Effective Date: January 17th 2010
Applifier has developed the Service and a platform on the Website (currently available at www.applifier.com) that facilitates advertising and promotion of your and other users’ applications, websites and other properties. You wish to use to the Service on your applications, websites or other properties (the “Promoted Application”) through integrating an Applifier provided cross-promotional banner (the “Applifier Bar”) or other Applifier provided ad units (collectively the “Applifier Ad Units”) into your Promoted Application.
The Service is offered subject to acceptance without modification of all of the terms and conditions contained in the Agreement. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by Applifier from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
1. USE OF SERVICE
By accessing or using the Service in any manner, you represent and guarantee:
1.1 You are only eligible to use the Service if:
(a) if you are an individual, you are at least 18 years old; and if you are entering this agreement on behalf of an entity, you are authorized to bind the entity to this Agreement;
(b) you will submit accurate and truthful registration information;
(c) you will maintain the accuracy of your registration information; and
(d) you are not violating any applicable law by using the Service; and
(e) you are approved for the Service after review by Applifier at its sole discretion;
1.2 The Applifier Ad Units shall only be displayed in connection with the Promoted Application, each of which is subject to review and approval by Applifier in its sole discretion at any time. The placement of the Applifier Ad Unit in the Promoted Application shall follow the guidelines set by Applifier.
1.3 You must notify Applifier of any significant or otherwise material content changes to existing Promoted Applications. Applifier reserves the right to accept or reject new, modified or existing Promoted Applications, and is under no obligation to accept any modified Promoted Applications, even though the original Promoted Application has previously been accepted. In the event that you receive an approval for new Promoted Applications, each and every Promoted Application is obligated and bound by this Agreement.
1.4 You must display the unmodified Applifier Ad Units to users of your Promoted Application. You may not alter, obscure or minimize the Applifier Ad Units in anyway.
1.5 You may not segment the users of the Promoted Application to whom the Applifier Ad Unit is shown, except as required for users under the age of 13 as noted in Section 1.17. If you do not display the Applifier Ad Units to all of the users of your Promoted Application, you must fully randomize the users to whom the Applifier Ad Units will be displayed . If a user enters your Promoted Application through an Applifier Ad Unit, you must display an Applifier Ad Unit to that user whenever that user uses the Promoted Application.
1.6 You acknowledge and agree that the Service is supported by advertisements and that, as a condition of your participation in the Service, third party advertisements may appear in the Applifier Ad Units, which appear in your Promoted Application. These advertisements will be placed by Applifier, in its sole discretion, and the placement will vary according to the Clicks and Credits (as defined below) that flow through your Promoted Application.
1.7 You will ensure to the best of your ability that the Applifier Ad Units are displayed to, and any clicks on Applifier Ad Units or other use of the Service will originate from, actual, live end users of your Promoted Application and not from any automated process or tool.
1.8 You will not do anything, or attempt to do anything, to modify, circumvent, disable, violate, or interfere with the security or integrity of the Website or Service, the proper operation of the Website or Service, or any activity being conducted on the Website or Service. You will not “crawl,” “spider,” index or in any non-transitory manner store or cache information obtained from any part of the Service.
1.9 You shall not (directly or indirectly) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, or modify any part of the Service.
1.10 You are solely responsible for your Promoted Application including its maintenance, operation and any content within the Promoted Application. You agree that your content will not contain restricted or password-only access pages, hidden pages, or images. You will not use the Service to post false or libelous content or for distributing spam or viruses.
1.11 When you connect to third party websites and applications through the Service, you agree that Applifier does not control the content on these sites (and is merely a passive conduit with respect to), does not endorse these sites, and is not responsible or liable for their availability, any content, advertising, products, or other materials on or available from such sites or resources.
1.12 You will not use the Service and Website in any way that violates any laws, third party rights (including all intellectual and other proprietary rights) including but not limited to any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity, or conflict with this Agreement, any agreement you may have with a third party, or any of Applifier’s policies in any way.
1.14 You may hyperlink to the Website in a non-misleading, non-derogatory, and non-offensive manner as determined by us.
1.15 You will be responsible for withholding, filing, and reporting all taxes (except Applifier’s income taxes), duties, and other governmental assessments associated with your applications and your use of the Service and the Website.
1.16 You agree that Applifier does not guarantee 24/7 availability of the Service. Applifier will endeavor to minimize any downtime of the Service.
1.17 You will not knowingly display Ad Units or supply to Applifier any data on end users under the age of 13. If you become aware that a user is under 13 years of age, you will notify Applifier so that we may delete any data on such user.
1.18 You will follow any further guidelines as they may be posted on the Website that govern how the Service may be used.
2. ACCOUNT SECURITY
To use the Service, you agree that:
2.1 You will create an account and a password by completing the Service’s registration process. You may start using your account after we have reviewed your registration and activated your account.
2.2 You will never share your password with anyone else. You are responsible for all the activities under your account, so you must keep your password secret.
2.3 You may never use another user’s account, username, or password without permission.
2.4 You will notify us immediately of any unauthorized use of your password or account or any other breach of security.
3. LICENSES AND INTELLECTUAL PROPERTY RIGHTS
3.1 You hereby acknowledge that Applifier owns or licenses all of the content on the Website and available through the Service (collectively “Content”), and the trademarks, service marks, and logos contained therein (“Marks”) are owned by or licensed to Applifier, subject to applicable intellectual property laws.
3.2 Applifier reserves all rights not expressly granted in and to the Service and the Content.
3.3 Applifier hereby acknowledges that you own or license the intellectual property rights in your Promoted Application and the trademarks, service marks and logos contained therein.
3.4 To participate in the Service, you agree to provide and do hereby grant Applifier a limited, royalty-free, non-exclusive, perpetual license to (i) use your name, logo, and the title(s), logo(s) and any artwork submitted by you of your Promoted Applications or websites on the Service including the Applifier Ad Units and in any other way in connection with the Service. Further you agree to provide and do hereby grant Applifier a limited, royalty-free, non-exclusive license during the term of this Agreement to display the Service’s content such as the Applifier Ad Units on your application.
3.5 You also hereby grant each user of the Service a non-exclusive license to link to and to direct end users to your Promoted Application through the Service.
3.6 Subject to these Terms of Service, Applifier grants you a limited, non-exclusive, non-sub-licensable, non-transferable right during the term to display and use the Service, including the Applifier Ad Units, on your Promoted Application, and to use any materials such as instructions, artwork and templates provided by Applifier in connection with the Service.
4. USER SUBMISSIONS
4.1 You will manage and be responsible for the content you submit for use on the Service including advertisements to be shown on the Applifier Ad Units (“Submission”). You guarantee that your Submission will not be unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortuous, obscene, offensive, or profane.
4.2 You represent and warrant that you own or possess sufficient rights to the Submission and that disclosure, use or any other exploitation of the Submissions by Applifier will not infringe or violate the rights of any third party.
4.3 You retain ownership in and the ability to license your Submission and any content in the Submission. You hereby grant Applifier an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, fully paid, sub-licensable and transferable license to use, modify, reformat, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit your Submission in connection with the Service and Applifier’s (and its successors and assigns) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.
4.4 You are solely responsible for your (i) own Submission and the consequences of posting or publishing it and (ii) the actual implementation of the Applifier Ad Units including the Applifier bar on your website and/or Promoted Application. Applifier will under no circumstances be liable in any way for any Submission, including, but not limited to, any errors or omissions in any Submission, or any loss or damage of any kind incurred in connection with use of or exposure to any Submission made available via the Service.
4.5 You agree to pay all royalties, fees, and other costs that might arise because of your Submission.
4.6 If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to our Copyright Dispute Policy below.
5. EARNING AND SPENDING CREDITS
5.1 A “Click” is defined as an event in which a live, actual end user who is engaged with an application clicks on a hyperlink presented in the Applifier Ad Unit to leave that application for the purpose of engaging with another application or for other promotional purposes. A “Credit” is defined as the non-monetary value of a Click within the Service, that value depending on the demographics and the characteristic of the end user performing the Click and the nature of the applicable hyperlink, as published, and amended from time to time in Applifier’s sole discretion, in the Click Guidelines located at http://www.applifier.com/admin/credit-info.
5.2 You will spend an amount of Credits when an end user who is engaged with a third party application clicks on an ad for your Promoted Application to leave that third party application for the purpose of engaging with your Promoted Application.
5.3 You will receive an amount of Credits when an end user who is engaged with your Promoted Application clicks on an ad on the Applifier Ad Units for the purpose of engaging with another application.
5.4 The amount of Credits you receive as per 5.3 above is determined by your exchange rate, which is set individually for you and will be provided in writing to you by Applifier and published in your user account at http://www.applifier.com/admin/credit-info. The exchange rate also varies depending on the Ad Units being served through the Service.
5.5 By way of example, and not binding to Applifier, if you generate 100 Clicks from users from the United States valued at 5 Credits per Click, you will receive 500 Credits times your exchange rate. If your exchange rate is 20%, you will earn 400 Credits and the amount of paid Ad Units being placed on the Applifier Ad Unit in your Promoted Application will be 15%. We may, at our discretion, also use other calculation methods that yield the same effective result across the whole Service user base.
5.6 You agree that Credits you may earn in the Service have no monetary value and may not be exchanged for money.
5.7 You will not earn Credits for
(a) invalid clicks in any way or any person, bot, automated program or similar device, as reasonably determined by Applifier, including without limitation any clicks or impressions (i) originating from your IP addresses or computers under your control, (ii) solicited by payment of money, false representation, or request for end users to click on the Applifier Ad Units.
(b) clicks co-mingled with a significant number of invalid clicks described in (a) above, or as a result of any breach of this Agreement by you.
(c) any clicks on the Applifier Ad Units that are not Clicks directing end users into any Promoted Application, or Clicks to services provided by Applifier;
5.8 Applifier reserves the right to withhold Credits or charge back your Credit account the amounts due to any of the foregoing or any breach of this Agreement by you. If you have failed to fulfill your obligation as set forth in this Section 5 to serve back clicks to Applifier, Applifier reserves the right to offset any outstanding Credits from any Credits earned by you.
5.9 If you dispute any calculation of Credits made in connection with the Service, such dispute will be resolved as follows:
(a) you must notify us in writing within thirty (30) days after an event giving rise to such dispute. If you do not notify us within that time period, you waive any rights related to the disputed Credits.
(b) Credits shall be calculated solely based on records maintained by us.
(c) Applifier will not use or accept any other measurements or statistics of any kind. Any other measurements or statistics will not have any effect under this Agreement.
6. CONFIDENTIAL INFO AND APPLIFIER DATA
6.1 You agree and acknowledge that Applifier may retain and use for its own purposes all information you provide, including but not limited to site demographics and contact and billing information. You agree that Applifier may transfer and disclose to third parties personally identifiable information about you for the purpose of approving and enabling your participation in the Service. Applifier disclaims all responsibility, and will not be liable to you, for any disclosure of that information by any such third party.
6.5 You also acknowledge and agree that Applifier Data shall remain the property of Applifier and may not be copied or reproduced, altered, modified, changed, broadcast, distributed, transmitted, transferred, disseminated, sold or offered for sale in any manner, at any time anywhere in the world except as expressly authorized in writing by Applifier. Nothing herein shall be construed as a grant or assignment to you or any third party of any right, title or interest in any Applifier Data owned by Applifier, including, without limitation, any of its trademarks or service marks.
6.6 You agree not to disclose any Applifier’s confidential information without first obtaining the prior written consent. For the purposes of this Agreement “Confidential Information” includes without limitation:
(a) All Applifier software, technology, programming, technical specifications, materials, guidelines and documentation relating to the Service;
(b) Statistics such as click and impression counts or other statistics relating to the Promoted Application as provided to you by Applifier;
(c) Applifier Data; and
(d) Any part of the Service requiring registration and any other information designated in writing as “Confidential”.
(e) Confidential Information shall not include information that is publicly known through no breach by you, or information that you obtained independently without access to Confidential Information, or rightfully received by you from a third party, or required to be disclosed by law or by a governmental authority.
6.7 Applifier agrees not to disclose any of the following confidential information about you and your Promoted Application without first obtaining your prior written consent. For the purposes of this Agreement “Publisher’s Confidential Information” includes without limitation:
(a) All software, technology, programming, technical specifications, materials, guidelines and documentation relating to Promoted Application that you disclose to Applifier;
(b) Non-aggregated statistics such as click and impression counts or other statistics relating specifically to the Promoted Application as provided to you by Applifier;
(c) Publisher Confidential Information shall not include information that is publicly known through no breach by Applifier, or information that Applifier obtained independently without using to Publisher Confidential Information, or rightfully received by Applifier from a third party, or required to be disclosed by law or by a governmental authority.
7.1 This Agreement shall remain in full force and effect while you use the Service. Subject to Section 7.3, you may terminate your use of the Service at any time, with or without notice, effective immediately by following the instructions on the Website, which may result in the forfeiture and destruction of all information associated with your user account.
7.2 Applifier may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your user account.
7.3 If your use of the Service is terminated, or you cease to offer the Promoted Application, then, subject to the restrictions set forth herein, including this Section 7, you shall immediately and permanently cease all use of the Service and of any materials provided by Applifier in connection with the Service. If you wish to terminate and Applifier does not wish to terminate your account immediately, you must remain in the Service until your account has zero Credits. If your Credit account is positive at the time you send Applifier a termination notice, Applifier will continue to show your Promoted Application in the Applifier Ad Units appearing on third party applications until your Credit account equals zero. If your Credit account is negative at the time you send Applifier a termination notice, you must include the Applifier Ad Units in your Promoted Application until your Credit account equals zero.
7.4 Any and all amounts paid to us (if any) are nonrefundable. If you have unused Credits in your account, be sure to use those Credits before terminating your use as otherwise you will forfeit any unused Credits.
7.5 Sections 3.3, 4.3-4.5, 6, and 9 shall survive termination of the Agreement.
8. CHANGES TO THE SERVICE AND WEBSITE.
8.1 Applifier reserves the right, in its sole discretion, to modify or replace any of the Terms of Service. It is your responsibility to check the Terms of Service periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Service constitutes acceptance of those changes. Applifier will post all modifications and changes to these Terms of Service and other conditions on the Website. You must discontinue using the Service if you don’t agree to the amended Terms of Service.
8.2 Applifier reserves the right, in our sole discretion, with or without notice, without liability (i) refuse anyone access (ii) terminate or suspend your account and/or your access to the Service after you are registered (iii) remove, modify, or delete content and your Submission (although we do not monitor the Service for content), (iv) change, suspend, or discontinue the Service or any part of it at any time, (v) impose limits on certain features and services or restrict your access to parts or all of the Service.
9. LEGAL TERMS
9.1 Disclaimer of Warranty. Applifier provides the Service and its Website “AS IS”. Applifier and its suppliers hereby disclaim all express and implied warranties, including without limitation, warranties of merchantability, fitness for a particular purpose, and non-infringement. Applifier provides no guarantees regarding the performance of the Service including, but not limited to, the amount of impressions or clicks on the Applifier Ad Units nor on the timing of delivery of such impressions or clicks. Applifier also does not provide any warranty that the Website or Service will be error-free, will run without interruption, or that you will achieve any particular results arising out of your use of the Service or Website. Some states do not allow limitations on how long an implied warranty lasts so the foregoing limitations may not apply to you.
9.2 Limitation of Liability. Neither Applifier nor its suppliers shall be liable to you or to any third party for any modification, suspension, or discontinuance of the Service. Applifier shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Applifier’s reasonable control. To the maximum extent permitted under applicable law, neither party shall be liable for any special, incidental, consequential, exemplary or punitive damages, including without limitation, damages for loss of use or lost revenues, profits or anticipated profits, arising out of or in connection with this agreement whether or not the party has been advised of the possibility of such loss or damage. In no event shall Applifier’s liability arising out of or in connection with this agreement, whether in contract, tort, or otherwise, exceed the amount actually paid by you to us. Further, you agree that Applifier has no liability with respect to your actions or any Submissions and you hereby irrevocably release Applifier and its officers, directors, employees, agents, representatives, and affiliates from any and all liability arising out of or relating to your actions relating to the Service including your Submissions or any part thereof. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
9.3 Indemnity. You agree to defend, indemnify and hold harmless Applifier and its distribution partners, subsidiaries, affiliates, and their directors, officers, agents, members, shareholders, co-branders or other partners, employees, and advertising partners from any and all liabilities, losses, actions, damages, claims, obligations, costs, expenses, or demands (including, but not limited to attorneys’ fees, costs, and expenses) arising out of or related in any way to this Agreement or your use of or connection with the Service, any violation of any term, and any claim that your application caused damage to a third party.
(a) This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them.
(b) If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
(c) The failure of Applifier to act with respect to a breach of this Agreement by you or by others does not constitute a waiver and shall not limit Applifier’s rights with respect to such breach or any subsequent breaches.
(d) This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our consent and any action or conduct in violation of the foregoing shall be void and without effect.
(e) Applifier expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed entirely within California and without reference or regard to its conflict of laws provisions.
(f) You agree that Applifier may use your name and logo in presentations, marketing materials, customer lists, financial reports and listings of customers. If you wish to use Applifier’s trade names, trademarks, logos, domain names, and other materials, you may do so, so long as such use is in compliance with this Agreement.
(g) Any notices required under this Agreement shall be made by Applifier to the e-mail address you have used to register for the Service, and shall be made by you to the e-mail address firstname.lastname@example.org each of which shall constitute written notice. Applifier may post and update these information and policies relating to the Service at the Website.
(h) In the event of any dispute arising under this Agreement, you agree to submit to Applifier’s internal dispute resolution process.
(i) In the event a mutually agreeable solution is not reached through the internal dispute resolution process, and without limiting Applifier’s right to seek injunctive or other equitable relief in court, the dispute will be resolved by binding arbitration in the English language in San Francisco, California, under the Streamlined Arbitration Rules & Procedures of JAMS; the decision of the arbitrator will be enforceable in any court.
(j) The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Santa Clara County, California; The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act; you hereby agree to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
If you have any questions regarding this Agreement or if you wish to request any information from Everyplay, please contact us at the following address: email@example.com
COPYRIGHT DISPUTE POLICY
We have adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of our Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is our policy to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through our Website or Service infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
2. Identification of works or materials being infringed;
3. Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence;
4. Contact information about the notifier including address, telephone number and, if available, email address;
5. A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is our policy:
1. to remove or disable access to the infringing material;
2. to notify the content provider, member or user that it has removed or disabled access to the material; and
3. that repeat offenders will have the infringing material removed from the system and that we will terminate such party’s access to the service.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If you believe that the material that was removed or to which access was disabled is either not infringing, or you believe that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the party must send a counter-notice containing the following information to the Designated Agent listed below:
1. A physical or electronic signature of the content provider, member or user;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
3. A statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
4. Your name, address, telephone number, and, if available, email address and a statement that you consent to the jurisdiction of the Federal Court for the judicial district in which your address is located, or if your address is located outside the United States, for any judicial district in which we are located, and that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against you, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
Please contact our Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement:
153 Townsend Street, Suite 9053
San Francisco, CA 94107
Fax. +1 (415) 789-4178