I. Mobile Representation International Corporation Terms & Conditions
These Mobile Representation International Corporation ("MRI") Terms and Conditions ("Terms"), and any document that references these MRI Terms and Conditions for which Revmob is an intervening party, or any document that regulates the relationship between MRI, the person or company that desires to publish an advertisement ("Advertiser") in one of the apps and/or websites offered in RevMob – a Brazilian company for which MRI is the exclusive licensed agent, as per the exclusive licensing agreement entered between MRI and RevMob – mobile advertising program ("Program"); and Revmob ("Revmob") the company that operates the Program, are entered into by, as applicable, the Advertiser; all of which signing these Terms or any document that references these Terms or that accepts these Terms electronically and MRI, a company based in the British Virgin Islands that is an agent for Revmob, who is a party in this terms as the licensor and operator of the program.
These Terms govern Advertiser’s participation in MRI's licensed Program and, as applicable, any insertion orders or service agreements ("IO") executed by and between the Parties and/or Advertiser's online management of any advertising campaigns, including the IO signed between the parties on November 11, 2016. These Terms and any applicable IO are collectively referred to as the "Agreement."
Advertiser and MRI hereby agree and acknowledge the following:
Program use is subject to all applicable MRI policies, including without limitation MRI Privacy & Trademark Policy, available at www.mobilerepresentationinternational.com/privacy_policy.html and MRI ad specification requirements (collectively, "Policies"). Policies are an integral part of this Agreement and may be modified at any time by MRI at its sole discretion. To the fullest extent permitted by law, applications and features are provided "as is" and at Advertiser’s option and risk. MRI may modify ads to comply with any Policies at its sole discretion, as and if instructed by the licensor of the Program.
2. The Program
For the purposes of this Agreement, Publisher means the owner or representative of the app and/or website into which the ad provided by the Advertiser is going to be inserted.
The purpose of this Agreement is the rendering of prospection, intermediation and relationship services by MRI to (i) Advertisers willing to acquire advertising space at Publishers’ mobile applications; (ii) and Advertisers willing to redirect users from Publishers’ mobile applications to a website, App Store, Google Play, or Amazon AppStore link of their choice. MRI, at its sole discretion, may create, cancel or modify items of the list of ads in the Program.
Advertiser is solely responsible for all: (i) ad targeting options ("Targets") and all ad content, ad information, choice of CPC (cost per click) or eCPI (cost per install) campaign, bid, weekday (Monday, Tuesday, Wednesday, Thursday and Friday) daily cap, weekend (Saturday and Sunday) daily cap, total campaign cap, ad URLs ("Creative") and any other information inserted into the Program’s website; Advertiser agrees to protect any online account passwords and takes full responsibility for Advertiser’s own, and thirdparty use of any online accounts. Advertiser understands and agrees that ads may be placed on (i) any content or property provided in the Program and, unless Advertiser opts out of such placement in the manner specified by the Program, (ii) any other content or property provided by a thirdparty ("Partner") upon which the Program, RevMob or MRI may allocate or place ads ("Partner Property"). Advertiser hereby authorizes and consents to all such ad placements. The account (as modified by Advertiser, or if not modified, as initially posted) is deemed approved by Advertiser in all respects upon posting. Advertiser agrees that all placements of Advertiser's ads shall conclusively be deemed to have been approved by Advertiser unless Advertiser produces contemporaneous documentary evidence showing that Advertiser disapproved such placements in the manner specified by the Program and MRI. In any event Advertiser must provide MRI with all relevant Creative in sufficient time to be included in the ad or as otherwise communicated by MRI. If applicable, Advertiser grants the Program, MRI and RevMob permission to utilize an automated software program to retrieve and analyze websites and mobile applications associated with the Services for ad quality and serving purposes, unless Advertiser specifically opts out of the evaluation in a manner specified by MRI. Advertiser understands and acknowledges that CPI campaigns results are also dependent of information provided by the Advertiser and therefore, MRI does not guarantee to deliver the exact CPI figure established by Advertiser and Advertiser understands and acknowledges that a variation of up to fifteen percent (15%) in the CPI defined rate is within the limits of the Program. Any variation of the CPI, regardless of being within or outside of such percentage, for more or less is not a cause, respectively, for reimbursement of Advertiser by MRI or for MRI charging the difference from Advertiser. MRI may modify any of its licensed Programs at any time without liability. MRI also may modify these Terms at any time without liability, and Advertiser's use of the Program after notice that these Terms have changed constitutes Advertiser's acceptance of the new Terms, unless these Terms have been negotiated and duly signed by the representatives of both MRI and Advertiser, in which case and changes to these Terms must be agreed in writing by both MRI and Advertiser. MRI or Partners may reject or remove any ad or Target from the Program for any or no reason in its sole discretion at any time and without notice. All actions performed by Advertiser during the use of the Program, such as play, pause or remove the Campaign, or any edit or changes in the Creatives are logged by the Program.
MRI may send email notifications with any frequency to be determined by MRI, including but not limited to daily, weekly, monthly or yearly frequency. Such email notifications may include but are not limited to advertising reports and publishing reports, and may include, in MRI’s sole discretion, number of downloads, number of requests, number of impressions, number of clicks, number of installs, cost per install (CPI), cost per click (CPC), cost per mille impressions (eCPM), clickthrough rate (CTR), installrate (IR), fillrate, revenue, credit, total costs and so on. Advertiser may opt out of the email notifications by cancelling via link contained in the email, or requesting that by sending an e-mail to the following address: email@example.com
The length of the Claim Window is 30 (thirty) days, unless a different agreement in entered via a written IO contract, or, in the absence thereof, any other written contract signed by MRI and the Advertiser. For the purposes hereunder, Claim Window is defined as the length in days during which Advertiser may question the amounts set forth on a specific invoice sent or made available by MRI, counted from its sending or from the date it was made available by MRI through the Program’s website.
In case the Advertiser chooses to run a CPI (cost per install) campaign without having properly integrated its technology into MRI’s server API, the Advertiser will be charged USD 0.04 per click for all clicks delivered in the Advertiser’s campaigns. The campaigns will be paused when an incorrect technological integration is detected. An incorrect technological integration will be determined according to the industry's best practices.
In case invoices produced by MRI are based on campaign numbers reported by Advertiser, Advertiser shall provide MRI the respective reports on a daily basis through its internal system or via e-mail and the numbers set forth in those reports shall not be altered unless expressly agreed in writing by MRI. Advertiser is not entitled to any fraud allegations if it does not send to MRI its policy with regards to invalid impressions, clicks and/or installs until 30 (thirty) days prior to the allegation. On the other hand, if Advertiser reports its campaign numbers through a third-party service provider (“Ad Tracker”), Advertiser shall provide MRI access to the Ad Tracker’s internal system for reporting purposes, as well as to its fraud policies, otherwise Advertiser shall not be entitled to any fraud allegation.
In case MRI is required to accept any other electronic contracts and/or terms and conditions as a requirement to get access to Advertiser’s platform and its reports, both Parties state that the acceptance shall not, by any means, bind the parties to any new contractual relationship other than the one hereunder and that this Agreement shall fully supersede every other contract accessible via Advertiser’s platform.
MRI shall apply its best efforts not to exceed the daily/weekly/monthly caps for Advertiser’s campaigns as agreed by both parties in the IO, by e-mail, or via insertion directly through the Program or other similar communication method that proves consent from both parties. Unless otherwise agreed by both parties, Advertiser shall still be liable for the reasonable surplus amounts and acknowledges that some metrics, especially with regards to installs, may not be accounted on a real-time basis, which justifies the aforementioned surplus amounts.
As between the parties, MRI and/or Revmob own and retain all right, title and interest in and to the Program and all software, databases and other aspects and technologies related to the Program (regardless of the integration method between Advertiser and MRI and/or Revmob), any enhancements, modifications or derivative works thereof, any materials made accessible to Advertiser by MRI through the Service or otherwise, and all intellectual property rights in and to all of the foregoing.
Advertiser may cancel advertising online through its account in the Program’s website if online cancellation functionality is available, or, if not available, with 2 (two) business days prior written notice to MRI, including without limitation electronic mail. The cancellation of all advertising may be subject to Program policies or MRI's ability to reschedule reserved inventory or cancel ads already in production. Cancelled ads may be published despite cancellation if cancellation of those ads occurs after any applicable commitment date as set forth in advance by the Partner or MRI, in which case Advertiser must pay for those ads. MRI may cancel immediately any IO, any of its Programs, or these Terms at any time with notice, in which case Advertiser will be responsible for the payments related to any ads already run. Advertiser agrees that all Sections of this Agreement shall survive any expiration or termination of this Agreement.
Advertiser shall still be liable against MRI and/or Revmob for the installs arising out of clicks that occurred before the foregoing cancellation until 7 days from the cancellation date (“Attribution Period”). During the Attribution Period, Advertiser shall still provide MRI and/or Revmob with daily reports pointing out the events with regards to impressions, clicks, installs and user actions (in case campaigns are based on cost per action), otherwise the Advertiser will be charged and shall pay USD 0.04 per click for all clicks delivered in the Advertiser’s campaigns from the foregoing 2 (two) business day prior written notice until the cancellation date.
4. Prohibited Uses; License Grant; Representations and Warranties
Advertiser shall not, and shall not authorize any party to: (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (ii) use any automated means or form of scraping or data extraction to access, query or otherwise collect MRI advertising related information from any Program website or property except as expressly permitted by MRI; (iii) advertise or otherwise offer to provide anything that violates an applicable trademark, copyright, trade secret, patent, or other intellectual property right, or right of publicity or privacy; or (iv) advertise anything illegal or engage in any illegal or fraudulent or misleading business practice. Advertiser 4/7 represents and warrants that it holds and hereby grants MRI all rights (including without limitation any copyright, trademark, patent, data rights, publicity or other rights) in Creatives, Services and Targets needed for MRI to operate Program (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Creatives or Targets) in connection with this Agreement ("Use"), and this right of Use can be shared by MRI with its licensing company RevMob. Advertiser represents and warrants that it is the holder or the person entitled to the use of its brand, in any form, sign or other visual or audible expression (“Brand”). Advertiser represents and warrants that (i) all Advertiser information is complete, correct and current; and (ii) any Use hereunder and Advertiser's Creatives, Targets, and Advertiser's Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or thirdparty rights (including without limitation intellectual property rights or privacy rights). Violation of the foregoing may result in immediate termination of this Agreement or Advertiser's account without notice and may subject Advertiser to legal penalties and consequences.
5. Disclaimers and Limitation of Liability
To the fullest extent permitted by law, MRI DISCLAIMS ALL WARRANTIES OF THE PROGRAM AND THE SERVICES PROVIDED BY MRI HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. Also, MRI disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any impressions, Creatives, or Targets in the Program’s context; (iv) clicks; (v) conversions, including but not limited to installs, or other results for any ads or Targets; (vi) the accuracy of Advertiser’s data (including, but not limited to: reach, size of audience, demographics or other purported characteristics of audience); and (vii) the adjacency or placement of ads within the Program. Advertiser understands that third parties may generate impressions or clicks on Advertiser's ads for prohibited or improper purposes, and Advertiser accepts all risks of any such improper or unauthorized impressions and clicks. Advertiser's exclusive remedy, and MRI's exclusive liability, for suspected improper impressions or clicks is for Advertiser to make a claim for a refund in the form of advertising credits. Any refunds for suspected improper impressions or clicks are within MRI's sole discretion. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER, TO THE FULLEST EXTENT PERMITTED BY LAW: (i) MRI WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO ANY OF THE PARTIES’ BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; (ii) MRI'S AGGREGATE LIABILITY TO ADVERTISER IS LIMITED TO AMOUNTS PAID BY ADVERTISER, AS THE CASE MAY BE, WITHIN THE LAST 3 (THREE) MONTHS PRIOR TO THE FACT GIVING RISE TO INDEMNITY. Except for payment obligations, none of the Parties is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
If applicable, Advertiser represents and warrants that (i) it is authorized to act on behalf of and has bound to this Agreement any third party for which Advertiser advertises (a "Principal"), (ii) as between Principal and Advertiser, the Principal owns any rights to Program information in connection with those ads, and (iii) Advertiser shall not disclose Principal's Program information to any other party without Principal's consent.
Advertiser shall be responsible for prepayment of all charges up to the amount of each IO (“Payment”), or as set in an online Advertiser account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing with MRI. Unless agreed to by MRI and Advertiser in writing, Advertiser shall pay all charges in accordance with the payment terms in the applicable IO or program 5/7 documentation. Charges are exclusive of taxes. Advertiser is responsible for paying (i) all taxes, government charges, and (ii) reasonable expenses and attorney fees MRI incurs collecting late amounts. Any amount not paid when due shall be subject to a penalty of two percent (2%) of the amount per month calculated pro rata die (“Penalty”). To the fullest extent permitted by law, Advertiser waives all claims (which may be, but are not limited to, judgements and proceedings) relating to charges, (including without limitation any claims for charges based on suspected or invalid clicks and installs) unless claimed within the Claim Window. Execution of this Agreement by the parties also means that claims shall also be waived by Advertiser if they are related to past invoices sent by MRI and/or Revmob to it until before the execution date of this Agreement. As such, Advertiser provides MRI the fullest, most complete, general and irrevocable release with regards to any discussions, procedures (judicial or administrative) or other kinds of claims directly or indirectly related to the invoices sent by MRI and/or Revmob to Advertiser before the execution date of this Agreement.
At the sole discretion of MRI, and subject to the commercial terms entered by MRI and the Advertiser, a credit (“Credit”) may be granted to the Advertiser upon enrollment in the Program, or at any given moment during the time the Advertiser is enrolled in the Program.
The total amount of the Credit is based upon the metrics and figures provided by the Advertiser in relation to the use of the Program and accepted by MRI.
At the period stated in the Agreement, MRI will provide the Advertiser a statement of the total insertions, the amount of the Credit used and the total figures due by Advertiser, in conjunction with the corresponding invoice (“Invoice”) and the due date (“Due Date”).
The Invoice will be electronically sent to the Advertiser through the e-mail provided in the enrollment to the Program and Advertiser is solely responsible for updating any relevant information in relation to its data, specifically the e-mail used for receipt of the Invoices.
The Invoice will be emitted on the first business day of every month, regarding the monthly spend of the previous month. The Advertiser has the period of the Claim Window to inform MRI of any discrepancies in the value of the Invoice, otherwise it is implied that Advertiser agrees with the amount owed. If any discrepancy is informed to MRI and/or Revmob within the Claim Window, Advertiser has five (5) business days to justify this discrepancy and come to an agreement with MRI and/or Revmob regarding the amount to be paid, or else Advertiser must pay the original amount set forth in the Invoice.
The Advertiser is responsible for the payment of the Invoice in the Due Date. Should the Advertiser fail to pay the Invoice in the Due Date, the Services and its access to the Program may be suspended by MRI until the due payment of the Invoice and the Penalty. The waiver of any Penalty will be granted at MRI’s sole discretion, based on its internal metrics, including, but not limited, to the total amount of the Invoice and the total Credit granted.
If any case, MRI will send a daily message to the Advertiser, in the e-mail provided, stating the due amounts at the date of the due date, and also the Penalty applicable.
Should Advertiser have any receivable against MRI, MRI has full right to offset (“Offset”) any of such receivables against the value of any Invoice due at the day following the due date of the Invoice and such Offset is considered duly approved by Advertiser.
No Penalty shall be applicable to the case of the Offset should the outstanding receivables of Advertiser be equal or higher than the amount of the one provided in the Invoice.
Nothing in these Terms or an IO shall obligate MRI to extend credit to any party. Advertiser acknowledges and agrees that any PayPal, wire transfer and any other related billing and payment information required for payments of Advertiser’s ad placements billed by MRI may be shared by MRI with third parties, at MRI’s sole discretion, for collection purposes via third parties hired by, or affiliated with, MRI. MRI may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. MRI shall not be liable for any use or disclosure of such information by such third parties.
MRI and Revmob are not responsible and shall not be bound to any relationship entered by an Advertiser through an Agent, nor is responsible of any payment, statement, claim, promise made by Agent. No directly relationship between MRI and Revmob will derive from such way of enrollment in the Program.
MRI may, at its sole discretion, transfer its credit/billing rights to any third party, independent of any of the other Parties consent.
Advertiser shall indemnify and defend MRI, Revmob, its partners, agents, affiliates, and licensors from any thirdparty claim, demand or liability (collectively, "Liabilities"), arising out of Program use, Account use, Targets, Creatives and Services, and breach of the Agreement. In addition, MRI’s partners, agents, affiliates, and licensors shall be deemed third party beneficiaries of the above indemnity. Advertiser will be sole liable to any infringement of any provisions of this agreement, and will promptly reimburse MRI, Revmob, its partners and/or personnel, without limitation, in relation to any Liabilities. Liabilities include, but are not limited to any civil, trademark, commercial, financial, judicial, administrative or fiscal procedures started against MRI, Revmob, its partners, personnel, agents, affiliates and/or licensors (“Claim”). Upon receipt of a Claim, MRI, Revmob, its partners, personnel, agents, affiliates and/or licensors will have the unrestricted right to, at its sole discretion, decide for a legal defense, conciliation, arbitration or the immediate payment of the Claim. All costs incurred in the legal defense or payment of a Claim caused by Advertiser will be of sole responsibility of the Advertiser that caused the Claim, and shall be reimbursed to MRI, Revmob, its partners, personnel, agents, affiliates and/or licensors within 3 (three) days of the notification sent by MRI, Revmob, its partners, personnel, agents, affiliates and/or licensors to Advertiser. The reimbursement of a Claim by Advertiser does not waive Advertiser of any other penalty and/or compensation provided in this agreement.
THE AGREEMENT MUST BE CONSTRUED AS IF ALL PARTIES JOINTLY WROTE IT AND GOVERNED BY THE LAWS OF BRAZIL, REGARDLESS OF ITS CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW THAN SUCH LAWS. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE MRI PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE COURTS OF THE CITY OF SÃO PAULO, STATE OF SÃO PAULO, BRAZIL, AND MRI AND ADVERTISER CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. The Agreement constitutes the entire and exclusive agreement between the Advertiser and MRI with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents or oral discussions are void. Advertiser shall not disclose the terms or conditions of these Terms to any other party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. Advertiser may grant approvals, permissions, extensions and consents by email, but any modifications by Advertiser to the Terms must be made in a writing executed by both parties. Unless stated otherwise, MRI may change these Terms at any time. In the event that any Advertiser does not agree with or does not accept any of the changes made by MRI in these Terms, then the relevant nonagreeing or nonaccepting Advertiser shall immediately cease the use of the Program; the continued use of the Program after receipt of MRI’s change of these Terms will constitute an express acceptance of the relevant Advertiser on such changes. Any notices are deemed given upon receipt and must be sent via overnight courier or regular postal mail with return receipt requested to Mobile Representation International Ltd. Schottegatweg Oost 10, P.O. Box 3914, Bon Bini Business Center Unit A1K, Curacao and also notified by the email firstname.lastname@example.org. Failure to comply with both communications will make such notice not valid for MRI purposes and therefore, nonenforceable whatsoever. A waiver of any default by an Advertiser is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Advertiser may not assign any of its rights hereunder and any such attempt is void. MRI and Advertiser are not legal partners or agents, but are independent contractors, the reason why no employment relationship shall exist between the MRI and Advertiser. Consequently, MRI is expressly exempted of any labor, social or social security 7/7 charges which may arise out of this Agreement or the Program that are provided by such collaborators. In the event that these Terms or a Program expire or is terminated, MRI shall not be obligated to return any materials to Advertiser. Notice to Advertiser may be effected by sending an email to the email address specified in the Advertiser's account, or by posting a message to Advertiser's account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted. This Agreement shall be valid and be in full force and effect as from the date of electronic acceptance by Advertiser, or as of the date Advertiser made the first use of the Program, and shall remain in full force and effect for an indeterminate period of time. Any provision which is capable of surviving the termination of this Agreement (including exclusions and limitations of liability, confidentiality and indemnification) shall survive termination or expiration of this Agreement.