Advertiser Terms & Conditions v1

Last Updated: 1st September 2020

These Advertiser Terms & Conditions, together with any applicable Insertion Order(s) (each an “IO” and, collectively with these terms the “Agreement” or “Advertiser Terms & Conditions”) is a binding agreement between and an Advertiser (defined hereunder) and AudioMob Limited which is an entity duly organised and existing under the laws of England and Wales (together with its affiliates and subsidiaries, “AudioMob”), and governs the use of the services and/or products made available by AudioMob (the “AudioMob Service”)

If entering into this Agreement on behalf of a company or other entity (e.g. an Agency on behalf of an Advertiser), Advertiser represents that it is duly authorised agent of such company or other entity with the authority to enter into this Agreement on behalf of such company or entity and the term “Advertiser” (and its variants) will also refer to such third party(ies) on a joint and several basis.

BY ACCEPTING THIS AGREEMENT, REGISTERING FOR THE AUDIOMOB SERVICE, CREATING A OR UTILISING ANY PART OF THE AUDIOMOB SERVICE, IN ANY MANNER, YOU REPRESENT AND AFFIRM THAT YOU HAVE READ, UNDERSTAND, ACCEPT AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORISED TO UTILISE ANY PART OF THE AUDIOMOB SERVICE OR THE AUDIOMOB PLATFORM.

You hereby agree as follows:

1.     Insertion Orders

1.1     AudioMob and Advertiser shall execute IOs in the manner set forth herein. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format. As applicable, each IO may specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, which may include how it is allocated to be spend across the AudioMob Platform; (iv) the start and end dates of the campaign; and (v) if requested, the identity of and contact information for any Third Party Ad Server. Excluding Advertising Materials provided by Advertiser, AudioMob shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. AudioMob will make commercially reasonable efforts to notify Advertiser within five (5) business days of receipt of an IO signed by Advertiser if any specified inventory is not available. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both AudioMob and Advertiser.

2.     Campaigns

2.1     Subject to this Agreement, Advertiser may use the AudioMob Services and/or, if applicable, execute an IO to specify relevant information for the services and/or campaigns required (e.g., budgets, scheduling, territories and targeting parameters) (“Campaign Information”) and to supply necessary Ad creative. AudioMob will use the attribution window as provided by a nominated Attribution Partner (as hereinafter defined); provided that Advertiser agrees to notify AudioMob of any changes to an applicable attribution window prior to such change. AudioMob will use commercially reasonable efforts to comply with the Campaign Information and endeavor to deliver inventory for submitted campaign order(s), subject to inventory availability, Advertiser’s compliance with AudioMob Policies (as hereinafter defined) and payment in full of all sums payable to AudioMob pursuant to the terms set out below.

2.2     AudioMob is free to determine the placement and positioning of Ads and the manner in which Ads are delivered. AudioMob may programmatically modify Ad components in order to optimise campaigns towards targets or otherwise to improve campaign performance.

2.3     Advertiser acknowledges and agrees that actual budgets, scheduling, bid prices or other delivery targets or performance metrics are not guaranteed and Advertiser may be charged for inventory delivered in excess of budgets

2.4     Advertiser may modify Advertiser campaign information from time to time or cancel any campaign through the AudioMob Platform or, if applicable, contact the account manager, provided Advertiser acknowledges that it may take up to two (2) business days for any such modification or cancellation to be effective.

2.5     Advertiser is responsible for (i) all Ads and other content provided in connection with the AudioMob Service, (ii) all ad trafficking or targeting decisions made by or on Advertiser’s behalf, (iii) all applications, content and properties to which Ads direct or redirect any user ("Advertiser Properties"), and (iv) all services and products advertised in any Ads or on any Advertiser Properties ("Advertised Goods").

2.6     Advertiser represents and warrants that (A) Advertiser owns or has all necessary rights (including, all intellectual property and proprietary rights) to the Ads (including, as needed to grant the licenses set forth herein), the Advertiser Properties and the Advertised Goods; (B) the Ads, Advertiser Properties and Advertised Goods (i) will comply with all applicable laws, self-regulatory rules, industry rules and governmental regulations and requirements (collectively, "Applicable Law"); (ii) are not false, deceptive, misleading, unethical, defamatory, libelous, or threatening, harmful, abusive, harassing, tortuous, vulgar, obscene, pornographic, invasive of another's privacy, subversive, hateful, or racially, ethnically or otherwise objectionable or contrary to public interest, public order, or national harmony;(iii) do not infringe or misappropriate the rights of any third party; and (iv) could not reasonably be determined to tarnish the goodwill of AudioMob; and (C) Advertiser’s use of the AudioMob Service and Advertiser’s Ads will comply with the Advertiser Content Policy as well as Applicable Laws.

2.7     AudioMob reserves the right within its discretion to reject or remove any Ads in the event any Advertiser Properties or Advertised Goods do not comply with AudioMob Policies, or that in AudioMob’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order.

2.8     AudioMob reserves the right within its discretion to reject or remove from any Ads that may bring disparagement, ridicule, or scorn upon AudioMob provided that if AudioMob has reviewed and approved such Ads, AudioMob will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Ads from Advertiser.

2.9     AudioMob will not edit or modify the submitted Ads in any way, without Advertiser’s approval. AudioMob will use all Ads in strict compliance with these Advertiser Terms and Conditions and any written instructions provided on the IO.

2.10     When applicable, Third Party Ad Server tags may be implemented so that they are functional in all aspects. All use of Third-Party Ad Server tags shall comply with AudioMob’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ behaviour or activity as supplied by AudioMob from time to time.

3.     Ad Placement

3.1     AudioMob acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“AudioMob Developer Guidelines”). AudioMob will use commercially reasonable efforts to comply with the AudioMob Developer Guidelines with respect to Ads that appear on Developer Inventory. For Ads shown on Developer Inventory, AudioMob and Advertiser agree that AudioMob’s sole responsibilities with respect to compliance with these AudioMob Developer Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with AudioMob Developer Guidelines on all Developer Inventory and to provide the remedy specified below to Advertiser with respect to violations of AudioMob Developer Guidelines on Developer Inventory.

3.2     Should Ads appear in violation of the AudioMob Developer Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that AudioMob remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Advertiser for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Advertiser and AudioMob will negotiate an alternate solution.

3.3     After Advertiser notifies AudioMob that specific Ads are in violation of the AudioMob Developer Guidelines, AudioMob will make commercially reasonable efforts to correct such violation within 48 hours. If such correction materially and adversely impacts such IO, Advertiser and AudioMob will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Advertiser each acknowledge and agree that, subject to applicable laws, no Advertiser will be entitled to any remedy for any violation of the AudioMob Developer Guidelines resulting from: (i) Ads placed at locations other on Developer Inventory, by Advertiser, or (ii) Ads displayed on properties that Advertiser is aware, or should be aware, may contain content in potential violation of the AudioMob Developer Guidelines.

4.     Use of the AudioMob Service

4.1     In connection with Advertiser’s use of the AudioMob Service, Advertiser agrees to implement and comply with all technical and other requirements for the AudioMob Service (e.g. for conversion tracking or ad tag implementation requirements) communicated from time to time by AudioMob (“Documentation”) and to provide accurate, current and complete versions of Ads via the AudioMob Platform or other mechanisms AudioMob requires. Advertiser acknowledges that absent such compliance, AudioMob may be unable to provide the AudioMob Service or the AudioMob Service may operate incorrectly. AudioMob will have no liability to Advertiser if AudioMob is unable to provide the AudioMob Service or the AudioMob Service fails to operate correctly as a result of Advertiser’s failure to comply with this Section 3.1.

4.2     Advertiser agrees it will not and will not enable or authorise any third party to, (i) engage in illegal or fraudulent conduct, including by virtue of the Ads, Advertiser Properties, Advertised Goods or use of the Advertiser Service; (ii) use any automated means or form of scraping or data extraction to access, query or otherwise collect information from the AudioMob Service; (iii) copy, modify or create derivative works of the AudioMob Service or any related technology; (iv) modify, reverse engineer, decompile, disassemble, or interfere with the AudioMob Service, any systems used for calculating ad engagement or conversions; (v) provide Ads that deliver or introduce malware, spyware or any other malicious code or otherwise interfere with the AudioMob Service (vi) breach or circumvent any security measure of AudioMob or any third party; (vii) sublicense, rent, sell, or lease access to the AudioMob Service; (viii) use the AudioMob Service to create any other product, service or dataset except with respect to Campaign Information; (ix) log, capture, or otherwise create any record of any data transmitted to or from the AudioMob Service; or (x) make or publish any representations or warranties on behalf of AudioMob concerning the AudioMob Service without AudioMob’s prior written approval.

4.3     AudioMob may, at any time, for any reason, modify or terminate any part or all of the AudioMob Service or suspend Advertiser’s ability to use the AudioMob Service. AudioMob may reject or remove any Ad or suspend or terminate any Advertiser campaigns at any time for any reason.

4.4     Advertiser acknowledges that AudioMob does not guarantee that Ads will be served on any particular Developer Properties or appear in any particular position or rank.

4.5     AudioMob does not permit Ads that advertise products or services which contain the following types of content (“Content Guidelines”):

I. Violence

II. Obscenity and sexual material

III. Tobacco

IV. Content devoted to the promotion of beer, hard alcohol, tobacco or tobacco-related products.

V. Anti or Hateful Speech - Content promoting violence or advocating against a particular group is not permitted. This includes but is not limited to groups identified by their:

Race or ethnic origin
National origin
Religion
Political Association (subject to approval by AudioMob on political campaign advertising in certain countries)
Disability
Age
Sexual orientation/gender identity
VI. Gambling (Only applicable to countries where gambling content is illegal.)

VII. Drugs - Content promoting drugs and drug paraphernalia. This includes drug accessories, illegal drugs, and herbal drugs.

IX. Restricted Content as per AudioMob’s Policies.

4.6     All claims in ads must be adequately substantiated. Ads and any offers promoted within ads must not be false, deceptive or misleading. Ads must not contain or promote illegal products or services.

5.     Reporting

5.1     If AudioMob is serving the campaign, AudioMob may make reporting available either electronically or in writing, unless otherwise specified in the IO and once AudioMob provides an online or electronic reporting, it agrees that Advertiser is entitled to reasonably rely on it, subject to provision of AudioMob’s invoice for such period.

5.2     In the event there are any claims by the Advertiser regarding the campaign delivery, the Advertiser shall inform the same to AudioMob in writing (along with reasonable evidence from a duly accredited third-party vendor). For any claims related to active campaigns, AudioMob will only investigate the claims which fall within the preceding 90 days period from the date of receipt of such claims. For claims related to campaigns which have concluded the Advertiser shall inform AudioMob within 30 days from the applicable campaign conclusion and AudioMob will only investigate the claims which fall within the preceding 30 days period from the date of conclusion of the applicable campaign.

6.     Payments

6.1     Invoicing will be done in terms of the IO. Payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by AudioMob. Invoices will be sent at the beginning of the month for the previous months' activity

6.2     Advertiser agrees that it has all necessary rights, power, and authority to authorise each such payment. Advertiser agrees to maintain sufficient funds or credit availability to satisfy amounts due and that AudioMob reserves the right to suspend the AudioMob Service if sufficient funds or credit availability are not available at the time the Advertiser invoice is due. Any failure by Advertiser (if such Advertiser is an agency) to invoice the agency client in a timely manner, shall not in any way limit AudioMob’s ability to collect funds from the Advertiser.

6.3     Advertiser shall provide information reasonably requested by AudioMob to evaluate such entity’s credit and AudioMob reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Order acceptance is subject to credit approval of Advertiser.

6.4      If the Advertiser is an agency, it acknowledges that payments owed to AudioMob under any relevant IO are not contingent upon Advertiser (which is an agency) collecting such payments from its relevant agency client. In the event of non-payment, and without limiting any other remedies, AudioMob may offset any amounts due to AudioMob against any amounts due from AudioMob to Advertiser under any agreement or IO, or may offset such amounts against any charges for media to be delivered by AudioMob , including, without limitation, unpaid invoices, late payments, interest payments or insufficient payments.

6.5     Without limiting AudioMob’s rights or remedies, for unpaid invoices, late payments or insufficient funds AudioMob may charge interest on overdue amounts at (i) 2% per month, (ii) the rate charged to AudioMob by credit provider(s); or (iii) the maximum rate allowed under applicable law. Advertiser will reimburse AudioMob for all costs incurred in connection with the collection of amounts payable and past due.     AuidoMob reserves the right to impose a further 2% charge per day on any overdue amount.

6.6     In the event that AudioMob has entered into the IO with an Advertiser (which is an agency) and AudioMob is required to seek payment directly from agency client, AudioMob may impose additional costs on such Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e. the reasonable costs of debt recovery companies instructed to recover the payments).

6.7     Advertiser acknowledges that AudioMob is not responsible for and Advertiser will bear the cost of inventory associated with invalid activity such as views, clicks or installs not arising from human interaction, click fraud and technological issues.

6.8     Advertiser’s credit is established on a client-by-client basis. Upon AudioMob’s request, if the Advertiser is an agency, such Advertiser will make available to AudioMob written confirmation of the relationship between agency and the agency client. This confirmation should include, for example, the agency client’s acknowledgement that the agency is its agent and is authorised to act on its behalf in connection with the IO and these Advertiser Terms and Conditions. In addition, upon the request of AudioMob, the agency will confirm whether the agency client has paid to the agency in advance funds sufficient to make payments pursuant to the IO. If Advertiser’s credit is or becomes impaired, or if any credit limit set in an IO is reached, AudioMob will require payment in advance before providing any AudioMob Services.

6.9     AudioMob will monitor delivery of the Ads and will notify Advertiser either electronically or in writing as soon as possible if AudioMob believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Advertiser and AudioMob may arrange for a makegood consistent with these Advertiser Terms and Conditions.

6.10     If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad, Advertiser and AudioMob will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged.

6.11     If Advertiser has made a cash prepayment to AudioMob, specifically for the campaign IO for which under-delivery applies, then, if Advertiser is reasonably current on all amounts owed to AudioMob under any other agreement for such Advertiser, Advertiser may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will AudioMob provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Advertiser.

7.     Licence

7.1     Advertiser grants AudioMob a non-exclusive, worldwide, royalty-free, fully-paid up, transferable and sublicensable right and licence to access, use, store, distribute, reproduce, modify, transmit, perform, display and publish Advertiser Ads in inventory placements on Developer Properties and as needed to provide the AudioMob Service.

7.2     Advertiser further grants AudioMob the express right to use Advertiser content, logos, name, and any trade names, without notice or consent, in promotional, sales, financial, marketing and/or public relations materials and other communications to identify that Advertiser client of AudioMob.

7.3     Subject to Advertiser’s compliance with the terms and conditions of these Advertiser Terms & Conditions, AudioMob grants Advertiser the following limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the AudioMob Platform in connection with Advertiser’s authorised use of the AudioMob Service but solely for internal use only. Advertiser will not use AudioMob’s trade name, trademarks, logos, or Ads without AudioMob’s prior written approval.

8.     Ownership

Advertiser acknowledges and agrees that AudioMob owns all right, title and interest (including, all intellectual property and proprietary rights) in and to the AudioMob Service.

9.     Data

9.1     Advertiser agrees to provide sufficiently clear and meaningful notice to, and have the appropriate consents from, all users who engage with Advertiser Ads regarding the collection, disclosure, use and security of any information that Advertiser sends or makes available to AudioMob pursuant to this Agreement or which is collected by or provided to Advertiser in connection with any Ads in a manner and substance that complies with all applicable laws.

9.2     Advertiser may receive Device Identifiers related to Ads served on Advertiser’s behalf. Advertiser represents that it will not and will procure that any applicable Attribution Partner will not, share Device Identifiers received directly or indirectly from AudioMob with third parties and that Advertiser’s use of such Device Identifiers will be used solely for purposes of conversion tracking.

9.3     Advertiser represents and warrants that it will not (i) attempt to re-identify any Device Identifiers received directly or indirectly from AudioMob; (ii) use Device Identifiers received directly or indirectly from AudioMob for any purposes other than calculating conversions and frequency capping of Ads; and (iii) use Device Identifiers and other data received pursuant to this Agreement solely on behalf of Advertiser in connection with the Ads and no other client of any appointed Attribution Partner.

9.4     Any appointed Attribution Partner shall not be considered a third party beneficiary hereunder and Advertiser will ensure that each Attribution Partner complies with the restrictions set forth herein. Any Attribution Partner’s failure to comply with such restrictions will be deemed a breach of Advertiser’s obligations under this Agreement.

10.     Force Majeure

10.1     Excluding payment obligations, neither Advertiser nor AudioMob will be liable for delay or default in the performance of its respective obligations under these Advertiser Terms & Conditions if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, cyber intrusions/ hacks, lockdowns, electrical outages, network failures, acts of God, acts of public enemy, embargo, epidemics, pandemics, acts of government in its sovereign capacity or labour disputes (“Force Majeure event”)

10.2     If AudioMob suffers such a delay or default, AudioMob will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Advertiser, AudioMob will allow Advertiser a pro rata reduction in the IO charges in the amount of money assigned to the IO at the time of booking.

10.3     If a Force Majeure event has continued for five (5) business days, AudioMob and/or Advertiser has the right to cancel the remainder of the IO without penalty.

11.     AudioMob Service

11.1     AudioMob may, at any time, for any reason, modify, suspend, terminate or discontinue, temporarily or permanently, all or any part of the AudioMob Service or Advertiser’s use thereof and will not be liable to Advertiser or any other party in connection with any such modification, suspension, termination or discontinuance. In addition, AudioMob may suspend or terminate Advertisers ability to access or use all or any part of the AudioMob Service at any time for any reason.

12.     Confidentiality

12.1     Confidential Information includes all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business, or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information does not include information that: (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party.

12.2     The parties agree: (i) not to disclose or otherwise make available any Confidential Information to any individual, company or other third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section; (ii) to use at least the same degree of care to prevent unauthorised use and disclosure of Confidential Information as the party uses with respect to its own confidential information of like importance (but in no event less than a reasonable degree of care); (iii) to use Confidential Information only for the purpose for which it is provided and as permitted under this Agreement; (iv) all Confidential Information will remain the Disclosing Party’s exclusive property; and (v) to delete and destroy all Confidential Information in Receiving Party’s possession upon written notice from the Disclosing Party or termination of this Agreement.

12.3     If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure.

12.4     The obligations in this Section will survive termination of this Agreement until the expiration of 3 years from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret.

13.     Notices

Notices may be sent by email to the address Advertiser provides to AudioMob. Notices to AudioMob may be sent by email to notices@audiomob.com provided, however, that any notice to AudioMob concerning termination, breach, indemnification or any other legal concern (collectively, “Legal Notice”) must be made in writing and delivered by hand delivery, or by internationally recognised courier service to: AudioMob Limited, Legal Department, 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ.

14.     Warranty Disclaimer

THE AUDIOMOB SERVICE AND ALL INFORMATION, CONTENT AND MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE AUDIOMOB SERVICE ARE PROVIDED BY AUDIOMOB ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND.

AUDIOMOB DOES NOT WARRANT THAT THE AUDIOMOB SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE. AUDIOMOB MAKES NO WARRANTY REGARDING THE RESULTS ADVERTISER WILL OBTAIN THROUGH THE USE OF THE AUDIOMOB SERVICE.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, AUDIOMOB DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE AUDIOMOB SERVICE, CONTENT AND MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT AUDIOMOB KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE

ADVERTISER ACKNOWLEDGES AND AGREE THAT ADVERTISER HAS RELIED ON NO WARRANTIES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AUDIOMOB OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.

15.     Limitation of Liability

EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AUDIOMOB’S TOTAL CUMULATIVE LIABILITY TO ADVERTISER OR ANY OTHER PARTY FROM ALL CAUSES OF ACTION ARISING OUT OF OR RELATING TO ANY PART OF, OR IN CONNECTION WITH, THE AUDIOMOB SERVICE AND/OR THIS AGREEMENT, UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE LESSER OF THE AMOUNTS PAID BY ADVERTISER IN CONNECTION WITH THE AUDIOMOB SERVICE IN THE MOST RECENT THIRTY DAYS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL AUDIOMOB BE LIABLE TO ADVERTISER OR ANY OTHER PARTY FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) DAMAGES FOR OR RELATING TO LOSS OF DATA, BUSINESS, REVENUES OR PROFITS (WHETHER DIRECT OR INDIRECT) OR (III) DAMAGES FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER OR NOT AUDIOMOB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

16.     Indemnification

16.1     Advertiser will indemnify, defend and hold harmless AudioMob and any of its respective directors, officers, employees, agents, contractors and licensees, from and against any and all claims, demands, causes of action, settlement costs and damages awarded, including reasonable attorney’s fees, arising from any third-party claim based upon or otherwise arising out of: (i) any claim alleging facts that would constitute a breach of any of Advertiser’s representations, warranties or obligations in this Advertiser Terms & Conditions Agreement; (ii) any claim relating to any of the Ads or Advertiser’s use of the AudioMob Service; (iii) AudioMob’s use of any content or technology that Advertiser requires AudioMob to use; and (iv) any negligent act or wilful misconduct by Advertiser or any party acting on Advertiser’s behalf.

16.2     At AudioMob’s option, Advertiser will assume control of the defense and settlement of any claim subject to indemnification by Advertiser (provided that, in such event, AudioMob may at any time elect to take over control of the defense and settlement of any such claim). In any event, Advertiser may not settle any claim without AudioMob’s prior written consent.

17.     Choice of Law

This Agreement shall be construed and interpreted under the laws of England and Wales without giving effect to the principles of conflict of laws in those jurisdictions, and the parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the courts of England in respect of any dispute arising under or in connection with this Agreement.

18.     Term

The term of the Agreement will begin upon the earlier of Advertisers acceptance of an IO or by accessing or utilising any part of the AudioMob Service.

19.     Miscellaneous

19.1     This Agreement sets forth the entire agreement between AudioMob and Advertiser related to the subject matter hereof and supersedes any and all prior or contemporaneous agreements (whether written or oral) with respect to the subject matter hereof. In the event of any conflict between the terms of this Agreement and any other agreement including any purchase order terms and conditions or terms and conditions of sale, the terms of this Agreement shall prevail.

19.2     This Agreement, and any rights and licenses granted hereunder, may not be delegated, transferred or assigned without AudioMob’ prior written consent and any attempt to do so in breach of the foregoing will be null and void.

19.3     AudioMob may freely transfer or assign any or all of its rights and obligations associated with this Agreement at any time.

19.4     This Agreement will insure to the benefit of and be binding upon each party’s respective successors and assigns.

19.5     AudioMob and Advertiser are independent contractors and neither AudioMob nor Advertiser are an agent, representative or partner of the other.

19.6     The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions will remain in full force and effect.

19.7     AudioMob may modify this Agreement at any time in its sole discretion. AudioMob will notify Advertiser of any material change by posting a change notice on the AudioMob Platform upon login, at https://www.audiomob.com/advertiser-terms or otherwise notification by email. If any modification is unacceptable, Advertiser’s sole and exclusive remedy is to cease using the AudioMob Service and terminate this Agreement. Advertisers continued use of the AudioMob Service following such notice will constitute acceptance of the modified Agreement.