Last updated: 2016/09/01
These terms and conditions, together with any other documents or materials referenced or incorporated herein (collectively, the "Agreement") constitutes a binding agreement that governs your participation in the mobile version of Demand Side Platform (“DSP”) operated by Avazu Inc. ("Avazu"). As used in this Agreement, "we", "us", or "our" means Avazu, and "you" or "your" means the person or entity entering into this Agreement to participate in the DSP. Unless otherwise expressly agreed in writing by Avazu, the application of any other contract or conditions (including your own Terms and Conditions) is expressly excluded. We reserve the right to change or amend terms of this Agreement any time, for any reason, or for no reason at all, at our sole discretion. The most recent version of this Agreement will be posted here. Although we might provide notice of material changes to this Agreement, it is your sole responsibility to keep yourself informed of any such changes or amendments. Should you object to any terms and conditions of this Agreement or any subsequent changes to this Agreement or become dissatisfied with us in any way, your only solution is to notify us in writing of termination two Business Days in advance.
In order to participate in the DSP, you will be required to create an account with us ("Account").
In creating your Account, you certify that all information you provide is complete and accurate. You agree to update such information when required or requested, and you further agree not to use another person's account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, your Account and password, and you agree to accept sole responsibility for all activities that occur under your Account or password. You agree to notify us immediately of any breach of security or unauthorized use of your Account. We shall not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of your Account, and you agree to indemnify us and hold us harmless for any such unauthorized use.
You acknowledge and agree that the DSP is operated by Avazu as a passive conduit for the traffic distribution and publication of information submitted by you and Avazu has no obligation to screen communications or information in advance on any Publisher Sites. Consequently Avazu shall not be liable for the underlying advertising product(s) or service(s) provided by Publisher Sites available through DSP. Avazu do not warrant the correctness, accuracy, timeliness, reliability of any content or information posted on Publisher Sites nor do Avazu makes any representation or guarantee regarding the level of impression, the conversion rate, or the timing of delivery of any impressions available through DSP.
Furthermore, Avazu will not be subject to any liability whatsoever for: (a) Any failure to provide access to all or any part of the DSP due to systems failures or other technological failures of Avazu or of the Internet; (b)Network disconnection caused by the network operators; (c) System maintenance; (d) Server down, server maintenance or device failures of the third party publishers; (e) Service interruptions caused by events beyond Avazu’s control; and (f) Errors in content or omissions in any Advertising Materials.
DSP allow you to buy impressions across a range of Publisher Sites (“Publisher Sites”). Often the price of those impressions is determined by a real-time auction, through a process of real-time bidding and impressions are simply auctioned off to the highest bidder.
You agree to pay the applicable charges for the impressions you successfully bid by the real-time auction plus all related taxes and fees (including without limitation VAT, duties or withholding taxes or remittance fees), and to reimburse us for all collection costs and interest for any overdue amounts. All charges are non-refundable and non-recoupable and shall be made in advance unless otherwise agreed upon by Avazu. Avazu is under no obligation to provide any services until payment is received:
1) Payment in advance: The initial prepayment range to your account for real-time auction is from USD 1000.00 to USD 5000.00 and standard top-up option starting from USD 100.00. You shall pay to Avazu the initial prepayment as above mentioned according to the payment methods as designated by Avazu within five (5) business days after the Effective Date of this Agreement. You hereby agree that all the payment you deposit into your account with Avazu is non-refundable and non-recoupable. Avazu has right to designate new payment methods and update the prepayment range due to different payment methods. The charges for impressions you successfully purchased will be debited from your Account at the time of purchase. It is your responsibility to ensure your Account with us has sufficient funds to pay for the impressions. Avazu reserves the right to set and negotiate specific initial prepayment amount on a customer-by-customer basis.
2) Payment in arrears: In rare cases, Avazu may grant credit line (You need generate consumption records satisfactory to Avazu for at least two recently consecutive months.) to you with the amount solely determined by Avazu and you are entitled to purchase impressions within such amount without credit your Account in advance. We may increase or reduce your credit line at our discretion. The actual charges for impressions you successfully purchased under your Account will be calculated on a monthly basis starting from the first day of an applicable month to the last day of the same month and Avazu will issue the corresponding invoice to you within ten (10) business days following the end of the applicable month. You shall then remit the amount recognized on the invoice to Avazu’s designated bank account within ten (10) business days after the receipt of such invoice. Upon termination or expiration of this Agreement, your payment obligations of charges for impressions you successfully purchased shall be accelerated and immediately become due and payable to Avazu within ten (10) business days after receiving the invoice from Avazu. Amounts paid after due date shall bear interest at the rate of 3‰ per day (or the highest rate permitted by law).
You acknowledge and agree that statistics recorded by Avazu are the definitive and binding measurements for calculation of the charges under this Agreement. In the event that you dispute in good faith any portion of an invoice and claims a discrepancy, you must submit that dispute to Avazu in writing and in sufficient detail and proof within seven (7) days upon the receipt of the invoice. If you do not dispute the invoice as set forth herein, then you agree that you irrevocably waive any claims based upon that invoice.
You shall be responsible for preparing Advertising Materials (defined below) to be used after a successful bid in accordance with Avazu’s policies and specifications in effect from time to time and subject to the prior examination by Avazu. You hereby grant to Avazu a non-exclusive, worldwide, free of charge, revocable and sub-licensable license to:
1) Create, copy, transmit and display the Advertising Materials you provided to us, including graphic file and/or any and all accompanying printed, hand written or electronically transferred information supplied by you to be displayed for advertising purposes (“Advertising Materials”);
2) To copy, transmit and display the logos, trademarks, service marks and/or identifying words associated with you , Advertising Materials and the products or services under promotion through DSP;
3) Use data collected for market research and for press releases without identifying you;
Avazu reserves the right to reject or cancel any Advertising Materials at any time, for any reason whatsoever, including but not limited to belief by Avazu that the relevant Advertising Materials or the elements contained therein may subject Avazu to criminal or civil or administrative liability or is materially adverse to Avazu’s interests. The fact that Avazu has not rejected any Advertising Materials shall in no way reduce, limit or otherwise affect your responsibility and obligations under this Agreement.
You shall notify Avazu in writing of any changes made to the Advertising Materials or the underlying service or products as soon as possible before the changes become effective.
If Avazu determine (in Avzu’s sole discretion) at any time that the Advertising Materials provided by you is inaccurate or that any of the products or service promoted by you through the DSP violates any applicable laws, rules, regulations or any of Avazu’s policies, Avazu may suspend your participation in the DSP with or without prior notice to you.
You represent, warrant and covenant that:
1) You hold the necessary rights to permit the use of the Advertising Materials by Avazu;
2) All Advertising Materials comply with laws, regulations, industry standards in the applicable territory and any written requirements mandated by the Publisher Sites;
3) Neither the Advertising Materials nor the products or services promoted by the Advertising Materials contain any item that (i) is misleading, inaccurate, or that makes fraudulent or unfair competitive claims or that makes insufficiently supported claims or claims that distort the true meaning or practical application of statements made; (ii) would be considered a criminal offense or could give rise to civil liability, or violates any applicable law, regulation or order of any court or tribunal; (iii) violates any third party right including without limitation, intellectual property rights; (iv) use, endorse or promote content which is adult content, pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory activity, promotes illegal drugs or arms trafficking, counterfeiting money, violates export control laws, offensive; (v) contains any virus, worms, Trojan horses, or any other computer code, files or programs designed to interrupt, hijack, malware, spyware, spam-ware, destroy, limit or adversely affect the functionality of any computer, computer software, mobile device, hardware, network or telecommunications equipment; (vi) encourage or incentivize end users to visit, click or any other way for the purpose of generating revenues in an undue manner; (vii) install or execute on end uses’ mobile device application(s)/software/program(s) without authorization of that user;
4) Advertising Materials comply with standards of decency and good taste. Avazu will decide, in its sole discretion, whether the Advertising Materials provided to Avazu comply with these standards;
Avazu requires full compliance by you to all the above representation, warrants and covenant. In the event that Avazu learns of any breach on these terms by you, Avazu will impose the punishment in the following sequence plus any damages caused, which can include but is not limited to, loss of revenue due, additional fines imposed by the Publisher Sites, or regulator and any other rights and remedies available to Avazu: (i) send you a written notice upon your first violation; (ii) freeze your Account for thirty(30) days upon your second violation and (iii) deactivate your Account and forfeit all the remaining balance upon your third violation.
You agree that Avazu, in its sole discretion, shall be responsible for determining the existence of violation and you shall be bound by any and all such determination. Upon a good faith determination of violation by Avazu, you agree that you bear the burden of proving to Avazu that you did not engage in the violation.
You shall defend (or pay our fees and costs of defense at our sole discretion), indemnify and hold us and our respective successors, affiliate entities, assigns, shareholders, officers, directors, employees and applicable third parties (e.g., licensors, licensees, consultants and contractors) (collectively, the "Indemnified Person(s)") harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) brought against the Indemnified Person(s) and arising out of or related to, your participation in the DSP, Advertising Materials, and/or your breach (or any alleged breach) of any term of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AVAZU DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARISING OUT OF YOUR PARTICIPATION IN THE DSP OR USE OF ANY RELATED SERVICES . FURTHER, AVAZU EXPRESSLY DISAVOW ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD YOU HARMLESS IN CONNECTION WITH ANY LAWSUIT OR OTHER PROCEEDING ARISING OUT OF SUCH PARTICIPATION OR USE. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE DSP OR ANY RELATED SERVICES WILL REMAIN UNINTERRUPTED OR ERROR-FREE.
AVAZU, THEIR SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, AVAZU, THEIR SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUCCESSORS AND ASSIGNS AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO AVAZU DURING THE PRECEDING THREE (3) MONTHS BY YOU. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, TORT, ERRORS AND OMISSIONS, COPYRIGHT, TRADEMARK, PATENT, OR ANY OTHER CLAIM OR CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
Except as otherwise ser forth herein, no action arising under or relating to this Agreement, regardless of its form, may be brought by you more than 3 months after the cause of action has accrued and in any event no later than 3 months after the termination of this Agreement.
Either party may terminate this Agreement at anytime by providing notice to the other party two (2) business days before such termination become effective. Notwithstanding anything to the contrary in this Agreement, Avazu may suspend, deactivate or terminate your Account and your right to use the services from DSP at any time in its sole discretion, due to your breach of any terms of this Agreement. You are obligated to compensate Avazu for all impressions up to the point the termination takes effect and for all non-cancelable portions.
You acknowledge and agree that data collected, in addition for Avazu to performing the obligations to you, may be used for the following purposes:
1) Formation of algorithm: Avazu will collect the raw data from you campaign (e.g. number of clicks, click time, click-through rate, bid price, cost-per-click, conversion rate, etc) to formulate predictive algorithm;
2) Product Whitepaper: Upon analyzing the data collected, Avazu would be entitled to publish Product White Papers to disclose the findings we obtained;
3) Marketing and Press Releases: Findings might be used with regard to various marketing and press releases to share with the market;
Except as otherwise provided herein, each party agrees to treat as confidential and not to disclose, duplicate, use or permit the use by a third party of any information, documents or materials provided by the other party under this Agreement other than for the purpose of providing its services under this Agreement or as may be required by law.
This Agreement shall be governed by the laws of the People’s Republic of China without regard to conflicts of law provisions. Any dispute arising out of this Agreement or the interpretation thereof, shall be discussed by the parties in the first instance, and if possible resolved by negotiation. In the event that the matter cannot be so resolved, it shall be submitted to and determined by arbitration, by a single arbitrator, in accordance with the rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) then in effect. The seat and place of arbitration shall be Shanghai and the English language shall be used throughout the arbitral proceedings. The arbitral award is final and binding upon both parties.
1) If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
2) No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.
3) The headings in these Terms are inserted for convenience only and do not affect its construction.
4) This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. You may not assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights shall be null and void. Avazu may assign this Agreement, in whole or in part, to another Avazu group companies.
Updated on July 24, 2015
This Guideline (“Guideline”) is an addition to the original agreement (“Agreement”) that governs your participation in the mobile version of Demand Side Platform (“DSP”) operated by Avazu Inc. ("Avazu").
You hereby acknowledge and agree that:
1. Avazu has zero tolerance for Prohibited Content throughout DSP. You promise that after gaining access to Third-Party Creative and Beacon URL function, you will not upload any Prohibited Content to your Account and any content that might be linked through the materials you uploaded will not be considered, in Avazu’s discretion, as Prohibited Content as well. For the purpose of this Guideline, Prohibited Content includes but is not limited to content that is auto-redirect, auto-download, malware, pornographic, obscene, racist, ethnically offensive, threatening, infringing, violent, misleading, deceptive, or content which contains any item that is not inconsistent with the Creative Policy or Landing Page Policy or the Agreement.
4. You confirm that the deposit is just a conservative approximation of the expense and loss Avazu will be incurred in enforcing this Guideline and nothing in this Guideline limits Avazu’s rights under the Agreement.