDNA® as part of the Services (but does not include (registered or unregistered) trademarks or other trade names or devices of deltaDNA® included or attached to such reports, presentations and materials)

   Services means the services to be carried out by deltaDNA® as set out on the deltaDNA® website. Services include functionality available on the platform and access to our SDKs and REST API documentation. Access to Services is dependent on whether you have signed up for deltaDNA® Go, deltaDNA® Pro or deltaDNA® Enterprise; and

   Platform means the deltaDNA® tool through which deltaDNA® will provide the Client with analytic data pursuant to the Services.

2. TRIAL PERIOD
   1. This Agreement is effective upon your acceptance of this Agreement (“the Effective Date”), and will terminate thirty (30) days from the effective date unless ended earlier in accordance with this Agreement. If you would like to use the services after the Trial Period, you must purchase such services from deltaDNA® under a separate contract.
3. CHARGES
   1. deltaDNA® waives all subscription and usage fees during the 30-day trial period.
4. THE SERVICES
   1. In consideration of payment by the Client of the Charges, deltaDNA® shall provide the Services to the Client in accordance with the Agreement.
   2. The Client shall promptly provide deltaDNA® with all such information, assistance and materials as deltaDNA® may reasonably require for the performance of its duties under the Agreement.
5. CHARGES
   1. In consideration of the performance by deltaDNA® of its obligations under the Agreement in respect to the provision of Services, the Client shall pay deltaDNA® the Charges in accordance with the provisions of the Agreement.
6. TERMS OF PAYMENT
   1. When [ordering] the Services you will have the option to: (i) elect a billing account to facilitate a monthly electronic payment and be charged in accordance with clause 5.3; or (ii) to be invoiced monthly and be charged in accordance with clause 5.2. You can elect a billing option when you first set up your account otherwise you will be prompted to do so when you enter a billing tier.
   2. If you elect to be invoiced monthly deltaDNA® shall invoice you for the Charges incurred for Services and Materials in respect of Services performed in that month. Invoices shall be due and payable on issue and the Client shall pay deltaDNA®'s invoices:
      1. within 30 days of the date of the invoice; and
      2. in full and in cleared funds to a bank account nominated in writing by deltaDNA®.
   3. If you elect to be charged electronically, deltaDNA® will automatically deduct the Charges for Services performed in that month from your billing account [on or around the 10th of each month]. By providing your billing account details you authorise deltaDNA® to charge you for the Services in accordance with this clause and warrant that you are authorised to use the billing account in this way.
   4. Time for payment shall be of the essence of the Agreement.
   5. If the Client fails to make any payment due to deltaDNA® under the Agreement, then the Client shall pay interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as may be amended from time to time). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
   6. All amounts payable by the Client under the Agreement are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Agreement by deltaDNA® to the Client, the Client shall, on receipt of a valid VAT invoice from deltaDNA®, pay to deltaDNA® such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
   7. All sums payable to deltaDNA® under the Agreement shall become due immediately on termination or expiry of the Agreement, notwithstanding any provision to the contrary. This Clause 5 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
7. ITEMS SUPPLIED BY THE CLIENT
   1. The Client shall procure that to the best of its knowledge any information, data or items provided to deltaDNA® for the purposes of the Agreement (including, but without limitation, any editorial content, brands, logos and trade names) are free from any defamatory or unlawful content and that they do not infringe any Intellectual Property or other rights of any third party.
   2. The Client shall indemnify deltaDNA® (and keep it indemnified) on demand against all costs, claims, expenses and other liabilities arising out of or in connection with any breach by the Client of its obligations in clause 6.1.
   3. The Client warrants, represents and undertakes to deltaDNA® that in respect of any data provided by it to deltaDNA® or to which it grants deltaDNA® access under or in connection with the Agreement that constitutes "personal data" for the purposes of the Data Protection Act 1998 the Client has obtained the necessary consent of any individual to whom personal data relates to the use of the personal data by deltaDNA® under or in connection with thie Agreement and to the transfer of that data outside the European Economic Area. The Client shall indemnify deltaDNA® (and keep it indemnified) on demand against all costs, claims, expenses and other liabilities arising out of or in connection with any breach by the Client of its obligations in this clause 6.3.
   4. For the purpose of the Agreement, the Client will be the Data Controller and deltaDNA® will be the Data Processor in accordance with the Data Protection Act 1998. deltaDNA® will only process any Personal Data in accordance with the Client’s instructions and the Client acknowledges that deltaDNA® is reliant on the Client’s direction as to the extent to which it is entitled to use and process any Personal Data. deltaDNA® will not be liable for any claim brought by a data subject arising from any act or omission by deltaDNA® as the Data Processor, to the extent that such action or omission resulted from the Client’s instructions.
   5. deltaDNA® shall procure that any database created by deltaDNA® for the Client:
      1. is held in a secure site; and
      2. that non-operational data is encrypted to help prevent unauthorised access; and
      3. is password protected.
8. INTELLECTUAL PROPERTY
   1. The Client will own all Intellectual Property in all data and information about the Client's customers and prospects that the Client supplies to deltaDNA® or which is obtained by deltaDNA® on the Client's behalf.
   2. Subject to clauses 7.3 to 7.5 below, as between the Client and deltaDNA®, the Client will also own all Intellectual Property in Materials that are specifically produced by deltaDNA® for the Client under the Agreement and which have been paid for by the Client (under exclusion of any Intellectual Property therein owned by third parties). The Client hereby grants to deltaDNA® a perpetual, irrevocable, sub-licensable, royalty-free licence to use and reproduce the Intellectual Property owned by the Client in Materials pursuant to the preceding sentence. The Client will not own any Intellectual Property in any works, materials or concepts produced by deltaDNA® as part of any Proposal to the Client which the Client does not accept and/or which does not form part of the Materials, and all such Intellectual Property will be retained by deltaDNA®.
   3. deltaDNA® will own all Intellectual Property in any pre-existing Material and Software that deltaDNA® supplies or makes available to the Client and any modifications or alterations made to them and any works derived from them. If the Client wants to use that Material or Software after termination of the Agreement deltaDNA® may, where it has the right to do so, grant the Client a non-exclusive, non-transferable licence to use them for the Client's own purposes on reasonable terms to be agreed between the parties.
   4. All Intellectual Property in any product or material deltaDNA® obtains for the Client from a third party will belong to that third party unless deltaDNA® agrees otherwise in writing.
   5. Unless otherwise agreed between deltaDNA® and the Client in writing any rights that deltaDNA® obtains for the Client to use any original illustrations, photos, artwork or other works or materials will cover one use only for the purpose of providing the Services.
9. CONFIDENTIALITY
   1. Except as provided by Clauses 8.2 and 8.3, the party who receives the Confidential Information (the Receiving Party) from the party who discloses the Confidential Information (the Disclosing Party) shall at all times during the continuance of the Agreement and after its termination undertake to the Disclosing Party to:
      1. keep all Confidential Information confidential and accordingly (subject to the provisions of Clause 8.2) not to disclose any Confidential Information to any other person;
      2. not use any Confidential Information for any purpose other than the performance of the obligations under the Agreement;
      3. not copy, reproduce or record any of the Confidential Information except to the extent reasonably necessary in accordance with the terms of the Agreement; and
      4. promptly on the Disclosing Party's request return any and all copies reproductions or recordings of the Confidential Information save to the extent such is necessary to enable the Receiving Party to exercise its rights or perform its obligations under the Agreement.
   2. Any Confidential Information may be disclosed by the Receiving Party to:
      1. any governmental or other authority or regulatory body; or
      2. any employees of the Receiving Party (or any of the Receiving Party's sub-contractors or agents), to such extent only as is necessary for the purposes contemplated by the Agreement, or as is required by law and subject in each case to the Receiving Party using its reasonable endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
   3. The Agreement shall not apply to any Confidential Information that:
      1. is or becomes public knowledge (other than as a result of the default of the Receiving Party or any other person to whom the Confidential Information is disclosed under the terms of the Agreement);
      2. is known to the Receiving Party under no obligation of confidence before the Confidential Information is disclosed;
      3. lawfully becomes available to the Receiving Party from a third party without breach of any obligation of confidence to the other party;
      4. is required to be disclosed by law; or
      5. is independently developed by the Receiving Party.
10. LIMITATION OF LIABILITY
    1. Neither party shall be liable to the other in contract, tort (including without limitation negligence), breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other party:
       1. of an indirect or consequential nature; nor
       2. for any economic loss, loss of turnover, profits, business, data, reputation or goodwill
    2. The entire liability of deltaDNA® under or in connection with the Agreement (including for breach of contract, negligence, breach of statutory duty or otherwise, howsoever arising) in any calendar year shall not exceed the aggregate of the Charges actually paid by the Client to deltaDNA® under or in connection with the Agreement in that calendar year.
    3. Nothing in the Agreement shall have the effect of limiting or excluding the liability of deltaDNA® or the Client for death or personal injury arising out of its negligence or otherwise as prohibited by law.
    4. deltaDNA® will perform the Services with reasonable care and skill in a professional manner. deltaDNA® shall not be responsible for the accuracy of its advice based upon inaccurate or incomplete information provided by the Client.
    5. The Services are provided "as is", without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, deltaDNA® excludes all representations, warranties, conditions and other terms (including, without limitation, the conditions implied by law of satisfactory quality, and fitness for purpose) which, but for this Clause 9.5, might have effect in relation to the Services.
11. TERMINATION
    1. deltaDNA® may in its sole discretion and at any time suspend or discontinue providing the Services to you, with or without notice, and without any liability for such termination. You may terminate your account, this Agreement, and your right to use the service at any time and for any reason or no reason, by contacting info@@deltadna.com, and immediately discontinuing all use of the Services.
12. CONSEQUENCE OF TERMINATION AND CANCELLATION OF PROJECTS
    1. The termination of the Agreement howsoever arising will be without prejudice to the rights and duties by the parties accrued prior to termination. The clauses in the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
    2. On termination of the Agreement for any reason:
       1. the Client shall pay to deltaDNA® all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, deltaDNA® may submit an invoice for Services actually provided, which shall be payable immediately on receipt (to be clear, this shall apply even if under the other payment provisions of the Agreement, deltaDNA® would not at that stage otherwise be entitled to submit an invoice in respect of Services performed); or
       2. deltaDNA® will be entitled to deduct any outstanding Charges from your billing account.
13. FORCE MAJEURE
    1. Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, the act or omission of any internet service provider, and the affected party shall immediately notify the other party in writing of the nature and extent of such events. The affected party shall take all steps as reasonably available to it (to the extent such steps do not result in the affected party incurring any expenditure) to bring the event to a close, or to find a solution to the event. If the affected party is prevented from performing all or a substantial part of its obligations for a period of twenty (20) business days, the other party shall be entitled to terminate the Agreement forthwith on giving written notice to the affected party, in which case neither party shall have any liability to the other except that the rights and liabilities that accrued prior to such termination (including, without limitation, any payment obligations) shall continue to subsist.
14. WAIVER
    1. A waiver of any right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
15. SEVERANCE
    1. If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
16. ENTIRE AGREEMENT
    1. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understanding or agreement between them, whether written or oral, relating to its subject matter.
    2. For the avoidance of doubt, the Agreement supersedes and override all other terms and conditions appearing elsewhere including, without limitation, any terms and conditions of the Client referred to on any website or which the Client may purport to apply under any purchase order or acknowledgement of delivery or similar document; and/or established between deltaDNA® and the Client by course of dealing.
    3. Nothing in this Clause 15 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
17. NO PARTNERSHIP OR AGENCY
    1. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other.
18. ASSIGNATION AND SUB-CONTRACTING
    1. Neither party shall be entitled to assign or otherwise transfer the Agreement or any part of it without the prior written consent of the other party.
    2. deltaDNA® shall be entitled to sub-contract some or all of its obligations in the Agreement but shall remain directly responsible to the Client for such obligations. Any sub-contracting will be notified to the Client for approval prior to being implemented.
19. NOTICES
    1. Any notice or consent required or permitted under the Agreement shall be in writing and shall be sent by first class post, hand delivery, or email.
20. LAW AND JURISDICTION
    1. The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims), shall be governed by, and construed in accordance with, the laws of Scotland.
    2. The parties irrevocably agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including, without limitation, non-contractual disputes or claims).
21. COMPLIANCE WITH THE BRIBERY ACT 2010
    1. In performing its obligations under the Agreement, deltaDNA® shall comply with its obligations under the Bribery Act 2010.
22. THIRD PARTY RIGHTS
    1. A person who is not a party to the Agreement shall not have any rights under or in connection with it.
23. USE OF DATA
    1. deltaDNA® will not share individual level player data with any 3rd party unless prior written consent is agreed with the Client. From time to time, deltaDNA® may, notwithstanding any other provision of this agreement, use aggregated player data for research and marketing purposes, and the development of new database functionality and services.
24. FAIR AND REASONABLE USE OF THE SERVICE
    1. The Charges are based on fair and reasonable use of the Service. deltaDNA® classifies fair and reasonable use as:
       • Direct Access Queries: 500 per day
       • Events: 100 per DAU
       • Engagements: 50 per DAU
       • Notifications: 5 per MAU

Annex A to the Terms

Service Level Agreement

These service levels (collectively, the Service Levels), form an integral part of the Terms between deltaDNA® (deltaDNA®) and you (the Client) if deltaDNA® provides Services using the Platform under the Agreement.

1. Uptime Service Level Commitment
   1. deltaDNA® will procure that, except for:
      1. failure of the public Internet
      2. Force Majeure events (in accordance with clause 12 of the Agreement);
      3. short-term incidents related to unexpectedly large spikes in traffic related to major new content launches or live events;
      4. regular scheduled maintenance; and
      5. security patches requiring implementation on short notice,
      The Service shall be available
      1. Data Collection: 99.9% over a 30 day period
      2. Engage Response: 98% over a 30 day period
      3. Access to the platform: 98% over a 30 day period
      4. Data is available within 3 hours of it being received by the platform for 95% over a 30 day period
2. Back-Ups
   1. As part of the Services, deltaDNA® will perform incremental and cumulative back-ups of the data provided by the Client to deltaDNA® and of Materials at least once every week.
3. Data Processing
   1. The Client acknowledges that some end user devices do not have their time and date set correctly. This is out of deltaDNA®’s control but does impact the accuracy of the data. In addition, devices may have intermittent internet connectivity which prevents upload at the time of data generation. To minimise the effects of these issues, the following processing rules apply
      1. data is accepted that is dated within a minimum of 31 days previous to the current date on the deltaDNA® servers (this is to take account of devices having extended periods of connection issues);
      2. data is accepted that is dated within a maximum of 1 day ahead of the current date on deltaDNA® servers (this is to take account of users in different time zones).
4. Data Availability
   1. The standard terms for data availability are as follows:
      1. Measure Dashboards: aggregated data which is held for the duration of the contract
      2. Analyze tools: 31 days of event level data (Pro licence)
      3. S3 Archive: an archive of event data is maintained on Amazon S3 and is held for the duration of your contract (Pro licence)
   2. Data is purged once per day at 08:00 UTC. Due to timezone and device settings, event dates transmitted to deltadna are not always within the latest 24 hours, as such more than 1 event date may be visible in the stored objects up until the daily purge
   3. If 90 days have lapsed since the last event was sent to your game/app in the platform, the environment will be classed as dormant and the data archived.

Appendix I – deltaDNA® SmartAds Terms

By clicking “accept”, accessing and/or using the SmartADs SDK, you acknowledge that you have read and agree to be bound by the Terms. If you do not agree to these Terms, please do not use the service.

WHEREAS deltaDNA® has developed certain proprietary SmartAds (Advertisement Mediation) Technology marketed under the name deltaDNA® SmartAds^TM, which includes know-how and systems enabling the inclusion and optimization of advertisements into mobile content using rules; and

WHEREAS Publisher is the owner and distributor of certain games or apps (the “Content”); and

WHEREAS subject to the terms and conditions of this Agreement, the parties wish to enter into this Agreement that will allow deltaDNA® to use the deltaDNA® SmartAds Technology to optimize, serve and place certain advertising (the “Advertising”) from third party advertising networks (“Advertisers”) in the Content, using the deltaDNA® SmartAds Technology licensed to Publisher, during the Term specified below;

NOWTHEREFORE, in consideration of the premises and the undertakings of the Parties herein contained, it is agreed as follows:

Other Agreements

This Agreement pertains exclusively to the provision of deltaDNA® SmartAds Technology and the Service (as hereinafter defined) and does not apply to other functionality and consultancy services covered in separate agreements for other aspects of the deltaDNA® platform between deltaDNA® and the Publisher. Any other agreements entered into between deltaDNA® and the Publisher for other aspects of the deltaDNA® platform will not imply any rights to the provision of the deltaDNA® SmartAds Technology and/or the Service contained in this Agreement and will not imply any terms and conditions contained within such separate agreements to this Agreement.

Services

Subject to the terms and conditions of this Agreement, deltaDNA® hereby agrees to provide a service to Publisher, whereby deltaDNA® will deliver Advertising to the Content using the deltaDNA® SmartAds Technology licensed to Publisher, during the Term (as hereinafter defined) of this Agreement.

The Service, as provided to Publisher, may include, among other things, standard advertising management services, such as ad serving, trafficking, campaign management and the compilation of relevant statistical data, and Advertising served to and placed in the Content utilizing deltaDNA® SmartAds Technology (the ”Service”).

deltaDNA®’s obligations under this Agreement shall be to (i) provide the Service enabling tags to Publisher, (ii) serve, optimize and deliver Advertising to the Content, and (iii) provide access to deltaDNA®’s statistics and reporting in respect to the use of the Content.

Non-Exclusive License Grant and Restrictions

Subject to the terms and conditions of this Agreement, deltaDNA® hereby grants Publisher a non-transferable, non-exclusive license to deploy and use the deltaDNA® SmartAds Technology in the Content. For the avoidance of doubt, Publisher is permitted to make use of the deltaDNA® SmartAds Technology only for the purpose of this Agreement and use deltaDNA® SmartAds Technology solely for the exclusive Advertising served to and placed on the Content by deltaDNA® and to facilitate the Service and for no other purpose or purposes whatsoever.

Publisher shall not, and shall not allow any third party to: (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the deltaDNA® SmartAds Technology by any means whatsoever; (ii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the deltaDNA® SmartAds Technology to or for the benefit of third parties, except as specifically licensed hereunder; (iii) remove deltaDNA® trademarks, or any identification, or proprietary or copyright restrictions from the DeltaDNA® SmartAds Technology; (iv) copy, modify, incorporate into or with other Advertisement Mediation Technology, or create a derivative work of any part of the deltaDNA® SmartAds Technology; (v) use similar processes and functions to develop competing products or to maintain interoperability between products, or any part thereof; or (vi) develop methods to enable unauthorized parties to use the deltaDNA® SmartAds Technology.

Publisher Responsibilities

Publisher shall be responsible for quality assurance testing (“QA”) all on its own expenses (not including the Advertising QA).

Publisher shall use commercially reasonable efforts to support deltaDNA® recommendations for Advertising strategy on the Content and shall immediately inform deltaDNA® of any Publisher action that will increase or reduce expected Advertising inventory on the Publisher Content.

Publisher shall not alter, modify or otherwise interfere with the operation of any of the Advertising or any link contained within any click-through Advertisement. Publisher shall promptly notify deltaDNA® if Publisher suspects that any third party may be tampering, with, abusing or manipulating the deltaDNA® SmartAds Technology or the Advertising on the Content. In the event of misuse and/or abuse of deltaDNA® SmartAds Technology or Advertising by Publisher, Publisher shall not be entitled to any revenue associated with the applicable campaign(s).

Publisher acknowledges and agrees that deltaDNA® shall, in its sole discretion, regularly review impressions, click-through or other actions with respect to Advertising. No revenue share will become due to Publisher for actions that deltaDNA® determine, in its sole discretion, are fraudulent or improper. In addition, deltaDNA® reserves the right to terminate this Agreement immediately, without giving Publisher an opportunity to remedy, if deltaDNA® reasonably determines that Publisher has in any way manipulated or used artificial means to increase impressions, click-through or other actions, or has encouraged or authorized others to do so.

Fees and Payments

During the Term of this Agreement, deltaDNA® shall be entitled to retain thirty (30) % Net Revenues (as hereinafter defined) collected by deltaDNA® in connection with any and all Advertising delivered by deltaDNA® to the Content through the deltaDNA® SmartAds Technology, on a variable revenue share formula as defined in Schedule A attached.

The term “Net Revenues” shall mean actual revenues collected by deltaDNA® from Advertisers, not including any third party commissions, taxes, rebates, refunds, hosting costs, make-goods and/or other set-offs of any kind, if any.

Revenue reports will be available to Publisher through the deltaDNA® SmartAds Technology dashboard, and in monthly reports provided to Publisher, with payment made to Publisher within thirty (30) days of the month end in which deltaDNA® receive payment from Advertisers. deltaDNA® reserve the right to make payments to Publisher only when Publisher’s accumulated unpaid earnings reach $250 or more and may deduct a wire transfer fee, if a wire transfer is requested.

deltaDNA® may change its fees and payment policies for deltaDNA® SmartAds Technology from time to time in which case deltaDNA® shall notify Publisher in writing and in the event Publisher does not accept the revised fees and/or payment policies aforesaid Publisher shall be entitled to terminate this Agreement in writing within thirty (30)days of such written notification failing which the revised fees and/or payment policies are deemed to be accepted.

Intellectual Property & Ownership

All rights, title and interest of either Party in its respective products, services and intellectual property shall be held by such Party and nothing in this Agreement shall be considered as a waiver by either Party on any of its intellectual property rights.

Except as specifically set forth in this Agreement, neither Party is granted any right or interest or license to the intellectual property, know-how, trademarks, marks or trade names of the other Party.

For certainty, deltaDNA® is the exclusive supplier of the deltaDNA® SmartAds Technology, and the exclusive owner of all right, title and interest in and to the proprietary deltaDNA® SmartAds Technology used by deltaDNA® to deliver the Advertising and related services. In addition, deltaDNA® is the exclusive owner of all right, title and interest in and to all software, databases and other aspects and technologies related to the deltaDNA® SmartAds Technology, and any enhancements thereto.

Publisher shall not use the deltaDNA® SmartAds Technology, except pursuant to the limited rights expressly granted and as specifically set forth in this Agreement. Publisher acknowledges that deltaDNA® shall retain all proprietary rights in the deltaDNA® SmartAds Technology (including all software, source codes, modifications, updates and enhancements thereof), deltaDNA® trademarks, or any derivatives thereof, and any other trademarks and logos which are owned or controlled by deltaDNA® and made available to Publisher under this Agreement.

Term & Termination

The Parties agree that this Agreement commences on the Effective Date hereof and shall be in effect for a period of one (1) year (the “Initial Term”), unless otherwise terminated in accordance with this Agreement. Thereafter, this Agreement shall be renewed automatically for additional periods of one (1) year each (each, an “Extended Term” (which Initial Term and any Extended Term are hereby collectively referred to as the “Term”) but declaring that either Party may terminate this Agreement at any time by giving not less than 60 days prior written notice save that such termination shall not, unless otherwise agreed by the Parties in writing, take effect until on or after the expiry of the Initial Term.

Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect on giving written notice to the other Party if:-

1. The other Party commits a material breach of any term of this Agreement which breach is irremediable or, in the event of a remediable breach the other Party has failed to remedy that breach within a period of 30 days after being notified in writing to do so.
2. The other Party becomes the subject of a voluntary or involuntary proceeding concerning insolvency, receivership, liquidation, or composition for the benefit of creditors.

Any and all provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and remain binding upon and for the benefit of the parties, their successors and permitted assigns.

Publisher Expenses

Publisher agree that they are solely liable for any and all costs, fees, and other expenses incurred by them and resulting from their use of deltaDNA® SmartAds Technology including, but not limited to, costs owed to their internet provider, data plan costs, costs associated with any other third parties, platforms, software or any other incidental fees.

Registration and Account Information

To register for deltaDNA® SmartAds Technology, Publisher must complete the registration process by contacting info@deltaDNA®.com and providing deltaDNA® with current, complete and accurate information. Publisher understands that they are solely responsible for maintaining the confidentiality of any password or other user information and that they shall be solely and fully responsible for all activities that occur in their account. deltaDNA® shall not be responsible for any loss, claim or other liability that may arise from the unauthorized use of Publisher’s account or password. Publisher undertakes to immediately notify deltaDNA® of any unauthorized use of their account, password, username or any other breach of security. If a password is lost or stolen, it is the user’s responsibility to change the password and immediately notify deltaDNA® so that Publisher’s deltaDNA® SmartAds Technology account remains both secure and functional.

Reports and Results

Subject to the terms and conditions of this Agreement, and as part of deltaDNA® SmartAds Technology, Publisher may remotely access, view and download certain reports. deltaDNA® shall own and retain all right, title and interest in and to any reports and other results, data and/or information provided to Publisher through deltaDNA® SmartAds Technology (collectively, "Results"). Publisher may use the Reports only in connection with their use of deltaDNA® SmartAds Technology pursuant to this Agreement.

Limited License

Publisher is hereby granted a non-exclusive, limited, non-transferable, revocable and non-sub-licensable license to install, use, copy and distribute deltaDNA® SmartAds Technology in object code format only, as an inseparable part of applications that Publisher own and control. Publisher’s use of deltaDNA® SmartAds Technology and any accompanying documentation ("Documentation") is subject to this Agreement and does not include any right to (a) the distribution, public performance or display (other than as contemplated in this Agreement), (b) modification, revision, creation of derivative works from or otherwise making any derivative uses of deltaDNA® SmartAds Technology or any information or content contained therein, (c) any right to directly or indirectly disassemble, decrypt, decompile, or otherwise reverse engineer or derive source code from all or any portion of deltaDNA® SmartAds Technology or permit or encourage any third party to do so, (d) any resale, lease, rental, assignment or other transfer of any rights to deltaDNA® SmartAds Technology, or (e) any use of deltaDNA® SmartAds Technology or any Documentation other than for its intended purpose. deltaDNA® hereby reserves all rights not expressly granted herein. Any use of deltaDNA® SmartAds Technology or Documentation other than as specifically authorized herein, without the prior written permission of deltaDNA®, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright, trademark and other intellectual property laws.

Privacy and Information Collection

As a condition of Publisher’s use and access to deltaDNA® SmartAds Technology, Publisher agrees that deltaDNA® has the right, for any purpose, to collect, retain, use and publish in an aggregate manner, subject to the terms of its current Privacy Policy, information collected in Publisher’s use of deltaDNA® SmartAds Technology, including, without limitation, data collected by deltaDNA® SmartAds Technology on the characteristics and activities of end users of Publisher’s applications ("User Data"). Apart from User Data required to understand SmartsAds services, deltaDNA® will not disclose to any third parties any User Data collected by deltaDNA® SmartAds Technology from Publisher’s applications that is specifically attributable to Publisher or their applications or customers.

Publisher will not use deltaDNA® SmartAds Technology to track or collect personally identifiable information of end users, nor will Publisher associate any data gathered from their applications with any personally identifying information from any source as part of their use of deltaDNA® SmartAds Technology. Publisher undertakes that they have and will abide by a privacy policy that complies with all applicable laws and industry standards and that Publisher will comply with all applicable laws relating to the collection of information of end users of Publisher’s applications.

Publisher undertakes to post a privacy policy. That policy must (i) provide notice of Publisher’s use of a tracking pixel, agent or any other visitor identification deltaDNA® SmartAds Technology that collects, uses, shares and stores data about end users of Publisher’s application and (ii) contains a link to deltaDNA®’s Privacy Policy and/or describes deltaDNA®’s opt out procedures. If an end user opts out, deltaDNA® will stop tracking data for the device identified by the device identifier going forward. Publisher undertakes to obtain all end-user consents required by applicable law before Publisher uses deltaDNA® SmartAds Technology and understands that deltaDNA® SmartAds Technology will not be able to function as designed without necessary User Data.

Publisher undertakes that they will not use deltaDNA® SmartAds Technology in connection with any application labeled or described as a "Kids" or "Children’s" application and will not (a) use deltaDNA® SmartAds Technology in connection with any application, advertisement or service directed at children or (b) to collect any personal information of children.

Confidential Information

Any proprietary data and other information disclosed by one Party to the other in writing and marked as "confidential" or disclosed orally and, within two (2) weeks, indicated in writing as "confidential" shall be deemed to be confidential information ("Confidential Information"). Upon termination of this Agreement, the Parties will either return or destroy all Confidential Information and, upon request, provide written certification of such. Confidential Information shall not include information that is (i) in the public domain through no wrongful act of the receiving Party; (ii) rightfully received by the receiving Party from a third party that is not bound by a restriction of non-disclosure; (iii) already in the receiving Party’s possession without a restriction as to disclosure; or (iv) is required to be disclosed by applicable rules and regulations of government agencies or judicial bodies.

Disclaimer of Warranties and Limitation Of Liability

DELTADNA® DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY REGARDING THE SERVICE TO THE FULL EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, DELTADNA® SMARTADS TECHNOLOGY IS PROVIDED "AS-IS" AND WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF PERFORMANCE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, DELTADNA® DOES NOT MAKE, AND HAS NOT MADE, ANY REPRESENTATION OR WARRANTY THAT DELTADNA® SMARTADS TECHNOLOGY IS ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, VIRUS OR DEFECT FREE OR THAT THE OPERATION OF DELTADNA® SMARTADS TECHNOLOGY WILL BE UNINTERUPTED. THE INFORMATION AND SERVICES INCLUDED IN, ACCUMULATED BY OR AVAILABLE THROUGH DELTADNA® SMARTADS TECHNOLOGY MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS.

DELTADNA® MAY MAKE IMPROVEMENTS AND/OR CHANGES TO DELTADNA® SMARTADS TECHNOLOGY AT ANY TIME, WITH OR WITHOUT NOTICE. PUBLISHER SPECIFICALLY AGREES THAT DELTADNA® SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF THE USER DATA OR DATA FROM THEIR APPLICATIONS.

IN NO EVENT WILL DELTADNA®, ITS SUBSIDIARIES, AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS OR THOSE FOR WHOM DELTADNA® ARE RESPONSIBLE IN LAW (COLLECTIVELY, THE "DELTADNA® PARTIES"), BE LIABLE TO PUBLISHER OR ANY OTHER PERSON OR ENTITY FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST BUSINESS, INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS OR LOSS OF REPUTATION OR GOODWILL, ARISING OUT OF THIS AGREEMENT OR DELTADNA® SMARTADS TECHNOLOGY, EVEN IF DELTADNA® HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORSEEABLE.

THE DELTADNA® PARTIES’ AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR DELTADNA® SMARTADS TECHNOLOGY IN ANY CALENDAR YEAR WILL NOT EXCEED THE AGGREGATE OF THE AMOUNT THE PUBLISHER HAS ACTUALLY PAID DELTADNA® THAT CALENDAR YEAR.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO IF APPLICABLE LAW DOES NOT ALLOW ANY SUCH LIMITATION OR EXCLUSION THEN IN SUCH CASES, THE DELTADNA® PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

NOTHING IN THIS AGREEMENT SHALL HAVE THE EFFECT OF LIMITING OR EXCLUDING THE LIABILITY OF DELTADNA® OR PUBLISHER FOR DEATH OR PERSONAL INJURY ARISING OUT OF ITS NEGLIGENCE OR OTHERWISE AS PROHIBITED BY LAW.

EACH PARTY ACKNOWLEDGES THAT THE FEES AND PAYMENTS TO DELTADNA® ARE DETERMINED ON THE BASIS OF THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT AND AGREE AND ACKNOWLEDGE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE REASONABLE IN THESE CIRCUMSTANCES.

Indemnification

Publisher undertakes to indemnify, defend and hold harmless deltaDNA®, its employees, contractors, officer and directors, or users from any against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable legal fees) arising from (i) any information that Publisher or anyone using Publisher’s account may submit or access in the course of using deltaDNA® SmartAds Technology; (ii) Publisher’s violation of the terms of this Agreement; and (iii) any violation or failure by Publisher to comply with all laws and regulations in connection with Publisher’s use of deltaDNA® SmartAds Technology, whether or not described herein.

If Publisher uses deltaDNA® SmartAds Technology on behalf of any third party, Publisher represents and warrants that Publisher is authorized to act on behalf of, and bind to this Agreement, that third party. Publisher shall ensure that each third party is bound by and abides by the terms of this Agreement. Publisher undertakes to indemnify, hold harmless and defend deltaDNA®, its parents, subsidiaries, affiliates, officers, contractors and employees and the deltaDNA® Parties, at Publisher’s expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable legal fees) incurred by deltaDNA®, arising out of or relating to (a) any representations or warranties made by Publisher concerning any aspect of deltaDNA® SmartAds Technology; (b) any claims made by or on behalf of any third party pertaining directly or indirectly to Publisher’s use of deltaDNA® SmartAds Technology; (c) violations of Publisher’s obligations of privacy to any third party; and (d) any claims with respect to acts or omissions of third parties in connection with deltaDNA® SmartAds Technology.

Prohibited Conduct

Publisher shall not, directly or indirectly, take any fraudulent action using deltaDNA® SmartAds Technology, including, without limitation, click-fraud or fraudulent downloads. In the event of such fraudulent activity foresaid deltaDNA® may in its sole discretion terminate this Agreement and Publisher’s account at any time with immediate effect on giving written notice to Purchaser.

Modifications to and Termination of deltaDNA® SmartAds Technology Agreement

deltaDNA® reserves the right to terminate this Agreement or to modify the deltaDNA® SmartAds Technology at any time in its sole discretion with written notification to Publisher.

If Publisher is dissatisfied with any modifications made to the deltaDNA® SmartAds Technology at any time, their sole and exclusive remedy is to cease using it with written notification to deltaDNA® but declaring that in the event Publisher do not issue written notification within thirty (30) days of their receipt of a written notification from deltaDNA® the modifications are deemed to be accepted.

Notwithstanding anything contained in this Agreement to the contrary, deltaDNA® may also, in its sole discretion, terminate or suspend Publisher’s access to deltaDNA® SmartAds Technology at any time. Upon termination of this Agreement, deltaDNA® SmartAds Technology will cease to provide any functionality, reporting or services and Publisher undertakes to delete all copies of deltaDNA® SmartAds Technology from their applications in the next available update.

Waiver and Severability

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the Parties agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and notwithstanding this the other provisions of this Agreement will remain in full force and effect. deltaDNA®’s acquiescence in the breach of a provision of this Agreement or failure to act upon such breach does not waive deltaDNA®’s right to act with respect to subsequent or similar breaches. Likewise, the delay or failure of deltaDNA® to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

Entire Agreement and Governing Law

This Agreement constitutes the entire agreement between Publisher and deltaDNA® and governs Publisher’s use of deltaDNA® SmartAds Technology, superseding any prior agreements between Publisher and deltaDNA® with respect to deltaDNA® SmartAds Technology. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Scotland, without regard to any conflict of laws principles thereof. Each Party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.

Relationship of Parties

This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Publisher and deltaDNA®. Neither Publisher nor deltaDNA® shall have any right, power or authority to obligate or bind the other Party with respect to third parties in any manner.

Survival

All terms of this Agreement which by their nature and context extend beyond the termination of this Agreement, shall remain in effect, including, without limitation, provisions relating to indemnification, disclaimer of warranties and limitations of liability.

Revenue Share

Publisher and deltaDNA® shall share all Net Revenues derived from deltaDNA® Ads in the following percentages:

Publisher: 70%

deltaDNA®: 30%