General Terms and Conditions “T&Cs” for all Ogury Publishers

This agreement outlines the terms and conditions by which “Ogury” (Ogury Ltd. is registered in UK under Company Number 08904951 with the registered office 24 Highbury Grove London, N5 2EA United Kingdom), shall supply its Services to you (“Publisher”).

Ogury reserves the right to modify the T&Cs at any time without prior notice. You should print a copy of this agreement for future reference. Please read these terms and conditions carefully before signing up to our Service via http://admin.ogury.co our “Site”. You should understand that by signing up to our Services and using our Site, you agree to be bound by these T&Cs contained in this agreement.

For valuable consideration, the parties agree as follows:

1. SERVICE DESCRIPTION & LICENCE GRANT


1.1. The Ogury Service benefits the Publisher (application publishers/owners/developers/suppliers), by providing the Publisher with the opportunity for the Publisher to integrate the Ogury Software Development Kit (the "SDK"). The Ogury SDK will enable Ogury to provide targeted advertisements on behalf of advertisers to the end users of the Publisher’s Application(s) (the “Service”). Ogury will pay the Publisher for this privilege in accordance with this agreement.

1.2. Subject to these T&Cs and during the term of this agreement, Ogury hereby:

  • 1.2.1. grants Publisher a revocable, limited, personal, non-sublicensable, worldwide, non-exclusive, non-transferable, right to:
    • 1.2.1.1. use, copy and distribute the Ogury SDK solely in conjunction with the distribution of your own Applications; and
    • 1.2.1.2. use the relevant and necessary components of the SDK solely to incorporate the SDK into the Publisher’s Applications;
  • 1.2.2. make available and allow Publisher access to its Service and Platform.

1.3. To provide the Service, you authorize Ogury to provide advertisements to end user mobile devices through your Application. For clarity, You acknowledge and agree, that as between you and Ogury, Ogury has sole authority and discretion to: (i) identify, select and manage relationships with advertisers; and (ii) negotiate and conclude agreements with advertisers and ad networks for the delivery of ads to end user mobile devices in connection with the Service. Publisher shall not interfere with such Ogury Service in any way.

1.4. Participation in the Ogury Service is subject to Ogury’s prior approval and Publisher’s continued compliance with the T&Cs. Ogury reserves the right to refuse participation to or block access to any applicant or participant at any time in Ogury’s sole discretion. Publisher’s continued use of the Ogury Service shall be deemed acceptance of these T&Cs.

1.5. Feedback. You are not required to provide Feedback to us, but in the event you do so, Ogury will own the Feedback. All comments, feedback or materials submitted by Publisher to Ogury about the SDK or the Service, including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by Ogury on a non-confidential and unrestricted basis.

1.6. Upgrades. If Ogury makes available to Publisher any modifications to the SDK, including any upgrades, patches, enhancements, custom builds, or fixes, then, with respect to Publisher, those modifications shall immediately become part of the SDK and subject to this agreement, and Publisher shall promptly implement the same. Ogury has no obligation under this agreement to provide any such modifications, or any other support (other than as set forth in clause 2). Any obligation of Ogury to Publisher arising from Publisher’s use of the SDK is limited to the then-current version of the SDK. Ogury may, in its sole discretion, make support services available on a paid basis under a separate agreement.

2. IMPLEMENTATION AND SUPPORT

2.1. Publisher agrees, at its own cost and expense, to implement the Ogury SDK in accordance with the technical specifications provided by Ogury. Publisher grants Ogury the right to collect, access and use end user data to improve its targeting capabilities and serve interest based recommendations to end users. Ogury shall provide commercially reasonable support to Publisher in connection with initial implementation of the Ogury SDK at no charge.

3. OWNERSHIP

3.1. Publisher Rights; As between Publisher and Ogury, Publisher retains all right, title and interest in and to the Publisher Applications, including all intellectual property rights related to each of the foregoing. All rights not expressly granted by Publisher to Ogury herein are hereby reserved by Publisher.

3.2. Ogury Rights; As between Ogury and Publisher, Ogury retains all right, title and interest in and to the Ogury Platform, Service, SDK and any materials created, developed collected or provided by Ogury in connection with this agreement, including all intellectual property rights related to each of the foregoing. All rights not expressly granted by Ogury to Publisher herein are hereby reserved by Ogury

3.3. Device Data. All end user data collected by Ogury through its SDK during the term of this agreement remain the full property of Ogury during and after the termination of this agreement, in compliance with applicable privacy rules.

4. PUBLISHER WARRANTIES

4.1. Publisher represents and warrants that: (a) all of the information Publisher has provided and shall in the future provide to Ogury is accurate and current; (b) it has all necessary and legal rights, powers, and authority to accept and be bound by these T&Cs and to perform the acts required of Publisher hereunder; (c) it is in compliance with all applicable laws, including but not limited to federal, state, and local laws, rules, and regulations; (d) the Application(s) do not display, reference, link to, or endorse prohibited content (as reasonably determined by Ogury) and illegal content; and (e) it will implement Ogury’s SDK for placement and use of Ogury’s Service in accordance with the documentation.

4.2. Ogury represents and warrants that: (a) all of the information Ogury has provided and shall in the future provide to Publisher is accurate and current (b) it has all necessary and legal rights, powers, and authority to accept and be bound by these T&Cs and to perform the acts required of Publisher hereunder; (c) it is in compliance with all applicable laws; and (d) the Services do not display, reference, link to, or endorse prohibited content (as reasonably determined by Ogury) and illegal content.

5. PROHIBITED ACTIONS

5.1. Other than as expressly set forth in this agreement, Publisher shall not, directly or indirectly, nor shall Publisher authorize or otherwise permit any third party, to:

  • 5.1.1. reproduce, lease, transfer, license, resell, assign, distribute or otherwise commercially exploit or make available to any third party the Ogury Service derived from the Ogury SDK;
  • 5.1.2. distribute any source code provided as part of the Ogury SDK;
  • 5.1.3. modify, alter or create any derivative works of the Ogury SDK;
  • 5.1.4. reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the Ogury SDK except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
  • 5.1.5. remove, alter or obscure any proprietary rights or notice on the Ogury SDK;
  • 5.1.6. use the Ogury SDK or the Service other than for its intended purpose;
  • 5.1.7. use the Ogury SDK to create (or facilitate the creation of) any product or service that is in competition with the Ogury SDK or Service; and
  • 5.1.8. include the Ogury SDK connection with any mobile properties or other online services or applications other than the Publisher Applications, unless agreed in writing by Ogury;

5.2. Publisher undertakes not to create unlawful, defamatory, threatening, offensive or otherwise objectionable content regarding Ogury, in particular, but not exclusively, on the internet, in the press or in any public media. In case of proved defamation, Ogury may sue Publisher for defamation.

5.3. Ogury may suspend Publisher’s use of the Ogury Service and/or terminate the Publisher’s participation in Ogury’s Service immediately should Publisher violate the foregoing provisions of this Section 5.

6. PAYMENTS AND INVOICING

6.1. Subject to the terms and conditions of this agreement, Ogury shall pay to the Publisher amounts calculated based on the provision of the Ogury Service. The volume of impressions or clicks that is taken into account to calculate the Publisher amount shall not exceed the volume of impressions or clicks that is invoiced to advertisers and/or media agencies. The Publisher acknowledges that all payments hereunder shall be based on the Ogury algorithm displaying Publisher reports through the Ogury Site following the end of each month. For the avoidance of doubt, all payments hereunder are based on validated amounts from the Publisher Application that are actually fulfilled via the Ogury Service. Calls for invoices are made available on the Ogury dashboard dedicated to Publishers. Prior to any consultation or validation of a call for invoice, Publisher must complete in the “My Account” section on the dashboard all the mandatory information.

6.2. Payment Terms. Ogury agrees to pay the Publisher amounts within 30 days end of month after the last day of the month in which the Publisher has validated his call for invoice concerning the applicable net revenue, provided that the net revenue earned by the Publisher in that month is above $50. Date of invoice is the date when Publisher validated its invoice on the Ogury’s dashboard. All unpaid earnings will rollover to the next pay period. Publisher earnings are quoted exclusive of any taxes but the payment made by Ogury to the Publisher shall be inclusive of any and all taxes, including VAT when applicable, dependent upon the location and VAT status that the Publisher has indicated. The Publisher shall be responsible for the payment of all applicable taxes and the remuneration paid here-above shall not be adjusted upward to account for such taxes. The Publisher acknowledges and agrees that any validated invoice cannot be challenged after more than one month from the validation date. If Ogury fails to pay any invoice that is due after receiving notice that payment is overdue from the Publisher, interest of 2% above the base rate of the Bank of England shall be payable on any such overdue balance.

6.3. Bank Charges. Ogury can not be held responsible for any bank charges received by the Publisher as a result of receiving funds into international banking institutions. Ogury takes all steps possible to avoid any charges for the Publisher when making payments, however it is the responsibility of the Publisher to pay any charges out of Ogury’s control. Publishers are asked to define their preferred payment method on their invoice and the Publisher is therefore responsible for any charges on their side from this point thereon. Ogury will deduct a banking charge of 3% from all payments of revenue up to and including $650 per month. Publisher revenue of greater than $650 per month will have a $20 banking charge deducted as standard. Ogury will never deduct more than $20 of revenue per publisher per month for bank charges.

6.4. Currencies. All publisher earnings are calculated by default in USD. The Publisher selects a currency in which to receive a payment when they complete their information in the Ogury Platform. If the Publisher elects to receive payment in USD, EUR, or GBP then no currency exchange fees will apply to the amount remitted by Ogury. The exchange rate that will be used for EUR and GBP is the average monthly exchange rate of the relevant month, and the invoice will be displayed in this chosen currency. If the Publisher elects to be paid in a different currency other than USD, EUR or GBP, the invoice will be shown in the default currency USD, but the payment will be made in the selected currency by our payment partner in accordance with the then current exchange rate applied by our payment partner. Publisher acknowledges that it takes the risk of this exchange rate, the conversion fee and Publisher’s own associated bank charges if applicable.

6.5. Ogury will not be obligated to pay for any fraudulent actions generated by any person, bot, automated program or other device or mechanism in connection with any advertisements, as reasonably determined by Ogury in its sole discretion. You agree that if Ogury reasonably determines that such fraudulent actions have occurred, Ogury may deduct any amounts as are determined by Ogury in its sole discretion from amounts otherwise payable to you.

7. TERMINATION

7.1. This agreement commences on the date when you sign up to our Services via our Site and shall continue until terminated in accordance with this agreement. Either party may immediately terminate these T&Cs for material breach by giving written notice. Either party may terminate this agreement at any time for any reason or for no reason upon at least thirty (30) days’ prior written notice to the other party. Upon any termination of this agreement, Publisher will cease distribution of any Application that incorporates the Ogury SDK and, upon request, certify the same in writing to Ogury within five (5) business days of such termination. Any provision of this agreement which by its nature extends beyond its termination shall remain in effect until fulfilled and apply to any successors and authorized assigns.

8. CONFIDENTIALITY

8.1. Each party agrees not to disclose Confidential Information (defined below) without the other party’s prior written consent and to use at least the same degree of care to prevent unauthorized use and disclosure of Confidential Information as it uses with respect to its own confidential information of like importance (but in no event less than a reasonable degree of care). “Confidential Information” includes (i) business and technical information related to the discloser’s operations, including but not limited to: products, procurement, project plans, requirements, business terms, people, processes, information systems, facilities, logistics, finances, sales, and; marketing(ii) that given the circumstances surrounding its disclosure or the nature of the information a reasonable person would conclude to be confidential. Confidential Information does not include information that: a) that at the time of disclosure is published or otherwise in the public domain; (b) that after disclosure becomes part of the public domain other than through a breach of confidence or confidentiality; (c) that was known to the recipient prior to receipt from discloser, provided such prior knowledge can be substantiated by documentary evidence antedating the disclosure by discloser; (d) that is disclosed to recipient by a third party (other than employees or agents of either party) that in making such information available to recipient, is not in violation of any obligation of confidentiality to discloser; or (e) that is independently developed by recipient, provided such independent development can be substantiated by documentary evidence antedating the disclosure by discloser.

9. ACCOUNT IDENTIFIERS

9.1. When setting up the Publisher’s online Publisher account, the Publisher will choose unique and personal account identifiers, including a login and password. The login (i) identifies the account and (ii) allows him to connect to the Publisher access area. The login cannot be changed and identifies the Publisher’s account uniquely and permanently. The password is specific to the account and the Publisher is not authorized to sell, transmit, sublicense or disclose it to third parties. The Publisher is responsible for the Publisher’s password and undertakes to keep it confidential. The Publisher is fully responsible for the activity on the Publisher’s account. Passwords can be modified by Ogury in the case of loss or theft of passwords, or if the Publisher suspects that a third party might be able to use them. The Publisher is responsible for the accuracy of the information associated with the account (especially the contact details and bank details). Ogury cannot be held responsible for any unauthorized access to the Publisher’s account, or for any modification, deletion or impairment affecting all or part of the information the Publisher will give Ogury in the context of using the Publisher’s access account. Breach of this clause by Publisher shall be deemed to be a material breach of this agreement.

10. DISCLAIMER

10.1. To the fullest extent permitted by law, neither Ogury nor the Publisher, except as expressly set forth in this agreement makes any warranties, express or implied, with respect to the subject matter of this agreement and each party expressly disclaims the implied warranties of merchantability, noninfringement, fitness for a particular purpose. Without limiting the generality of the foregoing, the Ogury SDK, Service and Platform are provided “as is” and without warranties of any kind. Ogury and its supplies, licensors and partners do not warrant that the functions contained in the Ogury SDK, Service or Platform will be correct, uninterrupted or error-free, that defects will be corrected, or that the Ogury Service, Platform or the servers that make it available are free of viruses or other harmful components. Except as expressly set forth herein, Ogury makes no guarantee regarding the number, quality, or content resulting from the Ogury Service, or Platform or the timing of delivery. Ogury reserves that right at all times, at its discretion, and without notice, to remove or refuse to distribute any item pertaining to the Ogury SDK, Service or Platform. Ogury does not warrant the results of the use of the Ogury SDK, Service or Platform. Publisher acknowledges that Ogury may modify or suspend the Ogury SDK, Service or Platform at any time in its sole discretion and without notice.

10.2. Ogury assumes no responsibility of liability whatsoever for the content of the ads and Publisher understands that Ogury does not produce ad content but rather facilitates interactions between publishers and advertisers by providing targeted advertisements on behalf of advertisers to the end users of the Publisher’s Application.

11. LIMITATION OF LIABILITY

11.1. Ogury shall not be liable for any (a) revenue, business, or profits; or (b) any other indirect, punitive, special, exemplary, incidental or consequential damages or losses.

11.2. To the maximum extent permitted by law, Ogury’s total aggregate liability under this agreement for any claim or related group of claims, for whatever cause, whether in an action, in contract or in tort or otherwise, will be limited to general money damages and shall not exceed an amount equal to the aggregate fees actually paid during the immediate preceding 12 months.

11.3. Sole and exclusive remedy. If Publisher is dissatisfied with the Services, or any of the terms of the Services, Publisher’s sole and exclusive remedy is to discontinue using the Services. This remedy is intended to be the sole and exclusive remedy of the Publisher under this agreement.

11.4. The exclusions and limitations apply to all causes of action (in each case whether direct or indirect and howsoever arising), whether arising from any breach of contract, tort (including negligence) or any other legal theory, even if such loss was reasonably foreseeable or if one party had advised the other of the possibility of such loss, save that nothing in this agreement shall be construed so as to limit or exclude the liability of either party arising for (i) death or personal injury caused by its negligence; or (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded or limited by law.

11.5. The parties acknowledge and agree that the allocation of risk in this agreement is reflected in the level of fees payable under this agreement.

12. INDEMNIFICATION

12.1. To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Ogury, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees) arising out of or accruing from (a) your use of the Ogury Service and Ogury SDK, Service and Platform (b) any Application you develop participating in the Ogury Service and containing the Ogury SDK, that infringes any copyright, trademark, trade secret, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy, and (c) any breach or default by you of this agreement; or (d) any allegation that Publisher’s Application or privacy policy violates applicable law.

13. PRIVACY

13.1. Ogury is committed to protecting a User's personal information. Ogury makes use of the Google Android Advertising ID for Android devices (AAID), which is a User-specific, unique, resettable ID for advertising, provided by Google Play services. It is an identifier for advertising purposes and enables Users to reset their identifier or opt out of interest-based ads within Google Play apps.

13.2. Publisher shall in relation to its Applications, publicly post, maintain, and comply with an accurate privacy policy consistent with applicable data privacy laws and industry practice, including embedding within its privacy policy a clear link to Ogury’s privacy policy available at http://www.ogury.co/privacy.html.

13.3. Publisher shall not remove, obscure, interfere with, or otherwise hinder Ogury’s consent notice in any manner. Ogury provides its own consent notice for end users embedded in the SDK, in the form of a just-in-time notice, icon, or otherwise, about Ogury’s data collection, use or disclosure, opt-in notice or containing other information.

14. MISCELLANEOUS

14.1. Entire agreement; Amendment. This agreement is the complete and exclusive agreement of the parties regarding the subject matter hereunder. Ogury reserves the right to change or modify any of the terms and conditions contained in these T&Cs at any time and in its sole discretion. When these changes are made, Ogury will make a new version of the T&Cs available on the Ogury Site. Your continued use of the Ogury Service after any such changes shall constitute your consent to such changes.

14.2. Notices. All notices, consents and approvals under the agreement must be delivered in writing by e-mail, by courier, by overnight mail service or by certified mail (postage prepaid and return receipt requested) to the other party.

14.3. Force Majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations this agreement that is caused by events outside our reasonable control (Force Majeure Event). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: acts of God, inclement weather, flood, lightning, fire, industrial action, any act or omission of government or any other competent authority, war, military operations, riot or the act or omission for whom Ogury is not responsible. Our performance under this agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this agreement may be performed despite the Force Majeure Event.

14.4. Waiver. A waiver of any provision of these T&Cs will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.

14.5. Severability. If any provision, or portion thereof, of these T&Cs is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. This agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.

14.6. Publicity and Marketing. Publisher grants Ogury a worldwide non-exclusive, non-transferable, royalty-free license to use Publisher's company name, service, and/or logos ("Trademarks") for use by Ogury on Ogury's web site, promotional materials, and marketing collateral in conjunction with the Ogury Service. This license is granted for the duration of the T&Cs. Ogury shall make no other use of the Trademarks. Ogury acknowledges and agrees that the rights granted to Ogury by this license do not constitute and should not be construed to be an assignment of any or all of Publisher's rights with respect to the Trademarks.

14.7. COPPA Compliance. Ogury is committed to COPPA Compliancy. For Apps that require COPPA Compliancy, end users are asked to opt-in to the Ogury Service if they are over 13. If an end user is under 13, they will not be targeted and their data will not be knowingly collected for use by the Ogury Service.

14.8. Law and Jurisdiction. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.

14.9. Assignment. This agreement may not be assigned by either party without the prior written approval of the other but may be assigned by either party without the other’s consent to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.

14.10. Third party rights. This agreement does not confer any rights on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999, or otherwise.

14.11. Relationship of the parties. No joint venture, partnership, employment, or agency relationship exists between the Publisher and Ogury as a result of this agreement or use of the Service.

Definitions

“Application” means the Publisher application(s) selected by Publisher in connection with the Ogury Service, including any successor titles, updates and title changes;

“Feedback” has the meaning given to it in clause 1.5;

“Confidential Information” has the meaning given to it in clause 8.1;

“Platform or Ogury Platform” means the Ogury Services, together with the Publisher-facing tools and interface on the Ogury websites, which collectively allow the Publisher to use and configure the Ogury Service;

“SDK” means the documentation, software (source or object code), applications, sample code, tools, libraries, APIs, data, files, plug-ins, and other materials, including updates or upgrades, made available by Ogury to Publisher;

“Services or Ogury Service” has the meaning given to it in clause 1.1;

“Site” means the Ogury site available at http://admin.ogury.co; and

“Trademarks” has the meaning given to it in clause 14.6

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