PUBLISHER TERMS & CONDITIONS
Please read the following and make sure you fully understand these terms and
conditions. By clicking on ‘accept terms’ and registering to our service you are
accepting these terms and are bound to them. If you do not agree to all or parts
of these terms you may choose not to use or access the Mobibrick services.
Whereas, the parties wish one or more of Mobibrick’s software development kits to
be integrated into Publisher’s application and that Publisher shall publish the
integrated application to end users to allow such end users to view ads.
Whereas, the parties wish that Mobibrick shall collect money from Mobibrick’s ads’
suppliers , shall pay a certain fee to Publisher as
provided herein, and shall retain the rest;
Now therefore, it is hereby agreed as follows:
Developer / Publisher – An app Publisher registered
to the Services pursuant to the terms of this Agreement.
Mobibrick – Mobibrick . and any of its assignees and successors.
Services – Facilitating End Users to view ads through their mobile devices.
Website – Mobibrick’s website at www.Mobibrick.com.
End User – A person or entity that has downloaded an Integrated Application from
an application store.
Application – an application developed by Publisher.
Integrated Application – an Application in which the Mobibrick SDK is embedded or
in which Mobibrick displays ads.
SDK/Mobibrick SDK - a software development kit provided by Mobibrick toPublisher pursuant
to the terms of this Agreement, as may be updated by Mobibrick from time to time
in its sole discretion.
As a condition to using the Services, Publisher shall
be required to register with Mobibrick and enter Publisher's
email address. During such registration process, Publisher agrees
to provide true, current and complete information and to promptly update the
information. IfPublisher provides
information that is, or Mobibrick believes is, untrue or inaccurate, Mobibrick may
suspend or terminate Publisher's
During the process of subscribing to the Services, Publisher will
designate personal and exclusive user name and password which are essential for Publisher’s
access to Publisher ’s account. Publisher shall keep the user name
and password in strict confidence and shall not reveal them to any third party. Publisher acknowledges that Publisher shall be responsible for
all activities that occur under Publisher's user name and password,
whether or not authorized by Publisher. Mobibrick will not be
liable for any loss or damage arising from Publisher's failure to comply with
this provision, and shall not be liable for actions taken by others who access Publisher’s account.
In connection with the performance of the Services, Mobibrick will provide Publisher with
an SDK, with a unique Publisher ID to
serve as an identifier for revenue created. OncePublisher implements
the Mobibrick SDK in its Application, and once the End User downloads the
Integrated Application to its device ads will be presented within the
application. In respect of mobile devices, Publisher acknowledges
that the Mobibrick SDK may require additional permissions that Publisher’s
Application may not originally require.
It is the Publisher’s
responsibility to publish the Integrated Application on one or more application
stores. Each application store besides Google Play or iTunes requires Mobibrick’s
It is the Publisher’s
responsibility to comply with the terms and conditions applicable to each
application store where the Integrated Application is published. Mobibrick does
not warrant or guarantee that use of the Mobibrick SDK as part of the Integrated
Application will comply with the requirements of any application store’s terms
and conditions, and Mobibrick shall have no liability to Publisher for
any costs, liabilities, or damages urred toPublisher as a
result of such noncompliance.
Mobibrick reserves the right to reject/remove from its Service any type of
Application in Mobibrick’s sole discretion. To prevent rejection from the
Service, please refer to Mobibrick’s Application Policy.
5. Payment terms
Subject to Publisher’s
compliance with its obligations hereunder and as a sole and absolute
consideration Mobibrick will pay Publisher based
on a revenue share model.Publisher shall
bear any and all taxes in connection with any payments made toPublisher pursuant
to this Agreement. In the event that pursuant to any law or regulation, tax is
required to be withheld at source from any payment made to Publisher,
Mobibrick shall withhold said tax at the rate set forth in the certificate issued
by the appropriate taxing authority and provided to Mobibrick by Publisher, or in
the absence of such certificate, at the rate determined by said law or
Earnings reports are presented in the Publisher’s
portal. Based on such report, Mobibrick shall remit payment to Publisher within
thirty (30) days of the end of the applicable calendar month. Payment shall be
made via payment options offered in the portal. Mobibrick reserve the right to
update the payment alternatives at any time.
Payments will be based on actual performance of non-entivized ads. Mobibrick
reserves the right to require Publisher to
present a valid and eligible live applications which generated reported
downloads and impressions and complies with Mobibrick’s app policy.
6. Reporting measures
Mobibrick’s books and records shall constitute final evidence regarding downloads
and impressions of the Integrated Applications counted by Mobibrick for the
purpose of calculating the consideration due to Publisher hereunder.
Mobibrick Disclaimer of Warranties - Publisher agrees
that the Services, the Mobibrick SDK and all content on the Website are provided
“As Is„ and without warranty of any kind, either express or implied, luding,
without limitation, implied warranties of merchantability, fitness for a
particular purpose or non-infringement. Mobibrick does not warrant the results of
use of the Services, , and Publisher assumes
all risk and responsibility with respect thereto.
- Publisher represents
and warrants to Mobibrick that: (i) it is a business and not a consumer; (ii) Publisher has
the right, power and authority to enter into this Agreement and perform Publisher's
obligations under this Agreement, and ifPublisher is an
individual (i.e., not a corporation), Publisher is
over the age of eighteen (18); (iii)Publisher is the
owner of the Application designated in connection with the use of Services or is
legally authorized to act on behalf of the owner of such Application for the
purposes of this Agreement; (iv) Publisher's
Application and any material displayed therein comply with all applicable laws,
statutes, ordinances and regulations, do not breach and have not breached any
duty toward or rights of any person or entity luding, without limitation,
rights of intellectual property, publicity or privacy, or rights or duties under
consumer protection, product liability, tort, or contract theories, and are not
hate-related in content.
8. Limitation of
IN NO EVENT SHALL Mobibrick BE LIABLE TO PUBLISHER OR ANY OTHER PERSON FOR ANY
DAMAGES RELATING TO INFRINGEMENT OR FOR INDIRECT, IDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, LUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH
LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF
Mobibrick HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Mobibrick’S ENTIRE
AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR
OTHERWISE), SHALL BE LIMITED TO THE NET REVENUES ACTUALLY RECEIVED BY Mobibrick
IN CONNECTION WITH THE INTEGRATED APPLICATION DURING THE SIX (6) MONTH PERIOD
PRIOR TO THE DATE OF THE RELEVANT CLAIM. Mobibrick SHALL NOT BE LIABLE TOWARDS
PUBLISHER IN THE EVENT THAT ANY APPLICATION STORE SHALL NOT ALLOW THE DOWNLOAD
OF THE Mobibrick SDK.
to indemnify, hold harmless and defend Mobibrick and its shareholders,
subsidiaries, directors, officers, employees and agents from and against any
action, claim, demand, dispute, or liability, luding reasonable attorney’s
fees and costs, arising from or relating to: (i) Publisher's
breach of this Agreement luding any misrepresentation ofPublisher, (ii)
any negligence or willful misconduct of Publisher; (iii)
any allegation that the Application infringes a third party’s patent, copyright,
trademark or other proprietary or intellectual property right, or
misappropriates a third party’s trade secrets due to an act or omission of Publisher; or
(iv) any action or conduct of Mobibrick undertaken pursuant to this Agreement
resulting in a third party claim against Mobibrick and due to an act or omission
of Publisher. Publisher agrees
that Mobibrick shall have the right to participate in the defense of any such
claim through counsel of its own choosing.
This agreement may be terminated by any party, with or without a reason, by
providing the other party with a 24 hours prior written notice. All provisions
of this Agreement which by their nature should survive termination shall survive
termination, luding, without limitation, warranties, disclaimers, limitations
of liability, confidentiality and intellection property. Mobibrick reserves the
right to terminate this agreement and suspend Service to any Publisher immediately
in the case where Publisher breached
Each party agrees that it may be provided by the other party with information
that is confidential and proprietary to that other party or a third- party,
which (i) is in written, recorded, graphical or other tangible form and marked
“Proprietary„, “Confidential„ or with a similar legend denoting the disclosing
party’s proprietary interests therein, or (ii) is in oral form and identified by
the disclosing party as proprietary or confidential at the time of oral
disclosure, with subsequent confirmation in writing within 30 days of such
disclosure, or (iii) is of apparent proprietary or confidential nature
(“Confidential Information„). Without derogating from the above, Mobibrick’s
rates are considered confidential. Each party may use Confidential Information
received from the other party only in connection with and to further the
purposes of this Agreement. Confidential Information shall not be commingled
with information or materials of others and any copies shall be strictly
controlled. The receiving party undertakes that it shall treat and maintain the
Confidential Information as confidential, and hold all such Confidential
Information in trust and confidence for the disclosing party, utilizing at least
the same degree of care the receiving party uses to protect its own confidential
information, but not less than reasonable degree of care. The receiving party
shall not disclose any Confidential Information disclosed by the disclosing
party to any third party or to officers, directors, employees or contractors of
the receiving party, except to officers, directors, employees or contractors who
have to be so informed on a “need-to-know„ basis in order to carry out the
purpose of this Agreement and, which are bound by confidentiality obligations
not less rigorous than those contained herein. Confidential Information shall
not lude information which the receiving party can show through written
evidence: (i) that is or becomes part of the public domain through no act or
omission of the receiving party; (ii) that is lawfully received by the receiving
party from a third-party without restriction on use or disclosure and without
breach of this Agreement or any other agreement without knowledge by the
receiving party of any breach of fiduciary duty, or (iii) that the receiving
party had in its possession prior to the date of this Agreement; or (iv) that is
independently developed by the receiving party without use of, or reference to,
the Confidential Information of the disclosing party. Upon termination of this
Agreement, or upon written request by Mobibrick, Publisher must
destroy or return to Mobibrick any Confidential Information provided by Mobibrick
under this Agreement. This section shall survive termination of this agreement
for any reason.
The SDK is and shall remain the sole proprietary of Mobibrick and thePublisher acknowledges
it has no right to use the SDK or modify it in any way unless explicitly
provided otherwise herein. All materials displayed or performed on or accessible
through the Website or Services luding, but not limited to the Mobibrick SDK,
are protected by copyright. Publisher shall
abide by all copyright notices, information, and restrictions contained in any
content accessed in connection with the Services.Publisher shall
not decompile, disassemble, decrypt, extract or otherwise reverse engineer or
attempt to reconstruct or discover any source code of, or any underlying ideas
in, the Mobibrick SDK.
[If Publisher has
comments on the Services or the SDK or ideas on how to improve them, he may
contact Mobibrick. By doing so, Publisher also
grants Mobibrick a perpetual, royalty-free, irrevocable, transferable license,
with right of sublicense, to use and orporatePublisher’s
ideas or comments into the Services or the SDK (or third party software,
content, or services), and to otherwise exploit Publisher’s
ideas and comments, in each case without payment of any compensation].
Mobibrick his approval to use Publisher’s
Application name, and Publisher's
Application icons and images for use in Mobibrick’s marketing and display on
Except as expressly set forth herein, this Agreement does not grant either party
any rights, implied or otherwise, to the other’s content or any of the other’s
13. Further Terms
comply with the respective application store:
Google Play Business and Program Policies and Google ad policyHTTPS://DEVELOPER.ANDROID.COM/DISTRIBUTE/GOOGLEPLAY/POLICIES/ADS.HTML
App Store Review Policy
Independent Contractors: The parties and their respective personnel are and
shall be independent contractors and neither party by virtue of this Agreement
shall have any right, power or authority to act or create any obligation,
express or implied, on behalf of the other party.
Assignment: Publisher may
not assign any of its rights, duties or obligations under this Agreement to any
person or entity, in whole or in part, and any attempt to do so shall be deemed
void and/or a material breach of this Agreement. Mobibrick may assign this
agreement without Publisher’s
Waiver: No waiver of any provision hereof or of any right or remedy hereunder
shall be effective unless in writing and signed by the party against whom such
waiver is sought to be enforced. No delay in exercising, no course of dealing
with respect to, or no partial exercise of any right or remedy hereunder shall
constitute a waiver of any other right or remedy, or future exercise thereof.
Severability: If any provision of this Agreement is determined to be invalid
under any applicable statute or rule of law, it is to that extent to be deemed
omitted, and the balance of the Agreement shall remain enforceable.
Notice: All notices shall be in writing and shall be deemed to be delivered when
received by e-mail. All notices to Mobibrick shall be sent to info@Mobibrick.com,
and all notices toPublisher shall
be sent to the email address supplier by Publisher at
registration, or to such other address as either party may, from time to time,
designate by notice to the other party.
Amendment: Mobibrick may amend this Agreement at any time. In a case where a
change to this agreement is made, Mobibrick will post a notice on its Website, or
send a notice toPublisher via
to review this Agreement prior to each use and by continuing use or continued
use of the Services, agrees to any modifications made to this Agreement by
Law: This Agreement shall be governed in all respects by the laws of the State
of New York without regard to its conflict of law’s provisions. Exclusive venue
for any dispute shall be the State of New York. Nothing in this Section shall be
deemed to limit the parties’ right to seek interim injunction relief in any
court of law.
Force Majeure: If the performance of any part of this Agreement by either party
is prevented, hindered, delayed or otherwise made impracticable by reason of any
flood, riot, fire, judicial or governmental action, labor disputes, act of God
or any other causes beyond the control of either party, that party shall be
excused from such to the extent that it is prevented, hindered or delayed by
Entire Agreement: This Agreement constitutes the complete and exclusive
statement of all mutual understandings between the parties with respect to the
subject matter hereof, superseding all prior or contemporaneous proposals,
communications and understandings, oral or written. In case of any discrepancy
between this Agreement and the Website or Website links, this Agreement shall
control the Website links and Website and the Website links shall control the
The Publisher must
not edit, resize, modify, filter, obscure, hide, make transparent or reorder any
advertising (luding their associated links) supplied by the Mobibrick Service.
ADVERTISER TERMS & CONDITIONS
The parties to these Terms & Conditions (the “Agreement”) are (i) Mobibrick .
(“Mobibrick”); and (ii) the advertiser participating in the Mobibrick advertising
network (“Advertiser”). BY CLICKING THE “ACCEPT” BUTTON BELOW, ADVERTISER
INDICATES ITS ACKNOWLEDGMENT THAT IT HAS READ THIS AGREEMENT AND AGREES TO BE
BOUND BY AND COMPLY WITH ITS TERMS.
For purposes of this Agreement, the following terms shall have the following
1.1 “Advertising Cost” shall mean CPC multiplied by the number of clicks on the
Creative displayed at the Advertising Network.
1.2 “Advertising Network” shall mean Mobibrick’s advertising network which
ludes access points owned and managed by Mobibrick and/or Mobibrick’s partners,
all as may be modified, replaced, terminated or added by Mobibrick from time to
time in Mobibrick’s sole discretion.
1.3 “Budget” shall mean the budget for the Campaign pre-paid by Advertiser via
the Mobibrick Portal in accordance with this Agreement.
1.4 “Campaign” as defined in Section 2 below.
1.5 “CampaignTerm” shall mean the number of days designated by Advertiser in
advance at the Mobibrick Portal during which the services under this Agreement
shall be provided
1.6 “Creative” shall mean the banner, text ad or any other graphic item the
associated links, and all other necessary creative for the Campaign.
1.7 “Confidential Information” shall mean all information and materials
disclosed by either party to the other during the term of this Agreement that is
either marked confidential or by the nature of the information or the
circumstances surrounding its disclosure would reasonably be considered
confidential. Confidential Information does not lude information that (a) is
already known to the receiving party at the time it is disclosed and has not
been obtained wrongfully, (b) becomes known publicly without fault of the
receiving party, (c) is independently developed by the receiving party, (d) is
approved for release in writing by the disclosing party, (e) is disclosed
without restriction by the disclosing party to a third party, or (f) is to be
disclosed by court order or under applicable mandatory law; provided that in
either event, the receiving party, to the extent possible, has first given
prompt prior written notice to the disclosing party and made reasonable efforts
to prohibit or limit such disclosure and to protect the confidentiality of any
Confidential Information eventually disclosed.
1.8 “CPC” (“Cost per Click”) shall mean the cost set forth in the Mobibrick
Portal per a single click on the Creative displayed at the Advertising Network.
1.9 “Daily Advertising Cost“ shall mean CPC multiplied by the number of clicks
on the Creative displayed at the Advertising Network during a certain day of the
1.10 “Daily Budget“ shall mean the portion of the Budget, as designated by the
Advertiser in advance, for each day during the Campaign Term.
1.11 “Forbidden Content” shall mean sexually explicit or other adult material,
violence and bullying, hate speech, impersonation or deceptive behavior,
personal and confidential information, Intellectual Property infringement,
illegal activities, and malicious products (luding content with entivized
traffic, p2p, adware, or spyware).
1.12 “Intellectual Property” shall mean any and all service marks, trademarks,
trade names, copyrights (luding moral rights), patents, designs, trade
secrets, knowhow, getups, and other similar proprietary rights, any improvement
or update thereof, and any registrations or applications relating to any of the
1.13 “Mobibrick Portal” shall mean Mobibrick’s portal available at HTTP://ACCOUNTS.Mobibrick.COM/GENERAL/LOGIN.ASPX
2. Mobibrick Services
Subject to the terms and conditions of this Agreement and to Mobibricks’
approvals in accordance with Section 3 below, Mobibrick shall promote
Advertiser’s products and/or services designated by Advertiser at the Mobibrick
Portal by placing the Creative on the Advertising Network in such form and
location within the Advertising Network as Mobibrick shall decide, at its sole
discretion. Such promotion services shall be referred to as the “Campaign”.
Advertiser shall not lude any Forbidden Content within the Creative.
Advertiser undertakes to indemnify and hold Mobibrick harmless from and against
any claim, loss, cost, fine or expense, luding reasonable attorney’s fees,
arising out of Advertiser’s breach of this section. Mobibrick reserves the right
to remove from the Mobibrick Portal any Creative that contains, at Mobibrick’s
sole discretion any Forbidden Content.
Advertiser acknowledges and agrees that Mobibrick has no control over the
identity of the users exposed to the Campaign, the way such users may interpret
the Creative, and the effectiveness of the Campaign.
Each Advertiser shall be provided with a login user name and password upon
registration for the Mobibrick services. Advertiser is solely responsible for any
activity that occurs on its account and for the protection and safe use of its
password. Advertiser shall not provide its password to any third party and is
solely responsible for the consequences of breaching such obligation.
3. Creative and
Advertiser shall submit the Creative to Mobibrick via the Mobibrick Portal. The
Creative must meet the specifications provided by Mobibrick in the Mobibrick
Portal. Mobibrick shall have the right, with or without cause, to reject the
graphics, text and/or URL contained in any Creative at any time and for any
reason without liability, luding, without limitation, if Mobibrick suspects
that the above consists of Forbidden Content. Mobibrick shall further have the
right, with or without cause, to reject the Advertiser at any time and for any
reason without liability, luding, without limitation, if Mobibrick suspects
that the Advertiser engages in Forbidden Content. Any modification that
Advertiser wishes to make to the Creative must be submitted by Advertiser via
the Mobibrick Portal at least two (2) calendar days in advance.
Mobibrick shall have the right to pull creative material of the Advertiser from
Google Play or Appstore and display them in the Advertising Network.
Advertiser hereby grants to Mobibrick a non-exclusive, royalty-free, worldwide
right and license to reproduce, transmit, distribute, display and otherwise use
all or some of Advertiser’s Creative for the purpose of carrying out Mobibrick’s
obligations under this Agreement, luding, without limitation, for the purpose
of running and managing the Campaign.
Representations, Warranties and Covenants
Advertiser represents, warrants and covenants to Mobibrick as follows:
5.1 Advertiser has the full right, power and authority to enter into this
Agreement, to grant the licenses granted hereunder and to perform the acts
required by it hereunder;
5.2 The execution of this Agreement by Advertiser and the performance of its
obligations and duties hereunder, do not and will not violate any agreement to
which it is a party or by which it is otherwise bound;
5.3 When executed and delivered, this Agreement will constitute the legal, valid
and binding obligation of Advertiser, enforceable against Advertiser in
accordance with its terms;
5.4 Advertiser is the owner or has the right to use and license the Creative to
Mobibrick as provided herein;
5.5 The Creative is free of any virus or other defects;
5.6 The Creative does not and will not infringe any Intellectual Property right
of any third party;
5.7 In the event that Advertiser wishes to promote a mobile application,
Mobibrick may use any creative material that exists in the Google play or
Appstore under Advertiser’s application page.
5.8 Advertiser does not and will not engage in the development or promotion of
Forbidden Content, and the Creative does not and will not contain any Forbidden
5.9 Advertiser agrees that, in connection with its obligations under this
Agreement, it shall not violate any applicable law, statue, ordinance or
regulation, luding, without limitation, the laws and regulations governing
misleading, false or deceptive advertising, anti-discrimination, or unfair
Upon the submission of the Creative, Advertiser shall pay the entire Budget in
advance via paypal (either credit card or paypal account) at the Mobibrick Portal
for advertisers. Mobibrick is under no obligation to perform any service until
the Budget is received by Mobibrick in full.
7. Reporting and
7.1 The calculation of the Advertising Cost shall be made by Mobibrick, and
Mobibrick’s records shall constitute sole evidence as to the number of clicks on
the Creative. Mobibrick shall provide Advertiser with final reports of its
records within eight (8) calendar days from the end of each calendar month
during the term of this Agreement.
7.2 In the event that Advertiser believes that there is a discrepancy in
Mobibrick’s report, Advertiser must provide Mobibrick with a reasoned report of
such discrepancy within three (3) calendar days from receipt of Mobibrick’s
report; otherwise, Mobibrick shall not be liable for such discrepancy. Mobibrick
shall review Advertiser’s report, and in the event of disagreement with respect
to any discrepancies, Mobibrick’s records shall prevail and be decisive.
8. Term and
8.1 Automatic Termination: This Agreement shall terminate automatically when the
Advertising Cost has reached the Budget and accordingly been fully spent.
8.2 Daily Automatic Termination: During each day of the Campaign Term, upon
reaching the Daily Budget, Mobibrick will remove Advertiser’s Creative from the
Advertising Network, and will re-post it on the Advertising Network on the next
day of the Campaign Term. Advertiser acknowledges that due to technical
limitations and the nature of the services, the Daily Advertising Cost may
exceed the Daily Budget by up to 20% before the Creative is removed from the
Advertising Network. In such event, the excess cost shall be reduced from the
Daily Budget of any one or more of the following days of the Campaign Term,
provided that the Advertising Cost shall in no event exceed the total Budget.
For illustration purposes only: If Advertiser’s total Budget is US$1000 the
Campaign Term is 10 days, and the Daily Budget is US$100: The Daily Advertising
Cost may reach up to US$120 before the removal of the Creative from the
Advertising Network. In such event, the exceeding US$20 amount shall be reduced,
at Mobibrick’s sole discretion, from any one or more of the following days’ Daily
Budget, and the Campaign shall be removed from the Advertising Network once the
Advertising Cost during the Campaign Term reaches US$ 1,000. Advertiser waives
any claim against Mobibrick or any one on Mobibrick’s behalf in connection with
this Section 8.2.
8.3 In the event that an Advertiser creates a new Budget with respect to an
existing Campaign and provides new funds accordingly, all existing terms and
obligations shall remain applicable with respect to the new Budget and the
Campaign shall be immediately continued.
8.4 Termination for Convenience: Each party shall be entitled to terminate this
Agreement, at any time, by providing the other party with a forty eight (48)
hour prior written notice. For the avoidance of doubt, all obligations and
rights shall continue to apply until the expiration of such forty eight (48)
hours, and all Advertising Cost exceeding the Daily Budget pursuant to the terms
of Section 8.2 above during such forty eight (48) hours, if any, shall not be
refunded by Mobibrick.
8.5 Termination for Cause: Mobibrick shall be entitled to terminate this
Agreement immediately without previous notice in the event that Advertiser
breaches the terms of this Agreement and fails to cure such breach within one
(1) calendar day of being notified of such breach.
8.6 Refund: Upon termination of this Agreement, Advertiser may file a request
for refund, which shall be reviewed by Mobibrick. If, according to Mobibrick’s
records, on the effective date of termination the Budget exceeds the
Advertisement Cost, Mobibrick shall refund such excess amount within forty eight
30 days from the date Mobibrick accepts the Advertiser’s request. Advertiser’s
right to a refund shall not apply in the event that Mobibrick terminates this
Agreement due to Advertiser’s breach of this Agreement.
8.7 Effect of Termination: Upon termination of this Agreement, the Campaign
shall terminate, and Mobibrick shall remove the Creative from the Advertising
8.8 Survival: Notwithstanding anything to the contrary herein, Sections 5, 7,
8, 9, 10, 11, 12, 13 and 14 shall survive termination or expiration of
this Agreement for any reason.
9.1 Mobibrick and its licensors own and shall retain all right, title and
interest in and to the Mobibrick Portal and the Advertising Network, luding
all Intellectual Property rights embodied therein.
9.2 Subject to the license grant to Mobibrick in accordance with Section 4
above, Advertiser and its licensors own and shall retain all right, title and
interest in and to the Creative, luding all Intellectual Property rights
9.3 Without derogating from the above, each party acknowledges the other party’s
ownership in its respective Intellectual Property and agrees it will do nothing
onsistent with such rights.
Advertiser shall indemnify and hold harmless Mobibrick and its affiliates,
directors, officers, employees, and agents from and against any claims, actions,
suits, liabilities, losses, damages, judgments, settlements, costs and expenses
(luding reasonable attorney’s fees) associated with any claim or action by
third parties (collectively a “Claim”), to the extent such Claim arises from, or
is connected with, any misrepresentation or any breach of any representation,
warranty, or on the part of Advertiser, luding, without limitation, claims of
infringement of any Intellectual Property rights or other right of a third
party. Mobibrick agrees to provide Advertiser with (i) prompt written notice of
the Claim, to the extent feasible, (ii) sole control over the defense or
settlement of such Claim (provided that Advertiser shall not, without Mobibrick’s
prior written consent, settle any such Claim if such settlement contains a
stipulation to or admission or acknowledgement of any liability or wrongdoing on
the part of Mobibrick or imposes any obligation on Mobibrick other than a monetary
obligation that is payable in full by Advertiser under this Section 10) and
(iii) reasonable information and assistance in the defense and/or settlement of
any such Claim at Advertiser’s expense.
The parties agree that Confidential Information provided under this Agreement
will be held and maintained in confidence and each party will use at least the
same degree of care to protect the Confidential Information of the other party
that it utilizes to protect its own confidential information, but in no event
less than reasonable care. The receiving party may use the Confidential
Information only for the purposes for which it was disclosed. Confidential
Information may be disclosed by the receiving party only to affiliates,
employees, agents and contractors with a need to know, and to its auditors and
legal counsel, provided in each case they are under a written obligation or duty
to keep such information confidential using standards of confidentiality not
less restrictive than those required by this Agreement.
12. Disclaimer of
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED BY
Mobibrick ON AN “AS IS” BASIS AND Mobibrick EXPRESSLY DISCLAIMS ANY AND ALL
EXPRESS, IMPLIED, OR STATUTORY WARRANTIES WITH RESPECT THERETO, LUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,
NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND RESULTS TO BE
OBTAINED BY Mobibrick AND ADVERTISER IN CONNECTION WITH THE USE OF ANY Mobibrick
SERVICE. WITHOUT LIMITING THE FOREGOING, Mobibrick EXPRESSLY DISCLAIMS ANY
WARRANTIES THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR
13. Limitation of
EXCEPT WITH RESPECT TO WILLFULL MISCONDUCT, GROSS NEGLIGNECE, INDEMNIFICATION,
AND CONFIDENTIALITY PROVISIONS HEREUNDER, UNDER NO CIRCUMSTANCES SHALL Mobibrick
BE LIABLE TO ADVERTISER FOR INDIRECT, IDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF Mobibrick HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM ANY ASPECT OF THE SERVICES PROVIDED HEREIN. ANY AND ALL
CLAIMS IN THIS RESPECT ARE EXPRESSLY WAIVED. EXCEPT WITH RESPECT TO WILLFULL
MISCONDUCT, GROSS NEGLIGNECE, INDEMNIFICATION, AND CONFIDENTIALITY PROVISIONS
HEREUNDER, Mobibrick SHALL NOT BE LIABLE IN ANY EVENT TO ADVERTISER FOR MORE THAN
THE TOTAL ADVERTISING COST CHARGED TO ADVERTISER DURING THE TERM OF THIS
AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST Mobibrick MORE
THAN ONE YEAR AFTER THE DATE OF SERVICE. EACH PARTY ACKNOWLEDGES THAT THE OTHER
PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITIONS OF LIABILITIES
14.1 Non-Exclusivity. The relationship between the parties is non-exclusive and
this Agreement shall not restrict either party form engaging in any promotion or
advertisement relationship with any third party.
14.2 Mobibrick is Independent Contractor. Mobibrick is an independent contractor
of Advertiser. This Agreement does not create any employment, agency or
partnership relationship between the parties. Neither party shall have the
right, power or authority to obligate or bind the other in any manner
whatsoever, except as otherwise agreed to in writing.
14.3 Press Releases. Advertiser is willing to collaborate with press releases
and/or be mentioned as a new client. Advertiser permits Mobibrick to display
Advertiser’s application logo and description on Mobibrick’s website or any other
media as part of its client list.
14.4 Entire Agreement. This Agreement constitutes the complete and exclusive
statement of all mutual understandings between the parties with respect to the
subject matter hereof, superseding all prior or contemporaneous proposals,
communications and understandings, oral or written.
14.5 Amendment. Mobibrick reserves the right at any time to amend this Agreement
in its sole discretion. Mobibrick will notify Advertiser of any such amendment.
This Agreement, as amended, will be effective 2 calendar days after the posting
of any amended terms on the Mobibrick Portal. If Advertiser does not agree to any
amendment to this Agreement, Advertiser must notify Mobibrick and the Agreement
will be terminated.
14.6 Law and Venue. This Agreement shall be governed by the laws of the State of
New York. Jurisdiction and venue for any suit or proceeding arising under or in
connection with this Agreement or the relationship of the parties shall lie
exclusively in the competent courts in the State of New York. Nothing in this
Section shall be deemed to limit the parties’ right to seek interim injunction
relief in any court of law.
14.7 Force Majeure. Neither party shall be liable by reason of any failure or
delay in the performance of its obligations hereunder for any cause beyond the
reasonable control of such party, luding but not limited to electrical
outages, failure of internet service providers, riots, insurrection, war (or
similar), fires, flood, earthquakes, explosions, and other acts of God.
14.8 Assignment. Mobibrick shall be entitled to assign this Agreement, without
obtaining the written consent of Advertiser, to any entity that controls, that
is controlled by, or that is under common control with, Mobibrick, as well as to
any entity acquiring all or substantially all of the shares or assets of
Mobibrick, whether by way of a merger, a share transaction, an asset transaction,
or otherwise. Advertiser may not assign or transfer any of its rights or
obligations under this Agreement to a third party without the prior written
consent of Mobibrick.
14.9 Notices. All notices shall be in writing and shall be deemed to be
delivered two (2) calendar days after sending. All notices to Mobibrick shall be
14.10 , and all notices to Advertiser shall be sent to the email address
supplied by Advertiser at registration, or to such other address as either party
may, from time to time, designate by notice to the other party.
14.11 No Waiver. A waiver of any breach of this Agreement is not a waiver of any
other breach. Any waiver will be in writing and signed (or sent via email) by an
authorized representative of the waiving party.
14.12 Severability. If any provision of this Agreement is held to be invalid or
unenforceable, the remainder of the provisions shall remain in full force and
effect. The invalid or unenforceable provision shall be modified so as to render
it enforceable while giving effect, as nearly as possible to the original intent
of the parties.