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