Terms of Service for Publishers

SDK License and Publisher Terms

These AdColony SDK License and Publisher Terms (this “Agreement”) is made available by AdColony, Inc. (“AdColony”). By downloading or using the AdColony SDK, you and any company, entity, or organization on behalf of which you are accepting this Agreement (“Developer”) hereby agrees to be bound by all terms and conditions of this Agreement, and you represent and warrant that you are an authorized representative of Developer with the authority to bind Developer to this Agreement. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE ADCOLONY SDK.

1. “Advertisers” means third-party advertisers.
2. “Developer Apps” means the mobile applications owned and/or controlled by Developer, including all content images, music and text contained therein, that Developer wishes to use with the AdColony SDK and AdColony Platform.
3. “I/O” means a fully executed insertion order containing advertising campaign details for user acquisitions and campaigns run by Developer on AdColony’s Platform.
4. “AdColony Ads” means video, playable, display, or any type of media advertisements, sourced by or on behalf of AdColony, which are routed and/or served by the AdColony Platform to the Developer Apps.
5. “AdColony Platform” means AdColony’s advertising system or network, which supports advertisement insertion within mobile applications, and related advertisement reporting tools.
6. “AdColony SDK” means the software development kit and any other software and documentation that may be provided by AdColony to Developer with the software development kit, including any updates thereto.
7. “Personally Identifiable Information” or “PII” means information that specifically identifies or locates a particular person or entity such as name, postal address, telephone number, and email address.
8. “Pseudonymous Identifiers” means data that is linked or reasonably linkable to a particular computer or device resettable device identifiers such as Google Advertising ID, Apple Identifier for Advertisers, IP address, or other similar identifiers. Pseudoymous Identifiers may not be utilized to identify a particular person.

1. License Grant. Subject to the terms and conditions of this Agreement, AdColony grants Developer a non-exclusive, non-transferable, non-sublicenseable, worldwide license to: (a) integrate the AdColony SDK with Developer Apps solely for internal use; (b) use, reproduce and distribute certain portions of the AdColony SDK as required for Developer’s distribution of Developer Apps, solely as enabled by, and in accordance with documentation provided by AdColony; and (c) use the AdColony SDK and AdColony Platform to have advertisements, including AdColony Ads, distributed and presented within Developer Apps.
2. SDK Updates. AdColony periodically releases new versions of the AdColony SDK which may contain new features and fixes, and AdColony may sunset versions of the AdColony SDK. Developer is encouraged to check the AdColony website (or AdColony-designated distribution site) from time to time for the latest version releases, and to download and integrate such new versions within the Developer Apps, subject to this Agreement (including any amendments).

C. License Restrictions. Except as expressly provided in this Agreement, Developer shall not (and shall not allow any third party to): (a) decompile, reverse engineer, disassemble, modify, adapt, create derivative works of, copy or distribute the AdColony SDK or AdColony Platform, (b) modify, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends from the AdColony SDK or AdColony Platform; (c) copy, distribute, rent, lease, lend, sublicense, transfer or make the AdColony SDK or AdColony Platform available to any third party, and (d) use the AdColony SDK or AdColony Platform to develop, upload, or transmit any software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware.

3. Intellectual Property. All ownership rights, title, and interest in and to the AdColony SDK and AdColony Platform, including all intellectual property rights therein, as such may be modified, upgraded, or enhanced from time to time (“AdColony Property”) will remain and belong exclusively to AdColony. AdColony reserves all rights not expressly granted to Developer herein. Developer shall retain all ownership rights, title and interest in and to the Developer Apps, including all intellectual property rights therein, as such may be modified, upgraded or enhanced from time to time.
4. Advertising via The AdColony Platform

1. AdColony Insertion & Sale of Ads. Developer hereby grants AdColony the right to sell, and have sold, advertisement inventory in the Developer Apps, and to insert AdColony Ads within such inventory. In addition, Developer hereby grants AdColony the non-exclusive, worldwide right and license to use, reproduce, distribute and display Developer’s and the Developer Apps’ trademarks, logos, and images of the Developer Apps, in connection with the sale of AdColony Ads hereunder, including: (a) listing the Developer Apps and inventory in pitch materials to prospective Advertisers; (b) reporting the inclusion of Developer Apps and inventory as part of AdColony’s advertising network; and (c) identifying the Developer as a publishing partner on AdColony’s website and other marketing materials. AdColony also reserves the right to utilize publisher results (both specific and aggregate) in case studies and white papers for promotional purposes.
2. Developer Ad Campaigns. For user acquisitions and other campaigns run by Developer on the AdColony Platform, Developer shall provide AdColony with a signed I/O. The terms of the I/O, including the Interactive Advertising Bureau terms and conditions incorporated into the I/O (the “IAB Terms”) shall govern such advertising campaigns. In the event of any conflict between the I/O and such IAB Terms, the I/O shall govern and control with respect to such campaign.
3. Developer Apps Content Policy. The Developer Apps will not contain, consist of, or promote discrimination, illegal activities, hate speech, defamation, graphic violence, firearms, tobacco, illegal drugs, pornography, profanity, obscenity or sexually explicit material (“Developer Apps Content Policy”). Developer will notify AdColony immediately of any Developer Apps relating to alcohol or gambling or that are child-directed as defined under COPPA. Developer agrees that AdColony has no responsibility for the Developer Apps, including any content therein, and AdColony has no obligation or ability to monitor or edit the Developer Apps. Developer will provide as much advance written notice as reasonably practicable, but in no event less than fifteen (15) days’ notice, regarding any material changes to the nature or design of any Developer App, including without limitation, changes to the placement of AdColony Ad inventory, any action that will increase or reduce expected AdColony Ad inventory within the Developer Apps, the type of content contained within the Developer Apps, or the target audience of the Developer Apps.
4. Ad Restrictions. Developer may not, and may not authorize or encourage any third party to: (a) generate fraudulent impressions of, or fraudulent clicks on any AdColony Ads, including through repeated manual clicks, the use of robots or other automated tools or any other

method that may lead to artificially high numbers of impressions, clicks, downloads, installs, app-opens, installed app user activity; or (b) edit, modify, filter, or change the order of the information contained in any AdColony Ad, or remove, obscure or minimize any AdColony Ad in any way. Developer shall promptly notify AdColony if it suspects that any third party may be tampering with, abusing or manipulating the AdColony Platform or the AdColony Ads within the Developer App. AdColony may suspend Developer’s use of the AdColony Platform and/or terminate this Agreement immediately should Developer violate the foregoing provisions of this Section as determined by AdColony’s sole discretion upon evaluating its fraud detection and reporting systems, and Developer shall not be entitled to any revenue associated with the applicable campaign(s).

1. Collection of Data. Developer acknowledges and agrees that Pseudonymous Identifiers may be used in connection with the performance of this Agreement in order to collect and use data from end users and their devices (“App Data”) in connection with advertisement performance, targeting, and end user interests (“Performance Data”), and to display AdColony Ads to end users. Developer agrees that in connection with AdColony Ads, AdColony may access or call to the Developer Apps, or the servers that make them available, and cause the routing, transmission, reproduction, and presentation of AdColony Ads as contemplated herein. Additionally, Developer agrees that AdColony may collect App Data and Performance Data, including Pseudonymous Identifiers , usage data, and streaming data, with regard to the Developer Apps (and included content) within which AdColony Ads are routed and/or served and (i) disclose such information to third parties (including Advertisers and attribution partners) as reasonably necessary in connection with the operation of the AdColony Platform, (ii) disclose such data if required by any court order, process, law or governmental agency; (iii) disclose such data generally when it is aggregated, such that the specific information relating to Developer is not identified as such; and (iv) use such information for AdColony’s internal business purposes, including to develop and improve the AdColony SDK and AdColony Platform. AdColony will collect and use the data in accordance with the Digital Advertising Alliance Self-Regulatory Principles (“DAA Codes”), which are available at http://www.aboutads.info/principles and AdColony Privacy Policy, which is available at https://www.adcolony.com/privacy-policy/ (as updated from time to time) and is hereby incorporated by reference.
2. Compliance with Laws. Developer agrees to comply with all Privacy Requirements (as defined below), including conspicuously posting a privacy policy that accurately describes the Developer’s and third parties’ collection, use, and disclosure of end user data from the Developer Apps, which include disclosure that third parties may collect or receive information and use that information to provide measurement services and targeted ads, and disclosure of how and where users can opt-out of collection and use of information for ad targeting. Developer will not pass any PII to AdColony unless expressly permitted in writing, and as permitted under any Privacy Requirements. Developer represents and warrants that any data Developer provides to AdColony regarding devices, location, or users, and the ability for AdColony to collect the App Data and Performance Data, is permitted and provided in compliance with all Privacy Requirements including Developer’s posted privacy policy. Developer further represents and warrants that it has made any and all disclosures and obtained any and all consents or permissions required by law with respect to Developer’s privacy practices, including without limitation: (a) any end user data Developer collects, uses, and/or discloses, (b) the use and disclosure of App Data and Performance Data to AdColony via the AdColony SDK and AdColony Platform, and (c) notice and parental consent required by the Children’s Online Privacy Protection Act (“COPPA”). AdColony reserves the right to modify, suspend, or terminate this Agreement should Developer violate this Section, and/or to remain compliant with law.

C. “Privacy Requirements” means all (i) applicable laws (including COPPA), governmental regulations, court or government agency orders, and decrees relating in any manner to the collection, use, or dissemination of information from or about users, user traffic, or otherwise relating to privacy rights; (ii) the DAA Codes; and (iii) Developer’s posted privacy policy.

1. Developer Payment. Subject to the terms and conditions of this Agreement, AdColony shall pay to Developer Net Revenue amounts determined by AdColony. All revenue received from activities that AdColony deems to be fraudulent may be refunded to the Advertiser(s) in AdColony’s sole discretion.
2. Payment Terms. AdColony will pay any Developer Payment due to Developer sixty (60) days after the completion of the month in which such AdColony Ad campaign runs; provided that, AdColony may withhold payment until the following month for Developer Payment amounts less than $100 U.S. Developer shall be responsible for any bank, transfer or transaction fees (e.g., PayPal). AdColony may deduct any withholding, sales, value added, and other applicable taxes (other than its net income taxes) as required by law. Developer is responsible for paying any other taxes, duties, or fees for which Developer is legally responsible.
3. Earnings are forfeited by publisher if a) the publisher’s lifetime earnings are less than $100 and it has been more than 12 months since the publisher had earnings or b) the publisher has not provided payment information, outstanding earnings are less than $1,000 and it has been more than 12 months since the publisher had earnings.

1. Term. This Agreement is effective until terminated in accordance with this Agreement.
2. Termination by AdColony. AdColony may terminate this Agreement at any time by providing sixty (60) days’ notice to Developer. Additionally, AdColony may terminate this Agreement immediately if Developer breaches any provision of this Agreement.
3. Termination by Developer. Developer may terminate this Agreement at any time by providing written notice to AdColony (email to suffice), ceasing all use of the AdColony Platform and AdColony Property, and destroying or removing from all hard drives, networks, and other storage media all copies of the AdColony Property.
4. Effect of Termination. Upon termination of this Agreement by Developer, the Agreement (including all rights and licenses granted and obligations assumed hereunder) will remain in force and effect until the completion of all AdColony Ad campaigns associated with the Developer Apps in effect on the date of such termination (“Sell-Off Period”). AdColony’s payment obligations will remain in effect during the Sell-Off Period. Upon any termination of this Agreement, each party will promptly return or destroy all copies of any Confidential Information in its possession or control. Sections 3, 7(D) through 13 shall survive any expiration or termination of this Agreement.

A. Definition. “Confidential Information” means any and all business, technical and financial information or material of a party, whether revealed orally, visually, or in tangible or electronic form, that is not generally known to the public, which is disclosed to or made available by one party (the “Disclosing Party”) to the other, or which one party becomes aware of pursuant to this Agreement (the “Receiving Party”). The AdColony SDK is AdColony’s Confidential Information, and the terms and conditions of this Agreement shall remain confidential. The failure of a Disclosing Party to designate as “confidential” any such

information or material at the time of disclosure shall not result in a loss of status as Confidential Information to the Disclosing Party. Confidential Information shall not include information which: (i) is in or has entered the public domain through no breach of this Agreement or other act by a Receiving Party; (ii) a Receiving Party rightfully knew prior to the time that it was disclosed to a Receiving Party hereunder; (iii) a Receiving Party received without restriction from a third-party lawfully possessing and lawfully entitled to disclose such information without breach of this Agreement; or (iv) was independently developed by employees of the Receiving Party who had no access to such information.

B. Use and Disclosure Restrictions. The Receiving Party shall not use the Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement, and shall not disclose the Confidential Information to any third party, except to those of its employees, subcontractors, and advisers that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee, subcontractor, and advisor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of the Confidential Information as those set forth herein. The Receiving Party will use at least the efforts such party ordinarily uses with respect to its own confidential information of similar nature and importance to maintain the confidentiality of all Confidential Information in its possession or control, but in no event less than reasonable efforts. The foregoing obligations will not restrict the Receiving Party from disclosing any Confidential Information required by applicable law; provided that, the Receiving Party must use reasonable efforts to give the Disclosing Party advance notice thereof (i.e., so as to afford Disclosing Party an opportunity to intervene and seek an order or other relief for protecting its Confidential Information from any unauthorized use or disclosure) and the Confidential Information is only disclosed to the extent required by law. The Receiving Party shall return all of the Disclosing Party’s Confidential Information to the Disclosing Party or destroy the same, no later than fifteen (15) days after Disclosing Party’s request, or when Receiving Party no longer needs Confidential Information for its authorized purposes hereunder.

9. Representations and Warranties of Developer. Developer represents, warrants and covenants to AdColony that: (a) it has all necessary rights, title, and interest in and to the Developer Apps, and it has obtained all necessary rights, releases, and permissions to grant the rights granted to AdColony in this Agreement, including to allow AdColony to sell and insert the AdColony Ads as contemplated herein; (b) it shall not use the AdColony Platform to collect or discern any personally identifiable information of end users, or use the data received through the AdColony Platform to re-identify an individual; and (c) the Developer Apps will comply with the Developer Apps Content Policy, and will not infringe upon, violate, or misappropriate any third party right, including any intellectual property, privacy, or publicity rights.

10. Warranty Disclaimer. THE ADCOLONY SDK AND ADCOLONY PLATFORM ARE PROVIDED “AS IS”. ADCOLONY DOES NOT MAKE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. ADCOLONY AND ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE ADCOLONY PLATFORM OR ADCOLONY SDK WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE ADCOLONY PLATFORM OR ADCOLONY SDK ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ADCOLONY DOES NOT WARRANT THE RESULTS OF USE OF THE ADCOLONY PLATFORM OR ADCOLONY SDK. DEVELOPER ACKNOWLEDGES THAT ADCOLONY MAY MODIFY OR SUSPEND THE ADCOLONY PLATFORM AT ANY TIME IN ITS SOLE DISCRETION AND WITHOUT NOTICE.

1. Developer Indemnification. Developer agrees to indemnify, defend, and hold harmless AdColony and its affiliates, and their directors, officers, employees, and agents from and against any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party arising from or in connection with any breach of Developer’s obligations, representations or warranties set forth in this Agreement; provided that, AdColony: (a) promptly notifies Developer in writing of the claim, except that any failure to provide this notice promptly only relieves Developer of its responsibility to the extent its defense is materially prejudiced by the delay; (b) grants Developer sole control of the defense and/or settlement of the claim; and (c) reasonably cooperates with Developer in connection with such claim at Developer’s cost and expense.
2. AdColony Indemnification. AdColony agrees to indemnify, reimburse and hold harmless, Developer, its officers, directors, employees, and agents from and against any and all third party claims, liabilities, demands, causes of action, damages, losses and expenses, including, without limitation, reasonable attorneys’ fees and costs of suit, arising out of or in connection with AdColony’s infringement or misappropriation of a third party U.S. copyright, trademark or trade secret by the use of the AdColony Platform and/or the AdColony SDK by Developer as permitted hereunder; provided that, Developer: (a) promptly notifies AdColony in writing of the claim, except that any failure to provide this notice promptly only relieves AdColony of its responsibility to the extent its defense is materially prejudiced by the delay; (b) grants AdColony sole control of the defense and/or settlement of the claim; and (c) reasonably cooperates with AdColony in connection with such claim at AdColony’s cost and expense. In addition, if the use of the AdColony Property by Developer has become, or in AdColony’s opinion is likely to become, the subject of any claim of infringement, AdColony may at its option and expense (i) procure for Developer the right to continue using the AdColony Property as set forth hereunder; (ii) replace or modify the AdColony Property to make it non- infringing so long as the AdColony Property has substantially equivalent functionality; or (iii) if options (i) or (ii) are not reasonably practicable, terminate this Agreement. AdColony shall have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions, or specifications provided by Developer; (y) modification of the AdColony Property by any party other than AdColony without AdColony’s express consent; or (z) the combination, operation, or use of the AdColony Property with other applications, portions of applications, product(s), data or services where the AdColony Property would not by itself be infringing unless AdColony has required or expressly allowed such combination, operation, or use. THE INDEMNIFICATION RIGHTS CONTAINED IN THIS SECTION 11 ARE DEVELOPER’S SOLE REMEDY FOR THIRD PARTY INFRINGEMENT CLAIMS RELATING TO ADCOLONY’S SDK AND THE ADCOLONY PLATFORM.

12. Limitation of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREIN AND BREACHES OF SECTIONS 2 and 8, NEITHER PARTY SHALL BE LIABLE TO OTHER PARTY FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, DATA, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREIN AND BREACHES OF SECTIONS 2 and 8, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL DEVELOPER PAYMENT PAYABLE TO DEVELOPER UNDER THIS AGREEMENT BY ADCOLONY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

1. Relationship of the Parties. Each Party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. No party shall have any right to obligate or bind any other party.
2. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. Notwithstanding the foregoing, Developer may not assign this Agreement to a direct competitor of AdColony without AdColony’s prior written consent. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
3. Amendments; Waiver. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
4. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the federal and state courts in Los Angeles County, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
5. Entire Agreement. This Agreement contains the entire understanding of the parties regarding its subject matter and supersedes all other agreements and understandings, whether oral or written.