Terms and Conditions

 

These Terms and Conditions shall be deemed incorporated by reference into any insertion order (the “Insertion Order”) submitted by the applicable Client as set forth in this Insertion Order (“Client”) and shall govern the Insertion Order, superseding all contrary terms set forth therein. All Insertion Orders are subject to acceptance by Telecascade Networks dba Tapclix (“Company”). These Terms and Conditions and the Insertion Order shall be collectively known as the “Agreement.”

1. GRANT OF LICENSE
Client hereby grants to Telecascade the worldwide, non-exclusive, royalty-free (except as otherwise expressly provided herein) right and license to use, copy, reproduce, distribute and display, in any medium now known or hereafter developed, the advertisements and all related materials and metadata submitted by Client to Telecascade (collectively, the "Advertisements").

2. ADVERTISEMENT SPECIFICATIONS
Client agrees to deliver the Advertisements and implement conversion tracking, both in accordance with the technical specifications provided by Telecascade to enable proper display of such Advertisements and tracking the results thereof in connection with the Telecascade advertising service(s) selected through Configuration ("Telecascade Services"). Client will be solely responsible for any and all costs Client incurs for the production and delivery of the Advertisements in accordance with such specifications and for any programming related to the same which Client elects to undertake. Telecascade shall not modify or alter the content, text or appearance of any Advertisement without Client's prior written consent.

3. SERVICE CIRCUMVENTION; NOTIFICATION
Client acknowledges the value of obtaining access to the applications, webpages, mobile media and other advertising inventory of publishers that work with Telecascade, and agrees not to purchase or seek to purchase such inventory directly by circumventing or bypassing the Telecascade Service or in any other way during the term of this Agreement and for six months thereafter. Unless Telecascade approves specifically in writing, Client may only use the Telecascade Services (including any SDK) as provided by Telecascade, without modification. Without limiting the generality of the foregoing, Client shall not to seek or set up a direct linking or other arrangement whereby the Telecascade Service or parts thereof is circumvented and Telecascade is unable to fully track and monitor the conversions and other events that are the basis for determining payments owing to Telecascade. Client may not otherwise interfere with or manipulate in any way Telecascade's tracking and payment calculation processes or the Telecascade Service generally. For all pay-per-install campaigns Client must provide to Telecascade a notification each and every time the relevant mobile application is run.

4. RESTRICTIONS
Client acknowledges that Telecascade does not provide the Telecascade Services for Advertisements by any entities that run, provide, enable or promote, for themselves or for others, services similar to any Telecascade services. Client represents, covenants and warrants that it is not and shall not be such an entity during the term of this Agreement.

5. TERMS OF PAYMENT
Client is responsible for payment to Telecascade for all conversions generated by each advertising campaign using the Telecascade Services whether or not Client has properly reported such transactions to Telecascade. Client shall pay Telecascade the fees as calculated by Telecascade's system taking into account the selections made during Configuration and such fees are due and payable within ten (10) days of receipt of the Telecascade invoice. To the extent that Client makes a pre-payment for any advertising campaign, such pre-paid account balances are non-refundable and will be reduced to offset fees as they are incurred. All prices are in United States dollars and do not include taxes that may be assessed by any jurisdiction which shall be Client's responsibility. If withholding taxes or any other taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, Client will pay such taxes to ensure that Telecascade receives the full amount invoiced to Client without offset or deduction. Client will promptly furnish to Telecascade the applicable receipts and/or certificates regarding such remittances as soon as reasonably practicable.

6. CONTENT
Telecascade will not be responsible for any content with which the Advertisements may be associated through the Client's web site, and has no obligation to monitor such third-party content or web site. Client is solely responsible (and assumes all liability and risk) for determining whether or not such content is appropriate or acceptable. Notwithstanding the foregoing, Telecascade reserves the right at all times, at its discretion and without notice, to remove or refuse to distribute any content or Advertisements on or distributed through the Telecascade Services. Telecascade also reserves the right to access, read, preserve and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce this Agreement, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security, or technical issues; (d) respond to user support requests; or (e) protect the rights, property or safety of Telecascade, its users and the public. Notwithstanding the foregoing, if such information constitutes Confidential Information (as defined in Section 13) of the Client, the provisions of Section 13 shall control over the foregoing provisions.

7. COMPLIANCE WITH LAWS
Client agrees that it will use the Telecascade Services and provide Advertisements in compliance with all applicable local, state, national and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from Client's country of residence. Client will not, will not agree to, and will not authorize or encourage any third party to: (a) use the Telecascade Service to transmit or otherwise distribute any Advertisement or content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Telecascade; (b) interfere or attempt to interfere with the proper working of the Telecascade Service or prevent others from using the Telecascade Service; or (c) use the Telecascade Service for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Telecascade's sole discretion, and may subject Client to state and federal penalties and other legal consequences. Telecascade reserves the right, but will have no obligation, to review Client's Advertisements and use of the Telecascade Service in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.

8. REPRESENATIONS AND WARRANTIES
Without limiting any other representation, warranty or covenant of either party herein, each party hereby represents and warrants to the other that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations (including the CAN-SPAM Act of 2003). Without limiting any other representation, warranty or covenant of the Client herein, Client hereby represents and warrants to Telecascade that (x) it has the right to grant to Telecascade the rights granted herein and that none of the Advertisements provided by Client hereunder contain any material that infringes upon any third-party right, including rights arising from contracts between Client and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or which slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person; (y) none of the Advertisements provided by Client hereunder contain any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancel bots, or other computer programming routines that may potentially damage or interfere with the Telecascade Service, or intercept or expropriate any system data or personal information from the Telecascade Service; and (z) any Advertisements directed to children will comply with the guidelines of the Children's Advertising Review Unit.

9. INDEMNIFICATION
Each party agrees to indemnify and hold the other and its affiliates harmless from and against any losses, costs, liabilities and expenses, including reasonable attorneys' fees, arising out of any breach of the representations or warranties made by such party herein. The indemnifying party reserves the right, at its expense, to assume the exclusive defense and control of any matter for which it is required to indemnify the indemnified party and the indemnified party agrees to cooperate with the indemnifying party's defense of such claims. The indemnifying party agrees not to enter into any settlement of any claim without the prior consent of the indemnified party, such consent not to be unreasonably withheld or conditioned.


10. DISCLAIMERS
Except as expressly set forth herein, telecascade makes no warranty, of any kind, whether express, implied or statutory, or arising by statue, custom, course of dealing or trade usage, with respect to any matter, including advertising, the telecascade services, other services, and expressly disclaims the warranties or conditions of noninfringement, title, merchantability and fitness for any particular purpose, or that the telecascade services will be uninterrupted or error-free. Further, telecascade makes no guarantee regarding the volume or timing of actions in connection with the telecascade services. Telecascade does not warrant the results of use of the telecascade services, including the results of any advertising campaign, and client assumes all risk and responsibility with respect thereto. Without limiting the generality of the foregoing, Telecascade disclaims all guarantees regarding positioning, ranking, ratings or the levels or timing of: (i) Advertisements' delivery on specific publishers inventory, or (ii) clicks, conversion rates, or other user actions. Client acknowledges that the Telecascade Services are based on an auction model and that volumes and revenue vary based on price, conversion rates and other factors that may not be within Telecascade's control. Client acknowledges that, unless otherwise agreed through the Configuration or in writing, Client receives and shall use without modification the standard Telecascade Services, and any special placement and promotion in the Telecascade network shall be, as between the parties, at Telecascade's discretion.

11. OWNERSHIP
As between the parties, Telecascade will own and retain all rights, title, and interest in and to the Telecascade Services, including all software and data related thereto. Client acknowledges that the software and data related to the Telecascade Services (including any usage data or compilations thereof but expressly not including any customer information submitted to Client through the Telecascade Services) are copyrighted by Telecascade and may contain trade secrets or other intellectual property owned by Telecascade. Client agrees not to copy, alter, modify, or create derivative works of the Telecascade Service or otherwise use the Telecascade Service in any way that violates the use restrictions contained in this Agreement. Telecascade does not grant to Client any license, express or implied, to the intellectual property of Telecascade or its licensors.

12. CONFIDENTIALITY
"Confidential Information" shall mean (a) the Advertisements, prior to publication; (b) the existence or content of the Agreement; (c) any statistics or other data relating to the Telecascade Services; and/or (d) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as "confidential" or "proprietary." During the term of this Agreement, and for a period of two (2) years following termination, each party will keep confidential, neither party will use or disclose any Confidential Information of the other party, except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the receiving party without use of or access to the other party's Confidential Information and without any violation of any obligation of this Agreement; (b) has become publicly known through no breach of this Section 13 by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure. Any and all device ID information provided by Client collected from its users constitutes Confidential Information of Client ("Client User Data"). Client represents that it has obtained and will maintain the rights and grants to Telecascade such rights to use the Client User Data to perform the Telecascade Services as set forth herein. Telecascade agrees that Client Users Data will only be used in connection with the Telecascade Services and for conversion tracking purposes, and that Telecascade will not sell or resyndicate any data derived from Client user Data, except that Telecascade may use any Client User Data that Telecascade collects or has access to solely in aggregate non-personally identifiable form to diagnose problems with and improve the Telecascade Services.

13. TERMINATION
In the event of a material breach by either party, the non-breaching party may terminate this Agreement immediately upon written notice without liability to the other party. In the event of any termination, Client will remain liable for any amount due under the Agreement through the effective date of termination and such obligation to pay shall survive any termination of this Agreement.

14. MISCELLANEOUS
This Agreement represents the entire agreement of the parties and may not be modified unless expressly agreed to in writing by both parties of if agreed to in an exchange of emails by both parties. This Agreement shall be governed in accordance with the internal laws of the State of Illinois. Parties consent to jurisdiction and venue for any claim brought hereunder to be the state or federal courts in closest proximity to Chicago, IL.