Terms of Service

Definitions

AAX Buyer(s)

means purchasers of Advertising Inventory who are sourced from AAX.

means non-intrusive, non-disruptive ads that comply with the criteria set forth at https://acceptableads.com/en/about/criteria that are served to Adblock Users on Publisher Websites

Adblock User(s)

means any web or mobile end user that has installed ad blocking technology or extensions if they have configured their adblocking technology to allow Acceptable Ads to be displayed.

Licenses & Restriction

Subject to the terms and conditions set forth herein, AAX grants to You a limited, non-exclusive, revocable, non-transferable, non-sublicensable right to use the Service. Aside from the license granted immediately above, AAX does not grant You any other license, express or implied. AAX retains all right, title and interest in and to the Service and any data and/or materials created, developed or provided by AAX in connection with this TOS, including all intellectual property rights related to each of the foregoing. AAX may, at any time and for any reason, suspend the functionality of the Service. AAX reserves all rights not expressly granted hereunder.

Representations & Warrenties

1. Your use of the Service shall at all times accord with the Specifications and such other instructions as may be communicated by AAX to You from time to time. You agree to comply with all laws, rules and regulations and the Self-Regulatory Principles, applicable to activities related to this this TOS.

2. By accessing and using the Service, You agree not to provide (directly or indirectly) Advertising Inventory that involves, facilitates, advocates, promotes or otherwise meets one or more of the following criteria:

2.1. Introduces viruses or other malware into the Service, systems or end users;

2.2. Infringes, violates or misappropriates any intellectual property or other rights;

2.3. Contains, promotes or has links to any sexually explicit material, obscene language, hate material, defamatory material, libel, defamation, or material promoting sedition, illegal gambling, illegal substances, violence, the use of firearms, illegal activities, or discrimination based on race, ethnicity, gender, sex, religion, nationality, disability, sexual orientation, age, or family status;

2.4. Contains copyrighted materials for download, sale or otherwise, without the permission of the copyright owner or otherwise in violation of copyright law, or that induces infringement or misappropriation of a copyright, trademark, trade secret or patent of another party;

2.5. Contains, aggregates or distributes user-generated content, personal homepages or “free” web pages, unless previously agreed to in writing;

2.6. Is intended for the sole purpose of garnering ad impressions, without providing any material content or service to users; or

2.7. Causes interference with user navigation (e.g. preventing a user from leaving a page, by popping dialogs, pop-ups, new windows, etc.)

3. To the extent You provide any information regarding devices or users to AAX or permit AAX to collect such information, You agree to share it, pass it and/or provide it to AAX in compliance with all applicable laws and regulations and with all necessary rights, consents, and policies.

4. Where You collect Personal Data as Controller (as both terms, Personal Data and Controller, are defined under the General Data Protection Regulation (“GDPR”)), You will ensure that each Publisher Website is compliant with all GDPR regulations and, in particular, obtain all legally sufficient consent from Your users

5. Except as expressly permitted by AAX, You will not, and will not knowingly allow any third party to (i) reproduce or duplicate the Service; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (iii) modify, translate, or create derivative works based on the Service; (iv) rent, lease, distribute, resell, pledge, or otherwise encumber rights to the Service; (v) remove or otherwise alter any proprietary notices or labels from the Service; (vi) interfere with or disrupt the Service or any part thereof, or create an undue burden on the Service; (vii) generate queries, impressions of or clicks on ads through any automated, deceptive, fraudulent or other invalid means (including click spam, robots, macro programs, and Internet agents); or (viii) encourage or require end users to click on ads through offering incentives or any other methods.

Fees; Payment

1. AAX shall pay to Publisher the cumulative price of Advertising Inventory purchased (following a successful bid) and delivered by AAX on the Publisher Website(s) by AAX Buyers (“AAX Demand Fees”). AAX shall pay all fees, as determined by AAX, in U.S. Dollars. Except as stated otherwise herein, all payments for the Service will be based upon AAX’s measurements, which shall be deemed controlling. All fees owed for the Service are exclusive of all sales, use, excise and other taxes, which may be levied upon AAX or You in connection with such fees, except for taxes based on income. If the total amount of any fees accrued for a given month is less than One Hundred Dollars ($100), payment will be deferred until the month in which the cumulative balance owed exceeds that amount, or until the Service is terminated in accordance with the TOS.

2. All fees and payment shall be made on a monthly invoice basis within sixty (60) days of the applicable month, provided that AAX receives payment from AAX Buyers. Payment of AAX Demand Fees may be offset against any Publisher Demand Fees, CPM Fees and/or other fees allowable under this TOS and/or any addenda.

3. AAX shall provide to You access to any data and reports (including real-time access to any data and reports on third-party platforms) necessary to calculate the fees owed under the TOS.

4. AAX reserves the right to adjust payments in the event of non-payment from its partners. Notwithstanding the remainder of this TOS, AAX will have no obligation to make payments for any amounts (i) for which AAX has not received a corresponding payment from an AAX Buyer (provided that AAX has made a commercially reasonable effort to collect said payment on a timely basis); or (ii) that AAX, at its sole discretion, deems to have been generated from a breach of the representations or warranties in this TOS.

5. Late payments from You will be subject to an additional fee at the rate of one and half percent (1.5%) interest per month, or the maximum rate allowed by law, whichever is lesser.

Term; Termination

AAX may terminate and/or disable Your use of the Service (“Termination”) for any or no reason upon thirty (30) days written notice. AAX reserves the right to immediately terminate Your use of the Service in the following cases: (i) You commit a material breach of the TOS that is not cured upon ten (10) days written notice; (ii) a petition in bankruptcy or other insolvency proceeding is filed by or against You; (iii) an application is made for the appointment of a receiver for You of Your property; (iv) You make an assignment for the benefit of creditors, are unable to pay Your debts regularly as they become due, or cease carrying on business in the ordinary course; or (v) You repeatedly display ads that do not meet the criteria for Acceptable Ads, as determined by AAX in its sole discretion. Sections 5 (to the extent fees are unpaid at Termination) and 7-11 shall survive Termination.

Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS TOS, AAX HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICE OR THE THIRD-PARTY TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. AAX, INCLUDING ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. AAX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. AAX DOES NOT WARRANT THE RESULTS OF YOUR USE OF THE SERVICE. IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, AAX DISCLAIMS ALL LIABILITY, DAMAGES, OR LOSSES RESULTING FROM ADS SOURCED FROM AAX BUYERS.

Indemnification

Notwithstanding any other indemnity agreements provided herein, You shall indemnify, defend, and hold AAX and its directors, officers, employees and representatives harmless from and against any claims, actions, damages, losses, liabilities, judgments, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claims brought against AAX with respect to Your use of the Service or Publisher Websites (an “Indemnification Claim”). AAX shall have sole control of the defense and/or settlement of any Indemnification Claim. You shall provide all reasonable assistance, information and authority reasonably required for the defense and/or settlement of an Indemnification Claim.

Limitations of Liability

IN NO EVENT WILL AAX BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES RELATING TO LOST DATA AND/OR LOST PROFITS, ARISING FROM OR RELATING TO THIS TOS. AAX’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS TOS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY AAX UNDER THIS TOS IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES THAT GAVE RISE TO THE CLAIM AT ISSUE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS AMOUNT. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS TOS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

Confidentiality

1. Confidential Information. “Confidential Information” means any and all information that is disclosed by AAX to You, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally, is identified as being proprietary and/or confidential at the time of disclosure, or under the circumstances and nature of the information should reasonably deemed to be confidential. Without limiting the foregoing and regardless of whether identified as being proprietary and/or confidential, Confidential Information includes all documentation and technical materials relating to the Service.

2. Use and Disclosure Restrictions. You shall not use AAX’s Confidential Information except as necessary to exercise Your rights or perform Your obligations under this TOS. You shall not disclose AAX’s Confidential Information to any third party except to those of Your employees, subcontractors, and advisors that need to know such Confidential Information for the purposes of this TOS; provided that each such employee and subcontractor is subject to confidentiality obligations that are at least as protective of Confidential Information as those set forth herein. You will use all reasonable efforts to maintain the confidentiality of AAX’s Confidential Information in Your possession or control, but in no event less than the efforts You ordinarily use with respect to Your own proprietary information of similar nature and importance. The foregoing obligations will not restrict You from disclosing Confidential Information of AAX (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that You give reasonable notice to AAX to contest such order or requirement, if possible; or (ii) on an as-needed, confidential basis to Your legal or financial advisors

3. Exceptions. The foregoing obligations will not apply to any information that (i) is or becomes generally known to the public through no fault of or breach of this TOS by You; (ii) is rightfully known by You at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by You without use of AAX’s Confidential Information; or (iv) You rightfully obtain from a third party without an obligation of confidentiality.

Miscellaneous

1. No Assignment. You may not assign or transfer any of Your rights or obligations under this TOS without the prior written consent of AAX.

2. No Publicity. You may not issue any press release regarding Your use of the Service or use AAX’s name and/or logo in any public materials without the prior written consent of AAX.

3. No Waiver. No failure or delay by AAX in exercising any right or remedy under this TOS shall operate or be deemed as a waiver of any such right or remedy.

4. Governing Law; Forum Selection. This TOS shall be governed by and construed under the laws of the State of New York, without regard to conflicts or choice of law principles. Except as otherwise noted, all claims arising out of or relating to this TOS shall be resolved by arbitration in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Any such arbitration shall be conducted in the State of New York, or in such other place as may be mutually agreed between AAX and You and shall be heard by a panel of one arbitrator mutually acceptable to AAX and You or, if AAX and You are unable to agree on an arbitrator, an arbitrator appointed in accordance with the rules of JAMS. The decisions and awards of an arbitrator regarding any dispute shall be (i) final and valid, non-appealable, and binding upon AAX and You, and (ii) enforceable in any court of competent jurisdiction. In the event that any dispute arising under, in connection, or with respect to this TOS is resolved by arbitration, the prevailing party shall be entitled to recover from the non-prevailing party the fees, costs and expenses (including, but not limited to, the reasonable fees and expenses of counsel) incurred by the prevailing party in connection with, or as a result of, such dispute. In addition, the nonprevailing party shall pay the fees and expenses of the arbitrator.

5. Complete Understanding; Severability. This TOS, including any duly executed addenda that are specifically incorporated by reference, constitutes the final and complete agreement between AAX and You regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations or agreements between AAX and You, whether oral or written. If any provision of this TOS is found invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the original intentions of AAX, and the remainder of this TOS shall remain in full force and effect.

6. Notices. All notices required under this TOS must be in writing, and shall be effective upon (i) actual delivery to the other party, if delivered in person, or by facsimile, or by national overnight courier; or (ii) five (5) business days after being mailed to the other party via U.S. postal service, postage prepaid. All notices shall be sent to the address stated in this TOS or at such other address as either party may provide by advance written notice.