Developer/Publisher Agreement

Mobadoo Media, Inc. (collectively, “us”, “we,” or “Mobadoo”) provides a mobile advertising platform that enables you as an owner, controller, or developer of mobile applications or the entity you represent (“you“, “your” or “Developer”) to utilize Mobadoo technology, such as a software development kit (“SDK”) or JavaScript tags, including source code, software, documentation and any updates or new or alternative versions thereof (collectively, the “Mobadoo Technology”) to deliver advertisements through your Application (the “Service”).  The Mobadoo Technology enables Mobadoo to deliver advertisements on behalf of Advertisers, including icon advertisements, notification advertisements, and any other advertisements or promotions (collectively, “Advertisements”), to Consumers that have installed your Application.

PLEASE READ THIS AGREEMENT CAREFULLY.  BY CHECKING THE BOX INDICATING “I AGREE TO THE TERMS OF THE MOBADOO DEVELOPER AGREEMENT” OR BY DOWNLOADING, ACCESSING OR USING THE MOBADOO TECHNOLOGY OR SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE MOBADOO TECHNOLOGY OR SERVICE. YOU AND MOBADOO AGREE TO BINDING ARBITRATION TO RESOLVE ANY DISPUTE ARISING FROM THIS AGREEMENT OR RELATING TO THE MOBADOO TECHNOLOGY, ADS, AND SERVICES.  ARBITRATION PREVENTS YOU FROM SUING IN COURT.

You and Mobadoo agree as follows:

1. Limited License

a. License Grant.  Unless otherwise agreed upon in writing, subject to the terms and conditions of this Agreement, Mobadoo grants you a limited, non-exclusive, non-transferable and non-sublicensable license to (i) install and use the Mobadoo Technology solely in your mobile application(s) or website(s) (“Application”) that will access and use the Service to deliver Advertisements to a mobile device user (“Consumer”) and (ii) access and use the Service in order to enable Mobadoo to provide Advertisements to Consumers’ mobile devices through your Application.  To provide the Service, you authorize Mobadoo to access, index, store, and cache requests made from your Application to Mobadoo including, without limitation, through automated means.  Further, you authorize Mobadoo to provide Advertisements to Consumers’ mobile devices through your Application.

b. Limitations. Section 1(a) states the entirety of your rights with respect to the Mobadoo Technology and Service.  Mobadoo reserves all rights not expressly granted in this Agreement.  Without limiting the foregoing, you will not, and you will not authorize or permit any third party to do any of the following unless expressly authorized in this Agreement or in writing by Mobadoo: (i) reproduce, license, distribute, publicly perform or publicly display, lease, rent, transfer, resell or otherwise dispose of the Mobadoo Technology; (ii) distribute any source code provided as part of the Mobadoo Technology; (iii) modify, alter or create any derivative works of the Mobadoo Technology; (iv) reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the Mobadoo Technology except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (v) work around any technical limitations in the Mobadoo Technology; (vi) remove, alter or obscure any proprietary rights or notice on the Mobadoo Technology; (vii) use the Mobadoo Technology or the Service other than for its intended purpose; (viii) use the Technology to create (or facilitate the creation of) any product or service that is in competition with the Mobadoo Technology or Service, including connecting to any other product or service using the Technology or Service; or (ix) combine the Technology so that you restrict or charge for access to the Technology or Service. Any access or use of the Mobadoo Technology or the Service other than as specifically authorized herein, without the prior written permission of Mobadoo, is strictly prohibited and will immediately terminate the license granted in this Agreement.  Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws, and applicable privacy and communications regulations and statutes.  Unless stated in this Agreement, nothing in this Agreement will be construed as conferring any right or license to the Mobadoo Technology or Service and any related Intellectual Property Rights (as defined below), whether by estoppel, implication or otherwise.  This license is revocable at any time.

c. Documentation.  You may make and use a reasonable number of copies of any documentation provided with the Mobadoo Technology licensed hereunder; provided, that such copies will only be used for the purpose described in Section 1(a) and are not republished or redistributed (either in hard copy or electronic form) beyond your premises.

2. Proprietary Rights

a. Ownership.  The Mobadoo Technology, Site, and Service (including, without limitation, the Mobadoo logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof) are valuable property of Mobadoo protected by copyright and other intellectual property laws.  The Mobadoo Technology, Site and Service, together with any and all copyrights, patents, trademarks, trade secrets and/or any other intellectual property rights (“Intellectual Property Rights”) related to the Mobadoo Technology, Site and Service are and will remain the sole property of Mobadoo or its licensors and are protected by Israeli and international law.  Other than the limited license expressly set forth in Section 1(a), you do not acquire any title or ownership rights in the Mobadoo Technology, Site and Service and any related Intellectual Property Rights.

b. Unauthorized Use.  You will promptly notify Mobadoo of any unauthorized use of the Mobadoo Technology, Site or Service that comes to your attention.  In the event of any such unauthorized use by you or your employees, agents or representatives, you will use your best efforts to terminate such unauthorized use and to retrieve any copy of the Mobadoo Technology in the possession or control of the person or entity engaging in such unauthorized use.  You will immediately notify Mobadoo of any legal proceeding initiated by you in connection with such unauthorized use.  Mobadoo may, at its option and expense, participate in any such proceeding and, in such event, you will provide such authority, information and assistance related to such proceeding as Mobadoo may reasonably request to protect Mobadoo’s interests.

3. Eligibility, Account and Site

a. Eligibility.  You must be at least 18 years old to download, access or use the Mobadoo Technology and the Service.  If you are downloading, accessing or using the Mobadoo Technology or the Service on behalf of any entity, you represent and warrant that you are authorized to accept this Agreement on such entity’s behalf and that such entity agrees to take responsibility for and indemnify Mobadoo for your violation of this Agreement.

b. Registration.  In registering on the Site, you will: (i) provide accurate, truthful, current and complete information when creating an account; (ii) maintain and promptly update your account information; (iii) maintain the security of your account by not sharing your user ID and password with others and taking appropriate measures to restrict access; (iv) promptly notify Mobadoo if you discover or otherwise suspect any security breaches related to the Site, including if your user ID or password have been compromised; and (v) take sole responsibility for all activities that occur under your account.  You may not select as your user ID any name that violates any third party’s rights, including any Intellectual Property Rights (defined below), or which Mobadoo determines in its sole discretion to be offensive or inappropriate.  You should carefully choose your password and ensure it does not contain any personal or other information that may be easily guessed.  Any distribution by you of such password and/or user ID may result in termination of your access to the Site or Service.

4. Developer Obligations

You agree that the Mobadoo Technology will enable the Mobadoo network of third-party advertisers (each, an “Advertiser”) and Mobadoo to collect information from your Application and from Consumers’ mobile devices that access your Application and deliver Advertisements to such Consumers mobile devices from Advertisers (For EU and EEA GDPR rule)

If you believe your Application may be directed to children under 13 or otherwise falls under COPPA or would like to use the Child-Directed SDK, you must notify Mobadoo at contact@Mobadoo.com.

a. Developer Privacy Policy and Consumer Notice.  Either: (i) prior to allowing Consumers to install the Application (in the Application description); (ii) at the time data is first collected from a Consumer; or (iii) when your Application is opened for the first time, you represent and warrant that you will: (A) provide Consumers with clear, meaningful, and prominent notice of a legally sufficient privacy policy that describes how you collect, use and disclose information that is collected from Consumers’ mobile devices through the Application (“Consumer Data”); (B) disclose that the Application is ad-supported;

You further represent and warrant that as part of your Application privacy policy, You will disclose: (i) that Consumers may opt-out of Mobadoo’s delivery targeted advertising  (ii) (a) above; (iii) the use of third-party technology, including but not limited to the use of Mobadoo Technology, beacons, tags, and cookies for advertising and analytics purposes; and (iv) make available any additional opt-out links related to the collection, use, or disclosure of Consumer Data.

b. Mobile Web Notice.  You further represent and warrant that you will provide adequate notice for the use of cookies and other similar technology prior to use of such technology and related data collection as required under applicable law.

c. Compliance with Laws and Industry Standards.  You represent and warrant that you comply with all applicable laws, regulations, and industry standards (including, but not limited to, any applicable privacy and security laws, regulations, and mobile and advertising industry standards associated with your Application and any collection, use and disclosure of Consumer Data by you or any third party via your Application.  Such laws and standards include, but are not limited to, COPPA, Digital Advertising Alliance Self-Regulatory Guidelines for mobile, the Federal Trade Commission guidelines, and EU data protection regulation).  You are solely responsible for ensuring that your Application is in compliance with all applicable laws and regulations.  If you have end users from the European Economic Area, you must have appropriate consent to transfer their data internationally and as necessary under the Mobadoo Technology Privacy Statement.

d. Confidentiality.  Confidential Information means any non-public information disclosed by Mobadoo, whether or not marked (if not so marked, is of a nature or disclosed under circumstances that a reasonable person would recognize such information as confidential), including, without limitation, the terms of this Agreement including any Insertion Orders, payment, and Campaign details, the Advertisers in Mobadoo’s network, the contents of the Site, individual contact information provided by Mobadoo, information regarding Mobadoo’s marketing, plans, products, services, and technical environment. You agree to protect Confidential Information in the same manner as you protect your own (but using no less than a reasonable degree of protection) and shall only disclose Confidential Information to those with a need to know that information, who have agreed in writing to be bound by terms at least as protective as those contained in this Agreement.  The restrictions in this paragraph will not apply to Confidential Information if (i) available to the public other than by a breach of a confidentiality obligation or other wrongful act by you or a third party, (ii) rightfully received from a third party not in breach of a confidentiality obligation and who has otherwise not wrongfully obtained the Confidential Information, (iii) independently developed by you without use of or reference to the Confidential Information of Mobadoo; (iv) known to the you at the time of disclosure (other than under a separate confidentiality obligation); or (v) produced in compliance with applicable law or court order, provided that Mobadoo is given reasonable advance notice of the obligation to produce Confidential Information and you use diligent efforts to limit such disclosure and assist Mobadoo to obtain a protective order or otherwise seek confidential treatment. Mobadoo shall be entitled to seek injunctive or other equitable relief for breach of the confidentiality obligations herein. Such injunctive or equitable relief shall not be the exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.

5. Advertisements

Mobadoo does not control, endorse or adopt any Advertisements and makes no representation or warranties of any kind regarding the content of the Advertisements, including, without limitation, regarding the accuracy, completeness or decency of any Advertisement.  Mobadoo is not responsible or liable in any manner for any Advertisements and undertakes no responsibility to update or review any Advertisements.  Within certain limits set by Mobadoo, you will have the ability to control the frequency and types of ad units that are delivered to Consumers’ mobile devices.  You agree not to remove, obscure, hinder, reverse engineer, or otherwise interfere with any Advertisement for an Application in any manner.  Your sole remedy for the placement of an Advertisement on your Application that you object to will be for you to submit a written complaint to Mobadoo.  Mobadoo, in its sole discretion, will review such complaints and determine if the content is objectionable and if it should not longer be displayed on your Application.

6. Payments

a. Compensation. Advertisers pay Mobadoo based on certain events, including the display of an Advertisement, a user clicking on an Advertisement, or a user completing some action after viewing or clicking on an Advertisement (“Events“). Mobadoo pays you a percentage of the revenue it receives from Advertisers based upon the Events that are attributable to your Application. Mobadoo will compile and calculate the data necessary to determine your compensation. Mobadoo’s figures and calculations regarding your compensation will be final and binding. Unless otherwise posted on the Site or otherwise agreed to in writing between Mobadoo and you, your compensation will only include revenue actually received by Mobadoo from the Advertisers less: (i) any returns, credits or other similar allowances made by Mobadoo to a particular Advertiser; and (ii) any applicable taxes, commissions, carrier fees and other similar taxes, fees and expenses. Mobadoo will be entitled to withhold, deduct and set off from any payments to be made to you hereunder any sums owed by you to Mobadoo, whether in connection with this Agreement (including any breach hereof by you) or otherwise. Mobadoo may deduct from any present or future compensation due the amount of previously paid compensation for any returns, credits or other similar allowances made by Mobadoo to a particular Advertiser. Further, Mobadoo will have no liability whatsoever to provide you with compensation unless Mobadoo receives full payment by the Advertiser. Mobadoo will have no duty to compensate you for any revenue received by Mobadoo for any services provided by Mobadoo to Advertisers, including consulting, ad lay-out, copy writing or any other similar services. In addition, Mobadoo may withhold compensation in the event that you are in breach of any term of this Agreement.

b. Uncollectible Accounts. In the event an Advertiser does not pay Mobadoo within one hundred twenty (120) days of when the amount is due, then the account will be declared an uncollectible account and no compensation will be due or payable to you in connection therewith.

c. Payment Schedule. Mobadoo will pay you the amounts properly due and payable within sixty (60) days following the end of the applicable month in which it is earned; provided that, such amounts exceed fifty dollars (USD) ($50). If the amounts properly due and payable are less than fifty dollars (USD) ($50), then Mobadoo will pay you the following month; provided that, such amounts exceed fifty dollars (USD) ($50).

d. Disputes. Any disputes over amounts due and payable by Mobadoo to you must be made in writing within thirty (30) days after Mobadoo makes the applicable payment to you. Mobadoo will consider such disputes in its discretion, but unless Mobadoo expressly determines otherwise in writing, the amounts due and payable by Mobadoo to you will be deemed accurate and accepted as such by you.

7. Submissions

Any questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information submitted about Mobadoo, its Mobadoo Technology, Site or Service (collectively, “Submissions“), whether provided to Mobadoo by email or otherwise, are non-confidential and will become the sole and exclusive property of Mobadoo, including all related intellectual property rights without acknowledgment or compensation to you.

8. Export Restrictions

You are responsible for complying with all trade regulations and laws both foreign and domestic.  Except as authorized by law, you represent and warrant that you will not export or re-export the Mobadoo Technology to any county, or to any person, entity, or end-user in a manner prohibited by Israel export controls, restrictions and regulations. 

9. Indemnification

You will defend, indemnify and hold harmless Mobadoo, its affiliates, independent contractors, service providers and consultants, its and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) the Application, including violations of any third party terms or violations of any laws, regulations or industry best practices in the relevant jurisdictions; (b) your use of the Mobadoo Technology, the Site or the Service; (c) your violation of any representations and warranties or any other term of this Agreement; or (d) your violation of any rights of a Consumer.  Mobadoo will have the right to approve the counsel selected by you for defense of any such claim, which approval will not be unreasonably withheld.  You will provide Mobadoo prompt written notice of any such claim and such information and assistance as you may reasonably request to help you defend such claims; provided that you pay or reimburse all of the costs and expenses reasonably incurred by Mobadoo in connection with any assistance requested by you under this Section.  You will not have any right to settle any such claim without Mobadoo’s written consent, if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Mobadoo or otherwise requires Mobadoo to take or refrain from taking any material action (such as the payment of fees).  Mobadoo may, at its option and expense, participate in, or take control over, the defense of any such claim and, in such event, you will provide such authority, information and assistance related to such proceeding as Mobadoo may reasonably request to protect Mobadoo’s interests.  You will maintain such insurance policies (including, without limitation, commercial liability insurance and cyber liability insurance) as may be sufficient to protect you against all applicable risks arising out of your use of the Mobadoo Technology or Service.  You will provide Mobadoo with certificates of insurance and other supporting materials as Mobadoo may reasonably request to verify your continuing compliance with the preceding sentence.  This provision may not apply to New Jersey Residents.

10. Disclaimer

THE MOBADOO TECHNOLOGY, THE SITE, THE ADVERTISEMENTS, AND THE SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.  MOBADOO DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, RELIABILITY, ACCURACY, TITLE AND NON-INFRINGEMENT AS TO THE MOBADOO TECHNOLOGY, THE SERVICE AND THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN.  MOBADOO DOES NOT REPRESENT OR WARRANT THAT THE MOBADOO TECHNOLOGY, THE ADVERTISEMENTS, THE SERVICE OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, FREE OF VIRUSES OR HARMFUL COMPONENTS, CURRENT OR ERROR-FREE.  YOUR USE OF THE MOBADOO TECHNOLOGY, SERVICE OR THE SITE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR OR YOUR END-USERS’ COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.  THIS PROVISION MAY NOT APPLY TO NEW JERSEY RESIDENTS.

11. Limitation of Liability

IN NO EVENT SHALL MOBADOO, ITS AFFILIATES, INDEPENDENT CONTRACTORS, ADVERTISERS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE MOBADOO TECHNOLOGY, THE SERVICE, THE SITE, THE ADVERTISEMENTS, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM MOBADOO, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MOBADOO’S RECORDS, PROGRAMS OR SERVICES.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MOBADOO ITS AFFILIATES, ITS ADVERTISERS, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE MOBADOO TECHNOLOGY OR TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500 USD). 

12. Termination

a. Termination by Mobadoo. Notwithstanding any of the terms of this Agreement, Mobadoo reserves the right, without notice and in its sole discretion, to (a) terminate your license to use the Mobadoo Technology (b) block or prevent your future access to, and use of the Mobadoo Technology. Your license to use the Mobadoo Technology may also be terminated without notice and in Mobadoo’s sole discretion if your right to use the Service or Site is canceled or terminated or you are otherwise no longer registered to use the Service or Site. Mobadoo may discontinue the Mobadoo Technology at any time, in which case this Agreement shall terminate automatically without notice.

b. Termination by Developer. You may terminate this Agreement by ceasing use of the Mobadoo Technology and deleting all copies of the Mobadoo Technology, including any part of a SDK, in your possession or control. In the event of the termination of this Agreement for any reason: (i) the license granted to you in this Agreement will terminate; and (ii) you must immediately cease all use of the Mobadoo Technology and destroy or erase all copies, full or partial, of the Mobadoo Technology in your possession or control.

c. Modification or Discontinuance by Mobadoo. Mobadoo reserves the right to modify or discontinue, temporarily or permanently, the Mobadoo Technology or Service, or any features or portions thereof, without prior notice. You agree that Mobadoo will not be liable for any modification, suspension or discontinuance of the Mobadoo Technology or Service, or any part thereof.

d. Enforcement. In addition to all of Mobadoo’s rights and remedies available under Mobadoo terms, at law or equity, if Mobadoo suspects that your Application violates its Acceptable Use Policy, any other policies by Mobadoo, or these terms, your Application may be suspended from making ad calls, may be terminated, or may no longer be accepted in the Mobadoo network. Mobadoo may also suspend other Applications by you for further investigation, terminate your account, and decline to accept future Applications from you to participate in the Mobadoo network.

13. Miscellaneous

a. Amendment. Mobadoo reserves the right to change or modify any of the terms and conditions contained in this Agreement or applicable policies at any time and in its sole discretion with notice.  

b. Nonwaiver. Any failure by Mobadoo to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.

c. Survival. The respective rights and obligations of the parties under Sections 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement.

d. General. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. You may not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of Mobadoo. Any attempted assignment in violation of the foregoing will be void. Without notice to you, Mobadoo may assign or transfer this Agreement, to an affiliate or in connection with a merger, acquisition, divestiture, spin-off, change of control, corporate reorganization or similar such transaction or sale of all or substantially all of its assets related to this Agreement. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. In case of any discrepancy between this Agreement and any other terms and conditions, this Agreement shall prevail. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with Mobadoo for products, services or otherwise.