Developer Terms & Conditions

Last Updated: 13th November 2024

This Developer Services Terms & Conditions (“Agreement”) is entered into by and between the Developer and Audiomob Ltd, a company registered in England & Wales with offices at 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ (“Audiomob”).

The effective date of this Agreement shall be the date of the online acceptance of the Developer Services Terms & Conditions by an authorised representative of the Developer (“Effective Date”).

1.     Audiomob Service

1.1     Audiomob Service. Developer hereby engages Audiomob to provide the Audiomob services identified herein and as otherwise mutually agreed in writing by the parties (the “Audiomob Services”) relating to Developer’s and/or its clients’ advertising inventory (“Developer Inventory”) which may include websites, mobile applications and/or other digital media properties accessible through the Audiomob Services (the “Developer Properties”). Subject to the terms and conditions of this Agreement, Audiomob hereby grants Developer access to the Audiomob Services during the Term solely for purposes of (a) displaying advertisements on Developer Properties through the Audiomob Services, and (b) receiving reporting data made available via the Audiomob Services. Audiomob reserves the right to suspend Developer’s user interface (“UI”) access to the Audiomob Services at any time in its sole discretion to rectify technical, reporting and other unforeseen issues; provided, however, that any such UI access suspension shall not impede the monetisation of Developer Inventory via the Audiomob Services as contemplated hereunder. Developer hereby grants Audiomob during the Term the right to serve and place advertisements on the Developer Properties via the Audiomob Services. Developer hereby agrees to be responsible for any breach of this Agreement by any clients of Developer who provide or make available any of the Developer Inventory and Developer Properties hereunder.

1.2     Audiomob Services. The following provisions apply to the applicable services elected by Developer.The “Audiomob Unity Plugin” program provides additional visual components to the Unity SDK which allow Developers to configure rewarded audio triggers, sound output, companion banners and an unmute prompt on the Developer Inventory.

1.3     No Guarantees. Developer acknowledges and agrees that Audiomob provides no guarantee of volume of impressions delivered, clicks received, or amount of revenue paid or earned under this Agreement.

2.     Warranties

2.1     Mutual Warranties. Each party represents and warrants to the other party that: (a) it has all necessary rights and authority to enter into, execute and perform its obligations under this Agreement; and (b) the execution of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.

2.2     Audiomob Warranties. Audiomob represents and warrants to Developer that Audiomob will not violate any applicable law or regulation in connection with the performance of the Audiomob Services hereunder.

2.3     Developer Warranties. Developer represents and warrants to Audiomob that: (a) each Developer Property that displays advertisements via the Audiomob Services shall: (i) neither violate any applicable laws or regulations, nor contain Prohibited Content, and (ii) properly categorise the inventory type for the site ID of the Developer Property in accordance with Audiomob’s then current guidelines; (b) it will not, and will not permit any third party to, directly or indirectly (i) access, launch or activate the Audiomob Services through or from, or otherwise incorporate the Audiomob Services in, any software application, website or other means other than the Developer Properties, (ii) transfer, sell or otherwise sublicense the Audiomob Services, (iii) generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means, (iv) encourage or require end users or any other persons, either with or without their knowledge, to click on the advertisements displayed through the Audiomob Services through offering methods that are manipulative, deceptive, malicious or fraudulent, or (v) pass any data to Audiomob that could be used to personally identify any person without obtaining such person’s consent to pass such data to Audiomob (including, without limitation, any personally-identifiable information or personal data passed via other parameters); and (c) it has and will maintain throughout the Term all rights, authorisations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Developer Properties and to permit Audiomob to provide the Audiomob Services to Developer as contemplated under this Agreement. “Prohibited Content” is defined as indecent, obscene or pornographic material, hate speech, subject matter that a reasonable person would consider highly objectionable, any material which improperly references illegal activities, or any material that is or contains malware, viruses, or other potentially destructive computer programs and security threats.

EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, REGARDING ITS RESPECTIVE SERVICES OR PRODUCTS, OR ITS PERFORMANCE OR NON-PERFORMANCE HEREUNDER, INCLUDING NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. AUDIOMOB DOES NOT WARRANT THAT THE AUDIOMOB SERVICES WILL BE ERROR FREE OR WITHOUT INTERRUPTIONS, NOR DOES AUDIOMOB WARRANT THAT THE AUDIOMOB SERVICES WILL MEET DEVELOPER’S REQUIREMENTS OR THAT ALL ERRORS OR FAILURES WILL BE CORRECTED.  DEVELOPER IS SOLELY RESPONSIBLE FOR THE SELECTION OF THE SERVICES THAT MEET ITS BUSINESS REQUIREMENTS.

DEVELOPER ACKNOWLEDGES AND AGREES THAT AUDIOMOB EXTENDS NO WARRANTIES OF ANY NATURE TO OR BY ANY THIRD PARTY OR WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, PRODUCT OR SERVICE NOT PROVIDED BY AUDIOMOB HEREUNDER.

3.     Payment

3.1   Developer Revenue

3.1.1     “Developer Revenue” represents revenue earned by Developer based on sales for advertisements served to the Developer Inventory via the Audiomob Services at a 60/40 revenue share basis.

3.1.2 Audiomob shall provide Developer with a monthly statement, which includes the Developer Revenue for the previous month (the “Monthly Statement”), to be issued by Audiomob each month relating to the Developer Revenue generated in the previous month.  If Developer does not raise any issues in writing with regard to any Monthly Statement within thirty (30) days of receipt, Developer will forfeit its right to do so.  Developer acknowledges that all numbers displayed in any other reporting apart from the Monthly Statement made available by Audiomob do not represent valid numbers for billing purposes.  

3.1.3 Developer shall raise an invoice to Audiomob, in the format and providing the details required by Audiomob, relating to each Monthly Statement (the “Developer Invoice”) once the Developer has approved the Monthly Statement on the online dashboard.

3.1.4 Audiomob shall pay Developer the Developer Revenue (when in aggregate over $500), net of any applicable fees and charges that will be notified to the Developer, within sixty (60) days following receipt by Audiomob of the Developer Invoice. Any unpaid Developer Revenue under $500 in an applicable month shall rollover and accrue in the next calendar month.

3.2     Revenue Collection. Any Developer Revenue that remains unpaid by a Demand Partner for a period greater than one-hundred twenty (120) days of the invoice date shall be deemed an “Outstanding Receivable”, and an adjustment for such Outstanding Receivable may be made in the subsequent Monthly Statement Developer shall then have the right to pursue collection of the Outstanding Receivable directly from the applicable Demand Partner, with reasonable assistance from Audiomob upon request. The Audiomob Fees related to an Outstanding Receivable shall only be payable as to the portion of the Outstanding Receivable collected by Developer or Audiomob from the Demand Partner.

3.3     Inventory Quality. Audiomob uses third parties to test the quality of advertising impressions from Developer Properties served through the Audiomob Services.  Developer shall provide Audiomob with complete transparency with respect to the domain for each such Developer Property at all times during the Term, and shall comply, and reasonably assist upon request, with the Inventory Quality controls and procedures (including whitelisting and blacklisting) that Audiomob may institute. For purposes of this Section, “Inventory Quality Risk” consists of, without limitation: a) inventory quality issues (e.g., attempts to generate false impressions, either by using bots and crawlers, or manipulation of ad placements, or redirects where there is no possibility of viewing or listening by a human), and b) brand safety issues (e.g., appearance of ads in proximity of Prohibited Content on the Developer Site). If Audiomob detects Inventory Quality Risk on Developer Properties through use of such tools and services or otherwise, then Audiomob may either (i) not send that impression through to auction, or (ii) suspend traffic for such Developer Properties.

3.3.1     In the event that Audiomob becomes aware of inventory quality violations with respect to impressions that have been served on a Developer Property, then: (a) Audiomob shall have the right to withhold Developer Payments solely for the applicable impressions until Audiomob has completed its good faith investigation with respect to such impressions and concluded any negotiation with the applicable Demand Partners with respect to such impressions; and (b) where Audiomob determines that there have been inventory quality violations for all or a portion of such impressions (the “Fraudulent Impressions”), Audiomob shall reduce pending Developer Payments by the amount otherwise payable to Developer for the Fraudulent Impressions and pay Developer the resulting net amount in the ordinary course.

3.3.2     If there are Fraudulent Impressions served to Audiomob on a repeated basis with respect to one or more Developer Properties, Audiomob shall have the right to immediately suspend traffic for some or all Developer Properties until the levels of Fraudulent Impressions have been reduced to acceptable levels, or to immediately terminate this Agreement upon written notice to Developer, notwithstanding the provisions of Section 4.2 below.

3.4     Taxes. Developer will pay all taxes (including excise, sales, use, consumption, value-added or withholding taxes), customs or import duties, or any other levies, tariffs, duties or governmental fees that are due or payable in connection with this Agreement (“Taxes”), with the exception of taxes on Audiomob’s net income.  

4.     Term

4.1     Term. The initial term of this Agreement shall begin as of the Effective Date and shall continue as set forth in the Principal Terms above (the “Initial Term”), unless earlier terminated in accordance with the terms of this Agreement. At the end of the Initial Term and each renewal term thereafter (together with the Initial Term, the “Term”), the term of this Agreement shall automatically renew for consecutive twelve (12) month periods (each a “Renewal Term”) unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the date of the then existing Renewal Term.

4.2    Termination for Cause. Either party shall have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Termination of this Agreement by either party for breach will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such party. For the avoidance of doubt any breach of the privacy obligations set out in clause 6 of this Agreement shall be determined to be a breach of a material term.

4.3    Effects of Termination. In the event of termination of this Agreement, Developer shall immediately cease using the Audiomob Services and shall destroy or return to Audiomob all copies in any form of Audiomob’s Confidential Information and, upon request, will certify in writing to Audiomob that such delivery or destruction has been fully effected.  The following provisions will survive termination of this Agreement: Sections 3, 4.3 and 6.3 through 12 of this Agreement.

5.     Use of Marks

5.1    During the Term, Developer grants Audiomob a limited, royalty-free, non-transferrable right to identify Developer as a customer or user of the Audiomob Services solely in connection with providing the Audiomob Services hereunder, and use Developer’s name, marks and logos in marketing materials, in group press releases with other customers and on Audiomob’s website. Developer shall not use Audiomob’s name, logos or other marks without Audiomob’s prior written consent. Any other use of Developer’s name, logos, or other marks by Audiomob shall be subject to Developer’s prior approval.

6.     Data Use

6.1    Privacy Policy. Developer shall abide by a privacy policy consistent with applicable laws and post such privacy policy on each web page of each Developer Property where data gathering for interest-based advertising occurs. Such privacy policy shall include: (a) clear notice of Developer’s use of methods to collect, use and share user data, including Audiomob’s and its Demand Partners’ methods; (b) a statement that data may be collected for interest-based advertising or cross-app advertising purposes on the Developer Property; (c) a description of the types of data, including personally identifiable information, precise location data, or personal directory data, that are collected for interest-based advertising or cross-app advertising purposes on the Developer Property; (d) an explanation of the purposes for which data is collected by, or will be transferred to, third parties; (e) a disclosure that statistical identification or other non-cookie technologies (such as eTags and web or browser cache) may be used by third parties on the Developer Property, including the fact that browser settings that block cookies may have no effect on such technologies; (f) a disclosure of the fact that data collected from a particular browser or device may be used with another computer or device that is linked to the browser or device on which such data was collected; and (g) a conspicuous link to, or description of how to access, an opt-out mechanism for interest-based advertising, cross-app advertising, statistical identification, and cross-device targeting.

6.2     Privacy Compliance Requirements

6.2.1     Each party agrees that it shall comply with its respective obligations under applicable data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines, including, without limitation and as applicable, U.S. laws; the rules, codes and guidelines of the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI); and the EU General Data Protection Regulation (Regulation 2016/679).

6.2.2     Developer agrees that it is responsible and liable for providing notice and obtaining any required user consent on behalf of itself, Audiomob and all applicable Demand Partners with respect to (a) passing personal information, precise geo location, user device identification or any sensitive information of its users to Audiomob and Demand Partners, (b) collecting and using statistical identification of its users or other non-cookie technologies (such as eTags and web or browser cache), (c) collecting and using information across web browsers and devices, and (d) first- and third-party cookies, including without limitation, ensuring users are clearly informed about third-party cookies and promptly notifying Audiomob in the event a user opts out of having third-party cookies dropped. Audiomob will cooperate with Developer in complying with such requirements.

6.2.3     The EU Data Protection Schedule attached hereto shall form part of this Agreement and its terms are hereby incorporated in the Agreement by reference.

6.2.4      Developer shall not include or launch any Developer Property on any of the Audiomob Services if such Developer Property is directed at U.S. children under 13 as contemplated by the Children’s Online Privacy Protection Law, as amended (“COPPA”), and Developer shall flag within the Audiomob Services or inform Audiomob in writing prior to launching any of such Developer Properties on any of the Audiomob Services. Developer shall not pass to Audiomob or its Demand Partners any personal information of children under 13 as defined under COPPA.

6.2.5     If any Developer Property is a mobile application, then Developer must clearly and conspicuously post notice, or a link to notice, in any store or on any website or otherwise where the mobile applicable may be acquired that contains: (a) a statement of the fact that data may be collected for cross-app advertising; (b) a description of types of data, including any personally identifiable information, precise location data, or personal directory data, that are collected for cross-app advertising purposes; (c) an explanation of how, and for what purpose, the data collected will be used or transferred to third parties; and (d) a conspicuous link to or description of how to access an opt-out mechanism. If notice cannot be provided in or around advertisements, then Developer should make arrangements to provide notice within the application or on the landing page of the advertisement.

6.3     Obligations under “California Consumer Privacy Act” (“CCPA”).

6.3.1     Where a party under this Agreement is sharing any personal information (“Discloser”), such Discloser agrees to comply with the requirements of the applicable data protection legislation, specifically CCPA, as such laws apply to it in its capacity as a Discloser. Where a party is obtaining any personal information (“Recipient”), such Recipient agrees to comply with the requirements of the applicable data protection legislation, specifically CCPA, as such laws apply to it in its capacity as a Recipient. Each party shall provide reasonable assistance to the other to enable them to facilitate Users exercising their rights under the applicable data protection legislation, to the extent applicable.

6.3.2     Each party shall be responsible for displaying and communicating a legally adequate privacy policy to the Users in accordance with all applicable data protection legislation(s), specifically CCPA. To the extent applicable to a party under CCPA, such privacy policy must set out a description of the categories of personal information the Discloser collects, the purposes for which it collects each category of Personal Information, the categories of third parties with whom the Discloser shares and/or sells personal information and adequate notice regarding rights of User with regard to their personal information and clearly provide for mechanisms of opt-out election(s).

6.3.3     Developer shall remain responsible for the third parties it may engage for processing of personal information whether such personal information is directly provided by Developer or routed through Audiomob acting on its behalf.

6.3.4     Any notification regarding an individual’s election pursuant to any privacy related rights available to the individual under applicable privacy and data protection legislation(s), that a Recipient is required to comply with (e.g. right to delete under CCPA), shall be notified to the Recipient by the Discloser within 48 hours of becoming aware of the same. Each Recipient shall comply with such requests as required under the applicable privacy and data protection legislation(s). The parties acknowledge that, the Recipient may retain the individual’s personal information solely for the purposes of billing disputes and fraud detection.

6.3.5     Each party acknowledges that, during the term of the Agreement and for the purpose thereof Recipient shall only process personal information for the following permitted purpose(s) in relation to distribution of advertisements:

(a) for attribution, verification and fraud detection via trackers and or verification partners;

(b) for internal reporting purposes and for reporting to Discloser;

(c) for targeted advertising and optimisation of campaigns.

6.3.6     Each party acknowledges that the processing concerns clicks and impressions data, IP Address, device identifiers, publisher details, campaign details and such other data sets as are agreed in writing between the parties from time to time.

6.4     Data Ownership and Use. Developer retains all right, title and interest in and to all data derived from the Developer Inventory or the publication of advertisements therein (“Developer Data”). Developer Data shall not include any data provided or made available by Audiomob, its Demand Partners or third-party service providers (“Audiomob Data”). Audiomob retains all right, title and interest in and to all Audiomob Data. Developer acknowledges that Audiomob and Demand Partners may drop cookies on its users in connection with the Audiomob Services. Developer hereby grants Audiomob and its Demand Partners a limited, revocable, royalty-free right to collect, use and share user data (including Developer Data) that is passed by Developer or collected by Audiomob or Demand Partner (a) in connection with the delivery and optimisation of the Audiomob Services during the Term, (b) to use such data for reporting purposes during and after the Term, and (c) in response to a legal demand or process during and after the Term.

7.     Confidentiality

Each party shall treat as proprietary and shall maintain in strict confidence all Confidential Information of the other party and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use such Confidential Information other than in furtherance of its obligations hereunder. “Confidential Information” shall mean any information of the disclosing party which is, or should reasonably be understood to be, confidential or proprietary to the disclosing party or its client, including, but not limited to, information disclosed between parties, either directly or indirectly, in writing, drawing, orally, or electronically: (i) related to technical know-how and technological innovations; (ii) related to operations, financial status, or sales and business plans and strategies; (iii) Intellectual Property (as defined below). Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can demonstrate with written documentation: (a) is known to the receiving party at the time of the disclosure; (b) has become publicly known through no wrongful act of the receiving party; (c) has rightfully been received from a third-party which the disclosing party has authorised to make such disclosures; or (d) was disclosed pursuant to a court order or similar governmental authority, provided, however, that the receiving party shall provide prompt notice of such order to the disclosing party to enable the disclosing party to act to prevent or restrict the ordered disclosure. The terms of this Agreement shall be deemed Confidential Information of Audiomob.

8.     Ownership

Each party acknowledges and agrees that: (a) the patents, trade secrets, know-how, copyrights, trademarks, logos, service marks, and moral, authorship and other proprietary rights to and in any service, product, technology, platform, source code, algorithms, invention or business method (“Intellectual Property”) of the other party shall remain the sole property of that party; (b) it shall at no time contest the validity of the other party’s Intellectual Property during the Term; (c) it shall not copy, modify, distribute, transfer, sell, reproduce, publish, perform, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain any source code from, prepare derivative works or otherwise use the Intellectual Property of the other party except as explicitly set forth in this Agreement; and (d) with respect to Developer, it shall not allow any third party or unauthorised user or computer system to access or use the Audiomob Services and it will take all reasonable steps to protect the Audiomob Services from unauthorised access or use. Developer acknowledges that the Audiomob Services and Intellectual Property of Audiomob (including all methods, concepts or techniques utilised therein and improvements or enhancements thereto, regardless of the party or parties responsible for such improvements and/or enhancements) and its related documentation are commercially valuable to Audiomob and constitute Audiomob’s proprietary information and are to be treated as Confidential Information of Audiomob. Except for right to receive or access the Audiomob Services selected by Developer, no right in or title to the Audiomob Services or Intellectual Property of Audiomob or any improvements thereto shall be deemed to have been vested in or transferred to Developer under the terms of the Agreement. All title to and ownership of the Audiomob Services, and the Intellectual Property rights therein or associated therewith, remain with Audiomob. Developer acknowledges that Audiomob shall exclusively own and may use any ideas, concepts, modifications, suggestions, improvements, enhancements and information arising out of Developer’s use of the Audiomob Services.

9.     Indemnification

Audiomob agrees to indemnify, defend and hold harmless Developer and its officers, directors, shareholders, corporate affiliates, agents, successors and assigns (“Developer Indemnified Parties”) from and against any third-party claim, suit or proceeding (“Claim”) against the Developer Indemnified Parties arising out of, related to, or alleging: (i) infringement of any copyright or trademark by the Audiomob Service; or (ii) any violation by Audiomob of applicable privacy laws. Developer agrees to indemnify, defend and hold harmless Audiomob and its officers, directors, shareholders, corporate affiliates, agents, successors and assigns (“Audiomob Indemnified Parties”) from and against any Claim against the Audiomob Indemnified Parties arising out of, related to, or alleging: (i) any violation by Developer of applicable privacy laws or Developer’s breach of Sections 6.1 (Privacy Policy) and 6.2 (Compliance with Privacy): (ii) any violation of any Developer Property of applicable laws or the inclusion of any Prohibited Content on any Developer Property; or (iii) infringement of any intellectual property right of a third-party, or misappropriation of any trade secret, by Developer or its clients. Notwithstanding anything to the contrary herein, the indemnification obligations of each party do not apply to the extent that a Claim arises out of the other party’s violation of this Agreement. In all cases in which a party seeks indemnification and/or defense hereunder, the indemnitee shall provide the indemnitor with prompt written notice of such Claim, reasonable cooperation and assistance to the indemnitor in connection with such Claims, and full control and authority to investigate, defend and settle such Claims; provided, however, that shall require prior approval by the indemnitee. If any of the Audiomob Services becomes, or in Audiomob’s opinion is likely to become, the subject of an infringement Claim under this Agreement, Audiomob may, at its sole option and expense, either (i) procure for Developer the right to continue using the applicable Audiomob Services, (ii) replace or modify the applicable Audiomob Services so that it becomes non-infringing, or (iii) if clauses (i) and (ii) are not commercially practicable, terminate this Agreement upon written notice to Developer. Notwithstanding the foregoing, Audiomob will have no obligation with respect to any infringement Claim based upon (i) any use of the Audiomob Services not in accordance with this Agreement or for purposes not intended by Audiomob, (ii) any use of the Audiomob Services in combination with other products, equipment, or software not supplied by Audiomob, or (iii) any modification of the Audiomob Services by any person other than Audiomob or its authorised agents or subcontractors. THIS SECTION STATES AUDIOMOB’S ENTIRE LIABILITY AND DEVELOPER’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS.

10.      LIMITATIONS ON LIABILITY

EXCEPT WITH RESPECT TO EITHER PARTY’S CONFIDENTIALITY, INDEMNIFICATION AND PAYMENT OBLIGATIONS, OR FRAUD AND WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AUDIOMOB FEE DUE UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF USE OR LOST DATA) OF THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL AUDIOMOB BE LIABLE FOR THE ACTS OR OMISSIONS OF ITS DEMAND PARTNERS, DEVELOPER’S DEMAND PARTNERS OR CLIENTS, DEVELOPER’S ACTIVITIES WITH RESPECT TO OTHER DEVELOPERS WHO USE THE AUDIOMOB SERVICES, OR ANY THIRD PARTY SERVICE PROVIDERS OF AUDIOMOB OR DEVELOPER. 

11.     Choice of Law & Venue

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.

12.     Miscellaneous

This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements or communications, relating to the subject matter hereof. This Agreement shall not be modified by except by a written agreement between the parties; provided, however, that Audiomob may amend or modify any of the terms and conditions in the Agreement upon at least thirty (30) days’ prior written notice to Developer. The failure of either party to enforce strict performance by the other party of any provision of the Agreement or to exercise any right hereunder or thereunder shall not be construed as a waiver of that party’s right. In the event that any provision of the Agreement is held invalid by a court with jurisdiction over the parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect. The parties are each independent contractors, and nothing in this Agreement is intended to create a partnership, joint venture or agency relationship between them. The rights and obligations of each party under the Agreement shall not be assigned without the prior written approval of the other party, which approval shall not be unreasonably withheld; provided, however, that either party may assign the Agreement without such consent to a corporate affiliate or in connection with a change of control or sale of substantially all of its assets, subject to the assigning party providing prior written notice of such assignment. Any attempted assignment without consent where consent is required shall be void. Subject to the foregoing, each party’s rights and obligations shall inure to the benefit of their respective successors and permitted assigns. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. Any notices given under this Agreement shall be deemed to be effectively given (i) when delivered personally, (ii) five (5) days after being placed in the mail, postage prepaid, certified, registered or similar mail status, or (iii) one (1) day after being sent via recognised express courier service, in each case, to the recipient’s address specified in this Agreement or such other address as specified by the parties in writing, with a copy to the attention of notices@Audiomob.com for notices sent to Audiomob.

 

Audiomob - EU Data Processing Schedule

This Data Protection Schedule ("Schedule") is entered into by and between Audiomob Ltd ("Audiomob") and the Developer (“Developer”), and forms part of all agreements between the parties relating to the subject matter of this Schedule (each an “Agreement”).

The terms in this Schedule shall only apply to the extent Audiomob collects or otherwise processes Data (including Personal Data) protected or otherwise regulated by EU Data Protection Law. Capitalised terms used in this Schedule shall have the meaning given to them in the main body of the Agreement unless otherwise defined in this Schedule.

IT IS AGREED:

1.     Definitions

"Controller" means the entity that determines the purposes and means of the processing of Personal Data.

“Data" has the meaning given to it in Section 2 of this Schedule.

"Demand Partners" means Audiomob's media buying clients, including but not limited to demand side platforms, ad exchanges, agencies, agency trading desks and ad networks.

"EEA" means for the purposes of this Schedule, the European Economic Area which will be deemed to include Switzerland and the United Kingdom.

"EU Data Protection Law" means (i) the EU General Data Protection Regulation (Regulation 2016/679); (ii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iii) any national laws made under or pursuant to (i) or (ii) (in each case, as superseded, amended or replaced).

"Personal Data" means any information relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable EU Data Protection Law.

"Privacy Requirements" means all applicable international, federal, national and state data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines that apply to the processing of Data (including Personal Data) that is protected by EU Data Protection Law, as applicable to Developer, Audiomob and its Demand Partners, including without limitation: (i) the rules, codes and guidelines of the European Interactive Digital Advertising Alliance (EDAA) and the Network Advertising Initiative (NAI); and (iii) EU Data Protection Law (in each case, as amended, superseded or replaced).

"Privacy Shield" means the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield Framework self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 of 12 July 2016 and by the Swiss Federal Council on January 11, 2017, respectively.

"Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision C(2016)4176 of July 12, 2016 (as may be amended, superseded or replaced).

"Developer Property" has the meaning given to it in the Agreement or, if not set forth in the Agreement, means the websites, mobile applications and/or other digital media properties owned or operated by the Developer and accessible through the Audiomob Services or via which Personal Data used in connection with the Audiomob Services is collected.

"Audiomob Services" has the meaning given to it in the Agreement or if not set forth in the Agreement, means the ad services provided by Audiomob to Developer in accordance with and as described in the Agreement.

"Tracking Technologies" means technologies used to store or gain access to data stored on a user's device, including (as applicable), cookies, mobile SDKs, browser cache, unique identifiers, web beacons, pixels and/or similar tracking technologies.

"Audiomob Privacy Policy" means the Audiomob privacy policy available on Audiomob's public facing website, the most current version of which is available at (https://www.Audiomob.com/privacy-policy as updated or amended from time to time).

"data subject", "processing" (and "process") shall have the meanings given to them in EU Data Protection Law.

2.     Scope of processing

The parties agree that unless otherwise agreed between the parties: (i) in connection with the Audiomob Services, Audiomob may collect or otherwise receive data (including Personal Data) about or related to end users of the Developer Properties as such data is more particularly described in the Audiomob Privacy Policy (collectively, "Data"); and (ii) Audiomob and its Demand Partners use Tracking Technologies in order to collect certain Data. The parties agree that Audiomob (and its Demand Partners) may process the Data for the purposes contemplated by the Agreement and for any other purposes described in the Audiomob Privacy Policy ("Permitted Purposes").

3.     Relationship of the parties

The parties acknowledge that to the extent the Data contains Personal Data, each party shall process such data as a separate and independent Controller and in Audiomob's case, only for the Permitted Purposes.

4.     Requesting Consent

Neither Audiomob nor its Demand Partners has a direct relationship with any data subject visiting the Developer Properties or viewing ads delivered to the Developer Properties through the Audiomob Services. Accordingly, in each case where consent is the lawful basis for processing Personal Data and/or required for use of Tracking Technologies pursuant to the Privacy Requirements, Developer agrees that it shall be responsible for obtaining all necessary consents from the relevant data subjects on behalf of Audiomob and applicable Demand Partners to lawfully permit Audiomob and all applicable Demand Partners to: (i) collect, process and share Data via the Audiomob Services for Permitted Purposes; and (ii) use Tracking Technologies in order to collect Data in connection with the performance of the Audiomob Services. Developer represents and warrants that it shall, at all times maintain and make operational on Developer Properties a mechanism for obtaining and recording such consent and that enables such consent to be withdrawn, in accordance with applicable Privacy Requirements. For users located in the EEA, Audiomob is registered with and supports the IAB Transparency and Consent Framework ("Industry Framework").

5.     Notice Requirements

Developer agrees that it is responsible for ensuring that all data subjects are appropriately notified about the data collection and use practices taking place on the Developer Properties through the Audiomob Services. Developer represents and warrants that it shall conspicuously post, maintain and abide by a publicly accessible privacy notice within all Developer Properties from which the Data is collected that satisfies the requirements of the Privacy Requirements and the Agreement (including this Schedule). Without prejudice to the generality of the foregoing, such notice shall at a minimum include the following information: (i) a statement that data may be collected for advertising purposes; (ii) a description of the type of Personal Data collected by Audiomob and its Demand Partners and the purposes of processing thereof, including for delivering ads across the Developer Properties over time; (iii) a description of the categories of individuals who will have access to the Personal Data; (iv) the identity of the Controller(s) of the Data; (v) a conspicuous link to or description of how to access a relevant choice mechanism; and/or (vi) any other information required to comply with the information and transparency requirements of applicable Privacy Requirements. The Audiomob Privacy Policy, its explanation of the Data Audiomob collect and how the Audiomob Services use it, may assist you in complying with your notification obligations under this Schedule.

6.     Prohibited Data Sharing

Developer shall not include or launch any Developer Property on any of the Audiomob Services if such Developer Property is directed at or likely to be accessed by any data subject that is deemed a child under applicable Privacy Requirements of the country in which the child resides, and Developer shall flag within the Audiomob Services or inform Audiomob in writing prior to launching any of such Developer Properties on any of the Audiomob Services.

7.     Non-cooperation

If Developer is unable to comply with its consent and notice obligations under the Agreement (including this Schedule) in respect of the Data, Developer shall promptly notify Audiomob.

8.     Co-operation and Data Subject Rights

The parties shall, on request, provide each other with all reasonable and timely assistance (at their own expense) and co-operation to enable the other party to comply with its obligations under the Privacy Requirements, including in order to enable the other party to respond to: (i) any request from a data subject to exercise any of its rights under EU Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) in relation to the Data; and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data ("Correspondence"). Each party shall promptly inform the other if it receives any Correspondence directly from a data subject in relation to the Data. Subject to obligations of confidentiality and polices on disclosure of information, where a party has a concern that the other party has not complied with this Schedule, the parties agree to exchange information to ascertain the cause of such non-compliance and take reasonable steps to remediate.

9.     International Transfers

To the extent that Audiomob processes (or causes to be processed) any Personal Data protected by EU Data Protection Law and/or originating from the EEA (including the United Kingdom) and/or Switzerland ("EEA Personal Data") in a country outside of the EEA and/or Switzerland (as applicable), it shall first take all such measures as are necessary to ensure an adequate level of protection for such EEA Personal Data in accordance with the requirements of EU Data Protection Law. Audiomob agrees to protect EEA Personal Data in accordance with the requirements of the Privacy Shield Principles.

10.     Security

Both parties shall implement appropriate technical and organisational measures to protect the copy of the Data in their possession or control (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data.

General: Except for the changes made by this Schedule, the Agreement remain unchanged and in full force and effect.If there is any conflict between any provision in this Schedule and any provision in the Agreement, this Schedule controls and takes precedence.With effect from the effective date, this Schedule is part of, and incorporated into the Agreement.To the extent there are any prior agreements with regard to the subject matter of this Schedule, this Schedule supersedes and replaces such prior agreements. This Schedule shall survive termination or expiry of the Agreement.Upon termination or expiry of the Agreement Audiomob may continue to process the Data provided that such processing complies with the requirements of this Schedule and the Privacy Requirements. This Schedule may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.